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CRM2300 Review.docx

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University of Ottawa
Valerie Steeves

Sexual Assault 1) touching 2) without consent 3) in circumstances of sexual nature in which the sexual integrity of the victim is violated (Chase) a. does NOT require touching of the genitals (Chase) b. INCLUDES aggressive acts of domination (KB) c. Does NOT require D’s sexual gratification(KB) d. Does NOT require D’s hostility (Bernier) R. V. Chase - guy tries to touch girls genitals she swats him away. he says I ―know you want it‖. - charged, acquitted because didn’t touch genitals, re-convicted because: - does not require touching genitals - in circumstances of sexual nature in which the sexual integrity of V is violated R V. K.B - man with 3 year old son who likes to touch people, touches his sons genitals as form of discipline. - convicted of sexual assault because: - includes aggressive acts of domination - does not require D’s sexual gratification - sexual integrity of V is applied - emphasis is not on the accused, on the victim - how do the circumstances make the victim feel R V. Bernier (1996) SCC - nursing home worker touches developmentally disabled old woman as a ―joke‖ - charged with sexual assault because: - you don’t have to do it for your sexual gratification - the sexual integrity is violated - they add: does not require that the accused be hostile States of Being / Status Offences - form of A/R through state of being - S.210 (2) (b) Everyone who: - is found, without lawful excuse, in a common bawdy house -is guilty of an offence punishable by summary conviction - BEING in the house is the A/R s. 253 (1) Care and Control Everyone commits an offence who has care and control of a motor vehicle: - while the persons ability to operate the vehicle is impaired by alcohol or drugs - act(s) related to use of m/v, whereby it may be accidentally put in motion = danger (Ford) - A/R: -care and control of m/v - ability to drive m/v impaired by drugs or alcohol - status offences ―to be‖ Ford v. R (1982) S.C.C. PEI - Ford is at party, asks buddy to drive home b/c he was drinking, gets into car, sits in drivers seat impaired. Turns car on, turns heat up (key in ignition) - charged (impaired) - they added: act(s) related to use of m/v, whereby it may be accidentally put in motion = danger Toews v. R (1985) - Toews is drunk at friends, truck outside on private property, key in ignition, but does NOT TURN CAR ON. Lies in sleeping bag across front seat - acquitted b/c car not on and sleeping bag = no care and control (distinguished on the facts) R v. Pilon (1998) ON. C.A. - Pilon was drunk and knew he needed to sleep it off, slept across front seat (no sleeping bag) with keys under passengers seat (car not on). - Convicted in care and control (keys accessible, in drivers seat) Causation / Intervening Acts - causal chain that links D’s actions to a prohibited result - intervening cause can break the chain (Jordan) o when so overwhelming that D’s actions merely part of the history (Smith [stab, hospital drop/misdiagnosis]) o not only cause – includes contributing cause outside ―de minimus‖ range (Smithers [epiglottis], Meiller) – ―not insignificant‖ o ―significant‖ contributing cause (Nette [b+e]) o intervening acts reasonably forseeable (Maybin [bar bouncer]) Homicide A/R: do anything, directly cause death of human being; do anything, indirectly cause death of human being. Rv Jordan (1956) Gets in a fight with a guy named Beaumont, stabs him in the abdomen -Dies of Bronco dimotro -Intervening cause can break the chain *****Read case in reader **** Rv Smith (1959) -Smith Stabs a guy named cree Stabs him—take him to hospital, they drop him twice—misdiagnosis—lets him sit there—he drowns--smith is charged with murder-- -They say the second cause has to be so overwhelming that the original cause (wound) is merely part of the history Rv Smithers (1978) SCC -Cobby is smash talking Smithers during hockey game, calls him a racial slur—both get dressed really quickly, cobby wants to hide from him, hes going to the car and he gets punched in the head and a kick in the stomach, because cobby has been kicked in the stomach he vomits—problem is his epiglottis malfunctions—he chokes to death and dies (on vomit, because epiglottis malfunctions the vomit goes into his lungs he dies)- Thin skull victim rule ( england) -You have to take your victim as you find them -Some weakness on victims part does not excuse criminal act -Not his fault his epligotis malfunctioned, your fault for beating him -Multiple causes-> Were not looking at the sole cause Contributing cause outside deminimus range (has to have something more than minimal impact on events leading to the death) ―More than a negligible contribution‖ Nette (2001) S.C.C. - B & Es, 95 yr old widow house st - b + e ---95yo---ties up---wraps face----48h----------------asphyxiates---charged 1 degree murder - added: ―significant‖ instead of not insignificant - Were D’s actions substantial, essential and integral cause? - didn’t meet this standard = acquit of 1 , convict of 2 degree. R v. Maybin (2012) S.C.C. - 2 brothers bar fight ---- punch V in head ---V loses consciousness---bouncer punches V in head------V dies----all charged with murder - too many intervening acts = acquit them - goes to C/A – contributing cause - ―but for‖ D’s actions… V would not have died - intervening act (bouncer) was reasonably forseeable - conviction by jury Mens Rea - mental state required for an offence, ―blameworthiness‖ - means to, knows, intentionally, recklessly, etc. Intention - means to, knows, willfully, with intent, purposefully - intent: the exercise of free will to use a particular means to effect a particular result - assumes that people intend the natural and probable consequences of their actions - with subjective foresight of the consequences - Buzzanga/Desroches, Beaver, Pappajohn R v. Buzzanga/Desroches (1979) ON C.A. - lobbying board of education to build new French school---create ―furor‖ with hand bill---subversive group-----investigation ----s.319(2) willfull promotion of hatred traced back to them o incite hatred o communicate statements o likely to lead to a breach of peace o in a public place/other than private conversation o against an identifiable group - willfully promotes = intention = M/R of Intention/Knowledge; they had subjective foresight of promotion of hatred, consciously decided to do so. - Motive does NOT equal intention; even though motivated by hatred, they needed the hatred to occur to get $ and support. - Convicted at trial- C.A. new trial - helped to see what subjective foresight is Knowledge Beaver v. R (1957) S.C.C. - 2 brothers get out of jail --- fake set up M’s friends ----thought it was milk sugar - ---gave to undercover cop---actually morphine---arrested for trafficking narcotics - A/R – possesses narcotic, still need blameworthiness from mental element - Must know its narcotic, clear he thought it was milk sugar = no m/r = aquitted R v. Pappajohn (1980) S.C.C. - goes out with real estate agent---liquid lunch---go to his house for ―heavy petting‖----removal of clothes---agent asks to leave---D takes her to bathroom, forces removal of clothes---she folds clothes neatly on chair---bowtie around neck---hands tied---sex---runs to neighbor house and calls cops, accuse of rape. - At time, A/R for rape is sex w/ F, not wife, w/o consent - Has to do knowingly for M/R to exist - ―thought she was consenting‖ – honest mistake of fact? - Subjective test- honestly thought she was consenting, folded clothes - He said/she sa
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