Criminal I (Cameron) - 2017 PDF

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Summary

Very detailed and organized course notes, include notes from class and assigned readings. Important notes for exams are included....

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Criminal Law Summary Assault Basic Assault - s. 265(1)(a) AR Elements

1) Force a) Directly or indirectly applies force

MR Elements

2) Without Consent, where a) Consent is not given b) Consent is given but is vitiated by factors under s. 265(3), OR c) Consent in the circumstances is not permissible by law i) R. v. Jobidon: can’t consent to a fist fight where non-trivial bodily harm is intended or caused Subjective (1) intention to touch a) Intentional b) Reckless: being aware that there is a danger that your conduct could likely bring about a result prohibited by law but nevertheless persist despite the risk c) Wilful blindness: aware danger from conduct could be criminal, persists despite the risk (Briscoe) Subjective (2) knowledge of, being reckless of, or wilfully blind to lack of consent either by words or actions MR superimposed on AR (Fagan)

Assault with a weapon or causing bodily harm – s. 267 AR Elements

1) Committed an assault, while 2) Carrying/using/threatening to use a weapon/imitation OR 3) Causes bodily harm to the complainant

Definitions

MR Element

s. 2 bodily harm: any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature s. 2 weapon: anything used, designed to be used or intended for use a) In causing death or injury to any person, or b) For the purposes of threatening or intimidating any person 1) MR for Assault 2) Objective foresight of bodily harm (if assault causing bodily harm) (Nurse)

Aggravated Assault – s. 268 AR Elements

1) Assault

MR Elements

2) Wounds/maims/disfigures/or endangers the life of the complainant 1) MR for Assault 2) Objective foreseeability that the assault subjected the complainant to the risk, as the case may be, of WMDE (R v Nurse)

Unlawfully Causing Bodily Harm – s.269 AR Elements

1) Commit an underlying unlawful offense that is objectively dangerous (predicate offense, can’t be absolute liability) 2) Caused bodily harm to another person as a result of this offense (R v DeSousa)

MR Elements

- This is a bit broader than s. 265 assault 1) Requisite Mens Rea for the underlying offence 2) Objective foresight of bodily harm (DeSousa), although precise harm need not be foreseen “To maintain the correct focus it is preferable to inquire whether a reasonable person would inevitably realize that the underlying act would subject another person to the risk of bodily harm” (DeSousa)

Sexual Assault Basic Offence of Sexual Assault – s. 271 AR Elements

1) Contact (touching/force) 2) Sexual Element

Test

3) Non-consensual R. v. Chase Test: The test in determining whether the impugned conduct has the requisite sexual nature is an OBJECTIVE one:

Factors

Issue of Consent

MR Elements

“Viewed in light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer” Factors the court identifies that will inform a reasonable person if an act is sexual in nature: i) Part of body touched ii) Nature of contact iii) The situation in which it occurred iv) Words/gestures accompanying act v) Threats which may/may not be accompanied by force vi) Intent or purpose (sexual gratification) R. v. V(KB) – sexual gratification not required; just a factor to consider R. v. JA The definition of sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity  It is not possible for an unconscious person to satisfy this requirement Subjective MR 1) Intention to touch (subjective) 2) Knowing of OR being reckless of or willfully blind of a lack of consent on the part of the person being touched (Ewanchuk) * In order to confirm a finding of mistake of fact, there must be AFFIRMATIVE consent on the part of the complainant. The accused should try to make sure of this * No consent if victim is in fear (subjective) (Ewanchuk)

Sexual Assault with a Weapon or Causing Bodily Harm or Threats to a 3rd Party – s. 272 AR Elements

1) AR of Sexual Assault 2) Carries/uses/threatens to use a weapon/imitation weapon, OR 3) Threatens to cause bodily harm to a person other than complainant, OR 4) Causes bodily harm to complainant, OR 5) Is a party to the offence with any other person

MR Elements

1) MR for sexual assault 2) Objective foresight of bodily harm

Aggravated Sexual Assault – s. 273 AR Elements

1) AR of Sexual Assault 2) Wounds/maims/disfigures/or endangers the life of the complainant (basically serious bodily harm)

MR Elements

1) MR for sexual assault 2) Objective foresight that assault put complainant at risk of consequences (wound, maim, disfigure, endanger life)

Homicide – s.222 A person commits a homicide when, directly or indirectly, by any means, he causes the death of a human being

First Degree Murder – s. 231(1) – (6) Actus Reus Elements s. 231(1): Murder is first degree murder or second degree murder Version1

s. 231(2): Murder is first degree when it is planned and deliberate +Causation +Death Causation Smithers/Nette Test:  Act must be a “significant contributing cause of death”

Causation usually isn’t an issue in first degree murder because of the relationship between deliberate and causation ** When going to M1, prove M2 elements and then look for what you can in the facts to upgrade it

Mens Rea Elements Subjective foresight of death applies to all murder offences (Martineau) 1) Subjective foresight of death, AND 2) Subjective MR of “planned” (schemed/designed before the crime) AND “deliberate” separately (deliberate is MORE than intentional, must be “considered not impulsive” Aalders Planning and deliberation does not have to be related to specific victim, just in relation to kill (Droste)

Version 2

s. 231(5): Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:  Sexual assault  Sexual assault with weapon/causing bodily harm/threats to 3rd party  Aggravated sexual assault  Kidnapping and forcible confinement  Hostage taking

1) Requisite MR for the predicate offence (i.e., the sexual assault/forcible confinement) 2) Subjective foresight that the act causing death will cause death

Elements: (1) AR of predicated offence (2) Causation (3) Death Causation Harbottle Test:  The actions of the accused must form an essential substantial and integral part of the killing of the victim  This test requires that the accused play a very active role, usually a physical role

Second Degree Murder – s. 229 Actus Reus Elements

Mens Rea Elements

s. 231(7): all murder that is not first degree murder is second degree murder

Subjective foresight of death applies to all murder offences (Martineau)

s. 229(a): where the person who causes the death of a human being (i) means to cause his death, OR (ii) means to cause bodily harm that he knows will likely cause his death and is reckless whether death ensues or not

1) Subjective intent cause bodily harm

s. 229(b): where a person, meaning to cause death (or bodily harm), and being reckless causes the death of another person

** Two fault elements need to ONLY overlap at some point during harmful act. Don’t need to be present throughout until the point of death (Cooper)

s. 229(c): where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being Version 1

s. 229 (a) + (b): death + causation Smithers/Nette Test

Version 2

s.229 (c):

(1) Unlawful object (2) “Anything” that is a dangerous act, in furtherance of unlawful object (3) Death (4) Causation (Smithers/Nette Test)

2) Subjective knowledge bodily harm of nature likely to result in death

Definitions

“Dangerous act”: must not be defined too broadly so as to confuse the causation framework (entering a house with a loaded gun is not sufficient, pulling a gun in a fight is)

Unlawful Act Manslaughter – s. 222(5)(a) s. 222(5)(a): a person commits culpable homicide when he causes the death of a human being by means of an unlawful act AR Elements

(1) Unlawful act (2) Cause (Smithers/Nette Test) (3) Death

MR Elements

1) Requisite MR for unlawful act

Related Cases

2) Objective foresight of bodily harm In the context of a dangerous act and NOT trivial/transitory risk (Creighton) Smithers/Shanks: Thin Skull Principle  The defendant must take victims as they find them Maybin: Intervening Cause Independent event + Event not reasonably foreseeable Independent event: did the act merely set the scene (breaks chain) or did act trigger/provoke auction of intervening party (does NOT break chain) 

These are only analytical aids, must go back to Smithers/Nette test

Criminal Negligence – s. 219 AR Elements

1) Wanton/reckless disregard for the life and safety of others 2) Must show a marked and substantial departure from the standard of a reasonable person (Barron) 3) Causation (Smithers/Nette) 4) Death

MR Elements

1) Objective foresight risk bodily harm 2) If AR + MR established ASK: did the accused possess the requisite capacity to appreciate risk from conduct? MUST answer YES to be morally blameworthy

Notes

Criminal negligence is a conduct-based offence (McIntyre J, Tutton), which is not punishable unless it causes consequences (bodily harm or death).

Parties to the Offence – s. 21(1) AR Elements

1) Doing something that assists/encourages the perpetrator to commit the offense 2) Or failing to do something Aid = assist Abet = encourage, instigate, promote/procure the crime to be committed (Briscoe)



MR Elements

Mere passive presence at the scene of the crime when it is committed does not constitute aiding/abetting unless the purpose of the presence was to aid in the commission of the offense (Rochon; weed tent) 1) Intention to assist 2) Knowledge the perpetrator intends to commit the crime (although they do not need to know precisely how it is to be committed) (Briscoe) - Knowledge includes willful blindness (Briscoe)

Notes

- If manslaughter, on the basis of objective foresight of BH; if murder, subjective foresight Mens rea must match up with that of the principal offender in order for the party to the offence to be charged under the same provision (Briscoe) HOWEVER the level of MR of a party need not match up with that of the principal offender in order for a party to be found guilty of a lesser crime of lesser intent, (ex., manslaughter requires objective foreseeability of bodily harm)(Kirkness) M1 S. 231(2): Snowbird tells us that the aider must know that the perpetrator planned and deliberated the murder * S. 231(5): must still prove that the aider/abetter is a “substantial and integral contributing cause” (Harbottle) - Only need to prove causation for S. 231(5)

Other Offences Dangerous Driving – s. 249(1) + (3) causing BH + (4) causing death AR Elements

1) Driving a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances (location, conditions, traffic) that might be reasonably expected at that place (Beatty + Roy) - Modified Objective Standard Objective foresight of BH for (3) or (4)

MR Elements

1) The conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the context and circumstances surrounding the incident - Modified Objective standard (Beatty + Roy) Also, must be MR for the consequences (BH or death), which includes objective foresight of BH (at a minimum)

Notes

- Circumstances are taken into consideration (weather) but not “personal frailties” - Evaluate the manner of driving, not the consequences (Roy) - Momentary lapse in standard is not criminal

Extortion – s.346 AR Elements

1) 2) 3) 4)

Without reasonable justification/excuse Intent to obtain anything By threats, accusations, menaces or violence Induce to do anything/cause anything to be done

MR Elements

Related Cases

Subjective MR 1) Intent to threaten 2) Intent to get them to do something R. v. Davis  The scope of the word “anything” in the provision is not limited to things of a proprietary or pecuniary nature and DOES include sexual acts  The purpose of the extortion provision is to prohibit intimidation and interference with freedom of choice

Causing Public Disturbance – s. 175(1)(a) s. 175(1): Everyone who (a) not being in a dwelling-house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing, or using insulting or obscene language (ii) by being drunk, OR (iii) by impeding or molesting other persons… AR Elements

MR Elements

(1) Enumerated Act (2) Causing a disturbance (R v Lohnes) (3) In or Near a Public Place 1) Subjective MR for the “enumerated act” 2) Objective test “must be reasonably foreseeable that the act would interfere with the ordinary/customary use of the place” (R v Lohnes)

Related Cases

*MIXED SUB + OBJ R v Lohnes Elements:  External/overt manifested disturbance  Interference with ordinary/customary use  Reasonably foreseeable at the time/place that it would disturb people *has to be more than mere emotional upset

Wilfully Promoting Hatred – s. 319 AR Elements

MR Elements

Notes

1) Communicating a statement 2) Other than in private conversation 3) Willfully promotes hatred against any identifiable group  The word “willful” in the provisions signals a higher-order MR requirement  subjective intent  Willful blindness will not do! An intention to create “controversy, furor and an uproar” is not the same thing as an intention to promote hatred” INTENT = (1) conscious purpose in distributing documents was to promote hatred OR (2) they foresaw that the promotion of hatred was certain or morally certain to result from the distribution of the documents, but distributed it anyways (Subjective) (R v Buzzanga and Durocher)

Attempt to Commit Murder - s. 239(1)(b) AR Elements

Anyone who attempts, by any means, to commit murder

MR Elements

Subjective MR - The requisite knowledge that the intended injury is likely to cause death (Simpson)

Obstruction of Justice – s. 139(1) AR Elements MR Elements

1) Willfully attempts in any manner, to obstruct, pervert or defeat the course of justice 2) in a judicial proceeding Willfully  likely that will be full subjective INTENT (must have the intent to obstruct justice in some way)

Arson + Disregard for Human Life/Own Property – s. 433/434.1 AR Elements

MR Elements

S. 433 Every person who intentionally or recklessly causes damage by fire or explosion to property where (a) the person knows that or is reckless with respect to whether the property is inhabited or occupied or (b) the fire or explosion causes bodily harm to another person S. 434.1 damaging of property by fire (Tatton)  the criminal act is not the setting of a fire but the causing of damage to property (1) Subjective intent/recklessness (2) Objective foresight of BH

Unlawful Confinement – s. 279(2) Elements

Everyone who, without lawful authority, confines, imprisons, or forcibly seizes another person is guilty of …

DEFENCES   

There must be an “air of reality” to the defences The test for air of reality requires that there must be “some evidence” upon which “a properly instructed jury acting reasonably could base an acquittal” Defences are either codified or defined by common law doctrine o They are either justifications OR excuses.

Mistake of Fact  Serves to negate MR, but functions like a defence TEST - It is a SUBJECTIVE test (for subjective intent offences)  “Did the accused have an honest, but mistaken, belief - OBJECTIVE FORESIGHT OFFENCES  Use the standard that incorporates an objective requirement  “Honest and Reasonable mistake of fact” (Tutton; the accused honestly believed the facts but they were unreasonable) Sexual Assault - “Did the accused have an honest but mistake belief that consent had been obtained, communicated affirmatively?” (Ewanchuk) - S. 273.2: It is NOT a defence to a charge under s. 271, 272, 273 that the accused believed that the complainant consented to the activity where (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting (think the accused buying drinks for the victim) - Not available for willful blindness (Sansegret) or recklessness

Self-Defence – s. 34

Willful Blindness: Arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not want to know the truth Recklessness: Involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur

In Canada, the defense of self-defense has been entirely codified, and the limits of the defense are found in various statutory provisions s. 34(1) a person is not guilty of an offence if (must satisfy all three)  (a) they believe on a reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person (has subjective and objective elements)  (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force;  (c) the act committed is reasonable in the circumstances s. 34(2) outlines the facts that ought to be considered when determining if the act committed is reasonable, and whether self-defense is available as a defense. (Say “In this fact scenario, among the most relevant are:” nature of force/threat, extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force, the person’s role in the incident, whether any weapons were used, the size/age/gender, relationship, history of interaction, proportionality of response - does not actually stipulate that the bodily harm or death be imminent but imminence has been read into the provision

BEYOND A REASONABLE DOUBT R v Lavalee (a modified objective test) - Case introduced Batter Women [Partner] Syndrome - The mental state of the accused when she shot him can only be understood in the context of the cumulative effects of domestic abuse - Expert evidence is necessary in cases like this - Think hostage situation

Necessity - excuse 

Involves a claim that a person committed an offence through the force of the circumstances

3 Requirements for the Defense of Necessity (Perka – Latimer) 1) Imminent peril or danger (modified objective – looking at circumstances & characteristics of the accused) 2) The accused must have had no reasonable legal alternative to the course of action he or she undertook (modified objective – looking at circumstances & characteristics of the accused)  The criteria for the first two requirements are strict but have been made “friendlier” through the introduction of the modified objective test 3) There ...