Criminal Summary Sheet

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General Principles of Statutory Interpretation Division of Powers Vagueness, Overbreadth and Arbitrariness Presumption of Innocence Reasonable Doubt Presumption of Innocence (RevOnus & MandPresumpton) Exclusion of Evidence Obtained Contrary to the Charter Commission of an Unlawful Act Causing Disturbance in Public Place WAS THERE POSSESSION? Possession Offences WAS THERE CONSENT TO ASSAULT? Consent Making Act Lawful Court doesnt Concern Itself with Trifles WAS THERE AN OMISSION TO ACT? Omissions Legal Duties to Act WAS THE ACT VOLUNTARY? Voluntariness Acting through Innocent Agent DID THE ACCUSED CAUSE THE ACT? Causation Murder s. 235(1) (pg. 10) Cases of Intervening Cause DID THE ACCUSED HAVE THE MENS REA? Mens Rea Subjective/Objective Distinction Mens Rea Regulatory Offences Mens Rea Charter Standards 6 Diff Types of Faul for CC pg. 15-16 WAS THERE A DEATH? Murder and the Charter s.229(a)(i) and (ii) & (provocation defence) Constructive Murder s.229(c) and s.230 First Degree Murder s.231 Subjective Mens Rea Crimes Motive Subjective Mens Rea Crimes Desire/Purpose Subjective Mens Rea Crimes Recklessness or Willful Blindness Objective Fault Crimes Criminal Negligence s.219 Marked Departure Test Crimes Based on Predicate Offences WAS THERE A SEXUAL ASSAULT? Rape and Sexual Assault Crimes of Sexual Assault Rape Shield Mistaken Belief in Consent Mistake of Fact Mistaken of Law (Distinguish between Mistake of Fact and Law pg 29) Colour of Right for Property Offences Officially Induced Error of Law Incapacity (pg. 30) Insanity Automatism Intoxication

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1 General Principles of Statutory Interpretation - pg.1 Public place not meant to cover private places exposed to public view.
o o o R v. CLARK Canada Wise Case Court Found the accused was not in a public place when he was sitting in the passenger seat of a car Muraca Case Taxi was not a public place once it had been hired by Muraca b/c the public no longer had access to it

Strict Interpretation - pg.1 An ambiguous term should use context that favours the accused (including bilingual legislation)
o R v. GOULIS Ontario

There is difficulty in defining the beginning and end of an assault as required by the statute, the actions constituted one continuous sequence of events. 2 mins between sexual assault and murder was enough to remove simultaneous requirement of statute. It was a continuous act.
o R. v. PARE Canada

The term adapted in statute does not require a device to be altered. Courts may resort to strict construction of penal statutes where ordinary principles of interpretations do not resolve an ambiguity.
o R v. MAC Ontario

Division of Powers - pg.2 Legislation to control firearms within federal jurisdiction as its aim is to enhance public safety
o REFERENCE RE: FIREARMS ACT Canada

Vagueness, Overbreadth and Arbitrariness - pg.2 Criminal Charges can be challenged an declared unconstitutional for vagueness, overbreadth and arbitrariness (in s. 7 of the Charter) o the Court is reluctant to find laws too vague. Vague Law: prevents citizens from realizing when he or she is in an area of risk for criminal reason. In the public interest is too vague that no one knew how to respond to it.
o R v. MORALES Canada

The vast restrictions of sexual offenders is overbreadth legislation. Applies to too many people and too many places for an indefinite period of time and no possibility of review the overbreadth violates s. 7 of the Charter
o o o R v. HEYWOOD Canada Sharp Case- when legislation is overbroad, able to strike it down or remove just the offending part of the legislation, or add to the legislation Moralis Case dealt with provisions that stated a person could be denied bail if its in the public interest ruled to be too vague by the SCC

Spanking legislation is not too vague to find correct amount of force o Wilson says it is too vague The nature of the legal system is areas of uncertainty exist where the judges need to clarify on a case-by-case basis.
o

CANADIAN FOUNDATION FOR CHILDREN, YOUTH & THE LAW v. CANADA (ATTORNEY GENERAL) Canada Types of Offences: Indictable: most serious. accused can decide to be tried by jury alone or a judge and jury Summary convictions: less serious. max 6 months jail time and $2000 fine. Hybrid: Crown elected or dual defences

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o Device used by Crown to force confessions. We have to decide whether to proceed by indictment or summary conviction (probably absolute discharge) so you convince them to plea guilty and you get a summary conviction

Presumption of Innocence - pg.3 Golden Thread Theory established: Burden of proof on Crown and proof beyond reasonable doubt that they are not innocent
o WOOLMINGTON v. D.P.P. Britain

Reasonable Doubt - pg.3 Crown has to exceed burden regardless of lack of credibility of defence witnesses. If there is any reasonable doubt in any area including that of credibility of witnesses, the Crown has not proven BARD.
o R. v. S. (J.H.) Canada

Not guilty does not necessarily mean the person didnt commit the offence, it just means the Crown failed to fulfill its burden of proof.
o R. v. MULLINS-JOHNSON Ontario

The burden of beyond a reasonable doubt does not mean to absolute certainty. If there is reason to doubt you must acquit!
o o R. v. LIFCHUS Canada R. v. STARR Canada

Proof Beyond a Reasonable Doubt is closer to absolute certainty than to Balance of Probabilities

Presumption of Innocence - pg.4 Reverse onus on accused to prove he was not trafficking is against the right to be presumed innocent Oakes Test on whether violative law is reasonable: 1. The objective of the law limiting the Charter right must be of sufficient importance to warrant overriding it (this always passes in Criminal Law) 2. The means chosen to achieve the objective must be reasonably proportional to the objective and the effect of the law. In determining proportionality: a. Rational Connection: Must be rational connection between measure limiting the Charter right and the objective b. Minimal Impairment: The means should impair the right as little as possible (least intrusive as possible) MAIN ONE FOR CRIM!! c. Overall Proportionality: There must be proportionality between the negative (deleterious) effects of the law that limit a right and the sufficiently important objective.
o R. v. OAKES Canada Curtis Case (1998) o s. 215 of CC Failure to provide necessities o Reverse onus struck down violation of presumption of innocence (s. 11(d)) not saved by s. 1 o INSTEAD: create a mandatory presumption that would require the accused to probably raise a reasonable doubt

A mandatory presumption (not reverse onus) doesnt impose a burden of proof but rather imposes an evidentiary obligation and all the accused must do is raise a reasonable doubt. The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt. 2

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o o o R. v. DOWNEY Canada for Mandatory Presumption: words like absent evidence to the contrary for Reverse Onus: words like must establish proof of which relieves on the accused

Exclusion of Evidence Obtained Contrary to the Charter - pg.5 With improperly obtained evidence, must ask whether it will put justice system into disrepute
o R. v. BUHAY Canada

Rights can be violated but only if the state can justify it Criminals escaping justice and unlimited police ability would both in their own way bring administration of justice into disrepute so they must be weighed against each other.
o R. v. DUGUAY Ontario

Commission of an Unlawful Act Causing Disturbance in Public Place - pg.6 Merely making someone upset does not constitute a public disturbance but rather there must be externally manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place. Purpose of legislation is NOT to protect individuals, but the public.
o R. v. LOHNES Canada VICARIOUS RESPONSIBILITY not based on fault, based on relationship to the person who caused the harm o ex. employee-employer relationship a person can be guilty of an offence even with no wrongful act, or intention on their part corporations cannot be held criminally responsible (s. 22.1-22.2 of CC), but corporations can be held responsible for the people in the organization who make decisions that violate the law (Senior CEOs, etc) s. 467.11 criminal offence to be part of a criminal organization

WAS THERE POSSESSION?

Possession must have control, intent and knowledge; s. 4(3) o Actual Possession o Constructive Possession: you ask someone to keep something. you have SOME control over it, but someone else maintains possession over it Possession Offences - pg.6 There must be some act of control, along with knowledge and consent, to establish possession o Here there was no CONTROL over the marijuana in the car
o MARSHALL v. R. Alberta

Knowledge and consent are integral elements of possession, as where there is power to consent there is equally the power to refuse.
o R. v. TERRENCE Ontario

Constructive possession can be inferred from the circumstantial evidence, there must be knowledge and some measure of control over the item in the attributed premises. Knowledge does not need to be direct evidence and can be established circumstantially. Make a logical inference.
o R. v. PHAM Ontario

Innocent possession is only when someone has possession for the sole purpose of destroying it Control amounts to the power and authority over the item whether it is exercised or not. No need to prove that the accused was aware the matter was illegal.
o o R. v. CHALK Ontario Morelli Case- guy searched materials, but did not have on his hard drive. merely viewing on a web browser from a remote location does not show intention to control

WAS THERE CONSENT TO ASSAULT?

For Assault: o If the Crown proves actus reus of the predicate offence (s. 265), it will suffice to prove the actus reus higher level assault offence. (However there might be additional requirements) o The assault must be committed with intent, the mens rea for the predicate offence must be present. The crown will have to prove this beyond a reasonable doubt. o Was there consent or an honest mistaken belief in consent? Consent negates the act requirement for assault under s. 265 o Pursuant to s. 265(2) of the criminal code, consent is not obtained when it is by
(a) application of force, (b) threats or fear of the application of force to the complainant or a to a person other than the complainant, (c) fraud where there is some element of danger, e.g. not telling them your food is gross); or (d) the exercise of authority.

For mistaken belief as to consent, it must be honest, but need not be reasonable, so the accused must subjectively have believed that there was consent (from Pappajohn).

Consent Making Act Lawful - pg.8 Supreme Court almost invented the offense of street fighting a victim cant consent to the infliction of bodily harm unless it is within a socially approved purpose (only applies to adults). Dissent: Sopinka J. argues that expanding the scope of the criminal provision is not necessary as once the victim went unconscious or rendered unable to defend oneself, it now becomes assault as there is no longer consent (doesnt like majority creating common law offence) WILSON LIKES THIS DISSENT
o R. v. JOBIDON Canada Consensual sexual activity can be a crime if it does not have a social purpose Victim cannot consent to the infliction of bodily harm upon themselves unless the accused is acting in teh course of a generally approved social purpose while inflicting the harm. o Welsh Case 1995 Cannot consent to death inflicted upon you s. 14 It is an offence to aid someone in attempt to commit suicide s. 241

All elements of the actus reus must be present for a conviction regardless of the fraudulent consent Is it just a collateral matter or is it fraud and go to the nature and character or the act?
o BOLDUC and BIRD v. R. Canada

Fraud should only vitiate consent if there is a significant risk of serious harm The fraud must be not only dishonest but also lead to a deprivation Dissent LHeureux Dube: Any fraud or dishonest conduct vitiates consent Fraud can vitiate consent when:
o (1) the accused committed an act that a reasonable person would see as dishonest, (2) there was a harm, or a risk of harm, to the complainant as a result of that dishonesty, (3) the complainant would not have consented but for the dishonesty by the accused. R. v. CUERRIER Ontario

To constitute a crime at some point the actus reus and the mens rea or intent must coincide. The accused wilful failure to disclose his status to complainant before engaging in unprotected sex constituted fraud vitiating consent.
o R. v. WILLIAMS Canada

6 Court doesnt Concern Itself with Trifles - pg.10 To be trifling; the act has to be characterized as an irregularity of very slight consequence which if continued in practice, would weight little or nothing on the public interest. Trial judge dismissed b/c it was minor. ONT CA found guilty, but gave absolute dischrage The court did not decided upon whether de minimis is a valid defence.
o R. v. KUBASSEK Ontario

WAS THERE AN OMISSION TO ACT?

Five different areas to find a duty: (s.215 - s.217 create duty)
1. 2. 3. 4. 5. Did you undertake an event and therefore have to finish it (s. 217 R. v. Browne but court found no duty there because no clearly made intent to form a binding duty page 17.) Causal duty to rectify a situation that you created (R. v. Miller started fire didnt put out) Caretaker (s. 215 R. v. Peterson son neglected old father) Did you undertake lawful act that may endanger the life of another person, you must use reasonable knowledge skill in doing so (s. 216 R. v. Thornton - blood)) Common law duty to Act (This is objectionable!) (R. v. Moore and R. v. Hayes) Need a casual connection Need to prove the failure to act factually caused the loss (i.e. if you start a fire and you didnt call. but even if you HAD called it would have taken 15-20 mins for the fire to be put out. and the ppl died within 5 minutes of the fire no factual causal link b/c loss would have occurred either way)

Omissions Legal Duties to Act - pg.10 Mens rea can be superimposed upon an existing act to qualify for concurrence Assault requires proof beyond a reasonable doubt of intent to create an unconsented touching and therefore you cant commit an assault through an omission. The court found that the crime was not an omission to move the car; rather, it constituted a continual act of assault
o FAGAN v. COMMISSIONER OF METROPOLITAN POLICE Britain

Omission can constitute an offense if you create a dangerous situation and fail to act in any way to diminish the effects. An omission can therefore be an actus reus for a criminal conviction, even where no prior legal duty of care exists. Crown needs to find duty, breach of that duty and must show that it was because of the breach that caused the loss.
o R. v. MILLER Britain

There is a common law legal duty to identify yourself to police and an omission to do so is obstructing an officer Wilson dissent correct: A person is not guilty of the offence of obstructing a police officer merely by doing nothing, unless there is a legal duty to act. If the accused was not arrested, there was no statutory duty to identify himself or common law duty to do so. o still remains the rule that a citizen can be uncooperative as he pleases provided he does not impede the administration of justice by giving false information to police
o MOORE v. R. Canada

C.A.: Legal duty for the purpose of criminal law can be found in either statute or common law SCC: Court implied, however did not state, by a reasonable interpretation of their decision to preferentially use criminal code/statute to find criminal duty and not common law.
o R. v. THORNTON Ontario (s. 216 CC)

7 Police have to follow all procedure before finding omission that constitutes obstruction of justice Ancillary powers doctrine: court must determine whether conduct falls under general scope of duty imposed by statute or common law on police and then whether it is a justifiable use of powers associated with that duty weighed against any interfering individual liberty interests.
o R. v. HAYES Ontario

Pursuant to s.217: everyone who undertakes to do an act with binding intent is under a legal duty to do it if an omission to do the act is or may be dangerous to life. o could also argue common law duty to render assistance to fellow citizens whom you have a relationship & are clearly dependent on you for assistance o For serious offences, need a high threshold a mere expression of words or deeds indicating a willingness to do an act does NOT meet that threshold o before CRIMINAL NEGLIGENCE: there had to be an undertaking clearly made and with binding intent
o R. v. BROWNE Ontario

There is a legal duty to take care of elderly parents that cannot care for themselves Court in this case looked at objective gross negligence test; whether there was a marked departure from that of a reasonable person s. 215(c) mandatory presumption
o R. v. PETERSON Ontario

WAS THE ACT VOLUNTARY?

Voluntariness is part of actus reus and distinct from mens rea o voluntariness has nothing to do with the consequence of the action o mens rea has to do with foresight of consequences Step One:
o o o Accused must meet evidentiary burden. They need to show an air of reality to rebut the presumption of voluntariness on BOP. Crown must still prove that the act was voluntary BARD The evidence you can rely on is the assertion of the accused, expert evidence of that fact, and coborating evidence. If evidentiary burden is met then the judge decides if the evidence is sufficient to put it to the jury (sufficient that jury could find involuntarism). If there is enough evidence then the judge gets to decide to leave mental or non mental with the jury. The jury does not get to decide which one it will pick, the judge decides for them. There is presumption for mental automatism because of the consequences, we can still keep an eye on them. In determining whether it is mental or non mental there are 3 general factors: (1) Nature of the trigger that set out the automatic state. Note that the ordinary stresses of everyday life will not count. Two way to access the trigger: (A) internal cause (disease of mind) (B) external cause (psychological blow): o Test is a contextual objective test meaning we will compare the accuseds reaction to a reasonable person in the circumstances. o Where you have a dissociative state from an emotional shock caused by some extraordinary external event which might reasonably be presumed to effect the average normal person then you have external automatism (Rabey)

Step Two:
o o

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(2) Continuing danger to the public as in a history of attacks, or if the trigger will re occur (likely of reaccurance) (3) Policy Consideration

Voluntariness - pg.13 Part of actus reus and distinct from mens rea fault element. It is the will to act, the voluntary movement of your body. There can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision.
o R. v. KING Canada

Automatism is unconscious, involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he is doing
o RABEY v. R. Canada

Automatism is part of the voluntariness requirement, which is part of the actus reus component of criminal liability
o R. v. PARKS Canada

Automatism is a state of impaired consciousness; dont require total unconsciousness to have involuntariness. If using automatism as a defence, need to establish on a BoP
o o o R. v. STONE Canada R. v. LUCKI Saskatchewan R. v. WOLFE Ontario

There must be a voluntary act in order to have the requisite intention. A reflex action is involuntary and therefore lacks voluntariness and actus reus Must have voluntarily, conscious act to have the essential actus reus to commit an offence It is the conduct of the appellant following the coincidence of occupancy and knowledge that counts, if he acts to get either himself or the gun out of the car there is no voluntary act.
o R. v. SWABY Canada

An act will be voluntary if the accused is voluntarily and willingly places himself in a situation and a foreseeable involuntary action takes place (guy shoots clerk and says it was reflex)
o R. v. RYAN Australia

An act can only be voluntary if there was some other course of action available to the accused The Crown must show that it was the conduct of the accused that brought on the prohibited consequences (the guys ticket was lost)
o KILBRIDE v. LAKE New Zealand

Acting through Innocent Agent - pg.15 An action perpetrated through the innocent should be viewed as an action of the accused. If a person has the intention to murder and sets off a series of events that results in the intended death, though they may not have actually committed the murder still may be responsible
o R. v. Michael Canada

DID THE ACCUSED CAUSE THE ACT?

Traditional Test:
Was there factual causation: Did the action physically result in that consequence. The event would not of occurred BUT FOR the actions of the accused. 2. Was there legal causation: should the conduct that amounted to this result be punished by the law. Was the ultimate injury REASONABLY FORESEEABLE st Smithers Test (Threshold Approach)(does not apply to 1 degree murder)(implies factual causation): o Were the actions of the accused a contributing cause of death beyond a de minimums range (not trifling or trivial)? o Even if death is unexpected and unforeseeable there can still be causation because the thin skull rule says take your victim as you find them. Nette Test (modification of Smithers): o Were the acts of the accused a significant contribution to the death of the victim. (modifying language not threshold) o As the law of manslaughter stands, if a person commits an unlawful dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory and the unlawful act is a significant contributing cause to the victims death. o for every other causation discussion (than s. 231(5)),first degree murder for any other section, the test is Nette Test significant contribution o Now it is MORE difficult to prove causation 1.

Harbottle (1st degree murder) s. 231(5) only!!:

o o The acts of the accused must form an essential, substantial, and integral part of the killing of the victim. Cant just be a party, must play a part in the death set a higher standard for causation as it relates to first degree murder has to be a substantial and integral cause, simply being a party is not enough.

Intervening causes: o The correct approach is still the test for nette, need to show the action of the accused continued to be a significant contributing cause to the outcome. The courts are not very sympathetic to the initial person. The second cause has to be so big that it overwhelms and makes meaningless the first offence (see that in bingapore)

Causation - pg.15 If you make any contribution above de minimis along the causal chain then you can be liable for that loss. One who assaults must take their victim as they find them Court used the thin skull test from civil law however Wilson feels this was unnecessary as the attacker should of reasonably foreseen a person might have a condition and therefore it satisfies the two step factual and legal causation test.
o SMITHERS v. R. Canada

As long as accuseds actions continue to be a substantial cause at the time of death, outside conditions will not be enough to break the chain of causation A person who assaults someone and causes injury will be responsible for their death even if they refuse to get treatment. (Mormon girl refused to get blood transfusion)
o R. v. BLAUE Canada

10 Need a substantial contribution of causation for 1st degree murder that is a result of another offence Substantial cause test: accused may only be convicted of 1st degree murder as a result of another crime if the Crown establishes that the accused has committed an act which is of such a nature that it must be regarded as a substantial and integral cause of the death. Accused may be found guilty of 1st degree murder for s. 231(5) if the crown has established beyond a reasonable doubt that: (1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime; (2) the accused was guilty of the murder of the victim; (3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim; (4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; (5) the crimes of domination and murder were part of the same transaction.
o o R. v. HARBOTTLE Canada Fatima Case ONT CA confirmed that to use substantial test, needs to be first degree murder pursuant to s. 231(5)

Factual Causation: is concerned with how the victim came to his or her death taking into account the contribution of the accused. Result would not have happened but for the conduct of the accused. Legal Causation: is concerned with whether the accused person should be held responsible in law for the result. Was there a sufficient nexus of proximity between the events and was it reasonably foreseeable. Smithers test for legal causation (for all charges not 1st degree murder) is whether there was a significant contributing cause. (not whether there was a contribution beyond the de minimis range).
o R. v. NETTE Canada

For Legal Causation, a significantly contributing cause can be one that exacerbates an existing condition, thereby accelerating death
o R. v. TALBOT Ontario Sinclair Man CA o Factual and Legal causation has been rolled into one: Was there a significant contribution? o Guys beat up, later the guy was run over by a car. Original guys found guilty b/c they had a significant contribution to the guys death Kippax Case 2009 Ont SCJ o break up the factual and legal causation o but say test for factual causation: was it a significant cause? o Legal causation: should this person been held morally responsible is it fair? Kreeba Case o Wilson says court erred in saying Nette was a test for more than the di minimus causation for homicide it said it was significant

Causation doesnt upset the fundamental principles of justice in the Charter. The low threshold of Smithers test is made up in sentencing discretion (before Nette)
o R. v. F.(D.L.) Alberta

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11 Cases of Intervening Cause - pg.18 For third party contribution, look at two-step test: o factual legal component of causation, was it a significant contribution?? To break the chain of causation it must be shown that the second cause was so overwhelming as to make the original wound merely part of the history. If at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is still operating.
o R. v. SMITH Manitoba

The act of the appellant causing injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because some third party is negligent. There must be a clear gross negligence in order to diminish causation. Even if you didnt cause the original wound but accelerate the death, you will still be held responsible.
o THE QUEEN v. BINGAPORE Australia

The accuseds withdrawal was an independent factor which can be reasonably said to sever the causal link that ties the accused to the prohibited result.
o R. v. MENEZES Ontario

DID THE ACCUSED HAVE THE MENS REA?

Objective Negligence: o Simple negligence: Is the failure to act as a reasonable person without foreseeing the possible consequences of your action. (usually attract civil action but wont attract criminal action, not criminal code infraction but maybe under provincial legislation such as highway traffic act) strict liability offence; burden on accused to show they acted as a reasonable person o Gross negligence: Law has moved toward this starting point for most criminal code offences (not subjective mens rea). More than simple negligence, a marked departure from the conduct of a reasonable person. Ie. dangerous driving causing death, dangerous driving, failure to provide necessaries. o Criminal negligence: causing death is gross negligence but is a marked and substantial departure from the conduct of a reasonable person. Even more outrageous conduct that is just short of intent to kill. Wanton and reckless disregard for the safety of others. o Key words: Ought to have known, should, o Predicate Offence: Crown must prove the actus reus and mens rea for the predicate offence if that is proven it is imported for that of the offence. Crown has to show fault element for original offence and then show there was objective foresee ability of the risk of bodily harm in the context of the prohibited act that was neither transient nor transitory. The only increased requirement is the objective foresight of harm. Ie. Unlawful act manslaughter s.225(a), aggravated assault, unlawfully causing bodily harm. Strict Liability: o If its a public welfare offence, then the presumption is strict liability. o Presumption arises that mens rea is present but it can be rebutted by showing due diligence, or lack of voluntariness compared to reasonable objective standard.

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12 Once it is proven that the accused did it, the legal proof of burden shifts to the accused to show that they acted with due diligence (as a reasonable person would have) to a balance of probabilities. Crown not liable to show intent or that didnt act as a reasonable person. Absolute Liability: o Crown must only prove actus reus, there is no mental element for these offence; if crown proves you did the act, you are guilty o An absolute liability offence with ANY possibility of jail time will offend s. 7 of the charter. Absolute Liability with jail time will be read as strict liability (R. v. Cancoil). However, Absolute liability offence is constitutional if the chance of going to jail in default of payment was remote. (POLEWSKY) Subjective Mens Rea: o Key words: With intent, knew, wilfully, knowingly, purposely, wilfully blind, reckless, deliberately o Offences which stigmatize and identify someone as clearly being a criminal, must have subjective fault (murder, offences against humanity, sexual assault, theft, break and enter, assault, possession offences) o Intention: a person foresees and directs their mind to the consequences of their actions and desires the consequences or substantially certain they will happen. o Recklessness: Foresees the consequences, didnt desire them, didnt see them as substantially certain, but took an unreasonable risk. Requires proof that the accused was subjectively aware of the prohibited risk and was reckless as to whether the consequences occurred. Mix between subjective and objective, knowingly foresee the possible consequences and do it anyway. o Wilful Blindness: usually occurs when someone is in possession in something illegal, or thought there was consent in sexual assault. Wilful blindness is sufficient subjective fault for a conviction. Did this accused have their suspicions arise, and did this accused refrain from knowing the truth and go ahead anyway. o Crown must prove subjective mens rea of accused that he/she intended, knew, was reckless or wilfully blind to the risk of the prohibited consequences unless the code is specific on which one If the Code is silent say in the past there was a presumption that all Code offences had a subje ctive fault
element. SAULT STE. MARIE / BEAVER case support this presumption. SCC has never straight out said this presumption has changed, however Wilson and SCC decisions like Creighton continue to exhibit a move towards a presumption of objective fault (gross negligence) for silent Code offences. Note, in our discussion of statutory interpretation, the Goulis case established that any vagueness in a statute is to be interpreted in favour of the accused. Therefore if any ambiguity arises, based on Goulis, we should adopt subjective fault at a minimum (note: this is not what the SCC has been doing)

Mens Rea Subjective/Objective Distinction - pg.19 The test for dangerous driving is an objective one and concerns what the accused should have known and foreseen the consequences. A subjective test seeks to determine what was actually in the mind of the particular accused at the moment of the offence. An objective test requires a marked departure (simple negligence) from the standard of care of a reasonable person The potential harshness is lessened by the consideration of certain personal factors.
o o R. v. HUNDAL Canada This has been overturned by Creighton Case no incorporation of subjective factors

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13 Court must subjectively infer intentions from the conduct of the accused The test is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral. you can reasonably infer subjective awareness by the conduct of the accused. No malice, just that they intended to do something and that it was against the law
o R. v. THEROUX Canada

Probability of harm may be so great that it compels inference that the accused actually intended to do the harm (guy stabbed wife repeatedly and said he was just trying to hurt not kill)
o R. v. MULLIGAN Ontario

Good example of traditional approach: a man is usually able to foresee what are the natural consequences of his acts, so it is reasonable to presume that he did foresee them and intend them. Assessed on a balance of circumstantial evidence Crown has to prove BARD that the accused had the requisite intention
o R. v. ORTT Ontario

Its easier to convict now, since Charter, because: 1. A lot of offences do not require proof of subjective fault 2. Even when they do, it is much easier to prove subjective fault o historically, used to be accused was aware of potential consequences, did they foresee them subjectively? o Now, look at conduct and negligence. Just need to show the accused was aware of the physical reality of consequences and foresaw some likelihood of the occurrence 3. Even prior to evolution, we did have a lot of offences including a few criminal where you could be held responsible for acting reasonably Mens Rea Regulatory Offences - pg.20 (Provincial and Federal Legislation not CC) DEFENDANT not ACCUSED Honest Belief subjective fault Honest and Reasonable belief objective Honest belief, actually held subjective fault Traditional approach has subjective fault with full mens rea as an essential ingredient unless Parliament makes it very clear otherwise. Crown must prove subjective fault BARD. there was either full mens rea offences or absolute liability at this point.
o BEAVER v. R. Canada

Strict Liability is now the starting point for all faults in non-criminal code offences Three categories of fault for offences: Mens rea proved by the prosecution beyond a reasonable doubt offences must consist of intent, recklessness, or knowledge based on an inference from the nature of the act committed. Honest belief, actually held) Subjective. Crown Prove BARD. Strict Liability Offences Crown proof of act is all that is required. The accused can avoid liability by proving he acted with due diligence and he took all reasonable care which a reasonable man might have been expected to take in the circumstances. This involves an objective standard of what a reasonable person would have done in the situation. Simple negligence need to prove on balance of probabilities that they acted reasonably. Honest and Reasonable Belief objective

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14 s. 265(4): evaluate the reasonableness of the evidence. the more unreasonable the evidence, the more unreasonable that the accused actually believed what he is trying to believe he believed. Absolute Liability Offences offences where it is not open to the accused to exculpate themselves by showing he was free from fault. All that must be proved is the doing of the prohibited act these are offences strictly prescribed by the legislature in statute. Simple negligence: the failure to act as a reasonable person in which the accused has to disprove the fault.
o R. v. CITY OF SAULT STE. MARIE Canada - create Strict Liability Offences

Conviction of a regulatory offence imports a significantly lesser degree of culpability than conviction of a true crime Licensing Justification: people who engage in economic and social activity that is subject to government regulation have assumed the responsibility to meet the regulatory requirements.
o R. v. WHOLESALE TRAVEL GROUP INC. Canada

A public welfare offence which is not criminal in the true sense is a strict liability offence An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances, or in other words, that he was in no way negligent. Need to prove on a balance of probabilities that you acted reasonably show due diligence

o R. v. CHAPIN Canada KANDA CASE: o Offences in which mens rea knowingly permit o Strict liability offence make an unreasonable noise, unreasonable amount of smoke, unnecessary noise, etc o Absolute liability offence it is NOT a defence that the person exercised due diligence to avoid or prevent... ** If its not a CC offence, you can start with the assumption that the fault element is objective and will be strict liability. Simple negligence and the accused has the burden of proof to show on a balance of probabilities that they acted with due diligence. ** if CC, Stuart will say start with subjective, but Wilson DISAGREES.

Mens Rea Charter Standards - pg.21 Any offence that has incarceration as a penalty cannot be an absolute liability offence In Ontario, s. 69 and s. 70 of Ontario Provincial Legislation if guilty and do not pay a fine, then you can go to jail could NOT be absolute liability then! Violation of s. 7!
o REFERNCE RE SECTION 94(2) OF THE MOTOR VEHICLE ACT (B.C.) Canada

Due to the possibility of incarceration, having an absolute liability offence offends s.7 of the Charter. Change to strict liability so defence could be due diligence.
o R. v. CANCOIL THERMAL CORP. Ontario

A due diligence defence is all that is required in the case of a regulatory offence Strict liability offences do not infringe either s. 7 or s. 11(d) of the Charter. Fault is presumed from proof of the prohibited result and the onus shifts to the defendant to establish reasonable care on a balance of probabilities. The regulated person chose to enter the regulated field and accordingly can be taken to have known of, in most cases, and to have accepted certain terms and conditions of entry. If offence is constituted as Strict Liability, burden of proof on accused to show on a balance of probabilities that they acted as a reasonable person reversal of onus of proof as reverse onus clause legislative mandate, it has a clause in wording reversal of onus of proof as a result of strict liability clause- accused has to prove 14

15

CONSTITUTIONALLY VALID
o R. v. WHOLESALE TRAVEL GROUP INC. Canada

Absolute liability offences do not offend the liberty of the accused b/c of no jail time. due diligence is not an offence so AL, but not possible incarceration so no violation of s. 7 similar to William Cameron Trucking Case o Wilson argues: shouldnt it not be allowed an AL offence if it takes away your livelihood?
o R. v. TRANSPORT ROBERT Ontario

Criminal acts must be of such a poor nature that it is considered breach of duty to the public and deserving of punishment Crown still must prove BARD the elements of the actus reus in these offences
o R. v. BEAUCHAMP Ontario

Absolute liability offence is constitutional if the chance of going to jail in default of payment was remote.
London v Polwesky (2005) o Ont CA speeding could be AL offence even though could go to jail if default payments on tickets o WILSON SAYS THIS IS WRONGLY DECIDED o CORPORATION OF THE CITY OF LONDON v. POLEWSKY Ontario

If non-CC offence, start with Strict Liability check if it can move up to subjective fault o level of proof would escalate (from balance of probabilities to BARD) o Provincial law offence that is moved to mens rea offence (subjective includes words like everyone who with intent or wilful or intention) o Crown will have to prove BARD for actus reus and BARD for the establishment of subjective fault Used to only be two types of fault in CC 1. Crown would have to prove subjective fault BARD o intention, recklessness, wilful blindness knowingly, purposefully, etc 2. Couple exceptions that limited to criminal negligence causing bodily harm o until recently, fault element was recklessness would have to show that accused subjectively foresaw the consequences and took an unreasonable risk o Criminal Negligence first move away from subjective to objective fault o Offensive manslaughter: if you were drunk or had a mental disorder not serious enough for insanity where you could not form intention to kill someone NOW: most CC offences are objective fault offences: marked departure and marked and substantial departure from the conduct of a reasonable person Crown has to prove this BARD o Dangerous Driving causing Death marked departure from conduct of reasonable person 6 Different Types of Fault Requirement in the Criminal Code 1. Clear Language offences: o words like wilfully, knowingly, intentionally, deliberately, with purpose 2. Offences with a special stigma o SCC made up parliament treat these as highest level offence and require subjective fault o Murder, offences against humanity, sexual assault and theft 3. Offences which have been found by the courts to require proof of subjective fault 15

16 o based on Precedent assault, possession, murder 3 Types of Objective fault in CC 4. Criminal Negligence/gross negligence? o causing bodily harm o fault requirement: marked and substantial departure from how a reasonable person would act 5. Offences of Penal Negligence o includes offences which the Court have determined do not require subjective fault: dangerous driving failure to provide necessaries Arson careless use of firearm unlawful act causing bodily harm(?) o fault element for offences marked departure from conduct of a reasonable person 6. Predicate Offence Situations o situation where: if A causes B scenario o Unlawful Act, culpable homicide less than murder moreso manslaughter o as per Martineau you cannot be convicted for murder in Canada unless accused can foresee consequence of death o What if the result of a provincial or federal Act then it cannot be a Strict Liability or Absolute Liability offence Wilson says however, that even though youre dealing with offences of provincial statute, we should not treat it like that b/c we are not dealing with offence of provincial statute, but now deal with a criminal offence for the CC o Crown has to prove BARD that this person exhibited a marked departure from the conduct of a reasonable person

WAS THERE A DEATH?

Person commits murder where means to cause death or means to cause bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not (Simpson) Two step process Was there a murder, then was there a first/second degree murder. (1)It is a murder if as per s. 229 - the accused (a)(i) meant to cause the death, (a)(ii) meant to cause bodily harm that was likely to cause death, (b) meant to kill person A, but killed person B, (c) for some unlawful purpose meant to cause harm that he knows would cause death. If not, and it is still a culpable homicide, then it is manslaughter either through unlawful act manslaughter [s.222(5)(a)] or criminal negligence causing death [s.222(5)(b)]. (2) To find 1st degree Murder You Should Ask: o Was the murder planned and deliberate look for words calculated considered not impulsive or planned, or o Was the murder set out in the code as a 1st degree for being a particular victim, or o Was the murder during the course of an indictable offence

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17
s. 230 - Its murder if the culpable homicide was committed during one of the following offences: high treason, highjacking, escape from prison, assaulting a cop, sexual assault, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery; AND (a) the accused meant to cause bodily harm for the purpose of committing or escaping from the listed offence, (b) used stupefying force that causes death for listed offence, (c) wilfully stopped the breath of human for listed offence

If it is not possible to show murder under s. 229 or s. 230; but the act was caused by CRIMINAL NEGLIGENCE, it is unlawful act manslaughter.
Note s. 225(5)(b) culpable homicide is committed when death is caused by criminal negligence Note s. 219 you are criminally negligent when you do, or omit to do something that it is your duty to do. Note that duty means duty imposed by law. Note that the standard here for criminal negligence is objective a marked and substantial departure from the reasonable person. c. Note that the crown will have to prove that this negligent act CAUSED the death. Defence of Provocation - s.232 - only available for a charge of murder. If a reasonable person would have lost control in the circumstances, you wont be charged with murder but rather manslaughter. a. b.

If you commit culpable homicide it must be one of 3 things: 1. Murder s. 229 2. Manslaughter 3. Infanticide Murder and the Charter s.229(a)(i) and (ii) - pg.23 Murder s. 229(a)(1) o murder if you intend to kill someone and you are successful you wanted death to occur and it did Murder under s. 229(a)(2) o also convicted of murder even when you did not intend to kill that person, but you intended to cause bodily harm that you knew was likely to cause death (subjective test) o Martineau subjective foresight of death Must be subjective foresight of death in both cases o the accused must be shown BARD to have foreseen that death as a likely consequence Comes from Martineau decision Culpable homicide must have a subjective fault element
o SIMPSON v. R. Ontario

Crown is obliged to prove the accuseds subjective intent to cause bodily harm that was likely to cause the victims death The difference between knowing that death is likely and that death is possible distinguishes murder from manslaughter. s. 229(a)(2) need to prove likely knew. Means more than a remote possibility
o R. v. EDELENBOS Ontario Patterson Case o second degree murder guy pulled out knife to defend himself, victim slipped and impaled himself o if the accused saw the risk of the deceased could die from injury, that could constitute likelihood for s. 229(a)(2). Foresaw death and likelihood it would happen.

Constructive Murder s.229(c) and s.230 - pg.24 s. 229(c) 17

18 anyone for an unlawful object and you know it is likely to cause death would be murder o i.e. made a diversion at one end of town for friends can rob on other side of town (explosion) guilty of murder under this section o ought to have known is gone as per Martineau otherwise it would infringe on s. 7 and s. 11 (d) now it is subjective foresight of death Constructive murder goes against s.7 of the Charter as it does not have the adequate mens rea as there has to be a minimum subjective mental state for an offense relative to the harm caused. Struck down s. 230(d)
o VAILLANCOURT v. R. Canada

Conviction of murder requires there to be a subjective foresight of death The stigma attached to murder and the punishment are of a nature that nothing less than subjective foreseeability is required.
o R. v. MARTINEAU Canada

Causation has a factual legal component. A jury could infer that he could have anticipated the gun fight and decided to participate. s.229(c) was unconstitutional because of the term ought to have known, however court removed that phrase. He had an unlawful object (to kill someone) and the Crown was able to satisfy a jury that he knew death was likely to occur subjective foresight of death

o R. v. J.S.R. Ontario Creeda Case Shand Case to prove s. 229(c) Jan 2011 o 1. unlawful object other than the death of the victim or cause of bodily harm to the victim (theft) o 2. It has to be an unlawful object which is an indictable offence which requires subjective fault mens rea intend to commit robbery, intend for explosion, kill someone else, etc dangerous act is SEPARATE from death of individual o 3. Subjective Knowledge that death is likely to occur waiving gun around o (if drunk, the probably just manslaughter) o Just b/c victim died, DOES NOT mean appellant knew it was likely! TWO-STEP PROCESS: 1. Conviction of Murder 2. First or Second Degree? o Murder = life in prison o first degree parole in 25 years o second degree parole in 10 years usually

First Degree Murder s.231 - pg.25 First degree murder must have, beyond a reasonable doubt, that the murder was planned and deliberate Deliberate: means it involves deliberation and it was not impulsive. Planning: arranged beforehand and requires forethought pursuant to some scheme or design. s. 231(2) planned and delivered, contract kill, police officer, killing someone during particular offences, etc o in this case didnt plan to kill, it was impulsive
o R. v. SMITH Saskatchewan

Requisite intent to cause grave bodily injuries that are known to likely cause the death of the victim can be 1st degree murder You can be convicted on first degree murder on basis of bodily harm likely to cause death as long as the bodily harm was contemplated beforehand. (s. 229(a)(2))
o R. v. NYGAARD AND SCHIMMENS Canada

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19 Accused must know victim was police acting in their duties to offend s.231(4)(a) Where a statutory provision is open to two interpretations, the provision should be interpreted in such a manner as will not contravene the Charter
R. v. COLLINS Ontario Preveost Ont CA 1988 police officer on lunch Zuber J held he was still on duty, just b/c he was eating does not mean he was removed from s. 231(4) s. 231(5)- Death Caused by committing certain offences o this section only comes into play when it has been proven BARD o o

It can be 1st degree murder if while committing an enumerated predicate offence you end up killing the victim. s. 231(5)

o R. v. ARKELL Canada **Used to start at subject fault to secure a conviction for CC offences. However, WILSON would suggest that you now start at Penal Negligence (marked departure)

Subjective Mens Rea Crimes Motive - pg.26 Motive is not part of the fault, the reason is not the same thing as intention the reason you committed a particular offence is not the same thing as your intention to engage in criminal activity. Motive is important for proving defense, but it is not anterior intention (rationale)
o LEWIS v. R. Canada

Saying it is a joke may negate the proof of intention for the offence notion of defense of a prank. the fact that he thought it was joke was irrelevant he should have had intention he intended the consequence that was prohibited
o R. v. MATHE British Columbia No intent to actually acquire prostitution services the reason he did it has an impact on whether or not he had intent o Pake Case

Subjective Mens Rea Crimes Desire/Purpose - pg.27 The situation must go beyond where you necessarily desired something to occur but must have subjective foresight of the consequences. Purpose does not equate to desire, a person who consciously performs an act knowing the consequences that will flow from it intends these consequences or causes them on purpose, regardless of whether he or she desired them. tradition definition of intention: accused foresaw the consequences and desired those consequences to occur o on purpose is synonymous with intention regardless of desire o they cause it on purpose, they just dont desire it to happen
o R. v. HIBBERT Canada

Court split over hybrid fault or subjective fault for meaning of dangerous purpose What does Possession with a purpose dangerous to the public mean? o 1. in order to have the necessary fault, you must intend to have possession and that your possession must, in fact, be dangerous to public peace o 2. you have to intend to have possession, but rather than it being factual to present danger, you must be intending to use the weapon for the particular purpose of creating a danger for the public

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20 o 3. must intend to have possession, wouldnt be enough that it would factually bring a danger, or that you intended to bring danger, but rather that you intended the possession to be dangerous to the public peace and there was substantial certainty that danger was created
R. v. KERR Canada

Willfully could mean intentionally, but does not always mean recklessly Intention is where you want it to happen or foresee with substantial certainty that it will occur. o not enough that the consequences are highly probable, it has to be substantially certain Recklessness is a state of mind of foreseeing that a conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about. What about a situation where you have to prove knowledge? o You can prove knowledge by actual knowledge or by willful blindness o Can you show knowledge by showing that the person was reckless? Stuart Yes Wilson NO Can you prove subjective fault through intention and recklessness - probably
o R. v. BUZZANGA and DUROCHER Ontario

Subjective Mens Rea Crimes Recklessness or Willful Blindness - pg.28 Recklessness subjective foresight of consequences in a situation where the accused knew the consequences were likely to occur. Willful Blindness did the accused subjectively have a suspicion, but deliberately close their mind to the possibility of making further inquires. The fact that the accused may have hoped the consequences would not take place provides no defence Recklessness: can the Crown prove that he foresaw the consequences and took an assumption of risk? Can prove objective fault through recklessness (when the accused had subjective foresight) and then took an unreasonable assumption of risk FUSION OF OBJECTIVE AND SUBJECTIVE Recklessness can be found instead of intention if the accused could foresee the consequences, be cognizant that those consequences were likely to occur and took an unreasonable risk anyway.
o R. v. THEROUX Canada Offence of Assault: o Cases involve s. 267 and s. 268 of CC no mention of knowledge or intention o R v E(A) 2000 Ont CA mental element of assault causing bodily harm is satisfied by proof that the accused was reckless as to whether or not his acts caused harm a CC offence has to be prove by subjective fault, but can be proven by either proving intent or that they were reckless o Williams mental element for aggravated assault is the mental element of assault coupled with the objective foresight of harm can prove subjective fault through proof of intention or recklessness ** IF Legislation has intent: need to prove knowledge o if it has knowledge: prove that actual knowledge of wilfully blind o if silent but requires subjective fault: can prove either by intention or recklessness

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21
o Proving Knowledge: cant convict someone on the basis the person ought to have known or should have known have to prove that they actually knew or that they had deliberately refrained from finding out the truth

Wilful blindness arises where a person who has become aware of the need for some inquiry and declines to make the inquiry because he does not wish to know the truth and prefers to remain ignorant. If the court proves you were wilfully blind they treat it as actual knowledge
o SANSREGRET v. R. Canada

Wilful blindness was present because accused deliberately refrained from making further inquiries even though his suspicions had been aroused The accused is not going to succeed of a reasonable person would have known that the situation was suspicious.
o R. v. BLONDIN British Columbia

For wilful blindness, accused must deliberately omit to make further enquiries The fact that a person ought to have known that certain facts existed does not constitute knowledge for the purpose of criminal liability, and does not by itself form a basis for the application of the doctrine of wilful blindness. In this case, the accused was suspicious of the authenticity of the cheque, but deliberately avoided knowing the truth wilful blindness.
o R. v. CURRIE Ontario

He was an accessory after the fact s. 23(1) Where an accused chooses to make no inquiries, preferring to remain deliberately ignorant is equal to actual knowledge both are subjective, sufficiently blameworthy to justify the imposition of criminal liability Speculation as to what the accused would have learned had he chosen to make the necessary inquiries is irrelevant. STILL DOESNT MATTER THOUGH. STILL WILFULLY BLIND
o R. v. DUONG Ontario Legassy Case o argue no wilful blindness b/c he had made inquiry to confirm of his suspicion that the cars were stolen o Finding that the accused took reasonable steps would be inconsistent with the conclusion that they were wilfully blind o Crown would have to prove BARD that despite the inquiry made in light of suspicions, they remained suspicious and BARD that they refrained from making further inquiries despite the suspicion o The test is Subjective but we use the reasonable person (objective test) to help decide whether the person deliberately remained ignorant or not. Briscoe Case 2010 o Wilful Blindness is distinct from recklessness, it involves no departure from the subjective inquiry of the accuseds state of mind. It substitutes actual knowledge when knowledge is necessary for the charge. When the accuseds suspicion is aroused an d deliberately chooses not to make inquiries Stuart says this equals to deliberate ignorance which equates to intention.

Objective Fault Crimes Criminal Negligence s.219 - pg.30

If the Offence is Criminal Negligence 1. Has been defined under s. 219 anyone is criminally negligent who in act or omission shows a 2. 3.

wanton and reckless disregard for the lives and safety of others Establish the act/omission of the accused Establish causation (Smithers/Nette test from causation section) 21

22 Establish that the act/omission was grossly negligent. A marked and substantial departure from the standard of a reasonable person, BARD burden on Crown. 5. Note that McLachlin says in Creighton that you can infer the fault element from the actus reus. Because the actus reus is also determined on whether or not the accused acted reasonably. Recent decision, such as Beatty, have made a clear distinction between the fault and act requirements. This seems to be the more logical way to approach fault. Note, however, that Beatty was not a negligence offence and therefore since the SCC has not made a clear statement regarding the distinction between act and fault, we arent sure if this proposition applies to offences outside of dangerous driving. For criminal negligence causing death the actus reus is negligent conduct. This is established in accordance with the definition of criminal negligence in s. 219 of the code - conduct that shows a wanton and reckless disregard for the lives and safety of others. You establish that whatever the person did meets that definition to establish the guilty act and then you ask whether that negligent conduct is a marked and substantial departure from what a reasonable person in the circumstances would do to establish the mens rea.
4.

Advertence is the same as recklessness, failing to direct your mind and take an unreasonable risk. Inadvertence is the same as negligence, the failure to direct your mind to the consequences. fault element for criminal negligence is marked and substantial departure
o OGRADY v. SPARLING Canada

Any mistaken belief which could afford a defence for criminal negligence would have to be reasonable Proof of conduct which reveals a marked and substantial departure from the standard which could be expected of a reasonably prudent person in the circumstances will justify a conviction of criminal negligence. An objective test must be used in determining criminal negligence. It is the conduct of the accused, not his intention or mental state, which is examined. changes criminal negligence charges form subjective to objective!
o R. v. TUTTON and TUTTON Canada

Mental element in criminal negligence is the minimal intent of awareness of the prohibited risk or wilful blindness to the risk Objective fault can be found in the conduct of the accused. Newer cases however have said you cannot infer fault from conduct!!!
o WAITE v. R. Canada

Impugned conduct is a marked departure from the standard is central to both the objective and subjective approaches The greater the risk created, the easier it is to conclude that a reasonably prudent person would have foreseen the consequences.
o R. v. ANDERSON Canada

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23 Marked Departure Test - pg.31 Delorey Case NSCA o Guy charged with dangerous driving causing death and dangerous driving causing bodily harm o Court held: in order to constitute a sufficient level of fault there needs to be a marked departure from what a reasonable person would do o needs to be more than just simple negligence for CC offences - simple negligence is fine for Statutory offences though Objective mens rea should be considered in the context of all the events surrounding the incident; insert the reasonable person into the particular fact scenario. The operation of a motor vehicle is automatic and with little conscious thought and therefore inappropriate to apply a subjective test in determining guilt. for PENAL negligence the Crown must prove BARD that there was a marked departure
o R. v. HUNDAL Canada Modified Objective Test: o Not a pure reasonable person, but taking into account the actual activities/event that took place o look at the circumstances (i..e road conditions)

Predicate offence with negligence must also be read as requiring a marked departure from the norm Lamer: Human frailties or any enhanced foresight which may affect the capacity of an accused to recognize the risks of unlawful conduct may be considered The reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of his membership in a group with special experience or knowledge McLachlin: Everyone should be judged on the same objective standard as the other approach waters down the standard to create a subjective approach
o o R. v. CREIGHTON Canada overturns Hundal with its modified objective test do NOT take into account subjective factors The only exception is IF there is a incapacity to appreciate the quality of conduct usually this means insanity, but can also refer to illiteracy Wilson finds baffling: same person, regardless of knowledge/expertise treated the same Lamer J: says we SHOULD incorporate subjective feature beyond the control of individual person (age, gender, etc)

If the conduct shows a marked departure from that of a reasonable person, you can assume fault from the act It is only when there is a marked departure that the conduct demonstrates sufficient blameworthiness to support a finding of penal liability. If an accused has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct. Personal characteristics, unlike the context of the events surrounding the incident, should not be accounted for as this creates a fluctuating standard.
o o R. v. BEATTY Canada Look at more than just the conduct of the individual: we ask, what would a reasonable person in similar circumstances would have been aware of the risk and danger? In the CC, we know there are two levels of objective fault fault element for criminal negligence marked and substantial departure fault element for other offences with negligence marked departure

R v JF o

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24 Crimes Based on Predicate Offences - pg.33 (unlawful act, causing death; unlawful acts causing bodily harm; aggravated assault; )
If the Offence is unlawful act culpable homicide (Predicate Offence) 1. Determine the underlying offence (cannot be an absolute liability offence- DeSousa) 2. Establish the Actus Reus of the underlying offence 3. If the fault for the underlying offence is strict liability you must bump it up to penal negligence (Creighton) marked departure 4. Establish the fault of the underlying offence based on penal negligence (unless the underlying offence has an original higher fault form, then leave it) 5. Establish BARD objective forseeability of the risk of bodily harm which was neither trivial nor transitory (Creighton). 6. Establish that the act was objectively dangerous ( De Sousa); ex. j-walk is not predicate offence b/c arguably not objectively dangerous

Underlying offence to count as the unlawful act must have an objective foresight of bodily harm For a predicate offence crime, the harm caused must have sufficient causal connection to the underlying offence committed. Only offences prohibited by federal or provincial legislation can be used as a predicate offence and they cannot be an absolute liability offence. To be convicted under a predicate offence, the prosecution must: (1) satisfy the mental element requirement of the underlying offence, and (2) prove that the non-trivial bodily harm caused by the underlying unlawful act was objectively foreseeable.
R. v. DeSOUSA Canada s. 269 of CC unlawful act causing bodily harm **On Exam: if someone charged with unlawful act, culpable homicide and unlawful act strict liability o Burden of proof on accused to show on a balance of probabilities that acting reasonable o Crown has to prove BARD the offence of manslaughter o Westeray Mining Case someone violated provincial legislation Crown must prove actus reus BARD they accused must prove on balance of probabilities reasonable person (simple neg) Then, for the culpable homicide: Crown will have prove BARD that there was a marked departure with regard to the prohibited activity set out in the provincial legislation o

Unlawful act manslaughter requires objective foreseeability of the risk of bodily harm in the context of the dangerous act For unlawful act manslaughter Crown has to show: (1) Fault for the underlying offence (2) Objective foreseeability of the risk of bodily harm (not death) which is neither transient nor transitory in the context of the dangerous act. Foreseeability of the risk of death is not required. If the Crown uses an objective predicate offence, the fault element must be a marked departure from that of a normal person with the onus on the Crown, regardless if it is usually a simple negligence offence.
R. v. CREIGHTON Canada s. 225(a) unlawful act causing death unlawful act trafficking **McLachlin suggests that once you prove actus reus you can convict without any real issue of mens rea o Wilson disagrees the fault element, even for penal negligence, is still significant! o

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25 There does not need to be perfect symmetry between fault for an act and intention to its consequences You can be held responsible for consequences which you did not intend or even reasonably objectively foresee. There need only be a sufficiently blameworthy element in the actus reus to which the culpable mental state attaches.
R. v. KRUSHEL Ontario s. 264 Criminal Harassment **Wilson: If the predicate offence involves carelessness, negligence (strict liability or marked departure) then you could use a provincial offence o a predicate offence involving negligence must be read as requiring a marked departure o for any offence, if it is being used as a predicate offence, there must be proof BARD of marked departure o minimal fault element for predicate offence of unlawful act, culpable homicide is AT LEAST marked departure o

WAS THERE A SEXUAL ASSAULT?

s. 265(4), s. 273(1) and s. 273(2)
s. 273.1.2 instances with no consent: wont be consent when victim is incapable or giving consent OR when the accused induces victim by abusing trust, power or authority s. 273.1.2(e)- No means no. Prior activity or in a situation where the victim says stop

s. 273(2) argue mistake of fact I thought she was communicating consent (Crown must prove BARD that accused didnt take reasonable steps in the circumstances to get consent) A. The Actus Reus is established by the proof of three elements: (1) Touching: determined objectively, crown must prove actions were voluntary (2) The sexual nature of the contact: determined objectively accused doesnt have to intend the touching to be sexual (Litchfield/ Chase) (3) The absence of consent: determined subjectively and determined by reference to the complainants subjective internal state of mind towards the touching at the time it occurred (Jensen). Ewanchuk has established that the complainant must communicate consent. s. 273.1 are factors of things that might vitiate consent B. Mens Rea for sexual assault is general intent/subjective fault (Darrach) (1) Crown proves that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. General intent means Crown only needs to show accused intended what they did, not that they intended a sexual nature (Daviault). (2) The mens rea has two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched C. Defences To Sexual Assault (1) Honest but Mistaken Belief : You must ask did the accused take reasonable steps to determine if the complainant had actually communicated consent. (subjective) s.273.2(b) Note that this applies to age for statutory rape as well. s.273.2(a) Honest belief cannot arise out of (i) self-induced intoxication or (ii) reckless or wilful blindness.

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26 (2) Air of Reality (Cornejo): If there is claim of mistaken belief which was determined subjectively you must ask if there is an air of reality to the defence. To establish AOR you must ask if the evidence shows objectively that the complainant communicated consent through words or actions. (3) Note that you can use insanity as a defence, or non self induced automatism (4) Note that there is no defence of implied consent. You cannot find Honest but Mistaken Belief on basis of silence, ambiguous conduct (Cornejo), or passisivity (Ewanchuck) (5) Under s.150.1 it is no defence that the person consented to the activity if they are under 16 years of age. Rape Shield Provision: s. 276 of the CC limits evidence of the complainants past sexual activity - s. 278(2) OConnor Applications need to prove the evidence is significant to be admitted - s. 486 can exclude members of the public from the Court Room - s. 486(3)- ban publication of identity of plaintiff - Vital Impact Statements: allow ppl to vent but have no role in sentencing or decision - Cases are between State and Defendant the person who was raped is no longer involved once complaint is made Rape Shield - pg.36 Past sexual history is not admissible unless the interests of justice will be defeated The evidence of past sexual history can be admissible but it has to be absolutely heard or the interests of justice will be defeated.
o R. v. DARRACH Canada

Rape and Sexual Assault - pg.34 There must be an air of reality in order to further a mistake of fact defence The test to be applied is that there must be in the record some evidence which would convey a sense of reality in the submission. An accused person who seeks to rely upon a defense of mistake of fact must, in order to succeed, establish that his mistake was reasonable as well as honest. Reasonableness is important but it matters whether or not the accused is telling the truth Crown must prove BARD that reasonable steps were not taken
o PAPPAJOHN v. R. Canada

Accused cannot be wilfully blind or reckless to the violent way in which consent was acquired Consent can be withdrawn at any time
o SANSREGRET v. R. Canada

Crimes of Sexual Assault - pg.35 An assault is sexual if, objectively, a reasonable observer would deem the sexual integrity of the victim to have been violated Would a reasonable person viewing this situation conclude that sexual assault occurred? The general intent or purpose of the person committing the act may also be a factor in considering whether the conduct is sexual. Some factors are (1) the part of the body (2) nature of the touching (3) situation in which it occurred (4) words and gestures that accompanied the touching.
o R. v. CHASE Canada

There does not need to be sexual gratification of the accused in order for there to be sexual assault
o R. v. K.B.V. Canada

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R v MFW: o 12 yr old spanked by step-father in mall o CJC Fraser: if there is an interference, taking into account all the circumstances of age, etc, with the sexual integrity of the individual it will be sexual assault (no need for sexual gratification) Richetts Case: o s. 265.1.b you can commit an assault by attempting or threatening to apply force to an individual even if an interference stopped it before the assault happened

Mistaken Belief in Consent - pg.36 The evidence must show that accused subjectively believed the victim communicated consent to engage in the sexual activity For sexual assault the Actus Reus is: (i) touching (objective), (ii) sexual nature of the contact (objective), and (iii) the absence of consent (subjective of the victim as the victim must not believe she is consenting to the act). Do not go to the mens rea discussion unless there is an absence of victim consent. The Mens Rea is: subjective intention to touch and a knowing of, or being reckless of or willfully blind to, a lack of consent on the part of the victim. The evidence must show that accused believed the victim communicated consent to engage in the sexual activity. There is no defence of implied consent as a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law and provides no defence.
o R. v. EWANCHUCK Canada

Cannot use mistaken but honest belief in consent defence unless the accused takes reasonable steps to obtain consent. Need an air of reality.

o R. v. CORNEJO Canada Bad Defences: o 1. The reason you thought there was consent b/c of self-induced intoxication b/c you were drinking no defence Crown will try to prove you were drunk o 2. Where the accused belief of consent arouse from the accused self-induced intoxication (s. 231.1 extreme intoxication not a defence anymore) recklessness or wilful blindness as to whether or not there was consent o 3. Not a defence to say I thought there was consent The accused did NOT take reasonable steps in the circumstances to ascertain the complainant was consenting o HOWEVER, if one of these three situations, and you have an HONEST belief that there was consent then this is a good offence o The Crown must prove BARD that the accused did NOT take reasonable steps in the circumstances FOR DEFENCES ASK: 1. What are the elements of the particular defence? (what needs to be proven) 2. How does the defence operate? Does it seek to negate actus reus? Does it seek to negate mens rea?

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Mistake of Fact - pg.37 (attacks the mens rea) Must be a reasonably held belief in an innocent state of affairs o Crown has to prove BARD the opposite Mistake of Fact is a negation of mens rea Where it is a subjective offense, the mistake is evaluated subjectively and need merely be honestly held, with reasonableness only relevant to an assessment of credibility. honest belief in an innocent state of affairs = subjective evaluation of mistake. Honest belief, actually held. Where it is an objective offense, the mistake must be both honest and reasonable. What a reasonable person in their place in those circumstances would have thought. o Reasonable = objective Where it is a strict liability offence, the mistake has to be honest and reasonable, with onus on the accused to show that due diligence was taken and there was still a mistaken fact. With the potential for life imprisonment, an offence cannot be absolute liability as to not allow for a mistake of fact When one is dealing with the potential for life imprisonment it is not good enough to rely on intuition and speculation about the potential deterrent effect of an absolute liability offence.
o R. v. HESS; R. v. NGUYEN Canada s. 150(1) in general it is not a defence that the person under 16 years of age gave consent if you knew they were under 16 At 16 you cannot give consent to sexual activity s. 150(1-4): a mistaken belief that the person was older than 16 can be a defence if the accused can show took all reasonable steps to ascertain the age of complainant (Crown would have to prove BARD that they didnt take said steps)

An accused must intend all the essential elements (assaulting a police officer) of a subjective offence (in this case have to prove guy intended to hit a police officer BARD) The Essence of the Offence Test: The new approach is that the accused only must make a mistake as to the essence of the particular offence charged you have to show that the person intended the specific actus reus of the offence
o R. v. McLEOD British Columbia

The court used the intent to commit rape with the actus reus of the charged offence; they transferred the intent for one offence to the act of a related offence. The accused cannot use the defence of mistake of fact because his mind was not totally innocent; if not that charge then it would have been rape.
o R. v. LADUE Yukon

Trafficking a drug thinking it was another still results in a conviction for the drug you actually had due to transferred intention. The court held that the mens rea should be considered in its widest sense and sufficient to find that he knew the substance was a narcotic. Wilson likes: Dissent by Laskin J: cannot be convicted is mens rea relates to one crime and actus relates to another b/c that would disregard the requirement of an appropriate mens rea this is more persuasive
o R. v. KUNDEUS Canada Fontaine Case o tried to take the intent to kill himself and transfer to intent to kill the passenger in his car o BUT, suicide is not criminal offence, so you cannot transfer intention ***transfer of intention does not get used often the courts are very uncomfortable with it. When mandated by legislation (unlawful act causing death) it is allowed***

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Mistaken of Law - pg.38 TRY TO CONVERT MISTAKE OF LAW TO OF FACT Courts accept this better Ignorance of the law is no defence. It does not matter if your mind is completely innocent or not.
o R. v. ESOP Britain

Mistake of law, including court rulings and legal advice, provides no defence; however, it can be a mitigating factor in the sentencing of the individual. (absolute discharge in lieu of conviction)
o R. v. CAMPBELL AND MLYNARCHUK Alberta PEA Case o Accused argued he should be given the defence of officially induced error b/c of an official authority (duty counsel) told him to do it o General recognition that if you own lawyer told you to do it, it is not a defence

Distinguishing Mistake of Law and Fact - pg.39 Mistake of Fact: make a mistake that facts exist when they dont or saying that facts do not exist when they do making a mistake on something that can be perceived by your senses (i.e. gun loaded or not) Mistake of Law: the legal relevance, consequence or significance of those facts. Law is an idea in the minds of men. (not knowing pointing a gun at someone is a criminal offence) An ignorance of the law should be limited to the legislation for which you have made a mistake The existence of a suspension of a driving licence is a question of fact. However, the accuseds mistake as to the legal consequences of the original conviction and therefore a mistake of law
o R. v. PRUE; R. v. BARIL Canada

Colour of Right for Property Offences - pg.39

Colour of right must be specifically mentioned in the statutory offence Treated as a mistake of fact defence

Colour of right will arise where the accused has an honest belief in a lawful interest of property that is the subject matter of an alleged theft (i.e. you had an honest belief it was actually yours) BUT, simply believing your actions are justified is NOT an excuse
o R. v. DOROSH Saskatchewan

Colour of right needs an honest belief based on a mistake of fact or law, not morality Civil disobedience is not a defence but may mitigate sentence. HOWEVER, if you had an honest belief that you had legal justification to do it acquittal
o R. v. DRAINVILLE Ontario Wilson says: this is one of the most offensive claims hes aware of. It is saying you honestly believed that you were asserting a claim to Abo title, this is not a legal belief Arent Abo Claims equal to legal property interests? Yes?

Officially Induced Error of Law - pg.40 Officially induced error of law exists as an exception to the rule that ignorance of the law is not an excuse The accused must prove 6 elements for officially induced error: (1) that an error of law or of mixed law and fact was made (2) the person who committed the act considered the legal consequences of his or her actions (3) advice obtained came from an appropriate official 29

30 (4) advice was reasonable (5) advice was erroneous (6) person relied on the advice in committing the act. Various factors will be taken into consideration in the course of the assessment including: o the efforts made by the accused to obtain information, o the clarity or obscurity of the law, o the position and role of the official who gave the information. It is necessary to establish the objective reasonableness of the advice and the reliance on the advice.
o LEVIS (CITY) v. TETREAULT; LEVIS (CITY) v. 2629-4470 QUEBEC INC. Canada

Incapacity - pg.41 Young Offenders Act governs the trials of children over the age of 12 but under the age of 18 Under the age of 12 cannot be held criminally responsible (can deal with them other ways) At age 18 can be held criminally responsible as an adult Insanity - pg.41 BIFURCATED APPROACH: - 1. before you talk about insanity, Crown must established the actus reus at least, and some courts will say they should prove the fault element as well - 2. Then you apply the defence of insanity o it acts to negate the mens rea - THIS IS HOW WILSON LIKES IT s.16 of the Criminal Code Defence of Mental Disorder disease of the mind: o (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. o (2) Every person is presumed not to suffer from a mental disorder until the contrary is proved on the balance of probabilities o (3) The burden of proof is on the party that raises the issue. Defence that negatives the fault element, but can also act in cases where the act and fault have not been made out. o Usually results after the Courts have decided whether or not guilty of the offence by proving both actus reus and mens rea then the defence of insanity is used If successful, it results in a verdict of not criminally responsible due to mental disorder and then the accused is subject to a mental health centre possibly indefinitely (committed to the pleasure of the Lieutenant Governor). If your found unfit to stand trial, it is possible later you can be found fit and then come back to stand trial. If you are found insane, you will not stand trail again. Fit to Stand Trial mental state at the time of trial. o Before a Fitness Hearing there has to be a demonstration of the actus reus of the offence by the Crown o Fitness Hearing decides whether or not someone is fit to stand trial Insanity defence negating fault b/c of insane mental state at the time of the offence o can have someone who is fit to stand trial but was insane at time of offence or vice versa 30

31 Has to be a determination that there is a disease of the mind and then either one of: o Person rendered incapable of appreciating the nature and quality of the act, or o Person rendered incapable of knowing that the act was wrong. The Crown can bring insanity if: o If accused raises automatism, Crown can raise insanity to say that it is not automatism o After the judge has found a finding of guilt, the Crown can then say it was actually insanity o If accused starts to entertain evidence of mental insanity, the Crown can add to the evidence to bring forth a mental disorder defence o Crown is servant of the court and should bring evidence of insanity in front of the court if it has any. Use it sparingly and when confident that your client is insane or was at time of offence and only for veryyy serious offences: o Otherwise could be sentenced to lieutenant governor for the rest of their life o Crown COULD use it to discredit your clients sanity in front of jurors and make them think this weirdo is definitely capable of the crime MNaghten test: The test is that a criminal defendant is considered to have been insane at the time of an act if he or she did not know right from wrong or did not understand the nature and quality of the act because of a disease of the mind. o Broad definition that had nothing to do with science no room for partial psychosis
o o U.S. v. FREEMAN U.S.A. old test

NOW YOU NEED: o 1. Need a mental disorder disease of the mind anything that impairs human mind in its function (not alcohol induced or concussion induced) THEN YOU GO TO STEP 2: o 2. Need a disease to cause a) Incapable of appreciating the nature and quality of the nature of an act b) Renders you incapable of knowing what you did was wrong The Current state of the law: the word wrong means either legally or morally wrong
Just because someone has a disease of the mind, does not mean they meet the legal requirement for insanity Disease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding self induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being. Just because there is a disease of the mind at the time of the offence, it does not mean the person meets the legal test of an incapability of appreciating the nature and quality of the act.
o COOPER v. R. Canada

Lack of feelings or remorse for an act caused by a disease of the mind is not a valid defence under section 16. Only emotional disturbances caused by a disease of the mind that are so severe as to deprive the accused of the use of his understanding at the time of the act can be considered under s.16.
o KJELDSEN v. R. Ontario

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32 The court held that if the accused appreciated the physical consequences of his acts, he is guilty, regardless if he appreciated the penalty or not (he thought he was protected by external force)
o R. v. ABBEY Canada

Know in the insanity defence can mean the accused did not know the act was legally wrong or morally wrong The Current state of the law: the word wrong means either legally or morally wrong
o R. v. CHAULK Canada

Insanity inquiry should focus not on general capacity to know right from wrong but on the ability to know that a particular act was wrong in the circumstances.
o R. v. OOMMEN Canada

Accused not criminally responsible if they thought the killing was against the law but was the right thing to do (he thought he was God)
o o R. v. LANDRY Canada Dennis Case (guy convinced co-workers out to get him): He knew what he was doing, he knew it was against the law, but lacked the capacity to know the difference between what was right and what was wrong in the moral sense Leigh Case: (Greyhound) found fit to stand trial Was schizophrenic had a delusion and Court found he did not appreciate the act he committed was morally wrong at the time of the killing

Insanity not available if the accused has the ability to access their acts rationally and know that society would view them as morally wrong o Had a disease of the mind, but capable of knowing the nature and quality of the act and knew it was contrary to law and they were capable of making appropriate moral decisions (satisfies both branches of the two-branch test so no defence of insanity)
o R. v. W.(J.M.) British Columbia

The Crown can only raise insanity after it has first proved the actus reus of the offence The Crown could adduce evidence of insanity during the trial if the accused put his or her mental state in issue. Bifurcated Approach: used as an effort to combat the Crowns attempt to bring up insanity defence often could still bring the question of your clients state of mind into issue in front of jurors Wilson thinks this is reprehensible (Guy Paul Morin Case)
o R. v. SWAIN Canada R. v. MAILLOUX Canada

Permanent damage as a result of substance abuse can be considered a disease of the mind
o

Automatism - pg.44 There is a presumption of voluntariness b/c person at the time of the alleged offence was unconscious The party who raises the defence must prove automatism on a balance of probabilities. Removes the requirement of the voluntary act, they are in an unconscious state while committing the act If the automatistic state was caused by a disease of the mind then it is insane automatism and your defence is still section 16. The presumption is that all automatistic behaviours are cause by a disease of the mind (Insane Automatism) If the automatism is not caused by a disease of the mind then it is non-insane automatism and if successful, it results in an acquittal (Non-Insane Automatism) To be non-insane automatism, accused must prove on a BOP all three: The condition is non-permanent 32

33 The cause is a primarily external. (Internal cause theory a condition stemming from the internal or emotional makeup up the accused, rather than some external factor such as a concussion, should lead to insanity.) There is no likelihood of recurrence. (Continuing danger theory any condition that could significantly likely recur and is likely to present a recurring danger to the public should be treated as insanity) A psychological blow that is so extraordinary that it may have caused the ordinary person to enter into a dissociative state is an external factor and not a disease of the mind (concussions, carbon monoxide poisoning, strokes, pneumonia, hypo/hyperglycaemia cases, infections if enter into state of deliria, involuntary intoxication, etc if not disease of the mind and expert evidence gave virtual certainty that it would not happen again b/c now you were aware of your condition then not guilty) A dissociative state is caused by some extraordinary external event which may reasonably affect an average normal person, without reference to their subjective makeup, then the defence of sane automatism is available. Taylor Case Ont Sup Ct 2008 o Charged with dangerous driving causing death o Was unconscious and therefore not criminally responsible was found to be not-guilty automatism, not disease of the mind If the malfunctions source was primarily caused by the persons internal state, it is considered a disease of the mind. The normal everyday disappointments and stresses of life dont count as external factors that explain the malfunctioning of the mind and take it out of the disease of the mind category. (some external causes would be hearing your kids dead, or killing someones kid, etc)
o R. v. RABEY Canada

It is appropriate in many cases to apply both the internal/external and continuing danger tests to the accuseds condition for a finding of disease of the mind (sleepwalking). The continuing danger theory holds that any condition likely to present a recurring danger to the public should be treated as insanity. The internal cause theory suggests that a condition stemming from the psychological or emotional makeup of the accused should lead to a finding of insanity (favoured by Canada).
o R. v. PARKS Canada sleep-walking not found to be a disease of the mind, now it probably would be found to be though.

If you claim automatism then you are presumed to suffer from a mental disorder until proven sane; courts err on the side of caution and lean towards it being a disease of the mind. The legal burden in cases involving claims of automatism must be on the defence (accused) to prove involuntariness on a balance of probabilities.
o R. v. STONE Canada

There is an evidentiary burden to show automatism before it can be charged to the jury. Then you have a legal burden to establish it on a balance of probabilities.
o o R. v. FONTAINE Canada R. v. GRANT British Columbia (he knew he wasnt supposed to drive, but did)

Accused can be found to be at fault for their own unconscious state. If there is an unconscious state, the starting point is the presumption that it is a disease of the mind, especially with sleepwalking

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34 Court found that sexsomnia was a disease of the mind and therefore the accused should be found not criminally responsible due to mental disorder If you have an unconscious state caused by intoxicants, there courts are going to lean towards labelling it intoxication.
o R. v. LUEDECKE Ontario

Combination of drugs and alcohol can be an external cause of non-insane automatism if its effects are not reasonably foreseeable to the accused
o R. v. PRESCOTT Ontario

Intoxication - pg.46 (1) Is the offence and General Intent or Specific Intent offence? the distinction is: General intent is such that the intent is solely to do with the act and there is no ulterior motive necessary. Ex. Assault, Manslaughter Specific intent is such that the intent to do more than just accomplish the act but also involves an ulterior motive. Ex. Robbery, Murder, Care and control of vehicle while impaired (2a) If it is a specific intent offence, voluntary advanced intoxication is available as a defence. If accused is charged with murder and an intoxication defence is successful, the charge will become manslaughter which is general intent. Robbery will become theft. If it is extreme intoxication, it will probably be an acquittal due to the negation of voluntariness due to automatism. (2b) If it is a general intent offence, then it must be determined if it offence that interferes with the bodily integrity of another person (assault or manslaughter). If it interferes with the bodily integrity of another person, s.33.1 of the Criminal Code will not allow a defence of even extreme automatism. However, s.33.1 can probably be challenged because R. v. Daviault, specifically said that anything like s. 33.1 is inconsistent with s.7 of the Charter. If it does not interfere with bodily integrity, then extreme intoxication akin to automatism is a defence as it negates voluntariness. Merely advanced intoxication provides no defence. (3) In order for there to be self induced intoxication, there has to be ingestion, accused must know or ought to have known about the intoxicant, and the resulting risk should have been within the defendants contemplation. With Specific Intent Offences (such as murder, robbery, break and enter, aiding and abetting and attempted crimes, etc): the accused just needs to raise an evidentiary basis (evidentiary burden), then the Crown has to prove the requisite fault element of the offence If the accuseds defence succeeds, the accused will be convicted of a lesser included offence but if you offend again, and use intoxication defence again Courts might not allow it (similar to when you know you have epilepsy, arent supposed to drive, and still do) With General Intent Offences or not specific intent offences: your defence is not available and the existence of your intoxicated state will establish the necessary fault and you will be found guilty With general intent offences, such as sexual assault, cannot use intoxication as a defence and b/c of this, essentially proves fault of the offence Be wary of the Crown bringing up defence of intoxication for such offences to essentially prove fault In offences of general intent, mens rea can be established by merely showing voluntary intoxication

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35 We should recognize extreme intoxication as a defence to general intent offences because it renders a person akin to automatism.
o R. v. BERNARD Canada sexual assault - cannot use defence of intoxication

There is a defence of intoxication for general intent offences where the accused is extremely drunk such that it is akin to automatism. Even if offence is sexual assault, still need a minimal mental element. Section 7: if someone not acting voluntary, then cannot be crime & cannot substitute the voluntary act of being intoxicated to the voluntary act of sexual assault.
o R. v. DAVIAULT Canada

Removes the defence of unconscious act due to voluntary extreme intoxication for offences that have an element of assault or any other interference or threat of interference with the bodily integrity of another person. (i.e., Assault, Murder).
o Criminal Code Section 33.1 Wilson suggests: create an offence of being drunk and dangerous with penalties

There are three levels of intoxication that can be used as a defence First, there is mild drunkenness, which induces relaxation of both inhibitions and socially acceptable behaviour. For sexual assault Yes I was drinking, but I honestly thought the complainant conveyed consent and this was not b/c I was drinking. Crown will argue: you did not have an honest belief you thought this b/c you were intoxicated. Your defence of mistake of fact becomes a defence of mistake of intoxication, not allowed for sexual assault and therefore you would be guilty! Second, there is advanced intoxication, i.e. intoxication to the point where the accused lacks the specific intent, to the extent of an impairment of the accuseds foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. Accused does not have to prove advanced intoxication just raise a reasonable doubt as to whether or not you had the specific intention (if there is reasonable doubt, you will be found not-guilty) Third, there is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility (doesnt matter if its absolute, strict liability or even sexual assault according to SCC and common law), but such a defence would be extremely rare and, by operation of s. 33.1 of the Criminal Code, limited to non-violent, non-assaultive types of offences. If you can raise the evidentiary burden, then the Crown must prove BARD that you did have the specific intent to commit the offence or you will be found not guilty of that offence and convicted of a general lesser offence (murder manslaughter)
o R. v. DALEY Canada

Dangerous Driving: o At common law, no voluntary act, cannot be found guilty o but s. 33.1 modifies common law and takes away defence of automatism when there is an assaultive element o Question becomes: does dangerous driving necessarily fit within the parameters of s. 33.1? The court is not going to allow a defence of drunkenness for specific intent offences when the offence involves drunkenness as an essential element (i.e. drunk driving). SCC: Even though there may be a logical inconsistency, we dont think you will be able to use impairment as a defence to being impaired while driving.
o R. v. PENNO Canada

**see lecture notes pages 105-107 for situations which you may or may not be held criminally culpable**

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If the Offence is Dangerous Driving (DD) (not sure if this applies to any other offences other than DD) A. Actus Reus: The trier of fact must be satisfied BARD that viewed objectively the accused was, in the words of the section, driving in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at the place B. The Mens Rea: The trier of fact must also be satisfied BARD that the accuseds objectively dangerous conduct was companied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accuseds actual state of mind, if any, that the conduct amounted to a marked departure from the standards of care that reasonable person would observe in the accused circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances (icy roads) ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. C. Professor Wilson says there is no difference b/t criminally negligent driving and dangerous driving. The problem is that the fault element for dangerous driving is marked departure but the fault element for negligence is marked and substantial departure. This suggests that there might be a difference b/t marked departure and marked and substantial departure. This suggests that we may have yet another level of objective fault. (THIS HAS SINCE BEEN CONFIRMED IN JF) D. Note that the majority in Beatty (Charron J.) seems to be rejecting Creighton and possibly Hundel too b/c they dont infer mens rea. Note: McLachlin still follows Creighton and thinks that we can still infer MR. E. Note that Beatty confirms and clarifies the modified objective test from Hundel which was also clarified in Creighton. F. As of today, the test is: first modification - is that it is a marked departure (substantial) departure from the standard of care that a reasonable person would observe in all of the circumstances. Second modification: allows for the consideration of external factors when objectively evaluating the conduct of the reasonable person. I.e. the conduct of a reasonable driver in icy conditions.

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FLOW CHART
1. Standard of Proof (mandatory presumption, reverse onus) 2. Actus Reus a. Read Criminal Code provision what is required b. Act or Omission duty c. Consent d. Voluntariness e. Causation intervening causes 3. Mens Rea a. Provincial Offence start at strict liability b. Can it move up or down? jail? language c. Fault established?

1. Fault: Subjective or Objective? a) Subjective: i. Intention, recklessness or willful blindness b) Objective: i. Simple negligence or Penal and criminal negligence

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Subjective Fault:
Term Wilful Blindness (lowest subj.) What is the test? Subjective test did the accused have a suspicion, but deliberately close their mind to the possibility, It is NOT should they have asked questions Subjective test did the accused know the act was likely to cause the prohibited consequences but proceeded anyway? Sometimes code specifies type of recklessness In the U.K. recklessness is objective Subjective test Did the accused know what was likely to happen? Intention will always work for knowledge if you intend it, you have knowledge Subjective test Did the accused deliberately intend the prohibited consequences to happen? Watch for the word wilfully means intention If code says with intent Cases Defining/Supporting Sansregret v. R. definition given by S.C.C. to its current form R. v. Currie trial judge used should, there is no should its subjective R. v. Sandhu wilful blindness is the same as knowledge Buzzanga Sansregret v. R. suggests that recklessness would not negate mistaken belief of consent, but this is weird and causes problems, as long as accused is aware that it may cause R. v. Sandhu erroneously holds that recklessness is negligence and objective, and that recklessness will not work for importing drug offences R. v. Davis Overturns Sansregret on issue of recklessness

Recklessness

Knowledge

R. v. Duong If the code refers to knowledge you are limited to knowledge/intention not recklessness, but with knowledge you can use wilful blindness because with WB you could have learned if you tried

Intention (highest subj.)

R. v. Steane intention must be proved, never presumed R. v. Hibbert the word purpose in s. 21(1)(b) parties to an offence means intent R. v. Buzzanga & Derocher wilfully is the same as intent, if you intend A and B is a natural consequence of A, then you intend B also

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