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General Overview and Preliminary Matters01/11/2013 13:22:00

Sources: Constitution > Statute > judge made common law Any limit of constitutional right must be either demonstrably justified under section 1 of Charter or enacted notwithstanding the freedoms and rights

Frey v. Fedoruk et al. [1950] S.C.R. 517 is a decision by the Supreme Court of Canada on the definition of a breach of the peace and whether being a "peeping tom" is a crime. The Court found that actions do not necessarily breach the peace just because they cause violent reactions. Due to this finding, courts would have less say in determining what is criminal as a breach of the peace, and the Parliament of Canada would have more. As Cartwright said, "I think that if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the Courts.

R v Jobidon - Jobidon killed a man named Haggart, who was celebrating his bachelor party, in a fistfight outside of a hotel bar. The men had fought inside the bar, but had been kicked out and continued fighting outside. Although Haggart was bigger, and trained as a boxer, Jobidon landed one punch directly in Haggart's face, which knocked him unconscious and he fell on a hood of a car. Jobidon then punched him four times in the face. Haggart was in a coma and died after being taken to the hospital. Jobidon stated that he did not know that Haggart was unconscious when he continued to hit him as it all happened so fast. Both men had consented to the fight. The appellant was acquitted at trial but convicted upon appeal. The court does not accept this; they cite s.14 of the Code, which states that you cannot consent to the imposition of death, and therefore this type of assault was not consented to. They also state that to allow an acquittal is contrary to public policy because Parliament wants to eliminate senseless fighting in society. Not only can you not consent to death, you cannot consent to very violent forms of force that clearly extend beyond the ordinary norms of conduct in the circumstances. Sopinka, in the minority, takes issue with what he sees as the majority's attempt to create an offence where one does not exist in the Code by applying the common law; intentional application of force with the consent of the victim.

Rationale: Common law cannot be used to create offences b/c: (1) principle of legality, and; (2) the notion that criminal offences should be clear, certain, and should pre-exist the act being prosecuted


Levis (City) v. Tetrault [2006]: Example of where a defence was upheld in thecommon law. The common law is still capable of raising defences to crimes. Here, the defenceof officially induced error was upheld by the SCC. Facts: 2 parties charged w/ operating motor vehicles w/out paying registration fees. One party raised the defence of officially induced error. Offence: Operating a motor vehicle w/out proper registration Ratio: Officially induced error is an exception to the rule that ignorance of the law (s.19 CC) is no defence. It is created by the common law and must meet a number of criteria for the court to apply it. Held: Ignorance of the law is no defence. However, Court acknowledged that the inflexibility of the rule did raise a concern where the error of accused arose out of anerror of a government official or the State. Therefore, in affirming the decision in Jorgensen the court confirmed that the defence of officially induced error was an exception to the rule that ignorance of the law is no defence (in strict liability offences).The defence itself only allows for a stay, not an acquittal and must be proved on a balance of probabilities. The Common law can deeply influence the way that statutory criminal offences are interpreted

Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences) and to use jail to enforce those regulatory offences, but only the Federal Government can create criminal offences, or true crimes, pursuant to its powers under s. 91 (27) of the Constitution Act, 1867. Canadian provinces do have jurisdiction over the administration of justice within the province under s. 92(15) of the Constitution Act, 1867. For example, the provinces have set up the lowest level of criminal court where the vast majority of cases are actually prosecuted. in keeping with principles of fundamental justice 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice [substantive fairness] 11. Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [ procedural fairness]

Not all Federal Laws are enacted in keeping with powers but are allowed e.g. federal laws regulating the detention of the criminally insane; Parliaments law power in advertising of tobacco, prohibiting marijuana possession Provincial attempts at prohibiting use of streets for prostitution, abortions have been struck down as infringing federal law power i.e. is prime purpose to punish? Strike down; if purpose is to respond to conditions that cause crime? Allowed even if federal version exists e.g. R v Banks (law against soliciting from people in a parked vehicle); R v Dyck (registration of sexual offenders with police) Province have jurisdiction over those sentenced to <2 years and federal governments to more than that.

R v Malmo-Levine - The federal criminal law power is plenary in nature and has been broadly construed suppress evil and safeguard interests. For a law to be classified as a criminal law, it must possess three prerequisites: a valid criminal law purpose backed by a prohibition and a penalty (Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 27). The criminal power extends to those laws that are designed to promote public peace, safety, order, health or other legitimate public purpose. the protection of vulnerable groups has also been upheld under s. 1 as a valid federal objective of the exercise of the criminal law power. In R. v. Keegstra, [1995] 2 S.C.R. 381, we held that the restrictions on free speech imposed by the hate speech provision in the Criminal Code was a justifiable limit under s. 1 because of potential attacks on minorities. The protection of the chronic users identified by the trial judge, and adolescents who may not yet have become chronic users, but who have the potential to do so, is a valid criminal law objective. Butler held, at p. 504, that if there is a reasoned apprehension of harm Parliament is entitled to act, and in our view Parliament is also entitled to act on reasoned apprehension of harm even if on some points the jury is still out. Assault bodily integrity ; Theft property ; firearms prevent risky conduct; drugs prevent harm and standards of socially acceptable behavior designed to denounce and punish inherently wrong behavior and deter risky behavior; Courts consider rehabilitation, incapacitation, reparation for victim and community Regulatory offences purpose is to deter risky behavior and prevent harm

Trial and Trial Courts Provincial court judges (in magistrates courts) cannot sit with a jury & summary convictions and provincial offences can only be punished by up t 6 months in prison or 2000 in fines; offences such a sexual assault if prosecuted by summary can be up to 18 months in prison Hybrid Offences if elect to prosecute as summary, accused not entitled to preliminary inquiry or jury trial but maximum punishment is limited Those under 18 are prosecuted in Youth Court (provincial court)

Only federally appointed superior court judges can sit with a jury in the Superior Court, Supreme Court or Queens Bench. Murder must be tried in Superior Court

Appeals and Appellate Courts 3 or 5 judges Appeal grounds 1) conviction unreasonable and cannot be supported by evidence 2) conviction a miscarriage of justice 3) trial judge made an error of law (appeal on this ground can be denied if no substantial wrong or miscarriage of justice ) Supreme Court has nine judges- question of law or any mater of law of national importance.

Canadian Charter of Rights and Freedoms subject to s. 1, the reasonable limitations clause, and the seldom-used s. 33 notwithstanding clause. Section 52 of the Charter can be used by courts to invalidate offences that Parliament has created. S24 provides remedies for Charter violations Division of Powers and Charter Compared Sunday Closing laws requiring a rest day allowed under s1. But later repealed due to public opinion Protected rights: A) Search and seizure s 8 reasonable expectations of privacy contextual e.g. dog searches invade privacy of students (R v AM); use of technology to detect heat arising from homes for drug enforcement allowed as technology does not permit inferences about precise activity (r v tessling); garbage searches allowed ( r v Patrick) Only those that operate in regulatory context have diminished privacy. Others need warrants unless there is imminent danger that evidence will be destroyed or someone harmed. Searches incident to an arrest are allowed but do not include DNA. There needs to be reasonable and probable grounds for concluding that a strip search is necessary ( R V Golden). Searches must be authorized by reasonable law (R v Collins). Wearing a wire without a warrant violates was followed by enactments that allowed judges to issue warrants and also authorizing the us of wires without warrants in urgent situations and to prevent bodily harm (Duarte). Evidence is not automatically excluded- judges apply a three part test that examines violation seriousness, impact of violation on Charter interests and societys interests in adjudication on the merits. Keep in mind repute of administration of justice and good faith behavior.

B) Arbitrary Detention and Imprisonment s9 R v Grant Police stops saved by s 1 if done for traffic safety (Hufsky). Not detained in emergencies or accidents or if merely asked name (Grant). Reasonable suspicion allows by investigative detention that is not arbitrary. If violated, same recourses but see Grant where evidence not excluded. Court can reduce the accuseds sentence in response to a violation. A detained person allowed to seek habea corpus under 10(c). [11(e)]. Any just cause provision allowed because maintenance of confidence in the administration of justice was a legitimate object of the bail system [ Dissent in R v Hall regarding similar vagueness of provision]

C) Right to Counsel s 10(b) Roadside detention saved by s1 on grounds of traffic safety (R v Thomsen); No requirement of present counsel on questioning once counsel put forth ; waiver able right ; Can be excluded but not automatic S10(a) requires accused to be informed of reason for arrest or detention; Right was violated when accused believed detention for drugs and not murder (Evans); right to silence less so in regulatory and terrorism contexts

D) Entrapment R v Mack 1988 allowed defence of entrapment and must be established by accused on a BOP with the judge deciding whether it has been made out as they are the best to determine whether the activities bring administration of justice into disrepute [ inducing the commission of a crime] In Mack, reasonable suspicion to conduct the drug sting allowed due the accuseds convictions. In Barnes, despite no reasonable suspicion due to general and subjective presumptions, entrapment not allowed as police was acting to a bona fide inquiry into criminal activity by offering a person opportunity to commit a crime because they were at a particular place; Must examine proportionality of state conduct.

Charter and Criminal Trial Process A) Disclosure all evidence ; prosecution can delay disclosure for legitimate reasons like protection of informers; SC ordered medical and therapeutic records to be disclosed regardless of privacy and equality in a sexual assault trial (R v Carosella) legislation later enacted restricting accuseds access to personal records of complainant in sexual assault trials.; Can award costs or new trials as remedies of violations

B) Right to Full Answer and Defence Parliament s.276 in relation sexual assault and disclosure of sexual reputation of complainant in relation to mistaken belief in consent defence. [ held consistent with accuseds rights in R v Darrach] C) Trial in a Reasonable Time 11(b) after charge, if not complied with than stay of proceedings depends on length of time (8-10 months or more), explanation of delay, waiver of rights by consenting to delay, suffering prejudice

D) Pre-Trial Publicity CC provides for mandatory publication bans at accuseds request allowed as reasonable limit of F of expression; must consider alternatives in discretionary situations and balance the various interests

E) Right to a Jury Trial 5 years or more has right to jury trial under 11(f) can be denied upon failure to show up; Selecting the jury can challenge prospective juror for cause e.g. racial bias; the last two jurors called determine impartiality

F) Right to be presumed Innocent (i) BARD- derived from evidence or a lack of evidence closer to absolute certainty than BOP (ii) The substitution of one element for an essential element of the offence violates 11(d) unless if upon proof of RD of the substituted element it would be unreasonable for the trier of fact not be satisfied BARD of the essential element [Oakes on persuasive burdens[ (iii) presumption applies to elements of offences, collateral factors and defences subsequent To Whyte, the Court held that requiring an accused to prove a defence on a BOP violates 11(D) because it allows a conviction despite RD about a factor essential for a conviction. must have a compelling objective; Still however, exists e.g. in the defence of automatism iv) Evidential Burdens and Mandatory Presumptions violates 11(d) R v Downey the provision that required the trier of fact to conclude in absence of evidence to the contrary that an accused was guilty of living off the avils of prostitution allowed under s(1) due to the lack of testifying prostitutes against their pimps and the ease in which an accused to establish and prove a relationship with the prostitute v) Threshold Air of Reality Tests automatism and extreme intoxication

Charter and Substantial Criminal Offences and Defences A) Fundamental freedoms s 2(b) freedom of expression ; e.g. solicitation for prostitution is a violation but saved but s 1; similarly child pornography; prohibition on willful promotion of hatred against and identifiable group

B) Principles of Fundamental Justice s 7 ; e.g. R v Morgantaler offence where abortion was done or provided without the consent and approval of a hospital committee violated s 7 procedurally unfair because of geographic differences in availability of committees; Rodriguez v BC assisted suicide was prohibited and did not violate fundamental justice Test : Does the principle constitute a 1) legal principle 2) there must be consensus that the rule or principle is fundamental to the way the legal system ought fairly to operate and 3) the rule or principle must be identified with sufficient precision to constitute a manageable standard to measure the deprivations [rules out harm principle but allows youths lessened culpability] C) arbitrariness and disproportionality Malmo-Levine marijuana offence upheld (two judges dissented it as being disproportionate] not very willing to strike down ; AG v Bedford bawdy house and living off the avails were disp. And overbroad but were balanced and allowed

D) Moral Innocence and Absolute Liability R v Hess stat rape of girl under 14 was violation when they had no mens rea replaced by legislation E) Negligence does not violate s7 in Creighton (manslaughter) as less serious than murder and does not have a similar stigma s7 not violated so long as 1) mens rea and available penalties reflect nature of crime and stigma 2) punishment proportionate to moral blameworthiness and 3) those who harm intentionally punished more severely than unintentionally

F) lack of correspondence between actus reus and mens rea not a s7 violation Creighton

G) Defences use of reasonable force to correct child or pupil s 43 of CC does not violate s 7 H) Moral Involuntariness r v ruzic

R v. Heywood [1994] SCC-Example of where the Courts have struck down a criminal offence Facts: A man, who had previously been convicted of sexually assaulting children, was arrested for loitering at or near a playground. This was an offence of vagrancy under s.179(1) (b) CC. He had been spotted several times near the playground with a camera with a telephoto lens, which he took photos of children with. Heywood argued that the law violated his s. 7 (liberty), 11(d) (presumption of innocence), 12 and 15 Charter rights. Court found a violation of 7 and11(d) which could not be justified under s. 1. Offence: s. 179(1)(b) crime of vagrancy Held: Section 179 was overboard and therefore violated s. 7 Charter and could not be saved by s. 1. The case turned on the interpretation of the word loiters. The court found that the interpretation of this word violated the principles of fundamental justice as it was more restrictive than necessary and was applied too broadly. This is because it applied without prior notice to the accused that it applies to too many places, to too many people and for an indefinite period of time with no possibility of review. Over breadth Analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. if greater, against fundamental justice

R. v. Oakes Facts: Oakes was found with eight one-gram vials of hash oil and $619.45. He claims that he had had ten vials for his own use, and that the money was leftover from his workers compensation cheque. He was charged with "possession of drugs for the purposes of trafficking" under s.8 of the Narcotic Control Act. The section stated that a person was presumed to be in possession for the

purposes of trafficking unless the accused can "establish" (prove on a balance of probabilities) that they were not in possession for this purpose. Issue: Provision instituted presumption of guilt against s11(d) Ratio: By Dickson: There are three rights inherent in s.11(d) of the Charter: (1)you must be proven guilty beyond a reasonable doubt; (2) the Crown must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with lawful and procedural fairness. Federally enacted statutes are still subject to the Charter, even though they are enacted by Parliament. To test if a section is saved under s.1: (1)the section must fulfill an objective related to concerns which are pressing and substantial in a free and democratic society; and (2)the means chosen must be reasonable and demonstrably justified. Proportionality test: (1) the means must be fair and not arbitrary, designed to achieve the objective, rationally connected to that objective, and the means should impair the right in question as little as possible; (2) there must be proportionalitythe more sever the deleterious effects of a measure, the more important the objective must be. If not saved, courts can strike down unconstitutional offence, terminate a prosecution through a stay in proceedings or exclude relevant evidence obtained through the violation.

The Charter can also be used as in important interpretive tool. Even when it is not used to strike down a provision, it is the practice of courts to permit constitutional values to influence the way statutes are interpreted.

R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80, was a decision by the Supreme Court of Canada on criminal indecency. The decision upheld consensual group sex and swinging activities in a club and alleged bawdy-houseas being consistent with personal autonomy and liberty. In determining whether Mr. Labaye was truly guilty of owning a bawdy-house, the Court had to decide whether the activities taking place within should be classified as indecent. At any rate, in R. v. Labaye, the Court approved of the harm-only approach and wrote that "Harm or significant risk of harm is easier to prove than a community standard" of decency. The Court went on to establish more guidelines as to how to measure harm. The Court wrote that what is indecent under the Criminal Code is what is contrary to principles in constitutional or other important laws. The whole of society has beliefs on what it needs to operate; the beliefs of individuals or certain political beliefs that something might be harmful is, in contrast, not enough. Moreover, the harm in indecency must be serious.

A lengthy dissent was written by Justices Michel Bastarache and Louis LeBel. The dissenting justices criticized the majority's definition of indecency as "neither desirable nor workable," since it did not follow certain precedent and discarded the "contextual analysis of the Canadian community standard of tolerance". While harm is an important consideration, that does not mean Canadians would be able to accept certain sexual conduct. Standards can be drawn upon "principles of social morality drawn from legislation." Moreover, the importance given to harm in R. v. Butler was "adopted to fill a vacuum," to connect past case law regarding community standards to views that some material encourages sexist attitudes, and "it does not follow from Butler, Tremblay andMara that the courts must determine what the community tolerates by reference to the degree of harm alone." In this particular case, the dissenting justices believed that the screening out of people who did not want to see the sexual conduct was not rigorous enough, and that "The community does not tolerate the performance of acts of this nature in a place of business to which the public has easy access."

Classification of Offences In Canada, criminal offences are divided into two general categories: indictable offences and summary (or summary conviction) offences. Offences can be hybrid in the sense that the prosecutor has the right to elect whether to treat the offence as indictable or summary. The classification of offences has important implications for the penalties that are possible, and for the procedure that will be used, including the mode of trial. For example, jury trials are not available for criminal offences prosecuted by summary conviction and are also precluded for indictable offences listed in s.553 of the Code as being in the absolute jurisdiction of provincial court judges. Summary offences have a limitation period of 6 months while indictable offences have none. Summary: information provincial court (sentencing 6mnths 18mnths or $2000 max) provincial jail Indictable: information PI in Provincial indictment Trial in Superior Court federal penitentiaries

Interpretation Definitions - The Criminal Code has definitions for many of the terms used but they are not always easy to locate. Section 2 contains definitions that apply throughout the Code. The Code is divided into Parts, and at the beginning of each Part, there will be a definition section that applies solely to that Part. Sometimes definitions are found in or around the relevant statutory provision to be interpreted. Strict Construction - Historically, criminal statutes were interpreted strictly in favour of the liberty of the accused. In other words, the accused would get the benefit of the doubt or ambiguity in matters of interpretation. This principle continues to apply but has been heavily modified by the purposive interpretation.

R. v. Pare - Ratio/Legal Principle: - "while committing", as read in s. 214(5) of the criminal code, should not be read literally, as this does not appear to be a reasonable reading of the words attributed to Parliament- Murder was part of the same transaction and continuous sequence of events that a murder committed 2 minutes after assault is still within the offence no reasonable ambiguity

Facts: - D is 17 years old - D met a 7 year old boy - Boy stated that he would tell his mother, at which point D threatened to kill him if he did - D then held boy down for two minutes before strangling him with his hands and a shoelace, and hitting him on the head several times with an oil filter Reasoning: - The literal meaning of could be determined either contextually or acontextually, and as such, they may have one meaning when disembodied from the criminal code, but another meaning altogether when read within the context of the scheme and purpose of the legislation. This latter is the meaning that needs to be ascertained

R v Russell takes it further and holds that the underlying offence could be committed against a third party and not the person murdered calling Pare narrow and restrictive

Purposive Interpretation - Canadian law makes liberal use of purposive interpretation, in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole, with the underlying purpose of the provision in mind so as to best accomplish its underlying purpose, always bearing in mind that the limit on purposive interpretation is that damage cannot be done to the language employed

Each version is equally authoritative, and ambiguities in one language can be clarified by the other.

Canadian Foundation for Children, Youth & the Law v. Canada (A.G.) (2004) Rule: While s. 43 adversely affects childrens security of the person (s. 7), it does not offend a principle of fundamental justice (s. 1proportionality test); reasonable corrective force s. 43 is not unduly vague or overbroad because the force must be for educative or corrective purposes (vagueness), and reasonable under the circumstances is not broad because s. 43 will not impugn force that results in harm or the prospect of harm; s. 43 is a qualified immunity applicable to parents, teachers, and those standing in the

shoes of parents in instances where they use reasonable corrective force on a child between the ages of 2 and 12.

Elements of a Criminal or Regulatory Offence01/11/2013 13:22:00

The physical elements or actus reus of the offence (the act that must be performed or omission that is proscribed, the circumstances or conditions in which the act must occur, and any consequence that must be caused by the act); and The mental or mens rea elements of the offence. In Canadian law, the mental elements normally describe the actual or subjective state of mind of the accused (things such as intent, or planning and premeditation, , or knowledge, or willful blindness or recklessness.). It is becoming increasingly common, however, to produce offences that have an objective mens rea, such as negligence. Objective mens rea is determined not according to the state of mind of the accused (the subject), but according to what a reasonable person in the position of the accused would have known or foreseen.

ACTUS REUS Act - R. v. J. (D.), (2002) Issue: The appellant appeals forcible entry conviction. Rule: Forcible entry (CC s. 72) requires (1) entry by the accused, (2) into property of another, (3) in a manner likely to cause a breach of the peace or reasonable apprehension thereof. Analysis: The offence requires entry causing a breach of the peace because of some interference with possession of the property by the rightful owner. Conclusion: Because the appellant did not interfere with possession of the property nor did he breach the peace, the conviction is set aside.

Acts Must be Voluntary or Willed The act described by the offence must be voluntary in the sense that it must be the willed act of the accused.

The Act of Possession - At times part of the actus reus for an offence has an inherent mental element to it, as it does with the important element, common to many offences, of possession. This concept demonstrates that the divide between the actus reus and mens rea is not always a solid one. - R. v. York (2005)law of manual possession Although the appellant had (1) physical control of (2) goods he knew were stolen, he did not (3) take custody of the objects willingly and (4) did not intend to deprive the rightful owner of the goods. - R. v. Marshall (1969)concept of constructive joint possession. Rule: Knowledge and consent under CC s. 4(3)(b) must co-exist with some measure of control over the subject matter. Conclusion: Although the appellant had (1) knowledge that a narcotic was possessed by another person in the vehicle, he did not have control over the drugs, not did he (3) consent to the drugs possession. - R v Terrence, [1983] 1 SCR 357 Facts:

Terrence goes for ride with another person in their stolen car. Terrence is in the passenger seat, while the other person drives. There was no evidence to Terrence that it had been stolen. Issue(s): What is necessary to meet the requirements of possession in s.4(3) of the Criminal Code (Canada)? Ratio: In determining possession, per s.4(3) of the Criminal Code, there must be evidence of control to prove the unlawful act. Analysis: Terrence was not driving. He therefore did not meet the requirement of control. Holding: Decision in favour of Terrence. Comments: There are three types of possession defined in s 4(3) 1. Personal; 2. Constructive (e.g. illegal material in a locker; control over something); or 3. Joint (possession with someone else). To be in possession, requires: 1. Knowledge of the criminality associated with the item; 2. Consent (per Marshall v R (1969)); and 3. Control (per R v Terrence (1983)).

- R v Morelli, 2010 SCC 8, [2010] 1 SCR 253 In this case, the Supreme Court of Canada (SCC) dealt with what it means to possess pornography under the Criminal Code of Canada (CCC). A computer technician noticed links to child pornography websites on the computer of the accused when installing high-speed Internet. The Supreme Court determined that the links did not amount to possession of child pornography. The Court wrote, in order to commit the offence of possession (as opposed to the offence of accessing), one must knowingly acquire the underlying data files and store them in a place under ones control.

Consent as an Element of the Actus Reus - Often the question of absence of consent by the victim is an important actus reus condition that must be present for offences to occur. R. v. J.A. (2011)Conscious consent. Rule: A person commits sexual assault if he touches another person in a sexual way without her consent. Consent requires a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act. Analysis: when the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity

that occurs. The complainant is not required to express her lack of consent for the actus reus to be established. There cannot be advanced consent to sexual touching. On May 27, 2007, J.A. and his long-term partner, K.D., began having consensual sexual activity together. During the sexual activity, K.D. consented for J.A. to choke her as part of the sexual activity. K.D. lost consciousness for approximately three minutes, and she understood this might happen when she consented to being choked. While K.D. was unconscious, J.A. tied K.D. up and performed additional sexual acts on her. In her testimony, K.D. was not clear whether she knew or consented to that sexual activity J.A. performed on her while she was unconscious. After K.D. regained consciousness, she and J.A. continued having consensual sexual activity. On July 11, 2007, K.D. made a complaint to the police, saying that the activity was not consensual, although she later recanted her statement. J.A. was charged with aggravated assault, sexual assault, attempting to render a person unconscious in order to sexually assault them, and breaching a probation order. In coming to their conclusion, the majority noted the following: Consent in advance is not a defense, as a person must be able to withdraw their consent during the sexual activity in question. The rule only applies to consent in cases of sexual assault. Although this may lead to an odd interpretation, such as one partner kissing the other partner while they are asleep, the majority found that this was Parliament's intention, and it cannot be overruled without a constitutional challenge. (See Canadian Charter of Rights and Freedoms#Interpretation and enforcement.) The dissent found a number of problems with the majority's interpretation: It would deprive women of their freedom to engage in sexual activity that does not result in bodily harm. It would mean that cohabiting partners, including spouses, risk having one partner commit a sexual assault when that partner kisses or caresses their sleeping partner, even with that sleeping partner's prior express consent. The dissent found that absent a clear prohibition in the Criminal Code, a conscious person can consent in advance to sexual activity to take place while they are unconscious, provided there is no bodily harm, and provided the sexual activity did not go beyond what was agreed to.

R. v. Mabior man having sex when HIV positive - people must now disclose their status before having sexual relations that pose a realistic possibility of HIV transmission. But in the Courts view, a realistic possibility encompasses almost any risk, no matter how small. Consent is judged by and is dependent on the subjective perceptions of the complainant even if they are uncommunicated or unreasonable.

R v Cuerrier the actions of the accused must be judged objectively to determine whether a reasonable person would find them dishonest + a person had a duty to disclose if the failure presented a significant risk of serious bodily harm (HIV positive status) + it must be proven that the complainant would have refused to have unprotected sex if the accuseds HIV status was disclosed.

Coincidence of AR and MR Fagan simultaneous act approach or duty to rectify when creating a dangerous situation R v Meli one transaction approach kill and threw over cliff applied in R v Cooper where drunk man strangled someone for 2 minutes but may have blacked out in between Relationship between intoxication and general intent offences where becoming drunk fault replaces intent in general intent offences Majewski Negligence offences also do not have coincidence but are justified in prevent harm

Causation - Where the relevant offence prescribes a consequence that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt. R. v. Williams [2003] - Williams began an 18-month relationship in June 1991 with a woman who was eventually the complainant in this case. They had unprotected sex on numerous occasions. On 15 November 1991, Williams learned that he had recently tested positive for HIV. The complainant received a negative test result a few days later. However, the Court acknowledged that at the time she was tested, Williams may have already infected her and she may have been in the window period between infection. After Williams learned of his positive diagnosis, he did not disclose to his partner either that he had been tested for HIV or that he had tested positive. The relationship continued for another year and included unprotected sex. The Court of Appeal went on to analyse whether Williams was guilty of the offence of aggravated assault, which further requires that the assault endangers the life of the complainant. It determined on the evidence that the complainant might already have been infected through unprotected sex with Williams before he learned he was HIV-positive. The Court therefore agreed that it could not be proved beyond a reasonable doubt that Williams conduct, after learning he was HIV-positive, endangered her life through the risk of HIV infection. thus charged with attempted aggravated assault instead of aggravated assault.

R. v. Nette, [2001] - A 95 year-old widow was robbed and left hog tied in her room with a ligature around her neck. Over a period of 48 hours she suffocated to death. Doctor testified that a number of factors contributed to Ls death. Arbour, writing for the majority, states that the Smithers test applies for all forms of homicide and the additional test used in R v Harbottle applies in the case of first degree murder, rather than to all forms of homicide. On the topic of jury instruction, she held that it is better to state the test

positively as a "significant" cause rather than negatively and that this is really the same concept as de minimus, which they take to mean a cause that is "not insignificant". McLachlin, in the dissent, while agreeing in the conclusion, has a serious problem with the changing of the phrasing in the jury instruction from "not insignificant" to "significant". They say that this new test creates a much higher threshold of causation than the Smithers test, and that there is more than a semantic difference between "significant", "not insignificant", or "more than trivial". Ratio: 1. Did they commit murder were they a significant contributing cause to death (Smithers). 2. If yes decide if 1st or 2nd degree murder 3. Then look at whether they were a significant contributing cause or a substantial and integral part of death (Harbottle) 4. If yes to second part then guilty of 1st degree murder (if it was planned and deliberate as well), if not guilty of 2nd degree murder Must show that they caused the death both on fact and law Factual causation inquiry about how the victim came to her death medical, mechanical and physical sense Legal causation (imputable causation) should the accused be held responsible in law for the death that occurred give his level of involvement? In determining whether and accused is guilty of 1st or 2nd degree murder 1st step for trier of fact is to determine whether murder has been committed pursuant to ss.229 or 230 Then the next question is whether the offence should be classified as 1st or 2nd degree murder in accordance with criteria set out in s.231 (considering Harbottle standard) FACTUAL CAUSATION : Mechanical connection - Test But for (necessary) LEGAL CAUSATION: Degree of participation Significant cause (de minimis) or Substantial and integral part Remoteness (people acting out of self defence dont break chain of causation)

Smithers v Her Majesty The Queen, [1978] 1 SCR 506 Facts: Hockey game. S challenged C. S punched C then kicked him very hard in stomach. C dies 5 min later. Cause of death was aspiration due to vomiting. Dr at trial said that the kick very probably caused vomiting and could have caused C to aspirate the vomit Issue(s):

Has the appellant committed homicide and whether such homicide was culpable for the reason that it was caused by an unlawful act? Ratio: Test for legal Causation Contributing cause beyond the de minimis range, they can be said to have legally caused to incident. Even if death is unexpected and the physical reactions of the deceased unexpected, if the accused intended to do grievous bodily harm to the deceased, that could be enough to show causation Analysis: The answer to whether A caused B is a factual question About actual mechanical link between accused and forbidden act Expert evidence is admissible to establish factual cause Purely diagnosis do not require them to distinguish between what is a cause and what is a condition It is no defence to manslaughter charge that the fatality was not anticipated or that death would not ordinarily result from the unlawful act Holding: Causation was proved Comments: Causation requirement can be made out for the full extent of the unlawful consequence regardless of the fact the complainant has a thin skull. But what about s 7 issues infringing fundamental justice? Approach approved in r v cribbon as not infringing

R v Reid - (2003), 180 CCC (3d) 151 (NSCA) CB 352 Facts Everyone was drunk R & S got in a fight with M S put M in a sleeper hold and R kicked him M went unconscious The kids immediately began an attempt at resuscitation M was pronounced dead on arrival Cause of death was aspiration of stomach contents induced by resuscitation Issue Does the resuscitation break the chain of causation? Holding Yes. Reasons (Saunders JA) Trial judge was not clear enough when instructing jury on intervening events

The resuscitation broke the chain of causation Different from subsequent surgical intervention causing death (usually wont break the chain) rescue attempt was by young bystanders who were drunk Sleeper hold likely didnt kill M, had they left him he would probably have come to Judge should give jury examples of intervening acts (beaten unconscious in building, earthquake causes building to collapse resulting in death) Instructions Was the act a significant contributing cause of death Were there any intervening causes resulting in the death? Are you satisfied beyond a reasonable doubt that the actions are so connected to the death that they can be said to have had a significant causal effect which continued up to the time of death, without having been interrupted by some other act or event? Ratio Judge must be clear on intervening act. Actus reus must continue to have causal effect until death.

R. v. Maybin (M.L.) et al. 2012 SCC 24 Criminal Law - Manslaughter - Causation Brophy was at a pub, standing beside a pool table talking, when he moved one or two of the pool balls. The pool-players, brothers Matthew and Timothy Maybin, repeatedly punched him in the face and head. Timothy struck a blow that rendered Brophy unconscious. The pubs bouncer, Gains, arrived on the scene within seconds. Gains punched Brophy in the head, and carried him outside, leaving him on his back. Brophy died later that afternoon. Medical cause of death was bleeding in the brain. The Maybin brothers and Gains were charged with manslaughter. The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. C97, acquitted all three. The trial judge concluded that the Maybin brothers and Gains, acting independently, committed separate assaults causing bodily harm. The trial judge also found that he was unable to determine whether any or all of them had caused Brophys death. The Crown appealed, alleging that the trial judge erred in law in analyzing the issue of causation; for that reason, there had to be a new trial. The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, in a decision reported at 295 B.C.A.C. 298; 501 W.A.C. 298, allowed the appeal of the acquittal of the Maybin brothers and ordered a new trial. Had the trial judge correctly applied the law as it related to causation, he could have concluded that the brothers caused Brophy bodily harm in a situation where it was not unforeseeable that further non-trivial harm would be caused by the actions of others. The court dismissed the appeal of the acquittal of Gains. The Maybin brothers appealed. The Supreme Court of Canada dismissed the appeal. The court agreed with the majority of the Court of Appeal that in the circumstances of this case, it was open to the trial judge to find that the Maybin brothers caused the death.

R v Talbot (2007 Ont CA) and Charter Note CHARGE: Death FACTS: Fight. punches the victim, arguably in self defence. Victim falls back and fractures his skull.The then kicked him in the head while he was on the ground. He dies. Doctor testified that it was the fractured skull from the fall that killed him. ISSUE:Whether the caused the death of the victim. HOLDING: Not guiltypunch was self defence. Kick could not be proven to be a contributing cause of death. REASONING: Juries should be asked to deal with the legal and factual causation inquiries together. The jury is asked to decide whether the accused actions significantly contributed to the victims death. A contributing cause is one that exacerbates an existing fatal condition that was not found here. Cr own could only suggest that the blow from the let to some unquantifiable possibility that was less than a likelihood that the kick exacerbated the internal head injuries. RATIO: Expressed preference for the language of significant contributing cause but left open

Omissions - Some offences do not require a positive act by the accused. Rather, they can be committed by a showing that the accused failed to act, or omitted to act. Whether an offence can occur by omission is a question of construction. To be guilty by omission (1) the offence must contemplate guilt for omissions, (2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and (3) the omission in question must be a failure to fulfill that legal duty.

Moore v. The Queen, [1979] 1 S.C.R. 195 Facts: Officer said M ran light on bike. Tried to pull him over. M wouldnt pull over. Charged with obstructing justice s. 129 (b) omission to help a public officer in the execution of his duty He could have arrested him and used - s.495(2)(d) can arrest to establish the identity of the person this a less serious option Issue(s): Is M guilty of obstructing a police officer? Ratio: Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute, or by contract. Analysis:

Narrow View: A person obstructs justice that satisfies s.129 (b) if he fails to indentify himself to an officer, when he was seen committing a crime. Broader View: A person can obstruct justice, in the terms of s.129(b), if he fails to act in a way convenient to an officer. Majority Under the Motor Vehicle Act every driver of a vehicle and every pedestrian shall obey the instructions of an applicable traffic-control device. Say it is a major inconvenience (not in public interest to inconvenience the police) this is absurd but is the law Dissent Any duty to identify oneself must be found in common law or by statute. The fact that a police officer has a duty to identify a person suspected of an offence says nothing about whether the person has the duty to indentify himself on being asked They are entirely independent Criminal law is no place within which to introduce implied duties, unknown to statute and common law, breach which subjects a person to arrest and imprisonment Holding: M had a duty to give S his name, he was obstructing Ss performance

R. v. Peterson, (2005)s. 215 of the Criminal Code imposes a duty to every one who is in charge of a person unable, by reason of detention, age, illness, mental disorder or other cause to provide necessities of life. Failure to do so is an omission to act

R. v. Browne (1997)s. 217 of the Criminal Code creates a duty if a person undertakes to do an act, where an omission to the act is or may be dangerous to life. Facts: The appellant was charged with criminal negligence causing the death after his drug dealing partner ingested a bag of crack cocaine to avoid detection by the police. The Court of Appeal found that an undertaking must generally be something in the nature of a commitment upon which reliance is reasonably placed. Rule: The mere expression of words indicating a willingness to do an act cannot trigger a legal duty. Conclusions: There was no evidence that the appellant knew his partner was in a life-threatening situation until it was likely too late. Further the statement Ill take you to the hospital does no t constitute an undertaking.

House of Lords Miller case creating a dangerous situation


As indicated, subjective mens rea focuses on the actual state of mind of the subject of the prosecution, namely, the accused. Since what someone thinks or wants or knows is personal to him unless communicated, subjective mens rea ordinarily must be gleaned circumstantially, including by using the common sense inference that persons usually intend the natural consequences of their acts. Since the state of knowledge is not often manifested circumstantially the way apparent intent is, the law will assume that the accused knew of the elements of the offence unless defence of mistake of fact. It is a close exercise of construction to see what mental states are required by a particular offence. If an offence is explicit and specifies the relevant state of mind, then only that state of mind will suffice. This is why assault contrary to section 265 requires intentional touching, and not simply reckless touching. Many offences do not specify the relevant mental state. If a true crime is silent as to the mental state and the offence requires a consequence, it is presumed that intention or recklessness in bringing out the consequence will suffice. Again, subject to exception (see for example C.C. s. 150.1) where an offence sets out conditions or circumstances that have to exist, the accused must, as a general rule, know that those conditions or circumstances exist before the offence can be committed, although the mens rea known as willful blindness can substitute for full knowledge.

Intention, and Ulterior Mens Rea - The accused must have the very intention required by the relevant provision. Motive of avoiding harm does not negate intent (Hibbert) R. v. Vandergraff - (V intended to throw the object, but not make contact with the victim, and therefore the assault was not intended. The assault provision, s 265, requires the intentional application of force to the person) R v Murray - M intended to hold the Bernardo tapes, but not for the purpose of wilfully attempting to obstruct justice (s 139(2)), and therefore he could not be found guilty. Wilfully constitutes the mens rea is the act is done for the purpose of obstructing the course of justice. This is a specific intent offence and the onus is on the Crown to prove that Murray, when he secreted the tapes, intended to obstruct the course of justice R. v. J.S.R. (2008)The accused intended to shoot into a crowd, with the intent to kill a human, but not the human that he killed Issue: Did the accused have the requisite intention to be charged with murder? Rule: The accused must mean to cause the death of another human to be charged with murder. Analysis: Because the accused shot into an open crowd to kill another person (factual), knowing that shooting was likely to cause death (imputed/legal), and substantially contributed (depending on the evidence to be revealed at trial), he could be charged with murder. Conclusion: The charge should proceed to trial.

R v Roks - In Roks, the Court of Appeal stresses the importance of knowing that death is probable and warns of the dangers of reasoning backwards from the fact that death occurred.

Subjective Mens Rea with Objective Features- For example, the accused can commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction of that nature is dishonest. If it were otherwise objective dishonest people would be held to lower standards than the rest of us. R. v. Throux, [1993] 2 S.C.R. 5 Facts: T was business man. Sold homes to buyers. Claimed had insurance program. Made false representations that the deposits were insured. House not built. People didnt get deposits back Issue(s): Does the fact that T honestly believed the houses would be completed negate the mens rea of the offence? Ratio: Elements of Actus Reus of Fraud (s.308(1)) : dishonest act and deprivation (Olan) Deprivation of money, security, or property (also imperiling of is sufficient) Established by proof of loss, prejudice, or risk of prejudice Dishonest act by: Deceit Falsehood Other fraudulent means (Whether reasonable person thinks act is dishonest) objective standard Elements of Mens Rea of Fraud Accused knowingly undertook the act which constitutes the falsehood, deceit, or other fraudulent means (subjective knowledge of dishonest act), AND The accused was aware that the deprivation could result from such conduct (element of risk) (subjective knowledge of deprivation of another) Analysis: For fraud by deceit or falsehood all that need be determined is whether the accused, as a matter of fact, represented that a situation was of a certain character, when, in reality, it was not. Test for Mens Rea is Subjective Whether the accused subjectively appreciated those consequences at least as a possibility (looks to intention and facts as the accused believed them to be) T believed that no such risk would materialize he thought the houses would be built o But he told them something he knew to be false, he knew his act was depriving them of insurance protection Holding: T was guilty of fraud

R. v. Chase, [1987] 2 S.C.R. 293 Facts: C was struggling with 15 yr old girl, touching her breasts Issue(s): What is the meaning of sexual in terms of the Code for sexual assault? Ratio: Sexual assault is an assault, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. Test: Is the assualt committed in circumstances of a sexual nature, such that the integrity of the victim is violated? objective test (reasonable person look at the totality of the circumstances) Analysis: Circumstances to look at when doing the test include: The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, will be relevant, the intent of the accused (not a determinative factor, but one that should be considered) Holding: It was a sexual assault

Knowledge e.g. s229(c), As indicated, bearing in mind what is said above about standards of criminality, the accused must generally know that the conditions of the actus reus exist. For example, an accused cannot be convicted of assaulting a police officer if she does not know the victim is a police officer. Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume the accused knows of the relevant conditions, unless the accused presents a mistake of fact defence. R. v. Ewanchuk (1999)the accuseds state of mind is not relevant and only becomes so when a defense of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. Issue: Did the accused have an honest belief in consent found to be mistaken giving rise to the defense of mistake of fact ? Rule: (1) The trial judge must determine whether there is any evidence that exists to lend an air of reality to the defence. If there is an air of reality, the trier of fact must answer whether the accused honestly believed that the complainant had communicated consent. (2) To be honest, the accuseds belief must not be reckless, willfully blind or tainted by the awareness of any of the ss. 273.1(2) and 273.2 factors force, fear, threats, fraud, authority, etc. (3) If at any point the complainant expressed a lack of agreement to engage in sexual activity, the accused must point to some evidence from which he could honestly believe consent had been re-established. Analysis: (1) A belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire is not a defense. Here the accused knew that the complainant was not

consenting before each encounter. The trial judge should have considered if anything happened between the non-consent communication and the subsequent touching which the accused could have honestly believed constituted consent. There was no air of reality. (3) Whether the accused took reasonable steps to ascertain that the complainant was consenting is a question of fact to be determined by the trier of fact only after the air of reality test has been met. Conclusion: The accused did not have consent and there was evidence introduced that the judge could point to that provided an air of reality to the defence of mistake of fact. Major, writing for the majority, held that there was no defence of "implied consent" to sexual assault and overturned the ruling of the Court of Appeal. The accused must raise a reasonable doubt that there was consent. Consent can be shown in one of two ways: the "complainant in her mind wanted the sexual touching to take place"; or "the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused". L'Heureux-Dub, in a concurring judgment, held that the defence could not be used unless the accused took sufficient steps to ascertain consent. Here, the accused did not make any attempt to ensure that the accused had consent when he moved from a massage to sexual touching. She also castigated McClung's opinion severely, arguing that it relied on myths and stereotypes about women and sexual assault.

R. v. Levigne (2010) Issue: Rule: An accused is presumed by law, in the absence of evidence to the contrary, to have believed he was communicating with an underage sexual target and, under subs. (4), it is not a defence to charge the accused believed that the person was not underage, unless he took reasonable steps to ascertain the age of the person. Analysis: The accused acknowledged that he did not take reasonable steps to ascertain the targets real age and testified that he did not believe he was 13 because his online profile stated he was 18, even though, at the very beginning of their chat, the target had informed the accused that the age on his profile was wrong. Conclusion: The accused did not provide any evidence that to satisfy the reasonable steps requirement, therefore the presumption is not rebutted, and it is presumed that the accused knew the target was underage for the charge of luring a child. CC s. 265(4)mistake of fact defense for assault. CC s. 273.2where mistake of fact will not be a defense for assault (reasonable steps)

Beaver v R, [1957] SCR 531 Facts: B agreed to sell heroin to an undercover RCMP officer. Defence was that H had told him it wasnt heroin

Ratio: True crimes we need proof of subjective MR. Mistake of fact is the denial of MR for the defence it is not a defence it is just not having the requisite MR to make up the offence. Holding: Was a reasonable defence he was told it was something else however that mistake did not negate the MR for the trafficking offence

R v ADH 2013 The accused, not previously knowing that she was pregnant, gave birth while using the toilet in a retail store. Thinking the child was dead, she cleaned up as best she could and left, leaving the child in the toilet. The child was in fact alive, was quickly attended to by others and transported to the hospital where he was successfully resuscitated and found to be completely healthy. The accused was eventually identified as the woman seen entering and leaving the washroom at the time in question. When contacted by police, she cooperated fully and confirmed that she was the mother of the child. She was charged with unlawfully abandoning a child under the age of 10 years old and thereby endangering his life contrary to s. 218 of theCriminal Code. The trial judge noted that the accused acknowledged that she had left her child in the toilet, thereby committing the actus reus of the s. 218 offence. As for the mens rea, the trial judge decided that subjective fault was required and found that the Crown had not proven beyond a reasonable doubt that the accused intended to abandon her child. She had not known she was pregnant and truly believed she had delivered a dead child. Her fear and confusion explained her subsequent behaviour. The trial judge accordingly found the accused not guilty and dismissed the charge. The majority of the Court of Appeal agreed with the trial judge that s. 218 of the Criminal Code requires subjective fault. Per McLachlin C.J. and Fish, Abella, Cromwell and Karakatsanis JJ.: The text of s. 218 of theCriminal Code does not expressly set out a fault requirement, but when read in light of its full context , it supports the conclusion that subjective fault is required. An important part of the context in which we must interpret s. 218 is the presumption that Parliament intends crimes to have a subjective fault element. There is nothing in the text or context of the child abandonment offence to suggest that Parliament intended to depart from requiring subjective fault. The legislative history of s. 218 further supports the conclusion that the fault element for s. 218 is penal negligence. The provision has never included words of subjective intention, as confirmed by the early English interpretation of the offence. Furthermore, neither the social stigma associated with it nor the gravity of the offence of child abandonment require it to be treated differently than its sister provision s. 215 (failure to provide necessaries), where penal negligence was found to be the requisite fault element. Majority: The text, context and purpose of s. 218 of the Code show that subjective fault is required. It follows that the trial judge did not err in acquitting the respondent on the basis that this subjective fault requirement had not been proved. The Court of Appeal was correct to uphold the acquittal.

Rothstein and Moldaver: Under a penal negligence standard, a mistake of fact that is both honest and reasonable affords a complete defence. Thus, an objective mens rea standard does not punish the morally blameless. In the present circumstances, the trial judge found that the respondent honestly believed that her child was dead at birth and that this belief was objectively reasonable. As such, she was entitled to be acquitted based on the defence of honest and reasonable mistake of fact.

Willful Blindness Willful blindness is related to but distinct from recklessness. It is a subjective state of mind, requiring that the accused personally sees the risk of a fact, but then willfully avoids confirmation so as to be able to deny knowledge. This concept fits best when used as a substitute for knowledge, although courts (and Parliament in C.C. s. 273.2) have an unfortunate habit of using willful blindness terminology as interchangeable with recklessness.

R. v. Currie (1975)willful blindness re: burden of proof for suspicion. Issue: By cashing the check of a stranger, was the accused willfully blind to the fact that the cheque may be forged or stolen? Rule: The knowing requirement of uttering a forged document includes the doctrine of willful blindness where the accused has a suspicion aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance (this is not constructive knowledge ought to have known is a negligence standard, the accuse must have a suspicion. Analysis: The accused cashed a cheque given to him by a person he had never met before. It is his responsibility to make inquiries as to the validity of the cheque before he presents it to his bank. He did not make such inquiries and was willfully blind to the fact that the cheque could be stolen. Conclusion: The knowing requirement of the charge was met by the willful blindness doctrine. R. v. Vinikurov, (2001)proper instruction to the jury: willful blindness v. recklessness. Issue: Was the accused willfully blind as to the existence of the fact that the pawned items were stolen? Rule: Possession of property obtained by crime (s. 354) requires knowing that the property was obtained by an offense. Knowing can be shown by deliberately failing to make further inquiries as to the origin of property because he wishes to remain ignorant as to the fact that the property may be proceeds of crime and takes possession of the property. Analysis: The Crown has the burden of proving knowing possession. In this case the trial judge found the willful blindness was not proven, but found the accused reckless, satisfying the knowing requirement. Recklessness is found subjectively when the accused sees the risk and takes the chance regardless recklessness presupposes knowledge. Willful blindness requires knowledge of the risk and failure to make further inquiries so that he may remain ignorant to the risk. Conclusion: The Crown must first show that the accused had a suspicion that would compel further inquiries before the knowing requirement of possession is met.

Vinokurov appealed the decision. Two of the three appeal court justices found that the trial judge had erred in determining recklessness. In their judgment, they wrote that Recklessness requires consciousness of the risk, and the Crown did not prove beyond a reasonable doubt that Vinokurov was conscious of the risk, i.e., that he even considered the possibility that the property he was buying had been stolen. The Court of Appeal determined therefore that it was not open to the trial judge to find recklessness. Because recklessness was not allowed as the element of mens rea, the appeal was allowed, the convictions quashed, and a new trial ordered.

R. v. Briscoe, (2010)Knowledge re: aiding and abetting sexual assault and murder. Issue: What state of mind is required of the accused to establish an aider or abettors knowledge? Rule: Everyone is a party to an offence who (1) actually commits it; (2) does or omits to do anything for the purpose of aiding any person to commit it; or (3) abets any person in committing it. A person does or omits to do anything for the purpose if they assist or encourages the person and does so with the intent and knowledge that their act or omission is encouraging or assisting in the commission of the crime. The Crown must prove the accused had the intent to assist the perpetrator with knowledge of the perpetrators intent to commit the crime. Willful blindness can substitute the requisite knowledge. Analysis: The accused had a well founded suspicion that someone was going to be killed at the golf course and that he may have been willfully blind to the kidnapping and prospect of sexual assault. His own statements show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. Conclusion: The Crown provided sufficient evidence that the trier of fact could find that the accused had the requisite knowledge.

Recklessness - Recklessness is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act, the prohibited consequence will be brought about. It therefore differs from negligence which can apply even if the actor does not personally see the risk, provided a reasonable person would have. Still, recklessness is a subjective mens rea with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking. R. v. Theroux, (1993)deceitful conduct with the subjective knowledge (proven by objective means) that the prohibited consequence (deprivation of another) could occur is sufficient mens rea in the context of fraud. Issue: Was the accused reckless as to whether the depositors would lose their money if uninsured? Rule: Where the conduct and knowledge required by the fraud provision are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as whether it would occur. Analysis: Although the accused believed that the project would go ahead and the depositors money would not be lost, by not insuring their deposits he was reckless as to whether t he

depositors would actually lose their money. A reasonable person could foresee that there was a chance that depositors could lose their money. Conclusion: Recklessness in the context of fraud is sufficient to satisfy the requisite mens rea.

R. v. Buzzanga and Durocher (1979)construction of willfully, as a limited kind of mens rea, does not include recklessness. Issue: Does willfully include recklessness as to whether the consequences will occur? Rule: Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of . . . [public incitement of hatred] Analysis: The other CC provisions regarding incitement of hatred require a general mens rea which includes intent and recklessness. Because CC s. 319(2) expressly requires willful conduct where it would otherwise be implied, it was Parliaments intent that willfully be limited to intentional promotion of hatred, excluding recklessness. Conclusion: The accused published the document with the intent to promote hatred with the purpose of obtaining the French-language school. On balance, Martin finds that the trial judge misunderstood "willfully" and focused on the intentional nature of the defendant's conduct in distributing the pamphlets, but not in desiring the outcome. In the result, a new trial is ordered.

Objective Mens Rea and True Crimes Negligence is judged objectively, according to what a reasonable person would know or understand or how a reasonable person would act. The criminal law has long been uncomfortable with objective fault, as historically the criminal law responded to an evil mind, and careless people may be dangerous but they are not evil. That said, the ultimate issue is whether the accused can be said to have engaged in a marked departure from the standard of care expected of the reasonable person. In R. v. Creighton the Court rejected the idea that mens rea always has to relate to all aspects of the actus reus. In that case, the Court in a 5:4 decision held that the fault for unlawful object manslaughter was objective foresight of bodily harm and that the objective test should be based on a simple reasonable person standard with the personal characteristics of the accused not being relevant unless they revealed an incapacity to appreciate the prohibited risk. For crimes using objective fault as the mens rea, penal negligence - a more restricted form of negligence requiring a marked departure from reasonable standards of care - is generally required. One exception is with predicate offences, those aggravated forms of offence that apply when serious consequences result, and that include within their elements another complete but lesser offence, a predicate offence. For predicate offences the consequence need not be brought about by penal

negligence. It is enough if the accused commits the underlying or predicate offence, and that the aggravated consequence that has been thereby caused was objectively foreseeable. Also, for the specific offence of criminal negligence, the higher standard of a marked and substantial departure must be proven. R. v. Martineau, Facts: M and X set out to do what M thought was a B&E. They robbed J and X killed J Issue(s): Does s.213(a) 230(a) infringe or deny the rights or freedoms guaranteed by s.7 or s.11(d)? Ratio: It is a PFJ that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight Analysis: Majority: The rationale for subjective foresight of death is linked to the general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result Proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Dissent: The question is not what is the best test, but what is the constitutionally valid one? The answer is objective foresight The test of objective foresight of death for the crime of murder does not offend PFJ Holding: This section unduly impairs the Charter rights it is not saved by s.1

R v Creighton, [1993] 3 SCR 3 Facts: C (experienced drug user) got cocaine. With consent injected X. X died from injection Issue(s): Does the common law definition of unlawful act manslaughter contravene s.7 of the Charter? Ratio: The Standard for manslaughter is: Objective foresight of non-trivial bodily harm use a modified objective standard, where you place reasonable person in the circumstance of the accused (not taking into account personal characteristics, but do take into account capacity issues). The offence of unlawful act manslaughter requires objective foreseeability of bodily harm which is neither trivial nor transitory, arising from a dangerous act Analysis: CC defines 3 general types of culpably homicide: Murder the intentional killing of another human being

Infanticide the intentional killing of a child All other manslaughter falls into this category The test for MR of unlawful act manslaughter is objective foreseeability of risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act foreseeability of the risk of death is not required. The fact that the MR of manslaughter requires foreseeable risk of harm rather than foreseeable risk of death does not violate the principles of fundamental justice. The appropriate test for MR is an objective test, with only one exception, incapacity to appreciate the nature of the risk Personal characteristics should not be admissible Beyond the exception the test should not be individualized Dissent: *Murder is distinguished from manslaughter only by the mental elements with respect to the death *The Objective test Trier of fact must pay attention to any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen Would a reasonable person in the same circumstances have been aware that the likely consequences of his or her unlawful conduct would create the risk of death? If No accused acquitted, if Yes then ask: Were there unaware bc they were willfully blind or lacked capacity? Holding: C guilty Comments: Murder = subjective Manslaughter = objective Test for Manslaughter 1. Is AR established? negligence (as ex) must constitute a marked departure from the standards of a reasonable person 2. Is the MR established? inferred from facts is objective foresight a. Standard is that of a reasonable person in the circumstance of the accused i. May be negated by evidence as to lack of capacity 1.If have the capacity and 1 and 2 are yes = conviction

Lamer J (not majority view) Reasonable person = invested with any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have, as well as any enhance foresight

R v Beatty, 2008 SCC 5 Facts: B charged with dangerous driving causing death under s.249(4). Truck crossed solid centre line and killed 3 people. Prior to this B was driving properly. B doesnt know what happened, he must have lost consciousness or fallen asleep. Dangerous Driving, s.249 Contextualized objective standard AR: persons driving is objectively dangerous MR: marked departure from the standard of care that reasonable person in circumstances would observe Issue(s): Does s.249 require a marked departure or simple negligence standard? Ratio: A modified objective test for negligent driving is a marked departure, in the circumstances the accused knew at the time, not taking into account personal characteristics, unless incapacity to appreciate the risk. A modified objective test is the appropriate test to determine the requisite mens rea for negligence based criminal offences Analysis: The burden is on the accused to raise a reasonable doubt about whether a reasonable person in the accused position would appreciate the risk he has created. Hundal - It is only where there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. Personal attributes such as age and experience are not relevant incapacity to appreciate the risk or incapacity to avoid creating it is relevant Holding: B did not meet the high level of MR required - it was only a few seconds and that does not constitute negligence in this case

Criminal negligence manslaughter marked and substantial departures Unlawful Act Manslaughter marked departure Beatty - All evidence must be examined and fault should not be automatically deduced even from a dangerous act.

Regulatory Offences Regulatory offences can be created by any level of government. Regulatory offences can be full mens rea offences just as true crimes are, but a clear indication that mens rea is required is needed before regulatory offences will be interpreted as having mens rea elements.. They are presumed to be strict

liability offences (offences that can be committed by simple, non - penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction). Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant actus reus is proved, provided this is clearly what the legislators intended when establishing the offence. The court has also recently recognized a defence of officially induced error that can apply both to criminal and regulatory offences, but is most relevant to regulatory offences. R. v. Sault Ste. Marie (1978)distinguishes between 3 types of offences; discusses due diligence defence. Defence of reasonable care: the Crown need only prove that the prohibited act occurred, the defence may prove that all due care has been taken. This involves a consideration of what the reasonable man would have done. The accused must honestly and reasonably believe in a mistaken set of facts, which, if true, would render the act or omission innocent, OR if he took reasonable steps to avoid the particular event. 3 Types of Offences: 1. Mens rea offences: consisting of some positive state of mind such as intent recklessness must be proven. 2. Strict Liability: the Crown need only prove the prohibited act occurred. The accused has the reasonable care offence. Public welfare offences fall into this category. 3. Absolute liability: all that is required is proof that the accused committed the prohibited act. Whether an offence is absolute liability consider: (a) the overall regulatory pattern, (b) the subject matter of, (c) the importance of the penalty, (d)and the precision of the language used.

Reference re Section 94(2) of the Motor Vehicle Act (B.C.) (1985)Absolute liability and imprisonment cannot be combined because it will violate s. 7 - Principles of fundamental justice set the parameters of s. 7 right to not be deprived of life, liberty and security of the person. The innocent cannot be punished. - Imprisonment without fault (mens rea) deprives a person of their liberty and is not consistent with principles of fundamental justice. - Violations of s. 7 can be saved by s. 1 reasonably justified under the circumstances in a free and democratic society. This can be shown if the offense is proven to be in the public interest. - The Crown failed to show that ridding the road of bad drivers was in the public interest could be proportional to limiting peoples rights by imprisoning them.

R. v. Wholesale Travel Inc. [1991] 3 S.C.R. 154 (holding timely retraction requirements to be an unconstitutional form of absolute liability but upholding strict liability offences that require the accused to establish a due diligence defence on a balance of probabilities). Wholesale Travel was charged with false advertising under s.36(1) (now s.52(1)(a)) of the Competition Act. They stated that they were offering vacation packages "at wholesale prices" when in fact they were charging more to customers than they had to pay for the vacations. The statutory punishments for the offence were a fine of up to $25,000 and five years in prison. There were also lengthy statutory defences

defined, which included exculpating oneself by showing that they acted reasonably in the circumstances. Wholesale Travel appeals on an order for trial from the Court of Appeal. Issue Do regulatory schemes which impose strict liability breach ss.7 and 11(d) of the Charter? Decision Appeal dismissed. Reasons Cory J reaffirms the decision of R v Sault Ste. Marie. This is obviously a strict liability offence for all of the reasons set out in the previous case. Therefore, the Crown does not need to prove mens rea in order to get a conviction; however, the defendant can be acquitted if they can show that they acted reasonably in the circumstances (among the other things required for the statutory defence). The Court unanimously held that that the "timely retraction" provisions of s. 37.3(2)(c) and (d) of the Act did infringes.7 and could not be saved under s.1. The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2) was constitutional. The majority (Lamer with LaForest, Sopinka, Gonthier, McLachlin, Stevenson, and Iacobucci) held that the reverse onus infringed s. 11(d) of the Charter. However, only four of the seven held that it could not be saved under s.1. Since the remaining two judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate s.11(d), a majority was had by those that argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin. Ratio Public welfare offences are generally strict liability offences, meaning that the Crown does not need to prove mens rea, but the defendant can be acquitted if they prove that they acted reasonably in the circumstances. If the offence has a statutory defence that is similar to this requirement then it falls under the heading of strict liability offences, and the Crown does not need to prove mens rea for a conviction. Corporations can challenge the constitutional validity of sections of the Code or other statutes even if the sections that are infringed deal with the rights of individuals. Laws that are found to be unconstitutional do not apply to anyone including corporations.

R. v. Raham (2010)absolute liability offence combined with potential for imprisonment offends s. 7. Application of due diligence defencse - Using the French version to clarify ambiguities in the statute, the court held that the provision could be violated by stunt driving, which includes driving at 50Km/hr over the speed limit. - The legislature cannot, absent reliance on s. 1 of the Charter, imprison without fault. - Strict liability sets out the lowest standard of fault available. - Considering whether the language used to create the offence can reasonably admit a due diligence offence is a consideration of the 4th Sault Ste. Marie factorsprecision of the language used. Language that

expressly, or by clear implication excludes the due diligence defense compels the conclusion that the offence is absolute liability. - The legislature did not expressly exclude the due diligence defence to violation of the provision.

Levis (City) v. Tetreault (2006)failure of due diligence defence. - For the due diligence defence, the Supreme Court has reminded that the concept of diligence is based on the acceptance of a citizens civic duty to take action to find out what his or her obligations are. - Passive ignorance is not a valid defence. - The accused was charged with operating a vehicle without a license, his defence was that he expected to receive a renewal notice and that he confused the expiry date with the due date for paying fees to keep a valid license due diligence defence was not available.


Aiding and Abetting

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It is not only the person who actually performs the actus reus (the principal offender) who can be convicted of the offence. So too can those who aid (physically support) or abet (encourage) the accused to commit the offence. Indeed, persons who aid and abet one offence can, in some circumstances, be convicted of offences they did not intend to aid or abet, provided that offence is under s.21(2) a foreseeable outcome of the offence AR: Aid or abet ; MR: must not only knowingly assist the principal (knowledge of the type but not the exact nature of the crime committed) but also intend to assist the principal (need not see the commission of the offence as desirable and thus not susceptible of n=being negated by duress); purpose synonymous with intent ad does not include recklessness (R v Roach) even if the original offence had an objective fault requirement Dunlop and Sylvester v The Queen, [1979] 2 SCR 881 Facts: Motorcycle gang and B at park. About 18 guys had sex with B. D and S came with beer. They said they were just dropping it off and saw B having sex someone but didnt know what was going on. B indentified D and S from lineup Issue(s): Does the fact that the accused were present for part of the assault and did nothing to assist the victim amount to aiding and abetting? Ratio: Mere presence or passive acquiescence is not sufficient for liability w/o encouragement of principal offender or act of facilitation. Mere presence itself cannot be interpreted to be encouragement Analysis: Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors such as: prior knowledge of the offenders intentions to commit the offence, or attendance for the purpose of encouragement. mere presence is not evidence R v Salajko girl raped, 3 people charged, S was near girl with pants down did not have intercourse with her Holding was the what S did was not encouragement Comments: R v Salajko this decision was an anomaly and should not be followed

R v Logan, [1990] 2 SCR 731 Facts: L charged with attempted murder during a robbery. L shot X in neck. X lived Issue(s): Does s.21(2) of the CC contravene s.7 and/or s.11(d) of the Charter?

Ratio: Where there is a constitutionally minimum required MR for the principle in those cases the party must have the same level of MR Analysis: To be convicted of a party to murder you must have subjective foresight of death. Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of MR below the constitutionally required min. The question whether a party to an offence had the requisite MR to found a conviction under s.21(2) is 2 steps: What is constitutionally required MR for principal? - Is there a min degree of MR required by PFJ (constitutionally required min MR)? IF SO If PFJs do require a certain min degree of MR in order to convict the principal, then that min degree of MR is constitutionally required to convict a party to that offence as well? Holding: s.21(2) violates s.7 and cannot be justified under s.1 On charges where subjective foresight is a constitutional requirement (murder and attempted murder), the objective component of s.21(2) is not justified.

R. v. Briscoe (2010)purpose in s. (1)(b) is synonymous with intention. Willful blindness can substitute for actual knowledge whenever knowledge is a component of mens rea. - The accused had a suspicion that the victim was going to be murdered, but chose not to make further inquiries and abandon the purpose. Therefore, the accused is also guilty of murder.

R v JF 2013 - J, a youth, learned that his friend T and her sister R were planning to murder their mother by plying her with alcohol and drowning her, a plan which the sisters ultimately executed and were convicted for. The police found an MSN chat log between J and T in which J provided information to T about death by drowning; suggested that the sisters should give their mother codeine pills in addition to alcohol; and suggested ways to mislead the police. The Crown also led evidence that J supplied the girls with pills and met T and R after the murder to provide an alibi. The trial judge instructed the jury that J could be convicted of conspiracy to commit murder under s. 465(1) of the Criminal Code either as a principal, or as a party under ss. 21(1)(b) or (c) of the Criminal Code. J was convicted of conspiracy to commit murder. The Court of Appeal dismissed an appeal from the conviction but reduced Js sentence. Held: The appeal should be dismissed. Per McLachlin C.J. and LeBel, Fish, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.: Party liability to conspiracy is an offence known to Canadian law. Unlike attempted conspiracy, it does not involve stacking one form of inchoate liability upon another, and does not suffer from remoteness. The Trieu model is a legitimate basis for party liability to a conspiracy. A person becomes

party to an offence if he aids or abets a principal in the commission of the offence. It follows that party liability to a conspiracy is made out where the accused aids or abets the actus reus of conspiracy, namely the conspirators act of agreeing. In light of the conclusion that party liability does not extend to acts done in furtherance of the unlawful object of the conspiracy, party liability should not, in the present case, have been put to the jury. There is no evidence that J aided or abetted the initial formation of the agreement between R and T to murder their mother or aided or encouraged a new member to join the existing conspiracy. The trial judges error, however, could not possibly have affected the verdict. The curative proviso under s. 686(1)(b)(iii) of the Criminal Code applies. The evidence implicating J as a member of the conspiracy was overwhelming and, once the jury rejected Js defence, a finding of guilt under s. 465(1) of the Criminal Code was inevitable.

R v Gauthier 2013 - G was charged with being a party, together with her spouse, L, to the murder of their three children at the dawn of the year 2009. According to the Crowns theory, G was a party to the murder in planning it as part of a murder-suicide pact and in supplying the murder weapon. She did not act to prevent the children from being poisoned with drinks served by her spouse, which contained Gravol and oxazepam. Thus, she aided L to kill the children. At her jury trial, G submitted in her defence that she had not bought the medication to poison her children, that she was in a dissociative state on December 31, 2008 when she wrote some incriminating documents, and that this state meant she could not have formed the specific intent to commit the murders. In the alternative, should her argument based on the absence of mens rea be rejected, she claimed to have abandoned the common purpose of killing the children and to have clearly communicated her intention to do so to her spouse. The jury found G guilty of the first degree murder of her three children. The Court of Appeal upheld the guilty verdict, concluding that the trial judge had not erred in refusing to put the defence of abandonment to the jury, since it was incompatible with the defences principal theory. Held (Fish J. dissenting): The appeal should be dismissed. Per LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.: There is no cardinal rule against putting to a jury an alternative defence that is at first glance incompatible with the primary defence. The issue is not whether such a defence is compatible or incompatible with the primary defence, but whether it meets the air of reality test. In any case, the trial judge must determine whether the alternative defence has a sufficient factual foundation, that is, whether a properly instructed jury acting reasonably could accept the defence if it believed the evidence to be true. if the evidence shows (1) that there was an intention to abandon or withdraw from the unlawful purpose; (2) that there was timely communication of this abandonment or withdrawal from the person in question to those who wished to continue; (3) that the communication served unequivocal notice upon those who wished to continue; and (4) that the accused took, in a manner proportional to his or her

participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence. There will be circumstances in which timely and unequivocal communication by the accused of his or her intention to abandon the unlawful purpose will be considered sufficient to neutralize the effects of his or her participation in the crime. But there will be other circumstances, primarily where a person has aided in the commission of the offence, in which it is hard to see how timely communication to the principal offender of the persons intention to withdraw from the unlawful purpose will on its own be considered reasonable and sufficient. In this case, Gs evidence that she communicated her withd rawal from the deadly plan and that her communication was timely and unequivocal is insufficient. She therefore had to do more either to neutralize the effects of her participation or to prevent the commission of the offence. For example, she could have hidden or destroyed the medication she had purchased, remained watchful and taken the children to a safe place for the evening, insisted that her spouse give her verbal confirmation of what he intended to do, or simply called the authorities. The record did not therefore contain evidence upon which a properly instructed jury acting reasonably could have found that G had abandoned the common unlawful purpose, and could accordingly have acquitted her, if it believed the evidence to be true. The defence of abandonment therefore did not meet the air of reality test, and the trial judge was not required to put the defence to the jury. Per Fish J. (dissenting): Canadian courts have for more than 70 years held that the defence of abandonment comprises only two essential elements: (i) change of intention; and (ii) where practical and reasonable, timely and unequivocal notice of withdrawal. This test has been repeatedly and consistently applied in prosecutions under s. 21(1) and s. 21(2) of the Criminal Code alike. The defence of abandonment does not require that the accused take steps to neutralize prior participation in the criminal enterprise or to prevent the commission of the offence. While such evidence may strengthen a defence of abandonment, failure to take neutralizing or preventative steps is not fatal.

Abandonment looks to mens rea and must be timely notice and depends on the quality of any particular withdrawal or abandonment and the accuseds particular form and degree of participation. Relevance of impossibility as per Chan, since the drug offence was not committed (police had intercepted the drugs and replaced them with a small amount of heroin), cannot aid or abet but could be charged with attempt to possess heroin.

Counseling An accused can be convicted of counseling offences, whether or not the offences counseled are actually committed. If the offences counseled are committed, CC. s. 22 operates. If they are not committed, CC. s. 464 operates.

AR: procure, solicit or incite actively induce or advocate rather than merely describe still guilty even if counseled person rejects the idea of going through with the offence MR: for crime not committed subjective knowledge of the crime counselled and an actual intent by the accused that the crime be performed; an SCC decision held that it also included a lesser form of mens rea in the form of knowingly counseling a crime while aware of an unjustified risk that the offence was likely to be committed as a result of the accuseds conduct (Hamilton) (higher standard than reckless awareness) R v Hamilton, 2005 SCC 47 Facts: H sent email saying he had confidential information. Files had instructions on how to set bombs and break into houses. Included program to generate credit card #s. Charged with counseling of a crime. No crime committed Issue(s): Is recklessness sufficient to meet the 2nd step of MR? YES it is sufficient but recklessness is a specific wording not the general meaning as in Sansregret Ratio: Recklessness is permissible to satisfy MR for counseling, but as defined as Conscious disregard of the substantial and unjustified risk inherent in the counseling Analysis: The AR for counseling will be established where the materials or statement made or transmitted by the accused actively induced or advocated, and do not merely describe, the commission of the offence (R v Sharpe). Counseling AR: deliberate encouragement or active inducement of the commission of a criminal offence MR: accused either intended the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accsueds conduct Comments: Now the MR for counseling is just the intent of the accused that the crime be performed and that can be satisfied with recklessness if it is a conscious disregard of the substantial and unjustified risk inherent in the counseling

S23.1 can still be held guilty of counselling if the accused is not culpable as an accused (only applicable to committed offences) S22 AR: crime need not be committed in the same way as counselled but must be reasonably foreseeable from the counselling MR: must intentionally counsel a criminal offence + objective foresight of any other consequences (except for murder or attempted murder)

Attempts As the counseling offence in CC. s. 464 illustrates, not all crimes need to be complete before an offence arises. There is (1) the discrete offence of counseling, (2) the offence of conspiracy in which the agreement to commit a crime is a crime, and (3) there is liability for attempting to commit an offence. S24 classifies attempts question of law Attempted murder requires an intent to kill; similarly other crimes require specific intent to commit that crime Abandonment is not an independent defence but could go to the formation of mens rea for the attempt (cf other jurisdictions) R v Ancio - Ancio, wanting to speak with his estranged wife, broke into an apartment building with a loaded sawed-off shotgun. Kurely, the man with whom his wife had been living, went to investigate the sound of breaking glass and threw the chair he was carrying at Ancio when he saw him climbing the stairs. The gun discharged, missing Kurely, and a struggle followed. Shortly after his arrest, respondent stated to police that he "had him [Kurely] by the throat and I would have killed him." The trial judge found Ancio had broken into the apartment building with the intent to use the shotgun to force his wife to leave and convicted him of attempted murder. The Court of Appeal overturned that conviction and ordered a new trial. Issue Is the mens rea in attempted murder limited to an intention to cause death or to cause bodily harm knowing it to be likely to cause death, or is the mens rea required extended to the intention to do some action constituting murder as defined by ss.212 or 213 of theCode (now ss.229 and 230)? Decision Appeal dismissed. Reasons McIntyre, writing for the majority, held that the mens rea for attempted murder is the specific intent to kill and a mental state falling short of that level, while it might lead to conviction for other offences, cannot lead to a conviction for an attempt. The completed offence of murder involves killing and any intention to complete that offence must include the intention to kill. He held that despite the arguments of the Crown, there is nothing illogical which arises from the fact that in certain circumstances a lesser intent will suffice for a conviction for murder. By definition, a person cannot intend to commit the unintentional killings described in ss.212 and 213 of the Code (now ss.229 and 230). Any illogic lies in the statutory characterization of unintentional killing as murder. The crime of attempt developed as, and remains, an offence separate and distinct from murder. While the Crown must still prove both mens rea and actus reus, the mens rea is the more important element. The intent to commit the desired offence is a basic element of the offence of attempt, and indeed, may be the sole criminal element in the offence given that an attempt may be complete without completion of the offence intended.

Ratio For attempted murder, nothing short of intent to kill will suffice for the mens rea of that offence.

R v Deutsch, [1986] 2 SCR. 2 Facts: D charged with procuring a person to have illicit sex w another (s.212(1)(a)). D conducted interviews with women assistants and told them who he chose who have to have sex with clients Issue(s): What is the test to convict someone of an attempt? Ratio: Test for Attempts: 1. Need to look at relationship of the offence and the act a. Rewording of the unequivocal act theory 2. Proximity is relevant, taking into account time, location, and acts controlled by the accused that remain to be accomplished - What is important is the acts the accused took a. The fact that further acts are needed to complete the offence is not determinate of an attempt Proximity is not determinative Holding: That acts were an attempt more then preparatory steps In this case the actual crime could not be committed until one of the women actually had sex with another person; however, his offering financial rewards was a step in attempting to make this action occur.

Williams an example where actus reus was impossible but still held liable for attempt as per s 24(1). R v Shivpuri (UK) legal impossibility as items were were not stolen when they were believed to be. Dynar outlined that impossibility is not a defence therefore one coming to a hotel hoping to extract sexual services out of an 11 year old is still guilty of attempting to procure even though no child was involved. Only a defence when it is an imaginary crime.

R. v. Dery (2006)There is no offence of attempting to conspire. - There was no evidence that the accused had taken any steps to carry out the proposed theft (actus reus) and there was no agreement (mens rea) to carry out the proposed theft. - Acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. Dery exposes the limits of piggy-backing incomplete forms of liability Corporate and Association Liability
Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the actus reus alone, there is no need to use any legal devices to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do not apply to regulatory offences. For true crimes the Criminal Code sets out standards for corporate and association liability. Section 22.1 applies to objective fault or negligence offences where an association is charged, and s. 22.2 applies to subjective mens rea offences charged against an association.


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For example, s. 25 of the Criminal Code permits law enforcement personnel to use some force to carry out their duties, and s. 40 permits the defence of property. There are also procedural defences such as double jeopardy. Charges can be stayed pursuant to s. 11 (b) and 24 of the Charter because of unreasonable delay. You are responsible only for the select defences described below and those described in assigned cases, such as de minimis non curat lex in R. v. J.A. 2011 SCC 28, above. Disease of the mind factors to consider are continuing danger and/or internal cause Mental Disorder Section 16 of the Criminal Code modifies the common law defence of insanity. To have access to this defence the accused must establish that he has a mental disorder as defined by the case law and that it affected him in one or both of the ways described in s.16 (1). R v Cooper - Cooper, a man described as a "little slow", was an outpatient at a psychiatric hospital. At a dance at a local church organized for patients of the hospital he took a woman aside, kissed her, and then strangled her to death because, as he later testified, he was afraid that she would tell on him. At trial the defence of insanity (now mental disorder) was not raised (at the time Cooper would have been ordered into an institution for life if this defence was accepted), but Cooper rather relied on the negation of mens rea in the offence. He also had expert testimony from a forensic psychiatrist saying that he would not have been able to understand the consequences of his actions or form the mens rea. Despite this, the trial judge charged the jury with s.16, although the charge was very poor. Cooper was convicted at trial and his appeal was rejected by the Court of Appeal. The test is that that he must have had the mental capacity to foresee the consequences of his violent conduct. He knew that what he was doing was wrong, but the question is whether he had the mental capacity to measure and foresee the consequences of the violent conduct. He knew that there was a problem, but he might not have been able to appreciate the consequences of it. As the charge to the jury on this point was not sufficiently clear to allow them to act properly as finders of fact, a new trial is required. Ratio The elements of the mental disorder exemption: the Crown must prove beyond a reasonable doubt that the accused committed the crime and would be convicted; the accused must show that their condition falls under a "disease of the mind"; the condition must have caused the accused to not have the capacity to appreciate either the "nature and quality" of the act or to know that it is wrong; the legal consequence is not an acquittal, but a special verdict of "no criminal responsibility" unders.672.34. Expert testimony that someone has or does not have a "disease of the mind" is not determinative; it is a question that is to be answered by the finder of fact.

"Diseases of the mind" must impair the human mind in its functioning; this excludes cases of self-induced incapacity such as through drugs or alcohol, and does not include transitory states such as hysteria or concussion. Epilepsy and hypoglycemia diseases of the mind Appreciates imports a requirement beyond mere knowledge of the physical quality of the act and requires a capacity to apprehend the nature of the act and its consequences. R. v. Parks (1992)modifies Coopers definition of mental disorder - Disease of the mind is a legal term and not a medical term. Medical opinion is used to show how the condition is viewed or characterized. - Modifiers: (1) must be internal to the accused, (2) transient disturbances of consciousness due to external factors do not fall within the concept.

R. v. Kjeldson (1981)for sociopathic or psychopathic offenders - Although personality disorders or psychopathic personalities are capable of constituting a disease of the mind, the defence of insanity is not made out where the accused has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim of lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from disease of the mind. - It was not a defense to rape and murder that the accused claimed that he was incapable of emotionally appreciating the significance of his act.

R. v. Oommen (1994)knowing the act was wrong - The accused must not only possess the intellectual ability to know right from wrong in an abstract sense but must possess the ability to apply that knowledge in a rational way to the alleged criminal act. - TESTS: Did the accused lack the (1) capacity to rationally decide whether the act is right or wrong and hence to (2) make a rational choice about whether to do it or not. - Although knowing right from wrong, the accused suffered from delusions that caused him to believe that the woman he shot was conspiring against him he did not have the ability to make a rational choice as to whether or not to shoot the woman know the act was wrong in the moral sense has been allowed in previous jurisprudence

Voluntary Acts Negativing the Actus Reus and Automatism It is the voluntariness concept that explains the defence of automatism, which operates on the theory that the accuseds physical motions were not culpable where they are not voluntary or thought -directed or conscious, as in the sleep-walking case of R. v. Parks. Please note that automatism will not realistically operate in any case where the accused appears conscious of his conduct it is reserved to those unusual cases where there appears to be some disconnect between the actions of the accused and his conscious will. The result of the Parks decision was controversial enough that the Supreme Court of Canada took procedural steps to cut the defence back in R. v. Stone, although in R. v. Fontaine some of

the excessive language of Stone was qualified by the Court. If the defence that applies in non-insane automatism, a complete acquittal is appropriate, although Stone has stacked the deck against this kind of defence succeeding.

R. v. Swaby (2001)Voluntariness concept - An otherwise criminal act cannot be said to be voluntary unless the person is given reasonable time to avoid committing the act. - The accused was charged with being an occupant in a vehicle knowing there was a unlicensed, restricted weapon present. The Crown had to establish (1) occupancy of the vehicle, and (2) the accuseds knowledge of the weapon. - It is implicit that there be a finding the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct. - If handed the weapon while in a moving vehicle the accused must be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle.

R v Parks - Parks attacked his parents-in-law when he was sleepwalking. He drove 23 kilometers to their house when he was sleepwalking and stabbed them in their sleep with a kitchen knife. His mother-in-law died, and his father-in-law was seriously injured. He did not remember any of the actions and there was no reasonable motive for the murder. Parks did not have any mental conditions, although several members of his family had sleep problems. Parks had been working long hours at work and had recently been charged with a theft from his employer. He was acquitted both at trial and at the Court of Appeal. Lamer held that the expert evidence showed that Parks was indeed sleepwalking at the time of the attack, that sleepwalking is not a neurological disorder, and that there is no medical treatment for sleepwalking aside from good health. La Forest went into detail analyzing automatism. In determining whether or not automatism springs from a disease of the mind one should look to determine if it is caused by internal (in the mind) or external factors. One should also consider whether the condition is continuing. Although these are not determinative, a finding that automatism is internal and continuing suggests a disease of the mind. In this case there was no evidence of a recurrence of sleepwalking causing a similar outcome. Again La Forest states that whether or not something is a disease of the mind is a legal question although expert evidence helps, it is not determinative.

R v Stone - Stone was driving to see his two sons from a previous marriage with his wife. She did not want him to see them and as a result of her reticence he was only able to visit with them for 15 minutes. On the drive back she continued to berate him, telling him he was a loser, that he was terrible in bed, that he had a small penis, and that she was going to go to the police with trumped up assault charges. He pulled the car over and put his head down. He testified that he blacked out and felt a "woosh" go through his body. When he came to he had stabbed her 47 times with a hunting knife that he kept in the car. He

hid her body in his truck's tool chest, picked up a six pack, drove home, left a note for his daughter, and took off to Mexico. After a few weeks in Mexico he decided to return to Canada and turn himself in. In his defence, Stone pleaded insane automatism, non-insane automatism, lack of intent, and in the alternative, provocation. The judge allowed for a defence of insane automatism which was presented to the jury. The jury convicted him of manslaughter and sentenced him to seven years. The verdict was upheld by the Court of Appeal. A claim of the defence of automatism has two steps: The accused must establish, on a balance of probabilities, that there is sufficient evidence (if believed) to make the defence operate. In order to do this the accused must have expert evidence to go along with his or her testimony. If this is not met, then the defence fails. The judge must decide if there is a disease of the mind. If there is, then a special verdict is entered and normal s.16 procedures are followed. If there is not, then the question must be left to the jury if the accused acted involuntarily. If he did, then he is acquitted.

R v Fontaine - Fontaine worked "under the table" at a car garage. Renaud, a former employee, called the store and said "we're coming to get you, pigs". Dompierre, the eventual victim, came in to the store and told a co-worker that there was a hit out for Fontaine and himself. Having been informed of this, when he left work, Fontaine purchased a firearm. That evening, Fontaine saw Renaud outside his house. During the night, Fontaine smoked marijuana and at some point in the night he freaked out and shot bullets through his windows and doors, thinking that someone was breaking in to get him. The next day, Dompiere came into the garage to pay off a debt and Fontaine, thinking he was the hitman, shot him seven times, killing him. He turned himself into the police. He claimed that he was "frozen" at the time of the murder and only partially recollected it; he said that his actions were not his own. Several different doctors testified, and stated that it was possible that Fontaine suffered from paranoia that was triggered by his habitual smoking of marijuana. This would make him delusional, however, it was hard to prove and relied mostly on his evidence. However, the doctor for the defence found conclusively that Fontaine did have a major psychological disorder and that he was unable to determine right from wrong. The trial judge did not put mental-disorder automatism to the jury, who convicted him; the Court of Appeal overturned this and issued a new trial, stating that the defence should be left to the jury. The evidentiary burden is discharged if the accused raises sufficient evidence that there is an "air of reality" that the defence might succeed; the judge is not to consider the truth of the evidence when deciding if the accused has met the burden.

Saying he had a history of sleep walking and calling a sympathetic sleep expert at trial, (Dr. Colin Shapiro), Luedecke was acquitted by the trial judge. The Crown appealed and the whole circus found

itself before the Ontario Court of Appeal on February 7, 2008. The Court heard from Luedeckes counsel that sexsomnia has been accepted in Canadian criminal law since 1995 and since then, has been raised seven times, twice successfully. Make that three times as the Court of Appeal reversed and held that sleepwalking should for policy reasons be characterized as a mental disorder for social defence concerns and dangers of recurrence of sleepwalking a charge of not criminally responsible which led to an absolute discharge from the Review Board.

Simple Intoxication Specific intent murder, theft, robbery, aiding and abetting, attempted crimes; general manslaughter, assault, assault causing bh Intoxication does not operate as a justification or excuse for criminal conduct. This so-called defence of intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in reasonable doubt over whether the accused formed the mens rea of an offence classified by the courts as a specific intent offence that requires the accused to do an act for an ulterior purpose. Traditionally intoxication has not been a defence for general intent offences, defined as offences that simply require the doing of an act without an ulterior purpose. Please note that in Canada, the inquiry for the ordinary intoxication defence is no longer into capacity to form the intent as it was in common law England the defence applies if intoxication prevents the formation of the specific intent required by the relevant section. In regards to general intent, application of Majewski in that becoming intoxicated forms the requisite fault of offence ( dissented by Dickson J in Leary) R v George - On February 8th, 1959, George tried to sell a fur to Mr. Avergis but the man declined. Late the same night, when the defendant was very drunk, he came back to the house and assaulted the man, stealing $22. He was charged with robbery under s.288 of the Criminal Code (now s.343). The accused stated that he was very drunk and did not remember much about the incident, but he did remember hitting someone, and remembered the house being the same one that he had been in earlier that day. The court then considered how the respondent's drunkenness affects the charges. The court agrees with the trial judge that the intoxication prevented the defendant from forming the specific intent required for the original charge. However, unless intoxicated to the point of insanity the accused could still form the intention to strike the man (and the charge of assault only requiring that the defendant have applied force intentionally). The court then enters a conviction for common assault, saying that they have the power to do so under s.600 of the Code (now s.695). They say that the difference between specific intention and regular mens rea is important in cases involving intoxication. Ratio When a case with a charge for an indictable offence contains facts that lead to a commission of another crime (whether punishable by indictment or summary conviction) the charge may be divided (s.590(3)).

Intoxication often makes it impossible for a person to form the specific intention in crimes, however only intoxication to the point of insanity will negate mens rea altogether in cases involving only general intent.

R. v. Robinson (1996) The Beard rules (Director of Public Prosecutions v. Beard) on intoxication (adopted in MacAskill v. The King) should be overruled. These rules provide that intoxication is not a relevant factor for triers of fact to consider except where the intoxicant removed the accused's capacity to form the requisite intent. According to the Beard rules, the presumption that a person intends the natural consequences of his or her acts cannot be rebutted by evidence falling short of incapacity. This presumption to which Beard refers should only be interpreted as a common-sense inference that the jury can but is not compelled to make. 2 step process for simple intoxication (1) The judge must be satisfied that the effect of the intoxication was such that its effect might have impaired the accuseds foresight of consequences sufficiently to raise a reasonable doubt (air of reality). (2) The judge then instructs the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent (e.g. in the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death) - The accused was drinking with the victim when the victim said something to offend the accused, the accused then killed him. Second degree murder conviction. cf previous cases because it requires judges to instruct on actual intent of accused and not capacity to form intent as previously which had infringed s 7 and 11(d) - threshold of air of reality test applies here too could a jury reasonably acquit based on the evidence?

Extreme Intoxication In R. v. Daviault the Supreme Court held that extreme intoxication verging on automatism could provide a defence to even general intent offences because it would undermine the voluntariness of the act and it would be unconstitutional (s 7 and 11(d)) to substitute the act of becoming intoxicated for the basic act and mind of the offence (as per justice Wilson in Bernard who held 11(d) violation) . The Court indicated that the defence would be rare and would have to be established by the accused with expert evidence and established on a balance of probabilities but that it could be applied with respect to general intent offences such as assault and sexual assault. The theory behind the defence is that a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Scientifically, the premise that this can happen is controversial, although Daviault recognized that if this were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice. (Defence allows an acquittal while simple intoxication results in being charged with a lesser offence) Daviault was so controversial that Parliament immediately enacted s. 33.1 of the Criminal Code to eradicate the defence in sexual offence and violence cases. This means that, subject to Charter

challenge [Canadian courts are split on whether s. 33.1 is constitutionally valid] extreme intoxication can only be used for other kinds of offences. Be aware that nothing in s. 33.1 abolishes the defence of simple intoxication it limits only the defence of extreme intoxication.

R v Daviault - Daviault, an alcoholic, delivered a bottle of brandy to a 65 year-old woman in a wheelchair. She had one drink and fell asleep. Daviault, who had already had seven or eight beers during the day, drank the rest of the 40-ounce bottle of brandy. This put him at a level of intoxication that would lead to coma or death in most people. He sexually assaulted the woman; however he was so drunk that he did not remember any of it. Expert evidence was adduced at trial stating that a blood alcohol level as high as Daviault's could have resulted in an episode of "l'amnsie-automatisme", also known as a blackout. Daviault was acquitted at trial, as the judge held he was so intoxicated that he was unable to form the mens rea of the offence, but the Court of Appeal substituted a conviction. Cory, writing for the majority, finds that voluntary intoxication can act as a defence in crimes of general intent only if the intoxication was such that the person was in a state of automatism. Allowing people to be convicted even though they were acting autonomously violates s.7 and s.11(d) of the Charter. Allowing convictions in these cases the court would essentially be substituting the intent to get drunk for the intent to commit the crime, which is unfair. Sopinka, in the dissent, argues that denying this defence is not contrary to the Charter. He does not think that voluntariness to commit the actus reus of an offence is a principle of fundamental justice. He states that automatism does not apply in cases where the accused has brought the state on by his or her own fault. He holds that although the distinction between general and specific intent crimes is illogical for some things, it makes sense for this therefore the Leary rule applies and the defence of drunkenness does not apply in cases of general intent.

The appellant, Mr. Bouchard-Lebrun, took some drugs, after which he and a friend broke into a building to attack Mr. Lvesque, one of the residents. During the altercation, a neighbour tried to come to Mr. Lvesques aid. Mr. Bouchard-Lebrun grabbed him and pushed him down some stairs, then went down after him and stomped on his head several times. Mr. Bouchard-Lebrun was charged with attempt to break and enter, breaking and entering, assault and aggravated assault. At trial, Mr. Bouchard-Lebrun claimed that when he had committed the acts, he had been in a psychotic state caused by his friends influence over him, and he raised the defence of self induced intoxication. In light of the expert evidence, the Court of Qubec held that the psychosis had been caused by his drug use. It acquitted him on the counts of breaking and entering and attempt to break and enter on the basis that owing to his mental state, he had been unaware of the consequences of his actions. However, it convicted him of aggravated assault and assault, because s. 33.1(3) provides that self induced intoxication is not a defence to such offences. On appeal, Mr. Bouchard-Lebrun raised the defence of mental disorder provided for in s. 16

Cr.C. The Quebec Court of Appeal dismissed the appeal of the verdict and the motion for leave to appeal the sentence. It held that Canadian courts have held that the defence of mental disorder is not available to an accused suffering from psychosis induced by drug use in circumstances similar to those in this case. 33.1 applies when (1) the accused was intoxicated at the material time (2) the intoxication was self induced and (3) the accused departed from the standard of reasonable care generally recognized by society by interfering or threatening to interfere with the bodily integrity of another person S1 could save the violations because they are responding to the possibility that it could result in a complete acquittal

Involuntary Intoxication R v King a defence for general intent offence of impaired driving if accused did not know that the substance might impair, but also that the accused could not reasonably know that the substance would impair.

Defence of the Person a justification The self-defence provisions in the Criminal Code were amended in March of 2013, to replace defences which were widely seen as excessively technical and badly drafted s34 the omission of the concept of justification in the new section is consistent with recent developments in self-defence especially in the context of battered women. (a) an honest but reasonable mistake is not fatal to defence R v Lavallee - Lavallee and her common law partner Rust (the victim) had an abusive relationship, however she kept coming back. On the night of the killing, there was a party at their house. Rust hit her and told her that she was going to "get it" when all the guests left. He threatened to harm her, saying "either you kill me or I'll get you". During the altercation Rust slapped her, pushed her and hit her twice on the head. At some point during the altercation he handed Lavallee a gun, which she first fired through a screen. Lavallee contemplated shooting herself, however when Rust turned around to leave the room she shot him in the back of the head. She was charged with murder. A psychiatrist gave expert evidence at trial describing her state of mind, and that she felt as though she was "trapped" and that she would have been killed if she did not kill him. The jury acquitted her at trial, but this was overturned at the Court of Appeal who ordered a new trial. Lavallee appealed this order to the Supreme Court. Wilson, writing for a unanimous court, vehemently disagrees. After going into the history of spousal abuse and the effects that it has on the women who are abused, she held that expert evidence is very much admissible and helpful in establishing the necessary elements were present for s.34(2) to provide a defence. This section requires the accused to have reasonably believed that she was in danger, and that she had no other option to stop it other than causing death or grievous harm.

This expert testimony helps prove that the defence was not too far removed temporally, or too violent to have been reasonable in the circumstances. Therefore, the trial judge did not err in allowing Dr. Shane's testimony to be used as evidence available to the jury. Ratio Self-defence applies even when you are not directly or immediately in harm. Expert testimony can be very helpful in claims of self-defence as it helps the jury/judge understand the condition that the accused was in when they acted and allows for an objective determination if their actions were reasonable in the circumstances. Actions that claim to be in self-defence but are too temporally removed or violent in the circumstances to be considered reasonable will not satisfy the s.34(2) requirements to be a defence.

Necessity The defence of necessity permits the conduct of the accused to be excused where its elements are met. The defence is heavily circumscribed. R. v. Latimer (2001)whether jury should have been allowed to consider defence of necessity. The accused must establish: - Imminent peril or danger: disaster must be imminent, or harm unavoidable. The accused did not himself face any peril, and T's ongoing pain did not constitute an emergency in this case. T's proposed surgery did not pose an imminent threat to her life, nor did her medical condition (cerebral palsy). It was not reasonable for the accused to form the belief that further surgery amounted to imminent peril, particularly when better pain management was available Must be on the verge of transpiring and virtually certain to occur, foreseeable s 7 violation probable here - No reasonable legal alternative to the course of action: given the accused had to act, could he nevertheless realistically have acted to avoid peril or prevent harm without breaking the law? the accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on, with what was unquestionably a difficult situation, by helping T to live and by minimizing her pain as much as possible or by permitting an institution to do so - Proportionality between the harm inflicted and the harm avoided. The harm inflicted in this case (death) was immeasurably more serious than the pain resulting from T's operation which the accused sought to avoid. Killing a person -- in order to relieve the suffering produced by a medically manageable physical or mental condition -- is not a proportionate response to the harm represented by the non-lifethreatening suffering resulting from that condition. The judge was correct to remove the defence of necessity form the consideration of the jury because there was no air of reality to any of the required elements of the defence. (1) and (2) are modified objective tests while (3) is purely objective.

Duress The defence of duress is available under section 17 of the Criminal Code and at common law. Section 17 identifies a limited defence, but the common law and Charter have been used to extend its application. R v Hibbert - On November 25, 1991, Cohen, a friend of the appellant, was shot four times in the lobby of his apartment building. The appellant had called for his friend Cohen to come downstairs from his apartment at which point another man, Bailey, shot Cohen four times when he came downstairs. Hibbert contends that he only acted the way he did (in calling Cohen downstairs) because Bailey threatened him and therefore the defence of duress should apply. Hibbert was acquitted of attempted murder at trial but convicted of aggravated assault; his appeal on the conviction was dismissed by the Court of Appeal, but his sentence was reduced appeal allowed, new trial Ratio : Section 17 only applies to principal actors in crimes; the common law defence of duress applies to secondary actors. Duress may be used as a defence either to negate mens rea or as an excuse-based defence under s. 17 or the common law defence of duress; the defence can always apply, but whether or not the coercion will mean that the mens rea is not present will depend on the particular charge and facts of the case. The common law defence only requires you to determine if the accused had a "reasonable legal alternative" using a modified objective test.

R v Ruzic - Ruzic was a 21 year old woman from Belgrade, Yugoslavia. A street thug approached her while she was walking her dog in Belgrade and threatened to kill her mother if Ruzic did not do as he asked. He knew everything about her, although she didn't know who he was. She was provided with a false Austrian passport and had three packages of heroin strapped to her body and was told to fly to Toronto and deliver the heroin to a restaurant. She was arrested upon arriving in Canada and was charged with possession of a false passport and importing narcotics. At trial she successfully challenged the constitutionality of s.17 of the Code and raised the common law defence of duress and was acquitted. The Crown's appeal was dismissed. LeBel, writing for a unanimous court, holds that as Ruzic is the primary actor s.17 does apply to her. However, she has a problem because the person who made the threats is halfway around the world. She argues that the requirement that the threat be immediate and present is too limited and that it violates s.7 of the Charter. She argues that she is still acting involuntarily despite the fact that the person making the threat is so far away. The court accepts this, and says that moral voluntariness is a principle of fundamental justice protected under s.7; it is required for criminal liability. The court therefore states that s.17is unconstitutional in part because of this violation, but they do not specifically address which parts are unconstitutional (immediacy of death or bodily harm) LeBel then lays out the common law rules for duress, which state that the threat only has to be made to yourself or someone else (not included in s.17). It does not talk about the threat needing to be immediate.

It also requires no easy route of legal escape but does require a close temporal connection between the threat and the harm. They say that she meets these requirements, despite the fact that it seems like she had lots of ways out, and the appeal is dismissed. Common Law Duress Elements: - A threat to the integrity of the person: the law includes a requirement of proportionality between the threat and the criminal act executed. The accused should be expected to demonstrate some fortitude to put up a normal resistance to the threat - 1)reasonable belief in threats of death or bodily harm - 2) The threat must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. Although the threat need not be immediate, there must be a close temporal connection between the threat and the harm threatened (the threat had to a be a real threat affecting the accused at the time of the offenceno immediacy) - 3) proportionality - Threats need not be made by a person who is at the scene of the crime (no presence requirement) When the duress defence is raised and there is some evidence to support it, the burden is on the Crown to show beyond a reasonable doubt that the accused did not act under duress. The law does not require an accused to seek the official protection form the police in all cases before the defence can succeed

R v Ryan 2013 - Nicole Doucet Ryan (now Nicole Doucet) alleged that she was subject to repeated abuse and torment by her husband, Michael Ryan. At trial, the trial judge accepted she was subject to such abuse. The husband was never called to testify. In September 2007, Ms. Doucet began to think about having her husband murdered. Over the course of the next seven months, she spoke to at least three men whom she hoped would kill him. In December 2007 or January 2008, she paid one man $25,000 to carry out the killing, but he then refused, demanding more compensation. She approached another person and was contacted by a third, an undercover RCMP officer, posing as a hit man. On March 27, 2008, she met with this individual and agreed to pay him to kill her husband. The agreed upon price was $25,000, with $2,000 paid in cash that day. The killing was to take place the coming weekend. Later that same night, she provided an address and a picture of her husband to the hit man. Shortly after, she was arrested and charged with counselling the commission of an offence not committed contrary to s. 464(a) of the Criminal Code, R.S.C. 1985, c. C-46. At trial, there was no issue that the elements of the offence had been proved and the trial judge, Farrar J. (as he then was), indicated that he was satisfied beyond a reasonable doubt that the requisite elements of the offence of counselling the commission of an offence had been established. He based this conclusion on the Ms. Doucets admission that the Crown had proved a prima facie case and on the audio and video tapes of recorded conversations with the undercover officer and a statement made on arrest. The only issue at trial was whether Ms. Doucets otherwise criminal acts were excused because of duress. The accused had raised that the common law defence of duress applied. The Crown argued that

on the facts of this case, the components of duress were not present. But it did not argue at trial, as it did later on appeal, that the defence of duress was not available in law to the accused. The trial judge accepted her version and acquitted her on the basis she had established she was acting under duress. The Nova Scotia Court of Appeal unanimously upheld her acquittal. The Court unanimously allowed the Crown appeal. The majority entered a stay while the dissenting judge, Fish J., would have ordered a new trial, leaving it to the Crown to determine whether a retrial was in the public interest. The Court accepted the facts found by the trial judge. The only issue was whether the defence of duress was available. The Court accepted the Crowns argument, which was made for the first time, that duress was not available. Duress is available when one is compelled to commit a crime against an innocent third party. In this case, given the facts found by the trial judge, the husband would not be an innocent victim. Rather he would be the author of his own misfortune. Moreover Ms. Doucet was never compelled to act as she did. The Court alluded to the possibility of invoking self-defence as a possible defence. Fish J. found the granting of the stay of proceedings was inappropriate. He would have ordered a new trial. Any further defence advanced by the accused could be made then.

Provocation The defence of provocation applies solely to the offence of murder. It is a partial defence, reducing convicton to manslaughter where its elements are met. the ordinary person should only be modified to place the act or insult in context but not to shift the ordiary person standard to suit the individual accused R v Tran - On February 10, 2004, Thieu Khan Tran found his estranged wife in bed with her new boyfriend. Tran stabbed the man to death. The Supreme Court of Canada decided that the trial judge had erred in law in finding that there was evidence to substantiate the defence of provocation. There was no insult. Tran knew his wife was involved with another man. He suspected his wife was involved with another man. Therefore, it cannot be said that the discovery, struck upon a mind unprepared for it. There is a difference between vengeance and provocation. (1) Provocation occurs if the person who committed the act did so in the heat of passion caused by sudden provocation (both the insult and the act of retaliation). (2) Requires the examination of a mix of subjective and objective factors when determining if a wrongful act or insult constituted provocation. OBJECTIVE: whether the wrongful act or insult is of such a nature as to be sufficient to deprive an ordinary man of self control (sex, race, age may be considered for ordinary person- homophobia and sexism should not be considered). SUBJECTIVE: the accused did act on the provocation and did so before there was time for his passion to cool (background, temperament, idiosyncrasies or drunkenness of the accused may be considered). The requirement of suddenness must apply to both the provocation and to the accuseds reaction to it.

(3) Whether a particular act or insult amounted to provocation and whether the accused was deprived of his self-control as a result of the provocation are questions of fact. legal right interpretation could continue to deny women equal protection and benefit of the law in that it applies only to legal rights authorized by law and not freedoms

Entrapment Entrapment is a common law defence that applies even where the accused has committed a crime with the required fault. It results in a stay of proceedings in cases where a state agent has provided the accused with an opportunity to commit a crime without either a reasonable suspicion that the accused was involved in crime or a bona fide inquiry into a particular type of crime in a high crime area. Alternatively even if there is a reasonable suspicion or a bona fide inquiry, entrapment will apply and result in a stay of proceedings if the state agent induces the commission of the crime.

R. v. Mack, [1988] 2 S.C.R. 903 In 1980, Norman Mack was arrested and charged with drug trafficking. At the trial he testified that over a six-month period Momotiuk, a drug user, had asked Mack several times to provide him with drugs. Mack, who had a number of previous drug convictions, gave up narcotics in 1979, and he did not wish to return to his former lifestyle. Mack was unaware that Momotiuk was a police informer. Momotiuk continued to ask Mack to get him some drugs. On one occasion, while he and Mack were walking in a remote part of the woods, he produced a pistol and saying, A person could get lost. Mack testified he felt threatened by that remark. On another occasion, Momotiuk asked Mack to come to a hotel. Mack testified he went to the hotel because he was terrified of Momotiuk. At the hotel, Mack met other members of an illegal drug syndicate. Mack was shown a briefcase containing $50 000 and told the money was for the purchase of drugs. The person who showed Mack the money was an undercover police officer. Momotiuk again asked Mack to supply him with some drugs and Mack went to a supplier he knew and bought a sample of drugs to take back to Momotiuk. Momotiuk liked the sample and asked Mack to buy as much of the drug as he could. The following day Mack had still not bought the drugs and he testified that, at this point, he was told to get his act together in a threatening way. Mack bought 340 grams of coc aine and was later arrested and charged with drug trafficking. At the close of his defence, Mack brought an application for a stay of proceedings, asking the judge to stop the trial on the basis of entrapment. The application was refused and Mack was convicted of trafficking in drugs. His appeal was dismissed by the Court of Appeal and Mack appealed to the Supreme Court of Canada. In reaching its decision, the Supreme Court of Canada acknowledged that in an investigation for drug trafficking, traditional investigation devices cannot always be used. However, in this case, the police went beyond merely providing the accused with the opportunity to commit an offence. The threatening manner

in which the informant acted toward the accused when he would not become involved in drug dealing and the number of times the informer approached the accused to become involved was unacceptable. The Supreme Court of Canada found that entrapment had occurred and it allowed the appeal.

Ignorance of the Law The general rule, that ignorance of the law is no excuse, is reflected in s 19 of the Criminal Code. This general principle is subject to exceptions in limited circumstances. In particular, when colour of right is specified to be relevant, a mistake about the law can be relevant. Further, the Supreme Court of Canada has created the common law defence of officially induced error. Lilly v the Queen - Appellant, a licensed real estate broker, was convicted of theft of $26,759.58, being sums deposited in trust with respect to real property transactions. The appellant relied, for 18 of the 21 transactions involved in the count on which he was found guilty, on the defence of colour of right alleging he thought he could lawfully transfer the amounts from the in trust account to the agencys general account once the offer to purchase the property had been accepted. As to the other transactions involving a total of $13,500 he relied on an alleged lack of knowledge of the transfers. The Court of Appeal dismissed appellants appeal. This appeal is to determine whether the trial judge misdirected the jury as to the meaning of the phrase colour of right. Held: The appeal should be allowed and a new trial ordered. In his charge, the trial judge misdirected the jury. The fate of the appellants defence of colour of right was not dependent upon the jury determining when the commissions were payable. Rather, the defence was dependent upon whether the jurors were satisfied beyond a reasonable doubt that the appellant had not, at the time of the transfers, an honest belief that he had the right to that money, and not, as they were told, dependent upon what they thought his rights were. Further, the conviction cannot stand for it was impossible to know whether the conviction stood solely on those transactions that did not raise the defence of colour of right.

R v Jones - The appellants were charged with unlawfully conducting a bingo contrary to s. 206(1)(d) of the Criminal Code. The charges arose out of gaming operations at the Shawanaga Reserve, which were initiated under three Band Council resolutions signed by the appellants as Chief and Councillor of the Shawanaga First Nation. Before conducting the lotteries, the appellants had been advised by representatives of the province, including the Ontario Provincial Police, that the Criminal Code prohibits lottery schemes, other than those conducted under the auspices of a provincial licence. The appellants were convicted at trial and their convictions affirmed by the Court of Appeal. In addition to the constitutional questions dealt with in R. v. Furtney, [1991] 3 S.C.R. 000, this appeal also raises the issue of whether the appellants were entitled to be acquitted by reason of a defence of colour of right. That right

was the belief that s. 206 did not apply to their activities since they were carried out on a reserve which they thought was not subject to the laws of Canada relating to gaming. Held: The appeal should be dismissed. The defence of colour of right does not apply to a charge under s. 206(1)(d) of the Code. First, no authority was cited for the proposition that colour of right is relevant to any crime which does not embrace the concept within its definition. Second, appellants' mistake was one of law, rather than of fact. They mistakingly believed that the law did not apply because it was inoperative on Indian reserves. A mistake about the law is no defence to a charge of breaching it.

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The Adversarial Process As indicated, a trial is the opportunity for the Crown prosecutor to prove the specific allegation made in the charge (information or indictment) beyond a reasonable doubt. The key characteristic of the Canadian criminal trial is therefore the specific allegation. The Presumption of Innocence and the Ultimate Standard of Proof At a Canadian trial, the accused is presumed to be innocent, a right guaranteed by s.11(d) of the Charter. This means that ultimately, at the end of the whole case, the Crown must prove the guilt of the accused beyond a reasonable doubt. This is the Crowns ultimate burden in both a criminal or regulatory prosecution. R v Lifchus - Lifchus was a stockbroker who was accused of fraud and theft. He was convicted of one and acquitted of the other. He appealed on the basis that the judge did not properly explain the burden of proof to the jury. He said that "beyond a reasonable doubt" is simply an everyday idea and that everyone understands it - a "plain language" approach. The Court of Appeal allowed the appeal ordering a new trial, which the Crown appealed. Cory, writing for the majority, agrees that this was not the correct way to describe "beyond a reasonable doubt" to a jury, because it is not simply the plain understanding of it. He gives a list of things to include in a charge: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice, rather, it is based upon reason and common sense;it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit;and a list of things not to include: describing the term as an ordinary expression which has no special meaning in the criminal law context; inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives; equating proof "beyond a reasonable doubt" to proof "to a moral certainty; qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt".

R v Starr - In August 1994, Bernard Cook and Darlene Weselowski were drinking with Robert Dennis Starr in a hotel near Winnipeg. In the late hours of the night Starr parted ways with Cook and Weselowski. Together, Cook and Weselowski were approached by Jodie Giesbrecht, a sometimes girlfriend of Cook. During an ensuing conversation Cook told Giesbrecht that he could not go with her that night because he

had to "go and do anAutopac scam with Robert", as he had been given $500 for wrecking a car for insurance purposes. A few hours later the bodies of both Cook and Weselowski were found on the side of a nearby highway. They had been shot in the head. Starr was arrested in connection with the murders. At trial, the Crown advanced the theory that the murders were gang-related, where Starr had used the insurance fraud scam as a means to get Cook into the countryside to murder him. The case hinged on the testimony of Giesbrecht and the statement she heard from Cook that night. The Court held that the judge failed to properly instruct the jury on the standard of proof. The judge should have placed beyond a reasonable doubt between absolute certainty and balance of probabilities.

R. v. S.(J.H.), (2008) Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding. Lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. The trial judge explained that even if the jury did not accept all of the accused's testimony, they could still accept some of it. She also explained that any reasonable doubt must be resolved in favour of the accused and, in that context, she reminded the jury that they must consider all of the evidence when determining reasonable doubt. This was sufficient.

Other Burdens While the Crown prosecutor must prove guilt beyond a reasonable doubt at the end of the case, there are other burdens of proof that operate during the criminal process. There are evidential burdens that some rules of law impose in order for a party who wishes a matter to be placed in issue to succeed in having that matter placed in issue. For example, if at the end of the Crowns case in chief the defence argues that there is no case to meet and requests a directed verdict of acquittal the judge will evaluate whether the Crown has shown a prima facie case. This is the same standard that applies where the accused is entitled to and requests a preliminary inquiry to determine whether there is a case to answer; the preliminary inquiry judge will discharge the accused unless the Crown can show a prima facie case. R v Arcuri - The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty . Under this test, a preliminary inquiry judge must commit the accused to trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction. The nature of the judges task, however, varies according to the type of evidence that the

Crown has advanced. Where the Crowns case is based entirely on direct evidence, the judges task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true. It is for the jury to say whether and how far the evidence is to be believed. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judges task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial. The judges task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence that is, those elements as to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established that is, an inferential gap beyond the question of whether the evidence should be believed. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

Even the accused must at times satisfy an evidential burden in order to have a matter placed in issue. Indeed, if the accused wants to have a defence considered, the accused must show that the defence has an air of reality to it. If the accused succ eeds, the judge must consider the defence, and in a jury trial must direct the jury on the law that applies to that defence.

R v Cinous, 2002 SCC 29 Facts: C was involved in criminal underworld. C was with X and Y and said he knew they were planning on killing him. C went in to store. When came back saw an opportunity and shot X and Y Issue(s): Is there an air of reality to the defence of self-defence? Ratio: Air of reality whether there is evidence on record upon which a properly instructed jury acting reasonably could acquit. Must be some evidence on all 3 elements of the defence of self-defence to give it to the jury Both a subjective and an objective elements (no a modified test) Analysis: Elements: *Unlawful attack, (C has this, both objective and subjective) *Reasonable apprehension of harm and death, and (C has this both ob and sub)

*Reasonable apprehension of no alternative to not be hurt or killed (this is wear it fails, on the objective part) It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot the accused must be able to point to a reasonable ground for that belief The belief he had no option but to kill must be objectively reasonable For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment Comments: When doing air of reality test for self-defence, must do it both objectively and subjectively. Therefore you would be looking at the 3 elements from the test 2 times. whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. Re (1): "no evidence", "some evidence" or "any evidence" can be used to describe the applicable evidential standard, provided these terms are understood as elliptical references to the full question. Re (2): whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. This is the current state of the law, uniformly applicable to all defences (all elements of positive defe nces must meet air of reality test).

R. v. Fontaine (2004)reverse onus defences require evidential, not persuasive burden. Reverse onus provisions are presumptions deeming the fact to exist where the Crown proves the basic fact (persuasive burdenmatter of fact). The presumption is rebuttable by a balance of probabilities (evidential burdenquestion of law) It is not necessary that the relevant evidence be believed in order for the defence to succeed an accused is entitled to be acquitted on the basis of exculpatory evidence that the jury does not reject but either accepts or about which it is undecided (BOPlower standard of proof). In the case of "reverse onus" defences, such as mental disorder automatism, it is the accused who bears both the persuasive and the evidential burdens. In these defences, the persuasive burden is discharged by evidence on the balance of probabilities. There are numerous rules of evidence called presumptions that operate to assign burdens of proof on the accused. A presumption is a rule of law that directs judges and jury to assume that a fact is true (known as the presumed fact) in any case where the Crown proves that another fact is true (known as the basic fact), unless the accused can rebut the presumed fact according to the assigned standard of proof. Those presumptions known as mandatory presumptions can be rebutted by the accused simply raising a reasonable doubt about whether the presumed fact follows from the basic fact. Where a mandatory presumption is rebutted, the presumed fact falls back into issue notwithstanding the

presumption, and must be proved by the Crown in the ordinary way, without the assistance of the presumption. Other presumptions operate as reverse onus provisions, deeming the presumed fact to exist where the Crown proves the basic fact unless the accused disproves the presumed fact on the balance of probabilities. A presumption can be easily recognized as a mandatory presumption because the legal rule raising the presumption will use the term evidence to the contrary to describe the burden of rebuttal. A presumption will be interpreted as a mandatory presumption where it fails to set out the required standard of rebuttal because of s. 25 (1) of the Intepretation Act. Many presumptions operate in alcohol driving prosecutions and are used to determine whether the accused has more than a legal amount of alcohol in his blood while driving or having care or control of a motor vehicle: See, for example, s. 258 (1) (a), [a reverse onus provision] and ss. 258 (1) (c), (d.1) and (g), all mandatory presumptions. Presumptions are prima facie contrary to the Charter and must be saved under s. 1.

R. v. Oakes (1986)burden to rebut a presumption A presumption is a rule of law that directs judges and jury to assume that a fact is true (known as a presumed fact) in any case where the Crown proves that another fact is true (known as the basic fact), unless the accused can rebut the presumed fact according to the assigned standard of proof. Mandatory presumptions are recognized by the term evidence to the contrary (burden of rebuttal) and can be rebutted simply by raising a reasonable doubt about whether the presumed fact follows from the basic fact. In criminal cases, legal presumptions are often in tension with the presumption of innocence a provision that requires an accused to disprove on a BOP the existence of a presumed fact violates the presumption of innocence. If an accused bears the burden of disproving an element of the offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his innocence but did not convince the jury on a BOP that the presumed fact was untrue

The Neutral Impartial Trier - Another critical component of the adversarial system is the presence of a neutral, impartial trier of law (to make legal decisions) and a neutral impartial trier of fact (to make factual findings at the end of the trial). In Canada, more than 95% of all criminal trials are conducted by a judge alone, so the judge performs the role both of the trier of law and the trier of fact. Where there is a jury trial, the judge acts as the trier of law, and the jury as the trier of fact. This means that the judge makes all legal and procedural decisions during the trial, and directs the jury by training them in the law that applies. The jury then makes the factual decision and renders the holding. In Canada the appropriate sentence is a question of law, and therefore sentencing is done by the judge and not by the jury. Indeed, the jury should not be told of the possible sentences for fear that this will inspire a sympathetic rather than a legal verdict. Requiring the judge to remain neutral and impartial does not require the judge to remain passive.

This is especially so in the case of a self- represented accused, where a trial judge has a duty to see to it that the accuseds fair trial right is respected. Still, th e essence of the adversarial system is that the parties initiate the proof that is brought forward, not the judge. R. v. Gunning (2005)separation between judge and jury It is a basic principle of law that on a trial by judge AND jury, it is for the judge to direct the jury on the law and to assist in their consideration of the fact. But, it is for the jury to decide whether, on the facts, the offence has been proven. The trial judge must not remove the decision from the jury by instructing them to convict. Such an instruction violates an accuseds s. 11(f) right to trial by jury. R. v. Hamilton (2004)judge interference in sentencing The trial judge concluded, based on his own materials and experience, that Hamilton and Mason were the victims of systemic racial and gender bias which led to their impoverished circumstances and made them vulnerable to those seeking cocaine couriers. He found that this was a factor which mitigated the sentences they received. Sentencing aims at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender. Factual findings that are germane to the determination of the appropriate sentence and are not properly the subject of judicial notice must be supported by the evidence. There was no evidence to support the judges findings. The trial judge stepped outside of the proper role of a judge on sentencing and ultimately imposed sentences that were inconsistent with the statutory principles of sentencing and binding authorities from this court.

The Role of the Prosecutor - The prosecutor is an advocate, but also a quasi-judicial officer. This means that the prosecutor cannot act solely as an advocate, but must make decisions in the interests of justice and the larger public interest, including the interests of the accused. The prosecutor has many discretionary decisions that can be made and should act as a minister of justice.

Boucher -v- The Queen; 1954 The prosecutor in a criminal case has a duty to act impartially with no notion of winning or losing.

Krieger v. Law Society of Alberta (2002)Prosecutorial discretion is not reviewable except in cases of flagrant impropriety. Because prosecutors must be members of the Law Society, they are subject to the code of professional conductall conduct not protected by prosecutorial discretion is subject to the conduct review process. Disclosure of relevant evidence is a matter of prosecutorial duty, and transgressions related to this duty constitute a very serious breach of legal ethic

R v Nixon, 2011 SCC 34

The case makes an important contribution to refining the scope of prosecutorial discretion, and the proper test for abuse of process under s. 7. Facts and Judicial History - The appellant was charged with several offences, including dangerous driving causing death, dangerous driving causing bodily harm, and separate impaired driving offences. Due to perceived evidentiary issues, the Crown attorney entered into a plea agreement with Nixon, where the more serious charges were dropped and she agreed to plead guilty to the lesser charge of careless driving. When the Acting Assistant Deputy Minister (ADM) became aware of the plea bargain, he found that Crown counsel erred in evaluating the strength of the prosecution case, and decided that the plea agreement was not in the best interests of justice. As a result, the ADM instructed Crown counsel to withdraw from the resolution of the agreement and to proceed to trial on the dangerous driving offences. Nixon brought an application under s. 7 of the Charter claiming that the Crowns repudiation of the agreement amounted to an abuse of process in breach of her rights, and requested a court order that the Crown abide by its terms. The application was successful. The Crown successfully appealed to the Court of Appeal for Alberta; Nixon appealed to the Supreme Court of Canada. The appeal was dismissed. Issues At the Supreme Court, two main issues were in dispute: first, whether the decision to repudiate the plea agreement was a matter of prosecutorial discretion, reviewable only for abuse of process, or whether it fell within the ambit of tactics and conduct before the court; second, whether the correct test for determining an abuse of process should focus on the reasonableness of the initial plea bargain, or whether it should focus on the circumstances of the repudiation. Holding The Supreme Court held that the decisions to enter and to repudiate a plea agreement are exercises of prosecutorial discretion, subject to judicial review only for abuse of process. For such a decision to qualify as abuse of process under s. 7, it must amount to either (1) prosecutorial conduct affecting the fairness of the trial, or (2) prosecutorial conduct that contravenes fundamental notions of justice. The decision to be assessed for abuse of process is the decision to repudiate the plea agreement.

The Role of the Defence - The defence counsel is an officer of the court, and therefore must be respectful and honest with the court and must not attempt to mislead the court as to the state of the law. Subject to this and the rules of law and ethics, the defence counsel is obliged to act solely in the interests of the accused, advising the accused on the implications, and propriety, of pleading guilty, securing advantage of all procedural and constitutional protections available to the accused that are not properly waived; and if the accused pleads not guilty, preparing the case fully, challenging the sufficiency of prosecutorial evidence, and advancing all defences that properly arise.

THE CRIMINAL INVESTIGATION Police Powers Police officers are independent of the Crown prosecutor in Canada. This independence is important to permit the prosecutor to act as a quasi-judicial officer, and not get too close to the mind-set of an investigator. Still, the police will often seek legal advice from Crown prosecutors, including on the wording of search warrants and the like. In the interests of securing liberty, the powers of the police are constrained by law, although can be derived from statute, common law and by implication from statute and common law. Police powers are also significantly limited by the Charter, most significantly s. 8 (unreasonable search or seizure) and s. 9 (arbitrary detention). Courts have undertaken a careful balancing of police powers in an attempt to ensure respect for liberty, without undermining the effectiveness of police investigations and law enforcement. The law of evidence supports limits on police powers. Although not covered in this examination, individuals have the right to remain silent in their dealings with the police, what they say cannot be admitted if it is not voluntary. Where there has been an unconstitutional search or arbitrary detention, evidence that has been obtained as a result may be excluded from consideration. Police officers also have significant obligations to perform in securing the right to counsel for the subject, again, obligations that go beyond this examination. Statutory powers: Includes powers allowing police to arrest an accused, compel an accuseds appearance in court via a summon or appearance notice, use force, search suspects, etc. Common law powers - Historical powers o Search incident to arrest for the purposes of ensuring safety, protection of evidence form destruction, and discovery of evidence (Caslake). Strip searches incident to arrest (Golden reasonable and probable grounds to believe a strip search is necessary in the particular circumstances of the arrest. o To enter into a private dwelling in hot pursuit (Feeney) - New common law powers can be created the ancillary powers doctrine (Waterfield): the SCC has relied on this doctrine to support police power in a number of areas. There are problems with relying on this test because it was not intended to allow the creation of new common law powers. o Does the conduct (police) fall within that general scope of any duty imposed by statute or recognized at common law? o Does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. - Consent - Default common law powers: police have the power to do anything that will not result in some remedy being granted to an accused.

b. Powers of search and seizure: the ability of police to interfere with the liberty of individuals is most evident in the powers of search and seizure The law in this area attempts to balance individual interests (i.e. liberty) with interests of the state. Search: Investigative techniques are searches depending on whether it infringes on a persons reasonable expectation of privacy. NOTE: analyze searches with warrant and searches without warrant separately. Searches With a Warrant. - Searching places: general search warrant provision is found in s. 487 o May be issued by a justicejustice must be satisfied of more than the possibility that evidence will be found. The justice must be given facts that show the basis for the reasonable and probable grounds and not simply be satisfied that the police officer in fact has such a belief. (which must fall into 4 categories) Anything on or in respect of which an offence has been committed Anything that will provide evidence regarding an offence or the location of a person suspected of committing an offence Anything reasonably believed to be intended to be used to commit an offence for which the person could be arrested without warrant (offence related property), OR The search must be related to a building, receptacle or place o Limits to search warrant powerspecificity as to what evidence is to be found. o Section 489 allows police who are searching under a warrant to seize items not mentioned in the warrant if they believe on reasonable grounds that they were obtained, or were used in, or offered evidence concerning an offence - Searching people: warrants for taking blood, saliva, etc. o Only available for designated offence listed in s. 487.04 o Section 487.05requirements for warrant o Basic requirements: Provincial court judge must be satisfied by information on oath that a bodily substance connected with an offence has been found, That a person was a party to the offence, and The DNA analysis of the substance will provide evidence about whether the bodily substance was from that person The judge is required to believe that the issuing of the warrant will be in the best interest of the administration of justice o If the DNA warrant concerns young people, the young person is to be informed of the right to a reasonable opportunity to consult with and have the warrant executed in the presence of counsel, a parent, or other adult. - Reviewing a warrant:

o The Code contains no provisions to review a warrant, but it is possible to challenge the issuance of a warrant by way of certiorari (review warrant issuance process) o The central issue is whether the requirements for its issuance under the Code have been met. o The question for the reviewing judge is whether there is evidence upon which the issuing judge could have decided to issue the warrant (Garofoli). The actual result of the search is not relevant on review. Searches without a warrant - Every warrantless search is prima facie unreasonable under s. 8 of the Charterguarantee against unreasonable search and seizure (Hunter v. Southam) - Every warrantless search must be made consistent with minimum Charter standards. TEST: o Threshold issue: the individual searched must have a reasonable expectation of privacy over their person, territory and information (if no reasonable expectation of privacy, no breach of s. 8) Entitlement to privacynot whether X had privacythe standard of privacy that a person can expect to enjoy in a free and democratic society (Wong) Edwards factors (totality of the circumstances in search of apartment rented by the individuals girlfriend): presence at the time of the search, possession or control of the property or place searched, ownership of the property or place, historical use of the property or item, ability to regulate access (including the right to admit or exclude others), the existence of a subjective expectation of privacy, objective reasonableness of the expectation. 3 kinds of interests that privacy protects: personal, territorial, informational (difficult to prove) (Tessling). Significance of a right to privacy on a sliding scale. o Once determined that an individual has a reasonable expectation of privacy, then the search was a prima facie violation of the accuseds s. 8 rights. The issue becomes whether the search is reasonable, or whether is was an intrusion, in light of that expectation of privacy. Sliding scalethe higher level of privacy expected, the higher the burden to prove the search was reasonable. Collins factors Reasonableness of the search is generally determined by the Collins factors have they been met? (a) Is the warrantless search authorized by law: (i) Statute? (e.g. warrantless searches are authorized by s 487.11 (in relation to the s487 search warrant power) (ii) C/L? (i.e. search incident to arrest; search during investigative detention; exigent circumstances. Here, if you are saying that there is a search incident to arrest, you would have to go through the elements identified in the book, i.e., you would have to establish that: the arrest was lawful; the search was truly incidental to that arrest and that the search was conducted in a reasonable manner)

(iii) Consent? Valid consent for purpose (Arp) (b)Is the law reasonable? Redundant sometimes (C)Is the manner in which the search is carried out reasonable? Collins seizing throat in drug search not reasonable; Thompson wiretap of public phone at all times without restrictions was unreasonable - NOTE: there are variations on the Hunter v. Southam standardsearches under an administrative scheme and search of press offices have different rules o Administrativepeople in regulated industries have a lower expectation of privacy. o Press officesconsidering s. 2(b) freedom of the press, whether the warrant should be issued turns on whether the information can be attained from an alternate source, whether the search and seizure would have a chilling effect on sources for media Power of Detention at the Investigative Stage - Detention o Section 10(b) gives rights to people who are detained (right to counsel). The issue is whether someone has been detained. One troubling context is police questioning when does this qualify as a detention and therefore give the detainees s. 10(b) rights? - Common law powers of detention o Some powers of detention exist by statute. The ability to make breathalyzer demands and routine traffic stops, and some aspects of customs searches are all legislative created detentions. Common law detentions are more controversial (Dedman upheld RIDE program under Waterfield test as a valid form of detention) Investigative detention (Mann test): reasonable grounds for officers suspicion that individual is implicate in criminal activity under investigation. The overall reasonableness of the decision to detain must further be assessed against all of the circumstances a clear nexus between the individual to be detained and a recent or on-going criminal offence. Police roadblocks

R. v. Grant (2009)detention Issue: Whether the accuseds ss. 9 and 10 rights against unlawful detention were violated. Rule: Detention under ss. 9 and 10 of the Charter refers to a suspension of the individuals liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand OR, a reasonable person would conclude by reason of the state of conduct that he had no choice but to comply. Analysis: Re: Detention: Considering (1) circumstance giving rise to the encounter as they would reasonably be perceived by the individual, the accused was detained before being asked the question that led him to disclose his possession of the firearm. (2) Considering the nature of the police conduct, the sustained and restrictive tenor of the conduct after the direction to the accused to keep his hands in front of him reasonably supports the conclusion that the officers were depriving him of his choice as to how to respond. (3) Considering the particular characteristics of

circumstances of the individual where relevant, the power imbalance was obviously exacerbated by the accuseds youth and inexperience. The evidence supports his contention that a reasonable person in his position would conclude that his right to choose how to act had been removed by the police. Re: Admissibility of evidence: the purpose of s. 24(2) is to maintain the good repute of the administration of justice. Whether evidence should be excluded depends on weighing (1) the seriousness of the Charter breach against (2) the impact of the breach on the accused, (3) societies interest in adjudicating on the merits. Although there was a breach it was not serious, and the impact on the accused could have been worse, but the adjudication of the case on the merits weighs significantly because the gun is highly probative. Conclusion: The evidence of the firearm was obtained in a manner that breached the accuseds rights under ss. 9 and 10(b) of the Charter. An unlawful detention is necessarily arbitrary, in violation of s. 9. The officers acknowledge that they did not have legal or reasonable grounds to detain the accused and his detention was therefore arbitrary. However, in the interest of adjudicating on the merits the gun should be admitted into evidence.

R. v. Suberu (200)timing of detention, right to counsel Issue: At what point was the accused detained giving rise to his right to be advised as to his rights? Rule: The police duty to inform an individual of his s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individuals liberty interest by a significant physical or psychological restraint. Whether questioning has crossed the line from general to focused interrogation amounting to detention is determined by an assessment of all circumstances. Analysis: The accused was momentarily delayed when the police asked to speak to him, ha was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter. A reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention. Conclusion: The accuseds right to counsel did was not engaged when the officer asked him to wait a minute to answer some questions. [ stolen credit card purchases with associate] two underlying purposes of s10(b): to allow person to obtain legal advice about rights and ii) to assist the person to regain personal liberty asap informing of right to counsel hinders (ii) according to Suberu

Power to break the law - Sections 25.1-25.4 of the Criminal Code permit designated police officers to break the law protection of particular officers form criminal liability in particular situations (most often in cases of undercover work) o The officer must be investigating an offence or criminal activity o The officer must believe on reasonable grounds that the act or omission is reasonably proportional to the nature of the offence or criminal activity being investigated.

- Limited by intentional or criminally negligent causing death or bodily harm, willful attempt to obstruct justice, conduct violating the sexual integrity of an individual. - Must have written authorization or exigent circumstances (s. 25.1(9) preservation of life or safety, protect the identity of an undercover officer/informant, prevent imminent loss or destruction of evidence for an indictable offence.)

R v Aucoin 2012 - Late one night, A was stopped by a police officer because the licence plate on the vehicle he was driving was registered to a different vehicle. A failed a roadside screening test and the officer decided to impound his vehicle and issue him a ticket pursuant to the Motor Vehicle Act. Fearing that A might disappear into the nearby crowd, the officer decided to secure A in the rear of his police cruiser while completing the paper work. The officer first conducted a pat-down search, after asking for and receiving As permission. The officer felt something soft in As pocket and, when asked what it was, A said that it was ecstasy. A was arrested and searched further. The officer found cocaine and pills in his pocket. The trial judge held that the search did not violate s. 8 of theCharter and the seized evidence was admissible. A was convicted for possession of cocaine for the purpose of trafficking. His appeal was dismissed by a majority of the Court of Appeal. Held (LeBel and Fish JJ. dissenting): The appeal should be dismissed. Per Deschamps, Abella, Rothstein, Moldaver and Karakatsanis JJ.: A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. Because the pat-down search was a prelude to securing A in the cruiser, the question that arises is whether detaining A in this manner was reasonably necessary in the totality of the circumstances. The question is not whether the officer had the authority to detain the appellant in the rear of the cruiser, but whether he was justified in exercising it as he did in the circumstances of this case. The problem here arises from the shift in the nature and extent of As detention that flowed from the police officers decision to secure A in the rear of his cruiser while he wrote up the tic ket for the motor vehicle infractions. Those factors altered the nature and extent of As detention in a fairly dramatic way, especially when one considers that the infractions for which he was being detained consisted of two minor motor vehicle infractions. The question is whether there were other reasonable means by which the officer could have addressed his concern about A disappearing into the crowd. The officers actions, though carried out in good faith, were not reasonably necessary. Because As d etention in the back of the cruiser would have been unlawful, it cannot constitute the requisite basis in law to authorize the warrantless pat-down search. Nonetheless, the cocaine found on A was admissible into evidence under s. 24(2) of the Charter. There were unusual circumstances that prompted the police officers conduct in this case and he acted in good faith. He attempted throughout to respect As rights. He was not searching for evidence. The search was for reasons of officer safety and As safety. These factors attenuate the seriousness of the

breach. Moreover, the law surrounding police policies in the detention context is still evolving. Where the police act in good faith and without deliberate disregard for or ignorance of Charter rights, as was the case here, the seriousness of the breach may be attenuated.

R v Cole 2012 - The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer. He was permitted to use his work-issued laptop computer for incidental personal purposes which he did. While performing maintenance activities, a technician found on the accuseds laptop a hidden folder containing nude and partially nude photographs of an underage female student. The technician notified the principal, and copied the photographs to a compact disc. The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second disc. The laptop and both discs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes. The trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms. The summary conviction appeal court reversed the decision, finding that there was no s. 8 breach. The Court of Appeal for Ontario set aside that decision and excluded the disc containing the temporary Internet files, the laptop and the mirror image of its hard drive. The disc containing the photographs of the student was found to be legally obtained and therefore admissible. As the trial judge had wrongly excluded this evidence, the Court of Appeal ordered a new trial. Held (Abella J. dissenting): The appeal should be allowed. The exclusionary order of the Court of Appeal is set aside and the order of a new trial is affirmed. Per McLachlin C.J., and LeBel, Fish, Rothstein, Cromwell and Moldaver JJ.: Computers that are reasonably used for personal purposes whether found in the workplace or the home contain information that is meaningful, intimate, and touching on the users biographical core. Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected. Ownership of property is a relevant consideration, but is not determinative. Workplace policies are also not determinative of a persons reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation. While workplace policies and practices may diminish an individuals expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely. A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state intrusion only under the authority of a reasonable law. The police in this case infringed the accuseds rights under s. 8 of the Charter. While the principal had a statutory duty to maintain a safe school environment, and, by necessary implication, a reasonable power to seize and search a school-board issued laptop, the lawful authority of the accuseds employer to seize and search the laptop did not furnish the police with the same power.

Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. The conduct of the police officer in this case was not an egregious breach of the Charter. While the police officer did attach great importance to the school boards ownership of the laptop, he did not do so to the exclusion of other considerations. The officer sincerely, though erroneously, considered the accuseds Charter interests. Further, the officer had reasonable and probable grounds to obtain a warrant. Had he complied with the applicable constitutional requirements, the evidence would necessarily have been discovered. Finally, the evidence is highly reliable and probative physical evidence. The exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process. The admission of the evidence would not bring the administration of justice into disrepute and therefore the evidence should not be excluded. Generally speaking, the decision to exclude evidence under s. 24(2) should be final. In very limited circumstances however, a material change of circumstances may justify a trial judge to revisit an exclusionary order. In this case, the Court of Appeal invited the trial judge to re-assess the admissibility of the temporary Internet files disc if the evidence becomes important to the truth-seeking function as the trial unfolds. Unconstitutionally obtained evidence, once excluded, will not become admissible simply because the Crown cannot otherwise satisfy its burden to prove the guilt of the accused beyond a reasonable doubt.

GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED Securing Jurisdiction over the Accused and Interim Release The police have specified powers to arrest individuals. So too do non-police officers. The common theme in the relevant legal provisions is that arrest taking physical control over the subject - is to be used as a last resort when other measures available for ensuring the good conduct and attendance before the criminal justice process are not practical or desirable. These less intrusive modes of securing attendance include the appearance notice, the promise to appear, and the summons. Where an individual is arrested, he or she must be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending the trial. - Judicial confirmation must occur before or after the arrest. An officer cannot unilaterally compel the appearance of an accused in court. The decision must be confirmed by a judicial officer (typically a JP). Confirmation can occur before or after arrest. - Must give notice to accused of reason for arrests. 10(a) Charter; s. 29 - part xvi is aimed at balancing legitimate state interest in prosecuting crime against individual freedom The least intrusive way is where an officer can show a justice that there are reasonable grounds to believe that an accused has committed an offence, and consequently obtains a summons requiring the accused to appear in court on a specific dates. 507(1)(b)

- Alternatively, the officer can first encounter a person on the street committing an offence and then require that person to appear by means of an appearance notice, which must be confirmed by a justicess. 510, 505, and 508(1)(b) - The most intrusive method is by taking physical control of the person (arrest), either after judicial authorization or before. - Arrestwords of arrest accompanied either by touching of the person with a view to detention, or by the person submitting to the arrest (Whitfield) - Break down the situations into arrest with warrant and without warrant o With warrant: a warrant can only be issued after an information is laids. 507 (indictable offences), s. 795 (summary offences) A justice who signs off on the information can either issue a summons or warrant requiring the accused to attend before a justice to answer the charge. A summons MUST be issued instead of a warrant unless to do so would not be in the interest of the publics. 507 Must give notice to the accused of reasons for arrests. 10(a) Charter There are some other, less important rules for effecting the warrant o Without warrant: ss. 494, 495 Section 494 applies to anyone (citizens power to arrest) if they find someone committing an indictable offence, fleeing authorities if they reasonably believe an indictable offence was committed. Section 494(2) applies to property owners arrest power. Section 494 applies to police officers A police officer may arrest anyone who has committed an indictable offence or who, on reasonable grounds, he believes has committed, or is about to commit, an indictable offence Peace officers may arrest anyone he finds committing a criminal offence (apparently committing Biron) Peace officers may arrest a person if he reasonably believes that a warrant exists for the persons arrest. This section adopts a principle of restrain; essentially says that a for minor offences, officers are directed not to arrest simply because an arrest power exists, rather to consider other factors as well. The officer may arrest ony to (1) establish identity of accused, (2) secure or preserve evidence of or relating to the offence, (3) prevent the continuation of repetition of an offence. Alternatively, officer may arrest if it is evident accused wont appear in court. Principle of restraint is only a guideline. Supporting powers: s. 25(1)use of force in certain circumstances, s. 25(4)use of force likely to cause death or GBH permitted in certain circumstances, s. 529 special rules apply when entering a home to make arrest.

Officer is justified in using force necessary when making an arrest provided that there are reasonable grounds to use that much force. 2. Where an individual is arrested, he must be released or given a bail hearing where it will be decided whether the individual should be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending trial. - Statutory Protections: s. 497 calls for officers who have arrested a person for one of the listed offences in ss. 495(2)(a), (b), or (c)less serious, summary conviction or hybrid offences to release that person on an appearance notice or summons unless grounds similar to those in s. 495(2)(d), or (e) apply (i.e. believes that need to get ID, secure evidence, wont appear in court) - Where the offender is NOT released, s. 503 appliesaccused is to be brought before a JP to consider the issue of release (must occur without unreasonable delay, an in any event, within 24 hours) o Without unreasonable delay is the key factor. Failure may result in an arbitrary detention under s. 9 of the Charter. - Charter Rights: s. 10 of the Charter creates specific guarantees arising on arrest: (1) accused must be informed promptly of the reasons for arrest, (2) must be informed of right to counsel. (a)informational duties standard caution of right to counsel must give information about access to free schemes, rewarning of the right if there is a substantial change, must not undermine the right by making disparaging comments or plea bargains prior to counsel (b) Implementational duties provide reasonable opportunity to consult counsel in private, hold off questioning (Manninen example of violation) BUT only arise when accused indicates wish to speak to counsel, can be waived with full knowledge (silence is not), can be lost by not being diligent towards own rights(silence could lead to that) - Other Code arrest powers: several code provisions which authorize arrest in order to provide a measure of compulsion to the judicial process. (e.g. if you fail to comply with finger printing requirements)

R. v. Hall (2002)right to bail Issue: Was the accused properly denied bail? Rule: Section 515(10)(c) of the Criminal Code allows a judge to deny bail in order to maintain confidence in the administration of justice, or any other just cause being shown. Analysis: On any other just cause being shown confers an open-ended judicial discretion to refuse bail. It is inconsistent with both s. 11(e) of the Charter, which guarantees a right "not to be denied reasonable bail without just cause", and the presumption of innocence. It is a fundamental principle of justice that an individual cannot be detained by virtue of a vague legal provision. Parliament must lay out narrow and precise circumstances in which bail can be denied. The impugned phrase is not justified under s. 1 of the Charter. Its generality causes failure of the proportionality branch of the Oakes test. To the extent the phrase is inconsistent with the Charter, it is void. The next phrase in s. 515(10)(c) ("without limiting the generality of the foregoing") is also void since it only confirms the generality of the preceding phrase. Denial of bail "to maintain confidence in the

administration of justice" having regard to the factors set out in s. 515(10)(c) complies with s. 11(e) of the Charter. The means chosen do not go further than necessary to achieve Parliament's purpose of maintaining public confidence in the bail system and the justice system as whole. Parliament has hedged the provision with important safeguards: a judge can only deny bail if satisfied that, in view of the four specified factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. The provision is not overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. Conclusion: The bail judge in this case considered the relevant factors and held that it was necessary to deny bail in order to maintain public confidence in the justice system. There is no error in reasoning. Compelling Appearance Without Arrest Compelling Appearance When Charges Have NOT Been Laid (i.e. pre-charge) - If a peace officer decides that a person should be prosecuted, there are a number of ways to compel that person to attend court BEFORE an information is laid and he is actually charges (most obvious example is an arrest without warrant). - The Code also provides that a person may be required to attend court be means of an appearance notice, a promise to appear or a recognizance. - Section 495(2): for less serious offences an officer should not necessarily use arrest powers. The provision indicates that the officer issue an appearance notice instead, unless there is a good reason not to. - If an officer arrested a person, the officer can decide after, under s. 497(1), to release that person with the intention to compel appearance by means of a summons or appearance notice. - The release provisions, however, are not mandatory, and are merely guidelines (i.e. officer who fails to comply with the section is still within their duty) - Before an accuseds first appearance an information must be laid before a justice (s. 505) Compelling Appearance When Charges HAVE Been Laid (i.e. post-charge) - After laying of the information is completed, the justice will issue process in the form of either a summons or a warrant for the arrest of the accused (if the charge is endorsed) - A summons is a document issued by the court commanding the accused to attend court at a specified time and place - The choice between summons or arrest warrant lies in the discretion of the justice. - Section 507(4) directs the justice to issue a summons UNLESS there are reasonable grounds to believe that a warrant is necessary in the public interest The Bail Hearing

Where an individual is arrested, he must be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending trial. 1. General Scheme: Release by Justice - Assumption that accused should be released pending trial and with few restrictions as possible - Section 515(1) directs that the justice shall order that the accused is released on an undertaking without conditions UNLESS the Crown shows cause as to why something more restrictive is justified. - Section 515(2) where a judge doesnt order outright release under s. 515, he shall UNLESS THE CROWN SHOWS CAUSE AS TO WHAY DETENTION IS JUSTIFIED, the judge must release the accused in one of the ways listed in that section (a) to (e). - Section 515(3) A judge cannot make an order under (b) to (e) of s. 515(2) unless prosecutor shows cause as to why an order under the immediately preceding paragraph would be inadequate. - Section 514(4) (4.3): conditions that MAY or MUST be imposed when an order for release is made under s. 515(2). Ensures accused attends court or safety of the community. - SUMMARY: if an order of release (without conditions) is not made by the judge under s. 515(1), there are 2 options where the Crown must show cause to prevent release: (1) show cause why detention is necessary or (2) show cause as to why a more serious condition of release should be imposed. 2. General Scheme: Crown seeking continued detention - Section 515(10) 3 grounds on which continued detention may be ordered o Necessary to ensure accuseds attendance in court o Necessary to ensure the protection or safety of the public o Necessary in order to maintain confidence in the administration of justice, having regard to all the circumstance [some listedapparent strength of prosecution case, gravity of offence, circumstances surrounding commission of offence, etc.] (see Hall) Adjournment: Section 516the justice on the application of the prosecutor, can adjourn the bail hearing by up to 3 days without the consent of the accused Exceptions to the general bail scheme - Section 515(6): types of indictable offences which lead to a reverse onus accused must show cause why he is to be released. If the accused is ordered to be released, any of the ordinary conditions apply. - Sections 515(11) and 522 (re: s. 469 offences): (1) What are s. 469 offences, (2) If its a s. 469 offence, reverse onus applies. If the accused is ordered to be released, any of the ordinary conditions apply. Reviewing order (ss. 520, 521) a decision made by a justice concerning release or detention may be reviewed by a judge upon application of the accused or the prosecution.


A key right of the accused, and an important obligation on the Crown, is full disclosure of the fruits of the investigation (all information gathered by or made known to the police during the investigation) to the accused. All of the fruits of the investigation are to be disclosed save what is clearly irrelevant or privileged. The law of privilege is covered by the law of evidence but the most relevant privileges should be flagged here. Disclosure is to be made before the accused is called upon to elect his mode of trial for s.536 indictable offences. The accused may also seek to secure relevant third party records relevant documents that are not the fruits of the investigation that are under the control of persons other than prosecution and police. Where third party records are sought, complex applications must be brought, which differ depending on whether the charge is a sexual offence prosecution or some other offence. If issues arise as to whether proper disclosure has been made, the assigned trial judge should ordinarily resolve them. As a practical matter, this requires early assignment of a trial judge who can address these matters. - Content of the right to disclosure o Evidence, if relevant, must be disclosed by the Crown, whether inculpatory or exculpatory o Evidence is relevant if it is of some use to the defence (Egger) o Disclosure must be made prior to election or plea o It is a continuing duty to disclose o But the right isnt absoluteirrelevant or privileged information need to be disclosed. o Proper disclosure: Dixon 3 part test for determining whether disclosure is properlymade and what remedy would be available if disclosure is not proper. - Conflicting protections: disclosure and privileged information informer privilege, solicitor-client privilege [McClure Test: 1) threshold test the informations sought from the privilege is not available from any other source and he is otherwise unable to raise reasonable doubt; 2) judge should proceed to innocence at stake test 1. The accused seeking production has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt 2. If such a basis exists, the trial judge should examine the communication to determine whether it is likely to raise reasonable doubt as to guilt immunity to the person whose privilege has been infringed and needs to be the only way to prove innocence in order to be allowed] , privilege in counseling records [ case by case protection , legislatively protected

R v Stinchcombe William Stinchcombe was a lawyer who was charged with theft and fraud. One of the Crown's witnesses was a former secretary of Stinchcombe's who had given evidence at the preliminary inquiry that supported the defence's position Issue: Is the Crown required to disclose statements made by a witness between the preliminary inquiry and trial? Rule: Subject to Crown discretion, all relevant information must be disclosed. This includes information the Crown intends to introduce into evidence and information it does not intend to introduce regardless of whether it is inculpatory or exculpatory.

Analysis: Re Discretion: The Crowns discretion can be used to protect the identity of informers, or disclose relevant information. The Crowns discretion is reviewable considering the princip le that information should not be withheld if there is a reasonable possibility that it will impair the right of the accused to make a full answer and defence. Re Privilege: Absolute withholding of relevant information can only be justified on the basis of legal privilege. Privilege is reviewable on the ground that it is not a reasonable limit on the right to make a full answer and defence. Re: Timing: Counsel for the accused must raise the issue of failure to comply with the duty to disclose at the earliest opportunity. This enables the judge to remedy any prejudice. Initial disclosure should occur before the accused is called to elect the mode of trial or plea. Conclusion: Crown counsel was not justified in withholding information attained from the interview of the accuseds former secretary on the basis that it was not worthy of credit. Witness credibility is for the trial judge to determine. The trial judge should have examined the statements for relevancy. Failure to disclose prejudiced the accuseds cas e and a new trial should be ordered.

Dixon test (if discovered after trial): (1) was the accuseds right to disclosure breached (2) if so, did that breach violate the accuseds right to make full answer and defence [ ( 1) reasonable possibility that evidence would have affected the decision to convict (as a whole) or (2) a reasonable possibility that lines of inquiry with witnesses or opportunities to gather further evidence exist, which would have been available if evidence had been disclosed Dixon decided that they were insignificant](3) if so, what remedy should be granted? + due diligence by defence counsel; if discovered before trial : disclosure or adjournment

R. v. O'Connor, [1995] 4 S.C.R. 411 is a leading Supreme Court of Canada decision on disclosure of medical records. The Court held that the medical and counselling records of a complainant in a sexual assault case that are held by a third party can be disclosed by order of the judge if they meet two requirements. First, the applicant must establish, without seeing them, that the records are likely to be relevant(reasonable possibility that the information is logically probative to be an issue at trial or the competence of a witness to testify) to the case. Second, the judge must review the records and decide whether to disclose them based on the balancing the right to make full answer and defence, and the right to privacy. the following factors should be considered: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record; (3) the nature and extent of the reasonable expectation of privacy vested in the record; (4) whether production of the record would be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record.

The O'Connor involved in the case was Hubert Patrick O'Connor, a Catholic bishop from British Columbia who was found guilty sex crimes in 1991 led to enactment of 278.1 278.91 confirmed by Mills but primary emphasis on accuseds rights (production often not ordered) R. v. McNeil (2009)Crown duty to disclose; 3rd party records. Issue: Should the disciplinary files of the investigating officer be disclosed according to the Crowns duty to disclose? Rule: Crown's first party disclosure obligation extends only to material relating to the accused's case in the possession or control of the prosecuting Crown. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O'Connor regime for third party production. Analysis: (1) The person seeking production must satisfy the court that the documents are likely relevant to the proceedings. (2) If likely relevance is demonstrated by the applicant, the third party record holder may be ordered to produce the documents for inspection by the court in order to determine whether production should be ordered. Inspection by the court (for the common law disclosure regime) is a balancing of the competing interests at stake in the particular circumstances of the case. The relevant question for step 2 is: If the third party record in question had found its way into the Crown prosecutor's file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production applicationThe accused's interest in obtaining disclosure for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning third party accused. Conclusion: The disciplinary files should have been disclosed. The facts in McNeil highlight perfectly the circumstances in which police discipline records often find their way into criminal proceedings: the accused was charged with possession of crack cocaine for the purpose of trafficking and the primary witness at his trial was the arresting officer, PC Hackett. McNeil was convicted at trial, but in the intervening period prior to sentencing, the defence learned through a newspaper article that PC Hacket was standing trial for a number of criminal offences, and had no less than 71 pending Police Act charges relating to the ongoing use, sale and transportation of narcotics. In short, it appeared that the arresting officer was himself involved in the drug trade, casting serious doubt on the credibility of his testimony at trial. The McNeil case changed all of that. First of all, the unanimous judgment written by Madam Justice Louise Charron re-writes the law on third-party production by dispensing with the complex OConnor procedure and replacing it with a much simpler test. The old test from R. v. OConnor [1995] 4 S.C.R. 411 required judges to engage in a complex balancing of the privacy interests in the document to be produced against the accuseds right to full answer and defence. What this meant in effect was that any evidence obtained by the police as part of the case against the accused would be disclosed immediately

without discussion under Stinchcombe, but any potentially exculpatory evidence in the hands of other parties would be subject to a more exacting standard. Now, the records will be disclosed to the defence as long as they are relevant. Outside of the statutory context of s. 278.1, privacy is no longer a factor that factors into the analysis with few exceptions, the accuseds right to access information necessary to make full answer and defence will outweigh any competing privacy interest. Now, once the judge is satisfied that the record has some relevancy to the present case, the record will be produced to the defence without further discussion. Secondly, the court carved out an exception in the context of police records. Rather than require the defence to cast its rod in a murky fishing expedition for police records, the police ought to disclose any relevant disciplinary information as part of the primary disclosure package. According to Justice Charron, its discovery should not be left to happenstance. Instead, any records of the discipline or misconduct of officers involved in the investigation will automatically be disclosed if they might be relevant to the case.

Preliminary Inquiries As indicated, at the preliminary inquiry, the judge must determine whether the Crown has presented a prima facie case. If so, the accused is committed to stand trial and the prosecutor will be called upon to draft an indictment, which will replace the original information as the new charging document. If the Crown does not establish a prima facie case, the accused is discharged and the prosecution on the charge that has been laid ends in effect, the accused who was charged is discharged. A discharge at a preliminary inquiry is not, however, an acquittal. The prosecution can re-lay the charge and try again, but will not do so unless important new evidence is uncovered. The Attorney General also has the authority to lay a direct indictment, which gives jurisdiction to a court to try the accused. The direct indictment can be used to re-institute a prosecution after a preliminary inquiry discharge, or to bypass a preliminary inquiry altogether by indicting the accused directly to trial.

o Until 2004, the preliminary inquiry was understood chiefly as a test of the sufficiency of the prosecutions case for trial o Since 2004, amendments to the Code have altered the nature of the preliminary inquiry and it can no longer be said that its primary function is to test the sufficiency of the prosecution case as a whole. o Section 536.3The inquiry will on be conducted with regard to the issues and witnesses that are specified in advance o The preliminary inquiry is now a limited examination of the sufficiency of the prosecution case with regard to the specific issues and the evidence of specific witnesses - Jurisdiction: the authority of a justice to conduct a preliminary inquiry is strictly statutory under Part XVIII of the Code - Scope

o Section 535 defines the scope of the inquirydirects the judge to inquire into the charge of any indictable offence or any other indictable offence in respect to the same transaction disclosed by the evidence o Section 541 expressly allows the accused to call evidence and this can include exculpatory evidence on a matter of defence - Publication bans can be sought by defence; D can cross examine witnesses and put forth their own case but the quality of defence is not judged at PI - Committal o Section 548 directs the justice or judge to commit the accused for trial on any indictable offence if the evidence in support of the charge is sufficient. It also requires the accused to be discharged (not acquitted) if the evidence is insufficient. Everything turns on the words sufficient o In Shephard the SCC stated that the test of sufficiency at the preliminary inquiry is whether a reasonable jury, properly instructed, could find the charge proved beyond a reasonable doubt. o Uncertain as to whether the judge should assess the probative value of the evidence. o Criterion of completeness: prosecution must lead evidence corresponding to each of the elements o Criterion of weight: Several cases suggest that it is not the role of the judge to weigh evidence (Arcuri judge cannot assess credibility of witnesses). weighing of evidence is permitted, and requires the judge to consider whether, if the evidence is believed, it support inferences in favour of the prosecution. o In short, ask whether the essential elements of the offence can be proved BRD in the eyes of a reasonable trier of fact. Review of PI decisions only available through certiorari - fallen into jurisdictional error to denying natural justiceor complying with mandatory provision- lack of evidence as to essential element, not considering the whole of the evidence

R v Arcuri - for directed verdicts, and to be able to pass though the preliminary inquiry state, the defence and the Crown must show that there is a prima facie case. Section 548 of the Code requires a judge to commit the accused for trial if there is sufficient evidence. The test is the same whether the evidence is circumstantial or direct. Where there is direct evidence as to each element of the offence, the accused must be committed to stand trial the case must proceed to trial even if the accused adduces exculpatory evidence under s. 541 of the Criminal Code. If the Crowns case consists of circumstantial evidence, the justice must engage in a limited weighing of the evidence because there is an inferential gap between the evidence and the matter to be established. TEST (where evidence is circumstantial): Whether the evidence including defence evidence if the accused adduces exculpatory evidenceis reasonably capable of supporting the inferences that the Crown asks the jury to draw.

The Jury Trial: if a jury trial is to be held, a trial judge is assigned and a jury selected. - Selecting mode of trial: Normally a choice of mode of trial exists under s. 536(2), the accused is asked to elect a mode of trial. o Hybrid (summary/indictable)the Crown should elect whether to proceed by indictment or summary conviction o Summarythe accused enters a plea and will be tried on the information in Form 2 Trial by judge o Indictable: Trial by judge and jury unless some other part of the Code specifies. o Judge If the offence is listed as in the absolute jurisdiction of a magistrate, then the accused does not elect and is tried in provincial court. If the accused elects trial be provincial court judge, the accused can enter a plea and the trial can take place at any point. o Judge and Jury If the offence is listed in s. 469, the accused does not elect and is sent to trial by judge and jury (subject to the AGs consent) If the accused refuses to elect, then according to s. 565(1)(c) the trial will be by judge and jury. The same is also true under s. 567, if there is more than one co-accused and they elect differently from one another. Even if the accused does not want a jury, the AG can compel a jury trial if the offence is punishable

by more than 5 years under s. 568. If the accused elects trial by judge and jury but then fails to appear, under s. 598 the later trial will not be in front of a judge and jury unless the accused shows legitimate cause. o Section 535In either case, there may be a preliminary inquiry if the accused or Crown requests one.

- Jury selection- based on provincial rules (s626); s631 selection of 12 jurors ; s644(2) jury properly constituted as long as jury is not reduced to below 10; s632 grounds to excuse jurors; s638 challenges for cause- unlimited need to provide some reason to doubt indifference for (f) interest prejudice, specific prejudice, generic prejudice stereotypical attitudes towards accused etc, conformity prejudiceinfluenced by community feelings rarely successful given two part process of judge and challenge where first is to show realistic potential of partiality; EXCEPT in the case of race Williams where challenge was allowed in SCC- aboriginal racism widespread in community only allowed if against a race not if they tried to prove potential of sympathy (Spence)

Peremptory challenges s634 limited to 20 in high treason or murder, 12 in offences that carry 5 years or more and 4 in others; problems occur where crown uses the power to challenge or racial or sexual grounds Pizzacalla led to an all female jury for a sexual assault case a retrial was ordered; Juries need not be representative; accused can challenge the array but it is difficult to prove motive of the Crown or other actor- requires evidence which existed in Butler and Pizzacalla but not in Biddle and Gayle In R. v. Williams, [1998] S.C.J. No. 49 (Q.L.), the accused, an aboriginal who resided in British Columbia, pleaded not guilty to a robbery charge and elected a trial by judge and jury. The trial judge at the first trial allowed questions to be put to potential jurors but the Crown successfully applied for a mistrial on the basis of procedural errors and the "unfortunate publicity" of the jury selection process. At the second trial, the judge who heard the accused's motion for an order permitting him to challenge jurors for cause dismissed the motion. The judge who presided at the trial dismissed a renewed application and did not warn the jury, either in his opening or closing addresses, to be aware of and disregard any bias or prejudice that they might feel towards the accused as a native person. The Court of Appeal dismissed an appeal from conviction. The courts below accepted that there was widespread prejudice against aboriginal people in the community. At issue before the Supreme Court was whether the evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality. The Supreme Court allowed the appeal. The appropriate evidentiary standard on applications to challenge for cause based on racial prejudice is a "realistic potential for partiality" (the rule in R. v. Sherratt [[1991], 1 S.C.R. 509]). Absent evidence to the contrary, where widespread prejudice against people of the accused's race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level. Prejudice less than widespread might in some circumstances meet this test.

R v Find - The accused was charged with 21 counts of sexual offences involving complainants ranging between 6 and 12 years of age at the time of the alleged offences. Prior to jury selection, he applied to challenge potential jurors for cause, arguing that the nature of the charges against him gave rise to a realistic possibility that some jurors might be unable to try the case against him impartially and solely on the evidence before them. The trial judge rejected the application. The accused was tried and convicted on 17 of the 21 counts. The majority of the Court of Appeal dismissed the accuseds appeal, upholding the trial judges ruling not to permit the accused to challenge prospective jurors for cause. Held: The appeal should be dismissed. The nature of the charges against the accused did not give rise to the right to challenge prospective jurors for cause on the ground of partiality. Establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. The first branch of the

test is concerned with the existence of a material bias, while the second is concerned with the potential effect of the bias on the trial process. It follows that such myths and stereotypes, even if widespread, provide little support for any inference of a behavioural link between these beliefs and the potential for juror partiality. Finally, absent evidence, it is highly speculative to suggest that the emotions surrounding sexual crimes will lead to prejudicial and unfair juror behaviour. The safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The accused failed to establish that sexual offences give rise to a strain of bias that is uniquely capable of eluding the cleansing effect of trial safeguards.

R v Yumnu 2012 - Following a trial in Barrie, Ontario, each of the appellants was convicted of two counts of first degree murder and two counts of conspiracy to commit murder. They appealed from their convictions, raising grounds relating to the adequacy of the trial judges charge to the jury. While the appeals were under reserve, the appellants became aware of a jury vetting practice in the Barrie area, consisting of inquiries conducted by the police, at the behest of the Crown Attorneys office, as to whether potential jurors had a criminal record or whether they were otherwise disreputable persons who would be undesirable as jurors. It was ascertained that in the present case, vetting of the jury lists by the police in response to the Crowns request netted information about 10 individuals who remained in the pool of prospective jurors at the peremptory challenge stage of the proceedings. None of this information was shared with the defence. The appeals were reopened to consider evidence and arguments concerning the propriety of the vetting practice and its impact on the appellants trial. The Court of Appeal dismissed all three appeals. With respect to the ground of appeal related to jury vetting, the Court of Appeal found that the Crown had failed to disclose information obtained from the jury vetting process that might have assisted the appellants in the exercise of their peremptory challenges, but it was not satisfied that the appellants suffered any prejudice from the Crowns failure to meet its disclosure obligations. The Court of Appeal held that there was no basis to conclude that the Crowns failure to disclose caused actual unfairness in the peremptory challenge process, or that the jury vetting practice created an appearance of unfairness. Held: The appeals should be dismissed. As for the appearance of unfairness and the suggestion that the verdicts are the product of a miscarriage of justice, although aspects of the Crowns conduct were improper and should not be repeat ed, what occurred here did not constitute a serious interference with the administration of justice, nor was it so offensive to the communitys sense of fair play and decency that the proceedings should be set aside as a miscarriage of justice. The record checks were carried out in good faith and there was no attempt on the part of the police or the Crown to obtain a favourable jury. There is no basis for ordering a new trial.

Pre-Trial Motions In either judge alone or jury trials, there will often be preliminary legal issues to be resolved before the trial gets going. These will ordinarily be dealt with by the assigned trial judge. In a jury trial, it is often convenient to assign the judge and to dispose of these matters before a jury is selected, or if the motions can be resolved expeditiously, select the jury and require it to leave the courtroom until the motions are completed. 1) Change of Venue S599 whether there is strong evidence of a general prejudicial attitude in the community as a whole and it must not be capable of being cured by safeguards in jury selection by instructions from the trial judge to the jury panel or by rules of evidence. [ Time is also an issue] 2) Fitness to Stand Trial Section 2 balance of probabilities proof; Two stages 1) judge considers reasonable grounds 2) actual fitness is decided; Can be brought anytime prior to verdict with some limitations 3) Trial within reasonable time 11(b) Morin Test : 1) length of delay 2) waiver 3) the reasons for the delay including (A) inherent time requirements (B) actions of the accused (c) actions of the crown (D) limits in institutional resources (E) other reasons 4) prejudice to the accused right to security, liberty and to a fair trial [ six to eight months from committal is considered alright in Askov] prejudice should be presumed in 11(B) violations but absent serious proof of serious prejudice, claims are less likely to be granted 4) Abuse of Process and Fair Trial rights Abuse of Process oppressive or vexatious proceedings that violate fundamental principles of justice COI, entrapment, non-disclosure not usually successful; Stay of Proceedings will only be granted if: 1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome or 2) no other remedy is reasonably capable of removing that prejudice only if prejudice is ongoing is a stay awarded by Court, usually order further disclosure or adjournment exceptional cases involve balancing of accused and societal interest that inevitably lead to societal interests in a full hearing trumping

General Principles of Sentencing For the most part, the general principles of sentencing have been codified in the Criminal Code. Judges are instructed to use alternatives to imprisonment that are reasonable in the circumstances. Mandatory sentences can be struck down as unconstitutional if they are grossly disproportionate, but judges cannot create constitutional exemptions from them. [section 718 718.2] R. v. Nasogaluak (2010)whether a s. 24(1) remedy is necessary to address the consequences of a Charter breach or whether this can be accomplished through the sentencing process. The Principles of SentencingSections 718 to 718.2: - s. 718.1: mandates a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the

fundamental principle of proportionality. CENTRAL TO SENTENCING PROCESSs.12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society's standards of decency. But what does proportionality mean in the context of sentencing? (1) It requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence (2) Counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused - s. 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances", with particular attention paid to the circumstances of aboriginal offenders. - Re Discretion: Discretion is fettered by precedent, and general ranges of sentences for particular offences, to encourage greater consistency. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. The discretion of a sentencing judge is also constrained by statute: principles and objectives enshrined in ss. 718 to 718.2; through the restricted availability of certain sanctions in the Code; mandatory minimum sentences. - Re deference to trial judge: a sentence can only be interfered with if it was "demonstrably unfit" or if it reflected an error in principle, the failure to consider a relevant factor, or the overemphasis of a relevant factor. However, this does not mean that appellate courts can interfere with a sentence simply because they would have weighed the relevant factors differently. The Role of Charter Breaches in the Regular Sentencing Process Given the court's broad discretion under ss. 718 to 718.2 to craft a fit sentence that reflects the facts of the case, s. 24(1) of the Charter may be appropriate for a court to address when passing sentence. - Section 718.2(a) provides that a court should reduce a sentence "to account for any relevant ... mitigating circumstances relating to the offence or the offender". As mitigating factors, the circumstances of the Charter breach must align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence. - Sentencing decisions are always subject to constitutional scrutiny. A sentence cannot be "fit" if it does not respect the fundamental values enshrined in the Charter. - Re Communicative function of sentencing (s. 718): a proportionate sentence is one that expresses, to some extent, society's legitimate shared values and concerns. A sentence that takes account of a Charter violation is therefore able to communicate respect for the shared set of values expressed in the Charter. Conclusion: The proper interpretation and application of the sentencing process will allow courts to effectively address most of the situations where Charter breaches are alleged, there may be exceptions to this general rule. Sentencing judges cannot mandate a sentence outside of mandatory

minimums/maximums laid out in the Criminal Code except in "exceptional circumstances". As a remedy under s.24(1) of the Charter, he reduced the accused's sentence and ordered a 12-month conditional discharge on each count, served concurrently, with a one-year driving prohibition. The Court of Appeal held that a sentencing judge has no discretion to reduce a sentence below a statutorily mandated minimum sentence and ordered the minimum fine for a first offence mandated by s.255(1) of the Criminal Code.

R. v. C.A.M. (1996)--(Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit) The accused pled guilty to numerous counts of sexual assault, incest and assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed carried a penalty of life imprisonment The Court of Appeal erred in applying as a principle of sentencing that fixed-term sentences under the Criminal Code ought to be capped at 20 years, absent special circumstances statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed-term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence - The Court of Appeal erred in reducing the accused's sentence. Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit It was open to the sentencing judge to reasonably conclude that the particular blend of traditional sentencing goals required a sentence of 25 years in this instance

R. v. Gladue (1999)Aboriginal pled guilty for stabbing and killing her boyfriend. The trial judge sentenced her to three years imprisonment Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. - Section 718.2(e) directs judges to undertake the sentencing of such offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

- Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or offreserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community" must be defined broadly so as to include any network of support and interaction that might be available, including one in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment. - In this case, the sentencing judge may have erred in limiting the application of s. 718.2(e) to the circumstances of aboriginal offenders living in rural areas or on-reserve. Moreover, he does not appear to have considered the systemic or background factors which may have influenced the accused to engage in criminal conduct, or the possibly distinct conception of sentencing held by the accused, by the victim's family, and by their community. They say that allowing a new trial solely on the basis of her aboriginal status would not be in the public interest.

R v Ferguson - At an RCMP detachment in Pincher Creek, Alberta, an altercation arose between the detained Darren Varley and Michael Esty Ferguson, an RCMP officer. Mr. Varley was shot twice and killed, and Constable Ferguson was charged with second-degree murder. He was convicted by a jury of the lesser offence of manslaughter, and the trial judge imposed a conditional sentence of two years less a day, notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal Code for manslaughter with a firearm. The majority at the Alberta Court of Appeal overturned that sentence, holding that the mandatory minimum must be imposed. Matthew Shogilev has previously commented on this case and has thoroughly summarized both the facts and the appeal court s analysis; Constable Ferguson appealed to the Supreme Court of Canada on the grounds that imposing the mandatory four-year sentence on the circumstances of his case would constitute cruel and unusual punishment, contrary to s. 12 of theCanadian Charter of Rights and Freedoms. He argued that the trial judge was correct in granting him the constitutional exemption from the four-year minimum sentence imposed by Parliament. On Friday, the SCC dismissed Constable Fergusons appeal in R. v. Ferguson, 2008 SCC 6, on the grounds that the mandatory minimum sentence was not a cruel and unusual punishment in light of his circumstances. Additionally, the SCC said that constitutional exemptions are generally an inappropriate remedy for cruel and unusual punishment imposed by such mandatory minimum sentences. Ultimately, the SCC held that constitutional exemptions should not be recognized as a remedy for cruel and unusual punishment imposed by a law prescribing a mandatory minimum sentence. If such a law is found to violate the Charter, it should be declared inconsistent with the Charter and hence of no force and effect, under s. 52(1). The discretionary, case-by-case approach requested by Constable Ferguson does not cohere with the values and principles that underlie our legal system (rule of law).

R v Morrissey - Marty Morrisey, a 36 year old from Belmont, Nova Scotia, was drinking with two friends in a cabin. Morrisey and his friend Adrian Teed sawed the barrel off a shotgun. Morrisey told Teed the gun was for the purpose of committing a robbery when in fact he was intending to kill himself due to recent relationship problems. Morrisey drove the third bud home, and when he returned to the cabin Teed was sleeping in a bunk bed. Morrisey leapt onto the bunk bed while holding the loaded shotgun. He subsequently fell off the bed, likely due to his intoxication, and the gun accidentally discharged, fatally wounding Teed. Morrisey was charged with criminal negligence causing death under section 220(a) of the Criminal Code of Canada. At trial the judge found that the mandatory four-year sentence required under section 220(a) violated section 12 of the Charter. Instead, Morrisey was sentenced to two years including the time he spent in pre-trial custody. The Court of Appeal overturned the ruling. The question before the Court was whether section 12 was violated and if so, was it justified under section 1. The Supreme Court upheld the ruling of the Court of Appeal and found there to be no violation, but the Court allowed the time in pre-trial custody to be included in the sentence. Opinion of the Court : Justice Gonthier wrote the opinion for the majority. He first considered all the previous decisions on section 12 and rearticulated the analysis. He stated that when a sentence is merely disproportionate to the offence it is not enough to invoke section 12. The true purpose of section 12 is to protect "against punishment which is so excessive as to outrage our society's sense of decency", which he admitted is a high standard as the court should not be "quick to invalidate sentences crafted by legislators." Gonthier gave two situations where section 12 can be invoked for cruel and unusual sentences. First, there are situations where the sentence itself is reasonable but for a particular person may have an effect on the accused that would be overly harsh. Second, if the sentence is reasonable for the particular person then the court must consider whether it would be harsh in a reasonable hypothetical situation.

R v Pham 2013 - The accused, a non-citizen, was convicted of two drug-related offences. In light of a joint submission by the Crown and defense counsel, the sentencing judge imposed a sentence of two years imprisonment. Under the Immigration and Refugee Protection Act, a non-citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. In the present case, neither party had raised the issue of the collateral consequences of a two year sentence on the accuseds immigration status before the sentencing judge. The majority of the Court of Appeal dismissed the appeal and refused to vary the sentence. Held: The appeal should be allowed and the sentence of imprisonment reduced to two years less a day.

A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. The significance of collateral immigration consequences will depend on the facts of the case. However, it remains that they are but one of the relevant factors that a sentencing judge may take into account in determining an appropriate sentence. Those consequences must not be allowed to skew the process either in favour of or against deportation. Further, it remains open to the sentencing judge to conclude that even a minimal reduction of a sentence would render it inappropriate in light of the gravity of the offence and the degree of responsibility of the offender. An appellate court has the authority to vary a sentence if the sentencing judge was not aware of the collateral immigration consequences, or if counsel had failed to advise the judge on this issue. Where the matter was not raised before the sentencing judge and where the Crown does not give its consent to the appeal, some evidence should be adduced for consideration by the Court of Appeal. In the case at bar, the sentencing judge was unaware of the sentences collateral immigration consequences and the Crown had conceded that sentence should be reduced by one day. It was wrong for the Court of Appeal to refuse the sentence reduction based solely on the fact that the accused had a prior criminal record or on its belief that the accused had abused the hospitality that had been afforded to him by Canada. It is therefore appropriate to grant the variation of the sentence from two years to two years less a day.

Appeals of Final Decisions and Judicial Review of Interim Decisions Final verdicts can be appealed. Interim decisions cannot be. Interim decisions can, however, be the subject of judicial review applications where jurisdictional errors occur. Judicial review may be necessary, for example, to challenge preliminary inquiry results, to seek or quash publication bans, or to suppress or access third party records; in these cases if we wait until the end of the trial, the damage sought to be prevented may have already occurred, hence the judicial review application. In the case of appeals, different grounds of appeal and procedural routes apply, depending on whether an offence has been prosecuted summarily or indictably. [ s675, s686]

Appeals of indictable offences (a) Appeals by the accused - s 675(1)(a) lists the grounds of appeal - s 686(1)(a) lists grounds on which court of appeal can grant appeal: (i) verdict set aside b/c unreasonable or cannot be supported by the evidence; (ii) wrong decision on a question of law; (iii) on any ground that there is a miscarriage of justice - s 686(1)(b) (follows s 686(1)(a): this section sets out grounds on which an appeal can be dismissed (other than dismissing if none of the grounds for granting are made out) [See statute for how the sections in (a) relate]

- It has been suggested that the underlying theory of s 686(1)(a) is miscarriages of justice (R v Morrisey) - See p 355 for options after granting appeal under s 686(1)(a) - Note: appeal can be in relation to sentencing too

Standard of review - Varies depending on ground of appeal - Pure questions of law, standard of review is correctness (so appellate court can substitute opinion); questions of fact should not be overturned in the absence of a palpable and overriding error; etc

Unreasonable verdicts - Ask whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered (R v Yebes). Could the TJ have reached its conclusion on the evidence before it? - Works in judge or jury trials; harder in jury ones though if properly instructed but unreasonable verdict, then jury was not acting judicially - What about overturning decision if TJs reasoning process was unreasonable? Yes (Beaudry) Question is wehtehr verdict is unreasonable, not whether reasoning is unreasonable + Justice Fishs view of unreasonable verdict or one that cannot be supported on the evidence

Errors of law and miscarriages of justice - These are similar indeed they are all similar, in that miscarriage of justice underpins all of them ; primary reason for distinguishing between them is that there is a curative proviso in the case of errors of law - No requirement that verdict was not supported by evidence - An error of law is any decision that was erroneous interpretation or application of the law (R v Khan) (note that the curative provision applies to this ground) (e.g of error of law review: where there is a air of reality to a defence and TJ instructs jury there is no air of reality) - Miscarriage of justice can either be substantive or procedural (e.g. if the error at trial is one of mixed fact and law, e.g. ineffective legal counsel

The curative provision - Section 686(1)(b)(iii) allows a court of appeal to dismiss an appeal despite an error of law provided no substantial wrong or miscarriage of justice has occurred - reasonable possibility that the verdict would have been different had the error not been made test - based on facts either 1) error is so harmless (usually single errors like admitting hearsay) or 2) evidence is so overwhelming that a conviction was inevitable (more onerous standards with restricted usage)

Procedural irregularities - Section 686(1)(b)(iv) where accused suffered no prejudice by cause of procedure, appeal can be dismissed works in tandem with curative proviso with the proviso kicking in when there is a loss of jurisdiction due to error of law

(b) Appeal by Crown Primary right: a question of law alone - Section 676(1)(a) narrower appeal rights - Appeals from acquittals court does not overturn easily Crown must show how in the concrete reality of the case at hand the rror had a material bearing on the acquittal needs to be a question of law like interpretation of statute, admissibility of evidence, investigative necessity , Charter decisions; Can include treatment of evidence too 1)legal effect of undisputed facts 2) misdirection as to evidence (limited circumstances) 3) instructing a jury to consider individual pieces of evidence separately to decide whether they would constitute proof beyond a reasonable doubt

Statutory Powers on Appeal s683, 684, 679; must show appeal is not frivolous, detention ois not necessary in the public interest (upheld with regards to bail pending an appeal) Fresh evidence on appeal Palmer test 1) not admitted if could have disclosed at trial by due diligence 2) must be relevant in that it bears upon a decisive or potentially decisive issue at trial 3) must be credible reasonable capable of belief and 4) when taken with other evidence at trial, be expected to have affected the result

Duty to give reasons Sheppard failure or insufficient reasons by a trial judge can be an error of law assessed as a whoel 1) are the reasons inadequate? 2) does the inadequacy prevent appellate review Needed for 1)accountability 2)need to know reasons for conviction 3)counsel require them to construct appeal 4) functional need during appeal 5) important if addressing unsettled law etc.

Summary Conviction Appeal s 822 Supreme Court s691 to s605 only on questions of law

R. v. Lutoslawski (2010)the ON Court of Appeal set aside the accused's acquittal on charges of sexual assault and entered a conviction - The only issue on this appeal is whether the Court of Appeal for Ontario erred in substituting a conviction instead of ordering a new trial on three counts of sexual assault.

- The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: 'Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?' - Sexual assault does not require proof of an improper or ulterior purpose. The Crown at trial proved beyond a reasonable doubt that the touching of the complainants occurred in circumstances of a sexual nature such as to compromise the sexual integrity of the complainants. Section 686(4)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, permits an appellate court on appeal from a judge alone to "enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law". Here the Crown established that an error of law was committed at trial, and that but for that error the appellant would necessarily have been convicted: R. v. Cassidy, [1989] 2 S.C.R. 345. Accordingly, we are all of the view that the Court of Appeal reached the proper conclusion. Accordingly, the appeal is dismissed.

Review of Preliminary Inquiry Decisions. a. Cannot appeal decision to discharge or commit from a preliminary inquiry. b. Only review available is certiorari i. Most frequently involves an accused seeking review of a decision to commit c. Certiorari will only be granted if the judge has fallen into jurisdictional error. Exclusion of evidence will not be a basis for review unless the error rises to the level of a denial of natural justice. It is jurisdictional error if the judge does not comply with a provision of the Code s. 548 requires a judge to commit the accused for trial if there is sufficient evidence. No weighing of evidence Judge required to discharge the accused if on the whole of the evidence no sufficient case is made out. If judge doesnt consider whole of the evidence, jurisdictional error. Crown provides evidence for all elements of the offenceif judge commits without evidence of an essential element of the offence, jurisdictional error. Judge must commit even if defence has offered exculpatory evidence.