Chap Ten Notes

Lord Jesus , thank you.

Criminal Law

The most coercive and intrusive form of public law that punishes acts threatening the social order.

Mens Rea

The evil mind or intention required to be present simultaneously with the evil act (actus reus) for a criminal conviction.

Actus Reus

The evil act that must coincide with mens rea for a criminal conviction to occur.

Strict Liability Offences

Offences where intent is irrelevant, and the prosecutor only needs to prove the commission of the offence.

Parties to an Offence

Individuals criminally responsible for aiding, abetting, or committing a crime as per the Criminal Code.

Defences to Criminal Offences

Circumstances allowing individuals to escape or mitigate responsibility for a crime, such as self-defence or intoxication.

Duress

A defense to a criminal charge where the accused commits an offense under threats of immediate death or bodily harm, believing the threats will be carried out, and not being part of a criminal conspiracy.

Necessity

A defense where a person commits a criminal offense to avoid a greater harm, such as choosing between two evils.

Entrapment

A defense where law enforcement induces an individual to commit a crime they would not have otherwise committed, leading to a successful defense if police conduct would bring the administration of justice into disrepute.

Defence of Drunkenness

Intoxication to the point of automatism or insanity can negate the mens rea required for criminal conviction, but self-induced intoxication is generally not a defense to criminal charges.

Defence of Mistake of Fact

A defense where an accused has an honest but mistaken belief in a fact, such as consent, which may negate the mens rea of the crime.

Consent in Sexual Assault

Refers to the voluntary agreement of the complainant to engage in the sexual activity in question, as defined by the Canadian law.

Self-Defence

The concept that individuals can repel force by force if unlawfully assaulted without having provoked the assault, as outlined in Section 34 of the Criminal Code.

Implied Consent

Not recognized in Canadian law for sexual assault, where the complainant's fear, even if unreasonable and unexpressed, can vitiate consent.

Mistaken Belief in Consent

Not a defense if the accused's belief in consent arises from self-induced intoxication, recklessness, or wilful blindness, or if reasonable steps to ascertain consent were not taken.

Defence of Submission

Submission due to fear, even if not communicated, can be considered as a result of a very real and justifiable fear, rather than genuine consent.

Restorative Justice

A system that focuses on repairing harm caused by criminal behavior and reconciling with the community.

Factors in Sentencing

Considerations such as premeditation, circumstances of the offense, criminal record, and community impact that influence the determination of a sentence.

Purpose of Sentencing

The objectives of sentencing, including denouncing unlawful conduct, deterring offenders, rehabilitating, providing reparations, and promoting responsibility.

Gladue Principle

The requirement to consider unique circumstances of Indigenous peoples in sentencing, acknowledging the distinct nature of their experiences within the criminal justice system.

Mala in Se

Offences that are evil or inherently evil in themselves

Mala Prohibita

Offences that are prohibited by law

Concurrency

Objective Intention

What a reasonable person what be expected to intend

Subjective intention

What the accused actually did intend
Asks the defendant if they expected a criminal deed to result from their actions

Objective-subjective Test (reasonable person test)

Absolute Liability Offences

An absolute liability offence is an offence for which intent is irrelevant; the prosecutor need prove only that the person in question committed the offence
Ex. Parking tickets

Hybrid Offences

Prosecution can either be summary or indictable

Indictable Offences

Greater Penalty Ex. Imprisonment

Summary Offences

Lesser penalty ex. a fine

Justification defence

The offence is made out, but the act is justified by the
surrounding circumstances

Defence of property

(justifies reasonable force)

Provocation

(deprived of self-control– partial defence on a charge of 1st or 2nd degree murder)

Excuse defences (the offence is made out, but the act is excused):

Automatism, Mistake of Fact, Mistake of Law, Age, Self-defence, and Not Criminally Responsible by Reason of Mental Disorder (NCRMD)

Automatism

(defendant did not
commit the actus reus) Extreme
Intoxication functioned as an excuse
defence until Parliament passed s.
33.1 prohibiting its use (as a result of
its use as a defence to sexual assault)

Age

Age is also an excuse defence – children cannot form the requisite mens rea to commit a crime when they are under the age of 12 years in Canada. Criminal punishment must act upon a person capable for forming mens rea (to know and understand the nature and quality of the act and to know it is wrong – as with NCRMD)

Not Criminally Responsible by Reason of Mental Disorder (NCRMD)

Exemption or immunity to criminal liability – no mens rea. The ‘insanity’ defence provides immunity from criminal punishment when the accused does not ‘appreciate the nature and quality of the act, and know that it is wrong.’ A designation of NCRMD results in confinement to a secure forensic facility ‘at the pleasure of state;’ until such time as a panel of psychiatrists deems the patient no longer a danger to society.

Morgentaler v. R (1976)

facts: Aortion rights

Defence of necessity to protect the mental and/or physical health of the woman in question. The Supreme Court of Canada ruled that the Court of Appeal could not overturn the acquittal entered by a jury at trial and substitute a conviction. (Powers of the Court of Appeal)
Accused entitled to the defence of necessity

Daviault v. R, 1994

Facts: 65 year old Lady wheel chair bound, invited Mr. Daviault to her home for a drink. She woke up in the middle of the night to use the washroom, he threw her on the bed and sexually assaulted her. He had 7-8 beers and drank an entire 40-ounce bottle of brandy. He blacked out and remember nothing.
Intoxication defence
Defendant acquitted on the basis of intoxication defence at trial (no requisite mens rea).
The Court of Appeal allowed the Crown's appeal and ordered that a verdict of guilty be entered. It held that the defence of self‑induced intoxication resulting in a state equal to or akin to automatism or insanity is not available as a defence to a general intent offence.
Supreme Court of Canada allowed the appeal and order a new trial.
“...federal government enacted section 33.1 of the Criminal Code, which states, in effect, that self-induced intoxication is no longer a defence to a criminal charge of “assault or any other interference or threat of interference by a person with the bodily integrity of another person.” Drunkenness can, however, serve to reduce a charge of murder to one of manslaughter...”

Pappajohn and Sansregret v. R

Mistake of fact (honest but mistaken belief in consent to sexual activity)
“In both Pappajohn and Sansregret, the Canadian judiciary was divided about the defence of mistaken belief in consent. In Pappajohn, Supreme Court Justice Dickson concluded, “It does not follow that, by simply disbelieving the appellant on consent, in fact, the jury thereby found that there was no belief in consent and that the appellant could not reasonably have believed in
consent.’”
“Both cases were resolved in the Supreme Court of Canada, and in both instances the accused was convicted. The defence of honest mistake of fact remains as a legal possibility, but it seems clear that it is not to be a purely subjective test of the accused’s intention; wholly unreasonable beliefs, however honestly held, are not likely to be viewed as negating the mens rea required for conviction.”
In response, Parliament revised the meaning of consent – voluntary agreement of the complainant to engage in the sexual activity in question.
Self-induced intoxication or recklessness or wilful blindness or the accused did not take reasonable steps to obtain consent

R. v. Brown

Brown, while attending a party as a college student, consumed a mixture of alcohol and magic mushrooms. Under the influence, Brown broke into a home and brutally attacked a woman, causing severe injuries but with no prior memory of the act due to his intoxicated state. Brown claimed he was in a state of automatism induced by the drugs and alcohol, arguing that he was not in control of his actions and was incapable of forming the intent necessary to commit the assault

(Non-insane automatism – intoxication defence)
Aggravated assault (not a drunkeness case)
Section 33.1 preventing accused from raising common law defence of self‑induced intoxication akin to automatism — Whether s. 33.1 violates principles of fundamental justice or presumption of innocence

Appeal allowed and s. 33.1 declared unconstitutional
Acquittal restored, auomatism

R. v. Lavellee

Facts: A case about battered women syndrom. She shot her common law partner in the back of the head as we was leaving the room. He was very abusive towards her and on the night of the offence had told her that it was either she kill him or him kill her. Expert testimony proved that she was a battered wife and therefore wasnt found guilty of second degree murder

Self-defence (domestic violence – battered woman syndrome)
Expert evidence
Manitoba jury acquitted the defendant, MB Court of Appeal overturned acquittal, Supreme Court of Canada allowed the appeal (the jury is entitled to determine if the defendant’s perceptions and actions were reasonable)

R. v. Gladue

Sentencing – Aboriginal Offender
Accused sentenced to three years’ imprisonment after pleading guilty to manslaughter ‑‑ No special consideration given by sentencing judge to accused’s aboriginal background ‑‑ Principles governing application of s. 718.2(e) of the Criminal Code (sentencing)

Supreme Court held the decision of three years but reviewed the factors which should be considered in the new sentencing provision, s. 718.2(e)
Class of aboriginal people coming within scope of provision (defendant living on reserve versus off reserve)

Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on‑ or off‑reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly so as to include any network of support and interaction that might be available, including one in an urban centre.