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Final

CRIM 230 Final Review.docx

by OneClass32066 , Summer 2013
16 Pages
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Summer 2013

Department
Criminology
Course Code
CRIM 230
Professor
Simon Verdun- Jones
Study Guide
Final

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CHAPTER 1 Introduction
Crime has two major elements:
a. Conduct that is prohibited because it is “evil/injurious/undesirable effect on public” (can be act or omission)
b. A penalty that may be imposed when probation is violated
Three classification of crime:
o Summary conviction offences - less serious, provincial court, max 2000 or 6 months
o Indictable offences More serious crime / more severe sentence / most are electable: accuse can
choose tried by provincial judge, superior judge alone or SC+jury
o Not electable for more serious indictable, eg murder only for superior judge+jury
o Hybrid offences- crown choose by indictment or summary
Public law
o Concerned with issues that affect the interests of the entire society.
o Criminal law is considered to be part of public law because the commission of a crime is treated
as a wrong against society as a whole
o It is the Crown (as opposed to the victim) which prosecutes criminal cases on behalf of all Canadians.
Private law
o concerned with the regulation of the relationships that exist between individual members of society.
o Ownership of property, contracts, torts
Judicial - A declaration of invalidity is a measure of last resort.
o Reading down = court rules that a statutory provision must not infringe rights
o Reading in = court adds words to a statue so that it is consistent with charter
o The courts must be respectful of the role of Parliament and consider whether any of these
options would be more or less intrusive than an order striking down the legislation.
CHAPTER 2 - The Actus Reus Elements
An accused may not be convicted of criminal offence unless the prosecution can prove beyond a reasonable
doubt
o That particular event or state of affairs was caused by the accused‟s conduct (actus reus)
o That this conduct was accompanied by a certain state of mind (mens rea)
“Actus non facit reum nisi mens sit rea” = an act does not render a person guilty of a criminal offence unless
his or her mind is also guilty
o Mens Rea the mental elements of an offence
o Actus Reus all the other elements of the offence that must be proved by the Crown beyond a
reasonable doubt
AR and MR must Coincide Crown must prove there was a moment when both elements coincide
o Mens rea doesn‟t have to be there at the beginning, but if its present within the situation then accused
is guilty
AR does not exist there is Voluntariness - Conduct being of accused‟s own free will (eg car slide on ice, no control)
Three Elements Conduct, Circumstances, Consequences
Assault (S.265) without the consent of victim, he applies force intentionally to that victim
Assault causing bodily harm (267) “uses weapon or causes bodily harm to complainant”
o Bodily harm = injury that interferes with the health/comfort of victim, that is more than merely
transient or trifling in nature (include psychological harm)
o Conduct = application of force
o Circumstance = force applied without consent
o Consequences = must be proved victim sustained actual bodily harm
Sexual assault (SECTION 271) assault of a sexual nature, such that the sexual integrity of the victim
is violated.
Intent of accused not an determinative factor eg father grab kid‟s balls to teach him lesson
(don‟t wanna have sex, but is still an inappropriate sexual act)
Exceptions to the General Rule Requiring C/C/C
Need no Consequences crown do not need to prove conduct caused any particular consequences
o Eg Crime of perjury (131) intent to mislead/give case statement in court, knowing it is false
Will be convicted regardless of whether statement influenced anyone
Need no Conduct Crown is merely required to prove that the accused was discovered in a particular
condition or state
a) Being in Possession of Housebreaking Instruments (s351)
without lawful excuse, has in possession any instrument suitable for the purpose of breaking
in…reasonable inference that the instruments has been used or is or was intended to be used for
any such purpose
even if accused hasn‟t done anything or choose their target
b) Being the Occupant of a Vehicle Knowing That it was Taken without the Owner‟s Consent (s335)
crown need not prove conduct of „taking‟, just prove that accused as „found in vehicle‟ with the
necessary guilty knowledge, that that it was taken without the consent of the owner
c) Being in Care or Control of a Motor Vehicle While Impaired or Above 80 (SECTION 253)
Need not to prove accused engaged in any conduct (driving) Merely prove in the „condition of
having care or control of a vehicle while ability to drive was impaired‟
Need not to prove „intention to drive‟ intent to do other acts involving use of car may
unintentionally set car in motion causing danger
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 ( eg fully reclined
position)
d) Possession of child pornography
e) Loitering/Prowling (To roam through stealthily)
Failure to Act (Omissions) usually charged under SECTION 220/221 (Criminal Negligence)
The General Principle: No liability for omission unless there is a pre-existing duty of act
o An accused person may not be convicted on the basis of a mere omission unless he or she is under a
prior (legal) duty to act
SECTION 215 - The Duty To Provide the Necessaries of Life to Dependent person
o Eg - As parent, spouse, person under care
o Test is objective based on reasonable parent There must be a marked departure from the
standard of care expected of a reasonable parent in the same circumstances as the accused (eg even if
you are stupid parent, and didn‟t know have to take baby to hospital when they have fever, you are guilty)
o “Lawful Excuse” can be acquitted if have reasonable excuse, eg dangerous to rescue dependent in
deep river
SECTION 217 - Voluntarily Assuming a Legal Duty
o Everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or
may be dangerous to life
o The courts have emphasized that section 217 only apples where the accused makes a serious,
conscious undertaking to carry out a certain task and where reliance by another person on this
undertaking would be considered reasonable in all of the circumstances ( Eg Browne (girlfriend cocaine,
called taxi, not 911) no. // mountain guide yes)
“Charged with s220 CN causing death – the negligence was the failure to perform a legal duty
under section 217
CHAPTER 3 Actus Reus: Causation
Crown must prove both of both elements to get conviction.
o Factual Causation an inquiry about how the victim came to his or her death, in a medical, mechanical or physical sense and
with the contribution of the accused to that result
Can be decided by asking whether the prohibited consequences would not have happened “but for” the conduct of
the accused.
o Legal Causation question of whether the accused should be held responsible in law for the crime
Around the fairness of holding an accused person criminally responsible.
Often can be determined by asking whether the prohibited consequences were foreseeable. even if the accused
did not intend to bring such consequences about
Definition of dead = A person is dead when an irreversible cessation of all that person’s brain functions has occurred”
More than One Cause of Death
“Thin-skull” rule = “one takes one’s victims as one finds them.” Person will be convicted of homicide even if their conduct was not
the sole cause of death. Conduct must be a significant contribution to the victim’s ultimate demise.
Smithers case (1977) (manslaughter) - Accused kicked Cobby, vomited. He died due to foreign materials in vomit.
o Smithers test of causation = accused’s conduct must be a contributing cause, “outside the de minimis range” = must have had
more than a minimal impact.
Harbottle case(1993) = one man strangle, one man held legs, together killed the victim
o made more restrictive test of causation for first-degree murder accused’s action must form a substantial and integral part of
the killing of the victim
Nette case (2001), old lady lived alone, robbers tied her, after they left, she fell off bed and died from asphyxiation
o SCC reaffirmed Smithers’ test of causation and ruled that it applied to all homicides offences other than specific types of first
degree murder
o Re-worded test so easier to understand = “Significant contributing cause” rather than using expressions phrased in the
negative such as not a trivial cause or not insignificant
SECTION 226 Acceleration of Death = is criminally responsible even if injury only accelerated death from other causes.
o Must have intent If the intent of the doctor is to relieve pain and suffering and not kill the patient, then the fact that death is
incidentally hastened by the administration of a pain-killing drug does not render the physician criminally responsible.
o Active Euthanasia = Deliberately taking steps to terminate the life of another person
Is a crime. (Eg mercy killing, injective of lethal drug )
o Passive Euthanasia = Withdrawing treatment and permitting a patient to die from a disease
Is not considered to be a crime (everyone has right to refuse treatment)
SECTION 241 Assisted Suicide indictable offence to counsel/aid a person to commit suicide
o Purpose is the protection of vulnerable who might be induced in moments of weakness to commit suicide
o SCC- prohibition of assisted suicide section 241 of the Criminal Code is not invalid in light of the Charter
Intervening Act = Occurs between the defendant’s original wounding of the victim and the latter’s subsequent death
NOT GUILTY -> If Intervening Act breaks chain of causation
IS GUILTY -> Intervening Act/Event that would not have caused death, but for accused’s conduct
o Can victim’s death from external event be viewed as a ‘natural consequences’ of the accused’s action?
o Crown must establish is that the victim's death from the IA was foreseeable by the accused
o Consequences of action continued up to the time of death, even without interruption, would have significant causal effect to
victim’s death.
SECTION 224 Victim’s refusal of life-saving treatment does not break the chain of causation.
o Accused does not have an automatic defence to a murder or manslaughter charge just because death "might have been
prevented by resorting to proper means."
SECTION 225 Improper medical treatment = If improper medical treatment was applied in good faith, will generally not sever the chain
of causation.
Causing Death by Acting on the Victim’s Mind
SECTION 222 Culpable homicide when causing a human to cause his own death, by threats/fear of violence/deception
o Eg A threatens to assault B with no route of escape, B is terrified and jumps off a building, A is guilty
SECTION 228 No person commits culpable homicide where he causes the death of a human being
a. By any influence on the mind alone
b. By any disorder or disease resulting from influence on the mind alone, ** except causes death to child/sick person by WILLFULLY
frightening him
Powder (1981) A breaks in, scares B, struggle and B dies from ‘fear and emotional stress’, physical attack did not contribute
to death, thus victim died of ‘influence on mind alone’ not guilty
Rusland (1992) A attacks B, B dies due to stress in situation and had previous heart problems, however A actually knew
about dangerous health condition, thus he ‘wilfully frightened him to death’ guilty

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Description
CHAPTER 1 – Introduction  Crime has two major elements: a. Conduct that is prohibited because it is “evil/injurious/undesirable effect on public” (can be act or omission) b. A penalty that may be imposed when probation is violated  Three classification of crime: o Summary conviction offences - less serious, provincial court, max 2000 or 6 months o Indictable offences – More serious crime / more severe sentence / most are electable: accuse can choose tried by provincial judge, superior judge alone or SC+jury o Not electable for more serious indictable, eg murder – only for superior judge+jury o Hybrid offences- crown choose by indictment or summary  Public law o Concerned with issues that affect the interests of the entire society. o Criminal law is considered to be part of public law because the commission of a crime is treated as a wrong against society as a whole o It is the Crown (as opposed to the victim) which prosecutes criminal cases on behalf of all Canadians.  Private law o concerned with the regulation of the relationships that exist between individual members of society. o Ownership of property, contracts, torts Judicial - A declaration of invalidity is a measure of last resort. o Reading down = court rules that a statutory provision must not infringe rights o Reading in = court adds words to a statue so that it is consistent with charter o The courts must be respectful of the role of Parliament and consider whether any of these options would be more or less intrusive than an order striking down the legislation. CHAPTER 2 - The Actus Reus Elements  An accused may not be convicted of criminal offence unless the prosecution can prove beyond a reasonable doubt  o That particular event or state of affairs was caused by the accused‟s conduct (actus reus) o That this conduct was accompanied by a certain state of mind (mens rea)  “Actus non facit reum nisi mens sit rea” = an act does not render a person guilty of a criminal offence unless his or her mind is also guilty o Mens Rea  the mental elements of an offence o Actus Reus  all the other elements of the offence that must be proved by the Crown beyond a reasonable doubt  AR and MR must Coincide  Crown must prove there was a moment when both elements coincide o Mens rea  doesn‟t have to be there at the beginning, but if its present within the situation then accused is guilty  AR does not exist there is Voluntariness - Conduct being of accused‟s own free will (eg car slide on ice, no control) Three Elements – Conduct, Circumstances, Consequences  Assault (S.265)  “ without the consent of victim, he applies force intentionally to that victim  Assault causing bodily harm (267)  “uses weapon or causes bodily harm to complainant” o Bodily harm = injury that interferes with the health/comfort of victim, that is more than merely transient or trifling in nature (include psychological harm) o Conduct = application of force o Circumstance = force applied without consent o Consequences = must be proved – victim sustained actual bodily harm  Sexual assault (SECTION 271)  assault of a sexual nature, such that the sexual integrity of the victim is violated.  Intent of accused not an determinative factor – eg father grab kid‟s balls to teach him lesson (don‟t wanna have sex, but is still an inappropriate sexual act) Exceptions to the General Rule Requiring C/C/C  Need no Consequences – crown do not need to prove conduct caused any particular consequences o Eg Crime of perjury (131) – intent to mislead/give case statement in court, knowing it is false  Will be convicted regardless of whether statement influenced anyone  Need no Conduct  Crown is merely required to prove that the accused was discovered in a particular condition or state a) Being in Possession of Housebreaking Instruments (s351)  without lawful excuse, has in possession any instrument suitable for the purpose of breaking in…reasonable inference that the instruments has been used or is or was intended to be used for any such purpose  even if accused hasn‟t done anything or choose their target b) Being the Occupant of a Vehicle Knowing That it was Taken without the Owner‟s Consent (s335)  crown need not prove conduct of „taking‟, just prove that accused as „found in vehicle‟ with the necessary guilty knowledge, that that it was taken without the consent of the owner c) Being in Care or Control of a Motor Vehicle While Impaired or Above 80 (SECTION 253)  Need not to prove accused engaged in any conduct (driving)  Merely prove in the „condition of having care or control of a vehicle while ability to drive was impaired‟  Need not to prove „intention to drive‟  intent to do other acts involving use of car may unintentionally set car in motion causing danger  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 ( eg fully reclined position) d) Possession of child pornography e) Loitering/Prowling (To roam through stealthily) Failure to Act (Omissions) usually charged under SECTION 220/221 (Criminal Negligence)  The General Principle: No liability for omission unless there is a pre-existing duty of act o An accused person may not be convicted on the basis of a mere omission unless he or she is under a prior (legal) duty to act  SECTION 215 - The Duty To Provide the Necessaries of Life to Dependent person o Eg - As parent, spouse, person under care o Test is objective  based on reasonable parent  There must be a marked departure from the standard of care expected of a reasonable parent in the same circumstances as the accused (eg even if you are stupid parent, and didn‟t know have to take baby to hospital when they have fever, you are guilty) o “Lawful Excuse”  can be acquitted if have reasonable excuse, eg dangerous to rescue dependent in deep river  SECTION 217 - Voluntarily Assuming a Legal Duty o Everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life o The courts have emphasized that section 217 only apples where the accused makes a serious, conscious undertaking to carry out a certain task and where reliance by another person on this undertaking would be considered reasonable in all of the circumstances ( Eg Browne (girlfriend cocaine, called taxi, not 911)  no. // mountain guide  yes)  “Charged with s220 CN causing death – the negligence was the failure to perform a legal duty under section 217” CHAPTER 3 – Actus Reus: Causation  Crown must prove both of both elements to get conviction. o Factual Causation  an inquiry about how the victim came to his or her death, in a medical, mechanical or physical sense and with the contribution of the accused to that result  Can be decided by asking whether the prohibited consequences would not have happened “but for” the conduct of the accused. o Legal Causation  question of whether the accused should be held responsible in law for the crime  Around the fairness of holding an accused person criminally responsible.  Often can be determined by asking whether the prohibited consequences were foreseeable. – even if the accused did not intend to bring such consequences about  Definition of dead = “A person is dead when an irreversible cessation of all that person’s brain functions has occurred” More than One Cause of Death  “Thin-skull” rule = “one takes one’s victims as one finds them.”  Person will be convicted of homicide even if their conduct was not the sole cause of death. Conduct must be a significant contribution to the victim’s ultimate demise.  Smithers case (1977) (manslaughter) - Accused kicked Cobby, vomited. He died due to foreign materials in vomit. o Smithers test of causation = accused’s conduct must be a contributing cause, “outside the de minimis range” = must have had more than a minimal impact.  Harbottle case(1993) = one man strangle, one man held legs, together killed the victim o made more restrictive test of causation for first-degree murder  accused’s action must form a substantial and integral part of the killing of the victim  Nette case (2001), old lady lived alone, robbers tied her, after they left, she fell off bed and died from asphyxiation o SCC reaffirmed Smithers’ test of causation and ruled that it applied to all homicides offences other than specific types of first degree murder o Re-worded test so easier to understand = “Significant contributing cause” rather than using expressions phrased in the negative such as not a trivial cause or not insignificant  SECTION 226 Acceleration of Death = is criminally responsible even if injury only accelerated death from other causes. o Must have intent  If the intent of the doctor is to relieve pain and suffering and not kill the patient, then the fact that death is incidentally hastened by the administration of a pain-killing drug does not render the physician criminally responsible. o Active Euthanasia = Deliberately taking steps to terminate the life of another person  Is a crime. (Eg mercy killing, injective of lethal drug ) o Passive Euthanasia = Withdrawing treatment and permitting a patient to die from a disease  Is not considered to be a crime (everyone has right to refuse treatment)  SECTION 241 Assisted Suicide – indictable offence to counsel/aid a person to commit suicide o Purpose is the protection of vulnerable who might be induced in moments of weakness to commit suicide o SCC- prohibition of assisted suicide section 241 of the Criminal Code is not invalid in light of the Charter Intervening Act = Occurs between the defendant’s original wounding of the victim and the latter’s subsequent death  NOT GUILTY -> If Intervening Act breaks chain of causation  IS GUILTY -> Intervening Act/Event that would not have caused death, but for accused’s conduct o Can victim’s death from external event be viewed as a ‘natural consequences’ of the accused’s action? o Crown must establish is that the victim's death from the IA was foreseeable by the accused o Consequences of action continued up to the time of death, even without interruption, would have significant causal effect to victim’s death.  SECTION 224 Victim’s refusal of life-saving treatment does not break the chain of causation. o Accused does not have an automatic defence to a murder or manslaughter charge just because death "might have been prevented by resorting to proper means."  SECTION 225 Improper medical treatment = If improper medical treatment was applied in good faith, will generally not sever the chain of causation. Causing Death by Acting on the Victim’s Mind  SECTION 222 Culpable homicide when causing a human to cause his own death, by threats/fear of violence/deception o Eg A threatens to assault B with no route of escape, B is terrified and jumps off a building, A is guilty  SECTION 228 No person commits culpable homicide where he causes the death of a human being  a. By any influence on the mind alone b. By any disorder or disease resulting from influence on the mind alone, ** except causes death to child/sick person by WILLFULLY frightening him  Powder (1981) A breaks in, scares B, struggle and B dies from ‘fear and emotional stress’, physical attack did not contribute to death, thus victim died of ‘influence on mind alone’  not guilty  Rusland (1992) A attacks B, B dies due to stress in situation and had previous heart problems, however A actually knew about dangerous health condition, thus he ‘wilfully frightened him to death’  guilty CHAPTER 4 – Subjective Mens Rea  Mensa rea = all mental elements (except for voluntariness) that Crown must prove, beyond a reasonable doubt, in order to obtain a conviction of a criminal offence o Important because it prevent the conviction of the morally innocent = those who do not understand or intend the consequences of their acts”. (eg children under 12 or mentally insane)  Subjective mens rea = what was actually going on inside the accused’s head o Basic forms: Intentions and knowledge, recklessness and wilful blindness o Subjectively realized that their conduct might produce such prohibited consequences and proceeded with that conduct regardless of their actual knowledge of that risk o More serious crime  more likely to require proof of subjective mens rea.  Objective Mens Rea = not what in accused’s head, but what should have been there, had accused proceeded reasonably o A reasonable person in the same circumstances, would have realize the conduct would produce a prohibited consequences, and would have taken action to avoid doing so 1) Intent  Definition: Deliberately intended to bring about the consequences prohibited by law a. Direct intention = specific purpose + consequence, even if only a slim chance (shoot and kill) b. Indirect intent = accused does not desire conduct to produce conseqB, but nevertheless conseqB is a step to accomplish conseqA (the true objective)  is guilty of both consequences o eg – A throw rock at B, through C’s window, even if don’t want to bother C.  guilty of both murder AND mischief  indirectly intended to break window and is liable to conviction c. General/Basic intent offences = crown only need to prof accused intentionally caused actus reus of offence d. Specific/Ulterior intent offences = intend to commit an offence + also intend to produce some further consequence beyond the actus reus Transferred Intent (S229B)  Mens rea of an offence (intended victim) transfers to the actus rea of same offence (committed on actual victim)  Intent may be transferred only where actus reus and mens rea of the SAME offence coincide o Eg “throw rock in general sense” at hockey rink, but accidently hits a person, did not “have intention to throw rock at person”  thus no conviction for assault  lacked mens rea o Mistake on identity is irrelevant – eg A wants to kill B. A assume C’s shadow is B and kills him. C is dead. A is still guilty because intent is transferred. o “Inchoate crimes” (incomplete) cannot be transferred – eg attempted murder  Mens rea to kill A, but injured B  is assault, not attempted murder  lacked actus reus of intended crime (the kill) Special Mens Rea Elements That Must Be Proved - Some offences uses certain terms with special, technical meanings, so Crown must prove a particular mental element beyond intention and knowledge  1) Fraudulent (s380) – in relation to fraud o Accused acted with dishonesty and deprivation;  Crown must prove that the accused knowingly undertook the acts which constitute the falsehood, deceit or other fraudulent means, and that the accused was aware that deprivation could result from such conduct (Eg Theroux )  court said is OBJECTIVE test, thus whether Theoroux believed he was honestly not gonna lost the money doesn’t matter, as long as he SUBJECTIVELY aware of deprivation  2) Fraudulently (s322) – in relation to theft – take/deprive property, doing so fraudulently and without color of right o Not guilty if conduct have been merely a “prank” or a “well intentioned blunder “ – no dishonesty, was a joke o Theft is both “temporarily or absolutely” – guilty even if intended to return, or or no intent to keep  3) Planned and deliberate (s231) - in relation to first degree murder o Normally, need to prove ‘intent to kill’  this is second degree murder. o If Crown can also prove “planned and deliberate”  this is first degree murder. o Planned = conceived, carefully thought out before committing, design or scheme o Deliberate = not impulsive, have time to thinks about consequences and act 2) Knowledge + Willful Blindness  Have actual “KNOWLEDGE” of particular circumstances o Almost all offence requires intention, but not all requires knowledge. Knowledge may be additional mens rea requirement beyond intent. o Eg s155 Incest = need to “know” partner to be within a blood relationship (not guilty if didn’t know, even though intended to have sex with the other person)  To prove knowledge of a particular circumstances – must also prove particular circumstance is TRUE. o Not possible to know something that is false  Eg Dynar case – launders money “believing” it is dirty money, but not guilty unless money is actually obtained as a consequence of criminal activity  Eg have incest, but not convicted if not really blood related  Wilful Blindness – Person is subjectively AWARE of the need for some inquiry, but DECLINES to make the inquiry because do not wish to know the truth. He would prefer to remain IGNORANT. Continue to engage in activity without the mens rea o Treated as being equivalent to actual knowledge 3) Recklessness (or advertent negligence) = Another form of SUBJECTIVE mens rea, sufficient for conviction  Is reckless if foresee consequences, even if do not desire it or foresee it as certain (eg shoot in crowd to scare, don’t want to kill and not sure if will kill)  2 basic elements of Recklessness – Crown need to prove both o Subjective element = Subjective foresight of the risk by accused o Objective element = An unjustified assumption of that risk (what reasonable person would have done) o If a reasonable person, acting prudently and facing the same circumstances as the accused, would have assumed the risk (done the same thing) in question, then accused person’s conduct may not be branded as reckless Recklessness is a sufficient form for conviction to these offences:  Murder 229= “means to cause bodily harm that know is likely to cause death + is reckless whether death ensues or not” o After Crown prove that accused intentionally inflicted bodily harm that he subjectively realized would likely to cause death o If the Crown can then establish that the accused continued with the assault on the victim (regardless of knowledge of deadly risk)  there will be a conviction o Eg keep hitting someone with baseball bat – u know this person has a risk of dying – is guilty if you didn’t WANT to kill him  SECTION 429 Reckless = Wilful Treating reckless people in same manner as those who have acted wilfully/intentionally in various property offences  Damage to Property, Etc. = “causes an event by act/omission, knowing act/omission will cause event, by being reckless, whether event occurs or not  shall be deemed wilfully to have caused event” o Eg mischief and damage to property, injuring animals, neglect and causing damage to animals  Arson 433= is guilty both “intentionally or recklessly causes damage by fire/explosion to property” o Brain 2003 – not intentionally, but set fire to a storage by flicking a cigarette butt to flammable material  Criminal Harassment = “actual knowledge that the victim is being harassed or recklessness as to this circumstance “ o Need to prove subjective mens rea – so accused can raise defence of honest mistake that he did not realize victim was aware of being harassed  honestly believed victim was unaware of his presence, will be acquiitted Subjective Mens Rea as a Charter Requirement for Murder  Parliament usually can choose between subjective or objective forms of criminal liability (eg dangerous driving or manslaughter), but Charter demands requirement of subjective means rea for very few offences such as murder o Crown must prove accused deliberately intended to kill or subjectively foresaw the risk of death o Martineau (1990) If convict someone without subjective mens rea, it violates Section 7 “life liberty security”, and does not satisfy “fundamentally principles of justice” because Murder = more stigma and punishment, so it should be proportionate to morale blameworthiness of offender  render all of the provisions in section 230 and the words “ought to know” in section 229(c) invalid  Section 229 (C) – unlawful object murder o 1) With the purpose of effecting an unlawful object + o 2) With actual knowledge that he/she was doing something that was likely to cause death to someone OR o he/she ought to have known that the death of someone was likely consequence of his/her conduct   changed to subjective foresight of the likelihood of death CHAPTER 5 – Objective Mens Rea  Objective mens rea is not concerned with what was actually going on in the accused’s mind but rather with “what should have been there, had the accused proceeded reasonably.”  To impose objective liability, Crown only need to prove accused’s conduct fell below (“acting negligently”) the standard of care of a reasonable person, who when placed in same circumstances, would have been aware of the risk and avoided taking it  Mere carelessness will not suffice as a form of mens rea for “true crimes.”  Marked Departure Test – conduct is a marked departure from standard of care  only for most serious forms of negligent behaviours can lead to a conviction under Criminal Code  Doesn’t consider peculiar personal characteristics of the accused EXCEPT in the rare situation in which the accused lacks the capacity to understand/appreciate nature of risk the activity in question Offences Imposing Objective Liability 1) Driving Offences  Dangerous driving (SECTION249) = Operating a motor vehicle in a manner that is dangerous to the public o Where the accused’s driving constitutes a marked departure from the standard reasonable driver  Careless driving (arises under various provincial statues) o When accused’s conduct fell below the standard of care of a reasonable driver (any deviation no matter how minor)  Criminal Negligence causing death (220) / causing bodily harm(221) o Same as DD, but differences lies in the degree to which the conduct departs from the standard of reasonable care.  More serious in nature thus requiring "more marked departure".  A marked and substantial degree of departure.  The departure must be so extreme that it demonstrates a wanton or reckless disregard for life or safety. * Modified Objective Test (from Hundal 1993, reaffirmed in Beatty 2008) o Courts must take into account o 1) Fell below a marked departure (objective) o 2) The trier of fact must take into account the particular circumstances facing the accused as well as his or her actual knowledge of those circumstances.  Would a reasonable person w/ accused’s knowledge realize the risk involved?  Would a reasonable person have taken steps to avoid that risk? o Eg – sudden heart attack and crash car, not guilty. If know have heart problem, still drive and crashes, then is guilty.  Beatty lost memory due to heat stroke that day and crashed. His momentary lapse of attention was ruled not a “marked departure” from the standard of care and, therefore, was not sufficiently blameworthy to warrant a conviction. 2) Unlawful Act Manslaughter  SECTION 234 Manslaughter = an unintentional form of killing that cannot be excused as an accident or justify in some other manner (such as’ self-defense)  Manslaughter - two forms = o 1) Causing death by criminal negligence. (s222(5)(b)) o 2) Unlawful act manslaughter = When the accused commits an unlawful act that results in death  If have intent is murder, no intent is UAM  In Creighton (1993), the SCC ruled that the necessary mens rea for UAM is “objective foresight of the risk of bodily harm that is neither trivial nor transitory in nature.” The Crown must prove that the accused had the necessary mens rea for the commission of the unlawful act that resulted in death (e.g., an assault) and that a reasonable person in the same circumstances as the accused would have foreseen the risk of bodily harm, given the inherently dangerous nature of the unlawful act. Foreseeability of death is not required. 3) Unlawfully Causing Bodily Harm (s269) - DeSousa (1992), mens rea requirement = “objective foresight of bodily harm." 4) Aggravated Assault (s268) - Crown must prove objective foresight of serious injury. 5) Criminal Negligence SECTION 220(DEATH)/221(BODILY HARM)  Definition of CN SECTION 219 = “act or omission that shows wanton or reckless disregard for the lives or safety of other persons” o Uncertainty as to whether the mens rea for criminal negligence under the CC is objective or subjective in nature o Later approach used by SCC in later cases Creighton and Hundal strongly suggest CN as an objective liability Infanticide  Mens rea = same as unlawful act manslaughter  Defence to murder – only for female who recently gave birth  Crown must establish the mens rea associated with the unlawful act that caused the child’s death and objective foreseeability of the risk of bodily harm to the child from that assault Elevated Standard of Care  Standard of care of a who has acquired the necessary expertise and training to engage in such activities SECTION 216 Reasonable Medical treatment (s216)  Everyone who undertakes to administer surgical or medical treatment, under a legal duty to have and to use reasonable knowledge, skill and care in doing so  impose elevated standard of care, if performing surgical treatment, is expected to possess knowledge and skill of average medical practioner SECTION 79/86 They Duty to Take Reasonable Care in the Handling of Explosive and Firearms  Everyone who has an explosive substance in his possession or under his care or control is under legal duty to use reasonable care to prevent bodily harm or death to person or damage to property by that explosive substance o A police officer who is charged with an offence of criminal negligence as a consequence of his or her misuse of a firearm will be judged by the standard of the reasonable person who uses firearm prudently and not by the standard of an expert in the use of firearm CHAPTER 6 – Regulatory Offences: Strict and Absolute Liability in Canada  Regulatory offences arise under both federal and provincial or territorial legislation o Concerned with the enforcement of a regulatory scheme that addresses inherently legitimate activities, such as engaging in trade and commerce, advertising, and driving on the highways. o Do not represent serious breaches of basic community values - merely impose penalties (usually financial) on those whose conduct falls below a standard of reasonable care. o This standard has been established in order to protect all Canadians from the potentially harmful consequences of inherently legitimate activities that are carried out in a negligent manner.  Absolute liability - No opportunity for defendants to argue that they were not to be blamed – Crown merely had to prove actus reus – Do not require any fault elements to be proved in order to establish guilt.  Strict liability - Defendants able to advance the due diligence defence by showing that they were not negligent and took all reasonable care in their conduct. o This approach became known as the “half-way house.” o Since the decision in the Sault Ste. Marie 1978 case, Canadian criminal law has recognized three categories of criminal offences: 1. True Crimes  Always require prove of MENS REA beyond a reasonable doubt  Some regulatory offence if legislature uses such words as “willfully” “knowingly” etc. 2. Strict liability offences  Crown prove AR, no need MR.  However, the defendant may avoid liability by proving that he or she took “all reasonable care” 3. Offences of absolute liability  Crown need not prove any mens rea  Not open to the defendant to avoid liability by proving that he or she was free fault Factors will constitute the primary consideration in deterring whether the offence falls into category 2 or 3  Over all regulatory pattern adopted by the legislature – if strict for some, but not other, assume is absolute (not always)  Importance of the penalty – more severe penalty, more likely to be strict liability  Subject matter of the offence – greater the threat to public safety, more likely absolute (eg speeding, not stopping at red light)  Precision of the language Strict Liability and The Charter - Wholesale Travel Group Inc. (1989)  the Court ruled that placing the onus on the accused to prove “due diligence” did NOT render the relevant legislation invalid under the Charter. Absolute Liability and The Charter – Re: the Motor Vehicle Act (1985)  S7 infringed where absolute liability is imposed in conjunction with a potential penalty of imprisonment  Absolute liability do NOT infringe s. 7 of the Charter if imprisonment may not be imposed as a penalty and there is no possibility of imprisonment for non-payment of a fine CHAPTER 7 – Modes of Participation in Criminal SECTION 21(1)(A) - Actually Committing an Offence  “The principle” = who actually commits the offence.  His/her presence may be either “actual” or “constructive” o Actual – eg Murder, principle = person who pulls trigger o Constructive - when committed offence through an “innocent agency”  Eg) girl takes juice w/ poison to her mom told by her dad  no actus reus by dad, but Courts may rule that an accused a person has committed an offence though the innocent agency  Is still an offence if did so “by means of an instrument „whose movement are regulated‟ by him”. o Doctrine of innocent agency  understandably has a somewhat limited scope.  Verma (1996) – a doctor charged for trafficking narcotic, by writing prescriptions – court said ‘innocent agent not entirely controlled by principle’. Writing the prescription has no control over whether such an exchange of drugs for money will take place between purchaser and pharmacist. SECTION 21(1)(B)/(C) - Aiding and Abetting The Commission  “Aiding” = actively providing assistance/help to the principle  “Abetting” means instigating, urging or encouraging the principle to commit an offence  Same criminal liability to the aider/abettor, as the person who actually commits. Actus Reus  Must actively encourage // assist the principal in the commission of the offence  Mere passive acquiescence or Mere presence at the scene of the crime does NOT constitute aiding or abetting  Williams 1998 – crossing border in car‟s passenger seat, found drugs, even if crown could prove he knew, is not gulty unless can prove he provided assistance/encouragement Mens Rea  Crown must prove accused intended to render assistance/encouragement  Objective foreseeability of risk, for manslaughter, NOT MURDER ( must be subjective) o Recklessness is NOT sufficient basis for conviction as an aider.  Crown must prove actual knowledge/intent or wilful blindness SECTION 22 - Counseling an Offence  Section 22 (1) – Counsel completed offence = punished same as principle  Section 22 (2) – Guilty for every other offence that the principle commits o Objective test: Accused knew or ought to have known, the other offence was a possible from the counselling o EXCEPT murder, need subjective foresight, accused actually foresaw  Section 22 (3) - The word counsel includes procure (paying), solicit (provoking/emotion) or incite (promote idea/persuade) SECTION 21(2) - Common Intention  If 2+ people enter into an agreement to commit a crime, each is liable for all other criminal acts committed by partners, in the pursuit of that common objective o Objective test: liable for any offence which he either know or ought to
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