WDW225 Lecture 4

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University of Toronto St. George
Woodsworth College Courses
Jim Davies

WDW225 Lecture 4 10/11/2012 More on Actus Reas Recap Every Criminal Offences has: ACTUS REUS + MENS REA (Physical element) + (mental element) Criminal act + criminal intent - Facts that the crown has to prove to secure the conviction - The intention which you do the act Actus Reus Always defined in the Criminal Code - could be more than one element to the actus reus - read the Code sections very carefully - will involve an act or omission - “omission” requires a legal duty to act first - might specify a particular consequence (might specify causation; i.e. “cause death” or “cause bodily harm”) - might specify a particular circumstances (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 activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. - Doing anything that constitutes participating in or contributing to a terrorist group, directly or indirectly But there is more.... (2) An offence may be committed under subsection (1) whether or not (excluded) (a) a terrorist group actually facilitates or carries out a terrorist activity; (b) the participation 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 in any country; and (e) making oneself available to facilitate or commit a terrorism offence ACTUS REUS under s. 83.18 requires: (a) an act of participation (direct or indirect) ACTUS REUS under s. 83.18 does not require: (a) proof the activity actually enhanced group (causation not required) (b) proof that any terrorist act was or would be carried out Actus Reus and Consent (Left off last week) 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 (essential element) (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon...or causing bodily harm and aggravated sexual assault If you obtain consent, there is no actus reus of assault UNLESS…. consent is obtained through (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority. [applies to all assaults and sexual assaults -- s. 265(3)] R. v. Cuerrier (1998, SCC) Facts: HIV+, did not disclose to sexual partner; told his partner he tested negative 9 months earlier; complainant testified that if she had known he was HIV+, she would never have had unprotected sex with him; ordered by public health nurse to inform partners he was HIV+; charged with aggravated assault 268 (1). Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. BUT it must first be an assault (application of force without consent) Old test: “false and fraudulent representations as to the nature and quality of the act” (lie or deceive someone about the nature of the act that you are going to comment) Old decisions: R. v. Clarence (1888): husband failed to disclose he had gonorrhea – not fraud as to nature and quality of act R. v. Bolduc (1967, SCC): voyeur friend posing as an intern – no fraud R. v. Maurantonio (1968,Ont. C.A.): accused posed as doctor – fraud as to nature of act (consented to medical exam) Test under s. 265(3)(c): “fraud” vitiates consent  No longer limited to nature and quality of the act.  BUT what about non-disclosure? Two elements of fraud: 1. Dishonesty  Objective test  Misrepresentations or non-disclosure 2. Risk of Deprivation  Need show actual harm or loss? Test for fraud: - fraud as to nature and quality of act still vitiates consent - dishonesty – to be assessed objectively. deliberate deceit or non-disclosure dishonesty must relate to obtaining consent cannot give informed consent without knowledge of ‘significant relevant factors’ - risk of deprivation – must be more than trivial o exposure to a significant risk of serious bodily harm having sex with HIV+ partner always carries that risk But why use criminal law? deterrence, public protection, denunciation R. v. Maboir (SCC, Oct 5, 2012) SCC asked to reconsider the “fraud” test in Cuerrier Facts: - 9 complainants - failed to disclose he was HIV+ - Wore condom on some occasions but not all - None of the complainants contracted HIV - Convicted of 6 counts of aggravated sexual assault SCC confirms the 2 part Cuerrier test: (1) a dishonest act (misrepresentation or non- disclosure); and (2) deprivation (significant risk of serious bodily harm) - Wanted to address concerns about uncertainty in the existing test and the breadth of its application - Rejected absolute disclosure rule - Rejected “active deception” rule - Rejected the “reasonable partner” test - Adopted an “evolving common law” test (moving target) o Significant risk = something between no risk and high risk o Significant risk = realistic possibility of transmission o Low viral load + condom use = no realistic possibility of transmission o Test should evolve to match scientific advances 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) o Consensual fist fight o - Jobidon thought they were agreeing to a “fair fight” o Punched Haggart a number of times o Haggart was knocked down by the first punch o Jobidon thought he was just “stunned” o Continued to punch o 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 death caused by an unlawful act? Was the fight an an unlawful act? The actus reus: unlaw act and the consequences of the death Application of force without consent The causation of death MAJORITY (Gonthier J.) o Common law can be used to interpret the offence provisions in the Code o Common law rules exist that give meaning of consent and limit its legal effectiveness in
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