WDW225 Lecture 5

WDW225 Lecture 5 10/18/2012 The End of Actus Reus Actus Reus - Set out in the Criminal Code - Involves an act or omission - May involve a specified consequence (causation) - May involve a specific circumstances (lack of consent) - Must be voluntary o Must be conscious act o Accused must have an operating mind o Accused must be capable of making a decision o Voluntariness: Automatism R. v. Stone (1999, S.C.C.) (major shift on the law of automatism, Stone changes the test) Stabbed his wife 47 times; she insulted him; he felt a “woosh”; when he focussed again, she had been stabbed Two step approach (1) did the accused act involuntarily? - Burden on the accused (balance of probabilities) the civil standard of proof, simply “more likely than not, 50%+1 (2) is it insane or non-insane automatism? - Presumption (of voluntariness) that it is a disease of the mind (BIG change from Parks and Rabey) for the accused to approve that the act was voluntarily > call evidence on a balance of probabilities - Holistic test: does society require ongoing protection from the accused? (internal/external, continuing anger, policy considerations, reasonableness of response) insane automatism: not criminally responsible non insane automatism: absolute acquittal R. v. Luedecke (2008, Ont. C.A.) FACTS: admitted he had non-consensual sex with the complainant; claimed he was asleep at the time; had a history of engaging in sexual activity while asleep; acquitted at trial ISSUES: was his conduct involuntary? if so, was it the produce of a mental disorder/disease of the mind? Doherty J.A.: - Personifies one of the most difficult problems encountered in the criminal law. - Sexually assaulted a defenceless, young victim while asleep. - Automatism brought on by parasomnia renders his actions non-culpable - Behaviour is potentially dangerous and raises legitimate public safety concerns. - Outright acquittal does nothing to address the potential danger posed by the respondent’s condition. Doherty J.A. - Conduct was involuntary - Community has an interest in assessing and managing dangerousness - Categorization as “mentally ill” not the issue - Parks does not apply after Stone o Presumed to be a disease of the mind o Focus on risk of recurrence  Some evidence that it was the product of the disease of the mind o Defining something as a “disease of the mind” is largely a policy consideration - New trial ordered to determine whether NCR - The likelihood of reoccurrence Automatism: insane vs. non-insane automastism Everyones is presumed voluntarily, if presumed involuntarily will be categorized as insane categories unless through medical elements > non-insane auomastism “must not bring the justice system into disrepute” Insane automastism Non-insane automastism - “Disease of the mind” – not purely a - External cause medical decision - Transient disturbance of - Has legal, policy and medical consciousness elements (exemption from liability; - Results in a not guilty finding protection of the public) because the actus reus was not - Malfunctioning that is internal to the voluntary accused - Results in a finding that the accused is “not criminally responsible on account of a mental illness” – s. 16 Omissions - Actus reus – usually involves an act of commission (positive act) - BUT can sometimes involve an act of omission (failure to act) - For omission to be sufficient to establish crimina liability, there ust be a legal duty to act - Criminal Code creates legal duties - Failure to carry out legal duty = actus reus People v. Beardsley (US case) - FACTS: Beardsley was charged with manslaughter in the death of Burns - They had been drinking together at Beardsley’s house; both were extremely intoxicated; Burns sent someone to buy her morphine; she took 3 morphine tablets; Beardsley was too drunk to help her; he asked someone else in the house to assist her; she never regained consciousness and died THEORY OF LIABILITY: - Beardsley owed a “duty of care” to Burns to take steps to protect her; his failure to take steps to protect her caused her death; his failure to act (omission) makes him criminally liable - ISSUE: did he have a legal obligation to take all reasonable steps to save Burns? or is it merely a moral obligation? - RULING: - Burns had voluntarily gone “carousing” with Beardsley - Burns had experience with intoxicants - A moral duty does not create a legal duty - The mere fact Burns was in Beardsley’s house did not create a legal duty - Beardsley had a moral duty to assist but no legal duty o Cannot be a moral duty unless it is a legal duty - Conviction set aside - Everything she did was voluntarily, drinking and drugs. Examples in Canada: s. 215 (1) Every one is under a legal duty (a) As a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years; (b)to provide necessaries of life to their spouse or common-law partner; and (c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder, or other cause, to withdraw himself from that charge; and (ii) is unable to provide himself with necessaries of life Offence: 215(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if (a) with respect to a duty imposed by para.(1)(a) or (b).. (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or ss. 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, except in the cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing. s. 217.1 – Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to do it if an omission to do the act is or may be dangerous to life R. v. Thornton (1991, Ont. C.A.) FACTS: Thornton was HIV positive; knew that Canadian Red Cross would not knowingly accept blood from an infected person; knew donated blood was used for transfusion; donated blood anyway CHARGE: common nuisance endangering life s. 180(2) – For the purpose of this section, every one commits a common nuisance who does an unlawful act or