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Criminal Law Notes

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TOPIC Principle of Contempora neity ACTUS REUS Overview

Omissions, Status, Circumstanc e

Consequenc es and Causation

CASES AND FRAMEWORKS
-AR and MR must be concurrent at some point- broad (Meli, Fagan, Cooper, Williams)

-prohibited conduct
-must be voluntary (Rabey, Stone, Parks, Ruzic)- refers to physical, either conscious or unconscious, (except in Ruzic which contains a moral element)
-can be an act or omission of legal duty that causes harm or occurs in prohibited circumstances (or both)
-acts: defined by statute
-status: criminalizes a state of being rather than positive action, few as would likely violate s. 7 of CH
-omissions:
-law is typically wary of imposing
- 3 broad duties: i) s. 215(1) duty to provide necessaries of life; ii) s. 217- duty of persons undertaking an act; iii) s. 216duty of persons to use reasonable care in undertaking cts that may endanger life
-specific omissions offences (e.g. s. 46(1)- failing to report to police)
-general omission offences- crime committed by act or omission- *must be specific duty recognized by law, can arise by statute or CL (Thornton), e.g. common nuisance, crim neg> shift to bolster w an undertaking s. 217
-circumstances: some crimes require it to occur in prescribed circumstances (e.g. impaired driving); some require this with reqmt that D caused a certain harm
-some offences require that D caused a prescribed harm or consequence, which crown must prove BRD (e.g. murder)issue often hinges on MR
-no CC rules on causation, guided by CL
-two types of causation: factual and legal
-factual: low threshold, link bw D`s conduct and harm ('but for'), if RD - can lead to an acquittal; proof of factual cause is not by itself sufficient to est legal cause
-legal: more rigorous, def as a cause beyond de minimis range- need not be sole or substantial (Smithers); may also be rearticulated as `significant contributing cause` (Nette)-

neither applies for 1st degree murder- test is instead if D`s actions formed substantial cause of death (Harbottle)
-homicide: s. 229, incl knowing death will likely be caused, incl murder (1st or 2nd degree, s. 231(7)), manslaughter, infanticide
-1st degree- planned and deliberate or falls w in circumstances listed in s. 231; 2nd degree- residual, what does not fall under 1st
-manslaughter, s. 234: i) where MR not proved for murder, ii) where it was foreseeable that death would ensue, iii) where it arised in context of provocation; argued it should be given higher degree of CH protection in regards to MR- covers wide range of conduct
-thin skull rule: unforeseeable characteristics of V do not negate causation (Smithers, Blaue)
-NAI and remoteness: limit liability, not typically successfully used
-NAI: only negates if intervening cause is independent (White, Blaue)
-remoteness: limits legal causation if original act is de minimis (Smithers) MENS REA Overview

-refers to state of mind or moral blameworthiness, defined specifically in certain offences but not all
-based on principle that criminal liability should not be imposed on morally innocent, that moral fault should be proportional to seriousness of offence (Martineau, Motor Vehicles, Vaillancourt)
-distinction bw objective and subjective fault
-for each element of AR, MR must be proven but it need not be the same MR (except for predicate offences- only attaches to offence charged- De Sousa)
-full mens rea = subjective; includes intent, knowledge, wb, recklessness
-objective MR: crim, penal negligence, strict and absolute liability
-true crimes: in CC (but need not be), serious crimes w severe penalties; assumed if statute is silent presumed that R, WB, I, K will suffice (but not for negligence) (Buzzanga; SS Marie); can have objective MR for all other true crimes

Subjective MR

(Creighton), but cannot have strict or absolute liability (Hundal)
-manslaughter and unlawfully causing bodily harm does not require subjective foreseeability of death or harm, objective reqmt is constitutional (Creighton; DeSousa)
- stigma offences: murder, attempted murder, theft, crimes against humanity, war crimes- must have subjective MR (Finta, Vaillancourt, Martineau)
-reg offences: against public order, less serious penalty, not in CC, presumed objective MR applies and is strict liability (Buzzanga; SS Marie); presumed if it is prov, but can be federal
-determining the level of MR required:
-ascertain meaning of express MR words and if they are so minimal as to violate s. 7 of the CH (esp for serious crimes); also unconstitutional if absolute liability has penalty of loss of liberty (Motor Vehicles)
-if no express MR, classify as a true crime (presumed sub MR) or reg offence (presumed obj MR, presumed strict liability)
- assess if presumptions can be rebutted thru words or context of statute (e.g. is absolute liability if there is no defense of due diligence, unimportance of penalty, etc. (SS Marie, Pontes)
-for full MR, proof that D committed act R, WB, I, K will suffice (but not for negligence)
-for strict liability- crown need only prove AR and D must rebut MR on BoP w defense of due diligence
-if statute is silent, proof of any full MR will suffice (Buzzanga)
-objective standard can be applied by ct for evidentiary purposes
-willfully: intentionally, does not include recklessness unless statute says otherwise (Buzzanga)
-intention: includes direct and indirect (foreseeable harm) (Buzzanga)- both meanings apply to s. 281 (Chartrand) and s. 21(1)(b) (Hibbert)
-recklessness: subjective state of mind where D knows conduct is foreseeable or may cause harm but takes deliberate risk (Buzzanga; Sansregret)

Objective MR

Sexual Assault

-wilful blindness: when D is aware of need to make an inquiry but chooses not to, based on presumption that law presumes knowledge (Sansregret)
-knowing: WB can substitute for knowledge when it is a component of MR (Briscoe; Sansregret) in context of aiding a murder, need only prove aider had knowledge of principal`s intention (Briscoe)
-controversy if it should be modified to include D`s characteristics
-4 main types:
-crim neg: s. 219-222; marked and substantial departure from conduct of reasonable person which shows disregard for lives of others (Tutton, Gingrich, McLean); continue to apply objective test (Gingrich)
-penal neg: crown must prove BRD a marked and substantial departure from SoC of reasonable person, higher than civil standard, objective (Hundal), e.g. reckless use of a fire arm, dangerous driving
>Beatty- does not include momentary lapse in driving, test can be modified to contextualize (but does not include personalization)
-penal negligence standard applies to manslaughter (objective foreseeability of harm)- Creighton
-reg offences: strict and absolute liability
-strict liability: min fault reqmt re lack of MR is constitutional (SS Marie; Wholesale Travel)
-abolsute liability- blunt policy instrument- balanced by reverse onus, constitutional issues re punishment (Motor Vehicles, Offence Act; Pontes- detaching imprisonment does not shift to strict liabiity)
-s. 265(2)- def of assault applies to SA
-AR- touching (obj), sex context (obj), no consent (subj); consent applies to every part of AR, all from C`s perspective (Chase, Ewanchuwk)
-MR: intent to touch, knowledge, recklessness or WB re lack of consent - focus on if Cs conduct affirming consent (Ewanchuwk), based on mod obj test regarding if reasonable steps were taken that involves Ds perspective (Darrach)
-1983 amendments changed laws from rape to SA,

responded to criticisms of law reinforcing stereotypes of wmn`s sexuality thru altering evidentiary rules (rape shield laws, s 276-77), abolished prohibition of charging spouse, intro mistaken belief of consent defence (s. 265(4), etc.
-s. 265(3) - def of lack of consent; Ewanchuk- no defense of implied consent; never irrevocable, communicative model, lack of consent must be proven BRD
-mistake of fact of consent as a defence- negates MR, C-49s. 273.2- altered mistake of consent to preclude reliance when it stems from WB, R, intoxication, must be based on reasonable, objective standard based in communication by C (Ewanchuk- alters Pappajohn, Sansregret); air of reality applies (Cinous)
- C-49 -s. 276-allowed for sex history to be admitted unless it supports twin myths, if prejudicial value outweighs probative, on basis of 8 factors (attempt to balance D`s, C`s and societal interests- based on ruling in Seaboyer where old provisions where held to be unconstitutional)- challenged in Darrach and upheld
-disclosure of personal records: s. 278.1-.9- amendments in response to O`Connor: designed to give greater privacy to Cs, based on dissent in OC, 2 stage test that balances interests of C and D, based on relevance, interests of justice and list of factors; upheld as constitutional in Mills
-critiqued that issues concerning mistake of fact, admissibility of sex history and disclosure of personal records remain (Shilton and Derrick, Busby) DEFENCES Overview

-all based on air of reality test (Cinous)- J decides if evidence is sufficient based on i) subjective interpretation of D and ii) assessment if perceptions were objectively reasonable in the circumstances, onus then shifts to Crown to disprove BRD, defence goes to jury
-types: negative, affirmative, justification, excuse (note that many defenses are classified in different categories, depends on context > see chart)
-affirmative: D needs to testify, e.g. provocation, duress (Hibbert), necessity automatism, intoxication, require proof on BoP
-negative- D need not testify, only disprove Crowns case,

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