University of Windsor
Faculty of Law
CRIMINAL LAW AND PROCEDURE (1L)
SYLLABUS
2014/2015
Professor David M. Tanovich
1.
COURSE DESCRIPTION
This is a course about substantive criminal law in Canada. It examines a
number of broad themes that dominate criminal justice discourse in Canada
and around the common law world. Some of the themes include:
1. What is the purpose of criminal law? To what extent does that
purpose impact how we think about substantive criminal law
issues?
2. What constitutional limits are there on Parliament’s ability to
criminalize conduct?
3. What is the legitimate role of the courts in determining what
behaviour should be criminalized?
4. What relevant factors should be taken into account when
determining the limits of culpability (i.e. when we should hold
someone criminally accountable for their conduct)? Should
culpability be measured subjectively (did the accused know or
intend the consequences of their actions) or objectively (what
measures should the accused have taken to prevent the harm)?
5. Is gender, race, Aboriginality, poverty, mental illness relevant
to thinking about substantive criminal law? Why or why not?
6. What is the relationship between sentencing and substantive
criminal law? To what extent does sentencing give effect to the
purpose of criminal law?
Unlike other areas of the law, criminal law receives considerable attention by
Parliament and the courts and is influenced by Charter values such as equality,
autonomy, proportionality, dignity, and the presumption of innocence. As we
work through the materials, we will explore how well Parliament and the courts
have done to give effect to these values.
1
2.
LEARNING OBJECTIVES/OUTCOMES
As a first year course, one of the central objectives of this course is to provide
another context wherein students can learn and apply basic skills that will
enable them to “think like a lawyer” in any area of law. These objectives will be
facilitated and evaluated through readings, class discussion, and examination.
By the end of the course, a student should be able to:
1. Define cultural competence and recognize manifestations of racial and
gender bias in the criminal justice system;
2. Identify various critical schools of legal theory and recognize their
relevance to criminal law;
3. Identify the elements of substantive equality and its relevance to
criminal law;
4. Identify the constituent elements of a crime and distinguish crimes from
torts;
5. Identify how section 7 of the Charter has impacted the ability of
Parliament to criminalize conduct;
6. Articulate relevant principles of fundamental justice under section 7 of
the Charter;
7. Read a criminal statute; identify the basic elements of a criminal offence
(i.e. the act and fault); and defences such as intoxication, mistake of
fact, automatism, mental disorder and duress
8. Understand the elements of sexual assault and homicide;
9. Define and recognize the identifying features of femicide; and,
10.Make sentencing submissions in relation to an Aboriginal accused.
In order to accomplish these goals, it is imperative that you read the assigned
material and think about it before coming to class. You should come to class
prepared to answer questions. I have provided a detailed Syllabus for each
class and set of readings which provides relevant background information,
reading notes and key questions and issues that we will explore.
Many of the issues that we will explore in this class are personal, painful, and
complex. Given that all of you will come to this class with different lived and
learned experiences, not everyone will be on the same page. Therefore, it is
critical to ensure that everyone be given an opportunity to express their
understanding or perspective without fear of ridicule or unfounded criticism.
No one should feel uncomfortable in contributing to the dialogue. That said,
statements or opinions must be based on a reasoned analysis of the issue with
reference to the relevant social context or the materials assigned for class.
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3.
USE OF COMPUTERS IN CLASS
The use of computers in class for non-class purposes has become a serious
issue in Universities both in terms of its impact on learning and as a distraction
for both the Professor and fellow students. As a result, I have adopted the
following policy for my class based on a similar protocol developed by my
colleague Professor Kalajdzic:
Before each class begins, please disconnect all audible signals
on watches, computers, cell phones, or any other noisemaking
device. If you are using a computer in class, you should be using
it only for class work.
A recent study by three York and McMaster University professors found
that laptop multitasking hinders classroom learning for both users and
nearby peers, and results in lower grades. Out of respect for your
neighbours and for your own self-interest, therefore, please do not text,
read email, check your Facebook postings, or surf the net during class
time.1
4.
CLASSES
Monday (1:30 – 4:00 pm) 2100 (Fall and Winter terms)
5.
TEXT
All readings will be posted on CLEW.
The only required text is a Pocket Criminal Code. Given all of the recent
amendments to the Criminal Code, I would highly recommend a 2015 edition.
1
See Sana, Weston, Cepeda, “Laptop Multitasking Hinders Classroom Learning for
Both Users and Nearby Peers” Computers & Education 62 (2013) 24. The piece and
other related articles can be found at:
http://www.sciencedirect.com/science/article/pii/S0360131512002254
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6.
EVALUATION
1.
Mid-Term Exam (35%)
Date:
Length:
Format:
2.
DECEMBER 15, 2014 (9:00 am)
2 hour writing time
Open Book (only course materials – CLEW postings,
hand-outs, student notes & outlines will be permitted.
Annotated Criminal Code not permitted. Photocopies
of non-course materials even if only 1 page also not
permitted)
Unless special permission is granted, all exams must
be written electronically. Please ensure that you
download the relevant software when advised that it
is available.
Experiential Component (30%)
OPTION #1 Reflective Essay
Date:
Length:
Format:
The essay can be handed in any time during the Winter term
but the last date for acceptance will be March 31, 2015
15 pages
This essay provides you with an opportunity to apply one or
more of the background readings on critical thinking (see
below) to a case discussed in class (or one selected by you
and approved by me). I am looking for reflection on how
thinking about race, gender or more generally about
equality was either reflected in the judgment or how it could
have better informed the arguments and judgment.
Alternatively, the essay could examine the conduct of either
the Crown or defence counsel in the case and how cultural
competence was relevant to that conduct and what
difference it could have made in the case.
OPTION #2 Bystander Intervention Training/Reflective Essay
TBD
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3.
Final Exam (35%)
Date:
Length:
Format:
APRIL 20, 2015 (9:00 am)
2 hour writing time
Open Book (only course materials – CLEW postings,
hand-outs, student notes & outlines will be permitted.
Annotated Criminal Code not permitted. Photocopies
of non-course materials even if only 1 page also not
permitted)
Unless special permission is granted, all exams must
be written electronically. Please ensure that you
download the relevant software when advised that it
is available.
Numerical Grade Distribution
Letter Grade Range
A+ 90-100
A 85-89.9
A- 80-84.9
B+ 77-79.9
B 73-76.9
B- 70-72.9
C+ 67-69.9
C 63-66.9
C- 60-62.9
D+ 57-59.9
D 53-56.9
D- 50-52.9
F 0-49.9
The average grade for this course will be B (73-76.9) and individual grades will
be adjusted to conform to the B average.
Student Evaluations
Official student evaluations will take place in the last two weeks of the Winter
Term.
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7.
OFFICE HOURS
Available upon appointment
Office: Room 2123
(519) 253-3000 (ext. 2966)
tanovich@uwindsor.ca (e-mail)
@dtanovich (twitter)
http://athena.uwindsor.ca/law/tanovich (website)
Extended office hours will be posted in the week prior to each exam.
8. CLASS TOPICS AND READINGS
BACKGROUND READINGS FOR COURSE AND EXPERIENTIAL
COMPONENT
Richard F. Devlin, “Jurisprudence For Judges: Why Legal Theory Matters for
Social Context Education” (2002) 27 Queen’s LJ 161
Clark Cunningham, “The Lawyer as Translator, Representation as Text:
Towards an Ethnography of Legal Discourse” (1992) 77 Cornell L Rev 1298
Annotation
As noted earlier in the Syllabus, in this course, we will explore a number of
issues related to substantive criminal law including: what is a crime? What are
the constitutional limits on the ability of Parliament to criminalize conduct?
What are the essential elements of every crime that the Crown has to prove
beyond a reasonable doubt? Is there a role for the courts in determining these
elements? Is there a constitutional minimum standard? How should we
sentence offenders? How is race and gender relevant to these questions? Does
the criminal law privilege certain interests over others? What legal values
should guide courts in deciding substantive law questions?
In order to answer these questions, it is important to have some grounding in
legal theory. The Devlin article provides us with a brief summary of the various
theories developed over the last century from legal positivism to critical race
theory. As you read the article, ask yourself the following questions: (1) Why is
legal theory important; (2) Which theoretical perspective, if any, did you bring
with you to law school; (2) How has your exposure to the law and, in particular,
criminal law over the course of your first year changed which perspective(s)
offers the most accurate understanding of the interaction of law and our
criminal justice system?
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It is also important to understand the meaning of equality and cultural
competence in order to understand these questions and the purpose of this
course. The Cunningham article reveals the importance of cultural competence
to lawyering in the context of a traffic stop of an African-American and the
impact that understanding the incident as racial profiling would have had on
the relationship with the client and the law school clinic and construction of the
case.2 As you read the article, ask yourself the following questions: (1) What is
the significance of the metaphor of “lawyer as translator”? (2) What was lost in
translation? (3) Why was it significant? (4) What did you take away from the
article when you finished reading it and, in particular, that might assist you in
your work at CLA or LAW during law school?
You should try to work through this material over the first month of the course.
We will return to it throughout the course as we work through the various
topics. You will also be required to reflect on the readings in relation to our
course materials in a reflective essay due at the end of the course.
FALL TERM
INTRODUCTION
September 8 [Week 1]
What Is This Course All About?
Rosemary Cairns-Way, “Attending to Equality: Criminal Law, The Charter and
Competitive Truths” (2012) 57 Sup Ct Law Review 39
Reading Notes
Professor Cairns-Way sets out an equality theory of criminal law and identifies
its relevance in thinking about issues of culpability, blame and punishment. It
provides us with a theoretical framework to use in exploring many of the issues
in this course.
2
The incident involves an application of what is known in the United States as a Terry
stop based on the leading Supreme Court decision in Terry v Ohio 392 US 1 (1968). In
Canada, we have our own version of Terry stops. They are referred to as Mann
encounters based on the Supreme Court decision in R v Mann [2004] 3 SCR 59. Under
Mann, the police can detain an individual where they have reasonable suspicion that
the person is involved in criminal activity. A limited pat down is also permitted where
the police have reasonable grounds to believe that the person poses a danger. The
enabling of racial profiling by the Mann power is explored in Tanovich, “The Colourless
World of Mann” (2004) 21 Criminal Reports (6th) 47.
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September 15 [Week 2]
Examining Our History
R v Quong-Wing [1914] 49 SCR 440
R v Hubin [1927] SCR 442
Christie v York [1940] SCR 139
R v Klippert [1967] SCR 822
R v Drybones [1970] SCR 282
Reading Notes
What do we learn from reading these historical cases? A couple of thoughts.
First, we get a glimpse of how the law perpetuated/implicated injustice in a
number of contexts involving race, Aboriginality, gender and sexual
orientation. These cases are part of our legal culture and many are landmark
cases of injustice. Second, these cases provide us with a glimpse of what I call
the “architecture of judicial reasoning.” This architecture includes:
1. The narrow framing of the issue before the court to avoid having to
deal with the bigger issue of injustice or to achieve the result the court
wants to accomplish in the case;
2. The construction of the parties and/or the participants and how they
use language to support their approach to the case and/or the result
they want to reach;
3. Attempts to compensate for the failure of the law to equip judges to
deal with the bigger issues of injustice by creatively providing justice
through indirect means;
4. Simply refusing to apply the law or deferring to Parliament to resolve
the problem.
In reading these cases, ask yourself what we learn in thinking about applying
criminal law in the modern day context? To what extent are the same issues
replicated in modern jurisprudence?
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Cultural Competence
“Cultural Competence for Lawyers in Nova Scotia” Society Record (2012)
Reading Notes
Understanding our history of intolerance and current manifestations of
systemic bias are key attributes of a culturally competent lawyer. All lawyers
have an ethical and professional duty to be reasonably competent in the
delivery of legal services. 3 In law school, you will develop skills and a
knowledge base to learn how to read a case (e.g. the IRAC methodology –
identifying the issue, rule, analysis, and conclusion), distinguish facts and
cases, research, write, act ethically, and engage in oral advocacy. These are all
elements of “thinking like a lawyer.” An often ignored aspect of competence is
cultural competence. What is cultural competence? Professor Rose Voyvodic
approaches it this way:
In order to practise law in a culturally competent manner, I believe that we
must (1) value an awareness of humans, and oneself, as cultural beings who
are prone to stereotyping; (2) acknowledge the harmful effects of
discriminatory thinking and behaviour upon human interaction; and (3) acquire
and perform the skills necessary to lessen the effect of these influences in order
to serve the pursuit of justice.4
Professor Voyvodic suggests that cultural competence requires lawyers to
have the following attributes:
KNOWLEDGE: about how “cultural” differences affect client experiences of the
legal process as well as their interactions with lawyers;
SKILLS: through self-monitoring, to identify how assumptions and stereotypes
influence his/her own thinking and behaviour, as well as the thinking and
behaviour of others, and to work to lessen the effect of these influences;
ATTITUDE: awareness of him/herself as a cultural being and of the harmful
effects of power and privilege; and the willingness and desire to practise
competently in the pursuit of justice.5
Cultural competence is a particularly important professional skill for criminal
lawyers given that those at the margins are disproportionately impacted by the
criminal law both as victims and accused.
3
See Rule 3.1-1 of the Rules of Professional Conduct (Law Society of Upper Canada
2014).
4
See Voyvodic, Lawyers Meet the Social Context: Understanding Cultural
Competence” (2005) 85 Can Bar Rev 563 at 564.
5
Ibid at 571-572.
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CONCEPTUAL ISSUES
September 22 [Week 3]
What Is A Crime?
R v Malmo-Levine [2003] 3 SCR 571 (is there a constitutionalized harm
principle?)
R v Labaye [2005] 3 SCR 728 (indecency, liberty and sexual minorities – who
needs the Charter!)
Reading Notes
We begin with some fundamental questions about criminal law. What is a
crime? What constitutional limits are there on the ability of Parliament to
criminalize conduct under section 91 of the Constitution Act? Using drugs as
our case study - does drug prohibition fall under section 91(27)? Why? To the
extent that criminal law seeks to address harm through moral education,
deterrence and punishment, is Parliament limited to criminalizing harmful
conduct? This was the issue that Malmo-Levine, one of Canada’s leading
marijuana activists tried to argue in R v Malmo-Levine. Are you satisfied with
the approach taken by the Court? Is it consistent with the approach to harm
and statutory interpretation the Court took in R v Labaye? How does Labaye fit
into the equality approach set out in Professor Cairns-Way article? What does
the arguably conflicting approaches tell us about the Charter’s promise? If
Parliament decided to create a swinging offence, what recourse would an
accused have to challenge the legitimacy of that decision?
When the state identifies conduct as harmful and decides to use the law to
address it, it has the choice between using the criminal or civil law (i.e. a tort).
What are some of the distinguishing features between crimes and torts? We
will examine this issue in the context of Bill C-13 which creates a new offence
of distributing intimate images to address one manifestation of cyberbullying.
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September 29/October 6/October 13 [Thanksgiving]/October 20
[Weeks 4-6]
Fair Notice/Certainty Principles
Application under s. 83.28 of the Criminal Code (Re) [2004] 2 SCR 248 (what
are the general principles of statutory interpretation? Why is statutory
interpretation so significant in this context?)
R v Levkovic 2013 SCC 25 (is section 243 of the Criminal Code which makes it
an offence to dispose of the body of a child that died “before, during or after
birth” vague?)
Sections 9(a) and 8(3) of the Criminal Code
R v Jobidon [1991] 2 SCR 714 (can you consent to a fight that causes bodily
harm?)
R v Adamiec 2013 MBQB 246 (how does Jobidon apply to sporting events?)
R v Gauthier 2013 SCC 32 (is there a defence of “withdrawal”?)
Reading Notes
These readings address two fundamental components of the rule of law – fair
notice and certainty. They are particularly important for the criminal law. As
Justice McLachlin, as she then was, recognized in R v Cuerrier:
The criminal law must be certain. If it is uncertain, it cannot deter
inappropriate conduct and loses its raison d’etre. Equally serious, it
becomes unfair. People who believe they are acting within the law may
find themselves prosecuted, convicted, imprisoned and branded as
criminals.6
As for the specific readings for this week, here are some questions to consider.
As you read the Levkovic case, ask yourself the following questions: (1) What
is the legal test for the void for vagueness doctrine? (2) What is its purpose?;
(3) How did the accused frame her constitutional argument? (4) Was it
accepted by the Court? If not, how did they frame it?; (5) What tools did the
Supreme Court use in interpreting section 243? (6) What conclusion did they
reach?; (7) Did you find the reasoning and result persuasive? (8) What other
options did it have?; (9) Does it properly give effect to the reality that this is a
gendered issue?
As you read the Jobidon case in conjunction with section 9(a) of the Criminal
Code, ask yourself: (1) Can judicial interpretation of an offence create a new
offence thus violating section 9(a)? (2) What are the implications of Jobidon in
other contexts, for example, sporting events or sex that involves consensual
6
[1998] 2 SCR 371 at 401.
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bodily harm? The decision in Adamiec expressly addresses Jobidon in sporting
events.
Criminal law is unfortunately all about tragedy on both sides. This is
exemplified by the very sad case of Gauthier. As you read the case, consider
the following questions: (1) Is there a doctrine of withdrawal in our criminal
law? (2) What is the legal test? (3) Is judicial interpretation of a defence fair?
Does it effectively create a new offence? (4) How would you have decided the
case?
October 27/November 3 (No Class)/ November 10 [Weeks 7-8]
Over-Reaching
R v Khawaja 2012 SCC 69 [what is the scope of the overbreadth doctrine?]
R v Malmo-Levine [2003] 3 SCR 571 [is gross-disproportionality a principle of
fundamental justice?]
“Executive Summary”, Ontario Systemic Racism Commission Report (Toronto:
Queen’s Printer, 1995) and related readings
Canada (AG) v PHS Community Services Society 2011 SCC 44 [“the Insite
case”]
R v Bedford 2013 SCC 72 [rethinking arbitrariness, overbreadth and gross
disproportionality]7
Reading Notes
In 1982, the Charter of Rights and Freedoms became the supreme law of the
land. It provided the courts with a powerful tool to assess the extent to which
Parliament’s decision to criminalize is consistent with the principles of
fundamental justice. The issue of judicial review of legislation is a controversial
one that has generated considerable political attention in the United States.
Many feel that courts should play a deferential role to the policy decisions of
elected politicians. However, in a constitutional democracy, the courts have an
obligation to ensure that legislation is consistent with basic constitutional
norms. In the landmark Re B.C. Motor Vehicle Act [1985] 2 SCR 486 case,
Justice Lamer, as he then was, held that section 7 of the Charter can be used
to challenge legislation. As he put it:
12.
The novel feature of the Constitution Act, 1982, however, is not
that it has suddenly empowered courts to consider the content of
legislation. This the courts have done for a good many years when
7
For critical commentary on Bedford, see Don Stuart “Bedford: Striking Down
Prostitution Laws and Revising Section 7 Standards to Focus on Arbitrariness” (2014)
7 CR (7th) 52; and, Janine Benedet, “Bedford: The Pimping Offence Should Have Been
Upheld” (2014), 7 CR (7th) 57.
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adjudicating upon the vires of legislation. The initial process in such
adjudication has been characterized as "a distillation of the
constitutional value represented by the challenged legislation" (Laskin,
Canadian Constitutional Law (3rd ed. rev. 1969), p. 85), and as
identifying "the true meaning of the challenged law" (Lederman (ed.),
The Courts and the Canadian Constitution (1964), p. 186), and "an
abstract of the statute's content" (Professor A. S. Abel, "The Neglected
Logic of 91 and 92" (1969), 19 U. of T. L.J. 487, p. 490). This process has
of necessity involved a measurement of the content of legislation against
the requirements of the Constitution, albeit within the more limited
sphere of values related to the distribution of powers.
13.
The truly novel features of the Constitution Act, 1982 are that it
has sanctioned the process of constitutional adjudication and has
extended its scope so as to encompass a broader range of values.
Content of legislation has always been considered in constitutional
adjudication. Content is now to be equally considered as regards new
constitutional issues. Indeed, the values subject to constitutional
adjudication now pertain to the rights of individuals as well as the
distribution of governmental powers. In short, it is the scope of
constitutional adjudication which has been altered rather than its nature,
at least, as regards the right to consider the content of legislation.
14.
In neither case, be it before or after the Charter, have the courts
been enabled to decide upon the appropriateness of policies underlying
legislative enactments. In both instances, however, the courts are
empowered, indeed required, to measure the content of legislation
against the guarantees of the Constitution.
…
16. From this have sprung warnings of the dangers of a judicial
"super-legislature" beyond the reach of Parliament, the provincial
legislatures and the electorate. The Attorney General for Ontario, in his
written argument, stated that:
... the judiciary is neither representative of, nor responsive to the
electorate on whose behalf, and under whose authority policies
are selected and given effect in the laws of the land.
This is an argument which was heard countless times prior to the
entrenchment of the Charter but which has in truth, for better or for
worse, been settled by the very coming into force of the Constitution Act,
1982. It ought not to be forgotten that the historic decision to entrench
the Charter in our Constitution was taken not by the courts but by the
elected representatives of the people of Canada. It was those
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representatives who extended the scope of constitutional adjudication
and entrusted the courts with this new and onerous responsibility.
Adjudication under the Charter must be approached free of any lingering
doubts as to its legitimacy.
We will constantly come back to this tension between the proper relationship
between the courts and Parliament throughout the course. As you read these
cases, do you think that the SCC exceeded its constitutional mandate?
With respect to Malmo-Levine, what might a critical race argument have
looked like? Do you think it would have made a difference? Are you satisfied
with how Parliament has responded to Bedford with Bill C-36? Will the new
legislation pass another round of Charter scrutiny?
November 17/November 24/December 1 [Weeks 9-12]
Free Will and Choice
Topic #1 Voluntariness & Automatism
R v Stone [1999] 2 SCR 290
R v Daviault [1994] 3 SCR 63
Section 33.1 of the Criminal Code8
Topic #2 Voluntariness & Duress
R v Ruzic [2001] 1 SCR 687
R v Ryan [2013] 1 SCR 14
Topic #3 Mental Disorder & Not Criminally Responsible
R v Chaulk [1990] 3 SCR 1303 (what is the nature of the NCR defence?)
R v Swain [1991] 1 SCR 933 (section 7 and the right of the accused to control
his or her own defence including whether to raise mental disorder)
8
Twenty years later, there remains no appellate authority on whether section 33.1 is
constitutional. Do you think it is? The SCC referred to section 33.1 in passing in R v
Daley [2007] 3 SCR 523 where Justice Bastarache, for the Court, observed:
[39] Nine months after Daviault’s release, Parliament responded with s. 33.1 of the
Criminal Code, which amends the Code so that those with a Daviault defence will be
convicted of the same violent general intent offences they would have been convicted
of before the Court’s decision. This provision appears to amend the law such that
extreme intoxication to the point of automatism or involuntariness is only available for
offences that do not include as an element “an assault or any other interference by a
person with the bodily integrity of another person”: s.33.1(3) of the Code.
Can any inference be drawn from this passage about the Court’s view on the section’s
constitutionality?
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Winko v BC (Forensic Psychiatric Institution) [1999] 2 SCR 625 (an overview of
Part XX.1 of the Criminal Code and the NCR defence)
R v Bouchard-Lebrun [2011] 3 SCR 575 (what is the meaning of “disease of the
mind”)
R v Cooper [1980] 1 SCR 1149 (what does “appreciate” mean in section 16 of
the Criminal Code)
R v Oommen [1994] 2 SCR 507 (what is the meaning of “wrong” in section 16)
Reading Notes
In these weeks, we examine a fundamental (and now constitutional minimum)
standard for imposing criminal liability – that is – that the person committed
the act with free will. How is free will measured? Choice? Capacity to know the
consequences of your actions or that what you are doing is wrong? What is the
relationship between automatism and voluntariness and mental disorder
defences? Is automatism having a disproportionate impact on women? How?
Should it be abolished? Would an accused have a section 7 argument if it was
abolished by Parliament? Why has free will and choice been limited to mental
fitness and moral and physical voluntariness? Should it be extended to other
factors such as poverty?
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WINTER TERM
THE ACT REQUIREMENT
January 5 [Week 13]
Thinking About A Meaningful Act Requirement (Actus Reus): De
Minimus, Inchoate Offences and Party Liability
R v Kubassek (2004) 188 CCC (3d) 307 (Ont CA) (is there a de minimus
defence in Canada?)
USA v Dynar [1997] 2 SCR 462 (what is an attempt? what is a conspiracy? is
impossibility a defence to either of these offences?
R v Dery [2006] 2 SCR 669 (is there an offence of attempted conspiracy?)
R v F(J) 2013 SCC 12 (can you be a party to a conspiracy?)
R v Huard 2013 ONCA 650 (can a party be convicted of murder when the
person who actually killed the victim is convicted of a less serious offence?)
Reading Notes
Last term, we examined some fundamental conceptual issues relating to
criminal law. These included (i) what is a crime; (ii) what are the constitutional
limits on the ability of Parliament to criminalize conduct; (iii) to what degree
must the actions of an accused be voluntary or of their free will. This term, we
examine the constituent elements of criminal offences. In order to secure a
conviction, the Crown must prove that the accused committed the act and did
so with a guilty mind. We begin with examining the act requirement. It has
three components: (i) an act or omission; (ii) voluntariness (examined last
term in terms of free will and choice); (iii) causation in cases involving the
bringing about of prohibited consequences like bodily harm or death.
In reading these materials, consider the following questions in addition to the
ones set out above: (1) what is the importance of having a meaningful act
requirement?; (2) should there be a de minimus doctrine? What are the
implications of suggesting that some acts are more trivial than criminal?; (3)
Are you satisfied with the result in Kubassek?; (4) What is an inchoate offence?
What is the justification for them?; (5) What are three types of inchoate
offences in Canada?
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January 12 [Week 14]
Thinking About A Meaningful Act Requirement (Actus Reus):
Causation
R v Nette [2001] 3 SCR 488 (what is the causation standard for culpable
homicide?)
R v Maybin 2012 SCC 24 (when will an intervening act break the chain of
causation?)
Reading Notes
For crimes that criminalize the bringing about of prohibited consequences like
bodily harm or death, there is a causation element the Crown has to prove. In
most cases, causation is not an issue since it is clear on the evidence that the
actions of the accused caused the death. Where causation becomes a live issue
is where there are issues of remoteness, intervening acts or some pre-existing
condition of the victim that led to their death. In these cases, triers of fact must
make a determination of whether to hold the accused accountable for the
consequences. Are you satisfied with the framework set out by the Supreme
Court in the two leading cases of Nette and Maybin?
January 19 [Week 15]
Thinking About A Meaningful Act Requirement (Actus Reus): Three
Case Studies – Possession, Trafficking and Cause Disturbance
R v Kukemueller 2014 ONCA 295 (is shouting obscenities at a police officer
causing a disturbance?)
R v Morelli [2010] 1 SCR 253 (what are the elements of the three types of
possession set out in section 4(3) of the Criminal Code? when are you in
possession of electronic files from the internet?)
R v Chalk (2007) 227 CCC (3d) 141 (Ont. C.A.) (is there a defence of innocent
possession?)
R v Pham [2006] 1 SCR 940 (what is joint possession? Was Pham guilty of joint
possession?)
R v Greyeyes [1997] 2 SCR 825 (is an agent for the purchaser guilty of
trafficking?)
Reading Notes
In this concluding act requirement module, we examine three different
offences : cause disturbance, possession and trafficking.
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THE FAULT REQUIREMENT
January 26 [Week 16]
Subjective Fault (Mens Rea): Intention, Knowledge, & Deliberate
Ignorance
Re B.C. Motor Vehicle Act [1985] 2 SCR 486 (is fault a principle of fundamental
justice? What is the status of absolute liability in our criminal law?)
R v Theroux [1993] 2 SCR 5 / R v McRae 2013 SCC 68 (what is the nature of
subjective fault?)
R v Beaver [1957] SCR 531 (is fault for possession offences measured
subjectively or objectively? Is there a relevant presumption for all Criminal
Code offences related to subjective fault?)
USA v Dynar [1997] 2 SCR 462 (what is the meaning of “know”?)
R v Williams (2009) 244 CCC (3d) 138 (Ont CA) (is mistake of fact relevant to
fault? How?)
R v MacDonald 2014 SCC 3 (mistake of fact or mistake of law?)
R v Briscoe [2010] 1 SCR 411 (is deliberate ignorance tantamount to
knowledge?)
R v Malfara [2006] OJ No 2069 (CA) (should or did the accused have their
suspicions raised?)
R v Greyeyes [1997] 2 SCR 825 [Week 15 readings]
Reading Notes
Subjective fault relates to the themes of his course in a number of different
ways. For example, as the Supreme Court noted in R v H(AD) 2013 SCC 28 at
para 41, “… the requirement for subjective fault serves an important purpose
of ensuring that the reach of the criminal law does not extend too far.” What
other ways does it relate to the themes of the course? Are you satisfied with
how subjective fault is determined?
February 2/9 [Weeks 17-18]
Subjective Fault – Intention and the Special Case of Murder
R v B(L) 2011 ONCA 153 (what does the homicide tree look like?)
Tanovich, “Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate
Femicide” (2014) 99 CR (6th) 338 (what is intimate femicide? What are some of
the key indicators?)
R v Cooper [1993] 1 SCR 146 (what is the secondary intent for murder?)
R v Czibulka (2004) 189 CCC (3d) 199 (Ont CA) (what does reckless mean in
section 229(a)(ii)?)
R v Parent 2001 SCC 30 (is anger a defence to murder?)
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R v Daley 2007 SCC 53/R v Walle 2012 SCC 41 (how does intoxication impact
the determination of intent or foresight of consequences?)
R v Manitowabi 2014 ONCA 301 (is fetal alcohol syndrome (FASD) relevant in
murder cases? How?)
R v Smith (1979) 51 CCC (2d) 381 (Sask CA) (what is the meaning of planned
and deliberate? Does a murder have to be both in order for the Crown to prove
first degree murder?)
R v Nygaard [1989] 2 SCR 1074 (is first degree murder an available verdict
where what is planned is serious bodily harm and not death?)
R v Wallen [1990] 1 SCR 827 (how is intoxication relevant to first degree
murder?)
Reading Notes
In R v Vaillancourt [1987] 2 SCR 636; and, R v Martineau [1990] 2 SCR 633,
the Supreme Court struck down felony murder (where there is a death in the
commission of certain designated offences with no requirement of
foreseeability). It applied BC Motor Vehicles and held that the stigma
associated with murder requires the Crown to establish subjective
foreseeability of death as constitutional minimum standard under section 7.
Felony murder is still alive and well in the United States.
In this module on subjective fault and murder, we consider a number of
current issues relevant to subjective fault and murder. First, as a practical
matter, how difficult is it for the Crown to prove one of the required intents for
murder? What evidence might the Crown rely on? How is intoxication and fetal
alcohol syndrome (FASD) relevant? Second, on a policy level, how is gender
relevant to murder prosecutions? Why are most of the leading murder cases
involving intimate femicide? Does this speak to the validity of intoxication and
other defences (like provocation)?
February 23/March 2 [Weeks 19-20]
Objective Fault (Negligence)
R v Naglik [1993] 3 SCR 122/R v Gosset [1993] 3 SCR 76 (how do we
determine whether a crime has a subjective or objective fault requirement?)
(does objective fault satisfy section 7?)
R v Beatty [2008] 1 SCR 49 (what is the fault requirement for penal negligence
offences? what are the elements of dangerous driving?)
R v Creighton [1993] 3 SCR 3 (what is the fault requirement for
manslaughter?)
R v F(J) [2008] 3 SCR 215 (what is the fault requirement for criminal
negligence offences based on section 219?)
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R v H(AD) 2013 SCC 28 (this case provides a good summary of how to
determine whether an offence has an objective fault requirement. Is the fault
requirement for child abandonment objective or subjective?)
Reading Notes
Prior to the Charter, there were very few crimes with an objective fault
requirement. The presumption of subjective fault referred to in Beaver and
H(AD) prevailed. Ironically, the growth of objective liability has occurred with
the full blessing of the Charter. Has our criminal law moved closer to a civil
fault standard with objective fault?
EQUALITY AND CRIMINAL LAW
SEXUAL ASSAULT
March 9 [Week 21]
Introduction and Statutory Materials
R v Seaboyer [1991] 2 SCR 577
R v Muvunga 2013 ONSC 3076
Act Requirement: When is an Assault a Sexual Assault?
R v Chase [1987] 2 SCR 293 (does sexual assault require an intent for sexual
gratification?)
R v V(KB) [1993] 2 SCR 857 (do you think that the conduct in this case was a
sexual assault?)
Reading Notes
As we work through the materials on sexual assault, we will return to the major
themes of this course. We will examine the role of sexual assault law in dealing
with a systemic problem in society. Last term we identified a number of
purposes of criminal law – harm prevention, setting boundaries, moral
education, deterrence – how far do we extend the blunt instrument of the
criminal law to accomplish these goals? How well has our sexual assault law
incorporated equality values? How do criminal law actors (judges and lawyers)
perpetuate stereotyping?
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March 16/23 [Weeks 22-23]
Act Requirement: Meaning of Consent & Mistaken Belief in Consent
R v Ewanchuk [1999] 1 SCR 330 (what is the actus reus for sexual assault?
How is consent determined? Is there a doctrine of implied consent?)
R v J(A) [2011] SCC 28 (can you consent in advance to sexual activity? Whose
opinion on this issue do you find more persuasive?)
R v Mabior [2012] 2 SCR 584 (when is consent vitiated by fraud in relation to
a partner’s HIV status? Is this a proper role for the criminal law to assume?)
R v Hutchinson 2014 SCC 19 (is consent vitiated when a male partner
sabotages a condom?)
R v Ewanchuk [1999] 1 SCR 330 at paras 43-67; 97-102
Melanie Randall, “Sexual Assault in Spousal Relationships, “Continuous
Consent”, and the Law, Honest but Mistaken Judicial Beliefs” (2008) 32 Man LJ
144
Melanie Randall, “Sexual Assault Law, Credibility, and ‘Ideal Victims’: Consent,
Resistance and Victim Blaming” (2010) 22 Canadian Journal of Women & the
Law 179
Reading Notes
In this module, we examine a number of controversial issues surrounding the
meaning of consent and when it is vitiated.
SENTENCING
March 30 [Week 24]
General Principles
R v Arcand (2010) 264 CCC (3d) 134 (AltaCA) (where do sentencing principles
come from?)
R v Priest (1996) 110 CCC (3d) 289 (OntCA) (what are the general sentencing
principles?)
R v Gladue [1999] 1 SCR 688/R v Ippelee [2012] SCC 13 (how is Aboriginality
relevant to sentencing?)
END OF WINTER TERM
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Excerpts: University of Windsor Human Rights
Policy
* A full copy of the Human Rights Policy can be
found at www.uwindsor.ca/hrights
The University of Windsor is committed to providing an
equitable working and learning environment that promotes and supports
academic achievement. To this end, the University will strive to ensure the
applicability of the rules of natural justice to achieve fair treatment of all
members of the University community and will endeavour to create an
environment free of harassment and all forms of prohibited discrimination.
By this Policy, the University declares that all members of the University
community are obligated to interact on the basis of mutual respect and that
the University will not tolerate any form of harassment, sexual harassment or
discrimination in any University-related activity involving a member of the
University community.
Behaviour constituting a violation of this Policy and/or the Ontario Human
Rights Code is considered by the University to be a serious offense and is
subject to a range of disciplinary measures up to and including dismissal or
expulsion by the University.
The Ontario Human Rights Code prohibits harassment and discrimination on
the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship,
creed, sex, sexual orientation, handicap, age, marital status, family status,
receipt of public assistance or record of offences. It is understood that a
person may experience discrimination and/or harassment on multiple grounds
and that discrimination can be overt or systemic.
Every individual at the University is entitled to work/study in an environment
free of discrimination and harassment and in particular to work/study in an
environment free of discrimination and harassment including but not limited to
discrimination and harassment based on race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual orientation, handicap, age, marital
status, family status, receipt of public assistance or record of offences.
Discrimination is defined as a distinction, whether intentional or not, based
on grounds relating to personal characteristics of an individual or group, which
has the effect of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds or limits
access to opportunities, benefits, and advantages available to other members
of society.
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Harassment is defined as vexatious comment or conduct in relation to a
person or group of persons which has the effect or purpose of creating a hostile
or intimidating working or educational environment when: such treatment has
the effect or purpose of threatening or intimidating a person; or such
treatment abuses the power that one person holds over another or misuses
authority; or such treatment has the effect or purpose of offending or
demeaning a person or group of persons on the basis of race, ancestry, place
of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation,
handicap, age, marital status, family status, receipt of public assistance, or
record of offences.
Harassment may occur during one incident, or over a series of incidents
including incidents which, in isolation, would not necessarily constitute
harassment. Harassment prevents or impairs the full and equal enjoyment of
employment and educational services, benefits and/or opportunities and may
occur between people of the same or different status within the University
community, regardless of age or sex. Harassment may also be directed at a
group as well as at an individual. Harassment may be psychological, verbal or
physical or may be all of these.
Prohibited behaviours include but are not limited to:
■
Verbal Behaviour
Using stereotypes to describe a particular group; name calling; insults;
threats; slurs; degrading or unwelcoming remarks; jokes or innuendos about a
person/persons in relation to the prohibited grounds in the Ontario Human
Rights Code.
■
Written Materials
Displaying or distributing racist/sexist derogatory or otherwise offensive
materials or graffiti; displaying or distributing derogatory pictures or cartoons.
■
Physical Behaviour
Making threatening or rude gestures; using physical intimidation or assault;
leering; unwanted touching, kissing, patting, pinching; insulting actions or
practical jokes based on the prohibited grounds in the Ontario Human Rights
Code.
■
Non-Verbal Behaviour
Avoidance, exclusion and inaction: refusing to talk or work with another
member of the University community because of personal, physical, racial or
ethnic characteristics; condescension, paternalism or patronising behaviour;
failure to provide accommodation for persons with disabilities or for persons
engaged in religious observation unless the accommodation causes undue
hardship.
-23-
"Sexual harassment" includes:
a)
any unwanted sexual attention or behaviour by a person who
knows or ought reasonably to know that such conduct is unwanted; or
b)
any implied or expressed promise or reward for complying with a
sexually oriented request; or
c)
any implied or expressed threat of reprisal, in the form either of
actual reprisal or the denial of opportunity for the refusal to comply with a
sexually oriented request; or
d)
any inappropriate verbal or physical conduct that has a focus on
sexuality or sexual identity in what reasonably may be perceived as a hostile,
intimidating or offensive manner; or
e)
the communication or display of material with a focus on sexuality
or sexual identity which has the effect or purpose of creating a hostile or
intimidating working or educational environment.
Examples of sexual harassment:
■
verbal abuse including but not limited to graphic commentaries on
the victim's body and sexual remarks which demean a person and are known
or ought to have been known to be unwanted;
■
using sexually degrading words to describe a person;
■
insulting and offensive gestures, innuendoes, language, joking
and or taunting about another person's body which causes awkwardness and
or embarrassment;
■
leering (suggestive staring) or other gestures;
■
asking inappropriate questions about the person's sexuality or any
sexual relationships past, present or future;
■
unnecessary physical contact such as brushing up against a
person's body, touching, patting, pinching and invasion of personal space for
the purpose of sexually harassing a person;
■
demanding sexual favours accompanied by implied or overt
threats concerning a person(s)' employment (economic livelihood) grades
(academic failure hence loss of future livelihood), reputation and/or letters of
recommendation;
■
sexual solicitation or advance made with implied reprisals if
rejected;
■
backlash or the threat of backlash, or retaliation or the threat of
retaliation, for the lodging of a complaint or participation in an investigation;
■
behaviour including but not limited to attention and/or conduct
that is known or ought to be known to be unwanted after the end of a
consensual relationship; and
■
inappropriate display of sexually offensive material and /or
pornography such as pin up posters (of any size), magazines etc.
-24-
UNIVERSITY OF WINDSOR
FACULTY OF LAW
POLICY STATEMENT ON STUDENT DISCIPLINE PLAGIARISM
Plagiarism is defined by Black s Law Dictionary (revised 4th edition):
The act of appropriating the literary composition of another of parts or
passages of his writing, or the ideas or language of the same, and passing
them off as the product of one’s own mind.
The Oxford English dictionary defines plagiarism:
the wrongful appropriation or purloining, and publication as one’s own, of the
ideas or the expression of the ideas (literary, artistic, musical, mechanical,
etc.) of another.
Comment: Merely taking the ideas or expression of another is not in itself
plagiarism. The substance of plagiarism is that the plagiarist passes off the
ideas or expression of another as his or her own. Thus, the application of the
precepts and practices learned in legal writing, particularly the full
acknowledgement of sources, is the best safeguard against plagiarism. When
a student is in doubt as to the proper treatment and acknowledgement of the
ideas or expressions of another, the best course of conduct is to consult the
professor for whom the work is being prepared. Plagiarism will be
presumed in any case of appropriating the expression or ideas of
another without full acknowledgement of sources.
Examples:
submitting as his or her own work an exam or other piece of academic work
which has been authored or prepared either wholly or partly by someone else;
submitting academic work containing passages taken either verbatim or with
occasional word changes from the works of others where such passages are
not properly acknowledged; submitting a paper or other academic work which
adopts the ideas of other authors without giving appropriate
acknowledgement.
The following examples of plagiarism have recently been the subject of
disciplinary complaints:
Failure to use quotation marks or offset the paragraph when directly quoting a
source even when the source is footnoted;
Failure to cite a source when the source is paraphrased;
Failure to attribute a directly quoted or paraphrased passage to the correct
-25-
source (e.g. quoting directly from or paraphrasing material from a textbook,
treatise, article, etc., and reproducing the footnotes appearing in this source
rather than footnoting the source itself);
Reproduction of another student s table of authorities, bibliography, footnotes,
etc.;
Failure to cite a passage quoted or paraphrased from a website.
In addition, the Policy Statement on Student Discipline identifies as improper
conduct a student submitting his or her own academic work in a course without
disclosing to the professor that this academic work was authored or prepared,
either wholly or partly, for another course or purpose.
The Policy Statement on Student Discipline also:
addresses improper conduct relating to exams (cheating),
provides the sanctions that can be imposed by the Discipline Committee for
improper conduct.
Copies of the Policy are available in the General Office.
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