Exam Review Criminal Law 2.odt

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Law & Society
Patricia O' Reilly

Exam Review Criminal Law-2nd Midterm Exam Chapter 5 What is objective liability? • Offences involving criminal negligence Unlawful act manslaughter Elevated standard of care What did Justice McLachlin state in the Creighton case 1993 Marked departure test Why is a uniform standard of conduct in the test for objective liability offences imposing objective liability Dangerous driving Careless driving What is the difference between mere carelessness and criminal negligence manslaughter Cases Creighton Scc1993 Tutton and Tutton SCC1989 Hundal SCC1993 Reed SCC1998 Offences of: Unlawfully causing bodily harm Assault causing bodily harm Criminal negligence Criminal code sections imposing special standard of case 2 examples in text of S216CCC and S 79 and S 86(1) CCC Chapter 6 True crimes versus regulatory offences –difference • In a true crime the crown has to prove (in addition to actus reus elements) one or more of the following forms of mens rea ◦ intention ◦ knowledge ◦ recklessness ◦ wilful blindness ◦ criminal negligence (standard of the ordinary person) • In cases of regulatory offences the crown normally only has to prove the actus reus elements. regulatory offences in the past were described as being offences of absolute liability` - no room to argue that they were not to blame • Distinction between absolute and strict liability in the context of regulatory offences • regulatory offences in the past were described as being offences of absolute liability` - no room to argue that they were not to blame • Pin Yuen (1921) – absolute liability – public welfare offence • Absolute ◦ administrative efficiency (proving mens rea takes time and money) • Strict ◦ regulatory offences in which Canadian courts apply the “halfway house” approach ◦ able to raise the defence of due diligence • distinguishing between the two ◦ overall regulatory pattern adopted by the legislature ◦ The subject matter of the legislation ◦ the importance of the penalty ◦ the precision of the language Sault Ste. Marie (1978) • Supreme court endorses the halfway house approach • the accused was a municipal corporation that had been charged with the offence of “discharging, causing to be discharged or permitting to be dicharged or deposited materials into a body of water or on the shore or bbank, or in sucha place that might impair the quality of the water. • The city entered into an agreemet with a private company for the disposal of all of the city's refuse • water pollution resulted from this method of garbage disposal • fell within category of strict liability • new trial was ordered in which the city would have the opportunity to show it had acted with such “due diligence” • What is the half way house approach? • Based on the notion that it should be possible for defendents who are charged with regulatory offences to advance the defence that they were not negligent • finds a middle ground • provides that the Crown merely has to prove that the accused committed the actus reus elements of the regulatory offence – then the burden of proof shifts to the accused to establish his or her innocence by proving on the balance of probabilities he or she was not negligent • they are able to raise a defence but they must establish due diligence • strict liability – regulatory offences in which Canadian courts apply the “halfway house” approach The 3 categories of offences since the Sault Ste. Marie Case (1978) • Offences in which the existence of mens rea must be proved by the crown beyond a reasonable doubt ◦ true crimes ◦ some regulatory offences (wilfully, or knowingly) • Strict liability offences, in which there is no necessity for the Crown to prove the existence of mens rea (however, defendents may avoid liability by proving they acted with due diligence) • Absolute liability offences, in which there is no necessity for the Crown to prove the existence of mens rea and in which it is not open to defendants to avoid liability by proving that they acted with “due diligence” Chapter 7 -various modes of participation in a criminal offence -actually committing an offence -actus reus of aiding and abetting Cases Boudreau (2005) N.S. Court of Appeal p. 166 Facts Decision Chaulk SCC- 1999 facts and decision Parks SCC 1992 Chapter 8 rd pg 205-209 Different causes of automatism • defence applies where an accused person has committed the act or omission that constitutes the basis for the criminal charge laid against him or her but is found not criminally responsible because of a severe impairment of mental capacity • when an accused person acts involuntarily because of some form of temporary impairment of his or her mental faculties, such as clouded consciousness due to a blow to the head. • Successful defence of automatism gains an outright acquittal without being subject to any restrictions on his or her liberty • state of impaired consciousness with no voluntary control over the action • not unconscious – automatism caused by such normal conditions as sleepwalking or hypnosis – not considered by courts to be result of a mental disorder – entitled to a complete acquittal of any criminal charge – automatism triggered by an external trauma – such as a blow to the head – automatism that is involuntarily induced by alcohol or other drugs – automatism that is voluntarily self-induced by the use of alcohol or other drugs – at best raise partial defence of intoxication – automatism caused by a mental disorder (or a “disease of the mind”) – must be NCRMD • only (I) and (iii) can lead to the acquittal of an accused person on the basis of the legal defence of automatism The evolution of the former insanity defense from McNaughtan rules CC1890 up to present day • famous English case McNaughtan (1843) laid foundations of modern NCRMD • Daniel McNaughtan shot and killed Edward Drummond (secretary to the British prime minister of the day – Sir Robert Peel) • He shot at Drummond thinking he was Peel • believed Peel and members of his political party were responsible for a systematic campaign of persecution against him • McNaughtan tried on a charge of murder – defence by the brilliant Queen's Counsel Alexander Cockburn • evidence presented that he was insane at the time of the shooting & was acquitted by the jury • type of insanity that deprived him of all “power of self control” - even though he knew what he was doing and that it was wrong • subsequently conficed in hospital until his death 1865 • public outcry at his acquittal – House of Lords asked a series of questions concerning the appropriate test of insanity • their answer = McNaughtan Rules: ◦ every man presumed to be sane ◦ must be proved that at the time of the offence the accused was undur such a defect of reason from disease of mind as not to know the anture and quality of the act ◦ seems they are saying he should have been convicted of murder • Modern NCRMD defence in Canada ◦ Section 16(1) CCC ◦ noteworthy variation from original rule - “appreciate” as a substitute for the word “know” - the nature and quality of the act ◦ parliament reffered to the issue of the accused's “capacity” where as rules were only concerned with knowledge of these matters ◦ 1991 – replaced insane with mental disorder NCRMD not insanity defence -know difference between NCRMD and fitness to stand trial • fitness to stand trial – defences of NCRMD and automatism are concerned with criminal responsibility – focused on the state of mind at the time of offence • issue of fitness to stand trial concerned exclusively with the state of mind of the person at the time of their person – do they habe the mental capacity to understand the nature and purpose of the trial proceedings and to communicate with their council – even if they are experiencing delusions at the time of trial they may still be able to stand trial • NCRMD – need to treat persons with mental disorders fairly – but they are not automatically excused on account of mental disorder – strict criteria for successful application of the defence ◦ state of mind of the accused at the time of the offence – if they could not appreciate the nature/quality of the act/omission or did not realize it was wrong ◦ not a finding that the accused didn't do it but that they are not criminally responsible ◦ the accused may be subjected to restraints on his/her liberty ◦ spared the full weight of criminal responsibility but subject to restrictions necessary to protect the public. Nature and quality of act 16. P.187 • 2 arms of NCRMD defence - “appreciate” (not just know) and “wrong” (moral standards of reasonable members of society) • nature and quality of the act in Section 16(1) ◦ refers exclusively to the physical nature and quality of the act concerned ◦ protects an accused who, because of a disease of the mind, was incapable of appreciating the physical consequences of his act ◦ be able to appreciate nature/quality of act does not mean feeling remorse/guilt Cases Stone (1999) SCC • SCC emphasized the principle that “disease of the mind” is a legal and not strictly medical term – ultimate decision must be made by trial judge • Justice Bastarache of the SCC stated that the trial judge is entrusted with the task of deciding: whether the condition the accused claims to have suffered from satisfies the legal test for disease of the mind.” • after they have made the decisio
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