Class 4 and 5 The Act Requirement

Question 1

Generally speaking each criminal offence the crown must prove the act _______

Answer 1

Beyond a reasonable doubt

Question 2

R. v. Lohnes 1992 SCC.
Defendant caused a disturbance in a public place. Court had to determine what constitutes a disturbance. What is the two element test?

Answer 2

The legislation creates a 2 element offence:
1) Commission of one of the acts (swearing)
2) Causes a disturbance in or near a public place

The court held the legislation requires an externally manifested disturbance in or near a public place, consisting either in the act itself or in a secondary disturbance

Question 3

What is the doctrine of vicarious Liability

Answer 3

One person is automatically responsible for the wrongdoing of another SOLEY on the basis of a relationship between the parties.

Question 4

R. v. Burt, 1985 Sask. Q. B.

Guy drove truck and made alot of noice and violated act because of it. Charged under vicarious liability as it was his truck. Is this okay?

Answer 4

Police could not ID driver, so they charged owner of the car. Vehicles act made Burt vicorously liable for any violation, even if car was stolen.

No actus reus or mens rea.

Thus, the absence of the actus reus renders the legislation (s.253) invalid.

Question 5

What are the three types of Possession Offences

Answer 5

You can be convicted for pure possession (innocent) such as child PO or stolen goods under section 4. (3).

Three different types of possession: personal, constructive and joint-possession

Question 6

Constructive Possession

Answer 6

That the accused has knowledge of the object, knowingly puts it in a place, and intends to have the object there for his use or benefit/benefit of others.

Question 7

Joint possession

Answer 7

Multiple people have possession of it.

Question 8

What are the three components of personal Possession

Answer 8

Needs: knowledge, consent, and control

Knowledge consists of awareness of the object/what it is and that they have it.

Question 9

R. v. Pham, 2005. Cocaine found in house, defendant was not there when found. Did they have posession of the drugs? If so what type of possession? Can knowledge be inferred from evidence?

Answer 9

They had constructive control thus constructive possession.

Required elements of possession- knowledge, consent and control.

Knowledge can be inferred from circumstantial evidence.

Question 10

R. v. Morelli 2010 SCC, Defendant viewed CP did he have personal possession?

Answer 10

The court found just seeing it does not establish the act of possession.

Personal Possession needs
Knowledge, consent and control.

Constructive possession is that the accused has knowledge of the object, knowingly puts it in a place, and intends to have the object there for his use or benefit/benefit of others.

Question 11

R. v. Chalk. Had CP but with the intent to destroy. What doctrine applies?

Answer 11

Doctrine of innocent possession: exercising control over an object with the required knowledge but SOLEY with the intent of destroying it does not constitute criminal possession.

Question 12

R. v. Jobidon 1991 SCC. Charged with manslaughter as he punched someone and they died in a consensual fight. What did the court find?

Answer 12

does the crown always have to prove the absence of consent? both parties consented to the fight. It is not against the law to have a consensual fight.

Looked at s 265 of the code, and said the limitations of this section as it is applied is one which consent between adults who decide to fight

You can consent to fight but not to bodily harm.

Question 13

R. v. Moquin, 2010. What does bodily harm mean? What are same examples? What if many injuries but all trifling?

Answer 13

BH has been found where scrapes, bruises can cause discomfort and inconvenience for more than a brief period.

Medical evidence not required.

must be beyond transit or trifling in nature but you look at all of them together. if taken together it can be more then trifling and transient.

Question 14

R. v. Cuerrier 1998 SCC. Had HIV and gave it to others. Does failure to disclose HIV status fraud?

What is the currier test?

Answer 14

There is a duty to disclose if you have a risk
the act requirement the crown has to prove is that the dishonest act had the except of exposing the person consenting to a significant risk of serious bodily harm.

Three part currier test
1. Dishonest act no consent
2. Risk of harm or cause deprivity
3. harm must be serious and risk substantial.

Question 15

Is there a duty to disclose HIV status?

Answer 15

It depends on the nature of the risk

The act requirement the Crown has to prove (where it is alleged that consent has been vitiated by fraud) is that the dishonest act had the effect of exposing the person consenting to a significant risk of serious bodily harm

Question 16

R. v. Mabior 2012 SCC. HIV Positive but took prep and had low viral road. Does he have to disclose?

Answer 16

because no realistic possibility of giving it , no fraud. if thus defining significant risk.

Answering what sigifnicant risk of badly harm means

answer is

Ratio: where there is a realistic possibility of transmission of HIV, a significant risk of bodily harm is established

Question 17

Summing up HIV

Answer 17

TO SUM UP:

1. FAILURE TO DISCLOSE (dishonest act) = amounts to a fraud where the complainant would not have consented had they known the accused was HIV+ and the sexual contact poses a significant risk of bodily harm (deprivation)
2. A significant risk of bodily harm is established by a realistic possibility of transmission of HIV
3. A realistic possibility of transmission is negated by evidence of a low viral load and a condom being used

Question 18

R. v. Kubassek, 2004

Hated gays pushed a guy at church she invaded.

Doctrine of what applies?

Answer 18

Allegation of assault
The act was a “push/shove” resulting in the complainant stumbling; he did not fall and was not injured

The doctrine of de minimus operates at common law to reserve the application of criminal law to serious conduct; it protects the accused from the stigma of a conviction for trivial conduct; it does not mean the act is justified; it remains unlawful, but on account of triviality it goes unpunished. The law does not govern/concern itself with trifles

Did not apply in this case…actions of accused beyond de minimus range

Question 19

R V. Hutchinson 2014. Guy poked holes in the condom he was using. She became pregnant. Two step process to determine if she consented. What are they?

Answer 19

issue: did she consent?

Two step process
1. Does the evidence establish there was voluntary agreement to the activity?

2. Are there any circumstances that may vitiate the complainants consent or participation in the sex?