Burden of Proof4
1. Legal/Persuasive Burden of Proof4
2. Evidential Burden4
3. Section 11(d) violation4
4. Section 15
A. Act or Omission6R. v. Instan6People v. Beardsley6R. v. Thornton7R. v. Urbanovich7R. v. Ssenyonga7
C. Causation8R. v. Smithers8R. v. Duncan9R. v. Johnston9R. v. Nette9R. v. Blaue9R. v. Cribbin9R. v. Harbottle10
Absolute Liability11Sault. St. Marie11Reference Re: Section 94(2) of the Motor Vehicle Act12
Strict Liability12R. v. Wholesale Travel Group12
Negligence13R. v. Creighton  SCC – p.8013R. v. Browne (1997)14R. v. Naglik14R. v. Hundal14
Intention15Third-Party Liability15R. v. Vaillancourt16
Corporate Homicide16Criminal Prosecution of Corporations for Defective Products (Vandall)16 Criminal Liability of Organizations17Corporate Homicide19
General Assault201. Fights202. Sports Context and Implied Consent21
Sexual Assault22R. v. Ceurrier23R. v. Williams 23
Elements24Does the accused fall w/in s. 43?24Does the victim fall w/in s. 43?24Was the force corrective?24Was the force reasonable?25
Cases25R. v. Ogg-Moss25R. v. Dupperon26
Offences to which it does not apply27
Cases27R. v. Lepage27R. v. Matsuba27R. v. Stewart27
Mistake of Fact281. Air of Reality?282. Statutory Limitations (objective riders)293. Evidence of Past Sexual History29
Mistake of Law31
General Principle: Mistake of Law is No Defence31Applications of General Principles31
Exceptions to the General Principle321. Mistake going to Mens Rea Element of the Offence322. Officially Induced Error:323. Impossibility32
4. Police Officers and s. 25(2)33
Color of Right33Section 492(2)34Section 41(1)35
B. Fitness to Stand Trial36
C. NCRMD37Test37Burden of Proof37Results37
Intoxication (Partial Defence)39
Extreme Intoxication39Charter Challenges to s. 33.140
General Test Applicable to all Cases Involving Automatism (Stone).40 Step 1: Establish a Proper Foundation for a defence of Automatism40 Step 2: Determining Whether to Leave MD or Non-MD Automatism with the Trier of Fact41 Possible Outcomes:42
Provocation Test (Hill)43
Charter Issues?44Femicide44Homosexual advances45
Residual defence of rage45R. v. Parent  SCC46
Rights of the Accused Implicated by the Trial Process46
The Order of a Trial47
Self Defence50UNPROVOKED ASSAULT – s. 34(1)51PROVOKED – s.3551THIRD PARTY – s.3752PEACE OFFICERS – s.2552UNPROVOKED ASSAULT CAUSING DEATH OR GBH – s.34 (2)52WIFE BATTERING AND SELF-DEFENCE53
1. Does the accused fall under the CL defence of s. 17?55
2. Section 1755
TEST (R. v. Perka)59(1) Did there exist an urgent situation of clear and imminent peril?59 (2) Was compliance with the law demonstrably impossible?60 (3) Wasthere proportionality between the harm inflicted and the harm avoided?61
Broadening the Defences61
Entrapment621. Was there entrapment?632. Should there be a stay of proceedings?643. Was there an informer involved?64
Burden of Proof
1. Legal/Persuasive Burden of Proof
• QOF• Usually on Crown to prove BEYOND A REASONABLE DOUBT• This burden is constitutionalized under s. 11(d) “presumption of innocence” (In order for defence to exculpate themselves they must only raise a reasonable doubt as to their guilt. • Jury must be charged as to what constitutes “beyond a reasonable doubt” and examples must be given(Lifchus (QOL)
2. Evidential Burden
• QOL• Requires that a party who wishes to rely upon a legal rule or defense to introduce sufficient evidence to support the proposed argument • SUFFICENT EVIDENCE=enough evidence to put the evidence at issue • Possible to have a violation of s. 11(d) if the evidentiary burden is coupled with a mandatory presumption of guilt (v. permissive) ( Boyle
3. Section 11(d) violation
• REVERSE ONUS (where the burden is placed on the accused on the BOP= Prima Facie violation (except in the regulatory context: Richards) • Re’d for s. 11(d)
1. Accused must be proven guilty beyond a reasonable doubt 2. State must bear the burden3. Criminal prosecutions must be carried out in accordance with lawful procedures and fairness. • Persuasive (or legal) burdens are more likely to attract constitutional arguments for violating s.11 than evidentiary burdens are ( But evidentiary burdens are not immune from judicial scrutiny (if paired with mandatory presumption of guilt ( Boyle and Downey)
CASES• Boyle( It was held that s.354(2) of Code offended s.11(d) of Charter because the section was said to require conviction if an accused failed to introduce evidence suggesting no knowledge of the fact that a vehicle was obtained by criminal means (EVIDENTIARY BURDEN + MAND. PRESUMP OF GUILT=VIOLATION) • R. v. Whyte, SCC( Whyte was charged with driving under the influence. s.237(1)(a) of the C.C. violated s.11(d) of the Charter because if you are in driver seat intoxicated- it is assumed you will drive. The court held that s.237(1)(a) violated s.11(d), but saved under s.1- b/c hard to prove drinking with intent to drive * protection of soc important* • R. v. Holmes, SCC( Members of the court disagreed with respect to the proper interpretation of the meaning of the burden of proof in s. 309(1) of the C.C, which states that if, “without lawful excuse, the proof of which lies upon him”, a person is found in possession of instruments suitable for house braking in circumstances giving rise to a reasonable interference of intention to housebreak, then that person is guilty of the offence. It was held that s.309(1) violated s.11(d) of the Charter • R. v. Chaulk, SCC( Court ruled that s.11(d) of the C.C violated b of s.16(4) of the Charter (reverse Onus) by requiring that an accused prove alleged mental disorder on a balance of probabilities. The court held that such a provision offends the Charter by presuming a factor required for guilt-sanity, but went on to rule that it can be justified under s.1 (see also Stone and Daviault) • R.v. Richard ( The court held that s.11(d) was not offended when, in the regulatory context where imprisonment is not an available punishment, an offender is presumed to have waived s.11(d) rights by failing to respond to a procedural scheme, such as the NB act, in which adequate safe guards are in place (REGULATORY CONTEXT=NO VIOLATION)
4. Section 1
• OAKES TEST1. Pressing and Substantial Objective2. Proportionalityi. Rational Connectionii. Minimal Impariment [Note: Most cases that fail, fail at this stage] iii. Deleterious Effects
• Downey v. R, SCC( Where the shifting of the evidential burden to the accused regarding the “pimping presumption” in s. 212(3), with a mandatory conclusion of guilt should the burden not be met, was held to offend s. 11(d). BUT was saved by s.1 ( If man was living off avails of prostitution automatic presumption arose that he was guilty of pimping as it was difficult to get women and girls to testify against their pimps as they feared violence • Whyte, Downey, Chaulk = also saved by s. 1.
• Legal element of an offence• Must be proven beyond a reasonable doubt by the Crown • Accused must commit at the same time as the fault element = SYMMETRY WITH MENS REA
• Includes three elements:1. Act/Omission2. Volunariness3. Causation
A. Act or Omission
1. Act or Omission?• If Act, then go to voluntariness• If Omission then need to ask DOES A DUTY EXIST???
2. If an Omission, does a LEGAL duty exist?
• The Duty may be found in the CC or Imported from CL • Sections 215-218 and sections 219, 220 and 221 (Criminal Negligence Causing Death). (Even for some CC sections, you made have to go the CL if specific relationship isn’t set out in the code i.e. s. 215.1(c) (i) • Must be a Legal and NOT a moral duty (Beardsley) • Legal Duty Exists (at CL) only for certain types of relationships i.e. of Care and Control (Beardsley).
R. v. Instan
• niece found to not have provided necessities of life to aunt • factors establishing a duty:i. niece was living off auntii. aunt was wholly reliant on the niece• argument seems to hinge a lot of $ support by the aunt – BUT why do you say b/c someone provides for you financially you owe them a duty? • Every legal duty is founded on a moral obligation. D was under a moral obligation from which arose a legal duty • difficult argument to make that you’re going to start seizing people with duties that are not normally imposed
People v. Beardsley
• married guy with girl who took sleeping pills and died in his basement • held: NO duty of legal protector b/c she was not his wife – this was only a moral obligation but not a legal one • . NO DUTY B/C NOT UNDER RELATIONSHIPS COURT’S RECOGNIZE: a.) man and wife, b.) parent-child, c.) master-seaman • unlike Instan she could have left – court doesn’t think too highly of her actions either (partly responsible)
R. v. Thornton
Facts: Defendant donated blood to the Red Cross knowing that he was HIV positive and did not report this to any medical professionals. Defendantalso knew that Red Cross would not accept blood that was HIV positive. (TJ convicted accused of committing nuisance s. 180 as his omission (i.e. failure to inform) breached a legal duty and endangered the lives or health of the public • s.180(2) of the Code holds that everyone commits a common nuisance who does an unlawful act or fails to discharge a legal duty thereby endangering the lives or health of the public. Held: No unlawful act, therefore must determine whether there existed a legal duty not to donate contaminated blood. No duty exist in the CC but: • At common law, duty exists to refrain from conduct which would cause foreseeable injury (Donnahue v. Stevenson) TORT LAW. Judge applied this common law duty to common nuisance and held that the accused’s omission (i.e. failure to inform) breached this duty as the omission would cause foreseeable injury. • problematic: large duties imposed on people they might not know about
3. If a Duty exists, has it been breached?
R. v. Urbanovich
• s.215 – duty of persons to provide necessaries of life for a child……if failure to provide necessaries results in….s.219 • s.220 (Criminal Negligence Causing Death)• baby died in parents care, although the wife did not inflict the injuries (the husband had been injuring the child for a long time) and although she had taken the baby to hospital she’d never given full details • Issue: Mother and father owe a duty of care towards their child ( what does this duty involve? Duty to provide the child with necessities of life and with medical aid [Was the duty to provide her child with medical aid breached by mother?] • Held: Duty because she was the protector and she did NOT discharge it ( criminal negligence causing death • test to see if she breached duty:
o was the child in need of medical attention?o was the accused aware that the child was at risk unless help was quickly provided? • although she had taken child to the hospital: (i) she did not disclose all info to Dr; and (ii) she waited to take the child tothe hospital • have to wonder if she is being beaten too (represented by the same lawyer) • dissent: numerous trips to the hospital seem to negate criminal negligence
R. v. Ssenyonga
• man who knew he was HIV positive concealed this and infected 3 women through intercourse ( charged with common nuisance • held: NO conviction b/c women were not part of the “general public” (distinguished members of public as opposed to the individual) o sexual assault charges dismissed b/c they had given their consent and the fact that he had concealed his HIV status did not negate consent • seems completely inconsistent from Thornton
• Common law requirement that actus reus or physical act/omission must be voluntary and willed ( Where the accused acted involuntarily, this state is called automatism and is divided into two subcategories: sane automatism (which results in absolute acquittal) and insane automatism (which invokes mental disorder framework prescribed by s.16 of Code)
• Forms of sane automatism:o Voluntary Intoxication (King)o Physical Blow (Physical Blow)o Psychological Blow (Rabey)o Sleepwalking (Parks)
o Must prove both FACTUAL and LEGAL Causation (Smithers) o Crown must prove beyond a reasonable doubt.o Factual Causation=significant contributing cause (Nette: Manslaughter and 2nd degree) o 1st degree murder requires “substantial and integral contribution” (Harbottle)
1. Was there factual causation?
R. v. Smithers
• Smithers punches Cobby to the head twice and then kicks him in the stomach. He died due to aspiration of foreign materials present from vomiting .Evidence suggested the vomiting was either sptontanous or caused by the fear or both and that the aspiration was either spontaneous or caused by the deceased faulty epiglottis or the kick or both • held: kick caused the death b/c it was a contributing factor at least beyond the de minimis (even though could not say with precise certainty what caused the death • ratio: Need to show both FACTUAL AND LEGAL and test is that needs to be a cause outside the de minimis.
R. v. Duncan
o Court held that no causation existed as act performed by the accused may not have caused victim’s death ( Expert testimony indicated that cardiac arrest could have been caused by stab wounds inflicted by accused or that cardiac arrest could have been caused by unrelated heart condition
R. v. Johnston
• taxi driver took jacket from intoxicated passenger who couldn’t pay fare (collateral) and left her at address where no one was home – driver asked dispatch to call police to check on PL but dispatcher though unnecessary ( passenger froze to death overnight • held: Acquitted ( could NOT prove that the loss of one jacket (she had two) caused the death
R. v. Nette
• Pl tied up old woman during robbery who died• held: guilty of 2nd degree murder b/c tying up contributed to death • majority: new test for causation of 2nd degree murder: a “significant contributing cause” • Approved of the test for 2nd degree murder andunlawful act first degree, limiting the more stringent test from Harbottle to first degree murder.
2. Was there legal causation?
o Is it somehow just to attribute causality to the accused for a particular consequence? o Can be found in some CC sections: 222 (5) (6), 224, 225, 226, 228 o Where the Code doesn’t provide, look to the CL i.e. Thin Skull (Smithers and Blaue) and Forseeability.
R. v. Blaue
( the accused had argued that he did not cause his victim’s death because she, as a Jehovah’s Witness, refused blood transfusion in treatment for 4 stab wounds, including one in her lung that would have saved her life. This was rejected. ( see also s. 224 and 225 and 226
R. v. Cribbin
(Contributing cause “beyond a de minimis” range combined with constitutionally required fault element in Creighton= no danger that morally innocent person might be convicted of manslaughter.
R. v. Harbottle
( court held that a more stringent test for legal causation is required in the case of first degree murder. The crown must prove that the accused participated in the murder in such a manner that he was a “substantial an integral cause of the death” and where” there was no intervening act of another which resulted in the accused’s no longer being substantially connected to the death.
Different actus reus and mens rea must be proven depending on whether thecharge is murder, unlawful act manslaughter or manslaughter by criminal negligence |Unlawful act manslaughter (s.222): |Manslaughter by Criminal Negligence |Manslaughter | |1. Unlawful act = dangerous |(s.219) |1.Conduct causing death of another person; AR| |2.Marked Deviation from std of care that a |1. Proof of Crim. Neg. set out in s. |2.Fault short of intention to kill (SF of | |reasonable person would exercise AR |219 [actus reus + reckless disregard|bodily harm, OF of death or bodily harm) MR | |3.Foreseability of harm as a consequence of the |for lives + safety of others (mens |Two Types: | |unlawful act |rea)] |a.) unlawful act causes death | |Causation |2.Causation |b.) criminal negligence | |Death of human being |3.Death of a human being | |
Mens rea – the mental element of fault associated with the commission of an offense ( Did the accused intend:o To do the act or perform the actus reuso To bring about a particular consequence from the commission of the the actus reus or act ( (i.e. intended to kill the person, inflict grievous bodily injury, etc.)
o Is the test for mens rea, objective or subjective:o Subjective: what was the accused thinking or intending during the commission of the actus reus o Objective: what a reasonable person would have thought or intended while committing the actus reus
Objective vs. Subjective Test:|Subjective: what was the accused thinking or intending during the|Objective: what a reasonable person would have | |commission of the actus reus (act/omission) |thought/foresaw/intended while committing the actus reus | |- looks at state of mind (less likely to be unconstitutional!) |(act/omission)| | |* Only exception is incapacity = too young, mentally/physically | | |challenged. |
________________________________________________________________________ Steps:1. Identify the fault element/mens rea for the offence (7 recognized forms outlined in detail below): General Tips:• Read the relevant statutes and Criminal Code sections • Does it contain mens rea language such as “willfully” “with intent” “knowingly” “intentionally” etc.? • Is it a provincial or federal offence? If provincial, more likely be absolute or strict liability • Is offence penal in the ‘true sense’(? If yes, than cannot be an absolute liability offence • Look at the common law
2. Ask if offence is “regulatory,” “public welfare,” per R. v. City of Sault Ste Marie. If so, its either Strict Liability or Absolute Liability:
3. May want to consider whether there are any potential Charter challenges. • Section 7?• Section 11(d)?• Section 1?
• Absolute liability as a fault element requires only that the prosecuter prove actus reus of the offence, with no avenues open to the accused other an actus reus defences. • Traditionally for regulatory offences where the public welfare was at stake
Sault. St. Marie
• Created a new offence of “Strict Liability” w/ a defence of duediligence in which public welfare offences would now prima facie fall. Ratio: There is a “halfway house” between mens rea and absolute liability. There are cases where the accused should be allowed to show due diligence on a balance of probabilities. • prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act • defendant must establish only on the balance of probabilities that he has a defence of reasonable care.
Therefore, now there are three categories of offences instead of two: a) Offences requiring proof of mens rea (true crimes) ( true crimes b) Offences where there is no necessity for the prosecution to prove mens rea, leaving it open to the accused to avoid liability by proving he took all reasonable care i.e. due dilligence (STRICT LIABILITY) ( public welfare offences prima facie fall here c) ABSOLUTE LIABILITY where it is not open to the accused to exculpate himself. ( those offences where the legislature has made it clear that guilt will follow merely with proof of the proscribed act.
Reference Re: Section 94(2) of the Motor Vehicle Act
• Ratio: absolute liability will offend s.7 where it has the potential to deprive of life, liberty or security of the person (i.e. imprisonment) • administrative expediency should only arise under exceptional circumstances • distinction b/w absolute and strict liability can’t be upheld and not saved by s.1 b/c of risk to liberty of individual NOTE: R. v. Pontes(confirmed the constitutionality of absolute liability offences where the offence permits only a fine as a penalty.
• Majority of regulatory offences characterized as Strict Liability unless something in statute that characterizes them as Absolute Liability ( new from Sault Ste Marie
• Strict Liability Definition: After it is proven that the accused performedthe prohibited act or omission (actus reus) beyond reasonable doubt, the burden shifts to the accused to exculpate him/her on the balance of probabilities. o Accused has two ways to exculpate himself: (1) acting on reasonable mistake of fact (R. v. Ellis-Don), and (2) exercising due diligence (consistent with what the reasonable person man would have done under the circumstances) (R. v. City of Sault Ste Marie). o Fault element is negligence for these types of offences (Court said not unconstitutional in Wholesale)
R. v. Wholesale Travel Group
Facts: Wholesale Travel Charged under the Competition Act s. 36(1) and 37.3(2) with false advertising. Advertising vacation packages at “wholesale prices” while at the same time charging a price higher than the cost incurred by the company in supplying those vacation packages.
Summary of holding:
• Majority found that negligence, as mens rea standard, did not violate s.7 because : 1. This standard was consistent with the historical idea of regulatory offenses that government should not have to prove full mens rea 2. Impractical for government to prove mens rea as too many resources are required to do so, whereas proving that accused breached reasonable standard of care is much easier 3. According to licensing theory, if someone voluntarily chooses to undertake regulated activities, the regulated actor must expect the imposition of a reasonable standard of conduct
• Reverse onus clause requiring accused to prove due diligence/non-negligence on balance of probabilities offended s.11(d) of Charter, but it was ultimately upheld because: 1. If accused’s burden was lowered to raising reasonable doubt, it would become almost impossible for the Crown to prove the elements of the offense ( impractical for government to prove full mens rea which would lead to a reduction in convictions and undermine the entire regulatory scheme 2. Only the accused has the knowledge within the context of regulatory offenses to prove fullmens rea as they were the only ones who knew what they were thinking
• Tested objectively or subjectively???APPROACH TO NEGLIGENCE (Creighton)1. Is there prima facie actus reus. This requires that the negligence constitute a marked departure from the standards of the reasonable person in all the circumstances of the case. 2. Is there prima facie mens rea in the form of objective (reasonable person in the circumstances of the accused) foresight or risk of harm bodily harm that is neither transient nor trivial. 3. Is there a reasonable doubt as to the lack of capacity to appreciate the risk? If yes then must ask whether the accused possessed the requisite capacity to appreciate risk flowing from his conduct?
Provisions requiring negligence as the fault element of mens rea include: 1. Criminal negligence (s.219,220,221)2. Failing to provide the necessities (s.215) (Naglik) 3. Dangerous driving (s.249) (Hundal)4. Careless handling of a weapon [s.86 (2)]
R. v. Creighton  SCC – p.80
• Def charged with s.222 “unlawful act manslaughter” after he injected the victim with cocaine. Challenge to the constitutionality of obj. test. Is this a crime of sufficient stigma to require a subjective test??? • Ratio: only need foreseeability of the risk of bodily harm for “UAM” (objective test) • this articulation of standard of “f/s risk of harm” does NOT violate s.7 • Mens rea = “objective foresight of risk of bodily harm that is neither trivial nor transitory in nature” (he could have f/s the risk of bodily harm and should have informed himself if he didn’t know) o The objective test is warranted due to the lower stigma attached to manslaughter. o Symmetry between actus reus and mens rea can be relaxed in accordance with the thin-skull principle.
R. v. Browne (1997)
• Def (drug dealer) undertook some steps to perform promise to take his friend to hospital after she swallowed bag of cocaine – he did but only by calling taxi hours later • held: acquittal – no evidence any other course of conduct (calling ambulance?) would have saved her life • q/v to Creighton – more of an omission (they say) – both responsible for their own actions (but are they really dissimilar) • in Creighton a lot placed on fact that he did the drug injection
R. v. Naglik
• failure to provide necessaries of life s. 215(2)• objective test BUT were willing to consider some personal characteristics of the accused
R. v. Hundal
SCC held that fault element within the context of dangerous driving is a modified objective test: based on the context of the accused driver, was his conduct a marked departure from that of a reasonable driver?
• Tested Subjectively• Wilful ignorance exists when: (1) The accused suspects that certain facts exist or that a certain consequence may ensue; (2) but deliberately refuses to consider or acknowledge the risk. • Not specified in the code but may be read in by the courts as another form of proof of recklessness. • Mens rea can be satisfied if the accused believes that s/he is undertaking an illegal act, but wilfully “shuts his/her eyes” as to what the specific illegal act was (R. v. Blondin).
• Tested Subjectively• Mens rea of recklessness is proven when: (1) The accused recognizes the risks associated with his actions; (2) but proceeds to commit the act with this knowledge in mind. • Offences include: arson (s.433) & murder (s.229).
• Judges may hold that proof of a reckless state of mind is sufficient to sustain conviction for an offence that has intention or knowledge as a mental element (R. v. City of Sault Ste Marie).
• Tested subjectively• Specific Code provisions require that the accused possess a specific intention or knowledge: o s.136: fabricating evidence requires “intent to mislead” o s.229(a)(i) for murder: accused meant or intended to cause death o Intention is tested subjectively.
• Courts sometimes read in intention/knowledge (Sault Ste Marie)
• Section 21(2): Allows for an objective test of forseeability for crimes linking the accused to the primary offender. • R. v. Logan (1990): s. 21(2) read down for Murder and Attempted Murder to require SUBJECTIVE FORSEEABILITY • R. v. Jackson: confirmed Logan that objective forseeability for manslaughter is constitutional. • For sexual assault causing murder, the accomplice can be convicted of manslaughter as a party to first degree murder a) they were a party to the assault and b) they knew the assault was likely to cause some harm short of death (R. v. Kirkness, R. v. Jackson) SCC • For accomplices to a murder, the starting point for the jury should be that non-accidental presence at a murder presumes guilt. But to render an accomplice responsible for first degree murder, need to prove s/he aided in the planning or deliberation of the murder, or that s/he intended to abet a planned and deliberate murder (R. v Twiggie). Sask C.A.:• Gang rapes: Say that physical presence is NOT enough
o Crown must