DOC Criminal Law Course Summary
Criminal Law 1
C.S. Lewis: Critique of the Humanitarian Theory of Justice ...................................... 7
R. v. Sedley [1663] (P1) “Crazy Flasher Guy Convicted On Morals” ..................... 10
Frey v. Fedoruk (P3) “Peeping Tom Not a Criminal” ............................................. 10
Commonwealth of Penn. v. Mochan [1955] “Caller ID’d - Morality” ..................... 10
Professor J. Willis [1950] (P5) “Use the Common Law” ......................................... 11
Frey v. Fedoruk “Crimes Must be Written Down” ................................................... 12
Law Reform Commission: Categories of Offenses (P161) ...................................... 12
R. v. Goulis (1981) 20 C.R. (3rd) 360 “Benefit of Doubt to Accused” .................... 12
R. v. Pare (1987) 2 S.C.R. 618 “Unlawful domination” ........................................... 12
R. v. Muchikekwanape [2002] 166 C.C.C. (3d) 144 “While committing” .............. 13
R. v. Mac [2002] “Strict Construction Only If Ambiguous” .................................... 13
Woolmington v. D.P.P [1935] “Burden of Proof Not for the Accused” .................. 14
R. v. Osolin [1993] “Burden on Accused to Justify Proposed Defense” .................. 14
R. v. Lifchus (P87) “Courts Must Explain Reasonable Doubt” ............................... 15
R. v. Starr [2001] “Courts Must Also Discuss Absolute Certainty” ......................... 15
R. v. Jackson [2002] “Timid Jurors Speech – Apparently Fine” .............................. 15
People v. Feldman [1947] “Poisoner Free, Improper Instructions” .......................... 15
Criminal Law 2
Williams, Glanville [1983] (P186) “Actus Reus Must Exist” .................................. 16
Hutt v. R. (P187) “Narrowly Define Ambiguous Words – Ex:Solicit” ................... 16
R. v. di Giuseppe [2002] “Indecency, Prostitution Are Not Vague” ........................ 16
J.F. Stephen: Liberty, Fraternity and Equality, 2 nd ed., 1874 (P167)........................ 17
Canadian Committee on Corrections (Ouimet Report, 1969) (P167)....................... 17
N.D. Walker: Crime and Punishment in Britain, 1968 (P170) ................................. 17
Jobidon (P219) “Can’t consent to serious hurt or non-trivial harm” ........................ 18
R. v. Lamy [2002] “A Dildo Can be a Weapon” ..................................................... 18
Bolduc and Bird v. R. [1967] (P236) “Watching is not an assault” ......................... 18
R. v. Cuerrier [1998] (P241) “Obligation to warn re: serious harm” ....................... 19
Johnson v. R. [1977] (P248) “Entering = Breaking and Entering” .......................... 19
R. v. Lohnes [1992] (P253) “External Manifestation of Disturbance”..................... 20
Fagan v. Commissioner of Metropolitan Police , [1968] 3 All E.R. 442 (C.A.) (P269)
, [1979] 1 S.C.R. 195 (P274) “Duty to identify yourself” ..................... 22
, [1983] 1 All E.R. 978 (P272) “Set Fire to Mattress”............................ 22
Thornton v. R , [1993] 2 S.C.R. 445 (P285) “Knowingly donating infected blood” . 23
R. v. Browne (1997), 116 C.C.C. (3 d ) 183 (Ont. C.A.) (P286) “Swallowed cocaine:
Criminal Law 3
Stephenson v. State (1932), 179 N.E. 633 “KKK leader convicted” ........................ 25
, [1959] 2 All E.R. 193 (P333) “Bayonet wound was only one cause” ... 25
., [1978] 1 S.C.R. 506 (P304) “Contributing Kick” ............................ 26
, [1993] 3 S.C.R. 306 (P324) “M1: Substantial Cause” .................... 26
R. v. Ortt (1969), 6 C.R.N.S. 233 (P359) “Infer, don’t presume, intent from acts” . 27
Re S.94(2) Motor Vehicle Act (B.C.) (1968), 48 C.R. (3d) 289 (S.C.C.) (P409) ...... 28
, [1971] S.C.R. 5 (P368) “Statute does not require mens rea” 29
R. v. City of Sault Ste. Marie , [1978] 2 S.C.R. 1299 (P380)..................................... 29
, [1993] 2 S.C.R. 5 (P351) “MR for fraud: subjective” ....................... 29
, [1947] 1 K.B. 997 (P485) “Intent:Motive:Duress” .............................. 30
R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.) (P493) “Anti-
French Pamphlets: Willful more certain than reckless” ........................................... 30
., [1979] 2 S.C.R. 821 (P479) “Kettle bomb: No Motive” ....................... 31
R. v. Hibbert , [1995] 2 S.C.R. 973 (P489) “Forced to lure tenant to his death:
J. Hall “General Principles of Criminal Law” (P479) “Motive excluded” ............... 31
[1927] 159 N.E. 390 “The smiling doctor” .................................................. 32
Rowe v. The King (1951), 100 C.C.C. 97 “Slippery when armed” ........................... 32
Criminal Law 4
R. v. Smith (1979), 51 C.C.C. (2d) 381 (Sask. C.A.) (P463) “Deerhunter” .............. 32
., [1987] 2 S.C.R. 636 (P438) “Pool hall robbery: Obj. Foresight of
R. v. Nygaard and Schimmens (1989), 72 C.R. (3d) 257 (P468) “Collection Goons”
, [1990] 2 S.C.R. 633 (P453) “Trailer robbery/murder: Subj.
R. v. Blondin (1972), 2 C.C.C. (2d) 118 (B.C.C.A.) (P513) “Scuba tank of hash:
. (1985), 45 C.R. (3d) 193 (S.C.C.) (P508) “Terrorized girlfriend” . 34
R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. C.A.) (P516) “Heroin in luggage:
R. v. Duong (1998), 15 C.R. (5 th
) 209 (P521) “Harboring fugitive: W. Blindness” . 35
R. v. Vinokurov (2001), 156 C.C.C. (3d) 300 (e-reserve) “Stolen Property:
R. v. Harding (2001), 160 C.C.C. (3 rd
) 225 (e-reserve) “Anti-Muslim pamphlets: W.
R. v. Krushel (2000), 142 C.C.C. (3d) 1 (Ont. C.A.) (P586) “Harassment of Ex:
, [1994] 2 S.C.R. 484 (P596) “Objective foreseeability of bodily harm”37
Commission (Positive Act) v. Omission Standard of Departure .............................. 38
Criminal Law 5
R. v. Creighton , [1993] 3 S.C.R. 3 (P563) “Coke injection: Objective, Mrk.
Criminal Law
Criminal Law Course Summary
Introduction
Actus Reus
The actions of a crime.
Mens Rea
A guilty mind
States of mind o criminal intent (meaning to cause a crime) o recklessness (acting with knowledge of risk) o willful blindness o criminal negligence
Self defense involves actus reus without mens rea
AR + MR = Criminal Liability
Manslaughter
Unlawful act manslaughter o Death caused while committing an unlawful act o Example: Smithers kicks Nettle - Assault caused death. o Example: Jobidon kills man during consensual fistfight. Public Policy.
Death caused through negligence.
Source of Canadian Criminal Code
Canada's Criminal code based on India's code.
Has only been revised once since 1892.
Interpretation helped by case law.
6
Criminal Law 7
Aims and Purposes of Punishment
Theories of Justice
Retributive
Utilitarian/Humanitarian
Retributive Theories of Justice (focus: criminal)
Kant o It is self-evident that the desert of crime is punishment. o ‘Juridical punishment can never be administered merely as a means for promoting another good … For one man ought never to be dealt with merely as a means subservient to the purpose of another.’ o If society fails to punish a criminal, it sanctions his principles and thereby becomes particeps criminis o Culpability of the offence
Hegel o Other factors to consider beyond offence (still retribution)
Utilitarian/Humanitarian Theories of Justice
Utilitarianism (focus: society) o Since punishment consists in the infliction of pain, it is, apart from its consequences, an evil. o Ends served by punishment: general deterrence, specific deterrence, isolation, social peace, reformation, denunciation
Humanitarianism (focus: criminal)
2
1 o Reformation of the criminal
Holmes o Retribution is ‘only vengeance in disguise.’
Stephen o The criminal law stands to the passion of vengeance in much the same way as marriage to the sexual appetite (social peace)
C.S. Lewis: Critique of the Humanitarian Theory of Justice
‘I urge a return to the traditional or Retributive theory not solely, not even primarily, in the interests of society, but in the interests of the criminal.’
‘My contention is that this doctrine, merciful thought it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being.’
‘Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere
1 Hart distinguishes between the characterization of certain types of conduct as offences (denunciation) and punishment. [handout]
2 But see C.S. Lewis critique.
Criminal Law of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a ‘case.’’
8
R. v. Sweeney [1992] (P1120)
Ontario Court of Appeal, Wood J.A.
20 yr-old caused death while driving drunk. Gets high sentence (4.5 years) which is reduced on appeal. Proper accountability (aggravating and mitigating factors) are more important than blind consistency.
With regard to youthful offenders, the longer the sentence, the less likely reformation is to be. High sentences can also backfire through societal rebellion, indifference, lack of perspective, or the reluctance of juries to convict.
Wood J.A.
‘the moral culpability for the offence of impaired driving simpliciter is the same as that of the same offence, committed by the same individual which causes either death or bodily harm to an innocent victim … That is because, apart from the personal circumstances relating to that offender, the moral culpability of both offences lies in the intention to drive a motor vehicle after having voluntarily consumed more alcohol than the law permits, together with a reckless disregard for the foreseeable consequences of such driving.’
‘if retribution is to become a principle by which the severity of legal sanctions is to be determined in this country, then let Parliament say so in language which is clear and unequivocal and which can withstand close scrutiny under s.12 of the
Charter of Rights and Freedoms
.’
R. v. C.A.M. [1996] (P1128)
Supreme Court of Canada
Lamer C.J.
‘In my view retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be ‘just and appropriate’ under the circumstances.’
‘Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct.’
Lamer welcomes victim statements, to be used in assessing sentencing.
S.718 Sentencing
S.718(1) Fundamental principle of sentencing
Dragoljub Cetkovic (1987)
Princeton genius from Yugoslavia gets depressed and places cyanide tea bag in grocery store.
Criminal Law
Charged in New Jersey with recklessly endangering life.
Considerations in sentencing: o Incapacitation o Deterrence
Can irrational people be deterred?
Specific or general deterrence? o Rehabilitation o Retribution o Lack of remorse, malice? ( mens rea )
9
Goldstein (1971, Handout)
Criminal law is only one of the many institutions designed to control human behavior by discouraging it. It is a last resort.
Ex: Decriminalizing pot. Still illegal, but perhaps fine instead of criminal record.
Hart, H.L.A. (1968, Handout)
Instead of using criminal law for control/deterrence, use non-legal institutions, such as education, churches, unions, etc.
Condemning/denouncing behavior is done by sanction, criminalization, not by punishment itself.
Ryan (P105)
Punishment is an evil, to be used at a minimum and then only with justification.
Morton (S+D P108)
Calls criminal trial a contemporary morality play. Tension about what people should be responsible for. Ex: Dudley v. Stevens (Speluncean Explorers - Duty to sacrifice life rather than commit murder.)
Religion and criminal law serve the same moral purposes. External and internal
(conditioning) controls. Prevents crime by ordinary citizens through conditioning, but does not have an effect on extraordinary citizens.
(P118) Certainty of detection is more effective than a higher penalty. Ex: Capital punishment has very little deterrent effect.
Criminal Law 10
Sources - Code v. Common Law
R. v. Sedley [1663] (P1) “Crazy Flasher Guy Convicted On Morals”
Guy flashes from top of building, urinates in bottles and throws them down.
Though there was no law against such behavior, Sedley was convicted through the king’s mandate as keeper of the morals of the public.
Frey v. Fedoruk (P3) “Peeping Tom Not a Criminal”
Frey was a peeping-tom caught outside a window, arrested and temporarily imprisoned. The trial judge and B.C.C.A had decided that peeping could incite violence and was therefore a criminal offense.
Frey sues for false imprisonment, because peeping was not a crime. Note: After this decision, loitering at night was made a crime under s.177.
The Supreme Court doesn't think it is safe for judges to decide what constitutes a crime, based on its potential to incite other crime. Crimes must be written down or previously decided at common law to be punishable. Lots of acts (free speech, adultery) might incite crimes, but are not crimes themselves.
The Criminal Code now states (s.9) that only crimes written in acts can be punished, and not those derived from common law precedent.
Commonwealth of Penn. v. Mochan [1955] “Caller ID’d - Morality”
Pennsylvania, 100 A.D. (2 nd ) 788
Defendant telephoned a married woman at all hours, lewd language, repeated harassment.
Though there were no law or cases against it at the time, Mochan was punished by the court, contrary to the Frey decision.
According to the common law, whatever is injurious to the public morality is a misdemeanor at common law.” Considering the broad nature of this rule, who controls the judges and how does the public really know what's prohibited?
Criminal Code Sections Re: Harassment
CC s.372(1) prohibits false messages.
CC s.372(2) prohibits indecent phone calls. Summary conviction offense. (1972)
Enacted because the old s.264(1) (Uttering threats) was not relevant to Mochan.
CC s.372(3) prohibits repeated phone calls without excuse.
Summary conviction
< 2 yrs.
Provincial penitentiary
Subpoena instead of arrest warrant; a summons demanding that the accused appear in court.
Criminal Law 11
Professor J. Willis [1950] (P5) “Use the Common Law”
Dislikes Frey decision. Thinks new offenses that are contra bonos mores (against good morals) should be punishable using common law sources.
The Supreme Court has chosen a less elastic route of nullum crimen, nulla poena, sine legel (no one will be punished for anything that is not expressly forbidden by law.
Note: Five years later, s.9 of the code fully excludes common law crimes, though s.8 saves common law defenses.
Advantages of Narrow Statutes
Narrow statutes can exclude some offenders from punishment, but would prevent frivolous charges.
The specific points might also outline certain very serious elements of a crime.
Criminal Law 12
Interpretation - Strict Construction
Strict Construction
If language is ambiguous, it is interpreted in favor of the accused.
Digression on Attempts
An attempt begins when preparations end. People are not punished simply for mens rea, but mens mea IS emphasized.
Pushing arrest closer to crime allows people time to change their minds.
Arresting earlier in process promotes a policy of enforcement.
Frey v. Fedoruk “Crimes Must be Written Down”
Socially undesirable behavior is not a crime in itself. The courts are not entitled to create crimes. Principle of legality requires that crimes be written down.
S.177: defines prowling as a crime.
S.2: defines night as 9pm-6am
S.264: Harassment: Stalking should not be extended to this case, because that was not the intention of the code.
Law Reform Commission: Categories of Offenses (P161)
Felony: Called an indictable offense in Canada
Misdemeanor: Called a summary conviction in Canada (approx. 6months)
Hybrid offense: Combination of indictable offense and summary conviction.
Function of the judge is to decide the law. Function of jury is to decide fact.
R. v. Goulis (1981) 20 C.R. (3rd) 360 “Benefit of Doubt to Accused”
Ontario Court of Appeal
Strict construction discussion. If an ambiguous penal provision is reasonably capable of two interpretations, the one more favorable to the accused must be adopted.
In the case of a hit and run, where the driver intentionally hit another car and then drove off, the driver was not leaving the scene of an ‘accident’, because there was no accident.
R. v. Pare (1987) 2 S.C.R. 618 “Unlawful domination”
Teen (17) sexually assaults boy (7), then kills him 2 minutes later.
Charge of 1st degree murder depends on the act being committed WHILE committing an indecent assault. CC s.214.5(now s.231.5)
Strict construction can be used with common sense towards rational results. Here, in its strictest sense, it might have resulted in murder 2. Questions of freedom vs. imprisonment (or death) require sensible use of the rule of strict construction.
Wilson J. decided to consider both acts part of one criminal transaction. The intent of strict construction was to soften excessive Draconian punishments,
Criminal Law 13 which doesn't apply here. The unlawful DOMINATION was constant. In addition, waiting to commit the crime makes it deliberate and even more serious.
Sklar thinks that the further away from the scene, the less the domination seems to be apparent. Less s.231(5). More plain and deliberate (pre-meditated in U.S.A.).
R. v. Muchikekwanape [2002] 166 C.C.C. (3d) 144 “While committing”
Manitoba Court of Appeal
Woman was found dead in river with lacerations in genital area. Expert evidence found that lacerations occurred at or after death. The accused denied that he killed her, and that if he did kill her then there was reasonable doubt as to the time of the assault.
Judge instructed the jury that if they thought the accused killed the deceased, he would be guilty of 1st degree if he did it while committing sexual assault, even if deceased had died during or before assault. Single continuous transaction. These instructions were found to be correct. Assault and murder inextricably intertwined.
Dissenting judge points out that if she was already dead, he is guilty of
"interfering indecently with a dead body", which is no longer sexual assault.
Question - What if he didn't know she was dead? That would be an attempted sexual assault, and enough for 1st degree murder under 231(5).
R. v. Mac [2002] “Strict Construction Only If Ambiguous”
Supreme Court
Man is charged with possession of forger's tools. Intent to commit forgery with tools ADAPTED to forgery. Adapted can mean suitable for or it can mean modified for. Tools in question had not been modified, so he would not be guilty under that interpretation.
The court held that there was no ambiguity here because of the French version, so strict construction could not be used. The French version of another article
(s.342.01) uses modifié, and in this article (s.369b) uses adapté. Here it must mean ‘suitable for’, and Mac is therefore guilty.
Sklar: Someone’s liberty is dependent on the translation department, which may have chosen these words arbitrarily!
Criminal Law 14
Innocence and Proof
Woolmington v. D.P.P [1935] “Burden of Proof Not for the Accused”
House of Lords
Wife left man. Man sawed off shotgun, went to wife's mother's house where he argued with and shot wife. He claimed trying to scare her by threatening suicide, when the gun went off accidentally.
Judge advised the jury about intent. If he intended to kill her then he is guilty of murder, otherwise it would be manslaughter or acquittal. He also placed the burden of proof on the accused to refute or mitigate the murder charge, assumption of malice.
On appeal, it was decided that the judge had erred in placing the burden of proof on the accused. Assumption of innocence, reasonable doubt.
P81 "in the web of the English Common Law, the golden thread has been the notion of innocent until proven guilty."
Other Burden of Proof Cases
Greenacre case was the last precedent with regard to burden of proof. Until 1907 there was no proper appeal for criminal cases such as that.
M'Naughten case was the first insanity defense. Exception in that the burden of proof then falls on the accused.
R. v. Osolin [1993] “Burden on Accused to Justify Proposed Defense”
Supreme Court of Canada
Accused charged with sexual assault. The trial judge refused to instruct the jury on the accused chosen defense of "honest but mistaken belief in consent", because the complainant was an “eager, though not active participant.”
Accused does have some burden in this case, of proving that he has a valid defense. He must produce some evidence that creates an air of reality about the defense. Not a burden of proof, but an evidentiary burden.
The judge (as gatekeeper) decides what evidence/defenses the jury should be presented with. A reasonable jury might acquit on a proper defense.
Supreme Court can decide as a matter of policy that the burden of proof should shift to the accused in any given defense.
Daviault (Burden Shifts to the Accused)
Sexual assault, mutual drinking, woman was elderly and wheelchair-bound; the accused was on top of her. He argued that he was so drunk that he did not know what he was doing, that he was an automaton.
In controversial new law, the court decided that this was a total absence of mens rea and acquitted. The trial judge said he thought the accused was probably guilty, but had reasonable doubt. The Supreme Court upheld the acquittal, but
Criminal Law 15 established that the burden of such a defense would rest on the accused from then on.
Exception to Woolmington, Osolin.
Allen C.K. (P83)
Says property and freedom should both be protected with the same zeal.
The jury doesn't need to be more careful in a criminal case than a civil case, but must be more convinced. (Beyond a reasonable doubt) There is no presumption of innocence in a civil case.
Ex: 50.1% certain is about enough in civil cases vs. about 95% to 100% in criminal cases.
Wigmore (P83) “Assumption of Innocence”
Despite the fact that a man has been arrested and indicted, he walks into court innocent. His arrest must not be held against him.
R. v. Lifchus (P87) “Courts Must Explain Reasonable Doubt”
Law reform commission (P84) thought reasonable doubt did not need to be explained to juries. Trial judge in this case followed that example by framing the words ‘doubt’ and ‘reasonable’ as ordinary, everyday words.
Supreme Court (Cory J.) disagreed and outlined a sample set of instructions that might be told to a jury. Emphasized are that doubt must be based on reason, connected to evidence, not based on sympathy or prejudice. Not possible to prove until certainty, simply beyond reasonable doubt.
R. v. Starr [2001] “Courts Must Also Discuss Absolute Certainty”
Iacobucci J. allowed the appeal, because the trial judge had failed to properly instruct the jury on the difference between balance of probabilities and absolute certainty. The trial judge had also said that the words ‘reasonable doubt’ have no special connotation.
L'Heureux-Dubé thought the trial judge had conformed to the criteria from R. v.
Lifchus (though Lifchus had not yet been decided), but had failed to discuss absolute certainty vs. reasonable doubt.
R. v. Jackson [2002] “Timid Jurors Speech – Apparently Fine”
Ontario Court of Appeal, 163 C.C.C. (3d) 45
Example of a questionable charge to a jury. "Timid jurors"
People v. Feldman [1947] “Poisoner Free, Improper Instructions”
Court of Appeal, 71 N.E. 2d 433
Feldman got away with poisoning his wife and mother-in-law because of improper instructions to jury.
Criminal Law 16
AR Interpreting Unlawful Acts
Williams, Glanville [1983] (P186) “Actus Reus Must Exist”
Distinguishing between day-dream and fixed intention etc. requires actus reus.
Hutt v. R. (P187) “Narrowly Define Ambiguous Words – Ex:Solicit”
Plainclothes policeman in an unmarked car stopped near prostitute. She smiled, he smiled. She got in the car and once inside offered her services.
s.195(1) o Actus reus - soliciting in a public place o Mens rea - for the purposes of prostitution
Accused had not argued that a car is not a public place. The judge (Spence J.) thought that this would have decided the case, but would not be considered.
Legislation was later changed to include cars.
The meaning of 'solicit' was at issue. Dictionary (persistence), history of legislation was used (thread of public inconvenience). The definition was narrowed, making it extremely difficult to prosecute prostitutes until the legislation was changed. In requiring pressing and persistent behavior, the criminal law seeks to confront only behavior that inconveniences society.
Appeal allowed.
(P194) S.175 replaced by s.195, and then with s.213. The new legislation changed the actus reus in the definition of public place and the mens rea in the intent to solicit or enjoy. The john and the prostitute can now both be charged.
Note: S.213 was challenged on 2b of the Charter (freedom of expression) in R.v.
Di Giuseppe . It was found in violation. In the prostitution reference case, it was saved 5-4 by s.1 as a reasonable violation (the Oaks test.)
Freedom of Expression
In Canada, almost everything is protected speech, whereas in the US, hard core pornography (for example) is not protected speech.
In Canada, s.1 saves many of the provisions that violate s.2b.
R. v. di Giuseppe [2002] “Indecency, Prostitution Are Not Vague”
Ontario Court of Appeal, 161 C.C.C. (3d) 425
Offense: Keeping a common bawdy house, dancing and sexual conduct. S.197 defines a bawdy house. S.210 criminalizes keeping, residing in, transporting someone to a, and procuring in a bawdy house.
Language of a statute has to be clear enough that a reasonable person could understand it. ( Frey v. Fedoruk
) Are the terms ‘acts of indecency’, or
‘prostitution’ vague enough to cause uncertainty and therefore in violation of s.7 of the Charter?
Sharpe J.A. found that the indecency test should be one of community standards.
(see Butler case) Experts on standards (sociologists, academics) testify, courts make the decision.
Criminal Law
Ascertaining an area of risk: The owner of a bawdy house is aware that the business may be construed as indecent. The vagueness of the statute is not an issue. Held for the crown.
P167-173
17
J.F. Stephen: Liberty, Fraternity and Equality, 2
nd
ed., 1874 (P167)
There are acts of wickedness so gross and outrageous that self-protection apart they must be prevented as far as possible at any cost to the offender and punished if they occur with exemplary severity.
John Stuart Mill: On Liberty, 1858 (P167)
The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others.
Canadian Committee on Corrections (Ouimet Report, 1969) (P167)
No act should be prescribed unless it is substantially damaging to society.
No act should be criminal where it could be adequately controlled by other means.
No law should do more damage than it was designed to prevent.
Echoes Goldstein and Hart. Notice that the language here is very strong, perhaps too strong.
Law Reform Commission, 1976 (P169)
The criminal law is a blunt and costly instrument. It should be of last resort and stick to criminalizing things that are really wrongful. So violence and harmful dishonesty should be criminalized but anything short of that should not be. Also echoes Goldstein and Hart.
N.D. Walker: Crime and Punishment in Britain, 1968 (P170)
Talks about borderline cases between the criminal and the civil law, most of which involve sexual conduct. Adultery, for instance, is criminalized in certain jurisdictions, notably in Italy. Homosexuality, abortion, prostitution, etc.
Borderline crimes that are not sexual include attempted suicide (prosecuted in
England and Scotland until 1961) and negligent injury (apparently criminal in
Canada). Bigamy might be an example of crime which is not longer in need of criminalization. Of course, the use of narcotics is a signal example.
The discussion here really focuses on victimless crimes, which are hard to enforce, because there are no complainants. Police have to seek out the crimes or go under cover. Sklar thinks that this is not only costly, but brings justice into disrepute.
Criminal Negligence (P171)
An absence of a state of mind, not a crime in itself.
Criminal Law 18
AR Assault, Sexual Assault
Jobidon (P219) “Can’t consent to serious hurt or non-trivial harm”
Barfight gets taken outside for consensual fight. The accused punches his opponent many times in the head. It is decided that the first punch rendered the opponent unconscious, and the others killed him.
The judge decides that there was no intent to kill or inflict serious harm, and
Jobidon was not aware that his opponent was unconscious. Acquitted, then convicted of manslaughter in the appeals court. (Killing during commission of an unlawful act. s.222 - Homicide / Assault)
Is consent vitiated in a fistfight? Was it assault under s.265?
Are there common law factors? o Sopinka J.: Stick to the criminal code. Court has overstepped its bounds.
S.9(a) says common law offenses are not criminal. Fistfighting is not a crime. Parliament can make it so if they would like to. Trial judge may have misconstrued evidence about the blows; if Jobidon knew about unconsciousness then consent would have been vitiated, but the Supreme
Court does not have jurisdiction to interfere with decisions of fact. P235,
236. o Gonthier (Majority) says:
s.9 says there are no more common law offenses, but it IS permissible to look to the common law in interpreting the code.
(P221)
England applies common law
s.8(3) says common law can be used for defense.
Sklar agrees with Gonthier.
Issues o 9a o actus reus and consent o looks to authorities, policies (knife fight cases involved vitiated consent. o Later cases have interpreted this case to mean: intending to cause serious or non-trivial bodily harm makes this a mens rea crime. This avoids people being imprisoned for life for accidental death in consensual fights.
R. v. Lamy [2002 ] “A Dildo Can be a Weapon”
Supreme Court of Canada, 162 C.C.C. (3 rd
) 353
Sexual assault, dildo caused bodily harm. Was dildo a weapon?
Bolduc and Bird v. R. [1967] (P236) “Watching is not an assault”
Supreme Court of Canada
Bolduc (obstetrician) invited his friend Bird to pretend to be a budding physician and watch a gynecological exam. The patient consents to the extra “medical” presence, only later finding out the truth. She pressed charges for assault.
Criminal Law 19
Hall J. held that she consented to the procedure that would have occurred (the nature and quality of the act) with or without Bird's presence. Bird is characterized as a peeping tom ( Frey v. Fedoruk .) Rex v. Harms was distinguished because there the act of sexual intercourse was fraudulently passed off as medical treatment. Bolduc was suspended, probably lost his license.
Spence J. (dissent): The consent was to a procedure with doctors present. That was not the case. She did not consent to being a spectacle. Spence ignores that language of the statute by disassociating the nature and quality of the act and going to s.230 (now s.265 - assault) In Hutt , Spence used narrow interpretation and policy.
Goldstein and Hart would advocate the majority decision in this case, feeling that crim law is to be used as a last resort. (Ex: a disciplinary committee could have been used. )
R. v. Cuerrier [1998] (P241) “Obligation to warn re: serious harm”
Is HIV positive, is told to have only protected sex and to tell his partners about his status. Cuerrier rejects advice and has sex with 2 people without telling them.
Charged under s.265.
Did the crown have to prove that the women contracted HIV? No, because he endangered their lives as described in s.268(1)
This conduct was aggravated assault. Fraud vitiates consent. Use the common law to 'inform' the concept of fraud. McLachlin doesn’t want to open the door to all frauds. It’s not criminal to promise a fur coat to someone in exchange for sex?
Progression of Seriousness in Assault
s.266 Assault (5 yrs)
s.267 Assault w. weapon (10 yrs)
s.268 Aggravated (14 yrs)
s.269 Unlawful Bod. Harm (10 yrs)
s.270 Assaulting Peace Officer (5 yrs)
s.271 Sexual Assault (10 yrs)
s.272 SA w. Weapon (14)
s.273 Aggr. SA (Life)
The most common form of manslaughter is death in the course of an assault.
AR Breaking and Entering
Johnson v. R. [1977] (P248) “Entering = Breaking and Entering”
Interaction of common law and code
Words in law don't always mean the same as words on the street. Legal fictions are created. Charged under s.348 "breaking and entering". Does this mean that
Johnson actually broke anything? No, an open window could mean a max 14 year sentence if he put his hand inside, max 7 years if he only attempts.
Criminal Law 20
Johnson entered a partially constructed building through a temporary opening (not yet a door.)
Common law had definition of burglary before 1892. Entrance by any artifice
(imposter), by any collusion, by any chimney (permanent opening for necessary purpose.) That which is not a ‘breaking’ is a fiction, a constructive breaking.
S. 350 definition of entering.
One interpretation is that breaking in the case of a temporary opening requires that the accused open it further. Dickson calls this wrong; it would give the skinny burglar advantage over the fat burglar. Appeal dimissed.
AR Public Disturbance
R. v. Lohnes [1992] (P253) “External Manifestation of Disturbance”
Supreme Court
Argued similar to Hutt, definitions, origins, statutory construction, narrow interpretation.
Porter was a loud and obnoxious neighbor. Lohnes lost this cool one day and yelled threats at him from his own home.
Held for Lohnes. Because the code requires it to occur in a public place, an external manifestation of 'disturbance' is required for charge. Mere emotional upset is not sufficient, but distracting people from their work is enough. Balance between the public's right to peace and tranquility, and the individual's right to express him/herself.
Ouillmet Report (Law Commission)
Any response would be preferable to imprisonment.
It has been argued that victimless crimes (prostitution, consensual fistfights) should not be prosecuted. Summary conviction offenses usually begin with a summons demanding that the accused appear in court. (i.e. not even serious enough for an arrest.) Police have to search for these crimes, going undercover and often pitting themselves against society. The code has been altered (s.213) in order to prosecute more successfully.
Criminal Negligence (P171)
An absence of a state of mind, not a crime in itself.
Sue Rodriguez
“ALS - Suicide”
Attempt to have assisted suicide declared unconstitutional. Cruel and unusual punishment, quality of death, and other reasons.
She had ALS (Lou Gherig's disease) and wanted options for when she would want help dying. Court split 5-4 against her.
Criminal Law
AR Omissions
21
Anglo-American approach
We don't punish mere omissions, no matter how monstrous that might be.
Quebec Charter of Rights and Freedoms
Not criminal but civil action can be brought by omissions.
Europe
1 month to 3 years for omissions.
Exceptions
Duty by contract (lifeguard).
Parental duty.
Duty by caregiver.
People v. Beardsley
(1907), 113 N.W. 1128 (Mich. S.C.) “Morphine
Mistress: Only moral duty”
Man has affair with woman (X) while his wife is away. X takes pills (morphine), he knocks them from her hand and stomps on them. X passes out. Though he must know that the pills were dangerous, he takes the woman downstairs and leaves her there. The staff find her dead. Charge of manslaughter.
Held that he only had a moral, not legal duty to care for her.
Today, you have a civil duty to protect your invitees/guests, in s.215(1)c(i) .
Duties can arise through relationships: protector, parent, caregiver, etc.
Fagan v. Commissioner of Metropolitan Police, [1968] 3 All E.R. 442
(C.A.) (P269) “Parked on Foot: Continuous act, not an omission”
UK
Guy drives car onto constable's foot and parks there. The constable yells for him to get the car off the foot. Fagan tells him to fuck off and wait. Eventually,
Fagan complies. Fagan is charged with assault.
Trial judges decide that he didn't intentionally drive onto the officer's foot, but held that he was guilty of assault.
The accused argued that the act (driving onto the foot) occurred without mens rea.
Principle of concurrence was not met. Mere omission cannot be an assault.
The court holds that this was a continuous act, continued until the mens rea was superimposed. Doing, middle (omission), end of the act (driving off).
P270-271 the obiter about leaving the scene of an accident is important. No continuous act -> no assault -> no manslaughter. (though there would be a charge of leaving the scene.)
Influence of British Cases o Jobidon and Brown were influenced by British and Welsh cases (consent issues).
Criminal Law 22 o Fagan and Miller will be influential as well, though British cases are suspect because they have no code. All common law crimes. s.9a.
Moore v. R.
, [1979] 1 S.C.R. 195 (P274) “Duty to identify yourself”
Cyclist seen going through light. Offense witnessed. (Pre-S.9(a))
Spence (majority) held that the accused did indeed have a duty to stop and identify himself to the policeman. S.129 obstruction. P276, 280 Duty of officer to ask, duty of citizen to respond . Matter of public policy, balancing the minimal personal interference with the protection of the public.
Dickson (dissent): Duties can only arise by statute or by common law. (P277)
Ref: Rice v. Conolly (right to remain silent) distinguished because no offense was witnessed by police. Moral/Social duty to cooperate is different than a legal duty.
No common law duty, no statutory duty in this case. Reciprocal/implied duty.
R. v. Miller
, [1983] 1 All E.R. 978 (P272) “Set Fire to Mattress”
UK
Kipper (squatter) sets mattress on fire with cigarette while sleeping and drunk, wakes up, goes into other room and goes back to sleep.
Convicted of arson (S.433) using negligence to establish the crime.
Ref: Fagan - Duty to act, continuous act.
Court held that he who sets into motion series of events , becomes aware of those events, is under a legal duty to try to alleviate damage to property. Mens Rea
(P274) English def. of recklessness?
Can this be applied to the hit and run example from Fagan? Well, not if it's distinguished because this is damage to property and not persons , arson and not assault. The rule would have to be extended.
Failure to prevent damages from a non-culpable act.
Code Provisions Regarding Duty
S.215
- Duty to provide the necessaries of life . Courts have been very liberal in their interpretation of this statute.
S.216
- (not a criminal offense, but a definition, attached to 215) - Duty to use reasonable skill and care when undertaking surgical or medical treatment.
S.217
- (not a criminal offense, but a definition, attached to 215) - Undertaking an act means finishing that act if omitting it might be dangerous to life.
S.80 - Breach of duty (Interesting that the penalty can reach 14 years, even without intent to cause harm. A message about taking care, some retribution.)
S.79
- Duty of care re: explosive .
S.263
- Duty to guard opening in ice .
Reasons for high penalties for intent
Deterrence
Mental blameworthiness (retribution, justification of penalty)
C.S. Lewis likes punishing people who are blameworthy, not deterring.
Criminal Law 23
Annotations to S.129
Guthrie case - Officer must have evidence that a crime was committed in order to require name and address of a person.
Lavin (sp?) case. Man was compelled to hand over radar detection device.
Moore is restricted to demanding name and address , and not other information.
Glanville Williams
- You don't have to say nothin' to no one.
Thornton v. R
, [1993] 2 S.C.R. 445 (P285) “Knowingly donating infected blood”
Giving blood to the red cross which is known to be infected is not an unlawful act , but does go against a legal duty. There is no specific statute that makes sex w. aids or donating blood w. aids a crime, but it is a crime to be careless with people's lives by failing to discharge a legal duty.
S.180 Nuisance - Unlawful act or failure to discharge a legal duty, endangers.
A duty imposed by law (a legal duty) can include duties arising from common law. Atkins' (Donaghue) neighbor principle (not to injure your neighbor.) This is a very broad duty, yielding uncertainty in the law. It is also strange to use tort law in a criminal context, bringing criminal sanctions instead of damages. P283
Must a duty only be found in a statute, or can they be drawn from common law?
Three courts convict Thornton on three different theories. o Trial judge says Thornton was involved in a medical procedure. (s.216) o Court of appeal uses s.219, crim. negligence w. duty from common law and s.180 (requires endangering of public, not just one person). o Supreme Court likes s.216 (not for medical procedure, but lawful act w. care.) They simply say it imposed a duty and then apply s.180.
Violation of 9a? The CA judgment, while odd (tort) might still be followed in the future. If common law duties can lead to criminal punishment, does this give rise to too many omissions? Does the common law simply illuminate here, as it did in
Jobidon, or does it create a new offense?
Note: Drug offenses are not in the criminal code, but in the Narcotics Act. Specific duties.
R. v. Browne (1997), 116 C.C.C. (3
cocaine: Binding commitments”
d
) 183 (Ont. C.A.) (P286) “Swallowed
Drug dealer swallows a bag of cocaine and gets very sick. When Brown knew that she was sick he told her that he would take her to the hospital and called her a taxi, which takes almost 15 minutes to arrive. She is DOA at the hospital.
Trial judge finds a legal duty under s.217 and uses it in s.219 (Death by criminal negligence), s.220.
Court of Appeal - S.217 An undertaking ranges from an assertion to a promise.
Max penalty is life imprisonment , so we interpret narrowly, only for binding commitments . No undertaking here, says the CA. For that matter, there is no evidence that the ambulance would have been any faster than the cab.
Criminal Law
AR Causation
24
Identifying causes
Voluntary act or omission (legal duty?) of accused must cause prohibited result.
(P306-307)
Causation required to be proved beyond a reasonable doubt.
There can be many contributing causes, too many to count. One must choose causes that are proximate , sensible and not remote .
Factual Causation
Ex: Host puts arsenic (slow working, as opposed to cyanide) in x's martini. While x is crossing the road, he faints from drunkedness and is run over. the only charge can be attempted murder, because alcohol was the factual cause. But for the arsenic, x would still have died.
Ex: Same host has cramp from arsenic, kneels in street and is run over. Arsenic is a factual cause with an intervening cause. Is it fair to hold the accused responsible for the result? Glanville Williams would say it is not fair if the result came from an unexected source.
Based only on factual causation, we would hold all defendants responsible for deaths, because but for the first act the death would not have occurred.
Legal Causation Principles
" Thin Skull " - Take victim as you find him. o Smithers (P310) (Faulty epiglottis, death from aspiration) o Shanks (P316) (Incredibly sick old man, shove, heart attack.) o Blaue (P317) (Jehovah’s witness refused blood transfusion)
Innocent agent o Michael (P308) (The child that poisoned the victim was an IA.)
Intervening cause (ex: negligent medical treatment) o Smith (P333) (Negligent med treatment is a foreseeable intervention.) o Jordan (P335) (Patient would have lived without the med. treatment) o Ethiopian python kills and eats unconscious robbery victim. o Fire spread by wind (god) in Oz.
Degree/extent of contributing cause required o Smithers (P310) (Manslaughter: Contr. cause outside de minimis range.) o Harbottle (P324) (Murder 1 – Substantial and integral cause.) o Nette (Manslaughter, Murder 2: Significant contributing cause.)
Statutory Causation Rules o S.222(5): Culpable homicide – Causing death by:
(c): causing someone to do something that causes their death.
(d): willfully frightening children or sick people. o S.224: Act or omission resulting in death, even if death was preventable. o S.225: Causing bodily injury, death even if caused by med. treatment. o S.226: Causing bodily injury resulting in (accelerating progress of) death.
Criminal Law 25 o S.227 (REPEALED) Comes from common law. Year and a day rule existed because of a lack of medical proof of causation of death after a long time. Today, we can keep people alive in comas, and also have better forensic techniques. o S.228: No culp. homicide by influence on the mind alone.
R. v. Michael
(1840), 9 C. & P. 356 (C.C.C.R.) (P308) “Child poisoned by laudanum”
UK
Mother can't care for children and nurse leaves them alone with a bottle of laudanum. One of the other young children gives the victim an excessive dose causing death by poisoning. Lots of other causes here. Mother's act becomes the purpose of liability.
Civil negligence for leaving children alone.
Since mother intended a lethal dose for the child, she is still guilty of murder.
If you desire a result and do something which brings it about, even if it does not happen the way you expect, you have still caused it .
Stephenson v. State
(1932), 179 N.E. 633 “KKK leader convicted”
Indiana Sup. Ct.
Head of Indiana KKK adbucted young woman and made her his prisoner for sexual purposes. She committed suicide. He was charged with 2 nd
degree murder
(would have been S.222(5)(c) in Canada), and found guilty.
R. v. Smith
, [1959] 2 All E.R. 193 (P333) “Bayonet wound was only one cause”
UK
Military brawl resulted in bayonet wounds to one man, who was dropped twice on the way to the aid station. His pierced lung was not noticed, leading to improper treatment, such as AR. The victim died.
Legal causation . o If at the time of death the original would is still an operating and substantial cause (even if other causes are also operating) death can be said to be a result of the wound. (S.225) o If the wound becomes part of the history because of the overwhelming presence of another cause (terrible medical treatment), the second cause is the legal cause.
Appeal dismissed. Smith is guilty of murder, sentenced to life imprisonment.
P335 Jordan should be distinguished on its facts. The wound in that case has almost healed when a drug killed that victim.
R. v. Kitching and Adams
, [1976] 6 WWR 697 “Organ donation not legal cause of death”
Manitoba man sustained fracture after being dropped on his head by two bouncers. He ended up in a vegetative state in a hospital. Bouncer charged.
Criminal Law 26
Held that causation was not broken by the resulting organ donation, even though the act of removing the kidneys caused death.
Smithers v. R
., [1978] 1 S.C.R. 506 (P304) “Contributing Kick”
One hockey player taunts another with racial slurs. After the game, the taunted player (Smithers) punched and kicked Cobbe, who fell down unconscious and died from aspiration of his own vomit, because of a faulty epiglottis.
Smithers is guilty. Temporal and medical evidence proved that the kick caused the vomiting . It's too bad for Smithers that Cobbe had a faulty epiglottis (thin skull rule.) Smithers was a contributing cause outside the de minimis range , and need not be the sole or proximate cause to convict on manslaughter .
Dickson (dissent): S.222(5)(c) Maybe Cobbe's stress caused the vomiting , and not the kick. Death caused by fear is not manslaughter. The jury must decide remoteness; if Cobbe had died because of the poor treatment received at the hospital, the chain of causation would have been broken. (P313) But see s.225.
R. v. Harbottle
, [1993] 3 S.C.R. 306 (P324) “M1: Substantial Cause”
Harbottle watched sexual assault and held down victim’s legs during murder, convicted of murder 1 under s.231(5) for forcible confinement and sexual assault.
Murder 1 requires substantial cause ,
Requirements for conviction under S.231(5): o Accused was guilty of the underlying crime (or attempt) of domination. o Accused was guilty of murder (intent to kill or bodily harm likely to cause death. See s. 229) o Accused was a substantial (essential, integral) cause of death; Must have played a very active (usually physical) role. o No intervening act breaking connection of the accused to the death. o Crimes of domination and murder were part of the same transaction.
R. v. Shanks (1997), 4 C.R. (5 th
) 79 (Ont. C.A.) (P316) “Shove of sick man was more than trivial”
Argument over cats leads to confrontation between an elderly heart attack and stroke survivor who was overweight, had diabetes and high blood pressure, and one of that man's neighbors. The elderly man was shoved to the ground and later suffered a fatal heart attack.
Unlawful act (assault) manslaughter is charged.
Factual causation: Did the shove cause the heart attack? Doctors say it probably would have happened anyway. o Although the medical evidence provides reasonable doubt, the defendant was convicted. The trial judge did not accept the medical evidence, and so it was not available to the Court of Appeal. (Smithers: Medical evidence does not have to be given much weight in causation.)
Legal causation: Was the shove more than trivial (outside the de minimis range.)
After the Nette change to 'significant', there might not have been a conviction here. Para 72: Trial judges have discretion in choosing the terminology?!
Criminal Law 27
Murder 2 is a less aggravated form of murder. The test belongs more in the manslaughter range.
R. v. Nette (2001), 158 C.C.C. (3d) 486 (e-
reserve) “Objective foreseeability for manslaughter”
Man breaks into house, hog-ties 95 year-old woman on bed (forcible confinement?) and leaves. Woman fell off bed, was constricted at the throat and suffocated on her dentures. Jury rejected 1st degree murder in favor of 2nd degree murder. S.229 reckless, death is likely.
Court rejected the ‘not insignificant’ test.
"More than trivial" from Smithers is seen as too harsh considering the test is objective foreseeability. The new test is “ significant contributing cause outside the de minimis range ” for manslaughter and murder 2.
Glanville Williams on Accountability
Concern about fairness when deciding accountability. How much influence did one man's act have on the death, such that it can be attributed to that man?
Ex: python case, left drowning in field case...
MR Subjective vs. Objective
Subjective test
Crown must prove that the accused knew the risk that he was creating. If a driver was distracted and lost track of speed, he would not be aware of the risk.
Objective test
Crown must prove that the accused should have been aware of the risk.
R. v. Ortt (1969), 6
C.R.N.S. 233 (P359) “Infer, don’t presume, intent from acts”
Drawing an inference is a matter of common sense.
Judges are often careless in using objective language in giving subjective instructions to juries.
Trial judge wrongly advised jury that they could presume intent from acts. The presumption is supposed to be innocence, not guilt. The jury can INFER intent from acts, but they cannot presume it. The more obvious a risk, the easier it is to infer knowledge of that risk, and hence intention to proceed in the face of it.
R. v. Mulligan
(1976), 26 C.R.N.S. 179 (P352) “Acts, utterances shed light on intention”
Accused repeatedly stabbed his wife, claimed he did not mean to cause her death.
It is misleading to speak of a man being presumed to always intend the natural and probably consequences of his acts. Subjective intent must be proved. Acts,
Criminal Law 28 utterances, and other circumstances may shed light on the intention of the accused.
R. v. Hundal
, [1993] 1 S.C.R. 867 (P350) “Subjectively, driver MUST have be en aware”
Dangerous driving. Subjective test indicates that the driver MUST have been aware of the risk he was creating.
Necessity
May excuse a crime that had actus reus and mens rea.
MR vs. Strict/Absolute Liability
Procedural Due Process
Ex: Fair trial, right to lawyer, no coerced confessions, trial by jury.
Substantive Due Process
A statutory definition of a crime is unconstitutional. Courts have power to oversee legislature, parliament.
Beaver v. R
., [1957] S.C.R. 531 (P360) “MR not required when pr etending to sell heroin”
3-2 decision, oft-quoted precedent.
Though they were selling sugar of milk, they represented it to be heroin. The statute catches this situation (or flushing of drugs) and does not require the drugs to be present. At the time, possession and sale of narcotics were not common.
Cartwright: Someone whose pharmacist accidentally gives them morphine would be guilty of possession under Fauteux's theory. This crime needs mens rea . IT is not a strict or absolute liability offense . The statute in this case is silent, but there is a mandatory sentence here, so moral culpability should be required. All criminal offenses require mens rea, subject to exceptions of subject matter (public welfare) or statute. (P362)
Fauteux (dissent): Sale of narcotics is a danger to public health and should be treated as if mens rea were displaced.
See R. v. Merritt
For crimes in the true sense (murder, burglary, arson), mens rea is subjective.
Re S.94(2) Motor Vehicle Act (B.C.) (1968), 48 C.R. (3d) 289 (S.C.C.)
(P409)
BC Motor Vehicle statute, normally a public welfare offense.
Minimum 7 day imprisonment for person who was driving with a suspended/revoked license.
P410: S.1 makes this an absolute liability offense, said the court.
Criminal Law 29
First time that the court has struck down an act of parliament, a criminal provision, on Charter grounds (s.7).
Any time that imprisonment is a possibility, the offense must be at least strict liability, if not mens rea. Otherwise, there would be charter violations.
R. v. Pierce Fisheries
, [1971] S.C.R. 5 (P368) “Statute does not require mens rea”
Statute did not contain mens rea language with regard to this offense. The actus reus is enough . Undersized lobsters were found in the warehouse.
Cartwright (dissent): This won't deplete the lobster industry. (He did not dissent in Beaver. He also judged Frey.)
R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 (P380)
Leading case. City charged with polluting Cannon Creek with chemicals. This is held to be a strict liability offense.
Public welfare crimes: environmental, food sale, labor, conservation, sale of liquor to minors, highway regulation infractions.
Dickson divides offenses into three categories: o Full mens rea offenses: When language indicates intent, offenses fall into this category. These offenses are criminal (penalties, stigma.) o Strict liability (presumed for public welfare): The crown proves actus reus ), a defense of reasonable due diligence is available, the burden of which lies on the defendant to prove on a balance of probabilities (>50%).
A person who is convicted does not have the stigma of being convicted of a criminal offense. (P370)
'Permit', 'cause' are strict liability words. o Absolute liability: When the language of the legislature makes it clear, public welfare offenses can fall into this category.
Negligence can be imported to public welfare offenses, which are not in the true sense criminal, which allows for a defense of due diligence.
R. v. Chapin, [1979] 2 S.C.R. 121 (P403)
Chapin was duck hunting within 1/4 mile of bait, contrary to the Migratory Birds
Convention Act.
Dickson found this a strict liability offense , based on Sault Ste. Marie. The accused took all reasonable care in avoiding negligence and she was acquitted without a new trial.
R. v. Théroux, [1993] 2 S.C.R. 5 (P351) “MR for fraud: subjective”
Mens rea test is subjective unless the actus reus is negligence.
Mens rea can be inferred from the act and circumstances.
Criminal Law
MR Intention
30
R. v. Steane
, [1947] 1 K.B. 997 (P485) “Intent:Motive:Duress”
UK
A British broadcaster in Germany was forced to broadcast propaganda. Initially he refused, but was then beaten and his family was threatened. He was charged by the British gov't for doing acts likely to assist the enemy with intent to assist the enemy.
Court found that knowing you will help the enemy does not imply desire to help the enemy. Desire makes criminal intent. P488 Judge wrongly distinguishes guilty from innocent intent. (assist the enemy, save family) (See Dickson in
Lewis for explanation) [N/A TO CDN CRIM LAW]
Duress is a motive. Justified motives can be used as defense, in common law, but not for treason.
Steane may only be useful for treason.
Duress
: Pressure applied by a person.
Necessity
: Pressure applied by circumstances.
R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.)
(P493) “Anti-French Pamphlets: Willful more certain than reckless”
Proposed construction of a French high school in Essex County. In order to encourage sympathy for the French, defendants released an anti-French flyer.
Charged with willfully (i.e. with intent) promoting hatred. S.319.
See Steane: Same mens rea? No duress here.
Does willfully mean intentionally (P494) or recklessly? o Beaver rule: If the statute is silent, there is no mens rea requirement. The serious nature of the offense makes it necessary to require mens rea, but recklessly can be used for a wide interpretation and easier prosecution.
Martin J.A.: Mens rea = Intending the act + Intending the result. (P495) o Willmott v. Atack (obstructing police) o R. v. Burnell (setting fire to mattresses) o Unless the statute specifies "willfully commits an act which causes", it probably refers to both the act and consequence as willful . (P494)
Recklessness (Subjective) : a person foresees that his conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about (Glanville Williams). Contrast to the woman who blew up a plane to kill her husband. She was not reckless (she was willful) wrt. the other passengers, because she was quite certain that they would die.
Intention: a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence . Foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it , then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose . His intention
Criminal Law 31 encompasses the means as well as [sic] his ultimate objective. The greater the likelihood of the relevant consequences ensuing from the accused’s act, the easier it is to draw the inference that he intended those consequences. The purpose of this process, however, is to determine what the particular accused intended , not to fix him with the intention that a reasonable person might be assumed to have in the circumstances , where doubt exists as to the actual intention of the accused.
Willfulness (Subjective): the word “willfully” does not have a fixed meaning, but I am satisfied that in the context of s.281.2(2) it means with the intention of promoting hatred and does not include recklessness .
Court held that the guy either intended to promote hatred or foresaw that it was certain to result from the pamphlets. Intentions can be direct or indirect. The trial judge erred in equating "intent to create controversy, furor, uproar" with "intent to promote hatred". There must be a new trial to decide which intention existed, since courts of appeal cannot decide matters of fact. (P500) Intent can be inferred from objective circumstances.
Lewis v. R
., [1979] 2 S.C.R. 821 (P479) “Kettle bomb: No Motive”
Tatlay disapproved of his daughter and son-in-law. On behalf of Tatlay, Lewis mailed a kettle rigged to blow up when plugged in. (Designed to kill with high likelihood.) Lewis and Tatlay were both charged with murder.
Defense for Lewis argued his lack of motive. (Payment had not been proven.)
Motive not necessary in determining mens rea . Lewis is guilty with mens rea if he knew the circumstances of the bomb. (Lewis had worked with explosives in
Tatlay's mine; there was circumstantial evidence that he made the bomb.)
R. v. Hibbert
, [1995] 2 S.C.R. 973 (P489) “Forced to lure tenant to his death: Duress”
Hibbert was coerced into going to an apartment building and calling a man down to the lobby to be shot.
S.21(1)(b) accomplice to the crime of murder.
Intention = Knowledge of consequences + Act which brings consequences.
Duress allows a defense to an intended act.
J. Hall “General Principles of Criminal Law” (P479) “Motive excluded”
Motive is excluded from mens rea. Morally neutral determination.
MR and Murder
Common Law Felony Murder
Common law origins of felony murder are suspect. Unlawful act deaths were split into murder and manslaughter. Eventually, only enumerated felonies dangerous to life were included in s.230 as unlawful acts that would make for murder when resulting in accidental deaths.
Criminal Law
Caruso
[1927] 159 N.E. 390 “The smiling doctor”
US case
Kills doctor that smiled nervously after arriving too late to save his son.
Caruso had time to deliberate, but not to plan.
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Rowe v. The King
(1951), 100 C.C.C. 97 “Slippery when armed”
Accused fled towards London from Windsor robbery. His taxi driver grew suspicious and tried to phone the police while stopped at a gas station. Rowe overheard the call and ordered everyone into the back room. The driver escaped into a washroom through a wooden door, the accused (accidentally?) fired the through the door and killed a different person whose presence was yet unknown to the accused.
S.260(a) (now s.230(d)) provided for a charge of murder: o “if he means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences in this section mentioned, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from such injury”
The accused was not being pursued by the police at the time of the shooting.
The court found that flight was subjective. (Flight if you think you’re chased).
R. v. Smith
(1979), 51 C.C.C. (2d) 381 (Sask. C.A.) (P463) “Deerhunter”
3 guys get drunk and go hunting, shooting mailboxes, etc. They end up at empty barn and one guy hears a gunshot. Smith reloads his gun and fires at the running victim, stands over him and kills him point blank.
Judge instructed that there was no planning to kill until the time of the argument.
The question - did he plan? Jury convicts on murder 1 (planned and deliberate.)
C.A. disagreed, finding deliberation but no planning. (Compare to Paré.)
A plan requires more than just a deliberate decision to kill .
Simpson v. R
. (1981), 20 C.R. (3d) 36 (P435) “Jury instructions for murder were too objective”
'Know or ought to know' allowed conviction for murder S.229 on objective grounds, though murder requires subjective mens rea . Trial council never objected. Here, a new trial is ordered because of the improper instructions to the jury. (Improper instructions are the reason for many overturned decisions.)
Crimes with high punishments or stigmas require proof of subjective mens rea.
686(1)(b)(iii) In criminal cases, grounds for appeal are not waived simply because objections were not made at the trial.
Vaillancourt v. R
., [1987] 2 S.C.R. 636 (P438) “Pool hall robbery: Obj.
Foresight of Death”
Unknown to the accused , his robbery accomplice had a loaded revolver. The accomplice shot a pool hall patron and escaped. (If found, he would be charged under 229(a)(i) or (ii) and 230(d). V was charged with murder 2 under 230(d).)
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Note: The gun need not be loaded to establish an armed robbery under s.230(d).
S.21(2) – Accomplice .
S.213(d) (now S.230(d)) Death caused in commission of an unlawful act .
Lamer prefers subjective test (P445 - highest stigma, penalty and degree of moral blameworthiness) but settles for objective foreseeability of death as the minimum requirement for constructive murder.
S.230(d) struck down as being in violation of s.7 and 11(d) of the charter, not justified under s.1 because it failed the minimal impairment test.
R. v. Nygaard and Schimmens (1989), 72 C.R. (3d) 257 (P468)
“Collection Goons”
Enforcers whack man in forehead repeatedly with baseball bat for not paying debts. Reckless as to whether or not death would ensue (s.229(a)(ii)) as well as planned and deliberate (s.231(2)).
Mens rea: Intention (planned and deliberate) to cause serious bodily harm that the defendant knew was likely to cause death. Recklessness is enough to convict for murder 1 . Jury instructions were not wrong.
Cory J.: Moral culpability in this case is not different than intent to kill.
R. v. Martineau
, [1990] 2 S.C.R. 633 (P453) “Trailer robbery/murder:
Subj. Foresight of Death ”
Accomplice to trailer robbery is convicted of murder because his partner shot the victims. The partner said "lady, say your prayers" before the woman was shot, indicating that her life was in danger.
Subjective foreseeability of death required for murder. Severe penalty should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. S.230
(a) and (c) violate charter, are not justified by s.1 and are of no force or effect . The provisions will remain in the code until changed or repealed by parliament.
L'H-D (dissent) denied the stigma distinction between manslaughter and murder, and advocated restraint in using the charter to strike down criminal legislation.
(accuses Lamer of trying to do as a judge what he could not do as pres. of the law reform commission in striking down s.230(d))
MR Recklessness, W. Blindness
Re The Zamora, [1921] 1 A.C. 801
Director of shipping company denied knowledge of contraband on ship.
Knowledge may be dangerous because it may embarrass my denials, protest.
Glanville Williams (P510)
Intent to cheat the administration of justice.
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R. v. Blondin
(1972), 2 C.C.C. (2d) 118 (B.C.C.A.) (P513) “Scuba tank of hash: Recklessness is enough”
Comes back from Japan with scuba tank filled with hashish. Makes incriminating statements in Vancouver, implying that he knew there was something illegal going on.
Awareness of risk has to relate to the specific crime in order to be sentenced with life imprisonment, as opposed to importing other items, such as cameras.
Must prove Blondin reckless specifically wrt. importing narcotics . (P515)
New trial ordered.
Recklessness, willful blindness and knowledge are all sufficient for mens rea .
Recklessness is easier to prove than WB. The crown burden is made easier.
Ref: Beaver . (Heroin: Mens rea required.)
Blondin case does not reflect current SCC thinking .
R. v. Currie
(1975), 24 C.C.C. (2d) 292 (Ont. C.A.) (P510) “Forged check: Jury instructions too objective”
Man cashes check in return for $5. Charged with uttering a forged document.
Was the defendant
’s suspicion aroused? Test for WB is subjective.
Trial judge made the mistake of saying "should have known/ inquired", even when discussing willful blindness.
Scenario: Woman coming back from vacation thinks someone slipped narcotics into her bag. Doesn't want to check her bag for it because that knowledge would make her sick on the flight. If she's not looking to cheat the administration of justice, then she may not be willfully blind, but reckless. (And is recklessness enough for mens rea?)
Sansregret v. R
. (1985), 45 C.R. (3d) 193 (S.C.C.) (P508) “Terrorized girlfriend”
Repeated terrorizing, confinement and rape of girlfriend
Reasonable care ( negligence ) standard is a basis for normal civil actions , not criminal penalties .
[Ignore paragraph 1 on P509]
Recklessness (Subjective: Buzzanga)
: “knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur”. Culpability justified by “consciousness of the risk and by proceeding in the face of it”.
Willful blindness (Subjective)
: “a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.” Culpability justified by “the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.” Willful blindness invalidates the former defense of unreasonable mistake of fact. ( Pappajohn )
Sansregret willfully blinded himself to the possibility of lack of consent.
Criminal Law 35
R. v. Sandhu
(1989), 50 C.C.C. (3d) 492 (Ont. C.A.) (P516) “Heroin in luggage: Recklessness NOT enough”
Coming back from India, heroin is found in jacket and wallet.
Story is that the heroin was put in the suitcase and wallet by a woman friend.
Woman flies in to testify that it was her boyfriend in India that put the drugs there.
Trial judge instructs jury that either recklessness or willful blindness would suffice to convict. Jury convicts.
Ont. C.A. says recklessness will not suffice . The requirement in Beaver was knowledge . Only willful blindness is like knowledge. Screw Blondin. Sandhu is a better argument.
R. v. Jorgensen, [1995] 4 S.C.R. 55 (P747)
Charged with knowingly selling obscene material under s.163(2)(a).
Crown must prove that the accused knew of the presence of the ingredients of the subject matter which as a matter of law rendered the exploitation of sex undue . Did the accused shut his eyes because looking would fix him with knowledge? No evidence of that here.
R. v. Duong (1998), 15 C.R. (5 th
) 209 (P521) “Harboring fugitive: W.
Blindness”
Accused charged with accessory after the fact after helping a murder suspect (L) under s.23(1). L told D that he was in trouble about Murder. D did not inquire further.
Court held D willfully blind and convicted under 23(1).
R. v. Vinokurov (2001), 156 C.C.C. (3d) 300 (e-
reserve) “Stolen
Property: Knowledge required”
Alberta. Possession of stolen property. Recklessness will not suffice. The statute requires knowledge.
Follows Sandhu. (though trial and appeal lawyers had not brought up Sandu issue)
Stuart/Delisle
Sandu does not articulate policy considerations. Recklessness and WB overlapp.
R. v. Harding (2001), 160 C.C.C. (3 rd
) 225 (ereserve) “Anti-Muslim pamphlets: W. Blindness”
Pamphlets and telephone messages in Toronto filled with anti-Muslim sentiments.
Prosecuted under willful promotion of hatred s.319(2). (Note: Free speech in USA allows hate speech, until clear and present danger. - Shank)
Defense: Didn't intend to include all Muslims, but only terrorists and radical fundamentalists. Intended to wake up Christians to evangelize. (See Buzzanga)
Criminal Law 36
Court held that hatred was intended , or he was willfully blind as to the result.
Both the trial judge and the 1st appeal court agreed that mens rea for willfulness requires intent . (Substantially certain result.)
MR Charter - Murder
Vaillancourt v. R., [1987] 2 S.C.R. 636 (P438)
Lamer said that the s.7 requirement of subjective mens rea would place in doubt the offense of causing death by unlawful act.
In Martineau objective constructive murder was held to be unconstitutional.
MR Charter - Bodily Harm
R. v. Desousa
, [1992] 2 S.C.R. 944 (P571) “Bottle toss: Objective f oreseeability of bodily harm”
Holding here was not manslaughter, but suggested the manslaughter holding in
Creighton.
S.269 Unlawfully causing bodily harm .
New Years Eve. Accused throws a bottle in an apartment during a fight. Bottle broke on the wall and a shard hit the complainant in the eye. Desousa charged under 269.
Sopinka: What is the mens rea requirement? o It is a predicate offense (underlying crime on which a more serious penalty rests), but doesn’t have the stigma or criminal sanction of subjective MR.
What is the unlawful act? AR, MR o Must be federal/provincial offense. o Not absolute liability (motor vehicle case, but could be strict liability).
Can’t violate s.7 of the charter. o Must be a dangerous act (usually violent.)
MR: O bjective foreseeability of bodily harm ( more than trivial or transitory ) held to be constitutional in 222(5)(a) and 269. (P575)
P574 Sopinka discussed Smithers. Objective foreseeability? P314 Dickson statement held to be invalid, but Smithers is still good law.
No dissent in this case. This is a retreat from Martineau.
MR Charter - Manslaughter
R. v. Creighton
, [1993] 3 S.C.R. 3 (P579) “Cocaine injection: Obj. foreseeability of bodily harm”
Non-violent unlawful act. Drug offense in which the accused injects cocaine into the arm of the victim, who overdoses. Use of a narcotic is considered trafficking.
No evidence that Creighton departed from the standard of care of the reasonable drug user. (Crim. Negligence.)
This test for manslaughter becomes objective foreseeability of bodily harm in the underlying act . Marked departure .
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McLachlin: We don't take into account the personal characteristics of the individual. ( Gosset )
Similar to L'H-D discussion of felony murder development, and the majority in
Vaillancourt, Martineau that upheld the constitutionality of the provision. Stigma, penalty. (P581)
McLachlin "Let's save the thin skull rule." (contra Lamer and appellant) But a reasonable person would not be able to foresee the frailty of the thin skull victim.
(P584)
Dissenters (Lamer, Sklar) wanted objective foreseeability of death. (This would throw out the thin skull manslaughter holding in Smithers as being unconstitutional.) o Gravity of offense
Stigma.
Punishment proportionate to moral blameworthiness.
Intentional harm should be punished more severely than unintentional harm. o Symmetry (if MR=Consequence, Foreseeability of death makes sense)
Risk of bodily harm different in manslaughter.
Symmetry is a fundamental principle of justice. Con: It has exceptions so perhaps it’s not so fundamental.
Foreseeability of death would invalidate the thin skull rule.
R. v. Krushel
(2000), 142 C.C.C. (3d) 1 (Ont. C.A.) (P586) “Harassment of Ex: Foreseeability of Fear”
Harassment of his former common law spouse.
S.264(1) - Harassment that causes people to reasonably fear for safety.
Mens rea (See Desousa ) Objective foreseeability of fear .
MR Charter - Aggravated Assault
R. v. Godin
, [1994] 2 S.C.R. 484 (P596) “Objective foreseeability of bodily harm”
Aggravated assault causing wounding.
Follows Desousa , Creighton . Intention to apply force, objective foreseeability of bodily harm .
MR Criminal Negligence
S.219 is not a criminal offense. It is always paired with other offenses. (ex: crim negl. causing death)
Objective crimes
Dangerous driving ( Hundal ) marked departure from the standard of care of reasonable driver.
Ice hole non-watching.
Criminal Law
Criminal Negligence v. Civil Negligence
The Threshold for Negligence: The Standard of Departure o Criminal: Marked and substantial/significant departure. o Civil: Below the standard of care. (Less departure than in criminal test.)
The Standard of Proof o Criminal: Proof beyond a reasonable doubt. o Civil: Proof on a balance of probabilities.
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Commission (Positive Act) v. Omission Standard of Departure
In R. v. Tutton and Tutton , though the Ont. C.A. required a higher standard of departure for criminal negligence founded on omission, the S.C.C. held that the test was the same for both kinds of acts.
Criminal negligence (both commission AND omission) requires marked and substantial/significant departure .
R. v. Tutton and Tutton
, [1989] 1 S.C.R. 1392 (P545) “God says the boy doesn’t need insulin: Marked departure”
3-3 Decision [NO LEGAL SIGNIFICANCE]
Criminal negligence causing death (a form of Manslaughter)
Son needs insulin to stay alive. Religion does not preclude religious treatment, but the mother has two visions that tell her the boy doesn't need insulin. Doctors save the child once. Mother has another vision, stops the insulin again and the child dies.
Subjective (Wilson) mens rea would require knowledge of risk of death from actions. Much easier to prove objective (McIntyre) mens rea. 3-3 division over
219 requirement.
Test for criminal negligence is a marked departure from the objective standard .
H.L.A. Hart (P598)
Negligence. Subjective-objective.
Disagrees w. Glanville Williams
You can't deter people from carelessness, says GW. Hart says punishment will encourage care.
You can punish people for failing to take care , though it is recognized that there must be a marked departure from the standard of care exercised by the reasonable person. Criminal negligence requires a much higher standard than civil negligence .
Waite v. R.
, [1989] 1 S.C.R. 1436 (P559) “Playing chicken w. wagon:
Too subjective”
Killed 4 people by playing chicken with a hay wagon.
Trial judge advised jury that deliberate and willful understanding of the risk was necessary to convict in criminal negligence.
Criminal Law 39
Ont. CA and the SCC (even Wilson) ordered a new trial because the instructions were too strongly subjective sounding .
R. v. Creighton
, [1993] 3 S.C.R. 3 (P563) “Coke injection: Objective,
Mrk. Departure”
Unanimous obiter, that the criminal negligence test was objective , is now the law.
5-4 on factors to be taken into account. Marked departure is the standard.
McLachlin P566: Agrees w. Hart on objective standard, regardless of background or training . Assume no drug experience here. (Exception: Lack of capacity to understand risk or avoid the situation. See epilepsy)
McIntyre P549: Take into account the circumstances known to the person and ask if a reasonable person would act in such a way.
Lamer P567: Disagrees w. R. v. Gosset (Cop held to ordinary standard of average user of firearms.) and thinks in this case the reasonable person should be assumed to have experience w. drug use.
Callous indifference to life is a characterization that is punished as murder.
Meat Example:
Part A
Whereas in Desousa the act might have been an assault, this one was a public welfare offense. (Cartwright in Beaver - big difference between drugs and food.)
Contains willfully. Offense involves prison time.
Willfully? o Could be applied to the selling or to the selling (convict) and the sickness
(can't convict). o Negligence not enough here, because of the word 'wilfully'.
Objective foreseeability of bodily harm, neither trivial nor transitory. (Dangerous act.)
Part B
Thin skull rule.
