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CRIM 230 Study Guide - Expert Witness, Common-Law Marriage, National Defence Act

9 Pages
398 Views
Summer 2013

Department
Criminology
Course Code
CRIM 230
Professor
Simon Verdun- Jones

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CASES CH 7
Case # 21: Greyeyes 1997
Background: Was convicted for with trafficking with cocaine. Acting as agent for
undercover cop (purchaser, not seller) but doesn’t matter because acted as vendor in
making the sale without him, transaction would not have been made
Main issue: Can an accused person who acts as an agent for a PURCHASER of narcotic or
who provides assistance to a purchaser to by narcotics be considered a party to the
offence of trafficking by virtue?
Judgement: Normally, a person who aids the purchaser will only be guilty of
aiding/abetting the possession of narcotic, not trafficking. However in this case,
Greyeyes did far more than act as a purchaser. He located the seller, brought buyer to
site, introduced the parties, without the assistance, this purchase would never have
taken place. He acted as spokesperson negotiated price and passed money to seller.
Thus greyeyes should be convicted of aiding in trafficking of narcotics.
Case # 22: Pickton 2010
Background: 27 counts of first degree murder. Pickton was convicted of 6 counts of first
degree murder in his trial. Killing women from the downtown east side of Vancouver, all
victims were sex trade workers
Main issue: Defense argued he might not actually shot some victims, there is possibility
of other individuals involved.
Judgement: Not necessary for him to be sole perpetrator, because he aided/abetted
the offence (luring victims, providing them with drugs, subduing them, etc)
Case #23: Ancio 1984
Background: Went to Kurely’s house, where is wife was staying. He was depressed and
had drank excessively. He take shot gun and break into Kurely’s house, Krely sees him
and throws chair at him. The gun accidently went off.
Main issue: Does Crown need actual intent to kill in order to obtain a charge of
attempted murder?
Judgement: Can convict for Murder without actual intent (recklessness)
o But not for attempted murder: need ACTUAL intent.
Case #24: Hamilton 2005
Background: Sold files including instructions for bomb making, house breaking, credit
card generator. Charged under 464 counselling 4 offence that were not committed. He
said he didn’t read the content
Main issue: What is the mens rea for conviction of counselling offence not committed?
Judgement: Mens rea = intent for offence to be committed OR extreme recklessness
(added after this case). The recklessness is a HIGH standard, must be substantial.
He was acquitted for counselling bomb making/break and enter, but was charged for
counselling fraud, because his email had ‘teasar’ advertising the credit card program.
Case #25: USA and Minster of Justice of Canada v. Dynar
Background: Dynar, a Canadian citizen was the subject of an failed string operation
conducted by the FBI
Main issue: He could not be charged for laundering money because the money were not
proceeds of crime, was money of FBI. Critical question was could he be convicted for
ATTEMPTING/CONSPIRING to commit money laundering?
Judgement: Yes because one can still be convicted for attempt even if their actions, if
carried out, could not possibly have led to a crime
o All that is required is the intent to commit the crime and actions attempting to
further this intent The mens rea and actus rea enough to establish attempt
charges
Case #26: Gladstone et al
Background: Two men attempting to sell herring spawn on kelp, which was not caught
under the license required. He asked a shop owner if he was ‘interested’, and was
rejected.
Main issue: Did crown established the necessary actus reus for the attempt?
Judgement: The accused went beyond mere preparation to actual attempt. They went
to store and asked owner if he was ‘interested’ – completed the actus reus.
Case #27: Dery 2006
Background: Dery and Savard discussed plan to steal liquor stored in outdoor trailers,
their conversations were unexpectedly intercepted in unrelated police investigation. On
the basis of the conversation, they could not be charged for conspiracy because no
agreement has been reached yet.
Main issue: But can they be charged for ATTEMPTING to conspire? Since they went
beyond preparing to ‘conspire’.
Judgement: NO, Canadian law does not recognize existence of attempting to conspire.
The law punish attempt is to prevent harm, but the logic is lost when it applies to
attempt to conspire. The risk is not that big when they have no plans/agreement. The
law does not punish bad thoughts before agreement was reached/attempt was made.
CASES CH 8
Case #28: Oommen
Background: Thought girl was part of conspiracy to kill him, need to kill her before she
kills him. Has delusional psychosis.
Main issue: Did he have the capacity to know that his act was wrong within the meaning
of NCRMD ?
Judgement:
o Trial judge said he subjectively did not believe it was wrong but had “general
capacity to know right from wrong”, so should be guilty.
o SCC disagree, say focus must be on capacity to know act was wrong should not
focus on ‘general ability to distinguish right from wrong’ , but should be on
‘capacity to know killing was right or wrong in the circumstances as he honestly
believed them to be
Case # 29: Winko v. BC (Forensics Psychiatric Institution)
Background: Charged with aggravated assault, assault with a weapon and possession of
a weapon for purposes dangerous to the public peace. Found NCRMD.
Main issue: Does 672.54 infringe s7 or 15? How to interpret this section?
Judgement: To interpret SECTION 672.54 unless the review board is satisfied that the
NCR person constitutes “a significant threat to the safety of the public”, they must be
granted an absolute discharge.
This section does NOT violate section 7 or 15
Case # 30: Stone 1999
Background Wife continue to insult him for hours in car. He blacked out and stabbed her
47 times.
Stone claimed Psychological Blow automatism and alternatively, provocation
Main issue:
o What is the definition for Automatism? = “Impaired consciousness rather than
unconsciousness” – if raised not b/c of mental disorder or self-induced
intoxication, should get acquittal
o How should courts distinguish between automatism and NCRMD? Disease of
the mind is a legal, and not strictly a medical term. Internal (epilepsy) or external
(drugs)? Continuing danger? Before, if courts viewed disease was internal and
continuous, should be NCRMD. Should also embrace a more holistic approach,
should presume all state of automatism is a result of a mental disorder, because
automatism caused by mental disorder is rare.
o What circumstances may a person suffer a ‘psychological blow’, to successfully
raise the defence of non-mental-disorder automatism? If they experienced an
“extremely shocking trigger”
o What evidence is needed during evidentiary burden of proof trial? = Need to
point to some expert psychiatric or psychological testimony. More credible if

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Description
CASES CH 7 Case # 21: Greyeyes 1997  Background: Was convicted for with trafficking with cocaine. Acting as agent for undercover cop (purchaser, not seller) – but doesn’t matter because acted as vendor in making the sale – without him, transaction would not have been made  Main issue: Can an accused person who acts as an agent for a PURCHASER of narcotic or who provides assistance to a purchaser to by narcotics be considered a party to the offence of trafficking by virtue?  Judgement: Normally, a person who aids the purchaser will only be guilty of aiding/abetting the possession of narcotic, not trafficking. However in this case, Greyeyes did far more than act as a purchaser. He located the seller, brought buyer to site, introduced the parties, without the assistance, this purchase would never have taken place. He acted as spokesperson negotiated price and passed money to seller. Thus greyeyes should be convicted of aiding in trafficking of narcotics. Case # 22: Pickton 2010  Background: 27 counts of first degree murder. Pickton was convicted of 6 counts of first degree murder in his trial. Killing women from the downtown east side of Vancouver, all victims were sex trade workers  Main issue: Defense argued he might not actually shot some victims, there is possibility of other individuals involved.  Judgement: Not necessary for him to be sole perpetrator, because he aided/abetted the offence (luring victims, providing them with drugs, subduing them, etc) Case #23: Ancio 1984  Background: Went to Kurely’s house, where is wife was staying. He was depressed and had drank excessively. He take shot gun and break into Kurely’s house, Krely sees him and throws chair at him. The gun accidently went off.  Main issue: Does Crown need actual intent to kill in order to obtain a charge of attempted murder?  Judgement: Can convict for Murder without actual intent (recklessness) o But not for attempted murder: need ACTUAL intent. Case #24: Hamilton 2005  Background: Sold files including instructions for bomb making, house breaking, credit card generator. Charged under 464 counselling 4 offence that were not committed. He said he didn’t read the content  Main issue: What is the mens rea for conviction of counselling offence not committed?  Judgement: Mens rea = intent for offence to be committed OR extreme recklessness (added after this case). The recklessness is a HIGH standard, must be substantial.  He was acquitted for counselling bomb making/break and enter, but was charged for counselling fraud, because his email had ‘teasar’ advertising the credit card program. Case #25: USA and Minster of Justice of Canada v. Dynar  Background: Dynar, a Canadian citizen was the subject of an failed string operation conducted by the FBI  Main issue: He could not be charged for laundering money because the money were not proceeds of crime, was money of FBI. Critical question was could he be convicted for ATTEMPTING/CONSPIRING to commit money laundering?  Judgement: Yes because one can still be convicted for attempt even if their actions, if carried out, could not possibly have led to a crime o All that is required is the intent to commit the crime and actions attempting to further this intent  The mens rea and actus rea enough to establish attempt charges Case #26: Gladstone et al  Background: Two men attempting to sell herring spawn on kelp, which was not caught under the license required. He asked a shop owner if he was ‘interested’, and was rejected.  Main issue: Did crown established the necessary actus reus for the attempt?  Judgement: The accused went beyond mere preparation to actual attempt. They went to store and asked owner if he was ‘interested’ – completed the actus reus. Case #27: Dery 2006  Background: Dery and Savard discussed plan to steal liquor stored in outdoor trailers, their conversations were unexpectedly intercepted in unrelated police investigation. On the basis of the conversation, they could not be charged for conspiracy because no agreement has been reached yet.  Main issue: But can they be charged for ATTEMPTING to conspire? Since they went beyond preparing to ‘conspire’.  Judgement: NO, Canadian law does not recognize existence of attempting to conspire. The law punish attempt is to prevent harm, but the logic is lost when it applies to attempt to conspire. The risk is not that big when they have no plans/agreement. The law does not punish bad thoughts before agreement was reached/attempt was made. CASES CH 8 Case #28: Oommen  Background: Thought girl was part of conspiracy to kill him, need to kill her before she kills him. Has delusional psychosis.  Main issue: Did he have the capacity to know that his act was wrong within the meaning of NCRMD ?  Judgement: o Trial judge said he subjectively did not believe it was wrong but had “general capacity to know right from wrong”, so should be guilty. o SCC disagree, say focus must be on capacity to know act was wrong – should not focus on ‘general ability to distinguish right from wrong’ , but should be on ‘capacity to know killing was right or wrong in the circumstances as he honestly believed them to be” Case # 29: Winko v. BC (Forensics Psychiatric Institution)  Background: Charged with aggravated assault, assault with a weapon and possession of a weapon for purposes dangerous to the public peace. Found NCRMD.  Main issue: Does 672.54 infringe s7 or 15? How to interpret this section?  Judgement: To interpret SECTION 672.54  unless the review board is satisfied that the NCR person constitutes “a significant threat to the safety of the public”, they must be granted an absolute discharge.  This section does NOT violate section 7 or 15 Case # 30: Stone 1999  Background Wife continue to insult him for hours in car. He blacked out and stabbed her 47 times.  Stone claimed Psychological Blow automatism and alternatively, provocation  Main issue: o What is the definition for Automatism? = “Impaired consciousness rather than unconsciousness” – if raised not b/c of mental disorder or self-induced intoxication, should get acquittal o How should courts distinguish between automatism and NCRMD? Disease of the mind is a legal, and not strictly a medical term. Internal (epilepsy) or external (drugs)? Continuing danger? Before, if courts viewed disease was internal and continuous, should be NCRMD. Should also embrace a more holistic approach, should presume all state of automatism is a result of a mental disorder, because automatism caused by mental disorder is rare. o What circumstances may a person suffer a ‘psychological blow’, to successfully raise the defence of non-mental-disorder automatism? If they experienced an “extremely shocking trigger” o What evidence is needed during evidentiary burden of proof trial? = Need to point to some expert psychiatric or psychological testimony. More credible if there are evidence from bystanders (glassy eye, unresponsive), more credible if no motive. o What is the burden/standard of proof for automatism? o Trial judge – decide whether accused satisfied Evidentiary burden of proof (whether it IS a disease or not) o Jury decide Primary/ Persuasional burden of proof (whether he had the disease or not), which ACCUSED must prove on the balance of probabilities  Judgement: Jury rejected defence of automatism - did not count as extraordinary external events/shocking trigger. Also his defence is less credible when a single individual is BOTH trigger and victim (eg his wife) – motive o But accepted the defence of provocation o Wife’s statements cause him to go crazy and he acted in the heat of passion by killing her o Acquitted Stone of the charges of murder and convicted him instead of manslaughter Case # 31: Fontaine 2004  Background: Charged with first degree murder, admitting killing but claimed NCRMD  Main issue: Did he satisfy the secondary or evidentiary burden of proof? He gave evidence suggesting he was acting involuntarily and his testimony was supported by expert opinion of a defence. However trial judge refused to let it pass saying there was disagreement between Crown and defence expert and there were contradictions in Fontaine’s own evidence.  Judgement: SCC allowed appeal and said he HAD evidential burden. As evidential burden do not need to be persuasive, it only determines whether issue should be heard by trier of fact. Question of law, not facts. Trial judge do not evaluate quality, weight or reliability of evidence. If there are any evidence, then the air of reality is cleared CASES CH 9 Case # 32 Levigne  Background: Internet lurer who took the bait, talked to undercover police officer posing as 13 year old. Levigne said he thought Jessy was an adult posing to be child because the profile said ‘18’. Trial court said Crown didn’t overcome reasonable doubt that he was not lying.  Main issue: In what circumstances could Levigne successfully advance the defence that he was mistaken as to the age of person with whom he was communicating by means of internet chat session? o 172.1(4) says he must take reasonable steps to ascertain the age to raise the defence, did he take such steps?  Judgement: However appeal court said this was wrong interpretation. Jessy continued to say he was only 13 and he Levigne took no reasonable steps to ascertain that Jessy was 18, as he claims to have believed. Thus the ‘reasonable steps’ was not ‘reasonable’ nor ‘steps to ascertain the age of the person’. In fact he took NO steps to ascertain the age. Case #33 Jobidon 1991  Background : Two agree to fight, Jobido hit Rodney Haggart once, who passed out, but continued to strike 4-6 times on the head. Trial judge said no assault (there was consent), so no unlawful act, no unlawful manslaughter. Jobido did not intend to kill nor cause serious bodily harm. He honestly believed was fair fight (Haggart was bigger and stronger) and did not go beyond the consented fight, didn’t know Haggart passed out cuz it happened all in a few seconds.  Main issue: Does consent of the victim to engage in a fist fight constitutes a valid defence to a charge of assault or manslaughter?  Judgement: Appeal court said should be guilty of manslaughter.  ** Consent is NOT a defence
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