mod 5 - Criminal Law

Question 1

criminal law

Answer 1

• criminal law is a punitive response to a perceived problem
• criminal law rests upon several objectives, such as deterring the individual wrongdoer and the general public, reinforcing certain social values and signalling that certain behaviour has been deemed to be undesirable
• it signals that society disapproves of an act and that a formal response by the state is necessary

Question 2

Actus Reus

Answer 2

• most crimes are composed of two elements: (1) the physical aspects (actus reus) and (2) the mental aspects (mens rea)
• three parts: voluntariness, commission, causation (not always required)

Question 3

Voluntariness

Answer 3

• criminal liability is only attached to physically voluntary acts
• a voluntary act results when a person consciously controls their movement (i.e epilepsy results in no control)
• “the result of a willing mind at liberty to make a definite choice or decision” (king)
• ex. A had an epileptic fit. One of his movements causes a gun which is laying beside him on a table to go off and kill B. (Not voluntary)

Question 4

Conduct/commission

Answer 4

• to be guilty of a particular crime, you must commit the act(s)
• e.g if you are on a bail order and that bail order requires you to attend court, if you don’t appear in court on that specific day, you have committed the actus reas and are potentially guilty of failure to appear
• e.g bird case

Question 5

R. v. Bird

Answer 5

• Mr. bird called a married woman pretending to be a friend, and convinced her unless she had sex with him, he would release embarrassing photos of her husband, so the woman agreed to protect her husband’s reputation. Bird was charged with extortion, usually committed when someone is seeking a tangible object (money), which he was not
• held that is was intangible but still criminal (therefore appeal dismissed)

Question 6

Causation

Answer 6

• death that might have been prevented
• death from treatment of injury
• acceleration of death
• to be guilty of an act you must not just commit the act but cause specified consequences
• two questions: factual causation and legal causation

Question 7

Two questions - causation

Answer 7

• factual causation: determine whether A caused B. The answer to the factual question can only come from evidence of witnesses. It has nothing to do with intention, foresight or risk
• legal causation: asks whether the accused’s act was a significant contributing cause
• not a scientific inquiry but a process of fixing moral blame

Question 8

R. v. Smithers

Answer 8

• hockey game was played between Applewood midget team and the Cookville midget team
• The leading player on the Applewood team was the deceased Barrie Cobby, the leading player on the Cooksville team was the appellant
• The appellant, who is black, was subjected to racial insults by cobby and other members of the Applewood team
• the appellant made repeated threats that he was going to get cobby
• the appellant punched cobby twice in the head
• Well cobby was bent over and approximately 2 to 4 feet from the appellant, the appellant delivered what was described as a hard, fast kick it to cobby’s stomach area
• following the kick, cobby groaned, staggered toward his car, fell to the ground on his back, and gasped for air and within five minutes he appeared to stop breathing he was dead upon arrival at the hospital
• The doctor on the case who performed the autopsy, testified that his opinion death was due to the aspiration of foreign materials present from vomiting
• The kick was at least a contributing cause of death (therefore appeal dismissed)

Question 9

Mens rea

Answer 9

• a culpable state of mind
• the maxim, actus non facit reum nisi mens sit rea (the act does not make one guilty unless the mind be guilty)
• the function of mens rea is to prevent the conviction of the morally innocent
• intent, motive, recklessness and wilful blindness (latter three subjective), criminal negligence (objective)

Question 10

Intent

Answer 10

• some crimes require that the prohibited act be committed intentionally or willfully
• to act deliberately and not accidentally

Question 11

Intent vs motive

Answer 11

• not the same meaning
• motive is the explanation for why a person acted
• criminal law does not require proof of motive
• guilt can follow a motiveless act or even an act committed with a beneficent motive

Question 12

A hits V on the head and leaves V’s unconscious body on highway 401 where a truck runs over and kills V. Did A cause V’s death?

Answer 12

• yes, A causes V’s death
• because the assault was a factual cause and it would be considered a legal cause as well (easy foresee V would get hit by a car on the highway)

Question 13

A hits V on the head and leaves V’s unconscious body on the steps in front of the law school where, after a terrorist bomb explodes, the building collapses on V and kills him. Did A cause V’s death?

Answer 13

• no, A did not cause V’s death
• the assault was a factual cause but it would not be considered a legal cause because of how unlikely it is that a terrorist bomb would explode at the law school

Question 14

Recklessness and wilful blindness

Answer 14

• recklessness is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by criminal law, nevertheless persists, despite the risk
• the doctrine of wilful blindness imputes knowledge to an accused whose suspicion, but deliberately chooses not to make those inquiries (not based on what a person should have known)

Question 15

R. v. Currie

Answer 15

• the appellant appeals from his conviction, on the charge that: at the regional municipality of Niagara, he unlawfully and knowingly utter a forged document, to wit: a cheque payable to Edward Gerada of $476.15 at the Canadian imperial bank of Canada, with the intent to use it as if it were genuine
• the appellant cashed cheque for an unknown man for money and gave the proceeds to the man (he was arrested)
• trial judge concluded the appellant was wilfully blind as to the forged nature of the cheque (should have been suspicious)
• however, generally speaking, the doctrine of constructive knowledge has no application criminal law. the fact that a person ought to have known that certain facts existed, while it may, for some purposes in civil proceedings, be equivalent to actual knowledge, does not constitute knowledge for the purpose of criminal liability, and does not by itself form a basis for the application of the doctrine of wilful blindness (therefore appeal allowed)

Question 16

R. v. Sansregret - wilful blindness

- distinction between negligence and recklessness

Answer 16

• negligence up is tested by the objective standard of the reasonable man
• recklessness, to form a part of the criminal mens rea, must have an element of the subjective (biased, open for interpretation)
• the complaints that dismissed the appellant from her house in September, 1982, thus demonstrating her rejection of him
• he broke into the home on September 23 and there went through a performance which led to an act of intercourse with a consent given by the complainant out of fear of her life
• this incident led to a police report and the involvement of the appellant’s probation officer
• on October 15 he broke in again and did the same thing (provided the basis for charges)
• there was evidence the appellant knew a complaint of rape had been made against him (first incident)
• if the evidence before the court was limited to the events of October 15, it would be difficult to infer wilful blindness
• the position, however, is changed when the evidence reveals the earlier episode and the complaint of rape which it caused, knowledge of which, had clearly reached the accused (the appellant was aware of the likelihood of the complainant’s reaction to his threats)

Question 17

Knowledge

Answer 17

• the rule of wilful blindness is equivalent to knowledge

- a court can properly find wilful blindness only where it can almost be said that the defendant actually knew

Question 18

Criminal negligence

Answer 18

• 219. (1) every one is criminally negligent who
       (a) in doing anything, or
       (b) in omitting to do anything that it is his duty to do,
       shows wanton or reckless disregard for the lives or safety of other persons
• duty = a duty imposed by law
• causing death by criminal negligence (220)
• causing bodily harm by negligence (221)
• objective mens rea requires more than simple negligence “a mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find a blameworthy state of mind”

Question 19

R. v. Duggan

Answer 19

• the three accused are jointly charged with what is essentially theft
• stole canoe in middle of night
• result: the accused were convicted because they intended to take the canoe

Question 20

R. v. Hundal

Answer 20

• hundal appealed from his conviction for dangerous driving causing death
• appellant went through red light hitting a car
• at trail, he testified that he thought he could not stop when the light turn amber, so he sounded his horn and proceeded through the intersection
• crown must establish a subjective mens rea element to prove the offence
• mens rea may be satisfied in different ways: the offence can require proof of a positive state of mind such as intent, recklessness or wilful blindness or the mens rea can be satisfied by proof of negligence whereby the conduct of the accused is measured on the basis of an objective standard (requires a marked departure from the standard of care of a reasonable person)
• appeal dismissed, conviction upheld

Question 21

Attempts

Answer 21

• when someone tries to commit a crime but does not actually complete it
• 24. (1) everyone who, having an intent to an offence, does or omits to do anything for the purpose of carrying out the intentions is guilty of an attempt to commit the offense whether or not it was possible under the circumstances to commit the offence
• fine line between mere preparation and an actual attempt

Question 22

Two distinct elements necessary to establish a criminal attempt:

Answer 22

(1) the intention to commit a criminal offence and (2) doing (or omitting to do) something to carry out that intended crime
- just merely thinking about the crime is not enough

Question 23

The courts will often consider the following questions to resolve attempt cases:

Answer 23

• how close (in time and space) was the accused to completing the offence
• how much had the accused already done
• how clear is it that the accused was directing himself towards the specific offence
• the US uses the “dangerously close to completion”test (others focus on the reason for not completing the offence)
• “silent movie test”
• “next to the last step” theory

Question 24

R. v. Cline

Answer 24

(1) there must be a mens rea and actus reus, (2) evidence of similar acts done by the accused before the offence with which he is charged, and also afterwards if such acts are not too remote in time, is admissible to establish a pattern of conduct from which the court may properly find mens rea (intent), (3) such evidence may be advanced in the case for the prosecution without warning for the defense to raise a specific issue, (4) it is not essential that the actus reus be a crime or a tort or even a moral wrong or social mischief, (5) the actus reus must be more than a mere preparation to commit a crime, (6) but when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus efficient in law to establish a criminal attempt to commit the crime
- in a criminal attempt, the mens rea is of primary importance and the actus reus is the necessary element

Question 25

R. v. Deutsch

Answer 25

• The appellant was carrying on a business known as global franchise marketing
• The appellant placed an advertisement in the newspapers, inviting applications for the position of secretary/sales assistant and conducted interviews with three women who responded to the advertisement and with a police officer who posed as an applicant for the position and recorded the interview on a tape recorder
• in the interviews the appellant indicated that the secretary assistant would be expected to have sexual intercourse with clients or potential clients of the company where that appeared to be necessary to conclude a contract
• after hearing what the position required they said they were not interested and the interviews terminated
• The trial judge found that the appellant, intended that the woman in question should have sexual relations with prospective customers and clients, but that the acts of the appellant, consisting of the advertisements, the interviews and what was said during the interviews concerning the requirements of the position and the money to be earned, were mere preparation and too remote from the complete offence of procuring to constitute actus reus of an attempt
• the court of appeal disagreed ?

Question 26

Accessories - parities to an offence

Can only be charged as an accessory if the person actually commits the offence

Answer 26

21. (1) every one is a party to an offence who:
    (a) actually commits it;
    (b) does or omits to do anything for the purpose of aiding any person to commit it; or
    (c) abets any person in committing it

Question 27

(a) aiding

Answer 27

• an aide would only escape criminal liability if his or her acts could not possibly have assisted the actual perpetrator

Question 28

(b) abetting

Answer 28

• anyone who encourages intentionally by expressions, gestures, or actions intended to signify approval
• possible to abet by doing or saying nothing (limited)

Question 29

R. v. Dunlop and Sylvester

Answer 29

• 18 men had intercourse with the complainant while she was being held down by two others
• she identified the two accused as men that attacked her (Brenda said they had intercourse with her)
• the accused testified that they had attended a meeting of the club at the dump earlier in the evening, and later delivered some beer to the dump
• Dunlop (one of the accused) saw a female having intercourse; with whom he could not say, but he believed the person to be a member of the motorcycle club - after three minutes he and the co-accused left
• mere presence at the crime science is not sufficient to ground culpability (guilt) (must be encouragement also)
• presence of a commission of an offence can be evidence of aiding and abetting if accompanied by and other factors, such as prior knowledge of the principle offender’s intention to commit the offence or attendance for the purpose of encouragement (therefore appeal allowed)

Question 30

(c) common intention

Answer 30

21. (2) If two people plan to commit a crime together, each can be convicted of any other offence that the partner commits in carrying out the plan if he knew or ought to have known test the other offence would probably result in committing the planned crime

Question 31

(d) unsuccessful counselling

Answer 31

• A conviction of the accessory in all the above situations depends on some other person actually having committed the offence
• however, a counsellor can be convicted of a separate special offence for the very crime of counselling even if the intended perpetrator does not commit the offence counselled

Question 32

Counselling offence that is not committed

Answer 32

• The following provisions apply in respect of persons who counsel other persons to commit offences
  (a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
  (b) everyone who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction

Question 33

(a) mistake of fact

Answer 33

• liability can be negated (or avoided) if the accused makes a relevant mistake, but only if the mistake is of fact, not of law (e.g. you take someone’s umbrella thinking it’s your own)
• such a mistake would negate a mens rea (knowledge that ones action would cause a crime to be committed)
• the accused would commit the actus reus (guilty act), but due to their flawed perception of the facts, without a guilty mind (because controversial in sexual assault cases)
• generally, the mistake need only be honest and not reasonable

Question 34

(b) mistake of law

Answer 34

• ignorance of the law by a person who commits an offence is not an excuse for committing that offence

Question 35

R. v. Campbell and Mlynarchuk

Answer 35

• the accused was convicted for taking part in an immoral performance, contrary to section 163, now the criminal code, for dancing naked at Chez’s Pierre’s in Edmonton
• she agreed to dance totally nude on the basis of the decision of the Alberta Supreme Court that such did not constitute an immoral performance within the meaning of that section
• The decision was subsequently overruled by the court of appeal
• ignorance of the law is not a defence, only mistake of fact is a defence to criminal charge, where can be said that the facts believed by the accused, if true, would have afforded him a defence
• this case was a mistake of law not a mistake of fact
• however, judge granted accused absolute discharge

Question 36

Drunkenness

Answer 36

• intoxication is only a deference to the extent that it contributes to lack of mens rea
• only applies to specific intent crimes (i.e. murder), not general intent crimes (assault)

Question 37

Specific intent vs general intent

Answer 37

• a specific intent crime requires a more sophisticated thought process (theft, robbery)

Question 38

Rules for determining the validity of a defence to drunkenness (Beard)

Answer 38

(i) insanity, is a defence to the crime charged
(ii) evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent
(iii) evidence of drunkenness must prove the above, not just that his mind was affected by drinking so he more readily gave way to some violent passion

Question 39

Is drunkenness a defence to rape?

Answer 39

• the Ontario court of appeal held that drunkenness constitutes a valid defence to crimes in which specific intent is an essential ingredient and that rape is a crime of specific intent
• The British Columbia Court of Appeal refused to follow this decision and held that rape is a crime of general intent only, and therefore, drunkenness could not validly be pleaded in defence

Question 40

Where belief in consent is not a defence - rape

Answer 40

• not a defence that the accused believed that the complainant consented to the activity, where
  (a) the accused’s belief arose from
  (i) the accused’s self-induced intoxication
  (ii) the accused’s recklessness or wilful blindness, or
  (iii) any circumstance referred to in subsection 265(3) or 273(2 or 3) in which no consent is obtained

Question 41

Defences (a) necessity

Answer 41

• The defence of necessity rests on the realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience
• The defence will only succeed where the situation is urgent and of imminent peril, there is no reasonable legal alternative to disobeying the law, there is proportionality between the harm inflicted and the harm avoided
• It excuses but does not justify crime

Question 42

R. v. Perka

- necessity

Answer 42

• The appellant’s were drug smugglers, they were employed to deliver by ship, a load of marijuana worth over 6 million from Colombia, South America to the coast of Alaska
• they were forced to dock in Canada because of severe weather
• when the police arrived on the scene most of the marijuana was on shore
• The appellant’s were charged with importing cannabis into Canada and with possession and for the purpose of trafficking
• A trial, accused advanced the offence of necessity claiming that they did not plan to import into Canada, but wound up there because of the emergency situation

Question 43

(b) Duress

Answer 43

• duress is a particular application of the doctrine of necessity
• in a duress case, a person is intentionally threatened with harm unless they commit a criminal offence
• in a necessity case, a person is exposed to danger (often unintentionally) and decided to commit a crime in response
• for the defence to succeed: there must be a threat of present or future death or bodily harm, the accused must reasonably believe that a threat will be carried out, there must be no safe avenue of escape, there must be a close temporal connection between the threat and the harm threatened, there must be proportionality between the harm threatened and the harm inflicted by the accused, the accused cannot be a party to a conspiracy or association

Question 44

Duress - compulsion by threats

Answer 44

• A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to conspiracy or association whereby the person is subject to compulsion
• this section does not apply where the offence committed is high treason, murder, attempted murder, sexual assault, threats to third-party or causing bodily harm, abduction, robbery

Question 45

R. v. Ruzic

Answer 45

• ruzic, landed at Pearson airport in Toronto carrying a false Austrian passport and 2 kg of heroin strapped to her body
• when charged, she admitted the offence, but claimed that she had done it under duress
• she said that a third-party had threatened to harm or kill her mother in Serbia unless she brought the heroin to Canada
• Her duress claim did not meet the immediacy or presence requirements of the duress defence in section 17 of the criminal code
• however, section 17 violated section 7 of the charter of rights and freedoms and was not saved by section 1
• The jury acquitted the accused

Question 46

R. v. Ryan

Answer 46

• The defence of duress, in its statutory and common law forms, are largely the same
• certain differences remain: The statutory of defence applies to principles, while the common law defence is available to parties of an offence, The statutory version of the defence has a lengthy list of exclusions, where it is unclear in the Canadian common law of duress whether any offences are excluded

Question 47

(c) provocation

Answer 47

• only a partial defence, and only to the charge of murder
• allows for a lesser sentence of murder
• reduces liability for murder to liability for manslaughter
• it is a concession to human weakness
• in order for a provocation defence to succeed, there must have been criminal conduct of the relevant sort: has to have been an offence punishable by 5 years or more, that would have deprived an ordinary person, similarly situated to the accused, of the power of self control (objective component)

Question 48

Two key elements to a defensive provocation reducing what otherwise would be culpable murder to manslaughter

Answer 48

• (1) The person causing death must have done so in the heat of passion, caused by (2) sudden provocation

Question 49

(c) self defence

Answer 49

• self-defence is a justification based defence
• it rests upon the notion that we all have the right to protect ourselves from unlawful force applied by others
• as long as one acts somewhat reasonably
• A person is not guilty of an offence if:
  (a) they believe on reasonable grounds that force is being used against them or that a threat of force is being made against them or another person
  (b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use of threat or force
  (c) The act committed is reasonable in the circumstances

Question 50

R. v. Cadwallader

Answer 50

• the appellant was a 14-year-old boy who killed his father, he testified to over 20 incidents prior to this tragedy wherein his father seemed to want to kill him
• The father yelled “I’m going to kill that bastard” and fetched for a gun and started up the stairs with a loaded rifle
• The boy thought this was it and took his own semi-automatic rifle and shot his father 5 times
• The first three shots were not fatal but the fourth and fifth shot killed the father
• trial judge stated that the extent of force used here is far more than reasonable under the circumstances and convicted him
• however, the appeal was allowed and the conviction was quashed