JUST 1020 Lecture Notes - Lecture 4: Absolute Liability, Indictable Offence, Blood Alcohol Content
Drinking and Driving Charges
Impaired Driving -253(a)
-
Care or Control –Impaired -253(a)
-
Drive Over 80 mgs -253(b)
-
Care or Control –Over 80 -253(b)
-
Impaired Bodily Harm -255(2)
-
Impaired cause death -255(3)
-
Refuse -254(2-4)
-
Approved Screening Device
-
Approved Instrument
-
Blood samples
-
Section 253
Every one commits an offence who operates a motor vehicle or vessel or
operates or assists in the operation of an aircraft or of railway equipment or
has the care or control
1.
while ability to drive is impaired by alcohol or a drug
(a)
having consumed alcohol in such a quantity that the concentration in the
person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres
of blood.
(b)
Multiple Convictions
An accused cannot be convicted of both offences under this section occurring at the
same time. (Houchen 1976)
-
Minimum punishment
Whether the offence prosecuted by indictment or punishable on summary
conviction
1st offence -fine not less than $1000
•
2nd offence -imprisonment not less than 30 days
•
3rd offence -imprisonment 120 days
•
-
Concept of Impairment
Impairment is defined as the deterioration of judgment, attention, sensory
perception, and coordination. The outcome of impairment is reduction in quality of
task performance or, in other words, diminished ability to perform skills including
driving.
What evidence do the police need?
→
-
Case Law –R.vs Stellato (1994)
Police formed opinion of impairment based on following:
Strong odour of alcoholic beverage on accused’s breath
-
Glassy and bloodshot eyes
-
Slurred speech
-
Unsteadiness
-
Erratic driving.
-
The accused appealed to the Ont Court of Appeal. The issue was the standard
of proof regarding impairment. The accused contended that the Crown had
an onus to prove “marked departure” from sobriety.
-
Ontario Court of Appeal
To convict an accused of impaired, Judge must satisfied that the accused’s ability
to operate a motor vehicle was impaired by alcohol or drugs.
-
If the evidence of impairment establishes “any degree” of impairment, ranging from
slight to great, impairment has been proved and the offence has been set out.
The “marked departure rule” is not the proper test for impairment.
→
-
R vs Pelletier (1989)
An accused may be convicted of this offence even though his impaired condition
was the result partly of alcohol AND fatigue.
-
Mens rea of Impairment Offence
Question whether mens rea relating to both the act of driving and to the state of
being impaired is an essential ingredient of the offence of Impaired Driving.
-
The only mental element involved in the offence of Impaired Driving is voluntary
intoxication. R vs Penno (1990)
-
R vs Lloyd (1988)
An automobile which is out of gas is still a motor vehicle for the purposes of this
section.
-
Ford (1982)
Charged with Care or Control
-
Drove to party, arranged for drive home
-
Got into driver’s seat, turned on engine, waited for friend.
-
SCC –“accused does anything whereby the vehicle may unintentionally be set in
motion creating the danger the section is designed to prevent”. (p. 27)
-
Definitions
Approved Screening Device (ASD):A device designed to ascertain the presence of
alcohol in a person’s blood. This device is not intended to provide a specific blood
alcohol concentration; instead, it provides a test result of pass, warn, or fail.
•
Approved Instrument:An instrument designed to receive and analyze a breath
sample for the purpose of measuring the concentration of alcohol in a person’s
blood. This device provides a specific blood alcohol concentration.
Intoxilyzer and Breathalyzer models.
→
•
BAC:Blood alcohol concentration.
•
BAT:Blood alcohol test
•
Section 254(2)
Police officer, reasonable grounds believes a person has alcohol or drugs in his body
and within the last three hours has operated a motor vehicle, whether in motion or
not to:
Submit to coordination test to determine whether a demand can be made for
the purposes of 254(3) or (3.1).
(A)
Demand Approved Screening Device. (B)
-
254(3) Approved Instrument
Impaired Driver
https://www.rt.com/viral/375128-impaired-driver-truck-state-trooper/
Blood Sample Warrant
Within the last four hours committed the offence under 253 and the person was
involved in an accident that resulted in death to another person or bodily harm to
another person or himself a justice can issue a warrant.
-
Blood Alcohol Concentration
This measurement quantifies the concentration of alcohol in a specific sampling of
blood. Specifically, BAC identifies the number of milligrams (mg) of alcohol in one
hundred millilitres (ml) of blood. Another way stated BAC is also a measure of the
difference between absorption and elimination rates.
-
BAC Curve
The fluctuating BAC that occurs during absorption, distribution, and elimination can
be described as a “BAC Curve”.
-
During the absorption stage, BAC rises rapidly. A maximum BAC is reached within
30-45 minutes of the last drink consumed.
-
During the distribution stage, BAC remains the same for about two hours.
-
During the elimination stage BAC declines slowly. After the two-hour constant BAC
stage, alcohol is eliminated at the slow rate of 10-20 mgs per hour, or an avg of
15mg per hour.
-
Relationship between Impairment and BAC
Some empirical evidence shows that impairment begins at low BAC levels.
-
The majority of people, but not all, suffer some impairment at a BAC of 100 mg.
-
Rutgers University reported that driving ability, in many people, but not all,
becomes impaired at a BAC of about 50 mgs.
-
Concept of Breath sample
Breath sample is a safe replacement for blood sample analysis.
-
An extended 30 second sample of breath blown into an instrument ensures that air
from the lungs is tested. Extended breath provides “deep lung air”. Scientific
theories emerged showing that concentrations of alcohol in “deep lung air” breath
will have constant relationships to alcohol levels in blood.
-
2100 parts of “deep lung air” contain the same amount of alcohol as one part of
blood. In other words, 2100 ml of air have same BAC as 1 ml of blood. The 2100 to
1 ratio usually results in “under-estimation” of BAC, which benefits the driver being
tested.
-
Time element 258 cc
As soon as practical
-
2 hours
-
2 samples –fifteen minutes apart.
-
Care or Control
Presumption 258 cc
•
Does this section infringe section 11(d) of Charter-the presumption of innocence.
-
Occupy driver’s seat
-
Aggravating circumstance 255.1
Over 160 mgs
-
Sobriety Tests
The Criminal Code does not authorize a demand to perform sobriety tests.
-
Ont Court of Appeal in R vs Saunders (1988) stated that sec 30(a) of HTA of Ontario
authorizes a police officer, by inference, to stop a car and require the driver to
undergo either an A.S.D. test, if reasonable suspicion exists of alcohol consumption,
or sobriety/coordination tests. However, the driver cannot be forced to perform
sobriety tests, nor can the driver be charged with refusing to perform sobriety
tests.
-
Random Stops
The Criminal Code does not address the issue of random stops.
-
SCC in R vs Dedman (1985) defined random stop as a stop “made on a purely
arbitrary basis, without any grounds for suspicion or belief that the particular driver
has committed or is committing an offence”.
-
The authority for police to stop motorists is found in provincial highway traffic
statutes.
-
Ont: HTA 198 –police can stop motorist for the purpose of determining whether
reasonable suspicion exists to make an A.S.D. demand.
-
Significance of Dedman
Police have common law authority to randomly stop motorists, but this authority is
not unlimited.
-
Here the S.C.C. ruled that a random stop, conducted as part of an organized
program to deter and detect driving that is impaired, was a justifiable use of police
powers. Consequently, Dedman authorized organized random stops.
-
R vs Ladouceur (1990)
The S.C.C. extended the authority to include random roving stops that are
dependent solely on the decision of an individual officer outside of any organized
program. However, the S.C.C. stated that this extended authority resulted from
the HTA of Ontario which contained specific statutory provisions to stop cars
randomly.
-
Dangerous operation of a MV sec 249 cc
Motor vehicle dangerous to the public
-
Hybrid –5 years
-
Bodily Harm –Indictable 10 yrs
-
Death - Indictable 14 yrs
-
Consider all the circumstances such as nature, condition, and the use of the place
as well.
-
It is essential that there be danger to the public who either were present or who
might have been expected to be present.
-
Dangerous Driving –R vs Beatty SCC
Mens rea-a “marked departure”. A mere departure from the standard expected of
a reasonably prudent person will meet the threshold for a civil matter but not
sufficient for penal negligence.
•
Personal attributes such as age, experience and education are not relevant.
-
Actus reus –It is the manner in which the vehicle was operated that is at issue, not
the consequence of the driving.
•
Dangerous Driving
Mens Rea –intention to operate the vehicle in such a way
which, objectively viewed, constitutes a departure from the standard of care
expected of a prudent driver in the circumstances.
•
Dangerous Driving
In a police pursuit the court of appeal ruled that the trial judge erred when he did
not consider the passenger in the accused car as well as the police officer as part of
the public. Edlund (1990)
•
Fail to Stop at Scene of Accident
Hybrid Ind 5 yrs summary
•
Bodily harm Ind 10 yrs
•
Death Ind life
•
Failure to Stop at the Scene of an Accident
Mens Rea –Crown must prove that the accused had knowledge of the accident. It is
not sufficient that the accused “should have known”
•
Flight from Police 249.1 cc
Hybrid- Indictable 5 yrs summary
•
Bodily harm Indictable 14 yrs
•
Death Indictable life
•
Drive while Disqualified
Mens rea –The Crown must prove that the accused knew he was disqualified from
driving
•
Firearm Offences
Use Firearm in the Commission of an offence 85 CC
Whether it is used attempting to commit, in the commission of, or fleeing from the
commission of an indictable offence (whether or not the accused causes or means to
cause bodily harm to any person as a result of using the firearm.
-
The accused MUST be convicted of the substantive charge.
-
Use Firearm
Actus Reus –The firearm must be used but by use it can be used for intimidation. It
does not have to be discharged.
•
Mens Rea –Need the mental element of the underlying offence in addition to the
intention to use the firearm.
•
Penalties
Indictable Offence
•
1st offence –1 yr min, 14 yr max.
•
2nd offence –3 yr min, 14 yr max.
•
YCJA –2 yr max
•
Careless Use of a Firearm 86(1) CC
Without lawful excuse
-
Uses, carries, handles, ships, transports or stores a firearm, prohibited weapon,
restricted weapon, prohibited device, any ammunition or prohibited ammunition
-
In a careless manner OR
-
Without reasonable precautions for the safety of other persons.
-
Careless Use of a Firearm
Mens Rea: A marked departure from the standard of care of a reasonable person in
the circumstances
•
Discharge Firearm with Intent 244 CC
With intent to wound, maim, disfigure, or endanger life of any person or to prevent
the arrest/detention of any person discharges firearm at any person
-
Discharge Firearm
Higher sentence if the firearm was restricted or prohibited or
-
Any firearm used in commission of an offence and is for the benefit or at the
direction of a criminal organization.
1st- 5 yr min 14 yr max
•
2nd- 7 yr min 14 yr max
•
-
Reckless Discharge of Firearm 244.2 CC
Intentional discharge of a firearm into or at a place, knowing that or being reckless
as to whether another person is present in the place, or
-
Intentional discharge of a firearm while being reckless as to the life or safety of
another person.
-
Indictable
-
Reckless Discharge
Higher Sentence:
•
If restricted or prohibited firearm used
-
Or in the commission of the offence for the benefit or direction of a criminal
organization.
1st 5 yr min 14 yr max
•
2nd 7 yr min 14 yr max
•
-
Possession of a weapon dangerous to the public peace 88 CC
Carry or possess a weapon, imitation weapon, prohibited device or any ammunition
or prohibited ammunition, for a purpose dangerous to the public peace or for the
purpose of committing an offence.
-
What is a weapon?
-
Where do you look to find a definition
-
Definition
“Weapon” means any thing used, designed to be used or intended for use
•
in causing death or injury to any person, or(a)
for the purpose of threatening or intimidating any person(b)
and, without restricting the generality of the foregoing, includes a firearm;
Weapons Dangerous
Carry a concealed weapon 90 CC
Carries a weapon, a prohibited device, or any prohibited ammunition
-
Concealed
-
Unless authorized under the Firearms Act.
Hybrid
•
Indictable 5 yr max
•
Summary 6 months max
•
-
Unauthorized Possession of a Firearm 91(1) CC
Prohibited/Restricted Firearms
-
Unless the person is the holder of a licence (allowing a person to possess) and a
registration certificate for the firearm.
-
Non-Restricted Firearms (ie long guns)
-
Unless the person is the holder of a licence (allowing a person to possess it)
-
Unauthorized Possession
Exceptions
•
If the person who is in possession is under direct and immediate supervision of a
person who may lawfully possess it and it is being used in a manner in which the
supervising person may lawfully use it.
-
Mens Rea
The accused knew it was a firearm or was reckless about the nature of it.
Hybrid
•
Indictable 5yr max
•
Summary 6 months
•
YCJA 2 yr max
•
→
•
Chapter Six
Regulatory Offences: Strict and Absolute Liability in Canada
True Crime vs Regulatory Offence
True Crime –Crime must prove mens rea
•
Regulatory offence –Generally does not have to.
Ping Yuen (1921)
→
Sask.
→
non intoxicating beer
→
percentage in excess
→
Court of Appeal-part of doing business
→
What are the arguments for and against?
→
•
Arguments For
If Crown had to prove mens rea in relation to regulatory offences -too many
loopholes
-
needed incentive to protect public
-
too much of a burden to prove mental culpability with respect to petty regulatory
offences
-
Arguments Against
Absolute liability contradicts a deeply ingrained sense of justice since it punishes
those who lack any moral culpability.
-
Destroys individuals freedom of choice as individual could be convicted despite the
fact that they did not choose to break the law.
-
Possession of Marijuana
Regulatory offence -ticket for simple possession
-
true crime-keep current law
-
Legalization or decriminalization
-
Halfway House approach
It is a middle ground between the requirement that the Crown prove the mens
rea elements of an offence beyond a reasonable doubt and the automatic conviction
of a defendant on proof of the actus reusalone.
-
Sault Ste Marie Case
In the Sault Ste. Marie case (1978), the Supreme Court of Canada endorsed the
"half-way house" approach and ruled that it should be applied to most regulatory
offences. Since the decision in the Sault Ste. Mariecase, Canadian criminal law has
recognized three categories of criminal offences:
•
Halfway Approach
Offences in which the Crown must prove the mens rea beyond a reasonable doubt;
-
Strict liability offences, in relation to which the Crown need not prove any mens
rea elements so long as a defence of due diligence is available to defendants; and
-
Absolute liability offences, in relation to which the Crown need not prove any mens
rea elements and for which the defence of due diligence need not be made
available to defendants.
-
Kanda 2008
106(6) HTA
-
Drive while passenger in the car not wearing a seatbelt.
-
8 yr old son took off seatbelt.
-
charged and convicted -strict liability
-
Is this right?
-
Ontario Court of Appeal
-
While the offence concerns public safety this does not mean that it imposes
absolute liability.
-
Courts say 106(6) is strict liability.
-
Regulatory Offences
In the view of the Supreme Court of Canada, the vast majority of regulatory
offences should be treated as offences of strict liability. In classifying an offence as
a strict or absolute liability offence, the court will consider the following factors: (i)
the overall regulatory pattern of the statute; (ii) the subject matter of the
regulatory offence; (iii) the severity of the penalty; and (iv) the precise wording of
the regulatory legislation.
-
Invalid Absolute Liability Offence
if there is a provision for mandatory imprisonment
-
even if the offence is discretionary imprisonment
-
if there is a potential for automatic imprisonment for non-payment of fines
-
Valid Absolute Liability Offence
If there is no potential for imprisonment
-
If there is a provision for imprisonment for non payment of a fine only if the
accused has the ability to pay
-
W4 Ch6 Strict & Absolute Liability
Friday,)February)2,)2018
8:00)AM
Drinking and Driving Charges
Impaired Driving -253(a)
-
Care or Control –Impaired -253(a)
-
Drive Over 80 mgs -253(b)
-
Care or Control –Over 80 -253(b)
-
Impaired Bodily Harm -255(2)
-
Impaired cause death -255(3)
-
Refuse -254(2-4)
-
Approved Screening Device
-
Approved Instrument
-
Blood samples
-
Section 253
Every one commits an offence who operates a motor vehicle or vessel or
operates or assists in the operation of an aircraft or of railway equipment or
has the care or control
1.
while ability to drive is impaired by alcohol or a drug(a)
having consumed alcohol in such a quantity that the concentration in the
person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres
of blood.
(b)
Multiple Convictions
An accused cannot be convicted of both offences under this section occurring at the
same time. (Houchen 1976)
-
Minimum punishment
Whether the offence prosecuted by indictment or punishable on summary
conviction
1st offence -fine not less than $1000
•
2nd offence -imprisonment not less than 30 days
•
3rd offence -imprisonment 120 days
•
-
Concept of Impairment
Impairment is defined as the deterioration of judgment, attention, sensory
perception, and coordination. The outcome of impairment is reduction in quality of
task performance or, in other words, diminished ability to perform skills including
driving.
What evidence do the police need?
→
-
Case Law –R.vs Stellato (1994)
Police formed opinion of impairment based on following:
Strong odour of alcoholic beverage on accused’s breath
-
Glassy and bloodshot eyes
-
Slurred speech
-
Unsteadiness
-
Erratic driving.
-
The accused appealed to the Ont Court of Appeal. The issue was the standard
of proof regarding impairment. The accused contended that the Crown had
an onus to prove “marked departure” from sobriety.
-
Ontario Court of Appeal
To convict an accused of impaired, Judge must satisfied that the accused’s ability
to operate a motor vehicle was impaired by alcohol or drugs.
-
If the evidence of impairment establishes “any degree” of impairment, ranging from
slight to great, impairment has been proved and the offence has been set out.
The “marked departure rule” is not the proper test for impairment.
→
-
R vs Pelletier (1989)
An accused may be convicted of this offence even though his impaired condition
was the result partly of alcohol AND fatigue.
-
Mens rea of Impairment Offence
Question whether mens rea relating to both the act of driving and to the state of
being impaired is an essential ingredient of the offence of Impaired Driving.
-
The only mental element involved in the offence of Impaired Driving is voluntary
intoxication. R vs Penno (1990)
-
R vs Lloyd (1988)
An automobile which is out of gas is still a motor vehicle for the purposes of this
section.
-
Ford (1982)
Charged with Care or Control
-
Drove to party, arranged for drive home
-
Got into driver’s seat, turned on engine, waited for friend.
-
SCC –“accused does anything whereby the vehicle may unintentionally be set in
motion creating the danger the section is designed to prevent”. (p. 27)
-
Definitions
Approved Screening Device (ASD):A device designed to ascertain the presence of
alcohol in a person’s blood. This device is not intended to provide a specific blood
alcohol concentration; instead, it provides a test result of pass, warn, or fail.
•
Approved Instrument:An instrument designed to receive and analyze a breath
sample for the purpose of measuring the concentration of alcohol in a person’s
blood. This device provides a specific blood alcohol concentration.
Intoxilyzer and Breathalyzer models.
→
•
BAC:Blood alcohol concentration.
•
BAT:Blood alcohol test
•
Section 254(2)
Police officer, reasonable grounds believes a person has alcohol or drugs in his body
and within the last three hours has operated a motor vehicle, whether in motion or
not to:
Submit to coordination test to determine whether a demand can be made for
the purposes of 254(3) or (3.1).
(A)
Demand Approved Screening Device. (B)
-
254(3) Approved Instrument
Impaired Driver
https://www.rt.com/viral/375128-impaired-driver-truck-state-trooper/
Blood Sample Warrant
Within the last four hours committed the offence under 253 and the person was
involved in an accident that resulted in death to another person or bodily harm to
another person or himself a justice can issue a warrant.
-
Blood Alcohol Concentration
This measurement quantifies the concentration of alcohol in a specific sampling of
blood. Specifically, BAC identifies the number of milligrams (mg) of alcohol in one
hundred millilitres (ml) of blood. Another way stated BAC is also a measure of the
difference between absorption and elimination rates.
-
BAC Curve
The fluctuating BAC that occurs during absorption, distribution, and elimination can
be described as a “BAC Curve”.
-
During the absorption stage, BAC rises rapidly. A maximum BAC is reached within
30-45 minutes of the last drink consumed.
-
During the distribution stage, BAC remains the same for about two hours.
-
During the elimination stage BAC declines slowly. After the two-hour constant BAC
stage, alcohol is eliminated at the slow rate of 10-20 mgs per hour, or an avg of
15mg per hour.
-
Relationship between Impairment and BAC
Some empirical evidence shows that impairment begins at low BAC levels.
-
The majority of people, but not all, suffer some impairment at a BAC of 100 mg.
-
Rutgers University reported that driving ability, in many people, but not all,
becomes impaired at a BAC of about 50 mgs.
-
Concept of Breath sample
Breath sample is a safe replacement for blood sample analysis.
-
An extended 30 second sample of breath blown into an instrument ensures that air
from the lungs is tested. Extended breath provides “deep lung air”. Scientific
theories emerged showing that concentrations of alcohol in “deep lung air” breath
will have constant relationships to alcohol levels in blood.
-
2100 parts of “deep lung air” contain the same amount of alcohol as one part of
blood. In other words, 2100 ml of air have same BAC as 1 ml of blood. The 2100 to
1 ratio usually results in “under-estimation” of BAC, which benefits the driver being
tested.
-
Time element 258 cc
As soon as practical
-
2 hours
-
2 samples –fifteen minutes apart.
-
Care or Control
Presumption 258 cc
•
Does this section infringe section 11(d) of Charter-the presumption of innocence.
-
Occupy driver’s seat
-
Aggravating circumstance 255.1
Over 160 mgs
-
Sobriety Tests
The Criminal Code does not authorize a demand to perform sobriety tests.
-
Ont Court of Appeal in R vs Saunders (1988) stated that sec 30(a) of HTA of Ontario
authorizes a police officer, by inference, to stop a car and require the driver to
undergo either an A.S.D. test, if reasonable suspicion exists of alcohol consumption,
or sobriety/coordination tests. However, the driver cannot be forced to perform
sobriety tests, nor can the driver be charged with refusing to perform sobriety
tests.
-
Random Stops
The Criminal Code does not address the issue of random stops.
-
SCC in R vs Dedman (1985) defined random stop as a stop “made on a purely
arbitrary basis, without any grounds for suspicion or belief that the particular driver
has committed or is committing an offence”.
-
The authority for police to stop motorists is found in provincial highway traffic
statutes.
-
Ont: HTA 198 –police can stop motorist for the purpose of determining whether
reasonable suspicion exists to make an A.S.D. demand.
-
Significance of Dedman
Police have common law authority to randomly stop motorists, but this authority is
not unlimited.
-
Here the S.C.C. ruled that a random stop, conducted as part of an organized
program to deter and detect driving that is impaired, was a justifiable use of police
powers. Consequently, Dedman authorized organized random stops.
-
R vs Ladouceur (1990)
The S.C.C. extended the authority to include random roving stops that are
dependent solely on the decision of an individual officer outside of any organized
program. However, the S.C.C. stated that this extended authority resulted from
the HTA of Ontario which contained specific statutory provisions to stop cars
randomly.
-
Dangerous operation of a MV sec 249 cc
Motor vehicle dangerous to the public
-
Hybrid –5 years
-
Bodily Harm –Indictable 10 yrs
-
Death - Indictable 14 yrs
-
Consider all the circumstances such as nature, condition, and the use of the place
as well.
-
It is essential that there be danger to the public who either were present or who
might have been expected to be present.
-
Dangerous Driving –R vs Beatty SCC
Mens rea-a “marked departure”. A mere departure from the standard expected of
a reasonably prudent person will meet the threshold for a civil matter but not
sufficient for penal negligence.
•
Personal attributes such as age, experience and education are not relevant.
-
Actus reus –It is the manner in which the vehicle was operated that is at issue, not
the consequence of the driving.
•
Dangerous Driving
Mens Rea –intention to operate the vehicle in such a way
which, objectively viewed, constitutes a departure from the standard of care
expected of a prudent driver in the circumstances.
•
Dangerous Driving
In a police pursuit the court of appeal ruled that the trial judge erred when he did
not consider the passenger in the accused car as well as the police officer as part of
the public. Edlund (1990)
•
Fail to Stop at Scene of Accident
Hybrid Ind 5 yrs summary
•
Bodily harm Ind 10 yrs
•
Death Ind life
•
Failure to Stop at the Scene of an Accident
Mens Rea –Crown must prove that the accused had knowledge of the accident. It is
not sufficient that the accused “should have known”
•
Flight from Police 249.1 cc
Hybrid- Indictable 5 yrs summary
•
Bodily harm Indictable 14 yrs
•
Death Indictable life
•
Drive while Disqualified
Mens rea –The Crown must prove that the accused knew he was disqualified from
driving
•
Firearm Offences
Use Firearm in the Commission of an offence 85 CC
Whether it is used attempting to commit, in the commission of, or fleeing from the
commission of an indictable offence (whether or not the accused causes or means to
cause bodily harm to any person as a result of using the firearm.
-
The accused MUST be convicted of the substantive charge.
-
Use Firearm
Actus Reus –The firearm must be used but by use it can be used for intimidation. It
does not have to be discharged.
•
Mens Rea –Need the mental element of the underlying offence in addition to the
intention to use the firearm.
•
Penalties
Indictable Offence
•
1st offence –1 yr min, 14 yr max.
•
2nd offence –3 yr min, 14 yr max.
•
YCJA –2 yr max
•
Careless Use of a Firearm 86(1) CC
Without lawful excuse
-
Uses, carries, handles, ships, transports or stores a firearm, prohibited weapon,
restricted weapon, prohibited device, any ammunition or prohibited ammunition
-
In a careless manner OR
-
Without reasonable precautions for the safety of other persons.
-
Careless Use of a Firearm
Mens Rea: A marked departure from the standard of care of a reasonable person in
the circumstances
•
Discharge Firearm with Intent 244 CC
With intent to wound, maim, disfigure, or endanger life of any person or to prevent
the arrest/detention of any person discharges firearm at any person
-
Discharge Firearm
Higher sentence if the firearm was restricted or prohibited or
-
Any firearm used in commission of an offence and is for the benefit or at the
direction of a criminal organization.
1st- 5 yr min 14 yr max
•
2nd- 7 yr min 14 yr max
•
-
Reckless Discharge of Firearm 244.2 CC
Intentional discharge of a firearm into or at a place, knowing that or being reckless
as to whether another person is present in the place, or
-
Intentional discharge of a firearm while being reckless as to the life or safety of
another person.
-
Indictable
-
Reckless Discharge
Higher Sentence:
•
If restricted or prohibited firearm used
-
Or in the commission of the offence for the benefit or direction of a criminal
organization.
1st 5 yr min 14 yr max
•
2nd 7 yr min 14 yr max
•
-
Possession of a weapon dangerous to the public peace 88 CC
Carry or possess a weapon, imitation weapon, prohibited device or any ammunition
or prohibited ammunition, for a purpose dangerous to the public peace or for the
purpose of committing an offence.
-
What is a weapon?
-
Where do you look to find a definition
-
Definition
“Weapon” means any thing used, designed to be used or intended for use
•
in causing death or injury to any person, or(a)
for the purpose of threatening or intimidating any person(b)
and, without restricting the generality of the foregoing, includes a firearm;
Weapons Dangerous
Carry a concealed weapon 90 CC
Carries a weapon, a prohibited device, or any prohibited ammunition
-
Concealed
-
Unless authorized under the Firearms Act.
Hybrid
•
Indictable 5 yr max
•
Summary 6 months max
•
-
Unauthorized Possession of a Firearm 91(1) CC
Prohibited/Restricted Firearms
-
Unless the person is the holder of a licence (allowing a person to possess) and a
registration certificate for the firearm.
-
Non-Restricted Firearms (ie long guns)
-
Unless the person is the holder of a licence (allowing a person to possess it)
-
Unauthorized Possession
Exceptions
•
If the person who is in possession is under direct and immediate supervision of a
person who may lawfully possess it and it is being used in a manner in which the
supervising person may lawfully use it.
-
Mens Rea
The accused knew it was a firearm or was reckless about the nature of it.
Hybrid
•
Indictable 5yr max
•
Summary 6 months
•
YCJA 2 yr max
•
→
•
Chapter Six
Regulatory Offences: Strict and Absolute Liability in Canada
True Crime vs Regulatory Offence
True Crime –Crime must prove mens rea
•
Regulatory offence –Generally does not have to.
Ping Yuen (1921)
→
Sask.
→
non intoxicating beer
→
percentage in excess
→
Court of Appeal-part of doing business
→
What are the arguments for and against?
→
•
Arguments For
If Crown had to prove mens rea in relation to regulatory offences -too many
loopholes
-
needed incentive to protect public
-
too much of a burden to prove mental culpability with respect to petty regulatory
offences
-
Arguments Against
Absolute liability contradicts a deeply ingrained sense of justice since it punishes
those who lack any moral culpability.
-
Destroys individuals freedom of choice as individual could be convicted despite the
fact that they did not choose to break the law.
-
Possession of Marijuana
Regulatory offence -ticket for simple possession
-
true crime-keep current law
-
Legalization or decriminalization
-
Halfway House approach
It is a middle ground between the requirement that the Crown prove the mens
rea elements of an offence beyond a reasonable doubt and the automatic conviction
of a defendant on proof of the actus reusalone.
-
Sault Ste Marie Case
In the Sault Ste. Marie case (1978), the Supreme Court of Canada endorsed the
"half-way house" approach and ruled that it should be applied to most regulatory
offences. Since the decision in the Sault Ste. Mariecase, Canadian criminal law has
recognized three categories of criminal offences:
•
Halfway Approach
Offences in which the Crown must prove the mens rea beyond a reasonable doubt;
-
Strict liability offences, in relation to which the Crown need not prove any mens
rea elements so long as a defence of due diligence is available to defendants; and
-
Absolute liability offences, in relation to which the Crown need not prove any mens
rea elements and for which the defence of due diligence need not be made
available to defendants.
-
Kanda 2008
106(6) HTA
-
Drive while passenger in the car not wearing a seatbelt.
-
8 yr old son took off seatbelt.
-
charged and convicted -strict liability
-
Is this right?
-
Ontario Court of Appeal
-
While the offence concerns public safety this does not mean that it imposes
absolute liability.
-
Courts say 106(6) is strict liability.
-
Regulatory Offences
In the view of the Supreme Court of Canada, the vast majority of regulatory
offences should be treated as offences of strict liability. In classifying an offence as
a strict or absolute liability offence, the court will consider the following factors: (i)
the overall regulatory pattern of the statute; (ii) the subject matter of the
regulatory offence; (iii) the severity of the penalty; and (iv) the precise wording of
the regulatory legislation.
-
Invalid Absolute Liability Offence
if there is a provision for mandatory imprisonment
-
even if the offence is discretionary imprisonment
-
if there is a potential for automatic imprisonment for non-payment of fines
-
Valid Absolute Liability Offence
If there is no potential for imprisonment
-
If there is a provision for imprisonment for non payment of a fine only if the
accused has the ability to pay
-
W4 Ch6 Strict & Absolute Liability
Friday,)February)2,)2018 8:00)AM
Drinking and Driving Charges
Impaired Driving -253(a)
-
Care or Control –Impaired -253(a)
-
Drive Over 80 mgs -253(b)
-
Care or Control –Over 80 -253(b)
-
Impaired Bodily Harm -255(2)
-
Impaired cause death -255(3)
-
Refuse -254(2-4)
-
Approved Screening Device
-
Approved Instrument
-
Blood samples
-
Section 253
Every one commits an offence who operates a motor vehicle or vessel or
operates or assists in the operation of an aircraft or of railway equipment or
has the care or control
1.
while ability to drive is impaired by alcohol or a drug(a)
having consumed alcohol in such a quantity that the concentration in the
person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres
of blood.
(b)
Multiple Convictions
An accused cannot be convicted of both offences under this section occurring at the
same time. (Houchen 1976)
-
Minimum punishment
Whether the offence prosecuted by indictment or punishable on summary
conviction
1st offence -fine not less than $1000
•
2nd offence -imprisonment not less than 30 days
•
3rd offence -imprisonment 120 days
•
-
Concept of Impairment
Impairment is defined as the deterioration of judgment, attention, sensory
perception, and coordination. The outcome of impairment is reduction in quality of
task performance or, in other words, diminished ability to perform skills including
driving.
What evidence do the police need?
→
-
Case Law –R.vs Stellato (1994)
Police formed opinion of impairment based on following:
Strong odour of alcoholic beverage on accused’s breath
-
Glassy and bloodshot eyes
-
Slurred speech
-
Unsteadiness
-
Erratic driving.
-
The accused appealed to the Ont Court of Appeal. The issue was the standard
of proof regarding impairment. The accused contended that the Crown had
an onus to prove “marked departure” from sobriety.
-
Ontario Court of Appeal
To convict an accused of impaired, Judge must satisfied that the accused’s ability
to operate a motor vehicle was impaired by alcohol or drugs.
-
If the evidence of impairment establishes “any degree” of impairment, ranging from
slight to great, impairment has been proved and the offence has been set out.
The “marked departure rule” is not the proper test for impairment.
→
-
R vs Pelletier (1989)
An accused may be convicted of this offence even though his impaired condition
was the result partly of alcohol AND fatigue.
-
Mens rea of Impairment Offence
Question whether mens rea relating to both the act of driving and to the state of
being impaired is an essential ingredient of the offence of Impaired Driving.
-
The only mental element involved in the offence of Impaired Driving is voluntary
intoxication. R vs Penno (1990)
-
R vs Lloyd (1988)
An automobile which is out of gas is still a motor vehicle for the purposes of this
section.
-
Ford (1982)
Charged with Care or Control
-
Drove to party, arranged for drive home
-
Got into driver’s seat, turned on engine, waited for friend.
-
SCC –“accused does anything whereby the vehicle may unintentionally be set in
motion creating the danger the section is designed to prevent”. (p. 27)
-
Definitions
Approved Screening Device (ASD):A device designed to ascertain the presence of
alcohol in a person’s blood. This device is not intended to provide a specific blood
alcohol concentration; instead, it provides a test result of pass, warn, or fail.
•
Approved Instrument:An instrument designed to receive and analyze a breath
sample for the purpose of measuring the concentration of alcohol in a person’s
blood. This device provides a specific blood alcohol concentration.
Intoxilyzer and Breathalyzer models.
→
•
BAC:Blood alcohol concentration.
•
BAT:Blood alcohol test
•
Section 254(2)
Police officer, reasonable grounds believes a person has alcohol or drugs in his body
and within the last three hours has operated a motor vehicle, whether in motion or
not to:
Submit to coordination test to determine whether a demand can be made for
the purposes of 254(3) or (3.1).
(A)
Demand Approved Screening Device. (B)
-
254(3) Approved Instrument
Impaired Driver
https://www.rt.com/viral/375128-impaired-driver-truck-state-trooper/
Blood Sample Warrant
Within the last four hours committed the offence under 253 and the person was
involved in an accident that resulted in death to another person or bodily harm to
another person or himself a justice can issue a warrant.
-
Blood Alcohol Concentration
This measurement quantifies the concentration of alcohol in a specific sampling of
blood. Specifically, BAC identifies the number of milligrams (mg) of alcohol in one
hundred millilitres (ml) of blood. Another way stated BAC is also a measure of the
difference between absorption and elimination rates.
-
BAC Curve
The fluctuating BAC that occurs during absorption, distribution, and elimination can
be described as a “BAC Curve”.
-
During the absorption stage, BAC rises rapidly. A maximum BAC is reached within
30-45 minutes of the last drink consumed.
-
During the distribution stage, BAC remains the same for about two hours.
-
During the elimination stage BAC declines slowly. After the two-hour constant BAC
stage, alcohol is eliminated at the slow rate of 10-20 mgs per hour, or an avg of
15mg per hour.
-
Relationship between Impairment and BAC
Some empirical evidence shows that impairment begins at low BAC levels.
-
The majority of people, but not all, suffer some impairment at a BAC of 100 mg.
-
Rutgers University reported that driving ability, in many people, but not all,
becomes impaired at a BAC of about 50 mgs.
-
Concept of Breath sample
Breath sample is a safe replacement for blood sample analysis.
-
An extended 30 second sample of breath blown into an instrument ensures that air
from the lungs is tested. Extended breath provides “deep lung air”. Scientific
theories emerged showing that concentrations of alcohol in “deep lung air” breath
will have constant relationships to alcohol levels in blood.
-
2100 parts of “deep lung air” contain the same amount of alcohol as one part of
blood. In other words, 2100 ml of air have same BAC as 1 ml of blood. The 2100 to
1 ratio usually results in “under-estimation” of BAC, which benefits the driver being
tested.
-
Time element 258 cc
As soon as practical
-
2 hours
-
2 samples –fifteen minutes apart.
-
Care or Control
Presumption 258 cc
•
Does this section infringe section 11(d) of Charter-the presumption of innocence.
-
Occupy driver’s seat
-
Aggravating circumstance 255.1
Over 160 mgs
-
Sobriety Tests
The Criminal Code does not authorize a demand to perform sobriety tests.
-
Ont Court of Appeal in R vs Saunders (1988) stated that sec 30(a) of HTA of Ontario
authorizes a police officer, by inference, to stop a car and require the driver to
undergo either an A.S.D. test, if reasonable suspicion exists of alcohol consumption,
or sobriety/coordination tests. However, the driver cannot be forced to perform
sobriety tests, nor can the driver be charged with refusing to perform sobriety
tests.
-
Random Stops
The Criminal Code does not address the issue of random stops.
-
SCC in R vs Dedman (1985) defined random stop as a stop “made on a purely
arbitrary basis, without any grounds for suspicion or belief that the particular driver
has committed or is committing an offence”.
-
The authority for police to stop motorists is found in provincial highway traffic
statutes.
-
Ont: HTA 198 –police can stop motorist for the purpose of determining whether
reasonable suspicion exists to make an A.S.D. demand.
-
Significance of Dedman
Police have common law authority to randomly stop motorists, but this authority is
not unlimited.
-
Here the S.C.C. ruled that a random stop, conducted as part of an organized
program to deter and detect driving that is impaired, was a justifiable use of police
powers. Consequently, Dedman authorized organized random stops.
-
R vs Ladouceur (1990)
The S.C.C. extended the authority to include random roving stops that are
dependent solely on the decision of an individual officer outside of any organized
program. However, the S.C.C. stated that this extended authority resulted from
the HTA of Ontario which contained specific statutory provisions to stop cars
randomly.
-
Dangerous operation of a MV sec 249 cc
Motor vehicle dangerous to the public
-
Hybrid –5 years
-
Bodily Harm –Indictable 10 yrs
-
Death - Indictable 14 yrs
-
Consider all the circumstances such as nature, condition, and the use of the place
as well.
-
It is essential that there be danger to the public who either were present or who
might have been expected to be present.
-
Dangerous Driving –R vs Beatty SCC
Mens rea-a “marked departure”. A mere departure from the standard expected of
a reasonably prudent person will meet the threshold for a civil matter but not
sufficient for penal negligence.
•
Personal attributes such as age, experience and education are not relevant.
-
Actus reus –It is the manner in which the vehicle was operated that is at issue, not
the consequence of the driving.
•
Dangerous Driving
Mens Rea –intention to operate the vehicle in such a way
which, objectively viewed, constitutes a departure from the standard of care
expected of a prudent driver in the circumstances.
•
Dangerous Driving
In a police pursuit the court of appeal ruled that the trial judge erred when he did
not consider the passenger in the accused car as well as the police officer as part of
the public. Edlund (1990)
•
Fail to Stop at Scene of Accident
Hybrid Ind 5 yrs summary
•
Bodily harm Ind 10 yrs
•
Death Ind life
•
Failure to Stop at the Scene of an Accident
Mens Rea –Crown must prove that the accused had knowledge of the accident. It is
not sufficient that the accused “should have known”
•
Flight from Police 249.1 cc
Hybrid- Indictable 5 yrs summary
•
Bodily harm Indictable 14 yrs
•
Death Indictable life
•
Drive while Disqualified
Mens rea –The Crown must prove that the accused knew he was disqualified from
driving
•
Firearm Offences
Use Firearm in the Commission of an offence 85 CC
Whether it is used attempting to commit, in the commission of, or fleeing from the
commission of an indictable offence (whether or not the accused causes or means to
cause bodily harm to any person as a result of using the firearm.
-
The accused MUST be convicted of the substantive charge.
-
Use Firearm
Actus Reus –The firearm must be used but by use it can be used for intimidation. It
does not have to be discharged.
•
Mens Rea –Need the mental element of the underlying offence in addition to the
intention to use the firearm.
•
Penalties
Indictable Offence
•
1st offence –1 yr min, 14 yr max.
•
2nd offence –3 yr min, 14 yr max.
•
YCJA –2 yr max
•
Careless Use of a Firearm 86(1) CC
Without lawful excuse
-
Uses, carries, handles, ships, transports or stores a firearm, prohibited weapon,
restricted weapon, prohibited device, any ammunition or prohibited ammunition
-
In a careless manner OR
-
Without reasonable precautions for the safety of other persons.
-
Careless Use of a Firearm
Mens Rea: A marked departure from the standard of care of a reasonable person in
the circumstances
•
Discharge Firearm with Intent 244 CC
With intent to wound, maim, disfigure, or endanger life of any person or to prevent
the arrest/detention of any person discharges firearm at any person
-
Discharge Firearm
Higher sentence if the firearm was restricted or prohibited or
-
Any firearm used in commission of an offence and is for the benefit or at the
direction of a criminal organization.
1st- 5 yr min 14 yr max
•
2nd- 7 yr min 14 yr max
•
-
Reckless Discharge of Firearm 244.2 CC
Intentional discharge of a firearm into or at a place, knowing that or being reckless
as to whether another person is present in the place, or
-
Intentional discharge of a firearm while being reckless as to the life or safety of
another person.
-
Indictable
-
Reckless Discharge
Higher Sentence:
•
If restricted or prohibited firearm used
-
Or in the commission of the offence for the benefit or direction of a criminal
organization.
1st 5 yr min 14 yr max
•
2nd 7 yr min 14 yr max
•
-
Possession of a weapon dangerous to the public peace 88 CC
Carry or possess a weapon, imitation weapon, prohibited device or any ammunition
or prohibited ammunition, for a purpose dangerous to the public peace or for the
purpose of committing an offence.
-
What is a weapon?
-
Where do you look to find a definition
-
Definition
“Weapon” means any thing used, designed to be used or intended for use
•
in causing death or injury to any person, or(a)
for the purpose of threatening or intimidating any person(b)
and, without restricting the generality of the foregoing, includes a firearm;
Weapons Dangerous
Carry a concealed weapon 90 CC
Carries a weapon, a prohibited device, or any prohibited ammunition
-
Concealed
-
Unless authorized under the Firearms Act.
Hybrid
•
Indictable 5 yr max
•
Summary 6 months max
•
-
Unauthorized Possession of a Firearm 91(1) CC
Prohibited/Restricted Firearms
-
Unless the person is the holder of a licence (allowing a person to possess) and a
registration certificate for the firearm.
-
Non-Restricted Firearms (ie long guns)
-
Unless the person is the holder of a licence (allowing a person to possess it)
-
Unauthorized Possession
Exceptions
•
If the person who is in possession is under direct and immediate supervision of a
person who may lawfully possess it and it is being used in a manner in which the
supervising person may lawfully use it.
-
Mens Rea
The accused knew it was a firearm or was reckless about the nature of it.
Hybrid
•
Indictable 5yr max
•
Summary 6 months
•
YCJA 2 yr max
•
→
•
Chapter Six
Regulatory Offences: Strict and Absolute Liability in Canada
True Crime vs Regulatory Offence
True Crime –Crime must prove mens rea
•
Regulatory offence –Generally does not have to.
Ping Yuen (1921)
→
Sask.
→
non intoxicating beer
→
percentage in excess
→
Court of Appeal-part of doing business
→
What are the arguments for and against?
→
•
Arguments For
If Crown had to prove mens rea in relation to regulatory offences -too many
loopholes
-
needed incentive to protect public
-
too much of a burden to prove mental culpability with respect to petty regulatory
offences
-
Arguments Against
Absolute liability contradicts a deeply ingrained sense of justice since it punishes
those who lack any moral culpability.
-
Destroys individuals freedom of choice as individual could be convicted despite the
fact that they did not choose to break the law.
-
Possession of Marijuana
Regulatory offence -ticket for simple possession
-
true crime-keep current law
-
Legalization or decriminalization
-
Halfway House approach
It is a middle ground between the requirement that the Crown prove the mens
rea elements of an offence beyond a reasonable doubt and the automatic conviction
of a defendant on proof of the actus reusalone.
-
Sault Ste Marie Case
In the Sault Ste. Marie case (1978), the Supreme Court of Canada endorsed the
"half-way house" approach and ruled that it should be applied to most regulatory
offences. Since the decision in the Sault Ste. Mariecase, Canadian criminal law has
recognized three categories of criminal offences:
•
Halfway Approach
Offences in which the Crown must prove the mens rea beyond a reasonable doubt;
-
Strict liability offences, in relation to which the Crown need not prove any mens
rea elements so long as a defence of due diligence is available to defendants; and
-
Absolute liability offences, in relation to which the Crown need not prove any mens
rea elements and for which the defence of due diligence need not be made
available to defendants.
-
Kanda 2008
106(6) HTA
-
Drive while passenger in the car not wearing a seatbelt.
-
8 yr old son took off seatbelt.
-
charged and convicted -strict liability
-
Is this right?
-
Ontario Court of Appeal
-
While the offence concerns public safety this does not mean that it imposes
absolute liability.
-
Courts say 106(6) is strict liability.
-
Regulatory Offences
In the view of the Supreme Court of Canada, the vast majority of regulatory
offences should be treated as offences of strict liability. In classifying an offence as
a strict or absolute liability offence, the court will consider the following factors: (i)
the overall regulatory pattern of the statute; (ii) the subject matter of the
regulatory offence; (iii) the severity of the penalty; and (iv) the precise wording of
the regulatory legislation.
-
Invalid Absolute Liability Offence
if there is a provision for mandatory imprisonment
-
even if the offence is discretionary imprisonment
-
if there is a potential for automatic imprisonment for non-payment of fines
-
Valid Absolute Liability Offence
If there is no potential for imprisonment
-
If there is a provision for imprisonment for non payment of a fine only if the
accused has the ability to pay
-
W4 Ch6 Strict & Absolute Liability
Friday,)February)2,)2018 8:00)AM
Document Summary
Care or control over 80 - 253(b) An accused cannot be convicted of both offences under this section occurring at the same time. (houchen 1976) Whether the offence prosecuted by indictment or punishable on summary conviction. 2nd offence - imprisonment not less than 30 days. Impairment is defined as the deterioration of judgment, attention, sensory perception, and coordination. The outcome of impairment is reduction in quality of task performance or, in other words, diminished ability to perform skills including driving. driving. Police formed opinion of impairment based on following: Strong odour of alcoholic beverage on accused"s breath. The accused appealed to the ont court of appeal. The issue was the standard of proof regarding impairment. The accused contended that the crown had an onus to prove marked departure from sobriety. To convict an accused of impaired, judge must satisfied that the accused"s ability to operate a motor vehicle was impaired by alcohol or drugs.
