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CRM200 Lecture Note Nov.13, 2013.docx

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Ryerson University
CRM 200
Alexandra Orlova

1 CRM200 Week #9 Week #9: Nov.13, 2013 1.) MISTAKE OF FACT ● defences of mistake of fact ● accused commits the action (actus reus) part, but under mistaken facts ● lack of mens rea ● have to prove both mens rea and actus reus, and if cant this is how it comes to claim ● e.g. Albert takes Brian book, but think it’s his own; did the act, but the mens rea is not there, no intent to deprive Brian of his property, it was a mistake, if it was truly believed, then he did not commit a criminal offence ● two elements: first of all, mistake has to be honest, second element is no offence would have been committed if accused believed it to be 2.) SHOULD A MISTAKE OF FACT BE BOTH HONEST AND REASONABLE? ● cannot have been willfully blind ● reasonably means the evidentiary capacity ● question of reasonable goes towards credibility ● less reasonable the mistake was, the more difficult to prove it was honest ● although mistake doesn’t have to reasonable, cannot be willfully blind - if either or is present, cannot use the defence of mistake of fact ● Sansregret (1995) ○ was told by probation officer only reason being charged was because of his intervention; does it again, ○ tried to use mistake of fact defence; denied being reckless or being willfully blind; ○ can’t use mistake of fact because was willfully blind, didn’t make inquiry where suppose to ● Factual scenario #1 (Cordelia) ○ could argue either or, depends on how Miranda acted, was there subjective awareness? ○ should have looked at file regardless of Miranda ○ or honestly believed that Cordelia consented to the injection ○ also on how she behaved (normal patients don’t handle pain well) or how slowly he injected ● what about sexual assault cases? ○ are there circumstances you can use mistake of fact defence for sexual assaults? whether victim gave consent or not ● Ewanchuk (1999) ● in terms of actus reus, crown has to prove three elements beyond a reasonable doubt: some kind of touching, second is the sexual nature of the contact, and third is the absence of consent on part of the victim ● first two elements are judged on a reasonable test ● third element uses a purely subjective standard; what went on in the mind of the victim, whether the victim gave consent ● once proved the actus reus, have to prove mens rea element 2 CRM200 Week #9 ● mens rea element has two elements: prove intention on part of the accused to touch the victim, and secondly the crown has to prove either knew, was reckless, or willfully blind with regards to the consent of the victim ● actus reus examines consent from the victim, mens rea looks at consent view from the accused ● to use this defence, must be shown accused honestly believed victim gave consent and was not reckless or willfully blind ● when it comes to sexual assault, not enough, need to be both honest and reasonable (not just honest) ● reasonable component added 3.) SEXUAL ASSAULT AND HONEST BELIEF IN CONSENT ● s.273.2 amendment - it is not a defence to a charge of sexual assault... ● removed intoxication defence in 1992 ● requires accused of taking reasonable steps 4.) SEXUAL ASSAULT AND HONEST BELIEF IN CONSENT (CON’T) ● only have a defence in mistaken belief in consent if he believed the victim communicated consent and he had taken reasonable steps given the circumstances ● going to look at relationship and history if there is one; if one night stand need explicit permission, but if cohabit its different ● reasonable requirement is crucial because sexual assault cases are not witnessed by others, may be no visible injuries; need to combat those stereotypes towards women and the reasonable requirement is needed to add security for women ● silence doesn’t comply consent, consent can be withdrawn at any time where accused has to stop ● Factual situation #2 ○ depends on their history, was he abusive before? ○ normally don’t seek explicit consent, and been in relation for long time, why wouldn’t she speak up? ○ number of questions to ask ○ did he honestly believe it? was it reasonable? looking at recklessness and willful blindness 5.) SATISFYING AN EVIDENTIARY BURDEN IN THE MISTAKE OF THE FACT DEFENCE ● accused would have to have evidentiary burden ● mistake of fact, Crown has to prove; evidentiary consent would have to prove but before it is even considered, accused needs to satisfy evidentiary burden, convincent(?) it could put the defence in play - air of reality ● what it means is it that there is some evidence that the jury can prove in favour of the accused; trial judge only has to determine if there is particular evidence to put the defence in play ● not examining credibility, quality of the evidence; is it worthwhile to go through with the defence? 3 CRM200 Week #9 ● trial judge judges if the evidentiary burden is met ● in order to satisfy evidentiary burden, must be something more than what the accused has stated (without any other supporting evide
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