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Lecture 1.docx

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LAWS 2302
John Hale

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Lecture 1 Note taker notes Elements of an offence - An element of offence is one (or all) of the 3 things the Crown has to prove in a criminal case • Mens rea intent to commit the crime (mental aspect) • Actus reusthere was a criminal act committed (physical aspect) • Must prove identity, aka, who did it (Won’t be looked at as much) - These must be proven beyond a reasonable doubt - Burden of proof: who has to prove something • Crown always has the burden of proof - Standard of proof: to what extent they have to prove it TheActus Reus - Crown must prove up to 3 aspects of theActus Reus • Circumstances (existence of certain circumstances)  Ex: without consent • Voluntary physical act (ex: hit someone, drove while drunk, etc...)  If it was not voluntary,Actus Reus doesn’t apply • Consequences (what consequences did their actions have by committing the crime)  Ex: causes bodily harm, or causes death Public mischief - S. 140:(1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by • making a false statement that accuses some other person of having committed an offence; • doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself; • reporting that an offence has been committed when it has not been committed; or • reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died. - Public mischief: lying to the police by saying someone committed a crime they did not actually commit • Voluntary physical act: speaking to the officer • Circumstances: the fact that what was said was false • Consequences: it caused a police officer to start or continue an investigation on the false allegation • The Crown must prove that the accused person intended to mislead the police. But, there is no mens rea if the person didn’t know it was false information Assault - S. 265.(1) Aperson commits an assault when • without the consent of another person, he applies force intentionally to that other person, directly or indirectly; • he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or • while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. - Assault: applying force intentionally to the person directly or indirectly • Voluntary physical act: the application of force to another person. Nothing saying how much force.A tap on the shoulder can be considered an assault. • Circumstances: ex: carrying a weapon ***** • Consequences: ****** Mens rea - Mens rea= guilty state of mind 1. Specific intent (intend consequence of their act) 2. General intent • Assault is a general intent crime  Only have to prove intent to commit the thing itself.  Don’t have to prove intended to hurt other person, only commit the act) 3. Willful blindness (person knew of risk) • Ex: buy something you know may be stolen, then you are being willfully blind to the obvious. Should have asked more questions. • Alert to there being a problem, but don’t ask questions so that you can remain ignorant. 4. Recklessness (reasonable person ought to have known of risk) • Did not intend to do it, but were reckless. Being aware of a risk, but taking a chance anyways. • Ex: If you have a pellet gun, and decide to put a blindfold on and start firing, and you hit someone, you may not have intended to hurt anyone, but knew there was a chance. • Less culpable than intent 5. Negligence (failure to comply with standards of a reasonable person. State of mind is irrelevant) • Can hold people responsible because they did not maintain the standard of reasonable person/care • Ex: child dies b/c it wasn’t fed properly, the parents can be charged with negligence Mens Rea - Therefore, actus reus refers to the physical component of a crime - Mens rea refers to knowledge of each of these elements - Guilty act and guilty mind must exist at the same time Actus Reus - Actus reus= voluntary activity, circumstances and consequences - R. v. King (1962, SCC) p.306 - Rabey v. The Queen (1980, SCC) p.307 - R. v. Parks (1992, SCC) p.307 - R. v. Stone (1999, SCC) p.308 R. v. Hutt (1978, SCC) - Debra Hutt convicted of soliciting at trial; conviction overturned on Sum. Conv. appeal; conviction restored in B.C. Court ofAppeal; ∆ appeals to SCC - Issue: Did Hutt solicit in a public place? i.e., (1) did ∆’s acts constitute solicitation?, and (2) was the officer’s car a “public place”? - Held: Unanimous: not solicitation. 5 Judges: not a public place - Ratio:According to definition of public place in Cr. C., the car was not a public place • “To interpret the words otherwise would mean that if I were to invite anyone to enter my own home then that home would be a public place.” Logical approach • “Public place” issue wasn’t argued, so proceed on basis that it was a public place. Did ∆ solicit? • “solicit” is not defined in the Cr. C., therefore appropriate to turn to Shorter Oxford Dictionary • In Oxford, “solicit” = to accost and importune for immoral purposes • What is defn. of “accost” and “importune”? • Accost = “to confront” • “Importune” has numerous definitions; Spence chooses “to solicit pressingly or persistently; to beset with petitions.” • Court holds that for there to be soliciting, act must be confrontational, and pressing or persistent • Here, ∆ was merely indicating that she was available; there was nothing pressing or persistent • Soliciting must include confrontational behavior. Pressing and/or persistent. The conversation did not amount to this definition of soliciting. - Follow up: - Prostitution was completely legal since SCC decision in February 1978; police crackdown in June 1979 timed with upcoming police convention in August, and the summer tourist season generally - Since Hutt, Hutt was convicted of welfare fraud and heroin possession and got 8 months; a Prov. Ct. Judge and the Chief Justice of the BCCA were both investigated re prostitution offences and resigned - Criminal Code amended in 1985: s.213(1): changes include: 1. “in a public place or in a place open to public view” 2. “communicate” instead of “solicit” 3. “stops or attempts to stop” a motor vehicle or person 4. “Public place” includes any motor vehicle that is in a public place or any place open to public view. - This seems mainly to have driven prostitutes into escort services or out of the tourist areas that police were concentrating on - SCC got an Oxford Dictionary to define soliciting. Found that confrontational behavior had to be persistent. She was not pushing herself on him, just were having a discussion of services that were available.As a result: Street Prostitution became legal. It is now defined as communicating in the intent on prostitution. Still has to be in a public place, or any vehicle found in a public place. Marshall v. The Queen (1969, Alta. C.A., p.209) - Facts: Danny Marshall was 16 years old student in Calgary • went with friend, Roy Jones (who had a car) to Vancouver • Frank Brander and Wes Cameron also went. ∆ did not know Wes • On the way back from Calgary on Monday morning, ∆ discovered there was some pot in the car. Everybody but ∆ smoked some. • ∆ didn’t smoke, but simply passed the pipe on to the next person • Halfway to Calgary the car was pulled over for doing 95 mph. Cameron was driving. The police asked the boys to follow them into Golden, B.C. • On the way into Golden, somebody other than ∆ threw the pot out the window • They were all released except Cameron. The remaining 4 boys drove back, and stopped to pick up the pot on the way. Somebody other than ∆ picked it up. • They picked up a hitchhiker east of Banff. • On the outskirts of Calgary they were pulled over by the RCMP again. ∆ was sitting in left rear seat • 1 kg of pot was found by the police on the floor in the right rear seat. It was partially covered by Cameron’s sweater, which also had some pot in the sleeves. • paraphernalia (hookah pipe) also found in the car • everybody except the hitchhiker was charged • ∆ testified in his defence, saying he didn’t know about the pot until 30 miles out of Vancouver. He said he didn’t get out because he had no money. He didn’t want to go back and pick the pot up. The pot belonged to Cameron - Trial judge: ∆ had an opportunity of leaving the car; at Golden, he could have asked the police for help; he could have hitchhiked • ∆ exercised no control over the pot, but because he did not protest or separate himself from the others over a long period of time, he acquiesced and was therefore in possession • Under s.3(4)(b), a person in ∆’s position is in possession if he has knowledge and consents. - Issue: Did ∆ consent? - Held: No; acquitted - Ratio: Consent to ride in the car ≠ consent to the presence of pot • ∆ had no control over the pot, or over the car in which the pot was • ∆’s action in passing the pipe may have just been a reflex, and cannot be equated with consent - MY NOTES: • By staying in the car, he agreed to the presence of the weed • Can’t say he realistically consented. He was 16, in a moving car, on a highway. Can’t exactly expect him to jump out or pull over on the side to leave the car. Consent to being in the car is not equal to consenting to taking drugs • It was not a voluntary act • Crime of possession requires knowledge of the presence of the thing (mens rea), some control over it, and consent to be in possession  Passing the pipe is a reflex - Trial Judge said he was guilty, because as soon as he discovered that there were drugs in the car, he should have left the car. However he was traveling to Vancouver and back, not realistic. He knew it was there and he stayed in the company of the drugs. The Court of Appeal said that he did not consent, his options were to stay in the car, or to bail out of a moving vehicle, he did not consent to the drugs. By passing it, it is like a reflex, not realizing. There needs to be some act of control. Court ofAppeal overturned the result. R. v. Terrence (1983, SCC, p.212) - Facts: ∆ was 17 years old • ∆ lived across the street from Bill Rorback and his brother and Rick Hayes in Belleville • On Jan. 30, 1980, ∆ went across the street, after dinner, as he often did • Hayes wasn’t there, so ∆ watched TV with the Rorbacks • around midnight, Hayes pulled up in a new Camaro and asked if anybody wanted to go for a ride in his brother-in-law’s new car • ∆ said “sure” • the car was stolen, and had plates on it from another Camaro in Belleville • ∆ knew that Hayes’ brother-in-law had an old junker, and thought he was due for a new car; since Hayes had the key, ∆ thought nothing of it. • they drove around for 45 mins. and then got on the 401 east towards Kingston • car was chased by police near Napanee; stopped at a roadblock, at which point ∆ jumped out and ran off into a field • although there was no evidence to contradict ∆’s account, the trial Judge utterly disbelieved him • Judge proceeded as if ∆’s knowledge was a proven fact - Issue: was ∆ in possession? - Held: No: acquitted - Ratio: C.A.: in order to prove possession, must prove control • in addition, when ∆ is charged as a party, must prove knowledge and consent • no control exercised here - MY NOTES: • Charged of being in possession of a stolen car. But you aren’t in possession of something unless you have control over it. He was in the car, but had no control over it. - Crown could not prove he knew it was in a stolen car, or that he was in control of the car. Re Chambers and the Queen (1985, Ont. C.A.) - ∆ was committed to stand trial on a charge of possession of cocaine for the purpose of trafficking; committal was quashed; Crown appeals to Ont. C.A. - Facts: Toronto residence of Ralph Cardenas was under surveillance for 25 minutes • during this time, ∆ was seen in an upstairs bedroom and, for part of the time, was near a shelf unit • police got search warrant; they searched the room that ∆ had been in, and found 104 grams of 95% pure cocaine on the top shelf of an open closet • the closet contained women’s clothing, and the bag of coke was found under some women’s sweaters • in a women’s dresser there was a debt list and a deck (folded paper) • ∆ told police that she lived there alone with her boyfriend from Detroit, who was visiting her • Cardenas showed up, and was found to have some pot on him • a deck with “1/2” written on it was found in Cardenas’gym bag - Issue: Is there some evidence of possession? - Held: Yes: committal restored - Ratio: According to Terrence, “consent” requires a measure of control over the subject- matter • there was evidence that the drugs were found in ∆’s room, and she could give or withhold consent to things being in her room • ∆ at least permitted Cardenas to store his drugs in her room; even in doing that, she was exercising control - MY NOTES: • They were looking at his place, saw her in a room. Got a warrant to search the place, and went to the room they saw Chambers in. found tons of cocaine. • Allowing drugs in her place shows a level of control, and therefore enough evidence to put her on trial - Not interested in Chambers but her bf, she was living with him. She was near a shelf unit. Police searched that room and saw all the cocaine in that closet. The closet had women’s clothing and a lot of cocaine on the top shelf. There was a debt list on the dresser and paraphernalia. Her bf was visiting, and she knew he brought pot. Is their evidence that she could be convicted of. C.A. felt like there was enough evidence to go to trial. It was her place and the drugs were found with the women’s clothing. She exercised control it’s her place. R. v. Pham (2005, OCA, p.216) - ∆ convicted of P4P cocaine; appeals - Facts: ∆ moved into her apartment in October 2002, as sole occupant • 2 months later, Lieng Nguyen moved in • Lee Ann Poulton was in an apartment across the hall and could see ∆’s door through her peep hole • After ∆ moved in there was lots of traffic; people were seen putting money under ∆’s door, followed by a plastic bag containing “white stuff” coming back out under the door • Visitors would not go in, but would talk through the door • Poulton identified ∆ as one of the speakers that she heard; twice she saw ∆ open the door; once when a man asked if $50 was enough; another time when she saw ∆ exchange white stuff for money • Lieng Nguyen moved in in December 2002 • In January 2003, police set up surveillance • Police saw many people known to have drug addictions coming into and leaving the building • On March 3, ∆ left at 4:40 PM and did not return • March 4: somebody went to the apartment briefly and left. Police arrested this person with crack cocaine • Police got a search warrant, executed it on March 5 . Nguyen was there, but not ∆ • 9.8 grams crack were found • charges against Nguyen were withdrawn without explanation - Issue: Has Crown proven knowledge and control? - Held: Yes. Conviction upheld (2:1) - Ratio: There are 3 types of possession in s. 4(3) of the Criminal Code: 1. Personal possession (4(3)(a)) 2. Constructive possession (4(3)(a)(i) and (ii)) 3. Joint possession (4(3)(b)) • For constructive (or attributed) possession, must be more than quiescent knowledge; there must also be an element of control • Control may be proven by direct evidence or inferred from circumstantial evidence • Defence theory here is that either Nguyen or someone else brought the drugs in after ∆ left • Even assuming this is true, ∆ is in constructive possession because:  ∆ used her home as a drug trafficking center  ∆ retained control of her apartment even when she was not there  the drugs and money were found in full view in the bathroom, a c
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