crim-rough.1 Flashcards
(149 cards)
1
Q
operationalized codefid criminal law - cannot charge or detain someone if the law is not in the criminal code; not under common law
A
Frey?v .?Fedoruk (peeping tom case) (1950) p20
2
Q
common law defences are allowed; even those outside the criminal code in accordance with section 7 of the charter
A
Amato?v .?The?Queen (1982) p18
3
Q
we can use common law to interpret elements of a common law defence such as consent… but there is concurrent dissent
A
R .?v .?Jobidon (1991) p22
4
Q
R .?v .?Jobidon
A
manslaughter case in which accused tries to use consent asa defence but court looks to common law to negate his defence; Gauthier writes majority; Sopinka belives it is beyond cour’ts authority (1991) p22
5
Q
upholds the criminality of contempt of court and leaves open limited input of common law into criminal law
A
United Nurses of Alberta v. A.G. Alberta (1992) p25
6
Q
affirmed?the?existence?of?a?void?for?vagueness?doctrine (read into section 7 of charter) but in most casese vagueness defence fails
A
R. v. Nova Scotia Pharmaceutical Society (1992) p26
7
Q
standardless?sweep’ first used
A
Prostitution reference (1990) p26
8
Q
laws should not be overboard (overbreadth), there is dissent regarding if one must be notified of restrictions or whether ‘ignorance of the law is no excuse’ doctricne should be upheld
A
R .?v .?Heywood (1994) p28
9
Q
R .?v .?Heywood
A
Cory Majority; Gaunthier dissent; regarding restricitons on liberty of repeated sexual offender (1994) p28
10
Q
the term ‘reasonable’ is not vague; refutes the fact thatthe courts apply it inconsistently as proof that it is vague; outlines corporeal punishment of children
A
Canadian?Foundation?for?Children,?Youth?and?the?Law?v .?Canada? (2004) p29
11
Q
in favour of contextual meaning of ‘while committing’ with dissent; doctrine of strict construction is weakened
A
R .?v .?Pare (1987) p37
12
Q
R .?v .?Pare
A
Man kills after sexual assualt; agues he did not kill ‘while committing’ - court convicts using contextualist interpretation (1987) p37
13
Q
confirms the ability to interpret outside strict literal interpretation; regarding murder of police officer
A
R. v. Prevost (1988) p42
14
Q
Driedger?s?modern?approach
A
the?words?of?an?Act?are?to?be?read?in?their?entire?context?and?in?their?grammatical?and?ordinary?sense?harmoniously?with?the?scheme?of?the?Act,?the?object?of?the?Act,?and?the?intention?of?Parliament. (1983) p42
15
Q
outlines the standards for ambiguity, which change depending on the area of law, criminal and charter issues being the narrowest
A
Bell Ex pressVu Limited Partnership v. Rex, et al. (2002) p43
16
Q
there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive’ Palmer
A
Prostitution reference (1990) p27
17
Q
Condemning people for conduct that they could not have reasonably known was criminal is Kafkaesque and anathema to our notions of justice’
A
R v Mabior (2012) p???
18
Q
not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations’
A
Charter section 11 (1982) px
19
Q
Doctrine of strict construction: if a penal provision is reasonably capable of two interpretations, that interpretation which is the more favourable to the accused must be adopted
A
R v . Goulis (1981) px
20
Q
defendant is asked to proove the killing of his wife was not murder which was a n unjust onus… conviction was appealed and quashed
A
Woolmington?v .?D .P .P (1935) p279
21
Q
to invoke section 1 to trump a charter right such as a reverse onus for drug trafficking a two step test must be passed
A
R .?v .?Oakes ? 1) pressing and substantial concern 2) rationally connected; 3) minimal impariment; 4) proportional means (1986) p284
22
Q
R v Oakes
A
dug trafficking charge fails on rationa connection test as the trafficking assumption was overinclusive, including those who possessed small amounts of drugs (1986) p284
23
Q
regarding section 11d (presumption of innocence) -‘the?distinction?between?elements?of?the?offence’… only resonable doubt matters
A
R v Whyte (1988) p289
24
Q
Anti-hate laws are a noble objective and proving truth is a reasonable restraint
A
R .?v .?Keegstra - McLaughclin dissents, no rational connection, what if true but cannot be proved? What clear and (1990) p295
25
'reasonable?doubt' is NOT?nececarily an 'ordinary,?natural?every?day?sense'
R .?v .?Lifchus (1997) px
26
clarifies when section 11d is violated, a truth test does not rectify the violation; in this case s1 living with prostitutes can be inferred to live with prostitutes
R. v. Downey (1992) p291
27
Reasonable doubt cannot be said to have 'no special connotations' by a judge to a jury
R .?v .?Starr (2000) p294
28
reflex action means there was no mens rea - hit trespasser with a phone reflexivley
R v Wolfe (1975) ponline
29
contemporaneity; actus reus and mens rea should be rationally connected in assault - this may often mean silmutaneous or near to it
Fagan?v .?Commissioner?of?Metropolitan?Police - drove car on policeman's foot (1969) p304
30
There is a duty to take measures to prevent dangers that are caused by oneself; adoption; recklessness aplies if the mens rea allows for recklessness
R .?v .?Miller - man fell aspleep on a matress with a cgarett buring, started a fire, did not hing (1982) p305
31
deportation to country one came from is no excuse for violating term of stay ? involuntarieness failed ? this case is now held in disrepute
R .?v .?Larsonneur (1933) p311
32
even a parking ticket must have mens rea; absoloute prohibiitons must be explicit
Kilbride?v .?Lake (1962) p314
33
criminals must have voluntarieness; duress cannot be restricted as a defence - drug smuggling under duress
R .?v .?Ruzic (2001) p316
34
the standards of criminal law must be different and higher than civil law thus common law negligence is not sufficient for a criminal act
R .?v .?Browne (1997) p320
35
refrain from negligent harm that can foreseeably caused injury to the public; duty was found on criminal negligence and nuisance (180 and 219) despite no explict duty found in code
R .?v .?Thornton (1991) p323
36
Fagan?v .?Commissioner?of?Metropolitan?Police
contemporaneity; victim drives on police officer's foot, unclear of intention; victim stays on police officer's foot (1969) p
37
R .?v .?Miller
Contemporaneity is used as defence, mens rea came after the fact; refuted; lower court uses theory of adoption; house of Lords uses 'duty to act', a new actus reus, to convict when accused starts a fire accidentally, walks away from a fire ? dissent from Lamer (1982) p
38
R .?v .?Larsonneur
Voluntariness ? woman is deported from Ireland to UK (where she came from) and charged with violating immigration laws ? involuntariness failed as defence (1933) p
39
R .?v .?Browne
two druggies, one swallows and dies, they try to convict other druggie of not upholding a duty to bring other druggie to hospital fast enough (1997) p320
40
R .?v .?Thornton
man who donates HIV infected blood is convicted under 180, nusinace with harm to the public; SCC ends up getting him on 216 (medical negligence) (1991) p323
41
courts ignore contemporaneity when man violates an order to be in by 12 IN CANADA and goes to USA
R v Copland () p
42
by strict contemporaneity no murder occured; however Supreme court convicts, accused that he had mens rea, and the morally blameworthy actions
R v Cooper (1993) p307
43
not asking about consent when you have good reason to believe that consent is illegitimate is wilful blindness
R .?v .?Sansregret (1985) p447
44
R .?v .?Sansregret
McIntyre distinguishes wilful blindness from recklessness; not enquiring when one knows one should is wilful blindness in the case of sexual assault (1985) p447
45
Wilful blindness must result from a 'strong well founded suspicion'; a component for knowledge when knowledge is part of mens rea
R v Briscoe (2010) p449
46
R v Briscoe
man helping others in murder claims wilful blindness is merely advanced recklessness and is insufficient to constitute mens rea for murder (2010) p449
47
Wilful blindness is refusing to confirm a strong probability; almost knowledge; a very high standard; it is not if a man 'should have' been suspeicious but if he 'was' suspicious
R v Malfara (2006) pattached
48
R v Malfara
man takes $50 to deliver clothing to aprisoneer and is found not wilfully blind that there could be something quite illegal in the package (2006) pattached
49
Sault Ste Marie has blurred the distinction between regulatory and criminal
Stucky () p
50
Beaver?v .?The?Queen
possession of drugs must be held to subective mens rea (1957) p378
51
possesion must be held to higher mens rea
Beaver?v .?The?Queen (1957) p378
52
mens rea of 'promotion of hatred' has two elements
Buzzanga () p
53
an example of an intellectually incorrect case made by sentimental reasons
Muirhead ? judge does not convict a father who was investigating his son's possible child abuse and absolved of abduction (2008) p
54
case where belief that the accused was committing the crime of laundering illicit funds but in fact, he was not because the money was planted by the police
United States v Dynar (1997) p579
55
Knowledge does not refer to illegality or morality
Theroux () pMR slide
56
This case states that any risk at all is sufficient for recklessness, Criminal code says it is 'elevated risk'
Sansregret () pMR slide
57
Where an offence requires knowledge, recklessness will not suffice (although wilful blindness will)
Sandhu () p
58
A reckless threat of bodily harm will not be interpreted as having sufficient mens rea
Noble () p
59
in aiding, there may not necessarily be a causal connection if it had the affect of assisting the principal
R v Duley () p
60
recklessness does not satisfy 21b; knowledge that one is assisting a type crime and the general circumstances of how it occurs
R v Roach (2004) ponline
61
R v Roach
accused helps set up a telecom frau business but is not conviceted of aiding under 21b because judge dis not give intrcution regarding his koledge of the type of crime that occurred (2004) ponline
62
an example of a police officer abetting
R v Nixon () p
63
R v Nixon
officer with a duty to protect inmates in jail, officer does not stop another police officer from committing assault () p
64
owner of car allows chauffeur to drive drunk and is convicted of abetting
R v Halmo () p
65
trial judge makes an error by instructing jury to make an inference about abetting when it was unclear how her abetting supported the acts
R .?v .?Palombi (2007) p550
66
R .?v .?Palombi
cannot make inference of wife of husband who abuses children (2007) p550
67
R .?v .?Thatcher
man either murdered, or hired someone to murder, his wife; judge does not maek jury decide which; appeal fails; conviction upheld (1987) p526
68
a jury need not come to an agreement on factual evidence regarding principal or abbetor
R .?v .?Thatcher (1987) p526
69
L'heureaux-Dube and Cory have a debate about the role of aeting between a purchaser of drugs and a trafficekr,; where does a middle man lie?
R .?v .?Greyeyes (1997) p531
70
R .?v .?Greyeyes
majority found that while abbeting purchase of drugs does not necessarily abet trafficking, it did in this case due to knoledge, aggency (1997) p531
71
Dickson says - Pressence is not abbetting, requires prior knoledge or more to substantiate some support of the act
Dunlop?and?Sylvester?v .?The?Queen (1979) p537
72
Dunlop?and?Sylvester?v .?The?Queen
mortorcycle gang members are present during a gang rape but found not to be abbetting (1979) p537
73
R .?v .?Jackson
In?some?circumstances?the?presence?of?an?accused?will,?in?itself,?be?held?to?have?encouraged?the?commission?of?the?offence (2007) p543
74
Man is present at marajuan grow-up and convicted
R .?v .?Jackson (2007) p543
75
purpose is synonomous of intent' in aiding a crime; recklessness will not suffice
R v Roach (2004) ponline
76
R v Roach
man was convicted of aiding fraud by being reckless but overrulled by appellate court because recklessness does not sufice (2004) ponline
77
Cory J acquits because accused did not have common intention evidenced by not encourage killing althought he abbetted theft resulting in sexual assault; Wilson J disagrees beause accused knew bodily harm existed
R .?v .?Kirkness (1990) p553
78
R .?v .?Kirkness
accused was accomplice in armed robbery, partner commits sexual assault and murder but accused asked him not to kill her; accused acquited with dissent (1990) p553
79
common intention in murder requires subjective mens rea; 'or ought to have known' does not hold weight for murder; but will for other crimes
R .?v .?Logan (1990) p561
80
R .?v .?Logan
men in a robbery, one man shoots; partners are not convicted of attempt of murder because they have subjective mens rea (1990) p561
81
McLAughclin 'a?conviction?for?manslaughter?under?s.?21(2)?does?not?require?foreseeability?of?death,?but?only?foreseeability?of?harm,?which?in?fact?results?in?death'
R. v. Jackson 1993 (1993) p563
82
an example of counselling; counselling is instrumental in the principal deciding to commit the crime
R .?v .?O?Brien (2007) p564
83
R .?v .?Duong
friend helps someone being searched for murder, is convicted of assessory, fails to make argument of no knowledge, he was willfully blind by not making inquiry (1998) p566
84
R. v. Jackson 1993
McLAughclin 'a?conviction?for?manslaughter?under?s.?21(2)?does?not?require?foreseeability?of?death,?but?only?foreseeability?of?harm,?which?in?fact?results?in?death' (1993) p563
85
5 elements of 21(2)
1) with another 2) unlawful plan 3) another crime 4) probable consequence (based on the circumstances as he perceived them) 5) known to be probable (x) px
86
probable consequence in respect to 21(2) must relate to knowledge of the accused unded the circumstances
r v maiher and clark (1968) ponline
87
r v maiher and clark
accused did not know principal had a knife; accused was acquitted of weapons charge (1968) ponline
88
R v Gauthier; 4 elements to maintain abandonement defence
1) intent; 2) communication; 3) unequivocal; 4) proortional to contribution (2013) ponline
89
defence of abandonment fails for accomplice in murder suidide pact
R v Gauthier; 4 elements to maintain abandonement defence; 1) intent; 2) communication; 3) unequivocal; 4) proortional to contribution (2013) ponline
90
attempts involve more than; contemplation; deciding; planning; preparing; look at time, location and remaining acts - The?actus reus?must?be?more?than?mere?preparation?to?commit?a?crime
R v Cline (1956) p571
91
R v Cline
man with sunglasses asks boy to hlp him baggage; extrsic evidence of overt steps planning and past behaviour patterns displayed intent (1956) p571
92
an intervening act must not be ovewheliming or forseeable; it must be caussally 'connected in time, place, circumstance, nature and effect'.
R v Maybin (2012) ponline
93
R v Maybin
three appeallants all assault and kill a man; intervening acts are examined; all get assault; none get manslaughter (2012) ponline
94
Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances'
R v Roy (2012) ponline
95
R v Roy
lenient on a driver who while they aknowledged did something objectivleydangerous did not sufficeintly show moral blameworthieness in a departure from the dtandard of care (2012) ponline
96
AR of conspriacy requires; 2 people with knowledge of a plan, agreeing to go forward with the plan (meeting of minds)
R v Alexander and Blake (2005) ponline
97
R v Alexander and Blake
teo men try to pimp out woman and blackmail but there is insufficient meeting of minds between the two of them to get them caught on conspiracy (2005) ponline
98
an accessory can be indicted even if no principal has been indicted
R v Camponi (1993) ponline
99
R v Camponi
accued is indicted as an accessory for murder even though the principal had not yet been convicted (1993) ponline
100
entrapment (and other common law defences) can be used unde s8(3)
Amato?v .?The?Queen (1982) p18
101
a case where systematic racism was found that contributed the the indictment of an aboriginal man
R v Marshall (1972) p200
102
6-3 SCC decision that a judge did not continute to bias by saying that a police officers had been known to conducti n rascist acitivites; 'judges?can?never?be?neutral,?in?the?sense?of?purely?objective,?they?can?and?must?strive?for?impartiality' - majority
R v S (RD) (1997) p226
103
Public Inquiry of Aboriginal Justice
discusses overincarceration, sentencing and guilty pleas of aboriginals (1991) p230
104
?this?history?[of wrongful convictions] weighs?powerfully?in?the?balance?against?extradition?without?assurances [against the deat penalty].
United?States?of?America?v .?Burns?and?Rafay (2001) p238
105
the duty of the crown is to fully disclose evidence to get at the truth, not to win a conviction
Boucher?v .?The?Queen (1954) p248
106
A crown has a duty to disclose evidence to the defence, even (or sespecially) if it is in the accused's interest
R .?v .?Stinchcombe (1991) p252
107
Defence cannot commit pugury but mut let accused disclose the evidence the acused wishes to disclose, even if contradictory
Law?Society?of?Upper?Canada,??Defending?a?Criminal?Case? (1969) p257
108
normative and utilitarian intersts must be regarded in sentencing, great discretion for trial judge, plaintiffs age should be taken into account
R .?v .?M .?(C .A .) (1996) p980
109
conditional sentence must fit with; denuciation, segregation, deterence and rehabilitation; summary offence, less than 2 years, not threaten community,
R .?v .?Proulx - a dangeorus driving case (2000) p994
110
man realizes he has HIV but continues having unproted sex; acquitted under contemporanety
R v Williams (2003) p309
111
a duty of diclosure in the context of HIV carrier is found althugh McLauchlin dissents
R v Currier (1998) p331
112
An example of lack of factual causation when accused filled out false statemtns for credit card but credit issuer did not rely upon false info
R v Winnig (1973) p337
113
in criminal law, accused must take victims as they find them; forseeability of bodily harm, not death is necessary for manslaughter; contrinution must be more than trivial (de minimis) low threshold estbablished for causation - challenged later
Smithers?v .?The?Queen (1978) p339
114
Challenges diminimus test for manslaughter - both physical causation and fault must be found' diminmis test is not too vauge or too remote; multiple causes can contibute to manslaughter such as a kick and a choke
R .?v .?Cribbin (1994) p344
115
when?the?death?is?caused?by?that?person' is construed to mean that there is an extra high standard of causation for parites to first degree murder
R .?v .?Harbottle (1993) p358
116
R .?v .?Harbottle
man holds feet down while friend stangles, a differnet level of causation is found for first=degree murder (1993) p358
117
discuss legal caussation for homocide; significant as a opposed to 'not insignificant' which is lower; dissent that does not want to change standard for second degree to 'significant'
R v Nette (2001) p363
118
an expansive interpretation of attempt where an atempt made of procuring sex; judge found there were no other steps to complete once the money was offered
R v Deustch (1986) p573
119
two men attempt to rob a frnchise; it was closed; they are charged with attempt
R v Sorell () p
120
legal and factual impossiblity does not absolve an accused from 'attempt' because they are equally morally blameworthy; obiter - impossibllity can work when the attempt was not a crime even though the accused believes it was a crime
R v Dynar () p
121
meetings, setting out terms and planning a crime makes an offence of attempt, even if the plans do not come to completion
R v Root (2008) p
122
exam 2011 attempt issues
is victim showing up an intervening cause? Is the evidence of poorly executed beating indicating intent? Is getting to the door sufficient planning in combination with his stated itnent? (x) ponline
123
recklessness is a high standard for incitment; substantial and unjustifiable; must be aware of substantial risk
R v Hamilton (2005) p588
124
R v Hamilton
man is acquitted of three counts but convicted for counselling fraud; sending files named 'bombs' about buiding bombs but he claims to have never read the filed; dissent cites Keegstra; c (2005) p588
125
conspiracy must agree on crime but not on how to carry out the crime
R v Controni () p
126
conspiracy - no requirement that a member have contact with more than one member; no need to know identity
R v Niemi; R v Longworth () p
127
not a crime, emphasizes the differenes between lobsters and drugs? a regulatory offence, lower mens rea
R .?v .?Pierce?Fisheries?Ltd (1971) p384
128
for strict liability offences, a deffendent need not have mensrea but must prove it took every precaution
R .?v .?City?of?Sault?Ste .?Marie (1978) p388
129
you cannot be imprisoned for a regualtory offence
Reference?re?Section?94(2)?of?the?B .C .?Motor?Vehicle?Act (1985) p395
130
driving without a licence can be an absoloute liabitly offence, 5-4 decision
R v Pontes (1995) p400
131
abosoloute liability is relative to stigma, less important for a coproration
R .?v .?1260448?Ontario?Inc .?(c .o .b .?William?Cameron?Trucking);??R Transpot Robert (1973) Ltd. (2003) p401
132
Contentious 5-4 decision where burden of proof was placed on advertisers to prove that they did everything they could to prevent false advertising
R .?v .?Wholesale?Travel?Group?Inc (1991) p405
133
Judge adds an additional charge which he did not clarify to jury where the burden of proof lay; Cory found this less than ideal but not fatal to the decision
D.W. v. The Queen (1991) ponline
134
British citizen, worked for Nazis, but claimed his prupose was to protet family and his claims to duress must be taken seriously
R .?v .?Steane (1947) p429
135
duress is an excuse for some crimes; you cannot use duress if you have the ability to escape from the crime
R .?v .?Hibbert (1995) p432
136
if there was willful promotion of hatred, there must also be purposful intent
R .?v .?Buzzanga?and?Durocher (1979) p436
137
knowledge is important for the mens rea of fraud
R .?v .?Theroux (1993) p443
138
mens rea for manslaughter is objective; objectivity is not made in a vacum - there is dissent
R .?v .?Tutton?and?Tutton (1989) p450
139
R .?v .?Tutton?and?Tutton
family believe in faith healing; charged with manslaughter; defence uses Sansregret to try to absolve guilt because they are reckless but lack subjective state (1989) p450
140
capacity is a requirement for objective test of criminal culpability; McLauchlin repudates concurring opinions that try to bring in other factors such as human frilities into consideration
R .?v .?Creighton (1993) p457
141
momentary lapse of judegment indicates no marked deaprture from the standard of care; limit acteus reus for dangerous driving cuasing death, weakening objective test
R .?v .?Beatty (2008) p471
142
knowledge that viewed objectivley, accused's acts would contsitute war crimes
R .?v .?Finta (1994) p485
143
21b and 21c fro aiding and abbetting are held to subjective mens rea
R .?v .?Helsdon (2007) p545
144
R .?v .?Helsdon
reporter violates newspaper ban and gives information to newspaper (2007) p545
145
appealant provided information and encouragement to rob but did not seell drugs later; court found his seeming lack of motive (inability to sell) irrelevant; knowledge and willful blindess are
R .?v .?O?Brien (2007) p564
146
like murder, attempt of murder requires elevated mens rea of a specific intent to kill
R v Anico (1984) p574
147
a crime that would have resulted in murder is attempt of murder but L'Herueux-Dube dissents keeping it stricktly to the same mens rea of murder that cannot be changed because of its association with another crime
R .?v .?Logan (1990) p561
148
although conspiracy involves more than one person and that person cannot be a police officer; if the police oficer is just an intermediary, conviciton is still possible
United?States?v .?Dynar (1997) p595
149
cannot attempt to conspire theft because the parties had not agreed or committed but merely discussed; hoping to commit crime is insufficient
R .?v .?Dery (2006) p600
