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Chapter 9

Chapter 9 Criminal Offences

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John Irwin

Criminal Offences Chapter 9  Accused may assert consittutional rights under charter as a means of defneding themselves against a criminal charge; Mortegaler, Smolig, and Scot  Defense of Mistake of fact, consent and mistake of law  Mistake of fact and consent are ocnsidered together in the chapter o Are frequently not exclusive raised in the xontext of trials invovling charges of sexual assault  Mistake of law = no valid defense Mistake of Fact  Mistake of Fact; The General Nature of the defence; o Person committed actus, but operating under serious mistake as to the real facts of the situtuation, she honestly believed them to be , no reasonable to believe commiting a crime  Lacked mens, that the crown must prove in order to obtain convictions  Honest mistake on an essential factual element is as ageneral rule a defence to the charge  Basically mistake of fact is the assertation that the Crown has failed to prove the necessary mens rea requirement of the offence charged;  Sexual assault; defence honest but mistaken belief in consent; denial of mens rea of sexual lind Must a Mistake of Fact Both Honest and Reasonable  Has to be honest, as a vlaid defence;  Mistake that might be enetertained by a reaosnable person in the same circumstances as those faced by the accused; o Sexual assault  Reasonableness of a mistake of fact may well be releveant factor in determining the credibility of the accused o More unreasonable mistake, the less likely it is that the judge or jury will believe the accccused is telling the truth  S.265; does not stipulate that a defence of mistaken belief as to consent will only be successful only if the belief was reasonable o Jury take into account the reasonableness of the accuseds alleged belief for means of credibility  Defence of mistake will be rejected where the crown proves reckless or wilfull  Wilful blindness prevent the accused from raising a successful defence of mistake of fact o Wilfully blind as to the issue of consent in rape case, and therefore not entitled to rely on the defence of honest mistake of fact o Accused deliberately blind to the existing facts, he is fixed by the law with actual knowledge, and his belief in another state of facts is irrelecant o Blindness as to the need to obtain consent n nbever be raised by an accused as a defence o 272.2; honest belief in consent may not be rasied as a defense of cahrge of sexual assault if the accused's belief arose from recklessness or wilful blindness  Honest mistake; actus but even an action that was not entertained by a reaosnable person = defense Exceptions to the General Rule that Mistake of Fact Does not have to be Reasonable in Order to Excuse the Accued Person from Criminal Liability  Mof does not have to be reasonable to raise sucessful defense to crim negligenc  Bigamcy o If believe was in good faith and on reasonable grounds that his or her spouce was dead mistake works  Sexual activity with under 16 o No defence if the child consents o Nor is consent a defence to charge buying sexual service from under 18 o Accused knowledge of the age is a critical issue  If the accuse takes all the reasonable steps to ascertain the age of the child or young person before engaging in sexual activity then • -mistaken belief applies  Parliamnet has imposed a duty on those who wish to engage in sexual relations to take reasonable steps to ascertain that the other part is consenting to such activity o No mean the accused must prove that h e or she took all reasonable steps o If the accused raises this defence that he took all the steps  The crown must prove a reasonable doubt that the acused did not take all such reaosnable steps  Reasonable steps includeo r indicia o Complainants physical appearance  Behaviour  The age or appearance of those in company of the complainant ahs been found  Relevant activity  Times, place other circusmtances in which the accused observed the complainnat and the complainants conduct o Reaosnable step are to rptoect children from sexual exploitation  The accused believe the complainant consented to the activity that forms the subject matter of the charge where o The accused belief arose form the accused's  Self induced intoxication  Recklessness or wilfulblindess or  Reaosnable steps to aservatin that the complainnt was consenting • If reasonable man was aware fo the same circumstance would he further steps before proceeding with sexual activity o If the answer is yes; then the accused has no taken further steps, then the accused is not enittled to defence of honest belief o If the answer is no or even maybe then accused would not be requires to take further steps and the defence will apply  Accused is to take reasonable setsp in the circumstances knowun to the accused at the time to ascertained that the complainant is consenting; • Not under obligatio to know all reelvant circumstances; Darrach • It is what he actually knew not what he should have known  Individaul seeks to engage in sexual activity with another person should first seek explicit permission, if the individuals concerned are strangers  R.v.G= uneqivocal consent  r.v.Cornejo; the movements of complainants pevlcis could provide a air of reality to the defence; wherhe are the reasonable steps to asserctain Intoxication and the Defence of Honest Mistake of Fact  mistaken belief in cosnent that is result of self induced intoxication is not a valid defence  Moreau: intoxciation only be valid defence to a charge of an offence requiring proof of specific intent; and sexaul assault requires proof of general intent or basic Defence to Mistake of Fact  No defence may be considered by the trier of act until the accused has first statisfied the evidentary burden of proof— o Esau: before a court should consider hoenst but mistaken belief or intruct a jury on it there must be some plausible evidence in support so as to to give air of reality to defense  Where there is no air of reality to the defence it should not be consdiered as no reaoansble trier of fact could acquit on that basis  Fwank; true misunderstanding betwee nparties arose infrequently for sex How honest must a Mistake of Fact Be  Owing to an honest mistake, no intention to commit offence I was charged; o Admist true as a conseqeunce of this mistake, I actually intended to commit a difference offence, but I lacked the necessary mens rea for specific offence for which I am charged  ILadue: he believed he was commit the actus reus of a less serious offecne but actaully committed the act that was more s
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