CRIM 230 Study Guide - Absolute Liability, Actus Reus, Sexual Assault
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CASES CH 1
Case #1- Reference re Firearms Act
Background: Firearms Act required the holders of all firearms in Canada to acquire
licences for and to register their gun
Main issue: is enactment of Firearms Act a jurisdiction of federal criminal law?
o Federal govt. asserts that the gun control falls under its criminal law power and
under its general power to legislate for the Peace, Order and Good Government
o Alberta says the law falls under its power over property and civil rights
Parliament has jurisdiction over gun control law is to enhance public safety
Analysis -- What is the Pith and Substance of the Law
o Two aspects of the law must be examined: the purpose of the enacting body,
and the legal effect of the law
o Pith and Substance of Firearms Act= Public safety
o Legal effects of the law involves considering how the law will operate and how it
will affect Canadians
o Another way to determine the purpose of legislation is to look at the problems it
is intended to address so called “mischief” approaches
Illegal trade in guns, link between guns an d violent crimes, suicide and
accidental deaths are examples of mischief
Appeal dismissed – firearms act do not infringe on jurisdiction – federal win
Case #2: Morgentaler, Smoling and Scott
Background: Three accused, all doctors working in clinic that provided abortion services
Main issue: did section 251 infringe on section 7 life liberty and security?
Judgement: SCC said section 251 (now s287) was invalid and of no effect because it
infringed on section 7 of the Charter
Case #3: Malmo-Levine // Caine
Background: Malmo-Levine - police entered the premises of the Harm Reduction Club
and seized 316 grams of marijuana -- Charged with the possession of marijuana for the
purpose of trafficking – convicted
Caine – used marijuana for his own purpose of enjoyment (0.5 grams) -- charged with
possession of marijuana
Main issue: is prohibitation unconstitutional? violate section 7 or section 15? Is it a valid
exercise of federal criminal law powers?
Judgement: Courts upheld conviction and said was not unconstitutional
Case #4: Ferguson
Background: Ferguson was convicted of manslaughter
Section 236(a) said using firearms, impose mandatory minimum 4 years
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Trial judge did not impose minimum, gave conditional sentence, said sentence was too
cruel for this case, and thus violate section 12 of charter - Granted Ferguson a
constitutional exemption (individual remedy)
Main issue: Is this minimum sentence too cruel? If it is, can a trial judge grant exemption?
Under what circumstances is this okay?
Judgement: Appeal court set aside the sentence and gave minimum sentence –
exemptions should not be given as remedy for cruel punishment imposed by a law, if it
really is cruel, the law can be declared of no effect – cannot undermine the rule of law
CASES CH 2
Case #5 Chase
Background: Chase entered the home of the complainant, grabbed her breast
Main issue: How should ‘sexual’ be defined?
Judgement :Trial judge said not sexual assault because did not touch ‘private parts’
Appeal to SCC, SCC said is sexual assault, yes guilty
Sexual assault occurs when application of force happens in circumstances of a sexual
nature, such that the sexual integrity of the victim is violated.
Case #6 Toews
Background: Was impaired, sleeping in a sleeping bag in his car parked, on private
property 5am, key was in the ignition and the stereo was playing loudly, a friend drove
him to the destination, no intention of driving
Main issue: Was he in ‘care or control’ of section 253?
Judgement: Appeal court said not guilty, he had no actus reus – Presumption of Care
and Control – when found in driver’s seat, not automatically convicted, onus on accused
to prove he did not have any intention of driving vehicle (sleeping bag support
statement that he was merely using the vehicle as a place to sleep)
Case # 7 Cooper 1993
Background: Cooper convicted of murder of Careen, Was having consensual sex, they
started arguing, he hit her head and grabbed her by throat and shook her (at front seat),
then he recall nothing and woke up in back seat, finds her dead
Main issue: Did mens rea and actus reus coincide? Accused said he did not have murder
intent because he “blacked out” before her death occurred.
Judgement: SCC said still guilty, because when he committed a series of acts that
resulted in her death, these acts are considered as being “all part of the same
transaction”, if necessary MR coincide at any time with one of these acts, the accused
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