Crim 2 Exam

Sentencing Fundamental Principle/S.718.1 CC

• Sentence must be proportionate

  • To the gravity of the offence

    • Consequences of the offender’s actions on victims and public safety, and the physical and psychological harms that flowed from the offence

  • The degree of responsibility of the offender”

    • Offence’s mens rea, offender’s conduct during offence, motive, and background

S.718 “Other Objectives”

• Denounce

  • More important

• Deter

  • More important

• Separate when necessary

• Rehabilitation

• Reparations

• Promote responsibility

Parity Meaning/Location

S.718.2(b)

• Principle that states “should be similar to sentences imposed on similar offenders for similar offences in similar circumstances”

Totality Meaning/Location

S.718.2(c)

Combined sentences should not be unduly long or harsh

Restraint Meaning/Location

S.718.2(d)

• “If less restrictive sanctions may be appropriate in the circumstances" and “all available sanctions other than imprisonment that are reasonable in the circumstances shall be considered”

Gravity of the Offence Meaning (Hills)

• “Gravity of the offence” refers to the seriousness of the offence in a general sense and is reflected in the potential penalty imposed by Parliament and in any specific features of the commission of the crime

How Gravity is measured (Hills)

• Gravity should be measured by taking into account 

  • The consequences of the offender’s actions on victims and public safety

  • Physical and psychological harms that flowed from the offence

  • Motivation of the offender (in some cases)

Moral Culpability/Degree of Responsibility Factors (Hills)

• Offence’s mens rea

• Offender’s conduct in the commission of the offence

• Offender’s motive for committing the offence

• Aspects of the offender’s background that increase/decreasd the offender’s individual responsibility for the crime

  • Personal circumstances

  • Mental capacity

R v Gladue Main Takeaway

• Sentencing judges must consider all available sanctions other than imprisonment and pay particular attention to the circumstances of Aboriginal offenders

• 718.2(e) is remedial

  • Purpose is to ameliorate the problem of overincarceration of Indigenous peoples, and encourage a restorative justice approach to sentencing

R v Ipeelee Main Takeway

• Court should consider all available sanctions other than imprisonment, which requires the court to consider sentencing circles or other restorative justice sentences that are more found in Indigenous legal traditions.

• Errors post-Gladue

  • Some cases erroneously suggest that an offender must establish a casual link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge

  • Irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violence offences

S.718.2(e)

• Mandates special attention to Indigenous offenders unique circumstances

• In requiring judges to consider all alternatives to imprisonment, it is specifically targeted to help overincarceration of Indigenous people and requires judges to pay attention to their unique circumstances

Absolute/Conditional Discharges (S.730)

• Available when accused is charged with an offence not subject to imprisonment for fourteen years or life and without a minimum sentence 

  • If “in best interest of the accused and not contrary to the public interest”

• If breached, offender may be sentenced for original offence as well as crime of breaching the probation order

  • Probation up to 3 years

R v Proulx (Applicability of Conditional Sentences)

• Person must meet statutory criteria

• Must demonstrate an ability to follow conditions

• Sentence must be able to reflect applicable purposes of sentencing

Suspended Sentences/Probation (S.731)

• Difference from discharge is these are registered as a conviction and criminal record

• After conviction, court can suspend sentence and make a probation order OR can make a probation order in addition to a fine or sentence of imprisonment of not more than two years

• Probation up to 3 years

Conditional Sentence (S.742.1)

• If less than two years imprisonment, the court may order a sentence be served in the community

• If court are satisfied that it

  • Would not endanger the safety of the community AND

  • Would be consistent with the fundamental purpose and principles of sentencing

• Can be longer than an actual term of imprisonment

Fines (S.734)

• S. 734(2)

  • Only ordered if able to pay fine or work off fine in program

• Only limit is for summary offences, which are limited to $5000 for individuals and $100,000 for organizations

Restitution (S.738)

• Offender can be required to make restitution for

  • Damage to property

  • Pecuniary losses from bodily harm

  • Moving and temporary housing costs in cases involving bodily harm or threats to fender’s spouse or child

How Long till Parole Eligible?

• Offenders imprisonment become eligible for parole after serving a portion of their sentence, often earlier than 1/3 of the sentence or seven years

Sentencing Min/Maxs

• Every offence had a maximum

• Not every offence has a minimum

Bill C-41

• 1996

• Central feature was the provision of guidance on the purposes of sentencing and principles that judges should use in arriving at a fit sentence

• Brought in S.718

Judicial Discretion

• Where no MMS, judges left with considerable discretion 

• Arises from two sources

  • Vast array of factors that can bear on determining a proportionate sentence in a given case/for a particular offender

  • Meaning/importance/priority of the various sentencing objectives/principles set out in the CC are subject to significant debate and interpretation in the courts

R v M (CA) (Retribution)

• Stands for the idea that there is significant deference to sentencing judges 

  • Within the minimum and maximum penalties set by the CC, the trial judge has significant discretion to set a “just and appropriate” sentence

  • Overturn only when demonstrably unfit

• Demonstrated retribution as sentencing principle 

  • Not cited in 718

  • Often conflated with vengeance

    • Retribution is objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender

    • Vengeance is uncalibrated, not objective, not reasoned

R v Smith (MMS)

• Used S.12 to rule a MMS was unconstitutional 

  • Mandatory minimum unconstitutional / is cruel and unusual punishment when it is grossly disproportionate 

  • Reasonable hypothetical offender

R v Latimer (MMS)

• Application of S.12 Principles

  • Gravity of offence

    • Character of offender’s actions

    • Consequences of those actions

R v Ferguson (MMS)

• SCC affirmed that the only remedy for an unconstitutional mms is the strike it down in its entirety, as opposed to fashioning exemptions from it for particular offenders

R v Nur 2015

• MMS can be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on the other persons in reasonably foreseeable situations

• Established reasonable hypothetical test for MMS

  • Used in years since to strike down a range of MMS

Reasonable Hypothetical Offender

• if the mandatory minimum is grossly disproportionate to the offender then it will be grossly disproportionate 

  • Struck down some mandatory minimums based on them being against what the reasonable hypothetical offender would be  

Disputed Facts Standard of Proof

• Balance of probabilities

  • HOWEVER, prosecutor must establish an aggravating factor or previous conviction beyond a reasonable doubt 

Prosecutorial Discretion Examples

• Selection of charges (can add and take away)

• By indictment or summary conviction 

• Whether to offer evidence of prior convictions or aggravating factors 

• Sentencing position 

• Fact to be admitted on a guilty plea

Duncan Credits

• 1 day of pre-trial custody = 1.5 days towards sentencing total 

• Earned Remission

  • Statutory release at ⅔ of sentence (⅓ you’re on parole) 

    • Doesn’t factor in pre-trial custody days 

  • 90 day warrant expiry (no more conditions on you) 

  • 1.5 accounts for lack of earned remission in pre-sentencing hearing 

Deference Meaning

• The sentencing judge is physically there - observes the impact on victims and hear the sentencing submissions, sitting in the community where the offence is committed. 

  • The Court of Appeal relies on the transcript and does not hear the witnesses

  • The sentencing judge does though and so they get significant deference. 

• Can overturn only when demonstrably unfit: 

  • Error in principle 

  • Failure to consider a relevant factor 

  • An overemphasis of the appropriate factor

In Sentencing Indigenous Offender, Court Must Consider

• Systemic or background factors that might have played a part in bringing the particular Indigenous offender before the courts;

• The types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular Indigenous heritage or connection.

Statutory Aggravating Factors

• Violence / Weapons 

• Planning / deliberation 

• Breach of trust 

• Age of victim 

• Likelihood to reoffend 

• Duration 

• Frequency 

• Harm to victims / family members 

• Motivated by bias, prejudice, or hate

• Spousal / child abuse

Statutory Mitigating Factors

• Early guilty plea 

• First offence 

• Rehabilitation potential 

• Motive 

• Addiction 

• Poverty 

• Mental disabilities 

• Indigenous background 

• Good character 

• Age 

• Ill health 

• Remorse 

• Charter breaches 

• Mistaken belief in illegality 

• Addiction 

• Restitution made 

• Harsh conditions of jail 

Sexual Assault - Actus Reus Elements (Ewanchuk)

• Touching (objective)

  • Can be very minor application of force 

• Sexual Nature (objective)

  • Look at wide range of circumstances

    • Body part touched 

    • Words and gestures 

    • Surrounding circumstances 

    • NOT about sexual gratification

• Absence of consent (subjective)

  • Proving

    • What was in the victim’s mind at the time of the sexual activity?

      • Consent is a subjective state of mind, entirely personal to the complainant.

  • No implied consent doctrine

    • “Either she consented or she did not” 

  • Accused’s perception irrelevant

Sexual Assault - Mens Rea

• Intent to touch

• Knowledge/recklessness/wilfull blindness of non-consent

Contemporaneity of Sexual Assault

• Only relevant period for ascertaining consent is when touching occurred

• Consent must be linked to sexual activity in question

  • Specific physical sex act

  • Sexual nature of activity

  • Identity of partner

• Evidence related to factual question of consent does NOT need to be contemporaneous

  • Can look at evidence before or after event

R v McMillan (Contemporaneity of Sexual Assault)

• Cannot use non-contemporaneous expressions to determine how she felt in moment

R v JW (Post Offence Contact)

• Some complainants avoid associating with their abusers, and others do not.

  • Says it is erroneous to compare behaviour to presumed or expected reaction of victims

R v LS (Post Offence Contact)

• Says that evidence of previous relationship continuing as it had before is relevant but not determinative

R v ARJD (Post Offence Contact)

• TJ judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law.

Credibility Assessment

• R v Kruk

  • Common Sense assumptions underlie all credibility and reliability assessments

• Problem

  • Common sense imports deeply-rooted myths and stereotypes about how women should behave during/after assault

  • No “right” way for a victim of sexual violence to behave during/after sexual offence

R v Hoggard (Expert Evidence on Neurobiology)

• Expert evidence on neurobiology of trauma not admissible;

  • A well-crafted jury instruction provides the necessary guidance in place of expert evidence on the neurobiology of trauma.

  • This evidence was not necessary, and its costs outweighed the benefits. There was a risk the jury would misuse the evidence.  

  • The evidence was complex, detailed, confusing

  • The concept that there is no one way for a complainant to act in response to a sexual assault is an entrenched legal principle.

• Judges are presumed to already understand this and can explain to juries what is a myth and what is common sense

1982 Sexual Assault Changes

• Parliament abolished rape offence and replaced it with three new sexual assault offences

  • Sexual assault

    • 271

  • Sexual assault with a weapon, threats to a third party, or casuign bodily harm

    • 272

  • Aggravated sexual assault

    • 273

• Actus reus was broadened from rape to sexual assault and the new offences applied regardless of gender and to a man who sexually assaulted his wife

• Age of consent raised from 14 to 16

1992 Sexual Assault Changes

• Affirmative consent standard

  • Voluntary agreement to engage in the sexual activity in question (no means no law) 

• Revised Rape Shield Protections

  • S.276 preventing questioning on prior sexual history

• Section 278.1

  • Provisions added to protect the private records of victims from being accessed unless they met the threshold – two stage likely relevance test

• No consent if:

  • complainant is incapable of consenting

  • Is included to consent by an abuse of a position of trust, power or authority

  • If a third party purports to provide consent 

2018 Sexual Assault Changes

• Consent must be present at time of the sexual activity in question

  • S. 273.1(1.1)

• No consent if complainant was unconscious 

  • 273.1(2)(a.1)

• Consent not valid if out of threats, fraud, abuse of trust/power/authority, etc

Specific Instances Where Consent Not Valid

• S.265(3)

  • Force/Threats and Fear of Force

  • Fraud

    • Requires

      • Deception/deprivation

• S.273.1(2)

  • No consent obtained where

    • Agreement is expressed by words or conduct of a person other than complainant

      • Complainant is unconscious

    • Complainant is incapable of consenting

    • Agreement by third party

    • Accused induces compliant to engage by abusing position of trust/power/authority

    • Complainant expresses by words/conduct a lack of agreement

    • Complainant, having contented, expresses by words/conduct a lack of agreement

Fault Element Evolution - Mens Rea of Sexual Assault

• Pre-1992

  • Honest but unreasonable mistake possible

• 1992

  • Replaced to restrict availability of mistake of fact defence and to transform it to what is now known as defence of mistaken communicated consent

  • S. 273.2

    • It is not a defence to a charge under section 271/272/273 that the accused believed that the complainant consented to the activity that forms the subject-matter o[ the charge, where

      • (a) the accused's belief arises from the accused's

        • (i) self-induced intoxication or

        • (ii) recklessness or willful blindness; or

      • (b) the accused did not take reasonable steps, in the circumstances known to him at the time, to ascertain whether the complainant was consenting.

Recklessness - Mens Rea of Sexual Assault

• Accused who adverted to the risk that the compliant did not consent has the mens rea required for sexual assault

Wilful Blindness - Mens Rea of Sexual Assault

• Aware of need to inquire

  • Deliberately avoids asking

  • Treated as knowledge in law

Failing to Take Reasonable Steps Aspects - Mens Rea of Sexual Assault

• Contextual Inquiry

  • Cannot rely on rape myths

  • Silence/passivity insufficient

  • Greater care where risk is higher

Defence of Mistaken Belief in Consent - Mens Rea of Sexual Assault

• No defence if no evidence or affirmative expression

  • Must be words or active conduct

  • Belief based on passivity = mistake of law

• Defence of mistake of fact only goes to the jury if…

  • Reasonable steps taken 

  • Honest belief in communicated consent 

  • Demanding Threshold

    • Defence has a significant burden to establish air of reality

Mistake of Law Limitations

• Cannot rely on

  • Implied consent

  • Advance consent

  • Stereotypes about sexual history

Rape Shield - Mens Rea of Sexual Assault

• General prohibition on sexual history evidence

• Cannot use twin myths

  • More likely to consent (for various reasons)

  • Less worthy of belief (for various reasons)

Operating Mind Test

• Can the complainant understand: 

  • The nature of the physical act 

  • That the act is sexual in nature 

  • The specific identity of the complainant’s partner 

  • The complainant had a choice to reduce to participate 

R v JJ (Records)

• Upheld 2018 records amendments 

  • Accused has no automatic right to introduce private records

  • Trying to balance interests of complainant equality + privacy and the accused’s right to fair trial 

Application Adduce Evidence

• Two Stage Application:

  • Defence must show the evidence is relevant to an issue at trial AND 

  • Has significant probative value not outweighed by the danger of prejudice

Twin Rape Myths

• Consenting in the past does not increase the likelihood she will consent to it in the future

• That this history makes them less worthy of belief

False Allegation Myth

• R. v. G. (A.)

  • Rejected the notion that complainants in sexual assault cases have a higher tendency than other complainants to fabricate stories based on “ulterior motives”

  • R v Kruk said

    • It is not an error to consider whether the circumstances of a particular case support the existence of a motive to fabricate

Standard for Sexual Assault Prosecution

• Reasonable Prospect of Conviction

  • Limited credibility assessment

    • Would it be reasonable for a trier of fact to believe the complainant

• Public Interest

  • Cannot overcome reasonable prospect

  • Factors

    • Input of/Impact on victim

    • Seriousness of offence

Mental Disorder Requirements

• S.16

  • Mental disorder must render person

    • Incapable of appreciating nature/quality of act/omission or of knowing it was wrong

  • Every person presumed not to suffer from mental disorder until proven otherwise on balance of probabilities

    • Burden of proof on party that raises issue

Unfit to Stand Trial Requirements

• Unable to

  • Understand the nature or object of the proceedings,

  • Understand the possible consequences of the proceedings, or

  • Communicate with counsel; (inaptitude à subir son procès)

Mental Disorder Exclusions

• Self-induced states

  • Drugs/alcohol

• Concussion

• Amnesia

• Sleepwalking

Automatism

• Can fall under s16 if it results from an underlying disease of the mind 

• Can still advance if you do not have disease of the mind – but it is a separate defence and you get an acquittal

NCR Assessment

• Branch 1:

  • Incapable of appreciating the nature and quality of the act or omission..

• Branch 2:

  • Incapable… of knowing that it was wrong

NCR Consequences

• No conviction/criminal record

• Placed under review board with hearings every 12 months

  • Discharged absolutely

  • Discharged on conditions 

  • Detained in hospital and subject to conditions

NCR Review Board

• Informal/non-adversarial

• Creates set of rules/disposition accused has to follow for a year

  • Done until no longer “significant threat to safety of the public”

Raising NCR

• Defence 

  • Can raise it any time through the course of the trial 

• Crown:

  • Crown is restricted to two times:

    • 1) if found guilty 

    • 2) during trial, if accused puts capacity for criminal intent in question 

• Assessment:

  • Assessment for criminal responsibility by a forensic psychiatrist 

  • Court order OR privately 

    • 30 - 60 days for assessment orders

Approaches to Determining ‘Disease of the Mind’

• Internal Cause factor – Dominant approach 

  • Meant to be used only as an analytical tool and not as an all-encompasing methodology 

  • Have to determine whether a normal person might have reacted to the alleged trigger by entering a state of automatism

    • Subjective/objective test 

• Continuing Danger factor 

  • Any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind 

  • Likelihood of recurrence of violence is a factor to be considered in the disease of the mind inquiry 

    • BUT a finding of no continuing danger does not preclude a finding of a disease of the mind

R v Chaulk (“Wrong” Meaning)

• “Wrong” means morally wrong according to society’s standards, not just legally wrong

• A person may know an act is illegal but still be incapable of appreciating its moral wrongness because of a mental disorder

R v Oommen (Knowing Act is Wrong)

• “Knowing an act is wrong” means more than abstract knowledge

  • It is not enough that the accused knows society considers the act wrong

  • The question is whether they had the mental capacity to rationally apply that knowledge to their actions

R v Parks (Sleepwalking)

• Sleepwalking can qualify as non-insane automatism, resulting in full acquittal if

  • Act is involuntary AND

  • The condition is not a “disease of the mind” that poses ongoing danger

R v Stone (Automatism)

• Two types of automatism

  • Non-insane automatism

    • Caused by external factors (concussion, physical trauma, etc)

    • Leads to complete acquittal

  • Insane automatism

    • Caused by “disease of the mind”

    • Leads to NCR an account of mental disorder

Self-Defence Statutory Requirements

• S.34

  • Not guilty if

    • They believe on reasonable grounds that force is against them/another person or threat of force

      • Trigger

      • Modified-objective test

        • Person can be mistaken in subjective belief

    • Act is for purpose of defending/protecting themselves or other person

      • Purpose

      • Subjective test

        • About motive

    • Act is reasonable in circumstances

      • Respone

      • Modified-objective test

2012 Self-Defence Overhaul

• New Law

  • Single unified test 

  • Flexible and contextual (list of factors) 

  • Focus on reasonableness 

  • Burden has not changed 

• Old Law

  • Found is four separate sections

Factors for Reasonableness of Self-Defence

• Nature of force/threat

• Other means available?

• Role in incident

• Weapon?

• Size/age/gender/physical capabilities

• Nature/duration/history of relationship

• Proportionality response

• Lawful response?

R v Lavallee (Immediacy of harm)

• Domestic abuse case

• Self-defence applies even when not directly/immediately in harm

• Expert testimony can be very helpful in claims

Self-Defence Proof

• Defences have to be disproven by crown beyond reasonable doubt

  • Only have to disprove one element

Air of Reality for Self-Defence

• Test for Judge

  • A properly instructed jury acting reasonably could acquit

    • Very low standard

• If air of reality

  • Jury gets instructed on how to deal with self-defence

R v Kahill (Modified Objective Test for Self-Defence)

• Modified Objective Test

  • Based in the perspective of the ordinary person who SHARES the attributes, experiences, and circumstances of the accused

    • Ex - in this case, military training relevant

R v Cinous (Getaway Driver/Self-Defence)

• Must be reasonable apprehension of imminent harm for self-defence

R v Kong (Response Level in Self-Defence)

• Person not expected to “weigh to a nicety” the exact measure of a defensive action or to stop and reflect upon the risk of deadly consequences of such action

R v Malott (Exception to Battered Woman)

• While battered woman relevant, self-defence requires for of imminence and necessity