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Lecture 2

Lecture 2.docx

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LAWS 2302
John Hale

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Lecture 2 Note takers notes Omissions - S.72(4) Child and Family Services Act • If the person (ex: police, psychologist, etc…) does not report child abuse, they can be charged with a provincial offence under the Child and Family ServicesAct - S.2 Quebec Charter of Human Rights and Freedoms • Only in Quebec • Legal obligation to come to the aid of someone who is in danger • If someone is drowning, you must legally help them - Criminal Code • General principle: an omission is not an offence unless there is a legal duty to act • S.215: Parental duties  Parents have a duty to take care of the child. Provide clothes, food, and medical care  Parents can be charged with criminal negligence if the child dies  If a child dies, from failure of parents providing this can be charged with criminal negligence for what has happened to the child. Guilty because failed to do this • S.216: Duties on medical professionals  Duty to exercise reasonable care when performing medical services • S.217: Duty on people who undertake acts  When you promise to do something, and someone’s life depends on you following through on this promise, if you don’t, and they die, you can be charged. Omissions Fagan v. Commissioner of Metropolitain Police (1969, England, C.A., p.265) - Facts: Vincent Fagan was backing up his car onAugust 31, 1967. • Cst. David Morris directed him to move the car forward to the curb; pointed out a suitable parking spot • ∆ parked too far from curb for officer’s liking; Morris asked him to move closer, and pointed at precise spot • ∆ drove toward Morris and parked on his left foot • “Get off my foot.” “Fuck you, you can wait.” • ∆ turned car off. Morris repeated several times, “Get off my foot.” • ∆ reluctantly said, “Okay, man” and slowly turned on ignition and reversed • there was doubt as to whether ∆ deliberately drove onto Morris’s foot - Issue: Was there an assault, even though the guilty act was not accompanied by a guilty state of mind? - Held: Yes. (Note: dissenting judgment of Bridge J.) - Ratio: Continuing act theory. (Agreed with Mr. Rant for the Crown) — a legal fiction • There must be an intentional act. Mere omission to act is not an offence. - MY NOTES: • Guilty on the basis of a continuing act • Cannot be guilty of a criminal offence for simply not doing something. • He was guilty because he continued to stay on his foot, while knowing he was still on the officer’s foot - Physical Contact without consent, intentional application of force without consent. When Fagan parked on the foot, he is not guilty of a crime, because he did not intent to park on his foot. When he becomes aware and does not move the car, is he committing an act? No, because he is not doing anything. What court does to find him guilty they create legal fiction. The act starts when the car goes on the foot. During the time while on the foot, but from the time he is told he is on the foot he has mens rea, because does not move, but there is not actus reus. The Court says that it is continuing.At the point where he knows he is on the foot, he is than having mens rea and actus reus. During the time where he knew that he was on the foot than is committing a crime, this is known as the continuing Act. Fagan is not guilty because he did not do anything, but he became guilty when he knew he was on the foot. - Continuing Act theory has been abandoned by the Courts. R. v. Tesar (1991, NWT territorial Ct.) - ∆ charged with Public Mischief, s.140(1)(b) - Facts: ∆ made complaint that her name had been forged and told police that she thought X was the culprit • While police investigated ∆’s complaint, ∆ learned that it was her sister and not X who did the forgery • Police later contacted ∆ to get X’s address; ∆ gave the info, not saying anything about her sister’s confession • X was later arrested and charged - Issue: Did failure to notify re new information constitute the actus reus for s.140? - Held: Yes: once ∆ became aware that her sister had forged her signature, ∆’s inaction in withholding the information from the police at a time when ∆ knew the police were investigating, made the offence complete. - The Police ended up charging and arresting the suspect, although he was innocent. She is charged with public mischief. When she first told it is not a crime, she thought it was true. When police call later and ask, but she lets the police continue the investigation without telling them. The NWT found Tesar guilty because of the ContinuingAct theory. She realized the police were investigating the wrong person, although she found out who did it. She did not commit a guilty act, but did not correct police either. R. v. Miller 91983, HL, p.269) - ∆ convicted of arson by a jury after 22 minutes deliberation; appeal to Court of Appeal dismissed; ∆ appeals to HL - Facts: ∆ had been staying at a house for a couple of weeks. He went out for a few drinks one night, came home, lay down in bed and lit a cigarette. He fell asleep, and woke up to find the mattress on fire. He had nothing to put the fire out with, so he got up and went to the next room and went back to sleep. - Issue: Did the failure to put the fire out constitute arson? - Decision: Yes; appeal dismissed. - Ratio: The term “actus reus” is misleading, since it suggests that a positive act is necessary for criminal liability • Instead of focusing on “bad Latin”, focus on the conduct of ∆ and his state of mind • 2 theories on which criminal liability could be based: 1. “Duty theory” • Duty to prevent further damages 2. “Continuous act” theory (espoused in Fagan) • Court here adopts duty theory: when a person unwittingly does something that is likely to cause harm or damage, and that person becomes aware of the situation, that person then has a duty to correct the situation and prevent the harm • Departs from Fagan • In Canada, because of s.9, courts can’t create legal duties (but see Cuerrier) - MY NOTES: • Duty theory. Someone in his position has a duty to prevent further damage.  Duty that arises in common law  Have a common law duty to prevent further damage - He let the fire continue. Is letting the fire continue arson? They adopted the duty theory. He has a duty to prevent further damage. This is a duty that arises at common law. If you create a dangerous situation and let it continue you are guilty of an offense. He is guilty because he has a legal duty to prevent any more damage. People v. Beardsley (1907, Mich. S.c., p.305) - ∆ was convicted of manslaughter and sentenced to 1-5 years; appeals conviction - Facts: ∆ was having an affair with Blanche Burns while his wife was away, in March 1905 • On Saturday, March 18, he met her at the hotel she worked at, and then went out drinking. • They stayed together in a hotel that ∆ owned and drank from then until Monday afternoon. • Blanche sent somebody from the Columbia Hotel to get her some morphine. She hid morphine from ∆. • When ∆ saw Blanche taking morphine, he struck the box of morphine from her hand and crushed several tablets with his foot. • Young man left; an hour later, ∆ called him and asked him to carry Blanche down to the basement. Blanche was in a stupor and did not waken when spoken to. • They put Blanche in a room belonging to Mr. Skoba. ∆ told Skoba to let Blanche out the back door when she woke up. - Skoba became alarmed around 9 or 10 PM and called police and MD. Blanche was dead - Issue: Did ∆ have a duty to care for Blanche, knowing her to be in peril for her life, which he failed to perform? Did his failure to perform this duty make him responsible for her death? - Held: No. Conviction overturned. - Ratio: Acc. to cases, not every moral obligation is a legal duty. However, every legal duty is based on a moral obligation. • ∆ was not Blanche’s husband, and did not have the duty that a husband owes to his wife • There was no duty that arose just because Blanche was in his house. • ∆ had not taken over the care of Blanche. • ∆ did not commit any duress, fraud or deceit. • Although ∆ is morally guilty, and will “draw upon himself the just censure and reproach of good men”, this is his only punishment as he is not legally guilty - MY NOTES: • Not all moral obligations are legal duties.All legal duties arise from moral obligation  He did not owe her the same duty he would as a husband to a wife. - Beardsley is not guilty. Not every moral obligation is a legal duty. Beardsley was not Blanche’s husband, not duty aroused because he did not take over care over her. R. v. Kirby (2004, NWTSC) - Facts: ∆ watched his wife hang herself with a shower curtain; ∆ did nothing to stop her; he sat on a toilet, looking at his watch - Issue: Is ∆ guilty of criminal negligence causing death, i.e., did ∆ have a duty of care to stop the suicide? - Held: Guilty – there is a duty to stop a spouse from committing suicide - MY NOTES: • There is a duty for spouses to stop the other from killing/harming themselves. - Is he guilty of criminal negligence? He just sat on the toilet looking at his watch while she killed herself. Court decided that there was a duty on spouses to stop their spouses from committing suicide. - S. 215: Duties that spouses have to each other R. v. Peterson (2005, OCA, p.293) - ∆ convicted of Failure to Provide Necessaries of Life, Thereby Endangering Life, s. 215; sentenced to 6 months jail; appeals to OCA - Facts: Arnold Peterson was in his 80s when he moved in with his adult son and daughter, and grandson and grandson’s girlfriend, in their house in Toronto • Initially the house was not divided into apartments, but after the daughter moved out in 1999, whenArnold was 83, it was divided • Arnold took over the first floor and basement; ∆ had the second floor plus a living st rd room on the 1 floor; grandson had 3 floor • A staircase linked the apartments, but ∆ kept his living room and the upper floors locked • Arnold’s kitchen was in disrepair, and had no drywall; floorboards were lifting; filled with dead cockroaches; cupboards were bare, and dirty dishes were stacked everywhere • Arnold would buy bread, chips and cookies at the corner store and eat on the porch; • Arnold lost about 30 pounds in winter and spring 2000 • No bathroom on Arnold’s main floor; there was a broken toilet in the basement, on a dirt floor. The basement floor was covered in dog feces • Arnold’s bedroom was messy and had no sheets on the bed • Arnold did odd jobs for neighbours, who testified • Neighbours would giveArnold meals • Neighbours noticed that Arnold could not dress appropriately; wore winter clothes in summer and vice versa • Because of weight loss, Arnold’s clothes did not fit; he had no belt or zipper on his pants, and he used pins to keep them from falling down; he wore no underwear; he stopped shaving and began to smell, and his clothes were dirty • Arnold was locked out of his house at least 8 times, and would have to wait until ∆ got home around midnight (Neighbours would let him stay at their place) • ∆ would yell at Arnold, and tease him about the Germans (he had lost family in WWII; ∆ would also ignore him or speak as if he wasn’t there; • April 30, 2000: police called because Arnold had sat down on a stranger’s porch. Arnold was exhausted, so police drove him home; ∆ not home, so Arnold stayed at a neighbour’s • May 27, 2000: police visited ∆, who said that Arnold was hard to look after because he kept going for long walks and getting lost. Police explained about community agencies, but ∆ never called them; • June 7, 2000: Arnold collapsed on the street near where he had been found April 30 ; th he was filthy and exhausted, weak, and appeared not to have showered in some time; did not answer questions promptly; was confused about where he lived; police took him home, but ∆ not there, so Arnold was taken to hospital. Police called ∆, and Arnold was released; • June 9, 2000: Gas company employee called police to say that when checking meters he found a dead dog at a home where an old man lived. Police went and foundArnold on the front porch. Arnold was very dirty; clothes were filthy and too big; he was holding his pants up with his hands, and had no underwear; fly was down; pants were wet or dirty in the crotch area; cheeks were sunken and unshaven. • Arnold did not complain about his son or grandson, but said that he had not eaten in a few days, other than ∆ had given him an apple the day before. • Police apprehended Arnold under Mental Health Act and took him to hospital; he th ultimately was transferred to a nursing home on June 10 • Daughter testified that Arnold was fiercely independent and contrary; very stubborn, and would do the opposite of what ∆ told him to do; • ∆ would buy new clothes forArnold, but he would refuse to wear them; • ∆ also did Arnold’s laundry and cut his hair; • Arnold refused to go to a nursing home • Medical evidence was that Arnold was in early stages of Alzheimer’s; he was also incontinent; he needed reminders to bather, and needed supervision re dressing; he would not eat unless reminded to do so; he needed supervision at least every half hour at home to ensure that he would not wander off and break a hip - Issue: Was Arnold “under ∆’s charge”? - Held: Yes, conviction upheld - Ratio: This is the first case to reach an appellate court dealing with the issue of “under his charge” under s. 215(1)(c) • S. 215(a) imposes a duty on a parent, foster parent, guardian or head of a family • S. 215(b) imposes a duty on a spouse and common-law partner • S. 215(c) imposes duties within other relationships, specifically:  Where the victim is under the charge of the accused,AND  The victim is unable to withdraw from that charge,AND  The victim is unable to provide himself or herself with the necessaries of life  “necessaries of life” means food, shelter, care, essential medical attention, and also (according to R. v. Popen (1981, Ont. C.A.)) protection from harm • The duty is imposed on an objective basis: s. 215(2): the offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another person in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to the life or health of the other person • In this objective test, the personal characteristics of the accused are not relevant • The words “without lawful excuse” in s. 215(2) provide a defence so that the morally innocent are not punished. For example, the obligation to provide necessaries of life may be excused where there is financial inability • Contributory negligence on the part of the victim is not a defence, unless the injuries are solely attributable to the victim • The relationship between the parties is one of the factors to be considered in determining whether one person is under the charge of another. The dependency of a parent on an independent child is justified by (a) the previous relationship where the parent supported the child and (b) the relationship of trust that should normally exist between parent and child • The word “charge” connotes the duty or responsibility of taking care of a person or thing; an element of control by one person and a dependency on the part of another; • Another factor is whether one person has explicitly assumed responsibility for another person, for example by obtaining a power of attorney or by publicly acknowledging the responsibility • In this case,Arnold was under ∆’s charge because of the following:  Arnold was dependent, primarily because of his dementia  ∆ had a familial relationship with Arnold and was aware of his father’s dependency  ∆ controlled Arnold’s living conditions and kept him in an unsafe environment  ∆ had control over Arnold’s personal care  chose not to make decisions that would result in Arnold receiving the necessaries of life  Arnold was incapable of withdrawing himself from ∆’s charge due to age and illness • According to Borins J.A. (dissenting re sentence appeal), the current legislation, which is based on 19 century legislation, needs to be updated given the shifting demographics, and the fact that more and more parents will be relying on their children for support and care: see para. 66 - The son was responsible for his father. The CArealized that this is the first case of adult abuse from an adult child. With aging population are current legislation is not adequate or specific enough for dealing with the demographics. Elderly people are being abused from younger people. R. v. Semeniuk (1955, Alta. Dist. Ct.) - Appeal from conviction for obstructing justice, s.129(a) - Facts: ∆ was in car with wife and another couple • police smelled alcohol • found beer in rear seat • glove compartment locked; police asked ∆ to open it, he refused - Issue: Does inaction constitute the offence? - Decision: No: acquitted - Ratio: must be some overt act of refusal • takes into account that officer wasn’t authorized to perform search - Under the facts of this case, just the smell of alcohol does not give them a full search of the car. The court found that the police had no business asking him to go in the glove compartment. Saying no to opening it, is not obstructing justice. R. v. Colucci 91965, OCA) - Appeal from conviction and sentence for publishing false statement with intent to deceive shareholders (s.400) - Facts: ∆ owner of Luccis and Co. • Also a stock broker/dealer • Sent prospectus to shareholders of Terminus Mines • In circular letter, ∆ quotes report of engineer; leaves in good stuff, leaves out bad stuff - Issue: Does mere omission constitute the offence? - Held: Yes - Ratio: Either a positive false statement or an omission of a material particular • Interprets statute as meaning that deception must include deception by withholding material particulars - Colucci was charged with misleading potential investors in a mine. Misleading investors. He was a stock broker and sent a prospectus and talks about how good the company is (like a flyer) he added quotes from engineers saying this mine was a good investment. He only included the positive comments and left out the negative comments out of the pamphlet. Took words out of context. The engineer was pessimistic of this mine, but changed it to make t more optimistic. There is no guilty act, he kept the words but just kept the positive ones. Omitting what was the essence of the engineers report constituted the offense. It is deception. Can deceive from withholding information.Acase where guilty for not doing something.Act of withholding information. Moore v. R. (1978, SCC, p.271) - ∆ acquitted of obstructing justice; Crown appeal to BCCAsuccessful; ∆ appeals - Facts:April 19, 1976, 9:10 AM • ∆ was riding his 10-speed in Victoria • Went through a red light • Cst. Sutherland, also on a bike, saw this and went to ticket ∆ • Sutherland tried to catch ∆, who tried to get away by riding on the sidewalk • Sutherland kept asking him to stop, ∆ kept lewdly refusing because he was in a hurry • ∆ was finally stopped, but he refused to give his name • ∆ wasn’t ticketed, but he was charged with Obstruct for refusing to give his name to the officer when he was stopped • ∆ hadn’t broken any law in the manner in which he was riding his bike - Issue: Did the failure to identify himself constitute the actus reus of obstruct? - Held: Yes (5:2); conviction imposed by Court ofAppeal upheld - Ratio: 1. Spence (and 4 others) • Officer was carrying out his duty in arresting ∆ for possible breach of the Motor Vehicle Act • Officer could not complete that duty and make an arrest until he had identified ∆ • Therefore officer was under a duty to attempt to ID ∆ • This imposed a reciprocal duty on ∆ • Therefore ∆ was obstructing Sutherland by not ID-ing himself 2. Dickson (and Estey) dissent • General principles  Omission gives rise to criminal liability only where there is a legal duty to act.  Unless there is a legal duty to act, it is not against the law not to act; therefore it is not obstruction of justice to do nothing unless there is a legal duty to act  Legal duty arises either at common-law or by statute • No statutory duty  The Motor Vehicle Act imposes no duty on a cyclist to identify himself.  The Act deals with drivers of motor vehicles, and says that a driver of a MV must ID himself  There is no other relevant statute that puts a duty on a cyclist to ID himself • No common-law duty  There is no common-law duty to identify oneself to the police, although the courts recognize a “moral” or “social” duty to do so  At common-law, a person need not answer any questions; a person need not accompany any officer, unless under arrest  Courts recognize a distinction between lying to the police and not saying anything: lying is obstruction, while not saying anything is an accused’s prerogative  Therefore, where does a duty to ID come from, if not from statute or common- law? • An implied or “reciprocal” duty  Crown argued that, because police have a duty to investigate crime and enforce provincial laws, citizens have a reciprocal obligation to give their name and address when asked  However, we must not confuse a policeman’s obligation to investigate with a citizen’s obligation to answer questions  “The criminal law is no place within which to introduce implied duties, unknown to statute and common law, breach of which subjects a person to arrest and imprisonment.” (p. 267)  According to Glanville Williams, if there were an implied duty to ID oneself, then all statutes that impose such a duty would be redundant. In addition, an absolute principle of common law is that a person under arrest cannot be forced to answer any questions; there are no exceptions to this rule, unless specified by statute. This reasoning was adopted in New Zealand Supreme Court.  Therefore, no implied duty. - There is a legal duty to identify himself. From breaching this duty it is a criminal offense. Failing to do something is not a legal duty, but he has a legal duty to provide information. The Minority decision, said omitting to do something cannot only be an offense if there is a duty to act. There is no obstruction of justice without legal obligation. Only is there is a legal duty. Legal duties only come from 2 places, Statutes or Common Law, from parliament or judges. They recognize that there is no common law duty to identify yourself, or answer any questions, or go anywhere with a police. Only if you are under arrest. Courts have recognized that certain things to obstruct justice, such as lying to the police. Is there a reciprocal duty to cooperate? We cannot confuse, officer’s obligation to investigate with a citizen’s obligation to cooperate. - P. 267. There are a number of statutes that say you must identify yourself. R. v. Thornton (1991, OCA, p.279) - ∆ was convicted of common nuisance, s.180; got 15 mos. jail; appeals to Ont. C.A. - Facts: ∆ had twice tested positive for HIV and knew that he was infectious. He donated blood to the Red Cross. The screening process detected the blood. He was charged under s.180: • “180(2) Every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers the lives, safety, health, property or comfort of the public.” - Issues: 1. Can a “legal duty” be one that arises at common law? 2. Could a breach of such a duty be the basis of an offence under s.180? - Held: (1) Yes. (2) Yes. Conviction upheld. - Ratio: The courts have determined already that a breach of a common-law duty can give rise to liability for criminal negligence, s.219. (219(2): For the purposes of this section, “duty” means a duty imposed by law.” courts say this is either statutory or common-law.) • “Legal duty” (s.180) and “duty imposed by law” (s.219) mean exactly the same thing • Therefore, the question becomes whether there is a duty at common-law that would prohibit the donating of blood that is known to be HIV positive. • Throughout the centuries, the common law has recognized a very fundamental duty which can be summed up as being a duty to refrain from conduct which could cause injury to another person • In tort law, there is a common law duty not to injure your neighbour • Without deciding how broad this rule is, at the very least it requires everyone “to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons.” (p. 300) • Donating HIV+ blood is certainly a breach of this common-law duty - Court of appeal says that he is guilty. They recognized a common law duty. Aduty to refrain from conduct that could cause injury to another person. The court said that everyone to refrain conduct that can cause harm to other persons. Thornton v. R. (1993, SCC, p.282) - Supreme Court dismissed ∆’s appeal, relying on s.216: • Everyone who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is,
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