Criminal Law Summary

Burden of Proof4

1. Legal/Persuasive Burden of Proof4

2. Evidential Burden4

3. Section 11(d) violation4

4. Section 15

Actus Reus5

A. Act or Omission6 R. v. Instan6 People v. Beardsley6 R. v. Thornton7 R. v. Urbanovich7 R. v. Ssenyonga7

B. Voluntariness8

C. Causation8 R. v. Smithers8 R. v. Duncan9 R. v. Johnston9 R. v. Nette9 R. v. Blaue9 R. v. Cribbin9 R. v. Harbottle10

Mens Rea10

Absolute Liability11 Sault. St. Marie11 Reference Re: Section 94(2) of the Motor Vehicle Act12

Strict Liability12 R. v. Wholesale Travel Group12

Negligence13 R. v. Creighton [1993] SCC – p.8013 R. v. Browne (1997)14 R. v. Naglik14 R. v. Hundal14

Willful Blindness14

Recklessness14

Intention15 Third-Party Liability15 R. v. Vaillancourt16

Corporate Homicide16 Criminal Prosecution of Corporations for Defective Products (Vandall)16 Criminal Liability of Organizations17 Corporate Homicide19

Consent19

General Assault20 1. Fights20 2. Sports Context and Implied Consent21

Sexual Assault22 R. v. Ceurrier23 R. v. Williams [2003]23

Correction24

Elements24 Does the accused fall w/in s. 43?24 Does the victim fall w/in s. 43?24 Was the force corrective?24 Was the force reasonable?25

Cases25 R. v. Ogg-Moss25 R. v. Dupperon26

DeMinimus26

Offences to which it does not apply27

Test27

Cases27 R. v. Lepage27 R. v. Matsuba27 R. v. Stewart27

Mistake of Fact28 1. Air of Reality?28 2. Statutory Limitations (objective riders)29 3. Evidence of Past Sexual History29

Mistake of Law31

General Principle: Mistake of Law is No Defence31 Applications of General Principles31

Exceptions to the General Principle32 1. Mistake going to Mens Rea Element of the Offence32 2. Officially Induced Error:32 3. Impossibility32

4. Police Officers and s. 25(2)33

Color of Right33 Section 492(2)34 Section 41(1)35

Incapacity35

A. Age35

B. Fitness to Stand Trial36

C. NCRMD37 Test37 Burden of Proof37 Results37

Intoxication38 Intoxication Generally39

Intoxication (Partial Defence)39

Extreme Intoxication39 Charter Challenges to s. 33.140

Automatism40

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

Provocation43

Provocation Test (Hill)43

Charter Issues?44 Femicide44 Homosexual advances45

Residual defence of rage45 R. v. Parent [2001] SCC46

Trial Process46

Rights of the Accused Implicated by the Trial Process46

The Order of a Trial47

Self Defence50 UNPROVOKED ASSAULT – s. 34(1)51 PROVOKED – s.3551 THIRD PARTY – s.3752 PEACE OFFICERS – s.2552 UNPROVOKED ASSAULT CAUSING DEATH OR GBH – s.34 (2)52 WIFE BATTERING AND SELF-DEFENCE53

Duress55

1. Does the accused fall under the CL defence of s. 17?55

2. Section 1755

2.CL Defence56

Necessity59

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) Was there proportionality between the harm inflicted and the harm avoided?61

Broadening the Defences61

Entrapment62 1. Was there entrapment?63 2. Should there be a stay of proceedings?64 3. 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 burden 3. 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 TEST 1. Pressing and Substantial Objective 2. Proportionality i. Rational Connection ii. 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.

Actus Reus

• 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/Omission 2. Volunariness 3. 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 aunt ii. 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. Defendant also 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 to the 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

B. Voluntariness

• 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)

C. Causation

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 and unlawful 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.

Mens Rea

Different actus reus and mens rea must be proven depending on whether the charge 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 reus o 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

• 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 due diligence 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.

Strict Liability

• 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 performed the 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 full mens rea as they were the only ones who knew what they were thinking

Negligence

• 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 [1993] 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?

Willful Blindness

• 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).

Recklessness

• 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).

Intention

• 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)

Third-Party Liability

• 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 prove not only actual aiding or encouragement but intentional or “wilful” encouragement o R. v. Salajko and R. v. Clarkson – “passive encouragement” or “knowingly” standing by was insufficient.

R. v. Vaillancourt

• Facts: committed armed robbery when gun was discharged by accomplice killing the client – the appellant did not think the gun was loaded • charged under s.213(d): implicate person that was present at a homicide – this was all that was needed to convicted (if a murder occurred during another unlawful act) • ratio: conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. • Held: this section violated s.7 and NOT upheld under s.1 (potentially convict someone “blameless”)

Only provisions remaining to prosecute murder are ss. 229(a)(i), 229(a)(i)(i), 229(b).

Corporate Homicide

Criminal Prosecution of Corporations for Defective Products (Vandall) • Historically, corporations could not be prosecuted for a crime because: i. Corporation is not human ( therefore it cannot have intent* ii. Primary remedy available under criminal law (imprisonment) was not available to corporations

• Corporation was held liable for manslaughter in 1904 case, US v. Schaick for not providing life preservers on its steamship as by their, “misconduct, the life of a person was destroyed”, which was consistent with the offense of manslaughter

• Corporation was not held liable for homicide in 1909 case, People v. Rochester Railway as Court held that use of “another” within homicide provision precluded corporations from applying with it

• Model Penal Code is persuasive in deciding whether corporations can be held liable for homicide. Corporations should be held liable where: o Where particular statute expresses legislature’s intention to include corporations o Illegal act is performed by agent of employer who is acting within his scope of employment o Illegal act is performed for the benefit of the corporation o When act involved acquiescence of executives of the corporation and was within scope of employment

• Criminal prosecution of corporate crimes is inefficient because: o Product manufacturers are rarely sued because most cases involve negligence which is a different burden for complainant to prove o Statute of limitations apply and many suits are brought after limitation period has expired o Extremely expensive to commence legal proceedings that may last several weeks ( expert testimony, product testing, shifting though paper, etc.

o Punitive damages do not increase the manufacturer’s cost of doing business and therefore manufacturing defective products seen as efficient, why? • Law suit victories are rare

• Punitive damage awards are even rarer • When significant punitive damages are awarded, the Court often overturns it on appeal ( ex. appeal court overturned trial court’s decision to award $125,000,000 in punitive damages and awarded only $3.5 million to Ford which would represent the actual amount of money saved by Ford by not fixing tank

o Impact of negative publicity is not as adverse as anticipated and often unpredictable o Extremely difficult to prove causation

• In conclusion, corporate crime pays, unless the following improvements can be made: o Imprisonment of corporate executives ( executives responsible for the manufacture of defective products should be jailed, which is unfortunately, unlikely to occur as white collar crime is not as serious as other crimes o Fines equal to 1% of net profit ( as small fines lack any stinging power

Criminal Liability of Organizations

Mens rea and actus reus generally: i) may impute guilty mind to an organization through an agent of the organization, per ss. 22.1 and 22.2 ii) act may be direct (commission) or indirect (omission) if there is an unlawful act involved (see Corporate Homicide below) – must involve one or more representatives of the organization

Negligence Offences: Individual(s) within the organization must be party to the offence: S. 22.1 i) Was one representative – acting within the scope of his/her authority – party to the offence? ii) Were two or more representatives engaged in conduct – ACT or OMISSION – for which one representative acting within the scope of his/her authority would have been considered party to the offence? iii) Did the senior officer(s) responsible for the relevant area depart MARKEDLY from the STANDARD OF CARE that could have REASONABLY prevented the officer(s) from being considered party to the offence?

Non-Negligence Offences: S. 22.2 A. Was it a SENIOR OFFICER acting AT LEAST IN PART to BENEFIT the organization?

B. Direct commission/omission of senior officer? i) Did s/he act within the SCOPE of his/her authority?

C. Did a senior officer direct another? i) Did the senior officer have the mental state required to be party to the offence? ii) Act within his/her authority?

iii) Direct another to ACT or FAIL TO ACT so that the offence would be committed?

D. Did a senior officer fail to act? i) did the senior officer know that a representative of the organization is, or is about to be party to the offence? ii) Did the senior officer fail to take ALL REASONABLE MEASURES to stop a representative of the organization from being party to the offence?

iv) Was one representative – acting within the scope of his/her authority – party to the offence? v) Were two or more representatives engaged in conduct – ACT or OMISSION – for which one representative acting within the scope of his/her authority would have been considered party to the offence? vi) Did the senior officer(s) responsible for the relevant area depart MARKEDLY from the STANDARD OF CARE that could have REASONABLY prevented the officer(s) from being considered party to the offence?

• S. 735(1) – an organization convicted of an offence is liable, in lieu of any imprisonment that is prescribed as punishment for the offence to be fined except where otherwise provided by law:

a) indictable offence – in an amount determined by the discretion of the court b) summary offence – not exceeding $100,000

• Section 718.21 sets out aggravating and mitigating factors to consider in sentencing.

Corporate Homicide

s. 222(5) – culpable homicide: “A person commits culpable homicide when he causes the death of a human being”

Nature of the Offence 1. Was there an unlawful act?

– s. 222(5)(a) – culpable homicide by means of an unlawful act – s. 234 – manslaughter – Breach of PROVINCIAL STATUTE is a sufficient unlawful act: – R. v. DeSousa – R. v. Creighton – provincial offence can be the basis of unlawful act manslaughter – R. v. Curragh – the effect of an expiration of a limitation period for a provincial offence will only bar the prosecution of the provincial offence, but not the manslaughter/homicide offence

2. Was the death a result of negligence? i) CRIMINAL NEGLIGENCE: – s. 222(5)(b) culpable homicide by Criminal Negligence – “wanton or reckless” disregard?

ii) PENAL NEGLIGENCE: – failure to comply with a statutory duty to take care is penal negligence (Creighton and Gosset) – penal negligence can be the basis for the offence of unlawful act manslaughter (Gosset)

TEST = OBJECTIVE: i) foreseeable risk of bodily harm? ii) “marked departure” from the standard of a reasonable person (NOT wanton or reckless disregard)? iii) Consider all circumstances: what would the reasonably prudent person have done in the situation? iv) Onus of proof beyond a reasonable doubt is on the Crown (Creighton)

Consent

• Can be characterized as an element of the actus reus (where the code states) OR as a defence (vitiating AR) • Either way the defence bears the evidentiary burden and then the Crown must prove the absence of consent beyond a reasonable doubt. • Non-consent as an element of the actus reus can be

a) included in the wording of the CC (i.e. s. 265.1(a))

b) read in by the courts as part of the CL def. of the offence (Lemieux-B&E) • Successful defence= vitiates AR=ACQUITTAL

General Assault

Elements of Assault Causing Bodily Harm a) Intentional (Subjective Mens Rea) b) Application of Force (Objective) c) Causing Bodily Harm (Objective) d) Absence of consent (Subjective)

• Proof of absence of consent required for all assaults EXCEPT murder (Jobidon) Authority: STATUTORY: s.265(4) CC o s.265(1): a person commits an assault when: (a) without the consent of another person he applies force…..” o s.265(4): Accused’s belief as to consent – “where an accused alleges that he believed the complainant consented to the contact that is the subject matter of the charge, a judge, if satisfied there is sufficient evidence and that if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief”

• Limits: o s.265(3): “for the purpose of this section, no consent is obtained where the complainant submits or does not resist by reason of: a. the application of force to the complainant or to a person other than the complainant; b. threats or fear of the application of force to the complainant or to a person other than the complainant; c. fraud; or

d. the exercise of authority o Jobidon (SCC): you cannot consent to “serious, non-trivial harm” even if you’ve consented to some physical force

1. Fights

TESTED SUBJECTIVELY: Did the complainant consent to the fight???

Exception:

a) Fist fights involving the intentional application of force causing serious hurt or non-trivial bodily harm (Jobidon) b) Cannot consent to Domestic Assault (Stewart)

R. v. Jobidon Facts: Accused and victim involved in a bar fight in which accused punched victim rendering him unconscious. After becoming unconscious, accused punched victim 4 to 6 more times resulting in victim’s death

Issue: What is the scope of consent? How much violence can someone consent to?

Ratio: Court held that you cannot consent to serious bodily harm as it is against public interest. ( Consent is vitiated where one intentionally seeks to cause serious or non-trivial harm to another in the course of a fight or brawl ( Therefore, there is a limit to how much violence you can consent to even if you explicitly consent to the fist fight (as consent is automatically vitiated if other party intentionally seeks to cause serious bodily harm).

NOTE: note that in youth cases, verdicts have been inconsistent – R v W(G) (accused convicted) and R. v. M(S) (accused acquitted). Both courts mentioned the intentional application of force and the seriousness of the bodily harm as distinguishing factors.

2. Sports Context and Implied Consent

• Consent=Subjective but Implied Consent=objective criteria (LeClerc) • Implied consent to contact which is to be expected by participating in the game, but not that which is so dangerous as to be outside of the scope of the game, or that is of such a nature that no consent could be given (ie. Causes serious bodily harm). (Cey, LeClerc)

R. v. Cey (1989) • in hockey game the Def cross-checked from behind a player into boards ( significant injuries ( charged with “assault causing bodily harm” • held: could NOT consent to this type of bodily harm; likely has to do with the extent of the harm • ratio: when playing sports you impliedly consent to a certain level of harm/violence (but courts will draw lines) • It is clear that in agreeing to play the game a hockey player consents to some forms of intentional bodily contact and to the risk of injury thereof. However there are also some actions that are reasonably beyond that which someone is consenting to by agreeing to play the game

R. v. LeClerc

Facts: During a non-contact hockey game, accused hit victim in the back with a hockey stick. Victim was paralyzed from the neck down. The game’s referee described accused’s act as deliberate, vicious and resolving to cause injury. Accused was charged with aggravated assault.

Held: ACQUITTED: A player, by participating in sport such as hockey impliedly consents to some bodily contract necessarily incidental to the game but not to overly violent attacks (Cey) all of which should be determined according to objective criteria. • OBJECTIVE criteria; but with attention paid to the conditions under which the game is played (setting of the game, league, extent of force employed etc.) • The fact that it is a non-contact league is not determinative though, as infractions are an expected part of the game.

Sexual Assault

Elements of Sexual Assault: • Actus Reus: unwanted sexual touching: i. touching (objective) ii. sexual nature of conduct (objective)

iii. absence of consent (subjective) • Mens Rea: intention to touch, knowing of or being reckless of or wilfully blind to a lack of consent, either by words or actions from the person being touched (subjective)

• Definition: Criminal Code s. 273.1(1): “voluntary agreement of the complainant to engage in the sexual activity in question”

• As an element of the actus reus, consent is determined SUBJECTIVELY from the point of view of the COMPLAINANT. It is thus only an issue of the complainant’s credibility as a witness. The defendant’s belief in consent is irrelevant at this stage. R v. Ewanchuk

• Onus: burden on Crown to prove beyond a reasonable doubt that there was NO consent (tested subjectively from the POV of complainant) and the Def did not believe there was a defence (See Mistake of Fact)

Limits-Statutory: CC s.273.1(2): No consent where… a) expressed by a person other than the complainant b) complainant is incapable of consenting c) consent induced by abuse of power, trust, or authority d) complainant expresses a lack of agreement to engage in the acitivity e) complainant expresses lack of agreement to continue o CC s.265(3): No consent where complainant does not resist because of a) application of force

b) threats or fear of application of force c) fraud d) the exercise of authority o CC s.273.2: belief in the consent is no defence when: (a) the accused’s belief arose from the accused’s i. self-induced intoxication, or ii. recklessness or wilful blindness; or (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

Limits-CL: R. v. Cuerrier – consent to sexual activity vitiated by (a) dishonest act (or omission) + (b) significant risk of serious bodily harm (in this case, risk of infection with HIV)

R. v. Ewanchuk: No implied consent for sexual assault.

R. v. Ceurrier

Facts : Def had HIV and was told to use protection ( had unprotected sex with two women (both said would not have had unprotected sex with him if they’d known he was HIV+)

Issue: According to s.265(3) consent is vitiated by fraud. ( Is non-disclosure in this case considered fraud pursuant to s.265(3).

Held: guilty – aggravated assault • Cory: Non-disclosure is fraud that can vitiate consent but must be significant risk of bodily harm. • L’HD: focused on whether or not the person would have consented if they had known ( don’t need to think about the harm • McLachlin: characterize fraud as going to very nature of the act – interpret deceit as to STD as “fraud” if it vitiates consent

R. v. Williams [2003]

• Def and victim had unprotected sex and later he found out he was HIV+ but never told her • held: no evidence to establish the unprotected sex exposed her to significant risk of bodily harm (Cuerrier) since she was likely already infected when he got tested and learned of his HIV status. o his failure to disclose did NOT take away consent b/c it did not add to the risk • Ratio: it is the risk of harm that makes the consent important

R. v. Ewanchuk [1999] SCC – p.186

• Issue: is there a defence of implied consent? • Held: NO defence of implied consent in Canadian Law( possible the accused’s state of mind is relevant in regards to consent but only if it goes towards the “mistaken belief of fact” and toward mens rea (Not Consent and AR) • SCC: the implied consent from TJ and CA reinforced stereotypes about women: o didn’t resist violently

o what she was wearing and the fact she has a child and living with boyfriend ( not virginal so if you’ve had sex b/f why say no now o idea that “bad girls” invite rape

Correction

• Statutory defence: Contained in s. 43 of the Code : allows for force for correction against a child by a parent or person acting in the place of a parent (Code still states “Teacher” but removed by CFCYL) • Onus on accused for evidentiary and then on Crown to disprove beyond a reasonable doubt. • Successful defence=acquittal

Elements

Does the accused fall w/in s. 43?

Section 43 applies to: - Parents - Persons standing in the place of parents - an individual who has assumed all the obligations of parenthood (Ogg-Moss) Section 43 does not apply to -Teachers (CFCYL) -Mental Retardation Counsellors (Ogg-Moss)

Does the victim fall w/in s. 43?

Section 43 applies to children - “Child” refers to a person’s chronological age or relationship to a parent, not to their mental state or capacity (Ogg-Moss) - Section 43 DOES NOT apply to: - Children under the age of 2 (CFCYL) - Teenagers (CFCYL)

Was the force corrective?

Section 43 will NOT apply when the child is incapable of learning from the application of force (CFCYL) - If they have a mental disability such that the cannot learn from the application of force, then the force cannot be corrective (OggMoss)

-Children under 2 and teenagers don’t learn from correction (CFCYL) - Punishment motivated by anger, caprice, bad-humor, or arbitrariness will not be protected by s.43 (OggMoss, Dupperon) - The parent must have believed that there were “reasonable and probable grounds” to justify correcting the child (Dupperon)

Was the force reasonable?

-Def: “Minor Corrective Force of a transitory or trifling nature” (CFCLY)

-Force cannot be excessive – Community tolerance test: nature of offence calling for correction (altered in CFCYL), age, temperament of child, degree of gravity of punishment, circumstances under which inflicted and injuries caused (Dupperon)

- The nature of the offense requiring correction is not a relevant factor (CFCYL)

- LIMITATIONS ON WHAT IS REASONABLE (CFCYL) - corporal punishment of children under 2 is harmful to them & has no corrective value given their cognitive limitations; corporal punishment of teenagers is harmful since it can induce aggressive or antisocial behavior. - corporal punishment using objects, i.e. belts, rulers = physically & emotionally harmful - corporal punishment involving slaps or blows to the head is harmful - Reasonable force will never involve cruel, inhumane or degrading treatment - Corporal punishment by teachers is not reasonable, though they may use reasonable corrective force to restrain or remove children in appropriate circumstances

Cases

R. v. Ogg-Moss

Facts: Defendant was employee at institution for mentally disabled and was responsible for supervising group of residents. During lunch, victim who was incapable of speech and severely disabled spilt his milk to which the accused hit him with spoon.

Issue: Could the defendant rely on the defence of correction pursuant to s.43 of Code? ( NO: should be strictly interpreted because it makes an illegal activity legal and removes legal protection away from a vulnerable group

• s.43 only applies to parents or those standing in place of parent which the accused was not ( parents have responsibilities and obligations towards their children which were not present in this relationship ( parent can delegate authority to others to act in their place and in this case, authority was delegated to minister and not further delegated to accused employee

• s.43 only applies to children and victim was not considered a child by the Court ( victim did not fall within ambit of child as was defined by Court as he was neither of lineal descendant from accused nor was he chronologically under the age of majority. (Child is a transitory phase and labeling a challenged person a “child” would leave them w/o protection for life.

• s.43 also only applies to for corrective force. Here the victim was not capable of remember the punishment and so it couldn’t be used for correction.

R. v. Dupperon

Facts: Father charged with assault for strapping his 13 year old son across the barebuttox 10 times leaving four or five bruises on the boys left buttox. TJ found both that the strapping was not by way of correction and was not “reasonable force”

Issue: a) Was the strapping for correction? b) Was unreasonable force used?

Held: a) CA said that the TJ erred and the strapping was used for correction • It was done after he had been grounded several times, It was repeated after he “lipped off”, Michael was a behaviorally troubled child, Isnt an issue of whether the boy was actually deserving of punishment, but whether the adult honestly believed that the child was deserving of punishment. (This has since been overruled in CFCYL which says that the action being “corrected” plays no role) b) CA said the force used was unreasonable under the circumstances • Court must view both from an objective and subjective view; nature of the offence calling for correction, age and character of the child, degree of gravity of the punishment, injuries suffered etc. • Any punishment motivated by arbitrariness, caprice, bad humor, constitutes an offence

DeMinimus

• The maxim de minimis= the act is so minimal as to be trifling in nature: R. v. Lepage • Burden of Proof: Onus is on the accused to raise evidentiary burden; and then on Crown to disprove the defence beyond a reasonable doubt. • Basis: Common Law (imported through c. 8(3))

Offences to which it does not apply

De minimis is not applicable to certain crimes:

o Sexual assault cases (by implication since if implied consent is not available, then de minimis might be barred as well: Ewanchuk) o Domestic assault cases (generally): R. v. Stewart o Mischief causing damage to property: R. v. Clarke o Theft: R. v. Li

o Possession of drugs: R. v. Quigley

Test

Requirements discussed in R. v. Matsuba: 1) Must be an act that was actually tolerated by the community and not negatived by the person whose interest was infringed 2) The harm that the relevant law sought to prevent was not caused or threatened by the act. 3) The act was committed under extenuating circumstances outside of the intention of Parliament - AND, from Judge Russell in R. v. G(T):

4) Ask have all other defences been exhausted? 5) Ask are the consequences of conviction severe?

Cases

R. v. Lepage

Facts: When fire inspector asked accused to comply with fire regulations, he became belligerent and pushed or brushed up against the fire inspectors out of the way to leave the room. Accused was charged with assault and argued de minimis as defence ( accused did not intentionally apply force to inspectors

Held: No evidence to indicate that application of force was intentional or wrongful ( as accused’s conduct was so trifling in nature, principle of de minimis applies

R. v. Matsuba

• male teacher touched female student’s leg to see if she’d shaved • Held: Crown did NOT establish the Def intentionally touched the victim beyond a reasonable doubt ( not convinced the application of force r/q was met o even if Crown had proven case ( would have held that de minimis applied o de minimis was available b/c Crown and defence agreed it was NOT sexual assault

R. v. Stewart

• Def allegedly pushed the complainant (whom he cohabited with) after Def had been drinking ( prevented her from using downstairs phone to call police • Held: an assault beyond the de minimis • Ratio: need to think of the context of the case and who the parties are BUT not an appropriate level to any assumed consent to violence in a domestic relationship

Mistake of Fact

• CL defence (imported through s. 8(3)) • Vitiates Mens Rea=full defence=acquittal • Onus: Evidentiary (“air of reality”) on Accused and then to Crown to disprove defence.

CL Authority: o Wakil: Subjective perspective of accused re: facts is what counts o Pappajohn: ▪ Majority: defence must have an “air of reality” b/f can be put to the jury; accused may not rely on mistaken belief in consent where he is asserting consent and complainant is asserting non-consent (consent defence not mistaken belief in consent) – only knowledge of NO consent is enough to negate the defence ▪ Mistaken belief must be honest but does NOT have to be reasonable (subjective perspective of particular accused) (S. 273.2(b) alters this). o Ewanchuk: consent may not be implied; accused must honestly (not reasonably) believe that complainant communicated consent (passivity, silence or ambiguous conduct does NOT amount to consent)

• Test: an honest belief in a set of facts that if true would exonerate the accused Subjective examination of state of mind of accused. • This ‘subjective belief’ is subject to objective riders that have been imposed by the legislature (see below: Statutory Limitations).

1. Air of Reality?

• This is a question of law: evidentiary burden on accused that must be met in order for defence to be put to jury • In Park, L’Heureux-Dubé J.outlined relevant considerations for air of reality: o (1) Whether the totality of the evidence for the accused is capable of amounting to the defence of honest but mistaken belief in consent: ▪ What was the complainant’s actual communicative behaviour ▪ Totality of the evidence explaining how the accused perceived that behaviour to communicate consent o (2) Whether the totality of the evidence for the accused is logically inconsistent with the totality of the evidence that is not in dispute

• Even if the accounts are diametrically opposed, there will be an air of reality if it is possible to cobble together a narrative that is supported by some evidence – beyond accused’s mere assertion – that is not inconsistent with uncontroverted or totality of the evidence (Park) • At this stage should not weigh evidence or assess credibility (Cinous/Ewanchuck) • APPLICATION: Air of reality has been found on basis that complainant had no memory of what happened, no counter-narrative, and that on the accused’s version of events there was no force or violence (Esau, see also Osvath, R.B.; but see Cornejo, Malcolm)

2. Statutory Limitations (objective riders)

I. MISTAKEN BELIEF IN CONSENT: S.273.2: Belief in consent not a defence to charges under s.271, 272, or 273 when:

A. Accused’s belief arose from the accused’s:

i. Self-induced intoxication, or ii. Recklessness or willful blindness (codified Sansregret);