CRIMINAL LAW (102) FINAL OUTLINE – JAYDE JESSOME

Evidence & Proof

Quantum & Burden of Proof

Reverse Onuses

Presumptions

Evidentiary Burden

Presumption of Innocence

Beyond a Reasonable Doubt

Case Briefs

R. v. Oakes (SCC, 1986)  Oakes/section 1 test

R. v. Lifchus (SCC, 1997)  explanation of BRD

R. v. Starr (SCC, 2000)  used Lifchus standards for BRD

Elements of an Offense

Concurrency

Case Briefs

R. v. Williams (SCC, 2003)  example of concurrency

R. v. Cooper (SCC, 1993)  need not be complete concurrency

Meli v. The Queen (JCPC, 1954)  continuing transaction

Fagan v. Commissioner of Metropolitan Police (Eng. CA, 1969)  superimposing mens rea from one act to another

R. v. Miller (Eng. CA, 1982)  continuing transaction

R. v. Bottineau (Ont. SC, 2006)  continuing transaction

Actus Reus

Voluntariness

Voluntariness – Cases Briefs

R. v. Larsonneur (Eng. CA, 1933)  physical involuntariness

R. v. King (SCC, 1962)  conscious involuntariness

R. v. Ruzic (SCC, 2001)  introduction of moral voluntariness

Kilbride v. Lake (NZSC, 1962)  accused must be responsible for actus reus

Action-Based Offenses

Omission-Based Offenses

Duty to Provide the Necessaries of Life

Duty to Use Reasonable Care in Undertaking Acts Dangerous to Life

Duty of Persons Undertaking to Act

Other Omission Offenses

Omission-Based Offenses – Case Briefs (Focus on Where Duties Come From)

R. v. Coyne (NBSC, 1958)  duty in crim neg causing death

R. v. Popen (Ont. CA, 1981)  duty in crim neg

R. v. Nixon (BCCA, 1990)  duty to inmates

R. v. Thornton (Ont. CA, 1991)  duty to not be a common nuisance

R. v. Cuerrier (SCC, 1998)  offense of non-disclosure

R. v. Mabior (SCC, 2012)  builds on Cuerrier

R. v. Browne (Ont. CA, 1997)  involved a s. 217 undertaking

Status Offenses

Circumstances & Consequences

Causation

Factual Causation

Legal Causation

Thin Skull Doctrine

Intervening Causes

Remoteness

Statutory Causation Provisions

Causation – Case Briefs

R. v. Winning (Ont. CA, 1973)  lack of factual causation

R. v. White (KB, 1910)  lack of factual causation & intervening act

R. v. Blaue (Eng. CA, 1975)  England test for legal causation & thin skull

Smithers v. The Queen (SCC, 1978)  test for legal causation for all offenses except first degree murder & thin skull

R. v. Harbottle (SCC, 1993)  test for legal causation for first degree murder

R. v. Cribbin (Ont. CA, 1994)  affirmed constitutionality of Smithers***

R. v. Nette (SCC, 2001)  reformulated Smithers test

R. v. Maybin (SCC, 2012)  test for intervening acts

Pagett v. The Queen (Eng. CA, 1983)  intervening act

Mens Rea

Levels of Fault

Types of Full/Subjective Mens Rea

Types of Objective Mens Rea

Levels of Fault – Case Briefs

R. v. Steane (Eng. CA, 1947)  direct intent required where offense says “intent”

R. v. Hibbert (SCC, 1995)  overruled Steane, intent in Canada includes direct and indirect

R. v. Sansregret (SCC, 1985)  difference between recklessness & willful blindness

R. v. Jorgenson (SCC, 1995)  example of willful blindness

R. v. Briscoe (SCC, 2010)  example of willful blindness

R. v. Curry (Ont. CA, 1975)  willful blindness requires some kind of knowledge & decision not to inquire

R. v. Tutton and Tutton (SCC, 1989)  issue of subjective reasonable person undecided

R. v. Hundal (SCC, 1993)  modified objective test considers context but not personal factors

R. v. Creighton (SCC, 1993)  no individual factors taken into account in objective test

R. v. Beatty (SCC, 2008)  reasonable person must be in the same circumstances as accused

R. v. Roy (SCC, 2012)  sums up modified objective test

Determining Mens Rea (See Chart)

True Crimes

Regulatory Offenses – Strict Liability and Absolute Liability

Distinction Between True Crimes & Regulatory Offenses

Determining Mens Rea – Case Briefs

R. v. City of Sault Ste. Marie (SCC, 1978)  classification scheme for offenses

R. v. Roy (SCC, 2012)  limit on the common sense inference

R. v. Buzzanga and Durocher (Ont. CA, 1979)  presumption of full mens rea for true crimes

R. v. ADH (SCC, 2013)  rebuttal to full mens rea assumption for true crimes ** READ THIS CASE, SEE NOTES

Levis (City) v. Tetreault (SCC, 2006)  regulatory offenses presumed to be strict liability

R. v. Wholesale Travel (SCC, 1991)  minimum mens rea for jail time is negligence, reverse onus of due diligence upheld as constitutional

Re BC Motor Vehicle Act (SCC, 1985)  absolute liability offenses can’t have jail sentences

Applying Mens Rea to Actus Reus (Rule of Symmetry)

Minimum Constitutional Standards for Mens Rea

Minimum Constitutional Standards for Mens Rea – Case Briefs

R. v. Vaillancourt (SCC, 1987)  stigma offenses (murder) require subjective fault

R. v. Martineau (SCC, 1990)  anything less than subjective fault for murder is unconstitutional

R. v. Finta (SCC, 1994)  added crimes against humanity and war crimes to the list of stigma offenses

Defenses

Ignorance of the Law

Exceptions

Mistake of Fact

Officially Induced Error

Case Briefs

Molis v. The Queen (SCC, 1980)  ignorance of the law is not a defense

Jones and Pamajewon v. The Queen (SCC, 1991)  ignorance of the law is not a defense

Levis (City) v. Tetreault (SCC, 2006)  recognized defense of officially induced error & set out test

R. v. Prue, R. v. Baril (SCC, 1979)  ignorance of suspension is mistake of fact

R. v. MacDougall (SCC, 1981)  ignorance of suspension is mistake of law

R. v. Pontes (SCC, 1995)  affirmed MacDougall decision, issues with automatic penalties

Sexual Assault

Definition

“Of a Sexual Nature”

Definition – Case Briefs

R. v. Chase (SCC, 1987)  definition of sexual assault

R. v. V(KB) (SCC, 1992)  touching doesn’t have to be done for sexual gratification

Consent (Lack Of)

Consent – Case Briefs

R. v. Ewanchuk (SCC, 1999)  implied consent is not consent at law

R. v. JA (SCC, 2011)  consent to sexual activity requires a conscious & operating mind (no advance consent)

R. v. Mabior (SCC, 2012)  fraud vitiates consent

R. v. Hutchinson (SCC, 2014)  fraud vitiates consent

Defense of Mistake of Fact

Defense of Mistake of Fact – Case Briefs

R. v. Darrach (SCC, 2000)  section 273.2(b) upheld as constitutional

R. v. Malcolm (MBCA, 2000)  reasonable steps test is quasi-objective

R. v. Osolin (SCC, 1993)  evidentiary burden for mistake of fact

R. v. Davis (SCC, 1999)  evidentiary burden for mistake of fact

R. v. Ewanchuk (SCC, 1999)  speculation of consent not enough

Pre-1983 Criminal Code Amendments

Post-1983 Criminal Code Amendments

Feminist Critiques of Sexual Assault Laws

Rape Shield Provision (Criminal Code Section 276)

Parliament’s Response to Unconstitutionality of Rape Shield Provision

Disclosure of Personal Records

Case Briefs

R. v. Seaboyer (SCC, 1991)  held 1983 section 276 to be unconstitutional

R. v. Darrach (SCC, 2000)  new section 276 upheld as constitutional

R. v. Stinchcombe (SCC, 1991)  prosecutor must disclose to defense all “relevant evidence”

R. v. O’Connor (SCC, 1995)  Stinchcombe rule applies to personal records

Intoxication

Case Briefs

R. v. Daviault (SCC, 1994)  intox can be used for GIO where akin to automatism/insanity

R. v. Robinson (SCC, 1996)  struck out the word “capacity” from the third Beard rule

Specific vs. General Intent Offenses

R. v. George (SCC, 1960)  intoxication applies to SIO and lowers liability to a GIO

Red Flags in Intoxication

Automatism

Recognized Situations of Automatism

Case Briefs

Rabey v. The Queen (SCC, 1980)  if ordinary stress causes dissociation, its a disease of the mind

R. v. Parks (SCC, 1992)  external/internal cause theory and continuing danger theory

R. v. Stone (SCC, 1999)  significantly narrowed defense of automatism

R. v. Graveline (SCC, 2006)  though the defense is narrow, it is not dead

R. v. Fontaine (SCC, 2004)  addressed concerns coming out of Stone

Sexsomnia

R. v. Luedecke (Ont. CA, 2008)  recognized parasomnia automatism

Insanity/Mental Disorder

Fitness to Stand Trial

R. v. Whittle (SCC, 1994)  test for fitness to stand trial (very low)

Origins of the Defense

Modern Defense

Element 1: Existence of Mental Disorder

Element 2(a): Incapability of Appreciating Nature/Quality of Act

Element 2(b): Incapability of Knowing Act is Wrong

Modern Defense – Case Briefs

R. v. Simpson (Ont. CA, 1977)  “disease of the mind” is a legal term that can evolve

Cooper v. The Queen (SCC, 1980)  leading authority that defines disease of the mind

R. v. Bouchard-Lebrun (SCC, 2011)  voluntary intoxication does not lead to NCRMD

R. v. Abbey (SCC, 1982)  incapability of appreciating penal consequences is irrelevant

R. v. Landry (SCC, 1991)  gave a wide meaning to the word “appreciate”

Schwartz v. The Queen(SCC, 1976)  wrong for purposes of 2(b) meant legally wrong

R. v. Chaulk and Morrissette(SCC, 1990) wrong for purposes of 2(b) means morally wrong

R. v. Oommen (SCC, 1994)  wrong for purposes of 2(b) is measured against ordinary person

Application of Modern Defense

Disposition

Winko v. British Columbia (SCC, 1999)  court upheld 1992 provisions

Co-occurring Intoxication & Mental Disorder

Note on Temporary Psychosis Caused by Voluntary Consumption

Provocation

Critiques

Case Briefs

R. v. Hill (SCC, 1986)  ordinary person has characteristics relevant to provocation

R. v. Thibert (SCC, 1996)  ordinary person is same age and sex as accused

R. v. Ly (BCCA, 1987)  culture not relevant to ordinary person test

R. v. Nahar (BCCA, 2004)  culture is relevant to ordinary person test

R. v. Humaid (Ont. CA, 2006)  ordinary person can’t have beliefs contrary to Canadian values

R. v. Tran (SCC, 2010)  ordinary person informed by contemporary norms of behavior

R. v. Mayuran (SCC, 2012)  test is objective, not subjective

R. v. Pappas (SCC, 2013)  provocation must be sudden/unexpected

R. v. Parent (SCC, 2001)  anger is part of provocation but not a stand-alone defense

Self-Defense

Old Provisions

New Provisions

Case Briefs

R. v. Kagan (NSCA, 2004)  mental impairment informs the reasonable person test

R. v. Cinous (SCC, 2002)  self-defense is a last resort

Domestic Violence/Battered Woman Syndrome

Domestic Violence/Battered Woman Syndrome – Case Briefs

R. v. Lavallee (SCC, 1990)  allowed self-defense in context of battered woman syndrome

R. v. Petel (SCC, 1994)  applied Lavallee, no immanency requirement for self-defense

R. v. Malott (SCC, 1998)  factors to be informed by battered woman syndrome

Duress

Statutory Defense of Duress

Common Law Defense of Duress

Case Briefs

R. v. Ruzic (SCC, 2001)  struck out immediacy and presence requirements

R. v. Ryan (SCC, 2013)  made common law and statutory duress very similar

R. v. Hibbert (SCC, 1995)  presence of threats can be used to negate mens rea

Principle vs. Secondary Offenders

R. v. Carker (SCC, 1967)  court initially said all of duress is found in s. 17

R. v. Paquette (SCC, 1977)  duress under s. 17 only applies to principle offenders

R. v. Mena (Ont. CA, 1987)  jury to decide if accused is principle or secondary offender

Feminist Critiques of Duress Defense

Evidence & Proof

Quantum & Burden of Proof

  • Quantum/standard of proof = how much
  • Onus + quantum/standard = burden of proof
  • Two long-standing principles of evidence, “the golden thread that runs throughout criminal law” (Woolmington): presumption of innocence and proof beyond a reasonable doubt

Reverse Onuses

  • In some situations there are reverse onuses put on the defense to rebut a presumption (ex. presumed we are all sane, the defense must prove that an accused is not sane)
  • Reverse onuses always bring about the question of whether they violate s. 11(d) of the Charter (presumption of innocence), and if so, can they be saved under s. 1

Presumptions

  • Three potential ways to rebut a rebuttable presumption:

(1) The accused may be required to raise a reasonable doubt as to the fact’s existence

(2) The accused may have an evidentiary burden to adduce sufficient evidence to bring into question the truth of the presumed fact

(3) The accused may have a legal or persuasive burden to prove on a balance of probabilities the non-existence of the presumed fact

Evidentiary Burden

  • The standard that applies to evidence is an air of reality standard
  • Before a judge is legally obliged to instruct the jury about a particular defense, the defense must prove that there is “some evidence” of, an air of reality to, the defense (every element)
  • It remains for the Crown to prove the absence of that defense beyond a reasonable doubt

Presumption of Innocence

  • A hallowed principle at the very heart of the criminal law (Oakes)
  • Now embodied in s. 11(d) of the Charter  the right to be presumed innocent until proven guilty
  • “Presumption of innocence protects fundamental liberty and human dignity of any person accused by the state of criminal conduct because an accused faces grave social and personal consequences such as potential loss of physical liberty, subjection to social stigma and ostracism from the community” (Oakes)
  • POI is not normally rebutted unless/until the Crown proves guilt beyond a reasonable doubt

Beyond a Reasonable Doubt

  • The standard of proof in criminal law is beyond a reasonable doubt, and the Crown bears the onus of proving this
  • The Crown has to prove beyond a reasonable doubt the actus reus (act committed) + mens rea (guilty mind) + absence of lawful defense
  • Much higher burden than balance of probabilities
  • Judges should instruct juries that BRD means something less than absolute certainty but more than a balance of probabilities (Lifchus, Starr)
  • Reasonable doubt comes from evidence/lack of evidence along with logic and reason
  • Probable or likely guilt is not sufficient
  • Definition of reasonable doubt to juries should include an explanation that:
  • BRD is inextricably intertwined with the POI
  • Burden of proof is always on the Crown
  • A reasonable doubt is not based upon sympathy or prejudice but rather upon reason and common sense as logically connected to the evidence or absence of evidence
  • Does not involve proof to an absolute certainty beyond any doubt, but requires more than proof that the accused is probably guilty
  • Definition of reasonable doubt to juries should not include:
  • Describing RD as an ordinary expression with no special meaning in the criminal law context
  • Inviting jurors to apply to the task the same standard of proof they apply to important decisions in their own lives
  • Equating proof BRD to proof to a moral certainty
  • Qualifying the word “doubt” with adjectives other than “reasonable”
  • Instructing jurors that they may convict if they are “sure” that the accused is guilty before providing them with a proper definition as to BRD
  • An instruction which fails to explain that the BRD standard has special legal significance and requires a significantly higher quantum of proof than the balance of probabilities will not satisfy the Lifchus standard (Starr)

Case Briefs

R. v. Oakes (SCC, 1986)  Oakes/section 1 test

  • Act held that if accused is found in possession of a narcotic, he/she would be presumed to be in possession for the purpose of trafficking (unless rebutted)
  • Court found that Act contained a reverse onus that violated s. 11(d) of the Charter because it required an accused to prove that he/she was not guilty; this was radically and fundamentally inconsistent with the societal values of human dignity and liberty
  • To be established as reasonable and demonstrably justified, two central criteria must be satisfied:

(1) The objective must be of sufficient importance to warrant overriding a constitutionally protected right or freedom, and

(2) Once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified

(a) Measures adopted must be carefully designed to achieve the objective in question (not arbitrary, rationally connected)

(b) The means should impair the right/freedom as little as possible

(c) Must be proportionality b/w the effects of the measures and the sufficiently important objective

  • The Act did have an important objective but was not rationally connected to the objective so the Act violated s. 11(d) and could not be justified under s. 1

R. v. Lifchus (SCC, 1997)  explanation of BRD

  • Trial judge told the jury to use the phrase “reasonable doubt” in its ordinary, natural, every day sense
  • The SCC held that this explanation was an error and clarified how reasonable doubt should be explained to juries
  • See “Beyond a Reasonable Doubt” section above

R. v. Starr (SCC, 2000)  used Lifchus standards for BRD

  • Trial judge told the jury that the phrase “reasonable doubt” had no special connotation and did not require proof of an absolute certainty
  • The SCC held that this explanation was an error based on the Lifchus guidelines

Elements of an Offense

  • Elements of an offense = actus reus, mens rea, and lack of valid defense

Concurrency

  • Actus reus + mens rea must be present at the same time (concurrent/contemporaneous)
  • Must be a temporal overlap between the mental fault and the prohibited conduct; if the mens rea and actus reus do not coincide in this way, the law would be punishing either for guilty conduct without the required fault or for guilty thoughts not expressed in guilty conduct
  • If the criminal act is complete before mens rea arises, then there is no concurrence and no criminal liability for that particular crime
  • Actus reus and mens rea need not be completely concurrent (Cooper)
  • An act which may be innocent or merely careless at the outset can become criminal at a later stage when the accused acquires knowledge of the nature of the act and still refuses to change his/her course of action (Cooper)
  • It is sufficient that the mens rea coincided with the actus reus at some point in a continuing transaction (Meli, Miller)
  • Mens rea can be superimposed upon an existing act (Fagan)
  • An unintentional act followed an intentional omission to rectify that act or its consequences can be regarded on the whole as an intentional act (Miller)
  • Generously applied

Case Briefs

R. v. Williams (SCC, 2003)  example of concurrency

  • Accused was having ongoing consensual sex with partner and at some point learned that he was HIV positive but continued to have unprotected sex
  • Complainant eventually contracts HIV as well but it can’t be decided at what point it was passed on to her (before or after the accused knew he had it)
  • There was actus reus without mens rea up to the point that the accused learned he was HIV+, and after the victim was already infected there was mens rea with no actus reus
  • Does not meet requirement of concurrence

R. v. Cooper (SCC, 1993)  need not be complete concurrency

  • Accused strangled a victim but blacked out before she died so he had no recollection of causing the death
  • Court held that there had been intent when the act began, so at this point there was concurrency between the actus reus and mens rea
  • It was sufficient that the intent and the act of strangulation coincided at some point, not necessary that the requisite intent continued throughout the entire act

Meli v. The Queen (JCPC, 1954)  continuing transaction

  • Accused intended to kill his victim by striking blows, then threw him off a cliff thinking he was already dead from the blows
  • It turned out that the victim died from exposure suffered at the bottom of the cliff, not the blows
  • Court considered the episode as a single continuing transaction

Fagan v. Commissioner of Metropolitan Police (Eng. CA, 1969)  superimposing mens rea from one act to another

  • Accused accidentally ran over a PO’s foot, but once he was on it he would not move his car off
  • There was arguably no mens rea for the initial act of running over the foot (act A), but failing to move the car was intentional (act B)
  • Mens rea superimposed from act B to act A

R. v. Miller (Eng. CA, 1982)  continuing transaction

  • Accused fell asleep with a cigarette which caught fire, he later woke up, noticed the fire, and went back to bed
  • Court adopted the continuing transaction approach and said the later omission is part of the original act

R. v. Bottineau (Ont. SC, 2006)  continuing transaction

  • Accused confined grandchildren to an unheated room without food or water and one of them ultimately died
  • Though the Crown wasn’t able to identify a specific point in time when mens rea was present, the court held that it was sufficient that, at some point, the accused realized his conduct would likely result in death

Actus Reus

  • Requires at least two, and up to four, elements:

(1) Physical voluntariness