Law Lecture 4 - Ggyh PDF

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Law Lecture 4 Lecture 4

Actus reas  More complicated  The physical act; voluntary physical act. Sometimes with circumstances, sometimes with consequences, sometimes with both Voluntariness  R. V. King (1962, SCC, p. 297/287)  A case where someone is involuntarily intoxicated (slipped drugs), and then drove; under the influence. his actions were involuntary in the sense that he didn’t do anything to voluntarily put himself in that position  R. V. Rabey (1980, SCC, p. 297/287)  Supreme court of Canada cases from 1962-1999; the SCC makes it clear that voluntariness is part of the actus reus and not mens rea. Judges still confuse that and say if someone acted involuntarily, they didn’t have the mens rea  But if they acted involuntary there’s obviously no mens rea, there’s not even actus reas  The act has to voluntary for it to be actus reas  R. v. Wolfe (1975, Ont. C.A., p. 304/294)  E.g., The accused Mr. Wolfe was an owner of a hotel; told the complainant to stay away, trespassed, he was a real problem and raised hell. The complainant came back on the night in question, Wolfe said leave, he wouldn’t. So, Wolfe went to the phone to call the police and get this guy off the property; as he was on the phone the complainant punched him, so Wolfe turned and hit the guy with the phone receiver. The complainant had a cut on his neck. At trial the judge said that if it was an assault it was involuntary, it was reflexive. The judge said it was involuntary because he acted out of reflex Causation  Casual connection (“but for” test); makes others liable when they’ve played a less than minor role 

R.v. Smithers (1977, SCC, p. 316/306)  The landmark case on causation. The accused Mr. smithers was convicted of manslaughter for a fight he had. A couple players on opposing hockey teams; during the fight smithers punched the victim (Barry Cobey), cobey went down and ended up choking on his vomit. Had a problem with his larynx. when he threw up and inhaled, the epiglottis didn’t stop the vomit from going back down into his stomach, actually went into his lungs and went into asphyxiation  Charged with manslaughter. Smithers. Argued that the malfunction epiglottis was in intervening factor that broke causation

 (1) The factual determination of causation is to be made by the trier of fact, based on all the evidence, both expert and lay  The judge decided if the accused caused death  (2) The accused’s act needs merely be a “contributing cause…outside the de minimus range…The accused’s intentions are irrelevant, as is the foreseeability of the harm. If there is more than one contributing cause, it doesn’t matter which one contributed more.  E.g., a group beats someone up, it doesn’t matter who hurt who the most, or who put in the most work; the crown just has to prove that the accused participated in some way  Smithers confirms again that you take your victim as you find them. Tough luck for smithers because he chose to punch someone with an abnormality that caused his death. R. v. Shanks (1996, Ont. C.A., p. 323/313)  Manslaughter case. (Crown doesn’t need to prove intention to kill, just death)  Manslaughter is an unintentional killing, murder is intentional, and then murder is divided into first and second degree.  Shanks was intoxicated at the time of the infanticide. He got into a fight with neighbour; provoked him, threw him to the ground and then backed away. Unfortunately the neighbour shanks threw to the ground had a heart condition and he shortly after suffered a heart attack and died shortly after. Shanks wasn’t aware of his health troubles  Was the death caused by a heart attack? Or by Shanks?  The court concluded that shanks caused death by contributing to the death. He contributed outside the minimus range. It’s enough to prove that what he did caused the heart attack killed the victim.  The court said his drunkenness and his lack of intent don’t go to what caused death, but what the sentence should be; he wasn’t morally responsible, the sentence was reduced to two years less a day.

Challenging Smithers R. v. F. (D.L) (1989, Alta. C.A., p. 335/325)  The victim here was acquitted of driving charges that led to a death of another person. Crown appealed those acquittals.  The court entered a conviction; but at the same time said that the “smithers case may not withstand constitutional scrutiny because it casts the net too wide. However; the accused drove in such an egregious way that his contribution to the death of the victim was may more than trivial. The court said that the diminimus test, may well be unconstitutional; the court said that the sweeping accountability of that test may conflict with principles of fundamental justice. S.7 of the charter of rights says everybody is guaranteed to not have their liberty taken away from then unless through principles of fundamental justice. So, this sweeping accountability; very low threshold, violates s. 7. R. v. Harbottle (1993, SCC, p. 323/313)  First degree murder case  What is the test for causation in first degree murder? Is the test for causation different? Is it always the same? (contributed beyond the diminimus)

 Court decided because stakes are so high, (with first degree murder, life in jail with no chance of parole), that the standard for causation also had to be higher. The test set out in this case is not contributed outside the diminimus range. But that the contribution by the accused had to be substantial and integral cause of death.  Much higher standard. Also, the standard for first degree murder

R. v. Cribbin (1994, Ont. C.A., note p. 335/325)  Manslaughter  Court of appeal was being asked to reconsider smithers and whether the smithers test was too low a threshold for causation in light of; and whether the smithers test offended charter principles  Court of appeal held that it wasn’t too broad, that it didn’t set the standard too low. The Cribbin case was criticized by academics for setting the bar too low R. v. Nette (2001, SCC, p. 326/316)  The SCC got to again consider the constitutionality the smithers test for causation.  Second degree murder case, the accused had been convicted and lost an appeal to the British Columbia court of appeal. They then appealed to the scc.  The victim was a 95-year-old woman. Jury trial; trial judge told the jury that the standard for causation for second degree murder was “the slight or trivial cause necessary to find second degree murder”, instead of saying “more than a trivial cause”  The specific question when brought to the scc was: ‘did the trial judge misstate the law to the jury?’.  In Canada, it’s against the law to reveal what happened during deliberations; so, when a jury reaches its decision they don’t explain how. You assume they based it off of what the trial judge told them. So that’s why instructions from judge to jury is very important; and the judge has to accurately set out the law  They ultimately overturned the ruling for second degree murder  They removed diminius and replaced it with not insignificant  “not insignificant” = “significant” R. v. Talbot (2007, OCA, p. 334/324)  The Ontario Court of appeal confirmed the test for causation is substantial cause and is no longer the smithers test of beyond the diminimus range. The smithers test is not good law

R.v. Maybin (2012, SCC, p. 347.337)  The SCC itself confirmed that the smithers language is no longer helpful.  “The dangerous and unlawful acts of the accused must be a significant contributing cause to the victim’s death”.  The new test for causation in Canada. Much higher standard; crown has to prove much more than they did in smithers case.

The Fault Requirement (mens rea) Mens Rea  The moral component. Whether the accused is morally to blame, whether they intended the crime or knew what he was doing or knew the risks.  (1) Intended the activity  (2) Knew the circumstances  E.g., sexual assault. The crown has to prove that there was no consent, that the accused knew that there was no consent. If the accused didn’t know; there’s no offence  (3) Intended the consequences (specific intent)  More often than not the crown has to prove that the accused intended the consequence. Crimes where the accused intended the consequence is called ‘specific intent crimes’  Offences are usually defined with words like “with the intent to”, “did willfully”, and if those words are referring to consequence; they’re talking about specific intent crimes  Assault causing bodily harm, the crown only has to prove that the accused assaulted the victim and then that led to bodily harm. They don’t have to prove that the accused intended to cause bodily harm  If the offence was defined as “the accused assaulted the victim with the intent to cause bodily harm”, then that would make it a specific intent crime.  (4) Sometimes, some additional intent; additional state of mind the crown has to prove  E..g, in theft cases, the crown has to prove that the accused fraudulently did something. This fraudulent state of mind, this criminal state of mind.

States of Mind  Intent  What did the accused intend?  Difference between intent and desire.  E.g., I went to the dentist because I intended to, but didn’t want to be there  Knowledge (and wilful blindness)  Recklessness  Aware of the risks of doing something but you do it anyway. What you’re doing may cause harm, or property harm. You can be guilt of most crimes through recklessness, you don’t have to intend harm, recklessness is often enough.  Negligence  You can be guilt of a crime because you didn’t fulfill your legal duty. Negligence offences have a state of mind of carelessness, of not living up to the standard of a reasonable person.

So, you can be guilty of a negligence offence, not because of what you intended but because a reasonable person wouldn’t have done what you have done  E.g., Dangerous driving,  Strict liability  Accident  No one is guilty if the incident was purely accidental 

R. v. McCormick (1968, Qué. Q.B.)  In 1967, Mr. McCormick was a student lucky enough to get a job working at expo67. He drove a petty cab; a vehicle bike thing that drove people around the fairgrounds. On June 8th, he went to a brewery pavilion and got drunk. In his state of intoxication, he came up with the idea to take the flag down from the Iranian pavilion and then raise it on the flagpole of the Israel pavilion. He got caught doing this.  McCormick’s argument; which the queens court accepted; was that he didn’t have a fraudulent intent, he didn’t have a guilty state of mind  The court acquitted him saying; “This appeal falls into the category of case in which a normally law abiding person who has no criminal record commits more or less on the spur of the moment a stupid or reprehensible act by taking something that does not belong to him because at the time and in the frame of mind he then was in it seemed like a good joke or prank. what was done, may to some people seem reprehensible and might possibly subject the accused to some punitive measure but not in my opinion subject them to conviction as common be and to a criminal record for the future”. (There was no criminal state of mind)  The offence of theft requires that the accused took something with the intent to deprive the owner temporarily or absolutely of it. However, imbedded in the definition of theft is that the intent has to be fraudulent and without color of right to the other person

R. v. Wilkins (1964, Ont. C.A.)  Wilkins saw a traffic police officer starting to write a ticket to put on a car that belonged to a friend, Wilkins tried to intervein and the cop told him he’s still going to write out the ticket. Wilkens threatened that if he wrote a ticket, that he would take off on the officers motorcycle. He followed through with that threat and rode off on the officer’s bike. He didn’t go far, but it was a nuisance to the officer  Wilkins was charged with theft of the bike.  The court saw this as a prank. They said the intent to perpetrate this joke was incompatible with the evil intent of theft  Technically guilty because the actus reus is made and there is the intent to deprive the owner temporarily of the property. But because he didn’t have that criminal state of mind, that fraudulent state of mind, he was acquitted

R. v. Kerr (1965, Man. C.A.)  Kerr’s passion was showing dogs. He took part in a dog show in Winnipeg, people came from all over Canada for the dog show. Mr. Kerr did very well; he was a very prominent

businessman in Winnipeg. Him and his dog did very well at the dog show. He celebrated his victory starting the afternoon of sept 30th 1964, that ended early in the morning oct 1st; Mr. Kerr was at the airport seeing people off. He was on his way out of the airport in a drunk condition and he took a cyndrical ashtray as a souvenir and drove home. Someone got his license plate and the police went to his home and they investigated the ashtray theft. No one really cared that he was drunk when he drove home, but they charged him with theft of the ash tray. He was very drunk when he took it, the next morning when the police went to charge him of theft, he had no recollection of taking the ashtray.  The court again acquitted him for not having the state of mind of theft. He got a break because he was drunk R. v. Dewit and Sierens (1981, Man. Prov. Ct.)  Were a couple guys who decided they were going to teach their friend a lesson. The friend always left his timber shack unlocked, they decided to go to the friend’s house and empty it out to teach him how easy it was to get in. The friend got home and wasn’t happy of course, but the friends were charged with theft. They were of course acquitted on the basis that this was a prank; their intentions were good and there was no fraudulent intent

R. v. Ramsden (1980, Ont. Prov. Ct.)  The accused (students) celebrating the end of term at Trent University, While celebrating at a pub, they all get pretty drunk and decide to form a group of CARTs, which stood for ‘The Committee against Racism and Tackiness. The first order of business for the organization was to drive around and collect all the lawn ornaments that the people had left outside; black jockeys, pink flamingoes, etc. So, they were going to free the slaves of Peterborough. They drove around ate night, early mornings after partying and collected a whole bunch of things. The intention was to take these figures and line them up outside of the employment office, unfortunately snow white was damaged during travel and some owners were infuriated, one woman said she was afraid to put her rabbit out again (had been out for 30 years). The people in Peterborough were outraged.  The judge didn’t let them off. The judge took into account that the community was alarmed by this, people took more security measures to protect their black lawn jockeys, the judge ended up finding everyone guilty; fined them $200 and put them on probation for 2 years. G.L. Williams (360/350)  What, them, does legal mens rea men? It refers to the mental element necessary for the particular crime, this mental element may be either intention to do the immediate act or bring about the consequences or (in some crimes) recklessness as to such act or consequence…Some crime require intention and nothing else will do, but most can be committed either intentionally or recklessly. Some crimes require particular kinds of intention or knowledge...