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RECAP CHARTER All Charter rights other than s.7 - Step 1: Does the law infringe the Charter? - Step 2: can the law be justified (“saved”) in a free and democratic society under s. 1 (R. v. Oakes)? o Pressing and substantial objective; AND o Rational connection; is there actually a connection b/t what the gov’t is trying to achieve and the law itself, does the law advance the objective/interest that the gov’t has AND o Minimal impairment; define the law as narrowly as possible, law infringes the right as little as possible AND o Overall proportionality; relationship b/t negative and positive results, allows more discretion than the court might have if they didn’t have it in, take a step back and look at the harm to infringement of Charter right, how much is an infringement is this law and how much is the benefit of this law, if there is a balance or it is tipping in favour of the law than it is okay e.g. child pornography, benefit of protecting children from harm of pornography is greater than the harm of infringing freedom of expression Chapter 7 (exception to general rule) - Step 1: does the law infringe the right to life, the right to liberty or the right to security of the person? (Any arrest /penalties with possibility for imprisonment, the answer is always YES) - Step 2: if yes, does it do so in a way that is inconsistent with the principles of fundamental justice (overbreadth, vagueness, minimum requirement for mens rea etc.), don’t get a s. 7 violation until you pass step 2, if it is consistent with ANY principles of fundamental of justice than it is a violation, if not then it isn’t o “no”—law does not violate s. 7 o “yes”—law does violate s. 7 - Laws that violate s.7 cannot be “Saved” under s. 1’ THEREFORE, no s. 1/Oakes analysis, because s. 7 has its own internal balancing, it’s not possible to deny liberty interests in a way that is fundamentally unfair . A law can be consistent with section 7 but not with other charter rights. Principles of fundamental justice have nothing to do w/ section 1, only exists within section 7 RECAP - Every criminal offence has : o ACTUS REUS (physical element) + MENS REA (mental element) o Criminal act + criminal intent - Can be more than one element for actus reus and mens rea - Has to overlap, happen at the same time MORE ON ACTUS REUS Always defined in the Criminal Code - Could be more than one element to the actus reus - Read the Code sections - Will involve an act or omission - Might specify a particular consequence (might specify causation) - Might specify a particular circumstance (absence of consent), EXAMPLE: participating in the activities of a terrorist group 83.18(1): Every one who knowingly participates in or contributes to , directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist a activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years - participates in or contributes to: you have to do something, an ACT, an act that is done in connection with a terrorist group - an act that is designed to enhance the activity of the group BUT there is more (2) an offence may be committed under subsection (1)whether or not a) a terrorist group actually facilitates or carries out a terrorist activity; b) the participating of the accused actually enhances the ability of the group c) the accused knows the specific nature of any terrorist activity 3) participating in or contributing to an activity of a terrorist group includes a) providing, receiving or recruiting a person to receive training; b) providing or offering to provide a skill or an expertise c) recruiting a person in order to facilitate or commit a terrorism offence; d) entering or remaining ACTUS REUS under s. 83.18 requires 1 a) An act of participation (direct or indirect) b) An act designed to enhance ACTUS REUS under s. 83.18 does not require: a) Proof that activity actually enhanced group (causation not requires) b) Proof that any terrorist act was or would be carried out ACTUS REUS AND CONSENT Many criminal offences require Crown to prove an absence of consent as part of the actus reus s.265(1) a person commits an assault when a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly b) this section applies to all forms of assault, including sexual assault, sexual assault with a weapon…or causing bodily harm and aggravated sexual assault - actus reus is applying force without the consent rather intentionally or not Recall from last week: R. v. Cuerrier - fraud will vitiate consent (including failure to disclose HIV-positive status); consent doesn’t count when there is deceit involved - consent can be vitiated on broader public policy grounds as well; not just fraud, but if there is some public policy not to let people consent in certain circumstances it is possible as well LIMITS OF CONSENT What are the limits of our ability to consent? s. 241(a) –everyone who aids a person to commit suicide whether suicide ensues or not, is guilty of an indictable offence THEREFORE==cannot consent to be killed What about injury short of death? R.v. Jobidon (SCC, 1991) - consensual fist fight - Jobidon thought they were agreeing to a “fair fight” - punched Haggart a number of times - Haggart was knocked down by the first punch - Jobidon thought he was just “stunned” - Continued to punch - Haggart died from head injuries Jobidon was charged with manslaughter s. 222 (5) A person commits culpable homicide when he causes the death of a human being a) by means of an unlawful act HERE: Jobidon caused the death of Haggart ISSUE: was it by means of an unlawful act (assault)? Was the fight an assault? MAJORITY (Gonthier. J) - No common law offences (s.9) - BUT common law principles can be used to interpret the offence provision - Common law can shape the contour of codified offence - If taken at face value, definition of assault would criminalize trivial conduct and lead to absurd results; trivial application of force than it wouldn’t be an offence because of another common law principle - Policy con
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