CRIMINAL
WINTER 2017
CASE FACTS
CHARLENE SCHEFFELMAIR
ACTUS REUS
Kilbride v. Lake, [1962] NZLR 590
R. v. King, [1962] SCR 746
R. v. Ruzic, [2001] 1 SCR 687
Fagan v. Commissioner of Metropolitan Police, [1969] 1 QB 439
R. v. Miller, [1982] 2 All ER386
R. v. Cooper, [1993] 1 SCR 146
R. v. William, 2003 SCC 41
ACT AND OMISSIONS
R. v. Browne, (1997) 116 CCC (3d) 183
R. v. Thornton, (1991), 3 CR (4th) 381
CONSEQUENCES AND CAUSATION
Smithers v. The Queen, [1978] 1 SCR 506
R. v. Harbottle, [1993] 3 SCR 306
R. v. Nette, [2001] 3 SCR 488
R. v Maybin, 2012 SCC 24 [headnote]
MENS REA
Intention, knowledge, willful blindness, and recklessness
R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 [2 different excerpts]
R. v. Steane, [1947] 1 KB 997
Hibbert v. The Queen, [1995] 2 SCR 973
R. v. Briscoe, 2010 SCC 13
R. v. Sansregret, [1985] 1 SCR 570
Objective knowledge, criminal and penal negligence
R v. Tutton and Tutton
R. v. Hundal, [1993] 1 SCR 867
R. v. Creighton, [1993] 3 SCR 3
R. v. Beatty, 2008 SCC 5
R. v Roy, 2010 SCC 26
Constitutional Considerations
R. v. Vaillancourt, [1987] 2 SCR 636
R. v. Martineau, [1990] 2 SCR 633
R. v DeSouza, [1992] 2 SCR 944
Strict and absolute liability
Beaver v. The Queen, [1957] SCR 531
R. v. Pierce Fisheries Ltd., [1971] SCR 5
R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299
Reference re Section 94(2) of the B.C. Motor Vehicle Act, [1985] 2 SCR 486
R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154
EXTENSIONS OF CRIMINAL LIABILITY
Parties, Counseling, and Accessory After the Fact
R. v. Thatcher, [1987] 1 SCR 652
R. v. Greyeyes, [1997] 2 SCR 825
R. v Briscoe, [2010] 1 SCR 411
Dunlop v. Sylvester v. The Queen, [1979] 2 SCR 881
R. v. Jackson, 2007 SCC 52 [headnote]
R. v. Nixon (1990), 57 CCC (3d) 97 (BCCA) [headnote]
R. v. Duong (1988), 124 CCC (3d) 392 (OCA)
Attempts and Conspiracies
R. v. Cline (1956), 115 CCC 18
Deutsch v. The Queen, [1986] 2 SCR 2
R. v. Ancio, [1984] 1 SCR 225
R. v. Logan, [1990] 2 SCR 731
R. v. Sorrell and Bondett (1978), 41 CCC (2d) 9 (OCA)
United States of America v. Dynar, [1997] 2 SCR 462
HOMICIDE AND DEFENCES
R v Creighton, [1993] 3 SCR 3
R v. Cooper, [1993] 1 SCR 146
R v. Widdifield (Ont. S.C. 1961)
R v. More, [1963] SCR 522
R v. Nygaard, (SCC 1989)
R v. Collins (1989), 48 CCC (3d) 343
R v. Russell, 2001 SCC 53
PROVOCATION
R. v. Hill, [1986] 1 SCR 313
R. v. Thibert, [1996] 1 SCR 37
R. v. Tran, 2010 SCC 58 [headnote]
SELF DEFENCE
R. v. Cinous, 2002 SCC 29
R. v. Lavallee, [1990] 1 SCR 852
R. v. Petel, [1994] 1 SCR 3
MENTAL DISORDER
R. v. Whittle(SCC 1994)
Cooper v. The Queen, [1980] 1 SCR 1149
R. v. Chaulk, [1990] 3 SCR 1303
R. v. Swain, [1991] 1 SCR 933
INTOXICATION
DDP v Beard, [1920] AC 479
R. v. George, [1960] SCR 871
R. v. Leary, [1978] 1 SCR 29
R. v. Bernard, [1988] 2 SCR 833
R. v. Daviault, [1994] 3 SCR 63
R. v. Penno(SCC 1990)
R. v. King, [1962] SCR 746
ACTUS REUS
Kilbride v. Lake, [1962] NZLR 590
-K parks car and at time had a valid licence / permit on display as required.
-returns late to find traffic offence notice for not displaying permit
-permit blew away or was taken, but this was an absolute liability offence, K found guilty.
R. v. King, [1962] SCR 746
-K charged with impaired driving after receiving a drug at the dentist. Doesn’t recall hearing the dental assistant warn him not to drive, plows into a parked car.
R. v. Ruzic, [2001] 1 SCR 687
-SCC in Ruzic: “the element of voluntariness may sometimes overlap both actus reus and mens rea”
-preferable to ground voluntariness as part of the actus reus analysis for cases involving absolute liability, where AR is the entire offence.
Fagan v. Commissioner of Metropolitan Police, [1969] 1 QB 439
-Police officer, M, tells F to pull over, F drives on M’s foot unintentionally.
-M says, “Get off, you are on my foot!”
-Fagan says: “F--- You, you can wait.” The engine then stops.
-M kept asking him to get off, F then says, “OK” and moves.
-F charged with assault, convicted at trial.
R. v. Miller, [1982] 2 All ER386
-M, a squatter in another person’s house, falls asleep with lit cigarette, wakes to see mattress smoldering, does nothing; moves to another room and sleeps. House burns down.
-M convicted of arson.
R. v. Cooper, [1993] 1 SCR 146
-C convicted of murder
-C’s evidence: became angry, grabbed wife’s throat and shook her, then passed out, waking hours later in car with deceased’s body beside him.
-expert evidence: wife died 30 seconds to 2 minutes into strangling.
-C convicted of murder
R. v. William, 2003 SCC 41
-W becomes HIV positive, only finds out in Nov. 91
-told he shouldn’t have sex without disclosing it first
-has sex w/ partner without disclosing it; they break up.
-in 94 she tests positive
-W concedes he infected her
-Crown concedes he may have infected her prior to Nov 91.
ACT AND OMISSIONS
R. v. Browne, (1997) 116 CCC (3d) 183
-B and G close friends, sold cocaine together
-before being approached by police, G swallows bag of cocaine; both arrested, searched and released at 11:30
-G tries to vomit up bag but fails.
-G and B return to B’s house, G left in basement for 10-15 minutes while B makes meal
-returns downstairs (2 am) to find G “shaking and sweating,” barely conscious and unable to walk.
-B says, “I’m going to take you to the hospital” and calls taxi; 15 minutes to arrive, another 15 to reach emergency
-upon arrival, no pulse or heartbeat; G pronounced dead soon after arriving.
R. v. Thornton, (1991), 3 CR (4th) 381
-T donates blood to Red Cross knowing he has HIV and knowing that donating would endanger lives of others.
-charged and convicted of common nuisance endangering safety of the public (s. 180).
CONSEQUENCES AND CAUSATION
Smithers v. The Queen, [1978] 1 SCR 506
-during hockey game, C and others made racial insults to S.
-S challenged C to fight; C attempted to leave arena. S stopped him on way out, punched him in head, C didn’t fight back. As C was keeled over from punch, S delivered a hard kick to C’s stomach, C collapsed, 5 minutes later appeared to stop breathing; DOA at hospital. Medical evidence: cause of death was “aspiration of foreign materials present from vomiting.”
-normally when vomiting, the epiglottis folds over to prevent vomited content from entering lungs, but here it failed.
-one doctor testified that the aspiration of material may not have been caused by the kick; it may have occurred “spontaneously” as a result of C being in a “highly emotional state” – though this was statistically very rare (roughly 1 in 300)
-S convicted of manslaughter.
R. v. Harbottle, [1993] 3 SCR 306
-H and S forcibly confined EB, and with her hands tied S strangled her to death while H held down her legs.
-trial judge expressed doubt to jury about evidence here of ‘planning and pre-meditation’ [despite ample evidence of this] – and explained that this might still be 1st degree murder if they found, under s. 214(5), that the murder was committed in the course of a sexual assault or a forcible confinement.
-H and S both convicted of first degree murder.
R. v. Nette, [2001] 3 SCR 488
-95 y/o widow robbed and left bound on bed with garment overhead; dies at some point over 48 hours.
-N confesses involvement to UC; charged with 1st degree (murder occurs during unlawful confinement, s. 231(5)).
-jury charged that test for causation is “more than a trivial cause”; but then later, is twice charged that test is “slight or trivial cause.”
-convicted of 2nd degree;
R. v Maybin, 2012 SCC 24 [headnote]
Late at night, in a busy bar, the accused brothers T and M repeatedly punched the victim in the face and head. T eventually struck a blow that rendered the victim unconscious. Arriving on the scene within seconds, a bar bouncer then struck the victim in the head. The victim died moments later. The medical evidence was inconclusive about which blows caused death. As a result, the trial judge acquitted the accused brothers and the bouncer.The Crown appeals the case to the BC Court of Appeal.
MENS REA
Intention, knowledge, willful blindness, and recklessness
R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 [2 different excerpts]
-B+D distribute anti-Francophone pamphlets satirical in nature (pretending to ridicule Francophones)
-they intended not to promote hatred but to motivate citizens in support of creation of French school in Ontario
-convicted of ‘wilfully promoting hatred’ [s. 281.2(2); now 319(2)]
R. v. Steane, [1947] 1 KB 997
-offence provision: “If with intent to assist the enemy, any person does any act which is likely assist the enemy… [up to life sentence].”
-S captive in Germany during WW2, tortured, threatened with family’s arrest and imprisonment in concentration camp if he refused to assist with broadcasts.
-says he didn’t act with intent to assist enemy; only acted with intent to save family.
Hibbert v. The Queen, [1995] 2 SCR 973
-H forced at gunpoint to lure friend to building lobby where he was shot by principal offender.
-H charged as party to attempt murder, with two ways to be
convicted (s. 21):
-for doing “anything for the purpose of aiding a person to commit” an offence; or
-forming an “intention in common” to carry out an unlawful purpose
-H argued duress at trial.
R. v. Briscoe, 2010 SCC 13
-B drives group to crime scene, provides weapon and holds victim in chain of events that culminated in murder.
-charged as a party to murder, kidnapping, and sexual assault
-acquitted at trial on basis that B didn’t know crimes would occur; wilful blindness not considered.
R. v. Sansregret, [1985] 1 SCR 570
-After lengthy, turbulent relationship, complainant breaks up with S
-breaks into her house twice; C fears for safety both times b/c of threats and violent behavior
-to avoid further violence, she consents to sex.
-she reported both incidents to police, stating that she had been raped; but nothing happened after the 1st incident because appellant’s probation officer persuaded her not to press matter.
-S charged after second rape: TJ finds that S was aware of first complaint and PO’s involvement, and “likelihood of the complainant’s reaction to his threat.”
-but TJ finding S had honest but mistaken belief in consent, TJ acquits.
Objective knowledge, criminal and penal negligence
R v. Tutton and Tutton
-couple convicted of criminal negligence causing death for "failing to provide necessaries of life without lawful excuse" to five year old son
-refusing to provide insulin injections due in part to belief in faith healing
-charge to jury: standard of 'wanton or reckless disregard' in CN is standard of 'reasonable parents.' Tuttons convicted.
R. v. Hundal, [1993] 1 SCR 867
-driver of overloaded dump truck runs red in busy Vancouver intersection, striking and killing driver entering on green.
-acc'd says he was only short distance from intersection when light turned amber and continued b/c it was dangerous to try to stop then.
-convicted of dangerous driving causing death (s. 249 of Code
R. v. Creighton, [1993] 3 SCR 3
-over 18 hour period, C and M consume large quantity of alcohol and cocaine. F joins C and M to do more cocaine.
-C injects himself with cocaine, injects F, then, with M's consent, injects M; M begins to convulse violently, experiences cardiac arrest.
-C and F attempt to resuscitate her. F wanted to call 911, but C resisted, persuading him not to.
-C and F place M on her bed, still convulsing; proceed to clean apartment of fingerprints and leave. F returns 6 or 7 hours later alone and calls 911, M is then pronounced dead.
-C charged with manslaughter by an unlawful act (???) and criminal negligence; convicted of manslaughter by both U.A. and C.N. (4y sentence)
R. v. Beatty, 2008 SCC 5
-B charged with dangerous driving causing death (s. 249(4)) for crossing meridian around bend in road and colliding w/ oncoming car, killing three people.
-says he was not sure what happened but that he must have lost consciousness (possibly due to heat stroke from working in sun all day) or fallen asleep.
-no mechanical failure, no intoxicants, no improper driving prior
R. v Roy, 2010 SCC 26
-R brought vehicle to a stop on steep snow-covered backroad
-visibility very poor due to fog
-after stop, R looks left onto highway, see’s oncoming truck but mistakenly believes it is further than it was.
-turning left, the truck strikes vehicle, killing R’s passenger.
-tried before Beatty decided by SCC, TJ convicts of dangerous driving causing death.
Constitutional Considerations
R. v. Vaillancourt, [1987] 2 SCR 636
-V and accomplice carry out armed robbery of pool hall, V with knife, accomplice with gun. During robbery, accomplice shoots and kills a person; accomplice never found.
-V says he didn’t know gun was loaded, evidence to support this.
-V charged with ‘constructive’ murder under s. 213(d) [now 230],
-raises manslaughter to murder where Acc’d causes death while committing certain unlawful acts with a weapon (here: robbery) – but without need for proof of intent to kill or subjective foresight that death is likely to follow.
R. v. Martineau, [1990] 2 SCR633
-M and T set out with loaded pistol and rifle
-they rob couple in trailer, after which T shoots and kills both.
-M says the intention was only to carry out a break and enter.
-challenge to 213(a) raising robbery to murder where person intends to cause bodily harm during offence and death follows.
R. v DeSouza, [1992] 2 SCR 944
-D involved in fight, throws bottle against a wall, fragment hits bystander in the arm.
-D charged with "unlawfully causing bodily harm" in s. 269
(AR = unlawful act + bodily harm)
-argues at trial: Charter requires that you have to intend the bodily harm as well as the unlawful act.
Strict and absolute liability
Beaver v. The Queen, [1957] SCR 531
-A acted as party, brother carrying drugs.
-A and brother convicted of trafficking and possession of heroin under ONDA (precursor to CDSA).
-A says he thought it was lactose (i.e., lacked knowledge).
-at trial, judge charges jury that knowledge not essential; if it was heroin, this was enough.
-CA agrees: MR not required for possession.
R. v. Pierce Fisheries Ltd., [1971] SCR 5
-Acc'd co charged with possession of undersized lobsters contrary to Lobster Fishery Regulations (and the Fisheries Act)
R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299
-City hired independent company to carry out waste disposal and the disposal contaminates stream near dump site.
-both company and city are charged under s. 32(1) of Ontario Water Resources Commission Act, which states that every municipality or person that causes discharges or permits the discharge of any material into water is guilty of offence.
-at trial, judge finds city not involved in disposal operations; on appeal, trial de novo, judge finds offence is strict liability and convicts city.
-Ontario Court of Appeal: MR required for "causing or permitting discharge," orders new trial.
Reference re Section 94(2) of the B.C. Motor Vehicle Act, [1985] 2 SCR 486
-BC gov asks BCCA to rule on whether proposed section 94(2) of Motor Vehicle Act was consistent with the Charter.
-section 94(2) imposed mandatory minimum period of jail for driving while suspended "whether or not the defendant knew of the prohibition or suspension" or driving without a licence.
-94(2) was also an absolute liability offence, in which the Crown had to prove only…
R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154
-travel agency charged with false or misleading advertising under section 36(1)(a) of Competition Act.
-offence carried a possible prison sentence.
-it was a strict liability offence, and s. 37.3(2) allowed for defence of due diligence, but it also required a timely retraction
-Charter challenge to misleading advertising provisions (Competition Act)
EXTENSIONS OF CRIMINAL LIABILITY
Parties, Counseling, and Accessory After the Fact
R. v. Thatcher, [1987] 1 SCR 652
-strong evidence that T carried out murder or aided (paid someone to do it).
-eye witness testifies to seeing man leave crime scene right after hearing screams – but description does not match T.
-Jury told they could convict either as party or as principal
-TJ didn't stipulate that jury had to be unanimous as to party or principal
R. v. Greyeyes, [1997] 2 SCR 825
-G takes several steps to assist UC officer to find source of drugs and to buy quantity.
-officer pays G for his help.
-G acquitted at trial; overturned at CA
R. v Briscoe, [2010] 1 SCR 411
-B drives group to crime scene, provides weapon and holds victim in chain of events that culminated in murder.
-charged as a party to murder, kidnapping, and sexual assault
-acquitted at trial on basis that B didn’t know crimes would occur; wilful blindness not considered.
Dunlop v. Sylvester v. The Queen, [1979] 2 SCR 881
-D+S present at rape of 16 year old by biker gang
-claim they delivered beer and left after three minutes.
-convicted as parties.
R. v. Jackson, 2007 SCC 52 [headnote]
-J found with four others at the site of a secluded marijuana plantation in remote area of forest
-large commercial op, no evidence of any legitimate business enterprise, or recreational activity (i.e., any other reason to be there)
-J convicted of being a party to marijuana production
R. v. Nixon (1990), 57 CCC (3d) 97 (BCCA) [headnote]
-N senior officer in charge of Vancouver police station holding cells.
-in N's presence, one of a group of other officers assaults a detainee, breaking their knee – but none are charged.
-N convicted as party to aggravated assault under s. 21 on the basis that he had a duty under the Police Act to protect persons in his custody, and the intentional failure to do so (to aid in assault) constituted an omission under s. 21.
-9 month sentence; conviction upheld by CA.
R. v. Duong (1988), 124 CCC (3d) 392 (OCA)
-L is widely reported to be a suspect in a murder; D knows at least that L is "in trouble."
-D allows L to hide in his apartment, admits:
"…I didn’t want to know anything because I knew I would be in trouble for helping him."
-was charged under 23(1): ‘Accessory after to the fact,’ requiring proof that acc’d: "knowing that a person has been a party to the offence… assists… for purpose of enabling to escape."
-TJ convicts on basis that (a) D knew L was wanted for murder, and (b) "knew he would be in trouble for harbouring Lam and deliberately elected not to inquire of Lam [as to] his involvement in the homicide."
–i.e., he was at least wilfully blind of whether L was a party to murder.
Attempts and Conspiracies
R. v. Cline (1956), 115 CCC 18
-a person's conduct goes "beyond mere preparation" in law when they take one step further after there was nothing more you needed to do to complete the offence.
Deutsch v. The Queen, [1986] 2 SCR 2
-D posts ad for an assistant/sales rep in a job involving sale of franchises.
-interviews 3 women (and UC officer posing as applicant) and states the job will pay up to 100k but might require having sex with clients to obtain contracts.
-none of the applicants were made a job offer (first 3 women put off; UC officer told to “think it over”).
-charged with attempting to procure person to become prostitute and soliciting person to have illicit sex with another.
-acquitted at trial on basis of finding that D had not gone beyond preparation because he had not offered any of the women the job.
R. v. Ancio, [1984] 1 SCR 225
-Wanting to speak to his estranged wife, A broke into home of K (her new partner) with loaded sawed-off shotgun.
-K goes to investigate sound of breaking glass and throws chair when he sees A climbing stairs.
-A fires gun, missing K and struggle follows.
-A was convicted of attempted murder of K on basis that predicate offence was B+E with intent to commit indictable (to force wife to leave) and under s. 230, this would raise manslaughter to murder if death was caused in process.
R. v. Logan, [1990] 2 SCR 731
-accused were involved in the robbery of a convenience store. One of them, Hugh Logan, shot the clerk, almost killing her (and he was charged with attempted murder).
-appeal concerns the role of two of the parties: Johnson and Sutcliffe Logan (shooter’s brother). J says he didn't intend to shoot and there had been no discussion of using guns; SL boasted to UC of his involvement in planning the robberies.
-TJ instructed jury: with respect to J and SL: Crown had to establish BARD that A's “knew or ought to have known that someone would probably shoot with the intention of killing.” [i.e., as provided in s. 21(2)]
-J and SL convicted of attempt murder under 21(2) ("common intent" for unlawful purpose + objective foreseeability of offence as probable consequence)