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Lecture 4

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Department
Law
Course
LAWS 2302
Professor
John Hale
Semester
Winter

Description
Lecture 4 Fault for crimes Activity Circumstances Consequences Intention Knowledge Intention Recklessness Recklessness Recklessness Negligence Negligence Negligence Accident Unknown Accident States of Mind - Intentional = • “Desired” • “Foreseen as certain to occur”, • “Highly probable” • “Virtually certain” - Knowledge = • Aware of with certainty • Also includes willful blindness (legally equivalent to actual knowledge) - Recklessness = • A conscious taking of an unjustified risk that the activity will be done, the circumstances will be true or the consequence will be caused - Negligence = • Objective liability where the accused, as against the standard of a reasonable person, ought to have known that the activity will be done, the circumstance will be true or the consequence will be caused Three types of crime since Creighton (1993, SCC) - Crimes requiring subjective mens rea  would have to prove personal intention, thoughts, knowledge, circumstances, etc…) - Objective crimes (criminal negligence)  would have to prove what a reasonable person would have done - Crimes based on predicate offences Homicide, s. 222 - (1) Aperson commits homicide when, directly or indirectly, by any means, he causes the death of a human being. - (2) Homicide is culpable or not culpable. - (3) Homicide that is not culpable is not an offence. - (4) Culpable homicide is murder or manslaughter or infanticide. - (5) Aperson commits culpable homicide when he causes the death of a human being, a. By means of an unlawful act, b. By criminal negligence, c. By causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or d. By willfully frightening that human being, in the case of a child or sick person Homicide, s. 223 - (1) Achild becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother whether or not a. It has breathed, b. It has an independent circulation, or c. The naval string is severed. - (2) Aperson commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being. • Person can’t be charged of homicide if baby dies of injuries while in the womb Causation, s. 224 - Where a person, by an act or omission, does anything that result in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means. Causation, s. 225 - Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith. Causation, s. 226 - Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause. Murder, s. 229 - Culpable homicide is murder a. Where the person who causes the death of a human being i. Means to cause his death, or ii. Means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; • Can be guilty of murder even if you didn’t intend the death. Not a defense to say you didn’t know it would kill them b. Where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or c. Where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. • Subjective test. ‘Ought’means that you should have known, therefore this section is very controversial. Criminal offences are supposed to be subjective, not objective Murder, s. 230 - Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit [certain offences], whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if a. He means to cause bodily harm for the purpose of facilitating the commission of the offence, or facilitating his flight after committing or attempting to commit the offence, and the death ensues from the bodily harm… Murder, s. 231 1. Murder is first degree murder or second degree murder. 2. Murder is first degree murder when it is planned and deliberate. 3. Contract killing… 4. Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is [a police officer or corrections officer, etc.] 5. Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit [specified offences] 6. Criminal harassment… 7. All murder that is not first degree murder is second degree murder. - All of the above are first degree murders, except #7.All others defaulted to second degree murder Manslaughter, s. 234 - Culpable homicide that is not murder or infanticide is manslaughter. Mens Rea for Murder, s. 229 - Culpable homicide is murder a. Where the person who causes the death of a human being i. Means to cause his death, or ii. Means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; - Simpson v. The Queen (1981, OCA, p. 428) • Appeal from conviction reAttempt Murder • Facts: Trial Judge said that 229(a)(ii) was satisfied if ∆ “knew or ought to have known” that the bodily harm was likely to cause death • Issue: Can there be liability for murder or attempt murder under s. 229(a)(ii) if ∆ “ought to have known” of the likelihood of death? • Held: No; conviction overturned, new trial ordered  Crown must prove that ∆ knew that bodily harm likely to cause death  Can’t use objective test to find someone guilty of murder or, as in this case, attempted murder • Dealt with the phrase “ought to have known”. You can’t be guilty of murder for the “ought to have known”. He Crown has to prove that you did know what you were doing - R. v. Edelenbos (2004, OCA, p. 430) st • Appeal from conviction of 1 degree murder (killing during sexual assault) • Facts: ∆ admitted sexually assaulting and strangling V; he did this while intoxicated  ∆ testified that he strangled V to stop her from screaming, but did not intend to kill her  TJ charged jury re the word “likely” as follows:  Likely means more than a possibility. It involves a substantial degree of probability. However, it does not mean more likely than not in the mathematical sense of 51 percent. The phrase is meant to convey the notion of a substantial or real chance, as distinct from a mere possibility. Likely to cause death means could well cause death. A fine calculation that the odds were against death, although the risk was plainly there, is no defence. By using the word “likely” the legislators were trying to get at killings where the risk was subjectively so appreciable that to engage in the conduct would be seen as a virtual equivalent of an intentional killing. A likelihood is a real risk, a substantial risk or something that might well happen. • Issue: Does “likely” mean “probable”, or just “more than possible”? • Held: This was not an appropriate case for the TJ to discuss the subtle nuances of the word “likely”; in fact, such cases would be exceptional  The TJ’s providing a definition here potentially confused the jurors, as it was really not an issue  In the end, the TJ’s definition did not operate to the prejudice of ∆, for a number of reasons  The real issue in this case, which was dealt with properly by the TJ, was whether ∆‘s intoxication prevented him from having the requisite intent  OCA declines to provide a specific definition of “likely”, as it is not necessary in this case and there are no Canadian cases that deal with the issue.  For now, juries can simply apply the “established ordinary meaning” of the word Constructive Murder - Vaillancourt v. R. (1987, SCC, p. 434) • S. 230 Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit [certain offences], whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if…  (d) He uses a weapon or has it upon his person  (i) During or at the time he attempts to commit the offence, or  (ii) During or at the time of his flight after committing or attempting to commit the offence, and the death ensues as a consequence - Facts: ∆ had agreed with his accomplice to rob a pool hall armed only with a knife • accomplice showed up with a gun • ∆ insisted that gun be unloaded, and made accomplice give him the bullets • ∆’s glove was found to contain the 3 bullets that he got from the accomplice • ∆ remained near front of pool hall, accomplice went to back • accomplice shot and killed a patron; accomplice escaped and has never been seen - Held: • (1) s.229(a)(i) clearly requires subjective foresight of likelihood of death • (2) s.229(a)(ii) requires subjective foresight of likelihood of death, but Crown can prove recklessness instead of intention; still must be intent to cause bodily harm • (3) 229(c) is a further relaxation of the mental element required for murder: doesn’t have to be intent to kill, or even intent to harm; Crown must prove that ∆ did “anything that he ought to know is likely to cause death”; objective foresight or negligence • (4) 230 is even more relaxed: proof that ∆ did one of the prohibited acts is substituted for proof that ∆ had subjective or even objective foresight of likelihood of death - s.230(d) offends against 2 principles of fundamental justice: • Stigma offences require proof of a mens rea reflecting the particular nature of the crime. Examples: theft (proof of dishonesty) • Presumption of innocence, s. 7 and 11(d): it offends the presumption of innocence to say that, because ∆ committed a certain act, he is presumed to have had the intent for murder - However Vaillancourt says that he is not a party to murder. He took part in another offense the SCC says you cannot be guilty of murder in these offenses. These are the worst offenses, fundamental principles that stigma offenses that they crown has to prove subjective mens rea, that the accused foresaw that this would happen or that they knew the intentions that were going to occur. Court says that the situation violates the presumption of innocence. Constructive Murder - R. v. Martineau (1990, SCC, at p. 443) • S. 230 Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit [certain offences], whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if… • (a) He means to cause bodily harm for the purpose of facilitating the commission of the offence, or facilitating his flight after committing or attempting to commit the offence, and the death ensues from the bodily harm… • 229(c) Where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. - Facts: ∆ had a pellet pistol, partner had a rifle • ∆ thought that they were just doing a B&E • accomplice shot and killed the 2 homeowners because they saw their faces • ∆ not present for shooting, but he heard the shot - Issue: Constitutionality of s.230(a) - Held: Follows reasoning in Vaillancourt: can’t be convicted of murder without subjective foresight of likelihood of death: this is a fundamental principle of justice • s.230(a) allows for conviction without proof of subjective foresight • p. 446: “To label and punish a person as a murderer who did not intend or foresee death unnecessarily stigmatizes and punishes those whose moral blameworthiness is not that of a murderer.” • Similarly, s.229(c) is unconstitutional First Degree Murder - R. v. Smith (1979, Sask. CA, p. 456) • “Planned” and “deliberate” • “Planned” ≠ complicated • Various definitions of “deliberate” from the cases, including: “considered, not impulsive”; “not hasty in decision”; “slow in deciding”; “intentional” • Must be planned and deliberate - R. v. Nygaard and Schimmens (1989, SCC, p. 460) • S. 229. Culpable homicide is murder  (a) Where the person who causes the death of a human being  (ii) Means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; First Degree Murder (Police) - S.231(4). Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is [a police officer or corrections officer, etc.] - The accused has to know that they were a police officer, and the police officer has to be on duty while killed - R. v. Munro and Munro (1983, OCA) • Crown must prove, in addition to proving intention to kill or cause grievous bodily harm, that ∆ knew the victim was a police officer acting in the course of his duties or was reckless to that fact. - R. v. Collins (1989, OCA, p. 463) • It would be contrary to s.7 to convict a person of killing a police officer (1st degree murder) if the accused didn’t know that the victim was a police officer. If ∆ didn’t know he was shooting at a police officer, then there’s no difference in moral culpability between that accused and an accused who shoots at a civilian. • Therefore, no basis for increasing parole ineligibility by 15 years • Therefore, Charter requires proof of knowledge or at least of recklessness Constructive First Degree Murder - 231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit [specified offences] st • Attacked as being unconstitutional to find someone guilty of 1 degree murder merely because they classified 1 degree because they murdered someone while committing another offense. - R. v. Arkell (1990, SCC, p. 464) • ∆ killed victim while attempting to sexually assault her • Issue: Is it unconstitutional to treat these offenders on the same footing as those who intend to kill? • Held: No: Once murder is proven, then Parliament can classify murders and punish murderers in whatever way it sees fit  In light of Martineau, ∆ must be proven to have subjective awareness of death  Once this is proven, Parliament can classify it as first or second degree • Perfectly constitutional for Parliament to find the accused guilty of 1 degree murder while committing another crime. In this case it was sexual assault. Fault for crime (p.467) Subjective mens rea Objective Offences based on predicate offences (aware of risk, all (marked departure (objective foresight of harm, no individual factors) from objective norm, individual factors, no marked limit no individual factors except for predicate offence) short of incapacity) e.g., murder, assault, break e.g., dangerous e.g., unlawful act manslaughter, and enter, theft, possession driving, careless unlawfully causing bodily harm, offences firearms, failure to aggravated assault provide necessaries (i) Common law presumption - Subjective mens rea is a Charter requirement in only a few cases, e.g.: • Murder: Vaillancourt; Martineau • Theft: Vaillancourt; Martineau • Attempt Murder: Logan (1990, SCC) • War crimes, crimes against humanity: Finta (1994, SCC) - Mens rea words likely, intentionally, willfully. Words in offense section describe state of mind would be subjective - No mens rea words: C/L presumption Crown has to prove guilt subjectively - R. v. Lucas (1998, SCC), the SCC said: • “…in the absence of an express legislative provision, it should be presumed that proof of subjective mens rea is a requirement of criminal offences.” • If it is in the criminal code, it is a subjective crime (ii) Motive - Lewis v. The Queen (1979, SCC, p. 469) • Circumstantial evidence of intent. Doesn’t have to prove it, but it does help the case Crimes of Objective Fault - Offences where an objective standard (usually “ought to”, “reasonable care”, “reasonably”, etc.) is part of the definition of the offence - Offences where it is implicit that the accused’s conduct is being held up to that of the reasonable person • Criminal Negligence Causing Death, s. 220 • Criminal Negligence Causing Bodily Harm, s. 221 • UnlawfulAct Manslaughter, s. 221(5)(a) • Careless Use/Storage of Firearms orAmmunition, s. 86(2) • Endangering Aircraft Safety, s. 77 • Common nuisance, s. 180 • Neglectful burial of human remains, s. 182 • Abandoning a child, s. 218 • Not Safeguarding an Ice Hole, s. 263(1) • Bigamy as a Result of a Mistaken and Unreasonable Belief that Spouse Is Dead, s. 290 • Publishing Defamatory material, s. 303 • Dangerous Driving, s. 249 • SexualAssault (as a result of s. 273.2) Criminal Negligence - 219. (1) Everyone is criminally negligent who • (a) In doing anything, or • (b) In omitting to do anything that it is his duty to do, - Shows wanton or reckless disregard for the lives or safety of other persons. - (2) For the purposes of this section, "duty" means a duty imposed by law. Crim Neg Causing Death - 220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable • (a) Where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and • (b) In any other case, to imprisonment for life. Crim Neg Causing Bodily Harm - 221. Everyone who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Negligence cases - O’Grady v. Sparling (1960, SCC, p. 514) • Recklessness =Advertence • Negligence = Inadvertence Negligence cases - R. v. Titchner (1961, Ont. C.A.) • Civil negligence ≠ Criminal Negligence • Crown must prove either…  (a) Accused acted with deliberate intention of doing or omitting to do something which it was his duty to do, the consequences of which he knew or should have known would endanger the lives or safety of others, or • ...or Crown must prove  (b) Accused acted with such disregard for the lives and safety of others as would indicate that he was heedless of what the consequences of his conduct might be. - Criminal Negligence is not the same thing as civil negligence, criminal negligence is further along the spectrum of moral culpability, The Crown has to prove that the accused act in deliberate intention knowing that actions of inaction can endanger someone or the accused acted with such disregard with others was simply careless of what his actions could be. Negligence cases - R. v. Rogers, (1968, BCCA) • Mistake is not a defense to a charge of Negligence (i.e., not a subjective test) • Here, ∆ is held to the standard of the reasonable doctor • Ratio: accused held himself out as a doctor, had a higher standard of care  standard of care is not that of the person himself, “but of those who possess reasonable knowledge and skill and are qualified by proper training to administer such treatment - in this case members of the medical profession generally  objective test used Negligence cases - R. v. Tutton & Tutton , (1989, SCC, p. 515) • Court split on issue of whether there is a subjective component to Negligence • McIntyre: completely objective test • Wilson: must be subjective component, i.e., awareness of (advertence to) risk, or willful blindness to risk • Appeal from Ont.C.A. setting aside convictions for manslaughter (s.222 + 219) • Facts: Carol andArthur Tutton were parents of 5-yr-old Chris, who died Oct. 17, 1981  Tuttons were good parents with good reputation, deeply religious  belonged to sect which believes in faith healing  believed that Divine intervention could cure illnesses beyond the power of medical science  April 1989: child diagnosed as diabetic, so mother learned all about diabetes, took course and seminars, became competent to deal with the illness under doctor’s supervision  a doctor told the Tuttons that their son would always have to take insulin  Oct. 2, 1980, Mrs. Tutton stopped giving the boy insulin b/c she believed he was being healed by the power of the holy spirit  2 days later, child was very ill, suffering from diabetic acidosis, potentially fatal’Mrs. Tutton promised not to withhold insulin any more  a year later, Mrs. Tutton had a vision of God in which she was told her son was cured, that no more insulin was needed, and that God would take care of her son  stopped giving insulin on October 14  Mr. Tutton didn’t know until Oct. 15, but at that time he approved  Oct. 17, child was taken to hospital dead on arrival; death caused by no insulin  defence: that there was an honest but mistaken belief that the boy was or would be cured • Issue: is honest but mistaken belief a defence to the charge of manslaughter • Held: Undecided; appeal allowed on other grounds, court split on this issue • Ratio: (1) per McIntyre J.  the objective test must be used  what is made criminal is negligence, which connotes the opposite of thought- directed action  therefore what is sought to be precluded is conduct and its results  in other words, what is punished is not the state of mind but the consequences of mindless action • (2) per Wilson J.  according to McIntyre J., criminal negligence is an absolute liability offence because there is liability even though the state of mind is not blameworthy  the section is vague:  if you emphasize the words “shows” and “negligence”, then absolute liability  if you emphasize “wanton or reckless disregard for the lives or safety of other persons”, then advertence to lives and safety is an essential element  where ambiguous, text should be given meaning consonant with broader concepts and principles of law  there must be the following mental element: advertence to risk, or willful blindness to risk  normally proof of the actions will lead to a rebuttable presumption of negligence  if social protection requires adoption of objective standard, Parliament must clearly enact it Negligence cases - Waite v. The Queen (1989, SCC, p. 526) • Trial Judge charged jury that, in order to convict of crim neg, they had to find that there was a subjective element of a “deliberate and willful assumption of risk.” • Crown appeal allowed; wrong to use subjective test • ∆ charged with several counts of crim.neg. causing death • ∆ said to passenger, “Let’s see how close we can get” to hayride; 40-50 children were in the hayride • ∆ drove towards hayride on wrong side of road, at between 70 and 90 mph • no headlights, only fog lights • 150 ft from hayride, he swung out around hayride and hit kids who wer
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