Legal/Persuasive Burden Of Proof Essay

Burden of Proof 4

1. Legal/Persuasive Burden of Proof 4

2. Evidential Burden 4

3. Section 11(d) violation 4

4. Section 1 5

Actus Reus 5

A. Act or Omission 6 R. v. Instan 6 People v. Beardsley 6 R. v. Thornton 7 R. v. Urbanovich 7 R. v. Ssenyonga 7

B. Voluntariness 8

C. Causation 8 R. v. Smithers 8 R. v. Duncan 9 R. v. Johnston 9 R. v. Nette 9 R. v. Blaue 9 R. v. Cribbin 9 R. v. Harbottle 10

Mens Rea 10

Absolute Liability 11 Sault. St. Marie 11 Reference Re: Section 94(2) of the Motor Vehicle Act 12

Strict Liability 12 R. v. Wholesale Travel Group 12

Negligence 13 R. v. Creighton [1993] SCC – p.80 13 R. v.
Browne (1997) 14 R. v. Naglik 14 R. v. Hundal 14

Willful Blindness 14

Recklessness 14

Intention 15 Third-Party Liability 15 R. v. Vaillancourt 16

Corporate Homicide 16 Criminal Prosecution of Corporations for Defective Products (Vandall) 16 Criminal Liability of Organizations 17 Corporate Homicide 19

Consent 19

General Assault 20 1. Fights 20 2. Sports Context and Implied Consent 21

Sexual Assault 22 R. v. Ceurrier 23 R. v. Williams [2003] 23

Correction 24

Elements 24 Does the accused fall w/in s. 43? 24 Does the victim fall w/in s. 43? 24 Was the force corrective? 24 Was the force reasonable? 25

Cases 25 R. v. Ogg-Moss 25 R. v. Dupperon 26

DeMinimus 26

Offences to which it does not apply 27

Test 27

Cases 27 R. v. Lepage 27 R. v. Matsuba 27 R. v. Stewart 27

Mistake of Fact 28 1. Air of Reality? 28 2. Statutory Limitations (objective riders) 29 3. Evidence of Past Sexual History 29

Mistake of Law 31

General Principle: Mistake of Law is No Defence 31 Applications of General Principles 31

Exceptions to the General Principle 32 1. Mistake going to Mens Rea Element of the Offence 32 2. Officially Induced Error: 32 3. Impossibility 32 4. Police Officers and s. 25(2) 33

Color of Right 33 Section 492(2) 34 Section 41(1) 35

Incapacity 35

A. Age 35

B. Fitness to Stand Trial 36

C. NCRMD 37 Test 37 Burden of Proof 37 Results 37

Intoxication 38 Intoxication Generally 39

Intoxication (Partial Defence) 39

Extreme Intoxication 39 Charter Challenges to s. 33.1 40

Automatism 40

General Test Applicable to all Cases Involving Automatism (Stone). 40 Step 1: Establish a Proper Foundation for a defence of Automatism 40 Step 2: Determining Whether to Leave MD or Non-MD Automatism with the Trier of Fact 41 Possible Outcomes: 42

Provocation 43

Provocation Test (Hill) 43

Charter Issues? 44 Femicide 44 Homosexual advances 45

Residual defence of rage 45 R. v. Parent [2001] SCC 46

Trial Process 46

Rights of the Accused Implicated by the Trial Process 46

The Order of a Trial 47

Self Defence 50 UNPROVOKED ASSAULT – s. 34(1) 51 PROVOKED – s.35 51 THIRD PARTY – s.37 52 PEACE OFFICERS – s.25 52 UNPROVOKED ASSAULT CAUSING DEATH OR GBH – s.34 (2) 52 WIFE BATTERING AND SELF-DEFENCE 53

Duress 55

1. Does the accused fall under the CL defence of s. 17? 55

2. Section 17 55

2. CL Defence 56

Necessity 59

TEST (R. v. Perka) 59 (1) Did there exist an urgent situation of clear and imminent peril? 59 (2) Was compliance with the law demonstrably impossible? 60 (3) Was there proportionality between the harm inflicted and the harm avoided? 61

Broadening the Defences 61

Entrapment 62 1. Was there entrapment? 63 2. Should there be a stay of proceedings? 64 3. Was there an informer involved? 64

Burden of Proof

1. Legal/Persuasive Burden of Proof

• QOF • Usually on Crown to prove BEYOND A REASONABLE DOUBT • This burden is constitutionalized under s. 11(d) “presumption of innocence” (In order for defence to exculpate themselves they must only raise a reasonable doubt as to their guilt. • Jury must be charged as to what constitutes “beyond a reasonable doubt” and examples must be given(Lifchus (QOL)

2. Evidential Burden

• QOL • Requires that a party who wishes to rely upon a legal rule or defense to introduce sufficient evidence to support the proposed argument • SUFFICENT EVIDENCE=enough evidence to put the evidence at issue • Possible to have a violation of s. 11(d) if the evidentiary burden is coupled with a mandatory presumption of guilt (v. permissive) ( Boyle

3. Section 11(d) violation

• REVERSE ONUS (where the burden is placed on the accused on the BOP= Prima Facie violation (except in the regulatory context: Richards) • Re’d for s. 11(d) 1. Accused must be proven guilty beyond a reasonable doubt 2. State must bear the burden 3. Criminal prosecutions must be carried out in accordance with lawful procedures and fairness. • Persuasive (or legal) burdens are more likely to attract constitutional arguments for violating s.11 than evidentiary burdens are ( But evidentiary burdens are not immune from judicial scrutiny (if paired with mandatory presumption of guilt ( Boyle and Downey)

CASES • Boyle( It was held that s.354(2) of Code offended s.11(d) of Charter because the section was said to require conviction if an accused failed to introduce evidence suggesting no knowledge of the fact that a vehicle was obtained by criminal means (EVIDENTIARY BURDEN + MAND. PRESUMP OF GUILT=VIOLATION) • R. v. Whyte, SCC( Whyte was charged with driving under the influence. s.237(1)(a) of the C.C. violated s.11(d) of the Charter because if you are in driver seat intoxicated- it is assumed you will drive. The court held that s.237(1)(a) violated s.11(d), but saved under s.1- b/c hard to prove drinking with intent to drive * protection of soc important* • R. v. Holmes, SCC( Members of the court disagreed with respect to the proper interpretation of the meaning of the burden of proof in s. 309(1) of the C.C, which states that if, “without lawful excuse, the proof of which lies upon him”, a person is found in possession of instruments suitable for house braking in circumstances giving rise to a reasonable interference of intention to housebreak, then that person is guilty of the offence. It was held that s.309(1) violated s.11(d) of the Charter • R. v. Chaulk, SCC( Court ruled that s.11(d) of the C.C violated b of s.16(4) of the Charter (reverse Onus) by requiring that an accused prove alleged mental disorder on a balance of probabilities. The court held that such a provision offends the Charter by presuming a factor required for guilt-sanity, but went on to rule that it can be justified under s.1 (see also Stone and Daviault) • R.v. Richard ( The court held that s.11(d) was not offended when, in the regulatory context where imprisonment is not an available punishment, an offender is presumed to have waived s.11(d) rights by failing to respond to a procedural scheme, such as the NB act, in which adequate safe guards are in place (REGULATORY CONTEXT=NO VIOLATION)

4. Section 1

• OAKES TEST 1. Pressing and Substantial Objective 2. Proportionality i. Rational Connection ii. Minimal Impariment [Note: Most cases that fail, fail at this stage] iii. Deleterious Effects

• Downey v. R, SCC( Where the shifting of the evidential burden to the accused regarding the “pimping presumption” in s. 212(3), with a mandatory conclusion of guilt should the burden not be met, was held to offend s. 11(d). BUT was saved by s.1
( If man was living off avails of prostitution automatic presumption arose that he was guilty of pimping as it was difficult to get women and girls to testify against their pimps as they feared violence • Whyte, Downey, Chaulk = also saved by s. 1.

Actus Reus

• Legal element of an offence • Must be proven beyond a reasonable doubt by the Crown • Accused must commit at the same time as the fault element = SYMMETRY WITH MENS REA

• Includes three elements:
1. Act/Omission
2. Volunariness
3. Causation

A. Act or Omission

1. Act or Omission? • If Act, then go to voluntariness • If Omission then need to ask DOES A DUTY EXIST???

2. If an Omission, does a LEGAL duty exist?

• The Duty may be found in the CC or Imported from CL • Sections 215-218 and sections 219, 220 and 221 (Criminal Negligence Causing Death). (Even for some CC sections, you made have to go the CL if specific relationship isn’t set out in the code i.e. s. 215.1(c) (i) • Must be a Legal and NOT a moral duty (Beardsley) • Legal Duty Exists (at CL) only for certain types of relationships i.e. of Care and Control (Beardsley).

R. v. Instan

• niece found to not have provided necessities of life to aunt • factors establishing a duty: i. niece was living off aunt ii. aunt was wholly reliant on the niece • argument seems to hinge a lot of $ support by the aunt – BUT why do you say b/c someone provides for you financially you owe them a duty? • Every legal duty is founded on a moral obligation. D was under a moral obligation from which arose a legal duty • difficult argument to make that you’re going to start seizing people with duties that are not normally imposed

People v. Beardsley

• married guy with girl who took sleeping pills and died in his basement • held: NO duty of legal protector b/c she was not his wife – this was only a moral obligation but not a legal one • . NO DUTY B/C NOT UNDER RELATIONSHIPS COURT’S RECOGNIZE: a.) man and wife, b.) parent-child, c.) master-seaman • unlike Instan she could have left – court doesn’t think too highly of her actions either (partly responsible)

R. v. Thornton

Facts: Defendant donated blood to the Red Cross knowing that he was HIV positive and did not report this to any medical professionals. Defendant also knew that Red Cross would not accept blood that was HIV positive. (TJ convicted accused of committing nuisance s. 180 as his omission (i.e. failure to inform) breached a legal duty and endangered the lives or health of the public • s.180(2) of the Code holds that everyone commits a common nuisance who does an unlawful act or fails to discharge a legal duty thereby endangering the lives or health of the public.
Held: No unlawful act, therefore must determine whether there existed a legal duty not to donate contaminated blood. No duty exist in the CC but: • At common law, duty exists to refrain from conduct which would cause foreseeable injury (Donnahue v. Stevenson) TORT LAW.
Judge applied this common law duty to common nuisance and held that the accused’s omission (i.e. failure to inform) breached this duty as the omission would cause foreseeable injury. • problematic: large duties imposed on people they might not know about

3. If a Duty exists, has it been breached?

R. v. Urbanovich

• s.215 – duty of persons to provide necessaries of life for a child……if failure to provide necessaries results in….s.219 • s.220 (Criminal Negligence Causing Death) • baby died in parents care, although the wife did not inflict the injuries (the husband had been injuring the child for a long time) and although she had taken the baby to hospital she’d never given full details • Issue: Mother and father owe a duty of care towards their child ( what does this duty involve? Duty to provide the child with necessities of life and with medical aid
[Was the duty to provide her child with medical aid breached by mother?] • Held: Duty because she was the protector and she did NOT discharge it ( criminal negligence causing death • test to see if she breached duty: o was the child in need of medical attention? o was the accused aware that the child was at risk unless help was quickly provided? • although she had taken child to the hospital: (i) she did not disclose all info to Dr; and (ii) she waited to take the child to the hospital • have to wonder if she is being beaten too (represented by the same lawyer) • dissent: numerous trips to the hospital seem to negate criminal negligence

R. v. Ssenyonga

• man who knew he was HIV positive concealed this and infected 3 women through intercourse ( charged with common nuisance • held: NO conviction b/c women were not part of the “general public” (distinguished members of public as opposed to the individual) o sexual assault charges dismissed b/c they had given their consent and the fact that he had concealed his HIV status did not negate consent • seems completely inconsistent from Thornton

B. Voluntariness

• Common law requirement that actus reus or physical act/omission must be voluntary and willed ( Where the accused acted involuntarily, this state is called automatism and is divided into two subcategories: sane automatism (which results in absolute acquittal) and insane automatism (which invokes mental disorder framework prescribed by s.16 of Code)

• Forms of sane automatism: o Voluntary Intoxication (King) o Physical Blow (Physical Blow) o Psychological Blow (Rabey) o Sleepwalking (Parks)

C. Causation

o Must prove both FACTUAL and LEGAL Causation (Smithers) o Crown must prove beyond a reasonable doubt. o Factual Causation=significant contributing cause (Nette: Manslaughter and 2nd degree) o 1st degree murder requires “substantial and integral contribution” (Harbottle)

1. Was there factual causation?

R. v. Smithers

• Smithers punches Cobby to the head twice and then kicks him in the stomach.
He died due to aspiration of foreign materials present from vomiting .Evidence suggested the vomiting was either sptontanous or caused by the fear or both and that the aspiration was either spontaneous or caused by the deceased faulty epiglottis or the kick or both • held: kick caused the death b/c it was a contributing factor at least beyond the de minimis (even though could not say with precise certainty what caused the death • ratio: Need to show both FACTUAL AND LEGAL and test is that needs to be a cause outside the de minimis.

R. v. Duncan

o Court held that no causation existed as act performed by the accused may not have caused victim’s death
( Expert testimony indicated that cardiac arrest could have been caused by stab wounds inflicted by accused or that cardiac arrest could have been caused by unrelated heart condition

R. v. Johnston

• taxi driver took jacket from intoxicated passenger who couldn’t pay fare (collateral) and left her at address where no one was home – driver asked dispatch to call police to check on PL but dispatcher though unnecessary ( passenger froze to death overnight • held: Acquitted ( could NOT prove that the loss of one jacket (she had two) caused the
death

R. v. Nette

• Pl tied up old woman during robbery who died • held: guilty of 2nd degree murder b/c tying up contributed to death • majority: new test for causation of 2nd degree murder: a “significant contributing cause” • Approved of the test for 2nd degree murder and unlawful act first degree, limiting the more stringent test from Harbottle to first degree murder.

2. Was there legal causation?

o Is it somehow just to attribute causality to the accused for a particular consequence? o Can be found in some CC sections: 222 (5) (6), 224, 225, 226, 228 o Where the Code doesn’t provide, look to the CL i.e. Thin Skull (Smithers and Blaue) and Forseeability.

R. v. Blaue

( the accused had argued that he did not cause his victim’s death because she, as a Jehovah’s Witness, refused blood transfusion in treatment for 4 stab wounds, including one in her lung that would have saved her life. This was rejected.
( see also s. 224 and 225 and 226

R. v. Cribbin

(Contributing cause “beyond a de minimis” range combined with constitutionally required fault element in Creighton= no danger that morally innocent person might be convicted of manslaughter.

R. v. Harbottle

( court held that a more stringent test for legal causation is required in the case of first degree murder. The crown must prove that the accused participated in the murder in such a manner that he was a “substantial an integral cause of the death” and where” there was no intervening act of another which resulted in the accused’s no longer being substantially connected to the death.

Mens Rea

Different actus reus and mens rea must be proven depending on whether the charge is murder, unlawful act manslaughter or manslaughter by criminal negligence
|Unlawful act manslaughter (s.222): |Manslaughter by Criminal Negligence |Manslaughter |
|1.
Unlawful act = dangerous |(s.219) |1.Conduct causing death of another person; AR|
|2.Marked Deviation from std of care that a |1. Proof of Crim. Neg. set out in s. |2.Fault short of intention to kill (SF of |
|reasonable person would exercise AR |219 [actus reus + reckless disregard|bodily harm, OF of death or bodily harm) MR |
|3.Foreseability of harm as a consequence of the |for lives + safety of others (mens |Two Types: |
|unlawful act |rea)] |a.) unlawful act causes death |
|Causation |2.Causation |b.) criminal negligence |
|Death of human being |3.Death of a human being | |

Mens rea – the mental element of fault associated with the commission of an
offense ( Did the accused intend: o To do the act or perform the actus reus o To bring about a particular consequence from the commission of the the actus reus or act ( (i.e. intended to kill the person, inflict grievous bodily injury, etc.)

o Is the test for mens rea, objective or subjective: o Subjective: what was the accused thinking or intending during the commission of the actus reus o Objective: what a reasonable person would have thought or intended while committing the actus reus

Objective vs. Subjective Test:
|Subjective: what was the accused thinking or intending during the|Objective: what a reasonable person would have |
|commission of the actus reus (act/omission) |thought/foresaw/intended while committing the actus reus |
|- looks at state of mind (less likely to be unconstitutional!) |(act/omission) |
| |* Only exception is incapacity = too young, mentally/physically |
| |challenged. |

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Steps:
1. Identify the fault element/mens rea for the offence (7 recognized forms outlined in detail below): General Tips: • Read the relevant statutes and Criminal Code sections • Does it contain mens rea language such as “willfully” “with intent” “knowingly” “intentionally” etc.? • Is it a provincial or federal offence? If provincial, more likely be absolute or strict liability • Is offence penal in the ‘true sense’(? If yes, than cannot be an absolute liability offence • Look at the common law

2. Ask if offence is “regulatory,” “public welfare,” per R. v. City of Sault Ste Marie. If so, its either Strict Liability or Absolute Liability:

3. May want to consider whether there are any potential Charter challenges. • Section 7? • Section 11(d)? • Section 1?

Absolute Liability

• Absolute liability as a fault element requires only that the prosecuter prove actus reus of the offence, with no avenues open to the accused other an actus reus defences. • Traditionally for regulatory offences where the public welfare was at stake

Sault. St. Marie

• Created a new offence of “Strict Liability” w/ a defence of due diligence in which public welfare offences would now prima facie fall.
Ratio: There is a “halfway house” between mens rea and absolute liability. There are cases where the accused should be allowed to show due diligence on a balance of probabilities. • prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act • defendant must establish only on the balance of probabilities that he has a defence of reasonable care.

Therefore, now there are three categories of offences instead of two: a) Offences requiring proof of mens rea (true crimes) ( true crimes b) Offences where there is no necessity for the prosecution to prove mens rea, leaving it open to the accused to avoid liability by proving he took all reasonable care i.e. due dilligence (STRICT LIABILITY) ( public welfare offences prima facie fall here c) ABSOLUTE LIABILITY where it is not open to the accused to exculpate himself. ( those offences where the legislature has made it clear that guilt will follow merely with proof of the proscribed act.

Reference Re: Section 94(2) of the Motor Vehicle Act

• Ratio: absolute liability will offend s.7 where it has the potential to deprive of life, liberty or security of the person (i.e. imprisonment) • administrative expediency should only arise under exceptional circumstances • distinction b/w absolute and strict liability can’t be upheld and not saved by s.1 b/c of risk to liberty of individual
NOTE: R. v. Pontes(confirmed the constitutionality of absolute liability offences where the offence permits only a fine as a penalty.

Strict Liability

• Majority of regulatory offences characterized as Strict Liability unless something in statute that characterizes them as Absolute Liability ( new from Sault Ste Marie

• Strict Liability Definition: After it is proven that the accused performed the prohibited act or omission (actus reus) beyond reasonable doubt, the burden shifts to the accused to exculpate him/her on the balance of probabilities. o Accused has two ways to exculpate himself: (1) acting on reasonable mistake of fact (R. v. Ellis-Don), and (2) exercising due diligence (consistent with what the reasonable person man would have done under the circumstances) (R. v. City of Sault Ste Marie). o Fault element is negligence for these types of offences (Court said not unconstitutional in Wholesale)

R. v. Wholesale Travel Group

Facts: Wholesale Travel Charged under the Competition Act s. 36(1) and 37.3(2) with false advertising. Advertising vacation packages at “wholesale prices” while at the same time charging a price higher than the cost incurred by the company in supplying those vacation packages.

Summary of holding:

• Majority found that negligence, as mens rea standard, did not violate s.7 because :
1. This standard was consistent with the historical idea of regulatory offenses that government should not have to prove full mens rea
2. Impractical for government to prove mens rea as too many resources are required to do so, whereas proving that accused breached reasonable standard of care is much easier
3. According to licensing theory, if someone voluntarily chooses to undertake regulated activities, the regulated actor must expect the imposition of a reasonable standard of conduct

• Reverse onus clause requiring accused to prove due diligence/non-negligence on balance of probabilities offended s.11(d) of Charter, but it was ultimately upheld because:
1. If accused’s burden was lowered to raising reasonable doubt, it would become almost impossible for the Crown to prove the elements of the offense ( impractical for government to prove full mens rea which would lead to a reduction in convictions and undermine the entire regulatory scheme
2. Only the accused has the knowledge within the context of regulatory offenses to prove full mens rea as they were the only ones who knew what they were thinking

Negligence

• Tested objectively or subjectively???
APPROACH TO NEGLIGENCE (Creighton) 1. Is there prima facie actus reus. This requires that the negligence constitute a marked departure from the standards of the reasonable person in all the circumstances of the case. 2. Is there prima facie mens rea in the form of objective (reasonable person in the circumstances of the accused) foresight or risk of harm bodily harm that is neither transient nor trivial. 3. Is there a reasonable doubt as to the lack of capacity to appreciate the risk? If yes then must ask whether the accused possessed the requisite capacity to appreciate risk flowing from his conduct?

Provisions requiring negligence as the fault element of mens rea include: 1. Criminal negligence (s.219,220,221) 2. Failing to provide the necessities (s.215) (Naglik) 3. Dangerous driving (s.249) (Hundal) 4. Careless handling of a weapon [s.86 (2)]

R. v. Creighton [1993] SCC – p.80

• Def charged with s.222 “unlawful act manslaughter” after he injected the victim with cocaine. Challenge to the constitutionality of obj. test. Is this a crime of sufficient stigma to require a subjective test??? • Ratio: only need foreseeability of the risk of bodily harm for “UAM” (objective test) • this articulation of standard of “f/s risk of harm” does NOT violate s.7 • Mens rea = “objective foresight of risk of bodily harm that is neither trivial nor transitory in nature” (he could have f/s the risk of bodily harm and should have informed himself if he didn’t know) o The objective test is warranted due to the lower stigma attached to manslaughter. o Symmetry between actus reus and mens rea can be relaxed in accordance with the thin-skull principle.

R. v. Browne (1997)

• Def (drug dealer) undertook some steps to perform promise to take his friend to hospital after she swallowed bag of cocaine – he did but only by calling taxi hours later • held: acquittal – no evidence any other course of conduct (calling ambulance?) would have saved her life • q/v to Creighton – more of an omission (they say) – both responsible for their own actions (but are they really dissimilar) • in Creighton a lot placed on fact that he did the drug injection

R. v. Naglik

• failure to provide necessaries of life s. 215(2) • objective test BUT were willing to consider some personal characteristics of the accused

R. v. Hundal

SCC held that fault element within the context of dangerous driving is a modified objective test: based on the context of the accused driver, was his conduct a marked departure from that of a reasonable driver?

Willful Blindness

• Tested Subjectively • Wilful ignorance exists when: (1) The accused suspects that certain facts exist or that a certain consequence may ensue; (2) but deliberately refuses to consider or acknowledge the risk. • Not specified in the code but may be read in by the courts as another form of proof of recklessness. • Mens rea can be satisfied if the accused believes that s/he is undertaking an illegal act, but wilfully “shuts his/her eyes” as to what the specific illegal act was (R. v. Blondin).

Recklessness

• Tested Subjectively • Mens rea of recklessness is proven when: (1) The accused recognizes the risks associated with his actions; (2) but proceeds to commit the act with this knowledge in mind. • Offences include: arson (s.433) & murder (s.229). • Judges may hold that proof of a reckless state of mind is sufficient to sustain conviction for an offence that has intention or knowledge as a mental element (R. v. City of Sault Ste Marie).

Intention

• Tested subjectively • Specific Code provisions require that the accused possess a specific intention or knowledge: o s.136: fabricating evidence requires “intent to mislead” o s.229(a)(i) for murder: accused meant or intended to cause death o Intention is tested subjectively. • Courts sometimes read in intention/knowledge (Sault Ste Marie)

Third-Party Liability

• Section 21(2): Allows for an objective test of forseeability for crimes linking the accused to the primary offender. • R. v. Logan (1990): s. 21(2) read down for Murder and Attempted Murder to require SUBJECTIVE FORSEEABILITY • R. v. Jackson: confirmed Logan that objective forseeability for manslaughter is constitutional. • For sexual assault causing murder, the accomplice can be convicted of manslaughter as a party to first degree murder a) they were a party to the assault and b) they knew the assault was likely to cause some harm short of death (R. v. Kirkness, R. v. Jackson) SCC • For accomplices to a murder, the starting point for the jury should be that non-accidental presence at a murder presumes guilt. But to render an accomplice responsible for first degree murder, need to prove s/he aided in the planning or deliberation of the murder, or that s/he intended to abet a planned and deliberate murder (R. v Twiggie). Sask C.A.: • Gang rapes: Say that physical presence is NOT enough o Crown must prove not only actual aiding or encouragement but intentional or “wilful” encouragement o R. v. Salajko and R. v. Clarkson – “passive encouragement” or “knowingly” standing by was insufficient.

R. v. Vaillancourt

• Facts: committed armed robbery when gun was discharged by accomplice killing the client – the appellant did not think the gun was loaded • charged under s.213(d): implicate person that was present at a homicide – this was all that was needed to convicted (if a murder occurred during another unlawful act) • ratio: conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. • Held: this section violated s.7 and NOT upheld under s.1 (potentially convict someone “blameless”)

Only provisions remaining to prosecute murder are ss. 229(a)(i), 229(a)(i)(i), 229(b).

Corporate Homicide

Criminal Prosecution of Corporations for Defective Products (Vandall) • Historically, corporations could not be prosecuted for a crime because: i. Corporation is not human ( therefore it cannot have intent* ii. Primary remedy available under criminal law (imprisonment) was not available to corporations

• Corporation was held liable for manslaughter in 1904 case, US v. Schaick for not providing life preservers on its steamship as by their, “misconduct, the life of a person was destroyed”, which was consistent with the offense of manslaughter

• Corporation was not held liable for homicide in 1909 case, People v. Rochester Railway as Court held that use of “another” within homicide provision precluded corporations from applying with it

• Model Penal Code is persuasive in deciding whether corporations can be held liable for homicide. Corporations should be held liable where: o Where particular statute expresses legislature’s intention to include corporations o Illegal act is performed by agent of employer who is acting within his scope of employment o Illegal act is performed for the benefit of the corporation o When act involved acquiescence of executives of the corporation and was within scope of employment

• Criminal prosecution of corporate crimes is inefficient because: o Product manufacturers are rarely sued because most cases involve negligence which is a different burden for complainant to prove o Statute of limitations apply and many suits are brought after limitation period has expired o Extremely expensive to commence legal proceedings that may last several weeks ( expert testimony, product testing, shifting though paper, etc.

o Punitive damages do not increase the manufacturer’s cost of doing business and therefore manufacturing defective products seen as efficient, why? • Law suit victories are rare • Punitive damage awards are even rarer • When significant punitive damages are awarded, the Court often overturns it on appeal ( ex. appeal court overturned trial court’s decision to award $125,000,000 in punitive damages and awarded only $3.5 million to Ford which would represent the actual amount of money saved by Ford by not fixing tank

o Impact of negative publicity is not as adverse as anticipated and often unpredictable o Extremely difficult to prove causation

• In conclusion, corporate crime pays, unless the following improvements can be made: o Imprisonment of corporate executives ( executives responsible for the manufacture of defective products should be jailed, which is unfortunately, unlikely to occur as white collar crime is not as serious as other crimes o Fines equal to 1% of net profit ( as small fines lack any stinging power

Criminal Liability of Organizations

Mens rea and actus reus generally: i) may impute guilty mind to an organization through an agent of the organization, per ss. 22.1 and 22.2 ii) act may be direct (commission) or indirect (omission) if there is an unlawful act involved (see Corporate Homicide below) – must involve one or more representatives of the organization

Negligence Offences:
Individual(s) within the organization must be party to the offence:
S. 22.1 i) Was one representative – acting within the scope of his/her authority – party to the offence? ii) Were two or more representatives engaged in conduct – ACT or OMISSION – for which one representative acting within the scope of his/her authority would have been considered party to the offence? iii) Did the senior officer(s) responsible for the relevant area depart MARKEDLY from the STANDARD OF CARE that could have REASONABLY prevented the officer(s) from being considered party to the offence?

Non-Negligence Offences:
S. 22.2
A. Was it a SENIOR OFFICER acting AT LEAST IN PART to BENEFIT the organization?

B. Direct commission/omission of senior officer? i) Did s/he act within the SCOPE of his/her authority?

C. Did a senior officer direct another? i) Did the senior officer have the mental state required to be party to the offence? ii) Act within his/her authority? iii) Direct another to ACT or FAIL TO ACT so that the offence would be committed?

D. Did a senior officer fail to act? i) did the senior officer know that a representative of the organization is, or is about to be party to the offence? ii) Did the senior officer fail to take ALL REASONABLE MEASURES to stop a representative of the organization from being party to the offence?

iv) Was one representative – acting within the scope of his/her authority – party to the offence? v) Were two or more representatives engaged in conduct – ACT or OMISSION – for which one representative acting within the scope of his/her authority would have been considered party to the offence? vi) Did the senior officer(s) responsible for the relevant area depart MARKEDLY from the STANDARD OF CARE that could have REASONABLY prevented the officer(s) from being considered party to the offence?

• S. 735(1) – an organization convicted of an offence is liable, in lieu of any imprisonment that is prescribed as punishment for the offence to be fined except where otherwise provided by law: a) indictable offence – in an amount determined by the discretion of the court b) summary offence – not exceeding $100,000

• Section 718.21 sets out aggravating and mitigating factors to consider in sentencing.

Corporate Homicide

s. 222(5) – culpable homicide: “A person commits culpable homicide when he causes the death of a human being”

Nature of the Offence
1. Was there an unlawful act? – s. 222(5)(a) – culpable homicide by means of an unlawful act – s. 234 – manslaughter – Breach of PROVINCIAL STATUTE is a sufficient unlawful act: – R. v. DeSousa – R. v. Creighton – provincial offence can be the basis of unlawful act manslaughter – R. v. Curragh – the effect of an expiration of a limitation period for a provincial offence will only bar the prosecution of the provincial offence, but not the manslaughter/homicide offence

2. Was the death a result of negligence? i) CRIMINAL NEGLIGENCE: – s. 222(5)(b) culpable homicide by Criminal Negligence – “wanton or reckless” disregard?

ii) PENAL NEGLIGENCE: – failure to comply with a statutory duty to take care is penal negligence (Creighton and Gosset) – penal negligence can be the basis for the offence of unlawful act manslaughter (Gosset) TEST = OBJECTIVE: i) foreseeable risk of bodily harm? ii) “marked departure” from the standard of a reasonable person (NOT wanton or reckless disregard)? iii) Consider all circumstances: what would the reasonably prudent person have done in the situation? iv) Onus of proof beyond a reasonable doubt is on the Crown (Creighton)

Consent

• Can be characterized as an element of the actus reus (where the code states) OR as a defence (vitiating AR) • Either way the defence bears the evidentiary burden and then the Crown must prove the absence of consent beyond a reasonable doubt. • Non-consent as an element of the actus reus can be a) included in the wording of the CC (i.e. s. 265.1(a)) b) read in by the courts as part of the CL def. of the offence (Lemieux-B&E) • Successful defence= vitiates AR=ACQUITTAL

General Assault

Elements of Assault Causing Bodily Harm a) Intentional (Subjective Mens Rea) b) Application of Force (Objective) c) Causing Bodily Harm (Objective) d) Absence of consent (Subjective)

• Proof of absence of consent required for all assaults EXCEPT murder (Jobidon)
Authority: STATUTORY: s.265(4) CC o s.265(1): a person commits an assault when: (a) without the consent of another person he applies force…..” o s.265(4): Accused’s belief as to consent – “where an accused alleges that he believed the complainant consented to the contact that is the subject matter of the charge, a judge, if satisfied there is sufficient evidence and that if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief”

• Limits: o s.265(3): “for the purpose of this section, no consent is obtained where the complainant submits or does not resist by reason of: a. the application of force to the complainant or to a person other than the complainant; b. threats or fear of the application of force to the complainant or to a person other than the complainant; c. fraud; or d. the exercise of authority o Jobidon (SCC): you cannot consent to “serious, non-trivial harm” even if you’ve consented to some physical force

1. Fights

TESTED SUBJECTIVELY: Did the complainant consent to the fight???

Exception:

a) Fist fights involving the intentional application of force causing serious hurt or non-trivial bodily harm (Jobidon)
b) Cannot consent to Domestic Assault (Stewart)

R. v. Jobidon
Facts: Accused and victim involved in a bar fight in which accused punched victim rendering him unconscious. After becoming unconscious, accused punched victim 4 to 6 more times resulting in victim’s death

Issue: What is the scope of consent? How much violence can someone consent to?

Ratio: Court held that you cannot consent to serious bodily harm as it is against public interest.
( Consent is vitiated where one intentionally seeks to cause serious or non-trivial harm to another in the course of a fight or brawl
( Therefore, there is a limit to how much violence you can consent to even if you explicitly consent to the fist fight (as consent is automatically vitiated if other party intentionally seeks to cause serious bodily harm).

NOTE: note that in youth cases, verdicts have been inconsistent – R v W(G)
(accused convicted) and R. v. M(S) (accused acquitted). Both courts mentioned the intentional application of force and the seriousness of the bodily harm as distinguishing factors.

2. Sports Context and Implied Consent

• Consent=Subjective but Implied Consent=objective criteria (LeClerc) • Implied consent to contact which is to be expected by participating in the game, but not that which is so dangerous as to be outside of the scope of the game, or that is of such a nature that no consent could be given (ie. Causes serious bodily harm). (Cey, LeClerc)

R. v. Cey (1989) • in hockey game the Def cross-checked from behind a player into boards ( significant injuries ( charged with “assault causing bodily harm” • held: could NOT consent to this type of bodily harm; likely has to do with the extent of the harm • ratio: when playing sports you impliedly consent to a certain level of harm/violence (but courts will draw lines) • It is clear that in agreeing to play the game a hockey player consents to some forms of intentional bodily contact and to the risk of injury thereof. However there are also some actions that are reasonably beyond that which someone is consenting to by agreeing to play the game

R. v. LeClerc

Facts: During a non-contact hockey game, accused hit victim in the back with a hockey stick. Victim was paralyzed from the neck down. The game’s referee described accused’s act as deliberate, vicious and resolving to cause injury. Accused was charged with aggravated assault.

Held: ACQUITTED: A player, by participating in sport such as hockey impliedly consents to some bodily contract necessarily incidental to the game but not to overly violent attacks (Cey) all of which should be determined according to objective criteria. • OBJECTIVE criteria; but with attention paid to the conditions under which the game is played (setting of the game, league, extent of force employed etc.) • The fact that it is a non-contact league is not determinative though, as infractions are an expected part of the game.

Sexual Assault

Elements of Sexual Assault: • Actus Reus: unwanted sexual touching: i. touching (objective) ii. sexual nature of conduct (objective) iii. absence of consent (subjective) • Mens Rea: intention to touch, knowing of or being reckless of or wilfully blind to a lack of consent, either by words or actions from the person being touched (subjective)

• Definition: Criminal Code s. 273.1(1): “voluntary agreement of the complainant to engage in the sexual activity in question”

• As an element of the actus reus, consent is determined SUBJECTIVELY from the point of view of the COMPLAINANT. It is thus only an issue of the complainant’s credibility as a witness. The defendant’s belief in consent is irrelevant at this stage. R v. Ewanchuk

• Onus: burden on Crown to prove beyond a reasonable doubt that there was NO consent (tested subjectively from the POV of complainant) and the Def did not believe there was a defence (See Mistake of Fact)

Limits-Statutory: CC s.273.1(2): No consent where… a) expressed by a person other than the complainant b) complainant is incapable of consenting c) consent induced by abuse of power, trust, or authority d) complainant expresses a lack of agreement to engage in the acitivity e) complainant expresses lack of agreement to continue o CC s.265(3): No consent where complainant does not resist because of a) application of force b) threats or fear of application of force c) fraud d) the exercise of authority o CC s.273.2: belief in the consent is no defence when: (a) the accused’s belief arose from the accused’s i. self-induced intoxication, or ii. recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting

Limits-CL: R. v. Cuerrier – consent to sexual activity vitiated by (a) dishonest act (or omission) + (b) significant risk of serious bodily harm (in this case, risk of infection with HIV)

R. v. Ewanchuk: No implied consent for sexual assault.

R. v. Ceurrier

Facts : Def had HIV and was told to use protection ( had unprotected sex with two women (both said would not have had unprotected sex with him if they’d known he was HIV+)

Issue: According to s.265(3) consent is vitiated by fraud.
( Is non-disclosure in this case considered fraud pursuant to s.265(3).

Held: guilty – aggravated assault • Cory: Non-disclosure is fraud that can vitiate consent but must be significant risk of bodily harm. • L’HD: focused on whether or not the person would have consented if they had known ( don’t need to think about the harm • McLachlin: characterize fraud as going to very nature of the act – interpret deceit as to STD as “fraud” if it vitiates consent

R. v. Williams [2003]

• Def and victim had unprotected sex and later he found out he was HIV+ but never told her • held: no evidence to establish the unprotected sex exposed her to significant risk of bodily harm (Cuerrier) since she was likely already infected when he got tested and learned of his HIV status. o his failure to disclose did NOT take away consent b/c it did not add to the risk • Ratio: it is the risk of harm that makes the consent important

R. v. Ewanchuk [1999] SCC – p.186 • Issue: is there a defence of implied consent? • Held: NO defence of implied consent in Canadian Law( possible the accused’s state of mind is relevant in regards to consent but only if it goes towards the “mistaken belief of fact” and toward mens rea (Not Consent and AR) • SCC: the implied consent from TJ and CA reinforced stereotypes about women: o didn’t resist violently o what she was wearing and the fact she has a child and living with boyfriend ( not virginal so if you’ve had sex b/f why say no now o idea that “bad girls” invite rape

Correction

• Statutory defence: Contained in s. 43 of the Code : allows for force for correction against a child by a parent or person acting in the place of a parent (Code still states “Teacher” but removed by CFCYL) • Onus on accused for evidentiary and then on Crown to disprove beyond a reasonable doubt. • Successful defence=acquittal

Elements

Does the accused fall w/in s. 43?

Section 43 applies to: - Parents - Persons standing in the place of parents - an individual who has assumed all the obligations of parenthood (Ogg-Moss)
Section 43 does not apply to -Teachers (CFCYL) -Mental Retardation Counsellors (Ogg-Moss)

Does the victim fall w/in s. 43?

Section 43 applies to children - “Child” refers to a person’s chronological age or relationship to a parent, not to their mental state or capacity (Ogg-Moss)
- Section 43 DOES NOT apply to: - Children under the age of 2 (CFCYL) - Teenagers (CFCYL)

Was the force corrective?

Section 43 will NOT apply when the child is incapable of learning from the application of force (CFCYL) - If they have a mental disability such that the cannot learn from the application of force, then the force cannot be corrective (OggMoss) -Children under 2 and teenagers don’t learn from correction (CFCYL) - Punishment motivated by anger, caprice, bad-humor, or arbitrariness will not be protected by s.43 (OggMoss, Dupperon) - The parent must have believed that there were “reasonable and probable grounds” to justify correcting the child (Dupperon)

Was the force reasonable?

-Def: “Minor Corrective Force of a transitory or trifling nature” (CFCLY)

-Force cannot be excessive – Community tolerance test: nature of offence calling for correction (altered in CFCYL), age, temperament of child, degree of gravity of punishment, circumstances under which inflicted and injuries caused (Dupperon)

- The nature of the offense requiring correction is not a relevant factor (CFCYL)

- LIMITATIONS ON WHAT IS REASONABLE (CFCYL) - corporal punishment of children under 2 is harmful to them & has no corrective value given their cognitive limitations; corporal punishment of teenagers is harmful since it can induce aggressive or antisocial behavior. - corporal punishment using objects, i.e. belts, rulers = physically & emotionally harmful - corporal punishment involving slaps or blows to the head is harmful - Reasonable force will never involve cruel, inhumane or degrading treatment - Corporal punishment by teachers is not reasonable, though they may use reasonable corrective force to restrain or remove children in appropriate circumstances

Cases

R. v. Ogg-Moss

Facts: Defendant was employee at institution for mentally disabled and was responsible for supervising group of residents. During lunch, victim who was incapable of speech and severely disabled spilt his milk to which the accused hit him with spoon.

Issue: Could the defendant rely on the defence of correction pursuant to s.43 of Code? ( NO: should be strictly interpreted because it makes an illegal activity legal and removes legal protection away from a vulnerable group

• s.43 only applies to parents or those standing in place of parent which the accused was not ( parents have responsibilities and obligations towards their children which were not present in this relationship ( parent can delegate authority to others to act in their place and in this case, authority was delegated to minister and not further delegated to accused employee

• s.43 only applies to children and victim was not considered a child by the Court ( victim did not fall within ambit of child as was defined by Court as he was neither of lineal descendant from accused nor was he chronologically under the age of majority. (Child is a transitory phase and labeling a challenged person a “child” would leave them w/o protection for life.

• s.43 also only applies to for corrective force. Here the victim was not capable of remember the punishment and so it couldn’t be used for correction.

R. v. Dupperon

Facts: Father charged with assault for strapping his 13 year old son across the barebuttox 10 times leaving four or five bruises on the boys left buttox. TJ found both that the strapping was not by way of correction and was not “reasonable force”

Issue: a) Was the strapping for correction? b) Was unreasonable force used?

Held: a) CA said that the TJ erred and the strapping was used for correction • It was done after he had been grounded several times, It was repeated after he “lipped off”, Michael was a behaviorally troubled child, Isnt an issue of whether the boy was actually deserving of punishment, but whether the adult honestly believed that the child was deserving of punishment. (This has since been overruled in CFCYL which says that the action being “corrected” plays no role) b) CA said the force used was unreasonable under the circumstances • Court must view both from an objective and subjective view; nature of the offence calling for correction, age and character of the child, degree of gravity of the punishment, injuries suffered etc. • Any punishment motivated by arbitrariness, caprice, bad humor, constitutes an offence

DeMinimus

• The maxim de minimis= the act is so minimal as to be trifling in nature: R. v. Lepage • Burden of Proof: Onus is on the accused to raise evidentiary burden; and then on Crown to disprove the defence beyond a reasonable doubt. • Basis: Common Law (imported through c. 8(3))

Offences to which it does not apply

De minimis is not applicable to certain crimes: o Sexual assault cases (by implication since if implied consent is not available, then de minimis might be barred as well: Ewanchuk) o Domestic assault cases (generally): R. v. Stewart o Mischief causing damage to property: R. v. Clarke o Theft: R. v. Li o Possession of drugs: R. v. Quigley

Test

Requirements discussed in R. v. Matsuba: 1) Must be an act that was actually tolerated by the community and not negatived by the person whose interest was infringed 2) The harm that the relevant law sought to prevent was not caused or threatened by the act. 3) The act was committed under extenuating circumstances outside of the intention of Parliament - AND, from Judge Russell in R. v. G(T): 4) Ask have all other defences been exhausted? 5) Ask are the consequences of conviction severe?

Cases

R. v. Lepage

Facts: When fire inspector asked accused to comply with fire regulations, he became belligerent and pushed or brushed up against the fire inspectors out of the way to leave the room. Accused was charged with assault and argued de minimis as defence ( accused did not intentionally apply force to inspectors

Held: No evidence to indicate that application of force was intentional or wrongful
( as accused’s conduct was so trifling in nature, principle of de minimis applies

R. v. Matsuba

• male teacher touched female student’s leg to see if she’d shaved • Held: Crown did NOT establish the Def intentionally touched the victim beyond a reasonable doubt ( not convinced the application of force r/q was met o even if Crown had proven case ( would have held that de minimis applied o de minimis was available b/c Crown and defence agreed it was NOT sexual assault

R. v. Stewart

• Def allegedly pushed the complainant (whom he cohabited with) after Def had been drinking ( prevented her from using downstairs phone to call police • Held: an assault beyond the de minimis • Ratio: need to think of the context of the case and who the parties are BUT not an appropriate level to any assumed consent to violence in a domestic relationship

Mistake of Fact

• CL defence (imported through s. 8(3)) • Vitiates Mens Rea=full defence=acquittal • Onus: Evidentiary (“air of reality”) on Accused and then to Crown to disprove defence.

CL Authority: o Wakil: Subjective perspective of accused re: facts is what counts o Pappajohn: ▪ Majority: defence must have an “air of reality” b/f can be put to the jury; accused may not rely on mistaken belief in consent where he is asserting consent and complainant is asserting non-consent (consent defence not mistaken belief in consent) – only knowledge of NO consent is enough to negate the defence ▪ Mistaken belief must be honest but does NOT have to be reasonable (subjective perspective of particular accused) (S. 273.2(b) alters this). o Ewanchuk: consent may not be implied; accused must honestly (not reasonably) believe that complainant communicated consent (passivity, silence or ambiguous conduct does NOT amount to consent)

• Test: an honest belief in a set of facts that if true would exonerate the accused Subjective examination of state of mind of accused. • This ‘subjective belief’ is subject to objective riders that have been imposed by the legislature (see below: Statutory Limitations).

1. Air of Reality?

• This is a question of law: evidentiary burden on accused that must be met in order for defence to be put to jury • In Park, L’Heureux-Dubé J.outlined relevant considerations for air of reality: o (1) Whether the totality of the evidence for the accused is capable of amounting to the defence of honest but mistaken belief in consent: ▪ What was the complainant’s actual communicative behaviour ▪ Totality of the evidence explaining how the accused perceived that behaviour to communicate consent o (2) Whether the totality of the evidence for the accused is logically inconsistent with the totality of the evidence that is not in dispute

• Even if the accounts are diametrically opposed, there will be an air of reality if it is possible to cobble together a narrative that is supported by some evidence – beyond accused’s mere assertion – that is not inconsistent with uncontroverted or totality of the evidence (Park) • At this stage should not weigh evidence or assess credibility (Cinous/Ewanchuck) • APPLICATION: Air of reality has been found on basis that complainant had no memory of what happened, no counter-narrative, and that on the accused’s version of events there was no force or violence (Esau, see also Osvath, R.B.; but see Cornejo, Malcolm)

2. Statutory Limitations (objective riders)

I. MISTAKEN BELIEF IN CONSENT: S.273.2: Belief in consent not a defence to charges under s.271, 272, or 273 when:

A. Accused’s belief arose from the accused’s: i. Self-induced intoxication, or ii. Recklessness or willful blindness (codified Sansregret); or

B. The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting - Whether the accused took reasonable steps is a question of fact - The accused bears a tactical burden at this stage - If this is met, the Crown must then disprove reasonable steps beyond a reasonable doubt

II. MISTAKEN BELIEF IN AGE: S. 150.1(4) Mistaken belief in age is NOT a defence to sexual assault of child under 14 unless accused took all reasonable steps to ascertain child’s age.

3. Evidence of Past Sexual History

• if it is not relevant to any of the issues at trial ( accused can NOT try to Q victim as to this at trial • if history is relevant to mistaken belief as to consent ( argument from accused is they need evidence for that reason

R. v. Seaboyer

• Def charged with sexual assault – at prelim inquiry the judge refused to allow Def to cross-examine victim on her previous sexual conduct (they were friends) • issue: constitutionality of ss.276, 277 of CC (the “rape shield” provisions) • ratio: s.277 does NOT offender Charter but s.276 rendered inadmissible evidence which could be essential to presentation of legitimate defence and fair trial ( struck down • s.277 excludes evidence of sexual reputation for purpose of challenging/supporting credibility of victim – no link b/w sexual history and credibility ( any evidence excluded by s.277 could serve no legitimate purpose in trial • s.276 was blanket exclusion subject to three exceptions: i. rebuttal ii. evidence going to identity iii. evidence relating to consent to sexual activity on same occasion as trial incident o prevents too much evidence that may be helpful to accused’s fair trial (evidence going toward honest and mistaken belief defence) – this evidence may be admissible in no-sexual assault cases under similar facts rule ( unfair to deny evidence just b/c sex assault • dissent (L’HD): argues that victim should be afforded protection of law as per s.15 • women don’t report rapes b/c of fear, reprisal of continuation of trauma at hands of police, loss of self-esteem, blame, perceptions of stereotypes and biases of what a rape victim should look like and fear that if they don’t the Def won’t be prosecuted

CURRENT SITUATON a) CL: Courts balance probative v. prejudicial value. • Possible admissible evidence: that having probative value on issue at trial and that value is not substantially outweighed by danger of unfair prejudice flowing from evidence: o specific instances of sexual conduct tending to prove person other than accused caused physical consequence of rape alleged o evid of sexual conduct tending to prove bias or motive to fabricate on part of victim o evidence of prior sexual conduct known to Def at time of act tending to prove the accused believed the victim was consenting to act (proximity in time) o prior sexual conduct that meets r/q for reception of similar act evidence

b) S. 266 still exists ( cant use past sexual history to attack credibility.

R. v. Osolin • victim went with two men to a third’s trailer where all drank ( she had sex with one then he left and Def came in ( went to bar where owner told them she was easy and they could have sex with her (while they were gone she had sex with 2nd guy) ( Osolin came in and tried to rape her ( took her to his car, tied and raped her, shaved pubic hair and drove her 40 km and dumped her naked on side of road • Def tried to cross examine on her psychiatric records (to show consent) and support mistake of fact • Held: allowed to cross on records for credibility and mistake defence

R. v. Ewanchuk ▪ An accused who, due to willful blindness or recklessness, believes that a complainant … in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in (s.273) ( Therefore, an accused must do something reasonable to determine whether she consented to rely upon the defence

Mistake of Law

General Principle: Mistake of Law is No Defence

s. 19 of the Criminal Code [Code]: “ignorance of the law… is not an excuse”
Codifies common law principle that everyone is presumed to know the law and that a mistake of law (as opposed to a mistake of fact) is not a defence to any offence. ➢ R v. Campbell • Could play a mitigating role at sentencing (R. v. Campbell)

Applications of General Principles

• R v. Aryeh (1972) (CA): accused referred to customs act, importing jewellery- no defence to unlawful importation • R. v. MacIntyre (1983) (ON CA): reliance on an erroneous judgement of an inferior court did not constitute a reasonable excuse for the failure to provide a breath sample • R. v. Potter (1978): importing punchboards, defence unavailable even after inquiring with a customs official

R. v. Campbell et al. [1973] Alta Dist Ct – p.287 • strict application of s.19: mistake of law = NO defence • s.132(2) outlawed public nudity b/c morally wrong ( Def learned from her boss that courts allowed stripping ( but then higher court outlawed it again (higher court overturned R. v. Johnson) and she was charged • ratio: mistake of law defence unavailable even where accused’s conduct was not necessarily illegal according to judicial authority at the time of the commission of the offence • was wrong to rely on lower court interpretation of criminal law b/c only SCC has authority to discover the law • it’s a mistake of law to conclude that the decision of any particular judge correctly states the law, unless that judge speaks on behalf of the court of ultimate appeal ignorance of law is very narrowly interpreted

Note: MOL could play a mitigating role at sentencing. Campbell received an absolute discharge.

Exceptions to the General Principle

1. Mistake going to Mens Rea Element of the Offence

o for certain offences the mens rea element has been interpreted as r/q that the accused know the conduct is illegal (eg knowingly, without colour of right) but not offences that use phrase “without reasonable justification or excuse” o R. v. Howson [1966] Ont CA: tow truck operator argued against theft – thought he had positive duty to take and hold car until towing charges paid o R. v. Docherty [1989]: argued successfully that he did not breach probation order that r/q ‘wilfully refusing or failing to conform’ with probation order ( he did not know that sitting in a car, drunk, was an offence ( mistake of law negated the mens rea o R. v. Jorgensen [1995] SCC: absence of any knowledge that accused had knowledge that films in Q involved exploitation of sex so mens rea not satisfied – s.163 r/q “knowingly
BURDEN=Crown to prove that they had the mens rea beyond a reasonable doubt.

2. Officially Induced Error:

o where accused relied on legal interpretation given by someone else in authority charged with administration of the law but NOT a lawyer (Campbell et all and R. v. Dunn) o Conditions for Establishing Officially Induced Error (R. v. Roberston) i. must have sought advice from official who administered law in Q ii. must have used reasonable care in giving the official the info iii. official’s advice and accused’s reliance thereon must have been reasonable o R. v. Maclean (1974) NS: accused acquitted – had ascertained his conduct was lawful through inquiries made to Registrar of Motor vehicles and own employer o R. v. Bauman (1994) Ont: acquitted – sought advice from planner with municipality of North York to open office in his home o R. v. Johnson and Wilson (1987) NB Prov Ct: illegal fishing case ( if you’re going to argue “officially induced error” you can only use it once
BURDEN=On the Accused on a BOP(Cancoil Thermal Corp)
(May raise a s. 11(d) issue. Successful challenges= See R. v. MacLean, R. v. Dubeau, R. v. Forster.

3. Impossibility

o when it is physically impossible for the accused to ascertain the state of the law – eg unpublished in Canadian Gazette (R. v. Catholique) o exception does NOT include a situation where it is impossible to define the law b/c its in a state of flux (R. v. Campbell) or b/c its difficult to keep up with newly promulgated regulations (R. v. Molis) o R. v Unger et al: schedule of drugs had been changed but accused in process of mfr at the time ( held liable b/c law was published in the Gazette

4. Police Officers and s. 25(2)

o By a generous interpretation of s. 25(2) of the Code, if the police believe (in good faith) but in error that they are entitled to use a particular type of force, they may use mistake of law as a defence: R v. Devereaux (1996)

Color of Right

• Statutory Exception to Mistake of Law • Sections=429(2) provides color of rights as a defence to sections 430-446 AND s. 41(1) defence of property. • Note, since C of R is not defined, we must be guided by common law as to the meaning of the term. • Most common definition= an honest belief in a state of facts which, if it existed, would be a legal justification or excuse (R. v. Johnson).

o R. v. Watson [1999] Nfld CA – p.308 ▪ envt’l activist outside 200 mile limit threw acid in water near Cuban ship ( damage nets or catch destroyed ( 3 counts of mischief ▪ framed COR argument: he did not think he would be charged b/c was outside 200 mile limit (but there’s provision that if you’re outside limit and do something that would be an offence in Canadian law – can be charged) ▪ ratio: colour of right is an honest mistake of facts of law NOT an ignorance of law ▪ attempted to argue colour of right in a larger sense outside mischief o R. v. DeMarco (1973) Ont CA ▪ tow truck driver thought he had right to take the truck ( accused of theft ▪ held: defence of colour of right was successful ▪ ratio: any error in law is sufficient to ground defence of colour or right – does not need to be confined to ownership of property; it may be a mere belief that the conduct was lawful

AVAILABLE WHERE: a) Any offence in section 430-446 (as stated in s. 429(2) b) Defence of Property s. 41(1) c) Any sections of the code that specifically contain the words “w/o color of right” ( s. 72(2) and 322(theft)

BURDEN OF PROOF: • Still uncertain. Language of s. 429(2) is “proves” suggesting a reverse onus. This would be an 11(d) violation so some courts have read it down to only be an evidentiary burden. o R. v. Stevenson suggests evidence will be weighted on a balance of probabilities whether there was an honest belief; o R. v. Watson suggests crown bears burden of establishing the absence of the defence.

Section 492(2)

TEST FOR s. 429(2): Characteristics of Colour of Right (Watson)
1. The defence is based on the honest belief of the accused that at the time the offence was committed, he/she had a colour of right;
2. The test is a subjective one; • The CRT must not assume that a reasonable belief has to be founded on Canadian law standards ex. aboriginal must be allowed to express their understanding of land property on their own terms (R. v. Ashini et al.)
3. While the belief does not have to be a reasonable one, the reasonableness of the belief is a factor for consideration by the jury in determining if there is an honest belief (R. v. Ninos and Walker);
4. It is not sufficient that the accused had a moral belief in a colour of right. See R. v. Drainville where CRT found defence cannot succeed on moral conviction alone. o R. v. Stevenson et al (1987) Man QB – p.291 ▪ unlawfully committed mischief by wilfully damaging bridge owned by province hat they thought was part of reserve property ▪ held: obvious that bridge NOT owned by banned ( had transferred property to province ( defence fails ▪ evidence weighted on balance of probabilities ▪ issue: whether or nt the court believes that the Band actually believed they owned the bridge – this is not a mistake of fact but a Q of property ownership (a Q of law) o R. v. Ashani et al [1989] Nfld Prov Ct – p.303 : ▪ land was not divested by any treaty and none of the Innu people gave up their rights to land ▪ Def walks past checkpoint to NATO base to protest ( trespassing ▪ argue colour or right b/c to them it is their land and have right to be there ▪ ratio: had a belief of ownership on an honest belief on reasonable grounds ▪ judge got inside head of Def and sees them as credible – result influenced by particular judge (Abo) o R. v. Drainville (1991) Ont Ct Prov Div – p.304 ▪ a priest knew the law but tried to rely on colour of right at roadblock to protest Teme-Augama (at a minimum he believed a dispute as to who owned land) ▪ based on lower court decision saying land belonged to province ( he should have known what the facts were (compare to R. v. Campbell who said cannot rely on lower court decisions – mistake of law) ▪ ratio: colour of right defence cannot succeed on moral conviction alone

Section 41(1)

R. v. Born With a Tooth-- exception with respect to needing colour of right expressly defined in offence
4 elements of the defence under s. 41(1): 1. accused has to be in possession of the land; 2. the possession is peaceable; 3. the victim of the assault must be a trespasser; 4. the force used to eject the trespasser must be reasonable (objective test)

o R. v. NC [1997] Ont Prov Ct – p.306 ▪ native man being beaten up by police at protest ( Def got bus and drove it toward police to save his friend ( intentional actions with intent to rescue ▪ held: evidence seems reasonable and is accepted ▪ force was NOT excessive – no lesser amount could have been effective or reasonable in the defence of others o R. v. George (2000) Ont CA – p.307 ▪ convicted of criminal negligence in operation of motor vehicle and assault with weapon (car) for driving it at police – he said for purpose of helping individual being assaulted by police ▪ held: defence rejected partly b/c of credibility and judge disbelieved motivation ▪ distinguished from R. v. NC b/c disbelieved the motives for taking car – did not believe it was for “necessity”

Incapacity

• The defence of incapacity is used to argue that the accused did not have the capacity to form the mens rea element of an offence. • Capacity is also used to determine whether an accused is fit to stand trial or instruct counsel.

A. Age

a) Is the youth under 12 years of age at the time of the offense? YES = no criminal responsibility (s.13 of Code) b) Between 12 and 18 at the time of the offense? YES = YCJAdeals with these youth for federal offenses.

i. Was the offence a Presumptive offence? (murder, attempted murder, manslaughter, aggravated sexual assault or serious violent offences for which an adult is liable to imprisonment of more than two years and the accused has already received at least two judicial determinations at different proceedings that he or she has committed a serious violent offence) – then an adult sentence can be imposed • s.64 – The Attorney general must apply to subject the accused to an adult sentence based on the commission of a serious violent or presumptive offence. • s. 63 – the accused can apply to be subjected to a youth sentence • s. 72 – The court considers seriousness and circumstances of an offence including the age, maturity, character, criminal record and background of the accused to determine whether a youth sentence is enough to hold them accountable for the offence.

ii. If the accused is 14 years or older (unless the province legislates a higher minimum of age of not more than 16 years) an adult sentence can also be imposed.

▪ Youth sentences have a three year maximum for custody and supervision (2 years custody) for presumptive offences. ▪ Second degree murder maximum sentences is 7 years total (4 in custody) ▪ First degree murder ten years total (6 in custody)

B. Fitness to Stand Trial

• S. 672 • Finding of unfit results in a hold on trial until fitness is recovered,

A. Standard for fitness to stand trial defined as a limited cognitive capacity. The test for analytic capacity was rejected (R. v. Taylor) The accused does not have to be able to act in their own best interests when communicating with counsel to be deemed “fit”. Confirmed in R. v. Bain. • A finding that the accused is not fit to stand trial should not be made in the absence of any basis to put the accused on trial. (R. v. Taylor). The trial judge should require the Crown to demonstrate that it is in a position to establish that the accused committed the alleged acts. An accused found unfit may or may not be detained (ss. 672.45-63) and may be tried on the charges once fit. (s. 672.33).

B. TWO STAGE TEST to determine Fitness: (R. v. Brown 1993) 1. Crown should call sufficient evidence to satisfy the trier of fact that there is sufficient evidence to proceed with trial. 2. Only after this is satisfied will fitness hearing take place in which both sides can use expert (doctor’s evidence), testimony of the accused or any other evidence.

• Counsel for the accused has an obligation to raise the issue of fitness with the court. (R. v. Brigham) • ss. 672.11& 672.12 – a court with jurisdiction over an accused may order an assessment of an accused’s mental condition where it has reasonable grounds to believe such evidence is required to determine whether the accused is fit to stand trial. • ss. 672.22- 33 – framework for unfitness determinations: The issue can be raised at any point in the proceedings including prior to the determination for interim release • s. 675.25(2) – gives the court discretion to postpone the trial of the issue of fitness until the close of the case for the prosecution at the preliminary inquiry.

C. NCRMD

• S. 16 • Vititates the Mens Rea

Test

1. Accused must have suffered from a mental disorder

• defined in s.2 of the Code as a “disease of the mind” • interpreted as a question of mixed fact and law • Judge determines whether the question amounts in law to a disease of the mind and the trier of fact determines whether the accused experienced the condition.

2. The disorder must have prevented the accused from appreciating the nature and quality of the act or knowing it was wrong • the ability to understand the offence means to appreciate that the act is legally and morally wrong (R v. Olah 1997) • disorder must deprive accused of ability to rationally connect right and wrong with the choice to commit or not commit the act (R v. Oomen 1994) • an accused who refuses to accept counsel’s advice to advance MD defence may do so on appeal where it can be determined that the accused’s untreated medical condition prevented counsel from adducing the evidence at trial (R v. I.E.M. 2003)

Burden of Proof

• BOP is on the party that raises the issue (proven on balance of probabilities) • reverse onus saved by s.1 of Charter (R v. Chaulk 1990) • Crown can only raise defence where accused raises evidence of mental impairment that the judge finds puts accused’s mental capacity at issue (R v. Swain 1991); otherwise Crown must wait until the jury brings in guilty verdict before raising MD • If MD put at issue by accused in trial itself, defence or Crown can raise defence, then the jury is only told to consider the s.16 defence after they are satisfied the accused committed the actus reus but before determining whether the accused met the mens rea of the offence (R v. David 2002)

Results

• New provisions (Part XX.1 of the Code) include mandatory review board hearings which consider: a) public protections, b) accused’s mental condition, c) the reintegration of the accused into society d) the other needs of the accused • Dispositions available under s.672.54. absoulte discharge -conditional discharge -custodial or hospitalized -conditions that do not include non-consensual treatments • Must pick the disposition that is least onerus and restrictive to the accused • if cannot conclude the person is a threat = absolute discharge • if significant threat = conditional discharge OR detained in custody • New provisions (Part XX.1 of the Code) upheld in R v. Winko found not to violate Charter’s s.7 & s.15 • where the mental disorder test cannot be proven, the accused can still have evidence reviewed by jury in order to avoid 1st degree murder conviction (ie not planned and deliberate), but there is no right to have judge go over the evidence once more (R v. Jacquard 1997)

Intoxication

Specific Intent
- Code or CL define mental element as specifically focused on producing a particular consequence; extreme intoxication could impair the accused’s capacity to undertake a course of action that will result in a particular outcome
- look for ulterior motive associated w/ offence
- examples: i) murder (req proof of intent to cause death of victim, Swietlinski) ii) theft (req proof of intent to deprive another of their property, George) iii) touching a child for a sexual purpose (Bone) iv) uttering a threat to cause death (Bone) v) using violence to overcome a victim’s resistance (J.A.R.) vi) assault to resist arrest (ulterior motive is to resist arrest)

General Intent
- offences that have as their mental element the intent to commit the immediate act, w/o intent to produce specific consequences ( mental element is so minimal that only basic voluntariness is required, only extreme intoxication can be used as defence
- examples: i) manslaughter (required intent is to perform act that causes death or bodily harm, Swietlinski) ii) assault causing bodily harm (requires proof of intent to assault, without regard to intending bodily harm, George) iii) sexual assault (Leary, Bernard)

Intoxication Generally

• Intoxication defence refers to self-induced intoxication; avail when accused has abused alcohol, drugs, or combination (Curtis) ( available for specific intent offences, but not general intent - Exception: Extreme intoxication akin to automatism is available as a defence to general intent offences, as accused is incapable of forming the requisite minimum intent (Daviault) where the offence is not one that interferes with the bodily integrity of another person (Section 33.1).

Intoxication (Partial Defence)

• Onus: accused bears evidentiary burden, Crown bears burden of disproving beyond a reasonable doubt • Successful defence= the accused would still be convicted of the lesser included offence • Available for: SPECIFIC INTENT OFFENCES ONLY

Extreme Intoxication

• Onus: On the accused on the BOP (violation but saved by s. 1 as per Chaulk) • Successful Defence= full acquittal • Available for: General Intent offences (only where you can show extreme intoxication akin to Automatism as per Daviault) that do not interfere with the bodily integrity of another person (s. 33.1).

ESTABLISHING DAVIAULT DEFENCE:

Step 1: TWO PART TEST (Daviault)
a) Accused must present enough evidence to judge to prove that intoxication was an issue, ie: evidence of more than moderate consumption of alcohol and “expert” testimony re: effects of consumption

b) expert evidence should show that the amount of alcohol consumed by the accused was enough for him to experience a black-out, where the individual loses contact w/ reality and the brain disassociates from normal functioning and the person is not aware of his actions and will likely have no memory of them the next day.

Step 2: if such evidence is produced, the defence of intoxication can be presented to trier of fact

Step 3: then, jury is instructed that intoxication must be so severe that the capacity to form the intent required was eliminated (Lemky, Robinson, McMaster, Seymour)

Charter Challenges to s. 33.1

▪ All courts that have examined constitutionality of s.33.1 have held that it violates ss.7 and 11(d) because it eliminates mens rea and actus reus in situations of extreme intoxication by simply substituting a new fault element. ▪ Courts are split about whether it can be saved by s.1: o Cannot be saved by s.1 – R. v. Brenton (1999), R. v. Lee (1997), R. v. Dunn [1999], R. v. Jensen [2000] o Can be saved by s.1 – R. v. Vickberg [1998], R. v. Decaire [1999], R. v. B.J.T. [2000]

Automatism

• State of impaired consciousness in which an individual, though capable of action, has no voluntary control over that action (Stone) • CL defence or negates the voluntariness requirement of the AR • Evidentiary burden on the accused to show automatism and then Reverse Onus on the accused (BOP) to show he acted involuntarily. • MD=s. 16 defence and non MD=full acquittal.

• R. v. Rabey (1997) SCC – p.338 o young man’s rejection by woman he was interested in is one of the “ordinary stresses and disappointments of life which are the common lot for mankind” o held: Def psychologically frail b/c reasonable person would not have experienced dissociation o ratio: ordinary stresses of everyday life are NOT a “psychological blow” • R. v. Parks [1992] SCC – p.338 o Def drove across TO in middle of night and killed mother-in-law and attempted to kill father-in-law then drove himself to police station ( had been experiencing personal and financial difficulties and borrowed $ from in-laws but had “good relationship” with them o sleepwalking when all this occurred (apparently) o held: allowed to use defence of sane automatism ( acquitted of all charges o mental disorder is distinguishable from automatism based on the “continuing danger test”

General Test Applicable to all Cases Involving Automatism (Stone).

Step 1: Establish a Proper Foundation for a defence of Automatism

• Equivalent to satisfying the evidentiary burden for this defence • Question of mixed law and fact • Accused must satisfy the trial judge that there is evidence on which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.

• Nature of the evidence required:

1) Accused must make an assertion of involuntariness at the time of the offence, but mere assertion alone will not suffice 2) Expert psychiatric or psychological evidence is required ( simply producing expert evidence does not satisfy the evidentiary burden. ( the trial judge must determine the weight to be given to expert testimony when deciding if the evidentiary burden has been met. (the trial judge must keep in mind that expert testimony is entirely dependent upon the accuracy and truthfulness of the account of the accused. 3) Other relevant evidence to consider: i) nature of the trigger: will usually have to be a trigger equivalent to a “shock” to satisfy evidentiary burden. ii) corroborating documented medical history of automatistic-like dissociative states iii) corroborating evidence of a bystander testifying that the accused appeared glassy- eyed, unresponsive or distant immediately before, during, or after the act iv) motive: if a single person is both the trigger and the victim the claim should be considered suspect; whereas if the act is random and lacks motive then the claim will be increased.

***If accused has satisfied the evidentiary burden(move to Step 2.
***If accused has not, neither automatism defence is available, but accused may still claim an independent s. 16 defence of NCR.

Step 2: Determining Whether to Leave MD or Non-MD Automatism with the Trier of Fact

• The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the condition alleged by the accused is a mental disorder ( Question of Mixed Fact and Law (Mental Disorder is a legal term and is defined as a “disease of the mind” ( JUDICIAL NOTICE taken of the fact that it will only be in rare cases that automatism isn’t caused by a MD (Stone). TJ must start from the proposition that the condition suffered is a ‘disease of the mind’, and then determine whether the evidence of the particular case takes the condition out of this category.

• ‘Holistic Approach’ (Three-Factored Approach)

1. Internal Cause Theory (Rabey) • Trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted by entering an automatistic state as the accused claims to have done.
If yes: External cause, favors a determination of Non-MD Automatism
If no: Internal cause, favors a determination of MD Automatism. • Contextual Objective Test: The accused’s autonomic reaction must be assessed from the perspective of a similarly situated individual. Requires that the circumstances of the case be taken into account • Distinction drawn between stressful situations and extremely shocking events. Involuntariness caused by something less than a shocking trigger is considered an internal factor and thus constitutes a disease of the mind. • This approach will not be useful in all cases, but is a factor for TJ’s to consider if they think it useful. It will likely be most useful in cases of psychological blow automatism.

2. Continuing Danger Theory (Parks) • Trial judge must consider whether the condition is likely to present a recurring danger to the public.
If yes: Favors a determination of MD Automatism (disease of the mind)
If no: Favors a determination of Non-MD Automatism. • While a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of MD automatism. • Two issues particularly relevant in assessing likelihood of the recurrence of violence a) Psychiatric evidence of the accused (if there is a documented history suggests the condition is of a recurring nature and thus automatism will recur) b) Likelihood that the trigger alleged to have caused the episode will recur ( increases likelihood that the condition is a disease of the mind.

3. Other Policy Factors • Feignability of the defence and • Bringing the administration of justice into disrepute • Not a closed category( court may consider any valid policy concern.

Note: The three factors in the ‘holistic test’ are not determinative tests. Stone indicates that each factor may be more or less useful depending on the circumstances of the specific case.

Possible Outcomes:

1. If accused satisfies the evidentiary burden and the cause is found to be a disease of the mind( MD automatism is put to the trier of fact and the case will proceed as any other s. 16 case, with the defence having to prove on a balance of probabilities that the accused suffered from a MD rendering him incapable of appreciating the nature or quality of the act (this finding absorbs the question of whether the accused acted voluntarily, the fact to be proven in a Non-MD defence)
If the accused satisfies the evidentiary burden and the cause is not found to be a disease of the mind ( Non-MD is put to the trier of fact and if the trier of fact finds that the accused proved on a balance of probabilities that he acted involuntarily then the accused is fully acquitted

Provocation

• Set out in s. 232 of the CC • Partial defence (only reduces Murder to Maslaughter) • Burden is on the accused to raise the evidentiary burden and then on the Crown to disprove beyond a reasonable doubt. • MODIFIED OBJECTIVE TEST (survived constitutional challenge in Cameron) • Can also be used to mitigate against sentence (Stone)

ELEMENTS OF THE OFFENCE
- Section 232 of the Criminal Code instructs that a provoked act must contain:
1) a wrongful act or insult capable of depriving an ordinary person of self-control
2) a resulting loss of self control on the part of the accused
3) action “on the sudden” by the accused

Provocation Test (Hill)

STEP 1
Was there a wrongful act or insult that would cause an ordinary person to be deprived of self-control by the act or insult?

• “Reasonable person” test: a person having the power of self-control to be expected of an ordinary person of the sex (Hill) and age (Camplin) of the accused, but also sharing the characteristics that would affect the gravity of the provocation. • NOTE: TJ need not tell jury of each specific attribute of accused; jury will use common sense in factual determination of the objective test; such instruction is helpful but not mandatory (Hill). • The characteristics to be attributed to the ordinary person will depend on the relevance of the particular features of the provocation in question (Ly). • Race will be a relevant factor when provoked by a racial slur. • Jury must consider the wrongful act/insult in light of the past relationship between the deceased and the accused (Thibert). However the general breakup of a marriage due to an extramarital affair cannot be considered a provocation (Young and Thibert). • “Homosexual advances” were recognized as possible wrongful act or insult -see R v. Camplin; R v. Hill - but see R v. Ryznar;, R v. Hansford; R v. Tomlinson for opposite conclusion by trial judges

Note: McLachlin added in Parent that a further relevant consideration is whether the wrongful act was sudden or unexpected • Dissent in Thibert: Where there is knowledge of the circumstances of a spouse’s new relationship, it cannot be asserted that the defendant was unprepared for a meeting with the new partner

STEP 2
Was the accused in fact provoked to respond to the wrongful act/insult? • Question of fact to be determined by evidence; subjective test. • Jury must consider the psychological temperament and mental state of the accused at this stage (Hill) • Cultural considerations can be taken into account at this point (Ly). • Jury can also consider past history of the relationship at this point (Thibert)

STEP 3
Did the accused react to the provocation “on the sudden” and before there was time for the accused’s passions to cool? • Question of fact to be determined by evidence; subjective test. • Taunting of the defendant by the deceased who was preventing him from privately talking to his wife was considered as a provocation “on the sudden” in Thibert. • The argument and the act of choking were considered too distant in the course of events to provoke the defendant “on the sudden” in Malott. • Evidence of pre-meditation will suggest not on the sudden. In Mallot she had a loaded gun in her purse so failed this test. However, note that Thibert also had a gun in his truck and was successful with the defence.

Note: Mallot indicates that the past history of abuse will not be considered due to the “on the sudden” requirement (only applicable to self-defence) However, dissent in Mallot (Abella) said judge should have explained past history of abuse so the jury could take into context how this would have informed her perceptions. Several UK cases (Thornton and Humphreys) show an acceptance of taking into consideration domestic violence in the provocation context.

Charter Issues?

Femicide

Section 15 issues around use of provocation defence related to proprietary interest in spouse; cultural defence and its impact on racialized women; increase of women being killed • R v. Ly (1987) BCCA – p.380 o tried to argue that cultural history was important – Vietnamese man living with a woman who was having an affair on him ( Def felt he had “lost face” in the community o held: only take culture into account if a racial comment, etc directed at the accused o take into account how Def is situated in respect to deceased o will take gender into account (always look at how reasonable man would respond in circumstances of infidelity) o should only take this into account when determining if the accused “acted on the sudden” – assessment of what was in Def mind at the time • R. v. Thibert [1996] SCC – p.383 o Def was separated from wife but he wanted to keep meeting her – ended up at her office and her new lover taunted him ( shot lover o majority: provocation should be available b/c something a “reasonable person” could have been provoked by o minority: problem with what is allowed to be wrongful act/insult – if people just expressing themselves how can you argue provocation? o central issue – factual Q if ordinary person would lose self-control or get so angry as to kill someone o another issue: was there actually a “wrongful act” to open door for this defence? o CA would have dismissed appeal – said subjective part did not meet air of reality – difficult to argue not knowing what you were doing but showed up with a gun o SCC: provocation should be left to the jury • R. v. Malott (1996) Ont CA – p.393 o wife charged with murder of husband and attempted murder of girlfriend ( she could not report to police b/c husband a drug informant (physically and mentally abusive) o he made her take him to pick up drugs (she took meds before he arrived) ( medical centre closed and she was worried he was going to kill her so she shot him then took cab to trailer and attempted to kill girlfriend o held: convicted of murder – provocation NOT available o said history is NOT relevant to provocation (but would be to self-defence) o she recognized a “gleam in his eye” that reasonable person may not haven noticed

Homosexual advances
Section 15 issues – real implications for lives and safety of members of LGBTQ community

• R. v. Hill: conflicting stories about whether or not they were gay lovers o majority figures the jury will automatically ascribe some facts to accused anyway so even though it’s up to judges discretion it may not matter • R. v. Camplin: often raised b/c of unwanted sexual advances by gays – what would a woman do if an unwanted advance had been made against her? • outrageousness or the way it seems to go against the norm (taken as a given) that allows a provocation defence against homosexual advance • allows a more read acceptance as provocation as defence against gay bashing • Hansford: stabbed taxi driver b/c he suspected homosexual advance after Def had already been subject of advance by man earlier in the night (also heavily intoxicated) o combo of intoxication, earlier events, mistake of fact, etc ( operating on Def mind

Residual defence of rage

• Earlier cases suggest possibility that accused had no mens rea for murder b/c they were in a state of rage – see R v. Listes; R v. Wade; R v. Stewart; R v. Klassen • SCC has since held that anger is not a stand-alone defence – it can only form part of defence of provocation when all requirements of that defence are met – R v. Parent

R. v. Parent [2001] SCC

o Up until this point could lead “rage” as the insult – allowing rage to negate the mens rea independent of provocation (wouldn’t necessarily have objective threshold met) o undergoing long divorce and coming down to division of corporation – Def shares had been seized and put for sale ( wife said she was going to buy them ( gun went to sale with loaded gun and killed her o “provocation”: “I told you I would wipe you out completely” ( argues he flew into state of rage and felt white-hot surge (whoosh) o Held: proper way to direct jury ( rage is NOT a stand-alone defence ▪ can be used as part of manifestation of loss of control and forms part of mens rea (so can be part of provocation or automatism)

Trial Process

Rights of the Accused Implicated by the Trial Process

The Accused has the right to understand and participate meaningfully in his/her own trial: o The accused has the right to conduct his/her defence in either official language o The accused has a right to translation of court proceedings (as per sec. 14 of the Charter) ▪ R. v. Tran: sec. 14 right of an accused to an interpreter were infringed when the interpreter failed to provide full and continuous translation, also acted as witness in the case etc. ▪ R. v. Haskins: deaf accused granted a new trial under sec. 14, on the grounds that his interpreter was unable to translate the testimony of a key witness.

The Accused has the right to remain silent at trial: o This applies to the pre-trial investigation and the trial itself; and this right is guaranteed by section 7 of the Charter (R. v. Hebert) o A trial judge must not draw negative inferences from the accused’s failure to testify, however counsel for a co-accused may make such a comment as long as the jury is not asked to interpret silence as proof of guilt (R. v. Crawford; R. v. Noble)

Disclosure o s. 603: accused is allowed to view the indictment; their statement; and evidence and exhibits, if any, before trial commences. o The Crown has a general duty to disclose all material it proposes to use at trial and any evidence that may assist the accused, even if the Crown does not plan to adduce it (R. v. Stinchcombe) ▪ Statements favourable to the defence must be disclosed by the Crown, and a failure to do so may engage an accused’s s. 7 rights. o Crown can however: 1) refuse to disclose on the grounds of privilege; 2) exercise discretion in the timing and manner of disclosure to protect informers; 3) in the case of potentially irrelevant information should err on the side of disclosure; 4) initial disclosure should take place before accused elects mode of trial or enters a plea; 5) Crown’s discretion remains reviewable before a trial judge at the voir dire (R. v. Stinchcombe)

Accused rights v. Complainant Rights re Disclosure of Records: o Disclosure in the context of sexual assault cases has at times been used to the detriment of female victims o The court widened access to women’s therapeutic records, and held that when records are in the hands of a 3rd party the accused has a s. 7 right to apply for them (R. v. O’Connor) o The 3rd party must be notified, and then a judge must decide if the records are “likely relevant”. Records will likely be relevant where it “may be useful to the defence” because there is a “reasonable possibility” that the information is probative. (R. v. O’Connor) o S. 278.1 – 278.91 of the Code have now laid out new forms for subpoenas of documents; and largely adopted the dissent in O’Connor. Their constitutionality was upheld in R. v. Mills. o Stay of proceeding may be granted if rape crisis records not made available (R. v. Wiseman and Beausejour) o Women’s counselling records wherein they question whether they are to blame for their own sexual assault may be considered relevant evidence (R. v. Osolin)

The Order of a Trial

a) Crown Election:
Crown elects to proceed summarily or by way of indictment if offence is hybrid; o summarily: trial takes place at lower court level (no juries, etc) o indictment: accused has to plead and elect mode of trial (where applicable – eg judge, judge and jury, etc) • Diversion? Is this a case where the Crown can use diversion to find another route in which to deal with the offence outside the criminal system?

b) Accused Plea and Election: • The accused must enter a plea of guilty or not guilty • Accused selects the mode of trial – judge alone (at provincial or superior court level) or judge and jury if applicable; s.469 offence must have jury unless crown and defence agree (s.471)

Plea Bargaining • S. 606(4) allows a judge to accept, upon her discretion and with the consent of the prosecutor, a plea of not guilty to the offence charged, but guilty of any other offence arising out of the same transaction, regardless if it forms part of the offence charged. • Crown prosecutor cannot bind a sentencing judge, even when the Crown and defence counsel are in agreement and make a “joint submission” on sentencing (R. v. Butterworth) • Plea bargains may rarely be set aside if they were not voluntary and unequivocal (R. v. Rajaeefard)

c) Preliminary Inquiry: A preliminary inquiry may be used to: i) determine whether there is sufficient evidence to put the accused on trial; ii) to prepare for trial and allow the defence to assess the Crown’s case; iii) to facilitate plea bargaining; iv) to preserve evidence in case a witness is absent from trial due to illness or death. • Accused charged with 553 offence do not have the right to a PI; those charged with 469 offences must have one; those charged with 536 offences have the option. • Sections 536(3)(4) and 537(1.1) make PIs available only when the defence requests one and identifies the issues on which it wants evidence to be given and witnesses called at the PIs • For an accused to be committed to trial, there must be sufficient evidence adduced at the PI to warrant trial: there must be evidence upon which a reasonable jury properly instructed could return a verdict of guilty. If not, an acquittal must be entered or the charge withdrawn from the jury (Unites States of America v Sheppard) • In the case of circumstantial evidence where all evidence is equally consistent with the accused’s guilt as it is with a rational conclusion of the accused’s innocence, it will be considered that there is no evidence or that the evidence is too dubious for jury consideration (R. v. Nelles) • It is not for a judge at a preliminary inquiry to weigh the evidence at a PI to see if it is credible or trustworthy, but just to determine if the evidence is sufficient in accordance with s. 475 and the Sheppard test (R. v. Nelles)

d) Pre-trial Conference: On application by the Crown, defence or on its own motion, a court may hold such a conference before the court where the trial will take place, unless it is to be tried by a jury, in which case such a pre-trial is mandatory. Its purpose is to consider such matters as may promote a fair and expeditious hearing: s. 625.1. It may result in plea negotiations. (SEE DISCLOSURE ABOVE)

e) Empanelling of Jury: The jury is selected according to s. 626-643, which permits challenges to the array, challenges for cause, and peremptory challenges for both Crown and defence.

Challenges to the Array o S. 629: the array may be challenged based on impartiality, fraud or misconduct of the sheriff or other official. o Sections 11d and 15 of the Charter do not require that the accused be tried by a jury composed primarily of their own culture or race, as long as the jury selection process is free of bias (R. v. F.A.) o A sheriff may not attempt to empanel a jury to make it represent the culture/race of the accused (R. v. Born with a tooth)

Challenges for Cause o Individual jurors may also be challenges pursuant to ss. 634; 638; 638(b) o In Ontario an accused is allowed to screen potential jurors for racism by asking them about their impartiality if the accused is African Canadian (R. v. Parks and R. v. Wilson) o To establish a realistic potential for juror partiality generally requires satisfying the court that: (1) a widespread bias exists in the community; and (2) some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. o Members of visible minority communities may similarly challenge jurors, even if they cannot prove a history of longstanding discrimination (R. v. Koh); as may homosexual accused (R. v. Musson); and Aboriginal accused if the judge feels there is an air of reality to the argument (R. v. Williams) o Judicial notice cannot be taken of the impact of inter-racial racism on a juror’s impartiality. Court noted: Parks does not hold that a potential “sympathy factor” exists between jurors and complainants in all situations where both are members of the same visible minority. BUT if they can produce social science evidence then it may be allowed.(R. v. Spence) o Men however may not challenge jurors on their views as to sexual assault (R. v. Find)

Pre-Emptory Challenges • (Crown cannot exercise in a discriminatory fashion, but the law is unclear on whether the defence can—see Brown) equally by both the Crown and the defence (Bain v. R); o 20 – in the case of high treason and 1st degree murder o 12 – where the accused is liable to imprisonment for more that five years o 4 – all other offences

f) Opening Address: The Crown gives a description of its theory of the case and a general outline of the evidence it will present.

g) Crown’s Case: The Crown presents its evidence through witnesses who give evidence in chief, and perhaps through re-examination after cross-examination by defence counsel.

h) Motion for Directed Verdict: The defence may request that the judge direct an acquittal if, after presentation of the Crown’s evidence, a properly instructed jury could not reasonably convict.

i) Defence Case: The defence may open its case for the accused and present witnesses (s. 651). These witnesses will be open to cross-examination by the Crown, as would the accused be if she testified.

j) Closing Addresses: The Crown and defence summarize their evidence and theories of the case, unless the defence elected to call no evidence.

k) Summing Up and Charge to the Jury: The judge summarizes the evidence but must not direct the jury regarding factual finding; rather she/he would direct the jury as to the law and suggest how the legal rules might apply to the facts. • R v Morgentaler – there is no right in common law to allow the lawyer to inform the jury that the have a ‘right’ to ignore a bad law; they are permitted to nullify the law on their own. The jury is permitted to come to a just and fair verdict even though they cannot be told that they have this right—risks a mis-trial! • s.649 makes it an offence for jurors to discuss the case outside the jury room or with the media after the case

l) Verdict: As per s. 653 the verdict must be returned by a unanimous jury, without reasons, or by a judge if the trial is by judge alone, with reasons.

m) Sentence

Self Defence

• Sections, 34(1) and (2), 35, 37, 25(4) • Evidentiary Burden on defence (air of reality) and then switches to Crown to disprove beyond a reasonable doubt. • Generally is an issue of imminence and proportionality • Successful defence=full acquittal

Questions to Ask:
1. Which type of self-defence at issue? i. Unprovoked + no intended death or GBH [34(1)] ii. Unprovoked + intended Death or GBH (take notice of McIntosh) [34(2)] iii. Provoked [35] iv. Third Party (generally)
2. Is there an “air of reality” to this defence? (R.. v. Cinous and R. v. Currie)
3. Can the requirement for the category of self-defence be established? i. if any of the requirements cannot be met ( defence fails (R. v. Faid) ▪ if force is objectively excessive the Def will be convicted of original offence unless another defence available. (R. v. Faid) ▪ However, if abuse & battery of accused fails as a defence possible to use as mitigating factor for sentencing - R. v. Raymond [1993] N.W. T. C. – where it was applied to reduce manslaughter sentence

UNPROVOKED ASSAULT – s. 34(1)

• Justified in repelling the assault if: i. No more force than is necessary was used (objective) ▪ R. v. Cadwaller (1966) Sask: o 14-year-old boy shot father with 5 shots at close range when coming up the stairs – history of abuse o “if one believes he is in danger of life or limb he is entitled to use such force as would effectively put assailant out of action” o held: test is really whether the accused used more force than he reasonably thought was necessary o ratio: interpretation of objective element should be generously weighed in favour of accused

ii. Assault was unprovoked • If provoked, per R. v. McIntosh [1995] SCR, s. 34(2) would be available to the initial aggressor, so likely to use that section.

iii. One did not intend to cause death or GBH • R. v. Tromblay O.A.C. [1998] where court held that even if intent not to cause serious injury, death, accused would not be limited in defence to s. 34(1) could also use s. 34(2)

PROVOKED – s.35

i. Section 35: allows you to use SD even when you provoked the assault, but does require an ATTEMPT TO RETREAT. However, McIntosh has said that s. 34(2) can be applied to provoked assaults so can now use that section as it doesn’t have the duty to retreat. • R. v. McIntosh (1995) SCC o Def provoked the attack by threatening the victim o ratio: Section 34(2) is available to initial aggressors (not precluded) ▪ s.34(2) did not include statement found in s.34(1) “without having provoked the attack” ( this provision was ambiguous and was to be interpreted liberally o dissent: history of provision and interpretation aimed as avoiding absurdity dictate that s.34(2) is NOT open to those who provoke an assault ▪ a duty to retreat where one is the initial aggressor o Concern: what if someone provokes fight ( escalates to threat of GBH or death and then turns around and uses lethal force ( can use s.34(2) ▪ problems with situations of domestic violence.

THIRD PARTY – s.37

• s.37: can use force to defend oneself or someone under their protection if: i. uses no more force than is necessary to prevent the assault or the repetition of it ii. use of force must be proportional (can use no more force than is necessary)

PEACE OFFICERS – s.25

S. 25(4) – Applies to police officers ‘fleeing felon’ rule, possible that it could be open to s. 7 challenge, as the old section (struck down in R. v. Lines [1993] – by the Crown bringing the action)
Requires: officer had been proceeding lawfully to arrest a person, held a reasonable belief that force is necessary to prevent imminent or future death or grievous bodily harm, and used no more force than necessary (evaluated subjectively)

UNPROVOKED ASSAULT CAUSING DEATH OR GBH – s.34 (2)

34. (2) Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if:
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and • Per R. v. Cadwallader [1966] Sask. Q. B. - Interpretation of objective component of s. 34 should be generously weighed in favour of the accused • Per Lavallee, expert evidence can establish Battered Women Syndrome (BWS) which can establish whether or not threat of death/serious assault apprehension was reasonable o Note: Expert evidence will be essential in such cases, and as Lavallee, R. v. Malott [1996] O.A.C, Abella J.’s dissent, and McLachlin J. and L’Heureux-Dube J.’s concurring judgement in the SCC appeal of that same case o Note: Not enough to establish BWS – must still show self-defence action to be reasonable • NO IMMINENCY REQUIREMENT (per Lavallee) Law requires the accused to reasonably believe they are going to be killed/seriously assaulted but it does not require the accused to be correct or accurate about this fear – so the assault does not need to be imminent or occurring. Requires only that the person have the present ability to carry out a threatened assault regardless of whether the assault is imminent.
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm (Alternatives to self-help). o Per Lavallee – expert evidence can establish why woman stayed in relationship, did not leave o Women who do flee a battering relationship more likely to see increased battering if they do flee, or attempt to flee from their abuser

WIFE BATTERING AND SELF-DEFENCE

• Jane Wynott (Stafford) o murdered C/L husband after history of abuse with others present and he threatened to kill her neighbours and burn son ( couldn’t leave b/c he’d threatened to kill all her family if she did o argued provocation and defence of others o CA: person using self-defence must be faced with actual (not “imaginary” assault) at the time ( defence not available (not proximate or imminent)

R. v. Lavallee [1990] SCC • Q of imminence, availing oneself of means of escape, etc? • Expert evidence to “overcome a large group of myths and stereotypes about a group of people who exist in abusive r/p” – more insight as to what it means when victim threatens something to Def or their family • SCC: myths and stereotypes might include: o if she doesn’t leave she must enjoy getting beaten ( her credibility o the abuse couldn’t have been that bad or she would have gotten out ( credibility o why didn’t she leave earlier or in this particular circumstance why didn’t she walk away? ( steps taken to not engage in the violence o statements made to others (e.g. hospital visits where she lied about injuries) may be used against you ( even though she might have done things to take steps to leave but she might have camouflaged them • Expert evidence can support the ways she’s describing her situation is consistent with how battered women act in this situation ( provides scenario for jury that this is the way these things can happen o dislodge the myths and assumptions o sets up scenario to understand what it means for someone to understand a long, deep pattern of violence

When is expert evidence admissible? (Lavallee)
1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence.
2. This second hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.
3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.
4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. (There must be some admissible evidence supporting the opinion, not that every-thing said must be proven. The amount of weight to give to the expert’s testimony relates to how much of the evidence is admissible.)

After Lavallee • Question of the immediacy of the threat is enlarged by both Lavellee and McConnell

• R. v. Malott: o evidence of BWS isn’t just relevant in self-defence but potentially relevant to other defences (provocation, necessity, duress) o opens the door and recognizes this evidence is available and shifts the objective threshold • R. v. Lalond: violence and threats compelled the woman to act in the way she did – welfare fraud • BWS also comes up with respect to sentencing (may mitigate sentence, R.v. Raymond) • R. v. Jacko: Def argued person they killed was “bearwalker” so had to look at the victim’s propensity for violence and powers as gauged by Ojibwa (court was prepared to understand it this way)

R. v. McConnell (1995) Alta CA – p.423 • tension b/w Def and prison community ( people had threatened to kill the Def and friends after supper so Def instead stabbed the “enforcer” who he thought was going to kill him (even though when he stabbed him there was NO “direct” threat) • Court prepared to expand understanding of what is going on for particular accused but also takes into account level of prison violence.

• Is there a distinction between prisons and domestic violence? o compulsion in family situation to stay longer (eg family, kids) o prison is not a relational situation that you would necessarily hope to foster o similar in the sense that the person who is in the family violence situation are pretty fine-tuned to level of violence in household (know when threats are actually real) and person in prison may know that the other person makes good on threats, etc o both cases – allow the person to have some sort of knowledge of the threat o expert evidence opens the door so judge/jury can see what that reality would look like

Duress

• Found both under the CL and s. 17 of the CC (must choose to advance either or) • Evidentiary burden on the accused and then switches to the Crown to disprove beyond a reasonable doubt. • Complete defence.

1. Does the accused fall under the CL defence of s. 17?

|s.17: Available to principal offenders ONLY. |CL: Available to parties to an offence. |
|There can be multiple principals |Sympathetic classification of party: |
|List of excluded offences only apply if the person is a principal to|Paquette – person needs actual desire, not just intent, to commit |
|an offence (Paquette) |the offence (no longer good law after Hibbert, which separated the |
|Strict classification of who’s a principal |concepts of intent and desire)iHiHHHHH |
|Robins – luring victim and driving car in kidnapping enough to be |Hibbert – only lured the victim so a party |
|principal | |

Principal v. Party

R. v. Robins=Principle
Robbins tried to argue that she was a party and not the principal (so she could use CL). CA held no, she actually effected the kidnapping. It didn’t matter if she didn’t commit all the essential tasks of the offence, they can be divided up so that more than one person can contribute and still be a principal. The fact that only one was the directing mind and boss of the operation has no importance except when considering sentence.

2. Section 17

• Excludes certain crimes(see s. 17. • Applies ONLY to Principals.

Requires:
1) Was there an immediate and present threat of death or grievous bodily harm?

R. v. Carker- imposes literal interpretation of both temporal and spatial limitations to the defence (overruled in Ruzic)

R. v. Robins- immediacy requirement is not met where one has a safe avenue of escape and where the threat does not put one’s own security in immediate danger; threat of bodily harm construed narrowly (the threat was to kidnap her daughter; wasn’t of death/bodily harm and it was to a 3rd person)

R. v. Ruzic- Section 7 violation. The test for involuntary conduct should be the absence of a realistic choice or a safe avenue of escape, assessed on a reasonableness standard taking into account the personal circumstances of the accused

• section 17 may include threats against third parties • the strict criterion of immediacy is no longer a generally accepted component • the courts have to use a objective-subjective standard when appreciating the gravity of the threats and the existence of an avenue of escape; the test requires that the situation be examined from the point of view of a reasonable person, but similarly situated

2) Did the accused find him/herself suddenly in the position of having to make an agonizing choice between two immediate and present evils?

R. v. Gardiner- where the accused voluntarily participated in and prepared for the crime, its escalation to a point of compulsion has not arisen on the sudden as s/he has had ample opportunity to reflect, reconsider his/her position rationally, and attempt to extricate him/herself from it (i.e. where you involve yourself in a situation of criminal activity you must be prepared for the consequences).

3) Was there proportionality between harm inflicted and the harm avoided, in the sense that the harm avoided must be either comparable to or greater than the harm inflicted (Paquette)?

NOTE: CANNOT apply to threats of future harm.
NOTE: Doesn’t apply to conspiracies (s. 17)

CL Defence

• Applies to all offences • Applies only to Parties to an offence.

Requires: 1. Can involve threats to 3rd parties 2. Must take safe avenue if available a. Safe avenue of escape must be tested objectively while taking into consideration the frailties of the accused (R. v. Hibbert) 3. Must be proportionality b/w the threats and the crime 4. Can involve threats of future harm (but must be some element of closeness in time between the threat and its execution such that the accused cannot act freely-Hibbert).

The accused must satisfy a subjective-objective standard (Hibbert). • A reasonable person, with the same characteristics and capacities as accused, must: o be afraid; o have no means of escape; AND o would have submitted to the threats

Note: Possible no mens rea defence if duress goes to motive • Very exceptional to negate mens rea. The mental element of the defence must be defined in such a way that either an actor’s motives or his immediate desires have direct relevance o Hébert: accused had no s.17 defence of duress due to lack of immediacy. However, new trial granted to determine if the threats vitiated his mens rea for perjury (ie: no intent to mislead.) o Hibbert: narrowed the instances in which duress can raise a reasonable doubt about mens rea. Suggests it will be a rare occurrence when duress will negate the mens rea.

STATUTORY DEFENCE – s.17
Not Available/Unsuccessful • R v. Gardiner (1983) BC Co Ct – p.434 o scheme to sell guns to undercover police cops under pressure by threats from powerful guy (Gougin – who ended up disappearing) ( the threats were immediate and present o held: defence not available b/c (i) choice made under duress did not arise suddenly (he had been complying over time and had not changed his mind); and (ii) he was also associated with organized crime • R. v. Robins (1982) Que CA – p.436: wife kidnapped girl with her husband (she was wheelperson) o duress was NOT available b/c kidnapping is an exclusion under s.17 – but is “forcible abduction” the same? o if she was classed as “principle” then only s.17 available but if only a “party” she’d have C/L defences available o held: kidnapping not necessarily the same as forcible abduction so might be available for kidnapping (but then needs to meet other criteria such as being principle) o held: issue of “immediate threat” or GBH ( was none even though made threats to her daughter b/c i. No immediacy of the threat ii. Threat was to take away her children (not physical harm) and defence does NOT apply to 3rd parties • R v. Carker [1967] SCC – p.433: Prisoner pressured to break water pipes during a prison riot – said it was “inconceivable” that harm would come to him for not complying (h/w could be argued in light of McDonnell) o took very literal view of Q of “presence” and “immediacy” – Q of law so not for the jury to decide o very small moment in time when he was not at risk of immediate threat • R. v. Herbert – p.442: notary was compelled at gunpoint to issue $10,000 cheque ( perjured himself to avoid testifying against person b/c of threats ( CA said threat was not immediate b/c he could have put himself into police protection ( SCC thought it was possible to argue something about ‘intention’ re the perjury • R. v. Emery: Charged with cruelty in the death of her 11 month old child and argued that she had lost her capacity to act independently b/c of prolonged abuse – defence of duress was not available but her situation was considered mitigating

s.17 Was Successful • R. v. Langlois: prison worker who smuggled drugs into a prison after numerous threatening phone calls ( s.17 violated s.7 rights so the defence was available (similar to Ruzic) • R. v. Prosper: woman unlawfully driving car b/c husband had threatened to assault her when she returned home • R. v. Ruzic [2001] SCC – p.442 o Woman smuggled heroin into Canada from Serbia b/c of threats to her mother o held: s.17 was NOT available b/c immediacy and presence r/q were not there o court drew distinction b/w “moral blameworthiness” and “voluntariness” o limits of s.17 – could possibly be a person whose conduct was morally involuntary (no choice) that would still be found guilty b/c s.17 prevented them from availing themselves of the defence o s.7 (P of FJ) – should be “voluntariness” to a persons action ( a person acting morally involuntarily was something criminal law traditionally not ready to sanction o s.17 was found overly restrictive and violated s.7 b/c did not apply to 3rd parties and required aggressor to be present exposing morally involuntary people to liability( Not saved by s.1 • Aftermath of Ruzic: opens door to re-evaluation of people facing situations such a in prison or long-standing relationships of domestic violence in which duress was previously unavailable o history of r/p with the person threatening leads credence to ability of them to make good on threats ( policy

COMMON LAW – s.8(3) • R. v. Hibbert [1995] SCC – p.455 o lured friend to be killed by 3rd party against his will after Def had been beaten up by shooter o court examines the r/p b/w duress and mens rea o held: new trial ( in exceptional circumstances mens rea can be negated by duress h/w as aid or the mens rea is not susceptible to being negated by duress o ratio: possibility of duress even if the person has the mens rea (but nonetheless has excuse of duress) ( whether or not duress is operating o important thing operating: if there is a safe avenue of escape that has to be tested objectively by taking into account the circumstances o tries to clear up distinction that you cannot just talk about mens rea but also need to look and see if conduct is voluntary (b/c of duress) – may have the mens rea but not be doing it voluntarily • R. v. Mena – p.442: question of whether they are a party/principle or a perpetrator? o he was a refugee who was cleaning carpets and thought he was going to a job when he was forced to participate in a robbery ( tied the victim up loosely and didn’t sell the jewellery that was given to him o believed there was duress but robbery was precluded so unless he could argue he was a party he could NOT use s.17 o held: appropriate to think of it under C/L defence instead ( re-characterized as a party and could benefit from s.8(3) o looked to threat of bodily harm and no safe escape available

Necessity

• CL defence • Seen as an excuse (rather than a justification) (Perka) • Negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity (Perka) • Evidentiary burden on the accused and then switches to the Crown to disprove beyond a reasonable doubt. • Not available for murder (not allowed for inflicting greater harm than evil averted(proportionality). • Complete defence

R. v. Perka [1984] SCC – p.461
Facts: boat of drug smugglers on ship taking marijuana to US but boat had difficulties and had to come to port in BC ( ran into rock ( unloaded all the drugs

Issue: can necessity be used as a justification or an excuse in law?
Held: test is the same as in Morgentaler ( YES there was necessity • fact that they were doing something illegal does NOT disallow defence ( if you’re doing illegal activity can countenance possibility of necessity provided it was NOT so directly f/s as consequence of illegal action. • ratio: necessity is restricted to being used as excuse • Wilson (dissent): can be used as justification if you have a legal duty and you’re acting on that and that is what effectively makes you break the law ( the legal duty should give rise to justification and not just an excuse o saying that society recognizes the person did the right thing ( upholding a legal duty and is a complete justification o excuse is that the person did the wrong thing but excuse takes away the conviction. Justification is saying that what the person did is morally right.
Examples of Wilson’s reasoning can be seen in the Perry Dunlop case (police officer having a conflicting duty to report child abuse) and also in Langdon ( could both be construed as Defences of Conscience).

TEST (R. v. Perka)

(1) Did there exist an urgent situation of clear and imminent peril?

Ambiguity exists about what constitutes clear and imminent peril

Cases where the accused met the test for clear and imminent peril:
R. v. Manning: B.C. provincial court decision to allow defence of necessity to an assault charge; accused slapped his pregnant girlfriend in the face, causing a black eye, to prevent her from harming herself and her foetus
R. v. Stephens: accused charged with driving while under suspension successfully argued necessity because she subjectively believed that the situation was one involving urgent and immediate peril; her son had been in an accident and she had not received details; she drove to the hospital.
R. v. Morris (1981) Alta QB: husband charged with assaulting wife – on the way home after they’d been at a bar she tried to jump out of the truck ( grabbed her around the neck and then she tried to grab steering wheel so he held her around the neck • held: Necessity allowed him to restrain her – opposite risk of lettering her jump out was greater than harm he was doing • court constructed a duty for him to see her home safety – attaches a legal duty to the husband which gives a lot of elasticity in determining what could possibly necessity
R. v. Langdon-see below

Cases where the accused failed to meet the test for clear and imminent peril:
R. v. Adams et al.: a battered wife was unsuccessful in arguing necessity in removing a 5 year old girl from her father’s custody.
R. v. Vandenelsen: Court of Appeal overturned the acquittal and ordered a new trial of a mother who argued necessity in her defence to 3 charges of abduction contrary to a custody order (s.283(1)) on the basis that there was no air of reality to any element of the defence; the accused tried to argue necessity because children’s total deprivation of the care love, guidance, and support of their mother was seen as a danger of imminent psychological and emotional harm to the children

(2) Was compliance with the law demonstrably impossible?

• The accused must demonstrate that it was not possible, given the circumstances, to find recourse from the peril using legal means, including escape. • Failure to make use of available legal alternatives will mean that the test for necessity has not been met
R. v. Langdon: 5 women who occupied the British Consulate and the Netherlands Consulate were acquitted by the trial judge because it was determined that they had exhausted all legal opportunities to protest low level flying exercises conducted from the military base at Goose Bay (this case also has implications for what harm is considered imminent) Compare with:
R. v. Stevenson • Did NOT accept necessity because there were alternatives to burning the bridge (blockaded the bridge or just not used it themselves). Problem of the question of “imminence and peril” – it was probably inevitable that the bridge would collapse but it was not imminent. Proportionality - blocking bridge is a lot less than burning it even though it is still illegal.
R. v. Gourlay: accused denied the defence of necessity in relation to theft of medication for his severe asthma condition; he had committed the same crime several times before and the judge found he should have foreseen the possibility of the situation’s reoccurrence; the accused’s poverty and the failure to obtain employment were characterized as the result of his laziness

Note: (i) and (ii) evaluated on a modified objective standard that involves an objective evaluation that takes into account the situation and characteristics of the particular accused person

(3) Was there proportionality between the harm inflicted and the harm avoided?

-Not available for Murder

R. v. Latimer • issue: should necessity be available? • held: necessity was withdrawn from the jury – there was no ‘air of reality’ • defence argument: o the harm is imminent – she was going into surgery very soon for sure o argue that there’s no real avoidance of pain whether she goes into surgery or not o duty as a father • Crown argument as to why necessity should not be available: o against s.7 of the Charter and security of the person o also s.15 arguments that saying killing a disabled person is alright so they are not being treated equally as able-bodied persons o proportionality - death is more severe than a poor quality of life and suffering

Note: Critique of the Defences • Intersections of necessity defence, politics and poverty • Use of necessity further compromise b/c: strong desire to deny that poverty and homelessness exist in Canada (effects which disproportionately affect women – Constitutional argument) AND strong emphasis on property rights.
i.e. Hard for mothers with custody battles to prove necessity (Adams, Vendellenson), poverty (Gourlay) and Aboriginal Rights (Langdon and Stevenson)

Broadening the Defences

Necessity sometimes seen as imperative of conscience – many Q especially in context of family law and relations o should women who abduct their own children be permitted to argue necessity?

Can the accused’s act(s) of conscience be cast as necessity in the form of justification (as per Wilson in Perka)?

• Mothers without custody who fear for their children’s safety and who make deliberate decisions to violate the law by abducting their children cannot easily argue necessity as excuse and must rely on competing legal obligations to protect their children (an obligation that Tracie Urbanovich and Hedda Nussbaum failed to meet).

Rare examples of success:

R. v. A: mother flees to U.S. with 3 kids when ex was granted unsupervised access to the son; acquitted of abduction charges b/c she believed her children were in imminent danger of harm; judge found her to be acting reasonably given her history as a battered spouse, her ex-husband’s conviction for molesting her daughter, and the failure of the courts to protect her and her children in the past

R. v. Sole [2000] accused father acquitted of abduction on basis of necessity; TJ determined father had an honest belief that his children were in imminent danger; influenced by unrealistic potential of appealing custody decision and lack of alternatives if he did return

Can the accused act be excused under the defence of conscience?
Examples:
Perry Dunlop • Cornwall cop who decided to divulge info about a large ring of sexual assault of children • almost no successful prosecutions out of 114 charges • now there have been Private Members Bills to ask for inquiry to find out what happened • charges against lawyers, priests, and various significantly powerful people in the community • relied on s.72 of Ontario Child and Family Services Act that obliged him to report suspected child abuse • arguing the duties under Child and Family Services Act overrode his duties as a police officer to keep info confidential ( no one in police force would act it allowed him to breach this confidentiality • lawyers are also a group of people compelled to report child abuse ( potentially could be in conflict with solicitor-client privilege • able to hinge actions on s.72 – but what if s.72 wasn’t there? what would happen to somebody like Perry Dunlop? o if its just a normal person who isn’t covered by the Act then how can they disclose? hinge somewhat on the duty that you’re under

Clive Ponting • came forward with info that British Parliament had been lied to ( argued that the “interests of the state” was something different than the interests of the government of the day • held: acquitted by jury • felt he had to try the case in the press and got lucky – strong political case and national security was not involved and the documents only sent to MP (not the press)

Motive of conscience may help to defend on the basis that the elements of the crime cannot be proven • Ponting’s defence and that of Dunlop may fit here: Ponting argued no culpable act in light of his motivation or purpose and Dunlop argued no culpable state of mind

Entrapment

• CL defence • Leads to a stay of proceedings (this is because it is found there is an abuse of process. Not saying there was no guilt, but saying that the conduct of the police should not entitle them to a conviction because it would bring the system into disrepute. • Crown must first prove guilt and then burden on accused on BOP (no s. 11d violation because guilt already been shown, this is a separate matter). • QOL for judge to determine after conviction. • Objective standard.

R. v. Mack o the police are actually creating the offence by the conduct of the informant o held: informer went beyond providing a “reasonable opportunity” to commit the offence ( making persistent phone calls and threatening him and actually putting drugs in front of him ( stay of proceedings when entrapment o targeted Def b/c had had record and someone police thought would continue to be involved in drug trafficking o SCC: big issue of “temporal gap” between when Def committed offences and when entrapment occurred ( too much time goes toward evaluation of “reasonable suspicion” o looked at if there was a reasonable suspicion in the first place, inducements, rational connection, etc

1. Was there entrapment?

TEST (R. v. Mack)
There is Entrapment if:

a) The police provide an opportunity to persons to commit an offence without reasonable suspicion or acting on dubious motives. a. The fact that a person at one point had been involved in criminal activity is not enough to establish reasonable suspicion (Mack) b. There must be a rational connection and proportionality between the crime which the police has suspicion of the accused committing and the opportunity they provide for the accused to commit a crime (Mack) c. Need a sufficient temporal connection. If the suspicion stems from the persons conduct, the conduct cannot be too remote in time (Mack)

Exception: Random Virtue Testing (R. v. Barnes) ( Entrapment can occur where the police offer an opportunity without a bona fide inquiry in an area that is known for high crime (but with bona fide inquiry its ok). • R. v. Barnes: there was NO reasonable suspicion about the accused BUT there was NO entrapment o ratio: can have bona fide inquiry if you’re in an area known for trafficking drugs

b) Having a reasonable suspicion the police go beyond providing reasonable opportunity and inducing the commission of the offence. • Consider whether the conduct of the police would have induced the average person in the position of the accused (Objective Test) • Induce may include (among other things), deceit, fraud, trickery or reward and will usually, although not necessarily consist of calculated inveigling and persistent importuning • Impermissible state action includes: threats (implied/expressed), strategies that risk harming a 3rd party (absent exceptional circumstances), police conduct directed at undermining other constitutional values

NOTE: ABUSE OF PROCESS • If no entrapment might still be able to find “abuse of process” • Reverse sting operation in R. v. Campbell and Shirose was found to be an abuse of process. • Entrapment is just a smaller subset of the more broad umbrella of abuse of process. • Also gives a stay of proceedings.

2. Should there be a stay of proceedings?

i. Crown must prove beyond a reasonable doubt that the accused committed all the essential elements of the offence. • The guilt or innocence must be determined first and separate from the question of entrapment. • If the jury decides that the accused should be convicted, it is then open to the judge to stay the proceedings because of entrapment by refusing to register a conviction ii. The accused must establish on a balance of probabilities that the state has abused the process because of entrapment. • Because the guilt or innocence of the accused is not in question when the entrapment claim is made the right to a jury trial 11(f) is not infringed. • Stays are only granted in the “clearest of cases” (Mack) • A stay will not be granted just because the police conduct is illegal (R. v. Campbell and Shiroze) it must also: i. Shock the conscience of the community • In the regulatory context the community would not be shocked by the practice of using test shoppers (R. v. Reid, R. v. Huebner) ii. Be so detrimental that it would bring disrepute to the system

3. Was there an informer involved?

REWARDS TO INFORMERS
R. v. Showman • negotiating better treatment at hands of the police for testimony – would get favourable treatment on narcotics charge for informer if they testified • usually worded – a lot to do with the “successful outcome” of the accused • really puts a lot of pressure on an informer to testify in a particular way

R. v. Dikah and Naoufal • informant offered $10,000 for testimony if they accused were “successfully investigated” • TJ: prejudices the informer from the beginning by inviting him to put a spin on the evidence in a certain way to get the accused convicted • CA: did NOT render the evidence inadmissible but went to the weight to be attached to it • ratio: upholds possibility of paying informers and accepting their evidence (or at least weighing the evidence to a certain level)

INFORMER PRIVILEGE
Police Informer Rule: Crown/witness in a public prosecution can refuse to disclose the identity and the nature of the information received, except if the disclosure is necessary to prove the accused is innocent. Marks v. Befus (Neither the Crown nor the Informant can waive this protection (If a court order of disclosure is difficult to comply with or there is new evidence to suggest that the informant is at risk of harm if disclosure occurs, the onus is on the Crown to apply to the court to vary the disclosure order. R. v. Khela and Dillon
(R. v. Leipert held that the only exception to the disclosure protection rule was to protect charter rights and to ensure that the defence can make a full answer and defence

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Murder Requires subjective foresight of death