Summary.Finalexam.Crim Notes

CHARTER JURISPRUDENCE

PART 1: SECTION 9 (ARBITRARY DETENTION AND ARREST)

Arrest: anticipation of detention and not leading to a criminal charge. Arrests include actual seizure or touching.

Detention: common law power that is up against s. 9 of Charter. On right of arrest (once detention occurs), you have the right to retain and instruct counsel.

Summons and Appearance Notices

• May be issued by a peace officer when someone was reasonably believed to have committed a crime or about to commit one (applies indictable, hybrid and summary offences s. 553)

• May be issued by justice of the peace after info is sworn unless warrant needed (ss. 496, 507)

• Summons and appearance less serious than request for warrant

Arrest without Warrant

• Common law right exists if officer sees indictable offence; if not seen, must proceed to get warrant (requires justification like public interest, identify, reasonable grounds to believe someone won’t appear. s. 495, etc). – could potentially sue officer arresting on summary offence

R v Grant (2009) SCC

Facts: Officers monitoring school see young black youth and approach him because they believed he looked suspicious. Arrested him and found weapon.

I: was the accused detained before he produced the firearm, and was the detention lawful?

D: no; s. 9 breached

Ratio: Test for trigger of detention (Modified Objective Approach):

1. Was there a detention?

   1. Was the detention legal? (was there no choice to comply?)

   2. Was it psychological (would the reasonable person have thought they had a choice?)

2. Was the detention arbitrary? (was it authorized?)

3. Is the law arbitrary?

4. Is the arbitrariness justified under s. 1?

Reasons: R v Therrens established that if a person thinks they have no choice but to comply, they are considered to be detained, but with R v Mann the approach to detention is narrowed to cases involving safety of people and searches for weapons. Reconciliation of the two is required.

R v Suberu (2009) SCC (CREDIT CARD FRAUD)

Facts: Officer arrives at store and sees male attempting to leave so he asks him to stop for questions and notices his car matches description. Sees that there are shopping bags in the vehicle. Officer makes arrest, and DF argues s.10b was breached.

I: Would a reasonable person have believed that they had the right to leave in this situation?

D: Yes; there was no detention (Appeal dismissed)

Reasons (Majority): s.9 is engaged when there is physical or psychological restraint and neither was present. Section 10b was not breached because the right to instruct counsel was read even though there was no detention.

Dissent (Binnie): there was a detention; terms “wait, I want to ask you some questions” denote that one is not free to leave.

PART 2: SECTION 10(b) – RIGHT TO COUNSEL

This right is triggered upon arrest and detention (could be simultaneous- Grant and Suberu are authorities on this). Police have the following duties to help assert right:

1. Informational Duty: clearly inform detainee of right to retain/instruct counsel which includes knowing that duty counsel and legal aid is available and ensure they understand.

   1. Derive from Bridges (1990), Bartel, and Evans (1991) cases. In Bridges, accused arrested for 2^nd degree muder, asks for legal aid and answer is ‘probably’, proceeds to self incriminate. Evans was mentally ill and did not understand. Bartel did not know duty counsel was avaialble.

2. Implementational Duty: if accused chooses to exercise right, there is a duty to implement (Bartel). Must not illicit evidence until you’ve had opportunity to retain counsel.

Right to Counsel must include mention of: 24 hr legal aid availability, phone number, do you understand, you do not have to say anything but anything you say can be used against you as evidence.

The debate on the right to counsel was triggered after Gideon v Wainwright Case in 1963 in which an accused won his right claim for the right to counsel at the Supreme Court.

When one is incarcerated, s. 10b is extended:

1. right to consult a lawyer regarding upcoming case

2. right to challenge prison decisions (including transfer from cell to cell because it’s like a new detention)

NOTE: the right to counsel is not guaranteed at trial, although s. 10b does not state otherwise (consider monetary and politial values). The right is triggered when s. 7 is at stake.

Christie v York 2008 SCC

Facts: lawyer working with low income clients subjected to legal tax fee by BC which clients could not afford. Challenges decision by claiming there is aright to counsel at all times and that new tax law is unconstitutional

I: is the tax imposed by the BC government unconsitutitonal?

D: no

Ratio: The right to counsel is not absolute.

R v GJ (1990)

Facts: woman’s children were to be taken as ward of the state; she was self represented and appealed her decision

I: Does GJ have the right to counsel?

D: yes

Ratio: There are some cases where a liberty interest is triggered and when there is a right ot a lawyer in order to uphold the principles of fundamental justice. Those cases must 1) involve a serious issue 2) they must be complex 4) individual must have no capacity to defend themselves

NOTE: the specificity fo the scope of the right to counsel in this state makes the general scope of the right to counsel a serious isssue.

R v Sinclair 2010 SCC (SELF INCRIMINATION)

Facts: accused charged with 2^nd degree murder. During his interview while he was detained, he was told he had the right to remain silent, but self incriminated because he was not given opportunity to speak to lawyer.

I: Does s 10b restrict the right to retain and instruct counsel upon arrest?

D: appeal dismissed; no Charter breach

Ratio: The right to counsel under s. 10b is not continuous throughout one’s detainment.

Reasons (Majority): There is an immediate right to counsel which is rooted in the right to remain silent. This right can be extended if a new situation arises, during which the accused must be informed. New circumstnaces include 1) new allegations 2) accused not understanding rights.

Dissent: The right to counsel should not be limited to new situations arising. The right to counsel is about the presumption of innocence so 10b should be continuous in order to address with the power imbalance between the police and the accused. It’s about protecting individuals and ensuring the right to counsel is beyond informational. This is considered in the context of the charter right in french: “en cas d’arrestation” so that assistance is not confined to one instance.

COMMENTARY: Before Sinclair, there was a stronger right to counsel, but it has been restricted with this decision. The court is divided on this issue. This case draws from Oikle and R v Singh. In Oikle, the right to remain silent is tied in with self incrimination; must be careful with voluntary confessions. In Singh, accused asserted right to silence 18 times and eventually made inculpatory statement.

BOND, “The Cost of the Crisis

• no constitutional right to 24 hr legal advice; right is strictly informational and does not extend to trial (despite that under s. 7 you have the right ot counsel in accordance with the principles of fundamental justice)

• right to be tried within a reasonable time can be breached under s11d when the legal aid system is in crisis – the consequences of a breach could result in a permanent stay on the charge which creates an Asgof crisis.

  • In Asgof, 40 000 people were rleased from prison because of permanent stays

• Under the Robautham (ONCA) application (test held by all Courts of Appeal), state funded counsel is required where:

1. representation requires fair trial

2. accused wants counsel and there is a right ot one

3. accused cannot pay for lawyer, there is a right to one

GJ criteria (serious, complex and no capacity for self representation) fall under part one of Robautham.

PART 3: SECTION 8, SEARCH AND SEIZURE

Case law is still developing in this area. Section 8 does not necessarily state who is protected from arbitrary search and seizure. A search is defined as anything that is physical, visual or olfactory. In Canada, there is no law indicating whether the use of sniffer dogs is considered a search.

R v Tessling 2004 SCC

Facts: state using infrared rays to detect heat usage in homes in order for marijuana grow ops to be seized.

I: Is the initial method of identifying heat a search?

D: No

Ratio: The use of inrared rays is not considered a search.

NOTE: we could argue that what you’re seeing coming out of a house and what you’re targetting is considered a search. The state’s capacity to detect information that is not publically acecessibily can also be a search. Moreover, one court argue that it’s not because the human senses are not being used to search. Then the question becomes whether the enhanced sense are considered to create a search.

R v Patrick 2009 SCC (GARBAGE + ECSTACY)

Facts: accused charged with production, possession and traficking of ecstacy. The evidence was found in his garbage cans, but he alleges that this is a violation of s. 8.

I: Did DF act in a way that would lead an objective observer to believe that his assertion of prvacy is unreasonable?

D: No; appeal dismissed

Rato: When personal property is abandoned and available to the public, a search does not violate s. 8.

Reasons: Once disposal of garbage occurred, it entered the public domain. In looking at the totality of circumstances (as Tessling suggests), there is no protection for personal privacy when items are available to the public.

Hunter v Southam 1984 SCC (applies to common law or legislation)

Facts: Director of Investigation and Research investigating documents on business premises of Southam Edmonton Journal. Officers presented certified authorization but declined to give info on act, delegation of authority and subject of inquiry.

I: Are sections 10(1) and (3) of the Combines Investigation Act allowing the director of research and investigation to conduct the search consistent with s. 8 of the Charter?

D: appeal dismissed

Ratio: In assessing whether a search is reasonable, we must ask 1) is there authority for the search by law 2) is the law reasonable? 3) was the execution of the search reasonable? (criteria jointly sufficient). There must be prior authorization as a precondition for a valid search and seizure.

Reasons: S. 10 of the CIA Is not consittutional because it does not outline a valid procedure for search and seizure. The guarantee of one’s security is paramount to protecting a reasonable expectation of privacy.

HUNTER AND SOUTHAM TEST DETAILS (All jointly sufficient)

PART 1: Is there authority for the search by law?

1. by warrant (s. 487) – justice of JOP must be satisfied

   1. must be sworn information justifying the warrant and reasonable grounds to believe that a crime is being committed or something will be found.

2. no warrant but with legislative powers

   1. ex. Tax Act, Terrorism Act, Combines Investigation Act

3. no warrant, but with a common law power

   1. courts are asking Parliament to legislate these common law areas. Currently, there are common law powers to search upon arrest, upon incarceration (transporting inmates), serach of items in plain view, search with consent

   2. these areas are difficult to target given the lack of case law in this area

PART 2: Is the law reasonable? (where no warrant exists)

The question is whether the authority to search is reasonable. When dealing with investigatory powers, we must ask:

Are there reasonable and probably grounds that an offence has been committed? (Subjective and objective test – must ask from the perspective of the searching agent and the reasonable person; both must be proven to meet Hunter threshold)

COMMENTARY: it is less likely that a common law power will be struck down because there is already case law allowing it and if it were, case law would be limited in allowing more. The legislative investigatory powers are being turned on their head because of the Charter, but the courts have given themselves significant power in retaining common law authority.

PART 3: Was the search performed in a reasonable way? (not at issue in Hunter because legislation allows for specific search)

R v Golden (STRIP SEARCH + COCAINE IN BUTTOCKS)

Facts: Three strip searches conducted by the police with the accused as part of an investigation for cocaine trafficking. First search was near stairwell of buttocks and underpants. The second caused the accused to defacate as the officer used cleaning gloves to retrieve bag of cocaine.

I: Was the search authorized, was the authorization reasonable, and was the search reasonable?

D: No; DF acquitted

Ratio: Strip searches must be grounded in evidence or danger (such as the presence of a weapon), rather than a mechanism of absolute authority by the police. They must minimally interfere with the dignity and privacy of an individual.

Reasons: The search was authorized by law (common law power incident to arrest). A common law search requires additional grounds pertaining to a strip search in order to see if there was evidence related to arrest. The law is reasonable, and the courts have considered the importance of dignity, privacy and minimal interference. The search was humilating and unsanitary, and thus did not consittute reasonable execution. This is not a part of police policy.

Dissent: There were grounds for strip search, and the second was in violation of s 8 but evidence should not be exlcuded.

R v Bonds 2010 ONCJ

Facts: accused seen carrying beer and talking to friend; when she sees officer she disposes of it. She is approached by two officers who arrest her after she is stopped arbitrarily. At police station, she is detained, and strip searched; her bra is cut off and and she is left in a cell soiling herself.

I: Was Bond’s s 8 right violated?

D: yes

Ratio: A stay of proceedings is appropriate where a right has been grossly violated.

Reasons: Strip search was not authorized by law. Although common law allows for search upon arrest, there were no indicia justifying strip search. The law itself allows for strip search as long as a person’s dignity and privacy is minimally interfered with, but this does not apply to Bonds. The search was not carried out reasonably, it was unsanitary, invasive, and was unnecessary in force.

PART 4: EXCLUSION OF EVIDENCE

A Charter analysis unfolds in the following sequence:

1. identify the breaches within the Charter

2. ask whether the breaches are justified

3. if they are not, seek exclusion of evidence

Before the Government gets to a section 1 analysis, it must prove that the limit is prescribed by law. If it is not, the government cannot justify it through Oakes, and the question will jump straight to exclusion of evidence because something was done outside of the scope of the law.

OAKES TEST (on Section 1)

1. Law has sufficiently important objective

2. Law is rationally connected to the objective

3. Law minimally impairs the right to accomplish the objective

4. Law does not have disproportionately severe effect (benefits outweigh negative impacts)

**Most tests will fail on the third part.

All Charter rights are not absolute. Although this sounds paradoxical, many of them have been saved by section 1. Arbitrary arrest and detention has been justified in R v Ladoceur and R v Husky. The denial of right to counsel has been justified in R v Thomsen. Unreasonable search and seizure has potentially been justified under Hunter v Southam.

The remedy that provides for the exclusion of evidence under the Charter is s. 24(2). In R v Grant and R v Harrison, the courts are responding to 20 years of Charter jurisprudence which have had tests for exclusion under s. 24(2). The test for exclusion was the Collins/Stillman case.

In Stillman, the accused was charged with sexual assault and murder. He refused to provide any bodily evidence during interrogation, but when he went to the bathroom, the police used the mucus from his nose for DNA sampling. Under the old framework, the following was the test for exclusion under Collins/Stillman:

1. Effect of admission on fairness of trial

   1. Conscriptive (self incriminating) v non-conscriptive evidence (If the evidence was not discoverable, then it would lead to an unfair trial (ex. if a self incriminating statement was made). If the evidence was easily attainable without the assistance of the accused, the information was non-conscriptive. The dichotomy between the two was merely speculative.

2. Seriousness of police conduct (was action deliberate or was there a degree of urgency)

3. Effects of exclusion of evidence on administration of justice

   1. Seriousness of charge, impact on Crown’s case (Does is shock the conscience of the community?

EXCLUSION OF EVIDENCE TEST (GRANT AND HARRISON)

1. What is the seriousness of the Charter-infringing conduct? (RULE OF LAW)

   1. What is the reliability of the evidence?

   2. Were the police acting in good faith? Is there a trend in terms of a systemic problem?

2. What is the impact of infringement on the accused who has Charter-protected interests?

3. What is society’s interest in the adjudication of merits?

We cannot just exclude evidence after the first part of the test given the magnitude of the ramifications if the evidence is excluded. We must ask how important the evidence is and whether it is all on which the Crown relies. If it is all that the Crown has, there is a concern for the seriousness of the crime. This test covers any sort of evidence (including auto generated evidence).

R v Ward is the first case in which the court awarded a monetary remedy for a Charter infringement. This is a case where Ward was arrested arbitrarily and was innocent of throwing a pie in Chretien’s face. The evidence was excluded under s. 24(1) and he was awarded $500.00.

R v Harrison 2009 SCC (WIN FOR CHARTER)

Facts: accused was stopepd by police because he did not have a license plate on the front of his vehicle. He was driving a sports utility vehicle that was rented. It was only when the police turned sirens on that he realized AB cars do not require license plates on the front. Arrested after realizing license suspended, and found cocaine in behicle

I: Should the cocaine evidence be admitted?

D: appeal allowed; accused acquitted

Ratio: A means-ends approach cannot be used to justify admisison of evidence.

Reasons: The breach of the Charter right was a flagrant disregard and the impact is the deprivation of liberty. Simply because the evidence was reliable, that is not to say that it must be coupled with a serious charge. The price society pays for an acquittal is outwieghed by the importance of a Charter breach.

R v Grant 2009 SCC (LOSS FOR CHARTER)

Facts: young black male stopped by 2 undercover police officers while on duty patrolling a school area. He seemed agitated so they stopped to question him and found him in possession of a firearm.

I: Did the Court of Appeal err in admitting the gun?

D: no

Ratio: There is a three part balancing test in determining the exclusion of evidence: 1) what is the seriousness of the Charter infringing conduct? 2) what is the impact of the Charter breach on the accused (fleeting/detrimental) 3) What is society’s interest in adjudication on merits (what is effect of admission of evidence or non-admission?)

Reasons: The three part Stillman/Collins test is used and the court balances each of the factors. The conduct of the police was not abusive but it was an infringement (admitting the evidence would not severely undermine confidence in the rule of law). The breach made to the accused was significant because the police admitted that the evidence was non-discoverable had it not been for his self incrimination. Last, the value of the evidence is considerable – public poicy wins because he is carrying a gun.

*This test is applicable to bodily evidence, statements made by the accused, and derivative evidence (physical evidence obtained as result of unlawfully obtained statement)

R v Kang Brown 2008 SCC

Facts: RCMP officers search suspicious traveler at a Grey Hound Station in Calgary. Officer indicated that the accused could leave at any time and that he was not obliged to cooperate, but asked to see his bag. When the officer reached for the bag, the accused became agitated and sniffer dogs discovered cocaine in bag. Accused charged with possession and/or trafficking.

I: Did the police have reasonable and probable grounds to conduct the search pursuant to s. 8 of Charter?

D: yes; not guilty

Ratio: For a sniffer dog to be used constitutionally, police must have reasonable suspicion (something more than a mere suspicion) and something less than reasonable and probable grounds.

Reasons: There was a search and it was not authorized by law because there is no legislation, warrant or common law authority allowing for the use of sniffer dogs. The common law for search is reasonable, and the search itself was execuited reasonably because it was non-intrusive and was minimal in the invasion. The search was warrantless and the administration of justice would be brought into disrepute if the evidence was admitted.

NOTE: Here, many judges have different opinions on the threshold of reasonable grounds. They start to speak of reasonable suspicion and generalized suspicion. It is not clear which standard applies. There was no majority opinion. Moreover, Parliament has not legislated in this area to clarify the inconsistencies.

R v AM 2008 SCC

Facts: Police accepted invivtation to bring sniffer dogs into accused’s high school to search for drugs. Sniffer dog reacted to accused’s backpack in the gymnasium where the packpacks were left unattended. Without a warrant, police opened bag and found marijuana and mushrooms.

I: Did the Court of Appeal err in upholding the exclusion of evidence?

D: no; evidence was not admitted

Ratio: Where the admission of evidence would bring the administration of justice into disrepute due to a Charter violation, it should be excluded under s. 24(2).

Reasons (MAJORITY): There was a search, and it was not authorized by law (no common law authority and no reasonable suspicion). The common law authority to search is reasonable, and the search is reasonable. The admission of evidence would bring the administration of justice into disrepute.

MINORITY (Bastarache): search was coducted in good faith (fiduciary duty)

WINTER SEMESTER

PART 1: EVIDENCE AND PROOF

Burden of Proof/onus: which party bears responsibility?

Quantum of proof: to what degree must the element be established?

Woolminton v DPP 1935 HL

Facts: husband allegedly shot wife in home with barrel gun and claims it Is purely accidental. No testimony/facts on what actually happened. At trial, the presumption is that he is guilty unless he can rebut (COA says this is an error)

I: Did the COA implement the curative proviso accurately?

D: appeal allowed; conviction quashed

Ratio: The golden thread is a standard of proof that the Crown must uphold to prove guilt of the individual beyond a reasonable doubt (now codified in s. 11d of Charter)

Reasons: presumption of guilt can raise doubt with jury. The Crown must prove the death as a result of voluntary act and the death as well as malice.

R v Oakes 1986 SCC (application of 11d)

Facts: charged with unlawful possession for purpose of trafficking pursuant to Narcotic Control Act (NCA). Had 8 viles of cannibis oil + $618 which was presumed for trafficking. Challenging s. 8 of NCA on grounds that it violates 11d

I: Is s. 8 of the NCA unconstitutional?

D: s. 8 contains reverse onus and is unconstitutional

Ratio: A provision which requires the accused to disprove on the BOP the existence of a presumed fact violates s. 11d.

Reasons: S. 8 of NCA is a mandatory, rebuttable, legal presumption. After a prima facie violation is made out, we must determine if it is justifiable by s. 1 and then propose a remedy. Section 1 must be analyzed by way of a 3 part test on a preponderance of probabilities.

1. Does the legislation have a pressing and substantial objective?

2. Is it rationally connected to the objective?

3. Is it minimally impairing?

4. Do the salutary effects outweigh the deleterious effects?

S. 8 falls on rational connection test because its measures override fairness to its purpose. Possession of a small quanittiy does not infer intent to traffic. The offence carries a life sentence and is not proportional.

RESULT POST-OAKES: Controlled Druges and Substances Act which does not include the presumption of guilt (s.4(1) on possession, 5(1) on trafficking and 5(2) possesion for the purpose of traficking)

Two three kinds of presumptons:

permissive v mandatory: “X may be guilty”, “X shall be guilty”

rebuttable v irrebutable: ask if there is an opportunity to rebut the presumption

fact v law: is the presumption about the legal rules or the facts themselves?

NOTE: presumptions do not mean that we can use circumstantial evidence in court

CROWN – must prove all elements of crime using standard of reasonable doubt

STATE - must prove s.1 justification on a standard of a BOP

R v Whyte 1988 SCC (as mentioned in R v Keegstra)

Facts: man found in his vehicle while intoxicated. Keys were in ignition but the car was off. Charged with care and control of vehicle while intoxicated

H: s. 11d is violated because of the presumption that there was an intention to drive but is saved by s.1.

Reasons: There is a rational connection between people intoxicated in their vehicles and the intent to drive for public policy reasons.

R v Keegstra 1990 SCC (Hate speech with anti-Semitic curriculum)

Facts: DF school teacher charged with wilfull promotion of hatred under s. 319(2). Was teaching anti-Semitic content and tested students on content. Defence 319(3) allows accused to prove statement was true.

I: Is violation of s. 11d under reverse onus of truth justifiable?

D: yes

Ratio: The Crown will always have the burden of proof to establish the elements of the crime and any shift in that burden results in a violation of s.11d.

Reasons (Dickson): truth defence is rationally connected to the objective of s. 219(3)(a) because it targets hate mongering provisions. Allowing these statements to survive would outweigh tht eintent of parliament. Reverse onus is minimally impairing.

Minority (McLachlin): the state has the resources to prove whether or not a statement is true whereas an individual does not. We should be able to hear the other side because falsehood is important as part of the elemtn of the offence. The benefits of the provision are not proportional so it cannot be justified by s.1.

R v Downey 1992 SCC (Principles of Presumption of Innocence) Cory J summarizes:

I: Infringed whenever accused is liable to be convicted despite existence of a reasonable doubt

II: if by proviisons of statutory presumption, accused required to establish on BOP either element of an offence or excuse

III: Even if a rational connection between established fact and fact is presumpted, it is insufficient to make a valid presumption requiring accused to disprove offence

IV: Statutory presumption requiring trier of fact to convict in spite of reasonable doubt (distinction between legal and factual presumptions)

V: permissive assumption from which trier may but not draw an inference of guilt is an infringement of 11d

VI: a provision that might have been intended to play a minor rol ein providing a conviction ill nonetheless contravene the Charter if it must be established by the accused

VII: statutory presumptions infringing 11d may still be justified pursuant to 11d.

R v Lifchus 1997 SCC

Ratio: The role of the judge is to clearly identify the difference between “guilty” and “certainly guilty” when instructing the jury on proof beyond a reasonable doubt.

Reasons (Cory): Jury that concludes accused is probably guilty must acquit. If you belief the accused is guilty, that is not sufficient because the Crown must satisfy guilt beyond any reasonable doubt although 100% satisfaction is impossible.

R v Star 2000 SCC

Ratio: Reasonable doubt is close to absolute certainty. Something less than absolute certainty but more than probably guilty is required for a conviction and without instructing the jury on this, the case can be prejudiced.

Today, judges will use a combination of the Lifchus/Star framework to instruct a jury as to reasonbale doubt.

FIGURE 1: PROOF BEYOND A REASONABLE DOUBT

Crown must prove AR, MR and absence of defences beyond a reasonable doubt. Crown does not have to disprove absolutely every defence (only that which is raised).

NOTES: The Crown’s purpose is to stack up the evidence required. The accused does not have to do anything. The only actions required by the accused is pushing the evidence boxes down. A presumption is like a conveyor belt that allows for evidence to shoot up. The accused doesn’t have to knock all of them off. The accused can shoot presumptions down using the standards of proof required by the Criminal Code. The only time the burden shifts is when the accused is rebutting a presumption, which could be a violation of 11(d) and potentially saved by s.1.

Ex. 16.(2) NCRMD: There is a presumption that the accused is sane unless disproven on a BOP which is a higher standard of proof.

Ex. 348(2): evidence of the accused breaking and entering holds a presumption that there was an intent to commit an indictable offence unless there is ANY evidence to the contrary

Criminal Code, RSC 1985, c C-46 s. 9 (criminal offences in Canada): one cannot be charged or discharged of an offence at common law (offences must be codified).

WHY: accused should know where offences are codified and they should be accessible, retroactive laws could violate s. 7, old archaic laws are no longer relevant.

Criminal Code, RSC 1985, c C-46, s. 8 (criminal defences): defences do not have to be codified. Common law defences continue.

PART 2: ACTUS REUS BUNDLE

1. Must be voluntariness

   1. Ex. R v King: Patient told not to drive after dentist procedure but did anyway because he didn’t hear nurse. Accident was not determined to be voluntary act.

2. Must be an act or omission (physical manifestation or failure to do something)

   1. General rule: there is no criminal liability for a failure to act. There must be a positive, clear, legal duty for liability.

   2. Specific Omission Offences: Create specific duties for citizens (ex. high treason in s. 50)

   3. General omission offences: can be a duty relating to criminal negligence. Must look to the language to see if there is an omission and what the ramifications are. Ex. s. 219(1) on criminal negligence.

   4. The common law does not allow for omissions; all omissions must be codified (s. 9, CC)

3. Circumstances: some offences require these around acts/omissions

   1. Ex. assaulting police officer presence of police officer required circumstance independent of act), arson (s. 433: occupation/inhabitation)

4. Consequences and Causation: requiring outcome/consequence with AR

   1. Ex. homicide (requires death)

ASK:

1. Is there a prescribed consequence?

2. Does/has that consequence been caused by the accused?

(Look for a link between the outcome and the act itself)

Legal Causation: Is there causation as between the act and the penal consequence? Is the threshold met for the penal consequence?

Factual Causation: is there a factual link between conduct of accused and required outcome? (not enough to say there was just causation warranting penal consequence)

TO identify, check for an action in the provision, move to s. 2 for interpretation if needed and then continue with common law.

Kilbride v Lake 1962 New Zealand SC (Car Insurance)

F: accused left vehicle parked on road during which car insurance displayed was lost or stolen. Convicted of operating motor vehicle without displaying insurance

Ratio: A person cannot be found guilty of a crime if they have not committed the act or omission voluntarily.

Reasons: Accused could not have taken a difference course; the activity was out of his volition. The question is a matter of physical choice.

Kilbride is delineating between these examples:

1. A shoots B with intent, B dies (A shot with intent)

2. A shoots B unsure as to whether B is a tree, but shoots anyway, so B dies (A shot recklessly)

3. A shoots tree and is certain that it is one but kills B (reasonable person would have known B was a person (A killed negligently)

4. A shot target, B falls into range and ties (A shot by accident, no MR)

R v Brown 1997 ONCA (Swallowing cocaine)

F: co-dealer swallowed plastic bag of cocaine in anticipation of police bust. She had arrangements with co-dealer to look after her if at risk. Co-dealer charged with criminal negligence (s.219) for failing in undertaking to take her to hospital – when she was transported by cab, she was pronounced dead.

I: Did the accused agree to commit an undertaking?

D: appeal allowed; acquittal (no)

Ratio: The mere expression of words does not trigger a duty, there must be some more than a willingness to act.

Reasons: Court looks to s. 217 which outlines the duty and s. 219 which is the general omission offence. No evidence that 911 call would have been faster.

COMMENTS: criminal negligence has a high penalty and there must be some sort of bindingness dealing with undertaking. There was no violation of a duty in s. 217.

S. 215 outlines duty to provide the necessities of life (it is the impetus to act created by the relationship between an individual and a child)

R v Thornton 1991 ONCA (Blood donor knowing of HIV positive)

Facts: accused committed common nuisnace pursuiant to s. 176 (a) now s. 180 by donnating blood to red cross knowing he was HIV positive but failing to disclose. Accused was awarde of the procedures and alleged that he wanted to test the system to see if he’d get caught (thought donating to be form of blood-letting)

I: Did the accused have the positive duty to disclose his HIV positive status?

D: yes; appeal dismissed

Ratio: There is a positive duty to disclose HIV/AIDS status when donating blood.

Reasons: There is a common law duty not to cause harm to one’s neighbour (Donohue v Stevenson) even though s. 176(a) does not include a duty but endangering one’s life is included. It is reasonably foreseeable that non-discloure would cause harm

COMMENTARY: ONCA stettcing duty because codification lacking for disclosure of sexually transmitted diseases. ONCA uses s. 216 on duty of care owed to persons undertaking acts dangerous to life applies, which the court used as well to assess “administrering surgeical or medical treatment”. Today. S. 216 has been interpreted only to apply to medical professionals.

Appeal to SCC was refused because the duty of care was breached given the safety of the public at stake.

R v Currier 1998 SCC

Facts: accused had sexual relations with number of people and didn’t inform them he was HIV +, in spite of nursing advising. Two women testified they wouldn’t have had sex with him had they known about HIV. Charged under s. 273 (aggravated assault).

Ratio: Failure to disclose that one is HIV/AIDS + vitiates consent.

Reasons: There are two main components to aggravated assault: 1) intentional application of force of sexual nature without consent 2) endangerouing life of an individual. Failure to disclose is akin to fraud because it goes to the nature and quality of the act. The issue is what someone has consented to.

NOTE: This case caused a lot of confusion, particularly in cases where failure to disclose was coupled with the use of contraceptives like a condom.

The following recent HIV/AIDS cases clarify Cuerrier:

R v Mabior 2012 SCC 47

Facts: male who had consentual sex with 9 women. At trial, he is convicted of 6 counts and acquitted on 3. He is acquitted because condom was used and viral levels were low.

Ratio: One has the legal duty to disclose HIV/AIDS unless a condom is used or the viral levels are low.

Reasons: There must be a reasonable risk of harm which is a realistic possibility of tranmission.

R v DC 2012 SCC 48

Facts: woman had sexual relations with former spouse and did not disclose that since she has been diagnosed HIV positive. She says they used a condom but he denies it. At the tiem they were engaging, her viral levels were low.

D: trial judgment overturned and accused acquitted

Ratio: One has a legal duty to disclose HIV/AIDS unless a condom is used or viral levels are low.

Reasons: trial judge erred in finding that condom was not used. Crown did not meet AR requirement of proving the absence of a condom. Common law can develop with medical science.

JB CRITIQUE: Parliament has not codified this common law development and people do not know about it. Courts have lost sight of AR element ebcause endangering one’s life under aggravated assault in s. 273 is not necessarily the case since transmission rate has gone down with modern science and use of the condom.

Consider the most affected groups with this disease (hoosexuals, young people, drug users, etc).

Consequences and Causation

HOMICIDE MATRIX – S. 222, CC

Wording does not necessarily mean one has committed criminal act.

Culpable Non-Culpable (s. 222.2)

Not criminal (s. 222.3)

Murder manslaughter infanticide (s. 222.4)

(1^st and 2^nd) (broadest)

s. 222.5: manslaughter must cause death (not by accident)

s 229(a): culpable homicide is murder where the person who causes the death of a human being means to cause death or means to cause bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

s. 231(1): classification of murder

(1)-(6): types of first degree murder

s. 231(2): first degree murder is planned and deliberate

s. 231(5): all circumstances leading to first degree murder

s. 231(6.01) newest charge as terrorism carries a heavier offence today.

s. 231 (7): residual clause (anything not codified under first degree murder is second degree muder.

s. 233: applies only to women who cause death of newborn child (infanticiade). There is a question of its constitutionality, which has not been challenged, particularly in the arena of homosexuals (specific circumstnaces)

s. 234: manslaughter catches all that does not fall under infanticide and murer

Pagett v The Queen 1983 (CA, England)

Facts: man shooting at police officers trying to arrest him while in his apartment. Used 16 yr old girl whom he impregnated as a shield, thus resulting in her death. Jury acquitted him of murder and convicted him of manslaughter.

I: Is AR met given accused didn’t shoot but used her as a shield?

D: yes; there was causation resulting in death

Ratio: Reasonable act performed for self preservation is not a novus actus ( not breaking chain of causation for AR).

Reasons: a non-voluntary act cannot relieve the accused of criminal resposibility (even an act performed for a legal duty or for the purposes of self preservation).

INTERVENING ACTS WHERE CAUSATION CAN BE SEVERED:

R v SR(J) 2008 ONCA

A and B firing at each other, B shoots, misses and hits by-stander.

Was A a legal cause of death? ------------------------------------------------------------- YES

R v Menezes 2002 ONSC

A + B drag racing. B kills X.

Was A legal cause of death? ---------------------------------------------------------------- YES

If A drops out of race and B knows, is A liable for death of X ------------------------ NO

*Factual assessment: did B know A left race?

R v Blaue 1975

DF stabs woman with knife penetrating lunch. Woman refuses blood transfusion at hospital because she is JW which resulted in her death. Accused appeals manslatghter conviction, but was found criminally responsible because stabbing was operative cause of death.

Smithers v The Queen 1978 SCC (Kick and low causation threshold)

Facts: accused provoked hockey player on ice with racial slurs prompting fight outside. Accused kicked victim in stomach causing epiglottal malfunction and died immediately on site.

I: Did the accused cause the death? If so, can he be held criminally responsible for the death?

D: appeal dismissed; yes

Ratio: Sufficient causation exists where the actions of the accused were a contributing cause of death outside of the de minimus range.

Reasons: Accused must take the victim as he finds him (thin skull principle) even if there was no intention to kill. Doctors testified that kick may have contributted to epiglottis malfunction. Doctors can testigy on facutla causation but not legal causation. Even if factual causation not met, legal causation can be (Doesn’t have to be a direct link). Courts must decide this link, not doctors. Scope of causation must be proven beyond reasonable doubt by Crown.

R v Cribbin 1999 ONCA (Challenge to Smithers test – defence to SCC- manslaughter)

Facts: accused invovled in beating resulting in non-life threatening injuries and victim’s consciousness – victim left on side of road and drowned in his own blood. Convicted of manslaughter and appeals arguing Smithers test of causation too remote, vague and includes no moral blameworthiness.

I: Is the Smithers test too vague?

D: appeal allowed; new trial ordered

Ratio: With manslaughter, the accused must have contributed to the cause of death outside the de minimus range (Smithers upheld).

R v Reid & Stratton 2003 NSCA (1^st degree murder)

Facts: co-accused charged with manslaughter after verbal/physical altercation dealing with young woman. Victim aspirated on his stomach contacts and when members of group tried to resuscitate him, he choked on vomit and died.

Ratio: Where there are multiple potential causes of one’s death, the Crown must prove that the accused cause the death of the victim both in fact and law beyond a reasonable doubt.

R v Harbottle 1993 SCC (strangled woman -1^st degree murder)

Facts: accused and companion forcibly confined woman and companion sexually assaulted and strangled her while accused held her legs down and watced. Charged under s. 231(5) – irrespective of intent, murder in first degree for sexual assault.

I: Can appellant’s participation suffice for legal causation for 1^st degree murder?

D: yes; appeal dismissed

Ratio: To be found guilty of 1^st degree murder, the actions of the accused must have formed an essental, substantial and integral part of the killing.

Reasons: Substantial cause test which is very restrictive should be applied in cases where the accused plays a physical role in the killing. S. 235(1) requires this threshold.

R v Nette 2001 SCC (2^nd degree murder of robbers to eldery woman)

Facts: 2 caucsaison males robbed and hog-tied an elderly woman, leaving her to die. She died of asphyxiation of airway to upper body. Medical experts could not prove that asphyxiation was sole cause of death. AG looking to use Smithers test, whereas accused looking for Harbottle test.

I: What is the standard of causation for 2^nd degree murder and was it made out?

D: appeal dismissed; 2^nd degree murder upheld

Ratio: Smithers standard still applies as the correct test in terms of contribution beyond de minimus, but there must also be a significant contributing cause. Harbottle standard still applies to exceptional circumstances under 1^st degree murder.

NOTE: Smithers test may still apply to other types of first degree murder, and not just manslaughter. There is uncertainty about where and when the Smithers test is accepted. The Crown will opt for Smithers, but the defence will opt for...

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