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Final

CRIM 230 Study Guide - Final Guide: Implied Consent, Condom, Fundamental Justice

16 pages206 viewsSummer 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)
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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
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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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