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Criminal Law NCA Summary (2)

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For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @andrew#[email protected]#ca  @ andrew#[email protected]#ca # $e success%ully co"pleted all o% the &'A reuire"ents reuire"ents in the anuary, *++ sitting &ote. /oronto and surrounding area only0

* See, e%!, 1 ; abaye6 <ra!e constituted “acts of abaye6 he issue in this case as hether hat ent on in l;<ra!e indecency”% o !round criminal responsibility for indecency, the harm must be one hich society formally formally reco!ni=es as incompatible ith its proper functionin! (autonomy, liberty, e:uality and human di!nity are amon! these "alues

'1232&A A5 2&/1'/2& 0 0

91':9 F '1232&A A5

- With exception of contempt, criminal offences are created by statute, mostly by the Criminal Code [“CC”] * See Frey ; Fedoru< (Conduct, Fedoru<  (Conduct, not otherise criminal and not fallin! ithin any cate!ory of offences defined by the criminal la, does not become criminal because a natural and probable result thereof ill be t o pro"o#e others to "iolent retributi"e action$ acts li#ely to cause a breach of the peace are not in themsel"es criminal merely because they ha"e this tendency% &t is for 'arliament and not for the Courts to decide if any course of conduct * See CC s ) - ut common la defences are a"ailable under Canadian criminal la (e%!, +e"is (City " etrault  etrault   belo$ and CC s . - Common la C/0 determine, hoe"er, ho criminal criminal offences are interpreted (e%!% 1 " 2obidon 2obidon *0

/$: =5:1 / '1:A/: '1232&A FF:&':9 A& 1:9 F '1232&A =1':1:

(a Constitutional Division of Powers - oth the 3ederal 4o"ernment and 'ro"incial !o"ernments ha"e 5urisdiction to create create non-criminal offences (re!ulatory offences, but only the 3ederal 4o"ernment can create “criminal offences”6 s )7(89 Constitution /ct (b The Canadian Charter of Rights and Freedoms - he Charter can be used to in"alidate offences that 'arliament has created, and can be used to stri#e don rules of criminal procedure6 * See, e%!, 1 ; $eywood (Example of criminal offence being struck down): he Constitutional :uestion  as hether s 79)(7(b of the CC infrin!ed se"eral sections of the Charter, and if so, hether hether those infrin!ements ere 5ustifiable under s 7% $:. he offence as too seepin! in relation to the ob5ecti"e (particularly in relation to its !eo!raphical ambit, and therefore limits liberty beyond hat is necessary for 'arliament to accomplish its !oal * See, e%!%, 1 ; a<es (Example of a rule of criminal procedure being struck down): he SCC as called on to deal ith the constitutionality of section . of the 0arcotic Control /ct, hich pro"ided that a person found in possession of a narcotic as presumed to be in possession for the purpose of traffic#in!, unless he established the contrary% $:. hat section, hich re:uires an accused to dispro"e on a o' the existence of a presumed fact, "iolates the presumption of innocence% he la cannot be sa"ed by s 7 of the Charter, as it does not sur"i"e the rational connection test, and therefore it is in"alid

- he Charter can also be used as an important interpretati"e tool by alloin! courts to use constitutional "alues to influence the ay statutes are interpreted6

'A992F2'A/2& 'A992F2'A/2& F FF:&':9

- o !eneral cate!ories6 “&ndictable” and “summary” offences% <ffences can be “hybrid” (i%e% %e% prosecutor has ri!ht to elect hether to treat as indictable or summary (this is not a > rd cate!ory of offence, thou!h - he classification of offences has important implications ons for the penalties that are possible, and for the procedure that  ill be sued, includin! the mode of trial 40

2&/:1=1:/2&> 2&/:1=1:/2&> '1232&A =1?292&9

Definitions - ?efinitions are found in CC s 8 (hich apply throu!hout and in the be!innin! n! of each 'art Strict Construction - raditionally, criminal statutes ere interpreted strictly in fa"our of the liberty iberty of the accused$ althou!h this principle continues to apply, it has been hea"ily modified by the purposi"e interpretation approach6

* See 1 " 'are6 “he ords @hile [email protected] in s% 87A(B do not re:uire the murder and the underlyin! offence to ta#e place simultaneously% Where the act causin! death and the acts constitutin! the indecent ndecent assault all form part of one continuous se:uence of e"ents formin! a sin!le transaction, the death is caused @hile [email protected] an offence for the purposes of s% 87A(B% he offences under s% 87A(B all in"ol"e the ille!al domination of people by other people% /ccordin!ly, it is the continuin! ille!al domination of the "ictim hich !i"es continuity to the se:uence of e"ents culminatin! in the murder and ma#es it a sin!le transaction% he murder represents an exploitation of the position of poer created by the underlyin! crime and #nits the to to!ether% he con"iction of first de!ree murder should be restored” Purposive Interpretation - Canadian la ma#es liberal use of purposi"e interpretation (see 1 " 'are abo"e French/English - 3ederal las li#e the CC are passed in both n!lish and 3rench$ 3rench$ each is e:ually authoritati"e and ambi!uities in one lan!ua!e can be clarified by the other6 * See, e%!%, 1 " 2 (? The Charter  - he Charter can ha"e an important influence on the ay statutory pro"isions are interpreted because of the presumption that statutes ere intended to be constitutionally "alid6 * See, e%!%, Canadian 3oundation for Children, Douth E the +a " Canada Canada66 FA'/9. CC s A> excludes from crime reasonable physical correction of children by their parents and

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @andrew#[email protected]#ca  @ andrew#[email protected]#ca # $e success%ully co"pleted all o% the &'A reuire"ents reuire"ents in the anuary, *++ sitting &ote. /oronto and surrounding area only0

teachers% he C3C, and other foundations, see# declaration that this exemption "iolates s 9 because it fails to !i"e procedural protections to children$ "iolates s 78 because it constitutes cruel and unusual punishment and "iolates s 7B% 299:6 299:6 Constitutionality of pro"ision alloin! parents and teachers to use minor nor correcti"e force 1:A9&2&>. security% Fc+achlin found that  s 9 analysis6 Section 9 protects indi"iduals from "iolation of their personal security% there as no "iolation of section% he Cron had conceded that the la ad"ersely affected the childGs security of person, so the issue as hether the "iolation offended a principle of fundamental 5ustice% he 3oundation proposes three claims as mentioned abo"e% Fc+achlin re5ected the first claim that it failed to !i"e procedural protection as children recei"e all the same protection as anyone else% <n the second claim, she re5ects that the @best interests of the [email protected] is a principle of fundamental 5ustice as there is no @consensus that it is "ital or fundamental to our societal notion of 5ustice%@  s 78 analysis6 Section 78 pre"ents @cruel and unusual [email protected]% Citin! the standard of shoin! cruel and unusual punishment from 1% "% Smith as @so excessi"e as to outra!e standards of [email protected], Fc+achlin re5ects the claim as the section only permits @correcti"e force that is [email protected] thus cannot be excessi"e by definition%  S A> does not lead to a "iolation of s 7B of the Charter, and the 3oundation erroneously e:uates e:ual treatment ith identical treatment% So hile s A> ma#es a distinction on the basis of a!e (tri!!erin! s 7B, the distinction isn;t discriminatory% he :uestion may be put as follos6 "ieed from the perspecti"e of the reasonable person identified abo"e, does 'arliament;s choice not to criminali=e reasonable use of correcti"e force a!ainst children offend their human di!nity and freedom, by mar!inali=in! them or treatin! them as less  orthy ithout re!ard to their actual circumstancesH $:6 $: 6 he la stands

'1232&A FF:&':9 -

he elements of an offence include6 () /he =$92'A =$92'A ele"ents (actus reus): the act that must be performed$ the omission that must be proscribed$ the circumstances or conditions in hich the act must occur$ the accused must ha"e acted "oluntarily$ causation must be established (if rele"ant$ and any conse:uence that must be caused by the act% (*) /he 3:&/A 3:&/A ele"ent (mens rea): as a !eneral proposition, a true crime ill be interpreted as re:uirin! sub5ecti"e mens rea unless it is clear that 'arliament ished to impose ob5ecti"e liability%

0

A'/9 1:9

(a)

Acts and 9tatutory 'onditions.

- he act must be the act of the accused, and must be the #ind of act described in the rele"ant pro"ision, and the act must be committed under the circumstances or conditions specified in the offence, e%!%6 an accused cannot be con"icted

of the offence of brea# and enter ith intent to commit a criminal offence pursuant to s >A.(7(a unless he “brea#s” and “enters” somethin! that :ualifies as a “place” (b)  Acts must be “Voluntary” or “Willed”: - See "oluntariness defences belo (c)

!e “Act” of "ossession.

- here are a couple of offences in the CC that ha"e “possession” as an element (of the actus reus, e%!%, possession of firearm related offences, possession of property obtained in a crime (s >BA(7, etc% - “'ossession” is defined in s A(>6 / person has somethin! in his “possession” here (a Ie has it in '1S<0/+ '<SSSS&<0 '<SSSS&<0 (i%e% manual possession$ 1 J0<W&04+D 1 J0<W&04+D has it in the actual possession or custody of /0<I1 '1S<0 (i%e% constructi"e possession$ 1 J0<W&04+D has it in any place, hether or not that place belon!s to or is occupied by him, for the use or benefit of himself or another person (i%e% constructi"e possession (b Where <0 <3 W< '1S<0S has anythin! in his custody or possession, ith the (b Where J0<W+?4 /0? C<0S0 of the rest, it shall be deemed to be in the custody of /++ <3 IF (i%e% 5oint possession - 0ote that s 8 of 8 of the C?S/ adopts this definition of possession - his section creates > types of possession6 personal possession$ constructi"e possession and 5oint possession possession 1 " Dor# ( Dor#  (#tates t!e law of manual possession: "ersonal possession is establis!ed w!ere an accused person exercises p!ysical control o$er a pro!ibited ob%ect wit! full knowledge of its c!aracter  & !owe$er brief t!e  p!ysical contact may be& and w!ere t!ere is some e$idence to s!ow t!e accused person took custody of t!e ob%ect willingly wit! intent to deal wit! it in some pro!ibited manner  ) 'C +td  shipments total FA'/9. o trailers containin! furniture shipments ere stolen from a yard controlled by 'C "alue exceeded 8. KKK% he appellant recei"ed a telephone ephone call from Fr% Shannon% Fr% Shannon told him that there  as @a bunch of [email protected] in the arehouse% Ie as#ed the appellant if he had put it there% he appellant replied that he had not% hey then dro"e to the arehouse here the appellant noted that there as a trailer bac#ed up into one of the bay doors ith no tractor unit hoo#ed to it% When they entered the arehouse, the appellant said he as surprised to see a lot of furniture and lumber and that he did not #no here they came from% Ie telephoned Far# 1o!ers, the mana!er, and as#ed him if he #ne anythin! about the !oods in the arehouse% Fr% 1o!ers told the appellant that he #ne about the !oods but refused to disclose here they came from% /t that time, the appellant reali=ed that the !oods ere probably stolen% Ie said he did not thin# throu!h hat he as !oin! to do re!ardin! the !oods$ he simply anted anted to !et rid of them% he appellant then borroed a truc#, hoo#ed up the trailer and dropped it off at a location on Carpenter Street, not far from the arehouse, and he as arrested% 299:. Whether the rial 2ud!e rred in 3indin! hat the "idence stablished eyond a 1easonable ?oubt hat the /ppellant 'ossessed the 0ecessary Mens Rea for the <ffence of 'ossession of Stolen 'roperty 1:A9&2&>. he appellant testified% Ie #ne the !oods ere stolen% Ie also exercised physical control o"er the !oods% Ioe"er, there as no e"idence that he had any intention to depri"e the ri!htful oner of the stolen !oods, hich is an essential re:uirement for possession in la

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @andrew#[email protected]#ca  @ andrew#[email protected]#ca # $e success%ully co"pleted all o% the &'A reuire"ents reuire"ents in the anuary, *++ sitting &ote. /oronto and surrounding area only0

teachers% he C3C, and other foundations, see# declaration that this exemption "iolates s 9 because it fails to !i"e procedural protections to children$ "iolates s 78 because it constitutes cruel and unusual punishment and "iolates s 7B% 299:6 299:6 Constitutionality of pro"ision alloin! parents and teachers to use minor nor correcti"e force 1:A9&2&>. security% Fc+achlin found that  s 9 analysis6 Section 9 protects indi"iduals from "iolation of their personal security% there as no "iolation of section% he Cron had conceded that the la ad"ersely affected the childGs security of person, so the issue as hether the "iolation offended a principle of fundamental 5ustice% he 3oundation proposes three claims as mentioned abo"e% Fc+achlin re5ected the first claim that it failed to !i"e procedural protection as children recei"e all the same protection as anyone else% <n the second claim, she re5ects that the @best interests of the [email protected] is a principle of fundamental 5ustice as there is no @consensus that it is "ital or fundamental to our societal notion of 5ustice%@  s 78 analysis6 Section 78 pre"ents @cruel and unusual [email protected]% Citin! the standard of shoin! cruel and unusual punishment from 1% "% Smith as @so excessi"e as to outra!e standards of [email protected], Fc+achlin re5ects the claim as the section only permits @correcti"e force that is [email protected] thus cannot be excessi"e by definition%  S A> does not lead to a "iolation of s 7B of the Charter, and the 3oundation erroneously e:uates e:ual treatment ith identical treatment% So hile s A> ma#es a distinction on the basis of a!e (tri!!erin! s 7B, the distinction isn;t discriminatory% he :uestion may be put as follos6 "ieed from the perspecti"e of the reasonable person identified abo"e, does 'arliament;s choice not to criminali=e reasonable use of correcti"e force a!ainst children offend their human di!nity and freedom, by mar!inali=in! them or treatin! them as less  orthy ithout re!ard to their actual circumstancesH $:6 $: 6 he la stands

'1232&A FF:&':9 -

he elements of an offence include6 () /he =$92'A =$92'A ele"ents (actus reus): the act that must be performed$ the omission that must be proscribed$ the circumstances or conditions in hich the act must occur$ the accused must ha"e acted "oluntarily$ causation must be established (if rele"ant$ and any conse:uence that must be caused by the act% (*) /he 3:&/A 3:&/A ele"ent (mens rea): as a !eneral proposition, a true crime ill be interpreted as re:uirin! sub5ecti"e mens rea unless it is clear that 'arliament ished to impose ob5ecti"e liability%

0

A'/9 1:9

(a)

Acts and 9tatutory 'onditions.

- he act must be the act of the accused, and must be the #ind of act described in the rele"ant pro"ision, and the act must be committed under the circumstances or conditions specified in the offence, e%!%6 an accused cannot be con"icted

of the offence of brea# and enter ith intent to commit a criminal offence pursuant to s >A.(7(a unless he “brea#s” and “enters” somethin! that :ualifies as a “place” (b)  Acts must be “Voluntary” or “Willed”: - See "oluntariness defences belo (c)

!e “Act” of "ossession.

- here are a couple of offences in the CC that ha"e “possession” as an element (of the actus reus, e%!%, possession of firearm related offences, possession of property obtained in a crime (s >BA(7, etc% - “'ossession” is defined in s A(>6 / person has somethin! in his “possession” here (a Ie has it in '1S<0/+ '<SSSS&<0 '<SSSS&<0 (i%e% manual possession$ 1 J0<W&04+D 1 J0<W&04+D has it in the actual possession or custody of /0<I1 '1S<0 (i%e% constructi"e possession$ 1 J0<W&04+D has it in any place, hether or not that place belon!s to or is occupied by him, for the use or benefit of himself or another person (i%e% constructi"e possession (b Where <0 <3 W< '1S<0S has anythin! in his custody or possession, ith the (b Where J0<W+?4 /0? C<0S0 of the rest, it shall be deemed to be in the custody of /++ <3 IF (i%e% 5oint possession - 0ote that s 8 of 8 of the C?S/ adopts this definition of possession - his section creates > types of possession6 personal possession$ constructi"e possession and 5oint possession possession 1 " Dor# ( Dor#  (#tates t!e law of manual possession: "ersonal possession is establis!ed w!ere an accused person exercises p!ysical control o$er a pro!ibited ob%ect wit! full knowledge of its c!aracter  & !owe$er brief t!e  p!ysical contact may be& and w!ere t!ere is some e$idence to s!ow t!e accused person took custody of t!e ob%ect willingly wit! intent to deal wit! it in some pro!ibited manner  ) 'C +td  shipments total FA'/9. o trailers containin! furniture shipments ere stolen from a yard controlled by 'C "alue exceeded 8. KKK% he appellant recei"ed a telephone ephone call from Fr% Shannon% Fr% Shannon told him that there  as @a bunch of [email protected] in the arehouse% Ie as#ed the appellant if he had put it there% he appellant replied that he had not% hey then dro"e to the arehouse here the appellant noted that there as a trailer bac#ed up into one of the bay doors ith no tractor unit hoo#ed to it% When they entered the arehouse, the appellant said he as surprised to see a lot of furniture and lumber and that he did not #no here they came from% Ie telephoned Far# 1o!ers, the mana!er, and as#ed him if he #ne anythin! about the !oods in the arehouse% Fr% 1o!ers told the appellant that he #ne about the !oods but refused to disclose here they came from% /t that time, the appellant reali=ed that the !oods ere probably stolen% Ie said he did not thin# throu!h hat he as !oin! to do re!ardin! the !oods$ he simply anted anted to !et rid of them% he appellant then borroed a truc#, hoo#ed up the trailer and dropped it off at a location on Carpenter Street, not far from the arehouse, and he as arrested% 299:. Whether the rial 2ud!e rred in 3indin! hat the "idence stablished eyond a 1easonable ?oubt hat the /ppellant 'ossessed the 0ecessary Mens Rea for the <ffence of 'ossession of Stolen 'roperty 1:A9&2&>. he appellant testified% Ie #ne the !oods ere stolen% Ie also exercised physical control o"er the !oods% Ioe"er, there as no e"idence that he had any intention to depri"e the ri!htful oner of the stolen !oods, hich is an essential re:uirement for possession in la

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @andrew#[email protected]#ca  @ andrew#[email protected]#ca # $e success%ully co"pleted all o% the &'A reuire"ents reuire"ents in the anuary, *++ sitting &ote. /oronto and surrounding area only0

 / brief handlin! of stolen !oods ith full #noled!e

of their character solely for the purpose of !ett in! rid of them does not constitute possession, for example  his is because conduct may be characteri=ed as criminal only here the Cron pro"es the existence of a blameorthy state of mind% $:. he 5ud!e con"icted the appellant on the !rounds that the appellant #ne that the !oods ere stolen, and that he exercised physical control o"er them ithout notifyin! the police or the ri!htful oners% oners% he blameorthiness of this conduct fell short of that re:uired for a con"iction for a crime of dishonesty% /ppeal alloed '33:&/6 '33:&/ 6 0ote ho the “act” of possession has a mental element$ so sometimes the actus reus and mens rea are not distinct 1 " errence ( errence (#tates t!e law of %oint possession re s '()(b)  t!ere must be e$idence of knowledge& consent and control o$er t!e sub%ect matter re: t!e person w!o does not manually possess t!e stolen goods) FA'/9. 1espondent, the passen!er in a stolen car, as char!ed ith its possession on contrary to s% >7> of the Criminal % Code he respondent testified that he didn;t #no the car as stolen% here as no direct e"idence to contradict his story% 299:. he important :uestion raised by this appeal relates to the true meanin! to be attached to the ord “possession” as the same occurs in the context of s% >(A( ! of the Criminal Code and more particularly hether “possession” as there employed imports control as an essential element [0o s A(>] 1:A9&2&>6 1:A9&2&>6  Jnoled!e and consent under s A(> must co-exist ith some measure of control o"er the sub5ect matter element of possession$ /ppeal dismissed $:. SCC a!rees L Court of /ppeal that control is a central element 1 " 'ham (#tates t!e law in relation to constructi$e and %oint possession: for constructi$e possession as set out in s '()(a)(i) and (ii) A*+ %oint possession defined in s '()(b)& t!ere must be bot! knowledge and control,  And pro$ides an example of !ow t!e law of possession is applied) of actual possession in that the appellant as not present in the apartment hen the FA'/96 FA'/9 6 here as no e"idence of search as conducted, so that the Cron;s case rested on constructi"e or 5oint nt possession (ithin a premise% ?ru! exchan!es ere occurrin! at ';s apartment, and a nei!hbor sa and heard ' openin! doorLcollectin! money% 0!uyen became an occupant of the apartment% <n Farch >, 8KK> at A6AK p%m% the appellant as seen (by sur"eillance to lea"e her apartment and did not return prior to the sei=ure of the dru!s on Farch B, 8KK>% 0!uyen as the only person there durin! the search% 299:. Whether the appellant had #noled!e and control of the cocaine found in the blac# cloth purse in the bathroom, sufficient to constitute constructi"e or 5oint possession as defined in para!raphs A(>(a and (b of the Code% 1:A9&2&>6 1:A9&2&>6  &n order to constitute constructi"e possession, there must be #noled!e, and some measure of control o"er the item  &n order to constitute 5oint possession pursuant to section A(>(b of the Code there must be #noled!e, consent, and a measure of control on the part of the person deemed to be in possession%  Whether someone is in possession of somethin! pursuant to section A(> of the Code is a :uestion of fact to be determined on the e"idence based on the inferences to be dran in each case he e"idence and the trial 5ud!e;s findin!s support the conclusion that she as in constructi"e andLor 5oint possession of the cocaine (the court lists the e"idence and findin!s that exhibit #noled!e and control, e%!%”the blac# purse containin! the dru!s and the ba! containin! the money ere found in full "ie in the bathroom, a common area of the apartment e"idence (don;t need direct e"idence '33:&/6 '33:&/ 6 1emember that #noled!e can be established by circumstantial e"idence

(d)

-onsent as an Element of t!e Actus .eus

- /bsence of consent by the "ictim is an important actus reus condition, condition, and must be present for offences to occur - &f alle!ed "ictim alle!edly consented, must also consider hether hether the consent is obtained lafully6 s 8MB(> 1 " anchu# (Explains law on consent in relation to sexual assault& and gi$es an o$er$iew of t!e elements of a sexual assault) intimate, notithstandin! complainant FA'/9. &nter"ie in "an,  be!an touchin!, hich pro!ressi"ely became more intimate, sayin! “no”% /ny compliance by complainant as done out of fear% rial 5ud!e ac:uitted accused on !rounds of implied consent% conclusion that the defence 299:. Whether the 2 erred in understandin! of consent in sexual assault and hether his conclusion of implied consent exists in Canadian la is correct 1:A9&2&>. (“L1L?”, of to elements6  / con"iction for sexual assault re:uires proof, beyond a reasonable doubt (“L1L?”, (7 the actus reus (unanted sexual touchin! and absence of consent$ (8 the mens rea (the intention to touch N #noin! of, or bein! rec#less of or ilfully blind to, a lac# of consent, either by ords or actions, from the per son bein! touched The "ctus Reus6  he absence of consent is subjecti;e, subjecti;e, determined by reference to the complainant;s sub5ecti"e internal state of mind toards the touchin!% he actual state of mind of the complainant is determinati"e (purely sub5ecti"e  While complainant;s testimony is the only source of direct e"idence as to state of mind, credibility must be assessed, in li!ht of /++ O&?0C &o such thing as de%ence o% i"plied consentB consentB in seCual assault cases# /here are only two options. the co"plainant consented or did not consent  o be le!ally effecti"e, consent must be freely !i"en% 2% the co"plainant consented, or there is reasonable doubt about her-non-consent, circu"stances "ight call into uestion what %actors pro"pted her apparent consent (see s (see s *6!(), hich ts or does not resist by reason of6 (a *6!(), hich says that no consent is obtained here the “complainant submits the application of force to the complainant$ ( b threats or fear of the application of force to the complainant$ (c fraud$ or (d exercise of authority 9o, i% established DE1E that the co"plainant did not consent, the actus reus is established (assu"ing there  was touching in a seCual seCual "anner, and the touching was ;oluntary)# ;oluntary)# 2% reasonable doubt as to consent, or established that co"plainant acti;ity participated in seCual acti;ity, "ust still consider whether co"plainant co"plainant consented because o% %ear, %raud etc# Mens Rea 6  he accused mi!ht ha"e an honest belief in consent6 see s 8MB(A, hich the accused accused need not assert% /ccused simply has to brin! forard some e"idence to r aise this as a possibility, and the court ha"e to assess the e"idence (and  hether this raises a reasonable doubt o"er the "ictim;s state of mind $:6 $: 6 /ppeal alloed and con"iction con"iction entered 1 " 2obidon (-annot consent to t!e intentional application of force to cause !urt or non/serious bodily !arm) folloin! a fist fi!ht% 3i!htin! started FA'/9. /ccused as char!ed ith manslau!hter, throu!h the offence of assault, folloin! inside bar, and the parties a!reed it as not o"er after they ere #ic#ed out% <utside, hen "ictim as facin! 2, 2 struc# "ictim ith fist, hittin! him hard on head% Oictim as #noc#ed to hood of car, and rendered unconscious by initial tial punch% 2 continued forard ith the beatin!% 299:. Whether absence of consent is an element hich must be pro"ed by the Cron in all cases of assault, or  hether there are common la limitations hich restrict or ne!ate the le!al effecti"eness effecti"eness of consent in certain cases%

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1:A9&2&>.  /lthou!h all criminal offences are defined in the Code, that doesn;t mean that the common la no lon!er illuminates these definitions, nor !i"es content to the "arious principles of criminal responsibility  he fact that s 8MB(> sets out factors that "itiate consent does not mean that e cannot rely on C+ to ascertain other ones  Where to people en!a!e in a fi!ht by mutual consent, the blos struc# by each constitute an assault on the other, unless there is 5ustifiable self defence (i%e% you cannot consent to the infliction of bodily in5ury, or non-tri"ial bodily harm  he policy of the common la ill not affect the "alidity or effecti"eness of freely !i"en consent to participate in r ou!h sportin! acti"ities, so lon! as the intentional applications of force to hich one consents are ithin the customary norms and rules of the !ame 1 " Cuerrier (+e$elops t!e rules relating to !ow fraud $itiates consent under s 012()) FA'/96 he accused as char!ed ith to counts of a!!ra"ated assault pursuant to s% 8M. of the Criminal Code % "en thou!h he had been explicitly instructed, by a public health nurse, to inform all prospecti"e sexual partners that he  as I&O-positi"e and to use condoms e"ery time he en!a!ed in sexual intercourse, the accused had unprotected sexual relations ith the to complainants ithout informin! them he as I&O-positi"e% oth complainants had consented to unprotected sexual intercourse ith the accused, but they testified at trial that if they had #non that he as I&O-positi"e they ould ne"er ha"e en!a!ed in unprotected intercourse ith him% /t the time of trial, neither complainant had tested positi"e for the "irus% he trial 5ud!e entered a directed "erdict ac:uittin! the accused% he Court of /ppeal upheld the ac:uittals% 299:6 Whether a complainant;s consent to en!a!e in unprotected sexual intercourse is "itiated by fraud hen partner #nos they are I&O positi"e and either fails to disclose or deliberately decei"es her about itH &f the consent is fraudulently obtained, can s 8M. (a!!ra"ated assault be applicableH 1:A9&2&>.  &t is not necessary, hen considerin! hether consent is "itiated under s 8MB(> (i%e% consent "itiated by fraud, to consider hether the fraud relates to the “nature and :uality of the act”$ all that is re:uired is a fraud and a casual connection beteen that fraud and the submission or failure to resist  What is fraudH &t in"ol"es6 (i ?&SI<0SD (determined ob5ecti"ely, as# hether there is deliberate deceit or non-disclosure of the I&O disease$ note that the dishonest actions must relate to the obtainin! of the consent$ and (ii ?'1&O/&<0 (namely si!nificant ris# of serious bodily harm  he !reater the ris# of depri"ation, the hi!her the duty of disclosure  and since the failure to disclose I&O-positi"e status can lead to a de"astatin! illness ith fatal conse:uences, there exists a positi"e duty to disclose  he nature and extent of t he duty to disclose, if any, ill alays ha"e to be considered in the context of the particular case (e)

-ausation

- Where the rele"ant offence prescribes a “conse:uence” that must occur before the offence is complete, the 'rown prosecutor "ust pro;e that the accused caused that conseuence beyond a reasonable doubt - So here an offence re:uires a specific conse:uence, causation becomes an element of the offence - he offences hich prescribe a conse:uence include6 (i criminal ne!li!ence causin! bodily harm (s% 887,

(ii criminal ne!li!ence causin! death (s% 88K, (iii dan!erous operation causin! bodily harm (s% 8A)(>, (i" dan!erous operation causin! death (s% 8A)(A, (" impaired dri"in! causin! bodily harm (s% 8BB(8, impaired dri"in! causin! death (s% 8BB(>, ("i assault causin! bodily harm (s% 8M9(!, ("ii a!!ra"ated assault (s% 8M., ("iii sexual assault causin! bodily harm (s% 898(7( c, (ix a!!ra"ated sexual assault (s% 89>(7, mischief causin! dan!er to life (s% A>K(8 and (x arson causin! bodily harm (s% A>>(!% - he la on causation, in o"er"ie form, is this6 (7 Causation in"ol"es an analysis into both factual causation (i%e% the medial cause of death and le!al causation (i%e% hether the accused should be held r esponsible in la (Mene#es6 a% Factual causation$ (i /s there can be more than one cause of death, the causation test is not restricted to a search for the most proximate, the primary, or the only cause of death ( Mene#es% (ii 1e!ardless of hether the accused;s conduct is the sole cause, as# as it a material causeH he test is this6 “ was the conduct o% the accused a signi%icant contributing cause o% the prohibited conseuenceH” (iii &f the act of the accused is too re"ote to ha"e caused the result alle!ed, causation is not established (i" &f the tri!!erin! of a chain of e"ents is interrupted by an inter;ening cause, it can ser"e to distance and exonerate the accused ( R v %ette % ut an inter"enin! act terminatin! the causal chain of e"ents may be the ithdraal or abandonment by the accused of in"ol"ement in the dan!erous enterprise% /he abandon"ent o% conduct re:uires a positi;e co""unication o% notice% he su%%iciency o% the notice is determined by the nature o% the o%%ense and the degree o% the accuseds participation (" 3actual causation is typically resol"ed by the Pbut %or test b% &egal causation6 (i his in:uiry concerns hether the accused should be held criminally responsible in la for that death  a moral reaction, a "alue-5ud!ment  hether, in the circumstances, a “blamable” cause ou!ht to be identified (R v %ette% (ii Causation expresses an element of fault% hat, to!ether ith the re:uisite mental element, is in la sufficient to base criminal responsibility% (iii 0ote6 there is a hi!her standard of le!al causation to secure a first de!ree murder con"iction (%ette% (8 &n the context of homicide, too, the accused;s conduct must be a “si!nificant contributin! cause” of the prohibited act (%ette%

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(> Contributory ne!li!ence does not ne!ate causationLcriminal responsibility (Mene#es (A &mproper medical treatment does not usually brea# the chain of causation6 s 88B Code (B 0ote6 accused must ta#e "ictim as you find them (i%e% the thin s#ull rule (Mene#es 1 " Williams (W!ere -rown cannot pro$e t!at t!e pro!ibited conse3uence occurred& t!e accused cannot be con$icted) FA'/9. W as I&O positi"e, and en!a!ed in consensual sex ith the complainant, ho later contracted I&O% W #ept the complainant in the dar# about his disease, despite ha"in! unprotected sex ith her% 299:. Whether an accused ho fails to disclose that he has I&O to a complainant ho, at the time of the alle!ed assault, could herself ha"e been infected ith I&O, can be con"icted of a!!ra"ated assault% he issue is not ith mens rea, the issue is hether the Cron has been able to pro"e all elements of the actus reus% 1:A9&2&>.  /!!ra"ated assault is an offence based on proof of certain conse:uences  he Cron must establish all of the elements of an assault, plus the a!!ra"atin! circumstance (in this case, “endan!ers the life of the complainant”  Section 8M.(7 is only one of a number of Criminal Code  pro"isions that “call for a more serious char!e if certain conse:uences follo%  he Cron as unable to pro"e the endan!erment of life, and therefore unable to pro"e e"ery element of the actus reus $:. W ac:uitted on char!e of a!!ra"ated assault 1 " Fene=es (-ausation is a two stage analysis& re3uiring “factual causation” and “legal causation”) FA'/96 o dudes racin!, one dies% ?efence says that the accused ithdre from the race at a material time before the accident, and this created a brea# in the causal lin#a!e to the "ictim;s death% ?ude pleads not !uilty to criminal ne!li!ence causin! death 299:. Whether a person ho sur"i"ed a street race in hich the second participatin! party lost his life can be held criminally liable for that death solely based on his co-participatin! in the race 1:A9&2&>. Criminal negligence  Criminal ne!li!ence amounts to a anton and rec#less disre!ard for the li"es and safety of others6 Criminal Code' s%87)(7%  his is a mar#ed and substantial departure in all of the circumstances from the standard of care of a reasonable person  &n the context of a dan!erously ne!li!ent act, the mens rea for the offence char!ed is ob5ecti"e foreseeability of the ris# of bodily harm hich is neither tri"ial nor transitory  /s is the case ith crimes of sub5ecti"e mens rea' the mens rea for ob5ecti"e foresi!ht of ris#in! harm is normally interred from the facts Dangerous driving  he crime of dan!erous dri"in!, on t he other hand, is established here the prosecution pro"es a mar#ed departure from the standard of conduct of a reasonably prudent dri"er in all the circumstances6 Criminal Code' s%8A)(7(a% he basis of liability for dan!erous dri"in! is ne!li!ence% he :uestion to be as#ed is not hat the accused ob5ecti"ely intended but rather hether, "ieed ob5ecti"ely, the accused exercised the appropriate standard of care (a#ard of Racing  / death caused as a result of a dri"er;s in"ol"ement in a race on a public street can amount to criminal ne!li!ence causin! death

 1acin! on a public roaday resultin! in the

death of a passen!er in one of the participatin! motor "ehicles can also reasonably be found to constitute dan!erous dri"in!  Where the "ictim is the occupant of a third "ehicle, dan!erous dri"in! may a!ain be the appr opriate result Causation  / determination of causation re:uires a findin! that the accused caused the death of another both in %act and in law  FA'/A causation is concerned ith an in:uiry as to ho the "ictim came to his or her death, in a medical, mechanical or physical sense, and ith the contribution of the accused to that result% &n other ords, ere the actions of the accused beyond ne!li!ibleH Where there are multiple operati"e, independent, and si!nificant contributin! causes, competin! causes need not be sorted out by the trier of fact in an effort to identify a predominant cause 1e!ardless of  hether the accused;s conduct is the sole cause, as it a material causeH /:9/6 Was the conduct of the accused a si!nificant contributin! cause of the prohibited conse:uenceH “&f the act of the accused is too re"ote to ha"e caused the result alle!ed, causation is not established%” +oo# at facts of case  :>AE23=/AD:  causation in:uiry concerns hether the accused should be held criminally responsible in la for that death  a moral reaction, a "alue-5ud!ment  hether, in the circumstances, a “blamable” cause ou!ht to be identified (R v %ette % Causation expresses an element of fault% hat, to!ether ith the re:uisite mental element, is in la sufficient to base criminal responsibility%  &n examinin! the traceable ori!in of the chain of e"ents causin! death, may become an issue% &f the act of the accused is too re"ote to ha"e caused the result alle!ed, causation is not established% &f the accused;s actions are fairly "ieed as only part of the history of the settin! in hich the prohibited result unfolded, ithout more, causation is not pro"en6 R v Cri!!in  &f the tri!!erin! of a chain of e"ents is interrupted by an inter;ening cause, it can ser"e to distance and exonerate the accused (R v %ette % /n inter"enin! act terminatin! the causal chain of e"ents may be the ithdraal or abandonment by the accused of in"ol"ement in the dan!erous enterprise% /he abandon"ent o% conduct re:uires a positi;e co""unication o% notice% he su%%iciency o% the notice is determined by the nature o% the o%%ense and the degree o% the accuseds participation  "pplication Q can be directly responsible for the death of R, if Q and D ere racin!, and D #ills R as a natural result of the racin!Lcriminal ne!li!ent dri"in!% ach dri"er bears e:ual responsibility for its continued lifespan sub5ect to ithdraal or inter"enin! e"ent% /s each dri"er in effect induces the other to dri"e in an unlafully unsafe manner, each is ta#en to assume any conse:uential ris# ob5ecti"ely ithin the ambit of the dan!er created% his surely includes a ris# of bodily harm or death to a co-principal arisin! out of miscalculation or other 5ud!ment error by that indi"idual in the course of, and related to, pursuin! the 5ointly maintained, and unlafully conducted, dan!erous acti"ity%  F as not criminally ne!li!ent, but as dan!erous dri"in! ( 5ud!e cites the testimony to sho hy, but his dan!erous operation of the motor "ehicle did 0< cause the death of the "ictim, ho chose to maintain excessi"e speed after the accused sloed don% &n these circumstances, if the accused sloed his speed to the ran!e of MK of that of the deceased nearly half a mile from the point of control loss, there must be a reasonable doubt, althou!h nothin! more, that his ithdraal from the race amounted to a sufficiently dramatic lac# of commitment to #eepin! pace for it to be #non to 2acob Feus=yns#i $:. 4uilty only of dan!erous dri"in! 1 " 0ette (4eading decision on t!e standard for causation in criminal offences& including all !omicide cases) FA'/9. )B year old lady robbed, tied up ith ire on nec#, and died% /ccused char!ed L 7st de!ree murder (murder  hile committin! the offence of unlaful confinement under s 8>7(B

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299:. ?etermination of the threshold test of causation that must be met before an accused may be held le!ally responsible for causin! a "ictim;s death in a char!e of second de!ree murder% 1:A9&2&>.  here must be %actual and legal causation% Factual causation is concerned ith an in:uiry about ho the "ictim cam to his or her death% egal causation (hich is referred to as imputable causation is concerned ith the :uestion of  hether the accused should be held responsible in la (i%e% the in:uiry is directed at the :uestion of hether the accused person should be held criminally responsible for the conse:uences that occurred% &t is informed by le!al considerations such as the ordin! of the section creatin! the offence and principles of interpretation% hese le!al considerations, in turn, reflect fundamental principles of criminal 5ustice such as the principle that the morally innocent should not be punished  here is only one standard of causation for homicide offences, includin! second de!ree murder% hat standard may be expressed usin! different terminolo!y, but it remains the standard expressed by this Court in the case of Smithers, supra (i%e% “more than a tri"ial cause”$ “ si!nificant contribution or cause” st nd  Causation is usually not in issue in 7  and 8  de!ree murder cases, but !enerally is in manslau!hter cases '33:&/. /lso, this case deals ith the hi!her standard of responsibility of imputable case (i%e% moral blameorthiness that is re:uired to secure a first de!ree murder con"iction, and illustrates the thin# s#ull rule%

(%)

5missions6+uties

- Some offences don;t re:uire a positi"e act by the accused, but rather can be committed by shoin! that the accused failed to act, or omitted to act% - o be !uilty of omission6 (7 he offence must contemplate !uilt for omissions (based on statutory interpretation (8 he accused must be placed under a le!al duty to act either by the pro"ision char!in! him or y some incorporated pro"ision (see ss 87B-879 (> he omission in :uestion must be a failure to fulfil that le!al duty 1 " Foore FA'/9. ?ude runs red ith bi#e, stopped by officer, refuses to !i"e name and address, and char!ed ith unlafully and ilfully obstructin! a peace officer in the execution of his duty% 1:. <mission to act in a particular ay ill !i"e rise to criminal liability only here a duty to act arises at common la or is imposed by statute 1 " 'eterson FA'/9. ?ennis 'eterson as con"icted of failin! to pro"ide the necessaries of life to his father, /rnold 'eterson, thereby endan!erin! /rnold;s life (s 87B% ? li"ed ith father / (.A yrs old in messed up house% / asn;t bein! loo#ed after properly (food, clothes, housin!$ he fell sic# many times etc 1:A9&2&>. Elements of s 072(7)(c) and s 072(0) (i8e8 t!e rele$ant sections of t!e c!arge) - s 87B(7(c6 / duty to pro"ide the necessaries of life arises hen6 “one person is under the other;s char!e, is unable to  ithdra from that char!e, and is unable to pro"ide himself or herself ith necessaries of life% - he phrase “necessaries of life” includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the per son from harm - s 87B(86 Subsection 87B(8 imposes liability on an ob5ecti"e basis% he offence is made out by conduct shoin! a mar#ed departure from the conduct of a reasonably prudent person ha"in! the char!e of another in circumstances here

it is ob5ecti"ely foreseeable that failure to pro"ide necessaries of life ould ris# dan!er to life or permanent endan!er ment of the health of the person under the char!e of the other, ithout laful excuse - 3or sub (8, the personal characteristics of the accused, fallin! short of capacity to appreciate the ris#, are not a rele"ant consideration% he ob5ecti"e basis of liability includes an assessment of hether the person in char!e could ha"e acted other than as he or she did% - he ords “ithout laful excuse” in s% 87B( 8 pro"ide a defence and ser"e to pre"ent the punishment of the morally innocent% he obli!ation to pro"ide necessaries is not absolute and may be excused, for example, here there is financial inability

!e 9eaning of “nder !is c!arge” - 3irst, the relationship of the part ies to each other is amon! the factors to consider in determinin! hether a person is in the char!e of another% he dependency of the parent under a disability on an independent adult child is 5ustified not only by their past course of dealin! in hich the parent supported the child but also by their relationship to one another in  hich an element of trust ill usually be present - Second, the ord “char!e” is not un#non to the criminal la in other contexts in"ol"in! adults% &n the impaired dri"in! context, the court characteri=ed ha"in! “care, char!e or control” of a "ehicle as re:uirin! “a #ind of domination as in the master-ser"ant relationship and as in the parent-child or teacher-be!inner relationship” - Tsed in these contexts the ord “char!e” connotes, amon! other thin!s, the duty or r esponsibility of ta#in! care of a person or thin! - &n assessin! hether one person is in the char!e of another, the relati"e positions of the parties and their ability to understand and appreciate their circumstances is a factor to consider% / parent ho is not in full possession of his or her faculties may not appreciate that he or she cannot pro"ide himself or herself ith the necessaries of life and may not ha"e the capacity to understand that he or she is in an unsafe or unhealthy en"ironment that is li#ely to cause permanent in5ury - he e"idence to the 2 indicated that the appellant as in char!e of his f ather, and that the father as unable to  ithdra from his son;s char!e $:6 /ppeal dismissed$ 2 findin!s stand

1 " rone FA'/9. he appellant, ?exter rone, as char!ed ith criminal ne!li!ence causin! the death of /udrey 4reiner by failin! @to render assistance to [her] by failin! to ta#e her immediately to the hospital after under ta#in! to render such assistance% / and  (dru! dealers ere friends% / salloed a plastic ba! containin! crac# cocaine to a"oid its detection by police after bein! stopped% / be!an sha#in! and seatin! in ;s room%  made a statement (at 8 am  hich the 2 found to be an “underta#in!” pursuant to s 879 (he said he as “!oin! to ta#e / to the hospital”% / arri"ed at >67K am dead at hospital by taxi% he 2 held that usin! a taxi instead of )77 constituted a “anton and rec#less disre!ard” for /;s life, contrary to s 87) (criminal ne!li!ence 299:. Whether the trial 5ud!e erred in concludin! that the appellant had caused /udrey 4reinerGs death by breachin! a le!al duty arisin! from an @underta#[email protected] ithin the meanin! of s% 879 of the Criminal Code  to ta#e her to the hospital% <nly if the appellant can be found to ha"e !i"en an underta#in! !i"in! rise to a le!al duty under s% 879 can he be found criminally ne!li!ent for @omittin! to do anythin! that it is his duty to [email protected] ithin the meanin! of s% 87) of the Code% 1:A9&2&>. 4i"en serious penal conse:uences of bein! con"icted of causin! death by criminal ne!li!ence, the rele;ant underta<ingB "ust ha;e been "ade with binding intent  he e"idence doesn;t disclose any underta#in! of a bindin! nature$ the ords “i;ll ta#e you to a hospital” hardly constitute an underta#in! creatin! a le!al duty under s 879

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*0

9D:'/2?: 3:&9 1:A

- Sub5ecti"e mens rea is normally !leaned circumstantially, includin! by usin! the common sense inference that persons usually intend the natural conse:uences of their acts - Tse the mens rea pro"ided for in the rele"ant pro"ision, as construed accordin! to rele"ant criminal la principles - &f an offence specifies the rele"ant state of mind, then only that state of mind ill suffice (e%!% “assault” re:uires intentional touchin!, and not simply rec#less touchin! - &f a true crime is silent as to the mental state and the offence re:uires a conse:uence, it is implied that “intention” or “rec#lessness” in brin!in! about the conse:uence ill suffice - &n hat follos, the most common mental states are illustrated and identified (a) ;ntention& and lterior 9ens .ea - he accused must ha"e the "ery intention re:uired by the rele"ant pro"ision 1 " Oander!raff (O intended to thro the ob5ect, but not ma#e contact ith the "ictim, and therefore the “assault” as not intended% he assault pro"ision, s 8MB, re:uires the intentional application of force to the person 1 " Furray (F intended to hold the ernardo tapes, but not for the purpose of ilfully attemptin! to obstruct 5ustice (s 7>)(8, and therefore he could not be found !uilty% “Wilfully” constitutes the mens rea - is the act is done for the purpose of obstructin! the course of 5ustice% his is a “specific intent” offence and the onus is on the Cron to pro"e that Furray,  hen he secreted the tapes, intended to obstruct the course of 5ustice 1 " 1 (2%S (12S intended to shoot into a cro, ith intent to #ill a human bein! (albeit not the one #illed, openin! the door to his possible murder con"iction durin! his upcomin! trial, dependin! on ho the e"idence comes out

$:6 he appellant is !uilty of fraud% he actus reus is established6 the appellant committed deliberate falsehoods,  hich caused depri"ation% he mens rea is established6 the appellant told the depositors they had insurance protection  hen he #ne that they did not (i%e% he #ne this to be false$ and it may be inferred from his possession of this #noled!e that the appellant #ne that he as placin! the depositors; money at ris# 1 " Chase (!e “sexual” part of a sexual assault is determined ob%ecti$ely& not sub%ecti$ely) FA'/9. C enters "ictims home and touches breasts, and tries to touch "a!ina% 299:. he definition of sexual assault 1:A9&2&>.  he test for the reco!nition of sexual assault does not depend solely on contact ith specific areas of the human anatomy% he test to determine hether the assault is “sexual” is an ob5ecti"e one, "ieed in li!ht of all circumstances  he intent purpose of the person committin! the act, to the extent that this may appear from the e"idence, may also be a factor in considerin! hether the conduct is sexual% &f the moti"e of the accused is sexual !ratification, to the extent that this may appear from the e"idence, it may be a factor in determinin! hether the conduct is sexual  &mplicit in this "ie of sexual assault is the notion that the offence is one re:uirin! a !eneral intent only (i%e% the Cron need only pro"e that the accused intended to touch the complainant $:. 4uilty of sexual assault (c) .ecklessness - 1ec#lessness is a sub5ecti"e state of mind, hereby it is ob5ecti"ely un5ustifiable to ta#e a ris# that the accused personally foresees ill lead to a prohibited conse:uence - 1ec#lessness ill apply here the pro"ision creates a conse:uence, but does not, as a matter of construction, re:uire some more limited #ind of mens rea - See also “ilful blindness” belo 1 " u==an!a and ?urocher

(b) #ub%ecti$e 9ens .ea wit! 5b%ecti$e <eatures - Some criminal offences use standards to define criminal conduct (e%!% “dishonest”$ “sexual” etc% - &t is not sensible to re:uire the accused to ha"e a sub5ecti"e appreciation that the rele"ant criminal standard has been met before a con"iction can follo% %!% /n accused can commit fraud e"en if he does not appreciate that the rele"ant transaction as “dishonest”

(d) =nowledge - he accused must !enerally #no that the conditions of the actus reus exist% %!%, an accused cannot be con"icted of assaultin! a police officer, if she does not #no t he "ictim is a police officer - 4enerally, it is unrealistic to expect the Cron to pro"e hat the accused #nos, so e presume the accused #nos of the rele"ant conditions, T0+SS the accused presents a “mista#e of fact” defence

1 " heroux (!e “dis!onesty” in fraud is determined ob%ecti$ely) FA'/96 /ccused, bein! directin! mind of company, made false representations in order to secure unsecured deposits% Company later became insol"ent, and in"estors lost deposit money% 2 con"icted accused 299:6 Whether the fact that the accused honestly belie"ed that the pro5ect ould be completed ne!ates the mens rea of the offence of fraud% here is no doubt that the appellant deliberately practised a deceitful act, constitutin! the actus reus of the offence of fraud% 1:A9&2&>6  3raud6 he prohibited act is deceit, falsehood, or some other dishonest act% he prohibited conse:uence is depri"in! another of hat is or should be his, hich may, as e ha"e seen, consist in merely placin! anotherGs property at ris#% he mens rea ould then consist in the sub5ecti"e aareness that one as underta#in! a prohibited act (the deceit, falsehood or other dishonest act hich could cause depri"ation in the sense of depri"in! another of property or puttin! that property at ris#% &f this is shon, the crime is complete

(e) Willful >lindness - Willfull blindness is related to, but distinct from, rec#lessness 1 " ?uon! (!e culpability in recklessness is %ustified by consciousness of t!e risk and by proceeding in t!e face of it& w!ile in willful blindness it is %ustified by t!e accused?s fault in deliberately failing to in3uire w!en !e knows t!ere is reason for in3uiry) FA'/9. ?;s friend commits murder, and then stays at ?;s apartment, after indicatin! he as in trouble for murder and had no place to !o% he trial 5ud!e held that the Cron had to pro"e that the appellant #ne that +am as a party to a murder hen the appellant a!reed to hide him from the authorities, and that ilful blindness of that fact ould suffice to establish the necessary culpable mental state% 299:. ?id the trial 5ud!e err in holdin! that the doctrine of ilful blindness as applicable and that the appellant as  ilfully blind as to hether +am had committed murderH 1:A9&2&>.

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Wilful blindness arises here a person ho has become aare of the need for some in:uiry declines to ma#e t he in:uiry because he does not ish to #no the truth%  he culpability in rec<lessness is 5ustified by consciousness of the ris# and by proceedin! in the face of it, hile in  wil%ul blindness it is 5ustified by the accusedGs fault in deliberately failin! to in:uire hen he #nos there is reason for in:uiry  Wilfull blindness ill fulfill a mens rea re:uirement  +iability based on ilful blindness is sub5ecti"e $:. ? as ilfully blind in this case 1 " Oino#uro" (Wilfill blindness is imputed knowledge& and will fulfil t!e mens rea re3uirement& w!ile recklessness is somet!ing less t!an t!at, w!ere an offence re3uires knowledge on t!e part of t!e accused& recklessness is not applicable) FA'/9. O char!ed L possession of stolen property% O, oner of store, recei"ed stolen property, hich he claimed he did not #no as stolen% 299:. Whether O #ne the property as stolen 1:A9&2&>.  When the term “#noin!ly” is used in a criminal statute, the reasonable person standard ill not satisfy the mens rea re:uirement  Wilfull blindnesss ill fulfil the mens rea re:uirement% Wilfull blindness is imputed #noled!e, hile rec#lessness is somethin! less than that% So, here an offence re:uires J0<W+?4 on the part of the accused, it is improper to instruct the 5ury that a findin! of rec#lessness satisfied that re:uirement  hus, rec#lessness cannot satisfy the #noled!e re:uirement on a char!e of possession of stolen property

0

D:'/2?: 3:&9 1:A A& /1: '123:9

- he criminal la has been uncomfortable ith ob5ecti"e fault, but has !radually accepted it for certain types of offences - 3or crimes usin! ob5ecti"e fault as mens rea, penal negligence” (a more restricted form of ne!li!ence is re:uired% - he exception, thou!h, is ith “predicate offences”  i%e% a!!ra"ated forms of offence s that apply hen serious conse:uences result, and include ithin their elements another complete (but lesser offence% 3or predicate offences, it is enou!h if the accused commits the underlyin! ( or predicate offence, and that the a!!ra"ated conse:uences as simply ob5ecti"ely foreseeable 1 " Fartineau (-on$iction for murder cannot rest on anyt!ing less t!an sub%ect foresig!t of deat!) FA'/9. Fartineau and a friend, remblay, set out armed #noin! that they ere !oin! to commit a crime$ Fartineau testified that he thou!ht it ould only be a brea# and enter% remblay shot and #illed to people after robbin! them and their house% 299:. &s the offence of constructi"e murder unconstitutionalH 1:A9&2&>.  lements of crime must exist in accordance L the principles of fundamental 5ustice s 8>K expressly remo"es from the Cron the burden of pro"in! beyond a reasonable doubt that the accused had sub5ecti"e foresi!ht of death% his section stands as an anomaly as re!ards the other murder pro"isions  &t is a principle of fundamental 5ustice that a con"iction for murder cannot rest on anythin! less than proof beyond a reasonable doubt of sub5ecti"e foresi!ht of death

$:. S 8>K (a and (c are in"alid 1 " Crei!hton (+efines unlawful act and criminal negligence manslaug!ter, and up!olds t!e constitutionality of t!e manslaug!ter offence) FA'/9. Fr% Crei!hton as con"icted of manslau!hter, arisin! from the death of Jimberley /nn Fartin, ho died as a result of an in5ection of cocaine !i"en by Fr% Crei!hton% he trial 5ud!e found that the death constituted manslau!hter either on the !round that it as caused by an unlaful act, or on the !round that it as caused by criminal ne!li!ence% 299:. &s the manslau!hter offence unconstitutional bLc it re:uires only foreseeabiltiy of the ris# of bodily harm, and not forseeability of deathH 1:A9&2&>. )ac*ground  Fanslau!hter is a crime of "enerable linea!e% &t co"ers a ide "ariety of circumstances% o re:uirements are constant6 () conduct causing the death o% another personG and (*) %ault short o% intention to <ill#  hat fault may consist either in committin! another unlaful act hich causes the death, or in criminal ne!li!ence% he structure of the offence of manslau!hter depends on a predicate offence of an unlaful act or criminal ne!li!ence, coupled ith a homicide +nlawful act manslaughter  () nlaw%ul act 6 he unlaful act must be (i ob5ecti"ely dangerous (i%e% one that is li#ely to sub5ect another person to dan!er of harm or in5ury and a non-absolute liability offence (R v DeSousa  (this is the actus reus (ii there must be intent to commit this underlyin! act (part of mens rea (iii as ell as objecti;e %orseeability of the ris# of bodily harm that is non-tri"ial (R v DeSousa (parto f mens rea (*) ?id the accused possess the re:uisite capacity to appreciate the ris< floin! from his conductH &f this further :uestion is ansered in the affirmati"e, the necessary moral fault is established and the accused is properly con"icted% &f not, the accused must be ac:uitted% [0<6 'ersonal factors are not rele"ant in this assessment, except on the :uestion of hether the accused possessed the necessary capacity to appreciate the ris#] Criminal negligence manslaughter  () Criminal ne!li!ence manslau!hter re:uires (i an act that exhibits a mar#ed departure from the standards of a reasonable person in all of the circumstances (i%e% the definition of cri"inal negligence in s *H must be satisfied (this is the actus reus /0? (ii objecti;e %orseeability o% the ris< o% non-tri;ial bodily har" (forseeability of death is not re:uired (this is the mens rea (*) ?id the accused possess the re:uisite capacity to appreciate the ris< floin! from his conductH &f this further :uestion is ansered in the affirmati"e, the necessary moral fault is established and the accused is properly con"icted% &f not, the accused must be ac:uitted% 'ersonal factors are not rele"ant, except on the :uestion of hether the accused possessed the necessary capacity to appreciate the ris#% $:. he offence is not unconstitutional% 1 " eatty (+efines t!e elements of t!e dangerous operation of a motor $e!icle offence& s 0'@) FA'/9. he appellant, 2ustin 1onald eatty, as char!ed ith three counts of dan!erous operation of a motor "ehicle causin! death% he tra!ic accident that !a"e rise to these char!es occurred hen Fr% eatty;s pic#-up truc#, for no apparent reason, suddenly crossed the solid centre line into the path of an oncomin! motor "ehicle, #illin! all three occupants%  says “& 5ust lost consciousness”% Ie had been or#in! in sun all day% 1:A9&2&>.

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(i /ctus reus6 he accused as dri"in! dan!erously, in li!ht of all the circumstances, hich is hat is re:uired in s 8A) to satisfy the actus reus% (ii Fens rea6 he mental element in dan!erous operation doesn;t re:uire proof of a positi"e state of mind, such as intent or rec#lessness% /nd, indeed, there is no e"idence here of any deliberate intention to create a dan!er for other users of the hi!hay that could easily pro"ide an aser to this :uestion% Ience, the trial 5ud!e as correct in findin! that the :uestion of mens rea in this case turns on hether Fr% eatty;s manner of dri"in!, "ieed on an ob5ecti"e basis, constitutes a mar#ed departure from the norm% y contrast, it is my respectful "ie that the Court of /ppeal leaped too :uic#ly to the conclusion that the re:uisite mens rea could be made out from the simple fact of the accident occurrin!, lea"in! no room for any assessment of Fr% eatty;s conduct alon! the continuum of ne!li!ence% 1 " ?eSousa (+efines t!e elements of t!e offence of unlawfully causing bodily !arm& s [email protected]) FA'/9. he appellant as in"ol"ed in a fi!ht in hich a bystander as in5ured hen a bottle alle!edly thron by the appellant bro#e a!ainst a all and a !lass fra!ment from the bottle struc# the bystander 299:. ?oes s 8M) "iolate s 9 of the CharterH here are to underlyin! issues6 (i the mental element re:uired by s% 8M) and hether this element is constitutionally sufficient and (ii hether s% 9 of the Charter  re:uires as a constitutional minimum, foresi!ht of each or any of the conse:uences that comprise the actus reus of an offence% 1:A9&2&>.  o be brou!ht ithin the ambit of s 8M), the accused must ha"e committed an (i underlying unlaw%ul o%%ence that is objecti;ely dangerous (i%e% one that is li#ely to sub5ect another person to dan!er of harm or in5ury and a non-absolute liability offence, and (ii intent to commit the underlyin! offence (part of mens rea (ii ha"e caused (i%e% for liability to be imposed for unlafully causin! bodily harm, the harm caused must ha"e sufficient causal connection to the underlyin! offence committed) (part of actus reus   (iii bodily har" to another person as a result of committin! that underlyin! offence hich is neither tri"ial nor transitory (part of actus reus (i" hile ha"in! objecti;e %oresight o% bodily har" (part of mens rea  0ote this bodily harm ill in most cases in"ol"e an act of "iolence done deliberately to another person%

40

:I/:&92&9 F '1232&A 2AD22/

(a) Aiding and Abetting - Can be con"icted for aidin! (physically supportin! or abettin! (encoura!in! the accused to commit the offence - Can be con"icted for not only the offences they intended to aid or abet, but also another offence, pro"ided that it is a foreseeable outcome of the offence they did intend to aid or abet - See '' s * 1 " ?unlop and Syl"ester (9ere presence& and passi$e ac3uiescence& at t!e scene of a crime is not sufficient to  ground culpability by way of s 07(b) and (c)  aiding and abetting8 #ome A-;VE steps must be taken8 5WEVE.& presence at t!e commission of an offence -A* be e$idence of aiding or abetting if accompanied by ot!er factors suc! as prior knowledge of t!e principal offenderBs intention to commit t!e offence) FA'/9. Complainant raped by 7. men, hile she as bein! held by 8% She pointed to ?unlop and Syl"ester as to of the men ho raped her% he 5ud!e chose to instruct the 5ury upon part ies to an offence under s% 87 of the Code' and it is in this respect that the con"ictions are challen!ed% 1:A9&2&>. The law 

Fere presence, and passi"e ac:uiescence, at the scene of a crime is not sufficient to !round culpability% Some acti"e steps must be ta#en by ord or action% 'resence at the commission of an offence can be e"idence of aidin! and abettin! if accompanied by other factors, such as prior #noled!e of the principal offenderGs intention to commit the offence or attendance for the purpose of encoura!ement  / person cannot properly be con"icted of aidin! or abettin! in the commission of acts hich he does not #no may be or are intended% <ne must be able to infer that the accused had prior #noled!e that an offence of the type committed  as planned, ie that their presence as ith #noled!e of the intended rape%  "pplication  &n this case there as no e"idence that hile the crime as bein! committed either of the accused rendered aid, assistance, or encoura!ement to the rape of the complainant here as no e"idence of any positi"e act or omission to facilitate the unlaful purpose% <ne could infer that the to accused #ne that a party as to be held, and that their presence at the dump as not accidental or in the nature of casual passers-by, but that as not sufficient % / person cannot properly be con"icted of aidin! and abettin! in the commission of acts hich he does not #no may be or are intended  he e"idence failed to disclose any facts as distin!uished from surmise or suspicion, upon hich a 5ury could conclude beyond reasonable doubt that the accused had assumed a role hich ould :ualify them as aiders and abettors under s% 87(7 of the Code $:. he 2 erred in instructin! the 5ury about s 87 

1 " +o!an (AnalyCes t!e constitutionality of s 07(0)  common purpose liability  in relation to t!e offence of attempted murder) FA'/9. + and a fe others ere char!ed ith a number of offences arisin! from a serious of robberies% his appeal pertains only to the char!es a!ainst the to respondents for attempted murder hich resulted from an incident durin! one of the robberies 299:. he only issue before this Court is the constitutionality of s% 87(8 of the Criminal Code % 1:A9&2&>.  he appellant is challen!in! the constitutionality of s% 87(8 in !eneral and, in particular, of the ob5ecti"e component of the section (@ou!ht to ha"e #no[email protected]% he Court of /ppeal, :uite correctly, did not declare the ob5ecti"e component of s% 87(8 inoperati"e for all offences% hey dealt specifically ith the operation of the pro"ision in relation to the offence of attempted murder and the possibility that a party to an attempted murder could be con"icted upon proof of ob5ecti"e intent, hereas a con"iction of the principal ould re:uire proof of sub5ecti"e intent  With respect, & cannot construe ,aillancourt  as sayin! that, as a !eneral proposition, 'arliament cannot e"er enact pro"isions re:uirin! different le"els of !uilt for principal offenders and parties  /hat said, howe;er, there are a %ew o%%ences with respect to which the operation o% the objecti;e co"ponent o% s# *(*) will restrict the rights o% an accused under s# 7% &f an offence is one of the fe for hich s% 9 re:uires a minimum de!ree of mens rea, ,aillancourt  does preclude 'arliament from pro"idin! for the con"iction of a party to that offence on the basis of a de!ree of  mens rea belo the constitutionally re:uired minimum & ould declare inoperati"e the ords @or ou!ht to ha"e #no[email protected] hen considerin! under s% 87(8 hether a person is a party to any offence here it is a constitutional re:uirement for a con"iction that foresi!ht of the conse:uences be sub5ecti"e,  hich is the case for attempted murder% <nce these ords are deleted, the remainin! section re:uires, in the context of attempted murder, that the party to the common "enture #no that it is probable that his accomplice ould do somethin! ith the intent to #ill in carryin! out the common purpose%

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(b) 'ounselling - &f the accused counsels another person to commit an offence, and the offence is committed, then s * operates% &f the offence isn;t committed, then s 464 operates 1 " Iamilton (+efines t!e elements for counselling an offence) FA'/9. I offered for sale throu!h the &nternet access to a credit card number !enerator% Fr% Iamilton as char!ed under s% AMA(a of the Criminal Code , 1%S%C% 7).B, c% C-AM, in four separate counts, ith counsellin! the commission of indictable offences that ere not in fact committed% he trial 5ud!e as not satisfied that Fr% Iamilton had acted ith the re:uisite mens rea, or culpable intent, and she therefore ac:uitted him on all four counts 299:. Whether the 2 erred as to the issue of mens rea 1:A9&2&>.  he actus reus for counsellin! is the acti"e inducement of the commission of a criminal offence%  he mens rea consists of nothin! less than an accompanyin! intent or conscious disre!ard of the substantial and un5ustified ris# inherent in the counsellin!6 that is, it must be shon that the accused either intended that the offence counselled be committed, or #noin!ly counselled the commission of the offence hile aare of the un5ustified ris# that the offence counselled as in fact li#ely to be committed as a result of the accused;s conduct% he trial 5ud!e ac:uitted the accused on the count of counsellin! fraud because his moti"ation as mercenary as opposed to male"olent% he trial 5ud!e;s conclusion that the accused did not intend to induce the recipients to use those numbers is incompatible ith the plain meanin! of the “teaser” e-mail and ith her other findin!s of fact, includin! her findin! that the accused understood that the use of the !enerated numbers as ille!al% Ier assertion that “[h]is moti"ation as monetary” immediately after her reference to these facts demonstrates an error of la as to the mens rea for counsellin! the commission of a crime, and arrants a ne trial% $:. he trial 5ud!e confounded “moti"e” and “intent”, and I should be found !uilty of the offence (c) 'orporate and Association iability - 9ee ss **#, **#* - Corporations are liable for the acts of their a!ents for strict and absolute liability offences% Since these #inds of offences turn on the actus reus alone, there is no need to use any legal de;ises to ascribe "ens rea to the corporation and so the Criminal Code corporate liability pro"isions do 0< apply to re!ulatory offences% - 3or true crimes, the Criminal Code sets out standards for corporate and association liability Elements of 5ffences

- 9ection **# (applies to ob5ecti"e fault or ne!li!ence offences here an association is char!ed  only loo# at conduct of corporation6 “/n or!ani=ation is party to an offence if”6 (a <ne or more of the corporations representati"es alone or to!ether do, or fail to do, anythin! that amounts to an offence of ne!li!ence on their part, WI&+ actin! ithin the scope of their authority$ /0? (b Conduct of one or more senior officers of the or!ani=ation responsible for the aspect of the or!ani=ation;s acti"ities that is rele"ant to the offence% IisLher or their conduct must amount to am mar#ed departure from hat ould reasonably be expected to pre"ent a representati"e from bein! a party to the offence% - Section 88%8 (applies to offences other than ne!li!ence-based offences6 “/n or!ani=ation is a party to an offence if, ith the &00 at least in part to benefit the or!ani=ation, one of its senior officers”6

(a &s a party to the offence (i%e% the non-ne!li!ence offence, hile actin! ithin the scope of their authority$ <1 (b ?irects the or# of other representati"es of the or!ani=ation so that they do or fail to do thin!s that are the external circumstances of the offence char!ed <1 (c 3ails to ta#e all reasonable measures to stop a representati"e of the or!ani=ation, hom the senior officer #nos is (or is about to be a party to the offence, from bein! a party  [0ote6 for s 88%7, in addition to any mental element that must accompany the external circumstances, the acts or omissions of the senior officer, the Cron must pro"e that a senior officer had the ulterior intent, at least in part, to benefit the or!ani=ation by the prohibited conduct] - Section 88%8 applies to sub5ecti"e mens rea offences char!ed a!ainst an association - See ?3&0&&<0S of “or!ani=ation”, “representati"e” and “senior officer”6 s * !0 A//:3=/9 - See s 8A for definition of “attempts” - See ss AM> and AMB 1 " /ncio (<or one to be guilty of an attempt& t!ey must intend to commit t!e completed offence& and to !a$e some act toward t!e accomplis!ment of t!at ob%ecti$e, e8g8 for murder& t!ere must be t!e intent to kill) FA'/9. /ccused bro#e into estran!ed ife;s apt% L a loaded !un$ dude thros chair at him and !un !oes off$ con"icted at trial of attempted murder bLc 5ud!e found that he bro#e in L intent to use eapon to force his ife to lea"e$ C%/% o"erturned con"iction and ordered a ne tr ial 299:. What is the intentLF1 re:;d for an attempt to commit murderH 1:A9&2&>.  As with any cri"e, to be con;icted o% an atte"pt, the 'rown "ust pro;e mens rea, that is, the intent to co""it the o%%ence in uestion, and the actus reus, that is, so"e step towards the co""ission o% the o%%ence atte"pted beyond "ere acts o% preparation  Since the mischief contained in an attempt depends upon the nature of the crime intended, the criminality lies much more in the intention than in the acts done  Iere, the completed offence of murder in"ol"es a #illin!% he intention to commit the complete offence of murder must therefore include an intention to #ill   & find it impossible to conclude that a person may intend to commit the unintentional #illin!s described in ss% 878 and 87> of the Code & am then of the "ie t hat the mens rea for an attempted murder cannot be less than the specific intent to #ill%  F1 for attempted murder is the specific intent to #ill% /n attempt to murder, aimed at the completion of the full crime of murder, should not ha"e an intent lesser than that of murder  Fental state fallin! short of that le"el may ell lead to con"iction for other offences, for example, one or other of the "arious a!!ra"ated assaults, but not to a con"iction for an attempt at murder% $:. 0e trial ordered 1 " ?eustch (#ets out !ow to distinguis! between attempts and mere preparation& w!ic! does not constitute an attempt  focussing on t!e actus reus of an attempt)

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FA'/9. /ccused char!ed ith attemptin! to procure female persons to ha"e illicit sexual intercourse ith another person% he accused posted ads for a secretaryLsales assistant% hree omen and a policeoman testified that the accused indicated that the 5ob re:uired sexual intercourse ith clients to conclude contracts% 4enerous salary UUU as promised% rial 5ud!e ac:uitted on the basis that his acts did not !o far enou!h because he had not offered the 5ob to the  oman% 299:. Io to distin!uish beteen an attempt and mere preparation 1:A9&2&>.  here is no clear line beteen attempt and preparation%  he difference beteen attempt and preparation is :ualitati"e, in"ol"in! the relationship beteen the nature and :uality of the act in :uestion and the nature of the complete offence # e%ine the nature o% the actus reus o% co"pleted o%%ence# *# 'onsider %actors o% proCi"ity (how close was the co"pleted o%%enceJ). /i"e, location, and acts under the control o% the accused# $:. he accused is !uilty of attemptin!% & a!ree ith the Court of /ppeal that if the appellant had the necessary intent to induce or persuade the omen to see# employment that ould re:uire them to ha"e sexual intercourse ith prospecti"e clients then the holdin! out of the lar!e financial reards in the course of the inter"ies, in hich the necessity of ha"in! sexual intercourse ith prospecti"e clients as disclosed, could constitute the actus reus of an attempt to procure. /here would be little else that the appellant would be reuired to do towards the co"pletion o% the o%%ence other than to "a<e the %or"al o%%er o% e"ploy"ent 1 " ?ery (*o suc! offence as “attempting to conspire to do D”) FA'/9. ? con"icted of attemptin! to conspire to commit theft, and of attemptin! to conspire to unlafully possess proceeds% 0e"er before has anyone been con"icted in Canada of an attempt to conspire to commit a substanti"e offence of any sort% here as no e"idence that either accused had ta#en any steps to carry out the proposed theft, and the trial 5ud!e as not persuaded that they had at any point a!reed to steal or possess the li:uor that as the ob5ect of their co"etous musin!s6 (8KK8, 9 C%1% (Mth >8B% &n the absence of a pro"en a!reement, the 5ud!e :uite properly felt bound to ac:uit the accused of the conspiracies char!ed% <n each count, hoe"er, he con"icted both co-accused of attempting to conspire, hich he belie"ed to be an included offence% 299:. Whether there is any le!al basis for concludin! that attempt to conspire to commit an indictable offence is a crime in Canada% $:. 0o such offence

1:>A/1 FF:&':9 - he folloin! are some !eneral points about re!ulatory offences6 - hey can be full mens rea offences (li#e true crimes, but must be a clear indication that mens rea is re:uired - hey are presumed to be strict liability offences (offences that can be committed by simple, non-penal ne!li!ence, ith the accused bearin! the burden of pro"in! an absence of ne!li!ence to a"oid con"iction - Some operate as absolute liability offences, and ill be committed hene"er the rele"ant actus reus is pro"ed - &t is important to be able to distin!uish bL true crimes from re!ulatory offences6 1 " Sault Ste% Farie (+istinguis!es b6w t!e t!ree types of offences: mens rea offences& strict liability and absolute liability offences, also discusses t!e defence of due diligence)

FA'/9. he City of Sault Ste% Farie as char!ed that it did dischar!e, or cause to be dischar!ed, or permitted to be dischar!ed, or deposited materials into Cannon Cree# and 1oot 1i"er, or on the shore or ban# thereof, or in such place alon! the side that mi!ht impair the :uality of the ater in Cannon Cree# and 1oot 1i"er% 299:. Whether the City is !uilty of an offence under s >8(7 of he <ntario Water 1esources Commission /ct 1:A9&2&>. )ac*ground   1e!ulatory offences are not criminal in any real sense but are prohibited in the 'T+&C &01S$ althou!h enforced as penal las throu!h the utili=ation of the machinery of the criminal la, the offences are in substance ci"il in nature% hey relate to such e"eryday matters as traffic infractions, sales of impure food, "iolations of li:uor las, and the li#e% &n this appeal e are concerned ith pollution% The mens rea point   he distinction beteen the true criminal offence and the public elfare offence is one of prime importance% Where the offence is criminal, the Cron "ust establish a mental element, namely, that the accused ho committed the prohibited act did so intentionally or rec#lessly, ith #noled!e of the facts constitutin! the offence, or ith illful blindness toard them% Fere ne!li!ence is excluded%  /bsolute liability, on the other hand, entails con"iction on pr oof merely that the defendant committed the prohibited act, and there is no rele"ant mental element  here ha"e been a line of cases hich adopt a middle !round beteen true crimes (re:uirin! mens rea, and absolute liability offences, in the context of public elfare offences% he middle !round essentially opens up a defence of due dili!ence% ?efence of reasonable care6 in this doctrine it is not up to the prosecution to pro"e ne!li!ence% &nstead, it is open to the defendant to pro"e that all due care has been ta#en% his burden falls upon the defendant as he is the only one ho  ill !enerally ha"e the means of proof /here should be  categories o% o%%ences6 # <ffences in hich mens rea& consistin! of some positi"e state of mind such as intent, #noled!e, or rec#lessness, must be pro"ed by the prosecution either as an inference from the nature of the act committed, or by additional e"idence ('ublic elfare offences ill only fall into this cate!ory if such ords as “ willfull-' with intent' *nowingl-' or intentionall- ” are contained in them$ also, if the offence is a true crime, then there is a presumption of full mens rea *# <ffences in hich there is no necessity for the pr osecution to pro"e the existence of mens rea$ the doin! of the prohibited act prima facie imports the offence, lea"in! it open to the accused to a"oid liability by pro"in! on a o' that he too# all reasonable care% his in"ol"es consideration of hat a reasonable man ould ha"e done in the circumstances% he defence ill be a"ailable if the accused honestly and reasonably belie"ed in a mista#en set of facts hich, if true,  ould render the act or omission innocent, or if he too# all reasonable steps to a"oid the particular e"ent% hese offences may properly be called offences of strict liability (So, here, prosecution must pro"e the act L1L?, and it is open to accused to a"oid liability by pro"in!, on a o' that he too# all reasonable care% =123A FA'2:, public wel%are o%%ences %all into this category# # <ffences of absolute liability here it is not open to the accused to exculpate himself by shoin! that he as free of fault (the principle that punishment should in !eneral not be inflicted on those ithout fault applies% <ffences of absolute liability ould be those in respect of hich the +e!islature had made it clear that !uilt ould follo proof merely of the proscribed act% o determine if an offence is one of absolute liability, consider6 the o"erall re!ulatory pattern adopted by the +e!islature, the sub5ect matter of the le!islation, the importance of the penalty, and the pr ecision of the lan!ua!e used%

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The .ntario ater Resources Commission "ct s 01234  here is no presumption of full mens rea, because (a this is a public elfare offence$ (b it comes from a pro"incial statute  What cate!ory of offence is it thenH he present case concerns the interpretation of to troublesome ords fre:uently found in public elfare statutes6 “cause” and “permit%” hese to ords are troublesome because neither denotes clearly either full mens rea nor absolute liability% he conflict in the abo"e authorities, hoe"er, shos that in themsel"es the ords “cause” and “permit”, fit much better into an offence of strict liability than either full mens rea or absolute liability% Since s% >8(7 creates a public elfare offence, ithout a clear indication that liability is absolute, and ithout any  ords such as “#noin!ly” or “ilfully” expressly to import mens rea' application of the criteria hich & ha"e outlined abo"e undoubtedly places the offence in the cate!ory of strict liability% herefore, proof of the act prima facie imports the offence, but the accused may a"oid liability by pro"in! that he too# reasonable care% /ctus reus6 he prohibited act ould, in my opinion, be committed by those ho underta#e the collection and disposal of !arba!e, ho are in a position to exercise continued control of this acti"ity and pre"ent the pollution from occurrin!, but fail to do so% he “causin!” aspect centres on the defendant;s acti"e underta#in! of somethin! hich it is in a position to control and hich results in pollution% he “permittin!” aspect of the offence centres on the defendant;s passi"e lac# of interference or, in other ords, its failure to pre"ent an occurrence hich it ou!ht to ha"e foreseen% he close interea"in! of the meanin!s of these terms emphasi=es a!ain that s% >8(7 deals ith only one !eneric offence% ?efence of reasonable care

1 " Chapin (Example of classifying an offence into one of t!e t!ree categories) FA'/9. ?uc# hunter, char!ed under Fi!ratory irds 1e!ulations% Tnlaful to hunt for mi!ratory birds Lin! one :uarter mile of a place here baitL!rain has been deposited% &t as a indy day% When she al#ed o"er the boards, in hip  aders and carryin! a !un, her sole concern as to a"oid fallin! into the ater% 299:. What cate!ory of offence is the folloin!6 “7A% (7 Sub5ect to subsection (8, no person shall hunt for mi!ratory !ame birds ithin one-:uarter mile of any place here bait has been deposited”H 0ote6 Section 78(7 pro"ides6 78% (7 "ery person ho "iolates this /ct or any re!ulation is, for each offence, liable upon summary con"iction to a fine of not more than three hundred dollars and not less than ten dollars, or to imprisonment for a term not exceedin! six months, or to both fine and imprisonment 1:A9&2&>. 234 hat categor- of offence is it 2re$ Sault Ste Marie45  &t is 0< a “mens rea” offence6 <ne ould be hard pressed to characteri=e the offence created by s% 7A(7 of the Migrator- )irds Regulations as a “crime in the true sense% Oiolation is punishable upon summary con"iction and not indictment% <ne must note the absence of the usual si!nals connotin! mens rea such as “ilfully” or “ith intent”% he Migrator- )irds Convention "ct is a re!ulatory statute enacted by the 'arliament of Canada for the !eneral  elfare of the Canadian public% S 7A(7 of the Migrator- )irds Regulations creates a public elfare offence hich is not criminal in the true sense and it is therefore not sub5ect to the presumption of full mens rea  &t is 0< an “absolute liability” offence6 he lan!ua!e of the offence is strai!htforard, “0o person shallV”% Det there is not a strict prohibition on huntin!, rather a hunt controlled ithin certain limits as to season, methods, and types and numbers of species ta#en% 0or can one i!nore the controls on shipment and export of !ame, nor the stricter controls in certain prescribed !eo!raphic areas “for the control and mana!ement of such area”% /lso note the S1&<T&S '0/+D he best the Cron can do to shift this offence into the cate!ory of absolute liability is to su!!est that the a"ailability of a defence of reasonable care ould considerably ea#en the enforcement of the le!islation% his may be true, but as Weatherston 2%/% obser"ed, the problems that may be encountered in the administration of a statute or r e!ulation are a

"ery unsure !uide to its proper interpretation% ?ifficulty of enforcement is hardly enou!h to dislod!e the offence from the cate!ory of strict liability, particularly hen re!ard is had to the penalties that may ensue from con"iction  &t &S a “strict liability” offence6 ecause it;s a public elfare offence, prima facie falls into this cate!ory% 3urther, it is a classic example of an offence in the second cate!ory delineated in the Sault Ste Marie case% /n accused may absol"e himself on proof that he too# all the care hich a reasonable man mi!ht ha"e been expected to ta#e in all the circumstances or, in other ords, that he as in no ay ne!li!ent% 214 Convicted5  0o 1eference re Section )A(8 of the Fotor Oehicle /ct (C (Absolute liability and imprisonment cannot be combined) 299:. &s the rele"ant section of the Fotor Oehicle /ct in contra"ention of s 9 of CharterH 1:A9&2&>  he ords “principles of fundamental 5ustice” do not refer to procedure only% he proper approach to the definition of the ri!hts and freedoms !uaranteed by the Charter is a purposi"e one%  he principles of fundamental 5ustice are to be found in the basic tenets of our le!al system% he term @principles of fundamental [email protected] is not a ri!ht, but a :ualifier of the ri!ht not to be depri"ed of life, liberty and security of the person$ its function is to set the parameters of that ri!ht%  Sections . to 7A address specific depri"ations of the @r [email protected] to life, liberty and security of the person in breach of the principles of fundamental 5ustice, and as such, "iolations of s% 9% hey are therefore illustrati"e of the meanin!, in criminal or penal la, of @principles of fundamental [email protected]$ they represent principles hich ha"e been reco!ni=ed by the common la, the international con"entions and by the "ery f act of entrenchment in the Charter , as essential elements of a system for the administration of 5ustice hich is founded upon the belief in the di!nity and orth of the human person and the rule of la% Conse:uently, the principles of fundamental 5ustice are to be found in the basic tenets and principles, not only of our 5udicial process, but also of the other components of our le!al system% Whether any !i"en principle may be said to be a principle of fundamental 5ustice ithin the meanin! of s% 9 ill rest upon an analysis of the nature, sources, rationale and essential role of that principle ithin the 5udicial process and in our le!al system, as it e"ol"es  &t has lon! been reco!ni=ed that the innocent not be punished%  / la enactin! an absolute liability offence ill "iolate s% 9 of the Charter  only if and to the extent that it has the potential of depri"in! of life, liberty, or security of the person% <b"iously, imprisonment (includin! probation orders depri"es persons of their liberty% & am therefore of the "ie that the combination of imprisonment and of absolute liability "iolates s% 9 of the Charter  and can only be sal"a!ed if the authorities demonstrate under s% 7 that such a depri"ation of liberty in breach of those principles of fundamental 5ustice is, in a free and democratic society, under the circumstances, a 5ustified reasonable limit to oneGs ri!hts under s% 9%  /n absolute liability, hich ma#es a person liable for an offence hether or not they too# steps not to be at fault, "iolates the principles of fundamental 5ustice% herefore, any possibility of a depri"ation of life, liberty, or security of person from an absolute liability offence offends the Charter% &t is only throu!h reasons of public interest can such offences be sa"ed throu!h section 7 of t he Charter%  he Cron failed to sho that the public interest of riddin! the roads of bad dri"ers could be proportional to the limitin! of peopleGs ri!hts by imprisonin! them $:. he section is unconstitutional 1 " Cancoil hermal (;f a regulatory offence is intended to be one of absolute liability based on an analysis of t!e wording of t!e offence& A*+ if t!at offence !as as a potential punis!ment of imprisonment& t!en a court must interpret t!at offence to be one of strict liability to make it conform to t!e -!arter)

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FA'/9. <ners of a company too# the !uard off a piece of machinery, ostensibly in "iolation of an <ntario statute, and an employee cut his fin!ers don to the first 5oint% / "iolation of the impu!ned /ct entailed a possible pr ison sentence 299:. Should the impu!ned section of the act be treated as an absolute liability offenceH 0ote6 here as a specific exclusion of a statutory due dili!ence defence to the rele"ant offence /0? con"iction of the rele"ant offence can lead to person bein! fined max 8B KKK or imprisoned for 78 months max 1:A9&2&>.  he specific exclusion of a statutory defence for this offence (althou!h pro"ided for other offences in the /ct, su!!ests that the +e!islature had determined that the subsection creates an absolute liability offence  ut if that subsection ere treated as creatin! an absolute liability offence, it ould offend s 9 of the Charter --- &n 1eference re s% )%A(8 of Fotor Oehicle /ct 7).B Can+&& .7 (S%C%C%, (7).B, 8> C%C%C% (>d 8.), 8A ?%+%1% (Ath B>M, [7).B] 8 S%C%1% A.M, the Supreme Court of Canada held that the combination of absolute liability and the potential penalty o% i"prison"ent as a "iolation of s% 9 of the Charter  o a"oid a "iolation of s%9 of the Charter , [the impu!ned pro"ision] must be treated as creatin! a strict liability offence% he defence of due dili!ence as a"ailable to the respondents%

?ue dili!enceH &n Fr% Xtreault;s case, the 5ud!ments of the courts belo confused passi"ity ith dili!ence% he accused did no more than state that he expected to recei"e a reneal notice for his licence and that he had confused the licence expiry date ith the due date for payin! the fees re:uired to #eep the licence "alid% Ie pro"ed no action or attempt to obtain information% he concept of dili!ence is based on the acceptance of a citi=en;s ci"ic duty to ta#e action to find out hat his or her obli!ations are% 'assi"e i!norance is not a "alid defence in criminal la% Conse:uently, the ac:uittals are unfounded in this case% he Funicipal Court should ha"e found the respondent !uilty as char!ed and imposed the fine prescribed by la% $:. Con"iction stands

+e"is (City " ereault (;llustration of due diligence defence failing) FA'/9. 1espondent con"icted of motor "ehicle related offences under the Ii!hay Safety Code (namely ha"in! put a motor "ehicle into operation Lout ha"in! paid re!istration fees% he postal ser"ice did not deli"er the notice of re!istration reneal, hich it returned to the S// on 3ebruary 7A, 8KK8% &n /pril 8KK8, the police stopped the "ehicle and obser"ed that its re!istration had expired due to a failure to pay the fees for the year in pro!ress and had not been reneed% / complaint as then brou!ht a!ainst the company, and it is in issue here% 299:. What type of offence is thisH Should the con"iction standH 1:A9&2&>. he offences ith hich the respondents are char!ed belon! to a "ast cate!ory of offences #non as re!ulatory offences Classifyin! the offence in one of the three cate!ories no reco!ni=ed in the case la thus becomes a :uestion of statutory interpretation  ?ic#son 2% noted that re!ulatory or public elfare offences usually fall into the cate!ory of strict liability offences rather than that of mens rea offences% /s a !eneral rule, in accordance ith the common la rule that criminal liability ordinarily presupposes the existence of fault, they are presumed to belon! to the intermediate cate!ory (strict liability  /bsolute liability offences still exist, but they ha"e become an exception re:uirin! clear proof of le!islati"e intent$ his intent can be deduced from "arious factors, the most important of hich ould appear to be the ordin! of the statute itself6 “he o"erall re!ulatory pattern adopted by the +e!islature, the sub5ect matter of the le!islation, the importance of the penalty, and the precision of the lan!ua!e used ill be primary considerations % % % %”  0< a mens rea offence6 0othin! in the ords of this pro"ision indicates an intention to create a mens rea offence or, con"ersely, to impose absolute liability so as to exclude a due dili!ence defence% he pro"ision in no ay places the burden of pro"in! mens rea on the prosecution% 0or does it include any expression of the le!islature;s intent to create an absolute liability offence% 3urthermore, such an intent cannot be inferred from the scheme of this pro"ision, hich see#s to ensure that the re:uirements of the re!ulation of hi!hay safety are met by monitorin! dri"ers; licences ithout it bein! necessary to depri"e an accused of a due dili!ence defence%  / strict liability scheme responds ade:uately to the concern to ensure that "ehicle operators are aare of their le!al obli!ations and, in particular, of their duty to do hat is necessary to ensure that their licences remain "alid and to dri"e only hile they are "alid% he only issue in dispute thus consists in determinin! hether the defence of the accused is consistent ith the concept of due dili!ence%

() &s the offence a /1: '123: or a =D2' 5:FA1: FF:&':H (a &f it;s a true crime , then there;s a presumption that it;s a full mens rea offence, and, to rebut the presumption, you ould ha"e to establish hy it should not be a mens rea offence (by analysin! the lan!ua!e of the offence6

KK 1egulatory %%ence Fra"ewor< Answer KK 9/:= . 5hat category o% o%%ence is thisJ - Classifyin! the offence into one of the > types identified in . $ #ault #te 9arie is a matter of statutory interpretation6

(i &f committin! the offence is punishable upon summary con"iction and not indictment, this is su!!esti"e of a re!ulatory offence, and not a true crime (R v Chapin  (ii if the offence comes from a pro"incial statute, this leans toard it bein! a re!ulatory offence and not a true crime ( R v Sault Ste Marie4 ] (b &f it;s a pu!lic welfare offence (hich, on the exam, it is li#ely to be, then there is a presumption that the offence is a strict liability offence [0ote6 such offences relate to such e"eryday matters as traffic infractions, sales of impure food, "iolations of li:uor las, and the li#e] -- <n exam, it ill li#ely be presumed to be a public elfare offence, and prima facie a strict liability offence% ut you alays !o throu!h each cate!ory and analyse hether the offence belon!s in it6 (*) &s it a 3:&9 1:A offenceH +oo# for the ords li#e “ilfully, #noin!ly, ith intent, intentionally” etc% ut ords li#e “cause” or “permit” do not indicate a mens rea offence (R v Sault Ste Marie % &f not, consider the next :uestion () &s it a 9/12'/ 2AD22/ FF:&': (R v Sault Ste Marie % +oo# at the ordin! of the statute, its purpose, and see if the public interest is the focus here$ if it is, then the strict liability presumption ill arise% () &s it a AD9/: 2AD22/ offenceH Consider the o"erall re!ulatory pattern adopted by the +e!islature, the sub5ect matter of the le!islation, the importance of the penalty, and the precision of the lan!ua!e used% here must be C+/1 proof of le!islati"e intent for it to be an absolute liability offence%  %!% in R v Chapin , loo# at hether there is a S1&C prohibition of the rele"ant act  in that case, ther e ere certain limits placed on huntin!, but it as not an all or nothin! prohibition, so that pointed toards it not bein! an absolute offence  %!% in R v Chapin , there as a serious penalty, hich pointed toards it not bein! an absolute liability offence

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 0ote6

&f a re!ulatory offence is intended by 'arliamentL+e!islature to be one of absolute liability, and that offence has as a potential punishment imprisonment, then a court must interpret the offence to be one of strict liability to ma#e it conform to the Charter ( R v Cancoil Thermal  9/:= *. 9hould the accused be con$icted o% the o%%enceJ () &f the offence is one of6 a% Strict lia!ilit- 6 hen the proof of the act prima facie imports the offence, but the accused may a"oid liability by pro"in! that he too# all reasonable care (i%e% the defence of due dili!ence% hat is, the prosecution must pro"e the act L1L?, and the accused can attempt t o pro"e the due dili!ence defence on a o'% [/''+D I 3/CS < ?1F&0 &3 Q &S C<0O&C?]

0

3:&/A 291:1

- "eryone in criminal la is presumed to be sane, and must satisfy the re:uirements in s 7M to pro"e otherise - Section 7M modifies common la defence of insanity6 &o person is cri"inally responsible %or an act co""itted or an o"ission "ade. (i) 5hile su%%ering %ro" a 3:&/A 291:1G A& :2/$:1 (ii) t he "ental disorder rendered the person 2&'A=AD: F A==1:'2A/2&> /$: &A/1: 1 LA2/ o% the act or o"ission 1 (iii) the "ental disorder rendered the person 2&'A=AD: F M&52&> /$A/ /$: A'/ 5A9 51&>#B

 'assi"ity cannot amount to due dili!ence ( &evis v Tereault 

b% Mens rea6 hen the prosecution must pro"e the prohibited act and the rele"ant mental state L1L?% [/''+D I 3/CS < ?1F&0 &3 Q &S C<0O&C?] c%  "!solute lia!ilit- 6 hen proof of the act imports the offence, and there is no defence of due dili!ence% [/''+D I 3/CS < ?1F&0 &3 Q &S C<0O&C?]

&ote. ry and apply the cases abo"e as much as possible, and sho command of the rele"ant la in this area]

:F:&':9

- /o establish this de%ence6 () !e accused must establis! t!at !e !as a “mental disorder”& defined as a “disease of mind”: s 0 o determine if t!e accused !as a disease of mind& apply rele$ant case law ]6 1 " Cooper ("ro$ides a definition of “mental disorder”, start wit! t!is case& but t!en mo$e on to "arks below& w!ic! expands t!e definition) “Mental disorder ”6  Court be!ins by citin! se"eral case authoritiesLcommission reports$ e%!% &n the Report of the Ro-al Commission on Capital Punishment 2Eng4 (7)A)-7)B>, one finds a useful contribution to the discussion of hat is meant by the phrases “mental disease” and “disease of the mind”% he 1eport reads at p% 9>6 V3or us, therefore, mental disease is only one part of mental disorders of all #inds, and broadly corresponds to hat are often called ma5or diseases of the mind, or psychoses$ althou!h it may also arise in cases, such as those of epilepsy and cerebral tumour, hich are not ordinarily re!arded by doctors as psychotic% /mon! the psychoses are the conditions #non as schi=ophrenia, manic-depressi"e psychoses, and or!anic disease of the brain% <ther conditions, not included under this term, are the minor forms of mental disorderYthe neurotic reactions, such as neurasthenia, anxiety states and hysteriaYand the disorders of de"elopment of the personalityYpsychopathic personality% We are aare that this classification ill not be unconditionally endorsed by all psychiatrists, and that some ould prefer to include under the term “disease of the mind” e"en the minor abnormalities e ha"e referred to% We belie"e, hoe"er, that the nature of the distinction e ha"e dran ill be clear to them, and ill be acceptable to them as the basis for a discussion of criminal responsibility  ut that classification has been critici=ed as arbitrary, hich shos that “disease of mind” can mean different thin!s to different psychiatrists% o some, for example, it may include such thin!s as neurasthenia, anxiety states, hysteria, and psychopathic personality% <thers ould exclude such disorders from the definition%  here is support for a “ broad and liberal le!al construction of the ords disease of mind” 2n su""ary, one "ight say that in a legal sense, disease o% the "indB e"braces any illness, disorder, or abnor"al condition which i"pairs the hu"an "ind and its %unctioning, :I'2&> howe;er, sel%-i nduced states caused by alcohol or drugs, A9 5: A9 transitory "ental states such as hysteria or concussion%” &n

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order to support a defence of mental disorder, of course, the disease "ust be o% such intensity that it renders the accused incapable o% appreciating the nature and uality o% the ;iolent act or o% <nowing that is it wrong#B  Tnderlyin! all of this discussion is the concept of responsibility and the notion that an accused is not le!ally responsible for acts resultin! from mental disease or mental defect%  /lthou!h the term expresses a le!al concept and a findin! is made accordin! to a le!al test, psychiatric #noled!e is directly lin#ed to the le!al conclusion, for medical testimony forms part of the e"idence on hich the trier of fact must reach its decision  <nce the e"idence is sufficient to indicate that an accused suffers from a condition hich could in la constitute disease of the mind, the 5ud!e must lea"e it open to the 5ury to find, as a matter of fact, hether the accused had disease of the mind at the time t he criminal act as committed 1 " 'ar#s (9odifies -ooperBs definition of “mental disorder”)  “?isease” of the mind” is a le!al term and not a medical term, but contains a substantial medical component as ell as a le!al or policy component%  he medical component of the term, !ener ally, is the medical opinion as to ho the mental condition in :uestion is "ieed or characteri=ed medically  he le!al or policy component relates to6 (a the scope of the exemption from criminal responsibility to be affored by mental disorder$ and (b the protection of the public by the control and treatment of persons ho ha"e caused serious harms hile in a mentally disordered state  ecause disease of mind is a le!al concept, a 2 cannot rely blindly on medical opinion%  o distinct approaches to the policy component of insanity ha"e emer!ed in automatism cases, the @continuin! [email protected] and @internal [email protected] theories6 (7 he first theory holds that any condition li#ely to present recurrin! dan!er should be treated as insanity (8 he second holds that a condition stemmin! from the internal ma#e-up of the accused, rather than external factors, should lead to a findin! of insanity  he purpose of the insanity defence has alays been the protection of the public a!ainst recurrent dan!er 1 " J5eldson ("syc!opat!y or sociopat!y is not included wit!in t!e definition of mental disorder) FA'/9. he accused as out on parole for a pre"ious murder% &n "iolation of his parole, he too# a plane from C to Sas#atchean% Ie too# a cab into 1e!ina% he dri"er as a oman% +ater he called the cab company a!ain and as#ed for the same dri"er% <n this second call, he as#ed the dri"er to stop the car after hich he raped her and #illed her ith a roc#% J5eldsen claimed to be psychotic and incapable of emotionally appreciatin! the si!nificance of his act% here as o"erhelmin! e"idence that the accused as a psychopath 299:. Can psychopathy be exempted by s 7M, ithin the ords “incapable of appreciatin! the nature and :uality of an act or omission”H 1:A9&2&>  /ppreciation of the nature and :uality of the act does not import a re:uirement that the act be accompanied by appropriate feelin! about the effect of the act on other peopleV” Fc&ntyre 2%Y“V& do not thin# the exemption pro"ided by [s% 7M(7] extends to one ho has the necessary  understandin! of the nature, character and conse:uences of the act, but merely lac#s appropriate feelin!s for the "ictim or lac#s feelin!s of remorse or !uilt for hat he has done, e"en thou!h such lac# of feelin! stems from Pdisease of the mind;%” Appreciation o% the nature and uality o% the act does not i"port a reuire"ent that the act be acco"panied by appropriate %eeling about the e%%ect o% the act on other people# V 0o doubt the absence of such feelin!s is a common characteristic of many persons ho en!a!e in repeated and serious criminal conduct%B

$:. 'sychopathy cannot be exempted

(*) !en& t!e accused must establis! t!at t!e disease of mind affected !im6!er in one or bot! of t!e two ways described in s 71: 1 " Cooper ("ro$ides a definition of “appreciating” in t!e context of w!et!er an accused can appreciate t!e nature and 3uality of t!eir acts) 6"ppreciating7    Fere M&5:>: of nature and :ualify of an act does not e:ual A==1:'2A/2&#  e#g#. a <id running on a wet sur%ace <nowsB that he is running, but does not understand the ris<#  “o “#no” the nature and :uality of an act may mean merely to be aare of the physical act, hile to “appreciate” may in"ol"e estimation and understandin! of the conse:uences of that act% &n the case of the appellant, as an example, in usin! his hands to cho#e the deceased, he may ell ha"e #non the nature and :uality of that physical act of cho#in!% &t is entirely different to su!!est, hoe"er, that in performin! the physical act of cho#in!, he as able to appreciate its nature and :uality in the sense of bein! aare that it could lead to or result in her death% &n the opinion of the medical expert ho testified at the trial, the appellant could ha"e been capable of intendin! bodily harm and of cho#in! the !irl, but not of ha"in! intended her death”  he Fc1uer 1eport est, hich ?ic#son adopts6 “5as the accused person A/ /$: /23: o% the o%%enceN by reason o% disease o% the "ind, unable %ully to appreciate not only the nature o% the act but the &A/1A '&9:L:&':9 that would %low %ro" itJB /he legally rele;ant ti"e is the ti"e when the act was co""itted &n the case of the appellant, as an example, in usin! his hands to cho#e the deceased, he may ell ha"e #non the nature and :uality of that physical act of cho#in!% &t is entirely different to su!!est, hoe"er, that in performin! the physical act of cho#in!, he as able to appreciate its nature and :uality in the sense of bein! aare that it could lead to or result in her death% 1% "% <ommen (+efines p!rase “knowing t!e act was wrong”) FA'/96 <ommen suffered from a mental disorder describes as a psychosis of a paranoid delusion type, and shot a  omen hom he thou!ht as conspirin! a!ainst him% Circumstances, such as the presence of a #nife, and the !oin! off of bu==ers, helped to establish an air of reality to <ommen;s testimony of suspectin! a conspiracy% rial 5ud!e did not !rant a defence of mental disorder because the accused #ne that the society ould thin# that his act as ron!% 299:. Whether this delusion exempted Fr% <ommen from criminal responsibility under s% 7M(7 of the Criminal Code  on the !round that he lac#ed the capacity at the rele"ant time to #no the difference beteen ri!ht and ron! 1:A9&2&>. What is meant by the phrase @#noin! that [the act] as [email protected] in s% 7M(7H ?oes it refer only to abstract #noled!e that the act of #illin! ould be "ieed as ron! by societyH <r does it extend to the inability to rationally apply #noled!e of ri!ht and ron! and hence to conclude that the act in :uestion is one hich one ou!ht not to doH  /he accused "ust possess the intellectual ability to <now right %ro" wrong in an abstract sense% Dut he or she "ust also possess the ability to apply that <nowledge in a rational way to the alleged cri"inal act#  /he cruC o% the inuiry is whether the accused lac<s the capacity to rationally decide whether the act is right or  wrong and hence to "a<e a rational choice about whether to do it or not o /est. id the accused lac< the capacity to rationally decide whether the act is right or  wrong and hence to "a<e a rational choice about whether to do it or notJB (8+)

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he accused in the case at bar accepted societyGs "ies on ri!ht and ron!% he su!!estion is that, acceptin! those "ies, he as unable because of his delusion to percei"e that his act of #illin! as ron! in the particular circumstances of the case% $:. 0e trial ordered 

*0

?&/A1 A'/9 &:>A/2?2&> B /$: A'/9 1:9 A& A/3A/293

- he accused doesn;t satisfy the actus reus re:uirement unless his act is illed% / sophisticated application of the "oluntariness concept as employed in 1 " Saby% 1 " Saby (An ot!erwise criminal act cannot be said to be $oluntary unless t!e person is gi$en reasonable time to a$oid committing t!e act) FA'/9. he appellant faced to sets of char!es% Ie as char!ed ith possession of an unre!istered restricted  eapon, possession of prohibited ammunition, possession of a eapon for a purpose dan!erous to the public peace, bein! an occupant of a motor "ehicle #noin! there as present a restricted eapon for hich no occupant held a permit permittin! possession, and possession of a firearm ith serial number defaced% he Cron;s case lar!ely rested on the e"idence of 2ohnson% Ie testified that the !un belon!ed to the appellant% 2ohnson denied any #noled!e of its existence until the to ere in the appellant;s car% Ie sore that as they ere dri"in!, the appellant became alarmed by the attention of the police% he appellant told 2ohnson that he had a !un% he appellant stopped the "ehicle, handed 2ohnson the !un, and instructed him to dispose of it in a bac#yard% 299:. ?id the trial 5ud!e err in his anser to 5ury :uestions relatin! to the occupant of motor "ehicle char!eH 1:A9&2&> he trial 5ud!e erred in failin! to !i"e the 5ury a more complete anser to the :uestions it posed% o establish !uilt on this count, the Cron had t o pro"e the coincidence of the to essential elements of the offence as defined by s% )7(>, namely occupancy o% the ;ehicle and the appellants <nowledge o% the weapon# &t is i"plicit as ell that the Cron had to pro"e that the coincidence o% occupancy and <nowledge was attributable to somethin! amountin! to ;oluntary conduct on the part of the appellant, as "oluntary conduct is a necessary element of criminal liability &f one ac:uires #noled!e of an ille!al eapon hile tra"ellin! in a mo"in! "ehicle, it surely cannot be the la that criminal liability instantly attaches% here must be some period of time, hoe"er short, afforded to the person ho has ac:uired that #noled!e to deal ith the situation% Accordingly, it is "y ;iew that i% the appellant acuired <nowledge o% the weapon while the ;ehicle was in "otion, he would ha;e to be gi;en a reasonable opportunity to either re"o;e hi"sel% or to see that the weapon was re"o;ed %ro" the ;ehicle# &f the appellant only ac:uired #noled!e of the eapon at the point hen 2ohnson as lea"in! the "ehicle, he ould be entitled to an ac:uittal% $:. Con"iction must be set aside - &t is the "oluntariness concept that explains the de%ence o% auto"atis"% 0ote the automatism defence on;t realistically operate in any case here the accused appears conscious of his conduct% &t is reser"ed to those unusual cases here there appears to be some disconnect bL the actions of the accused and his conscious ill - 0on-insane automatism is a full defence - /he accused bears both the persuasi;e and e;idential burden in establishing this de%ence (1 " 3ontaine$ 1 " Stone 1 " 'ar#s (4ook at bot! medical6expert e$idence and legal6policy considerations& namely continuous danger and internal cause t!eories& to determine w!et!er t!e automatism defence can succeed)

FA'/9. &n the early mornin! of Fay 7).9, Jen 'ar#s dro"e to the house of his ifeGs parents% Ie attac#ed both of them  ith a #itchen #nife, #illin! the mother and lea"in! the father seriously in5ured% 3olloin! the attac# 'ar#s ent to the police station and turned himself in 299:. he issue before the Supreme Court as hether the condition of sleepal#in! can be classified as non-insane automatism or should it be classified as @disease of t he [email protected] (ie% mental disorder automatism and arrant a "erdict of @not !uilty for reason of [email protected] or non-insane automatism% his distinction is a matter of la and decided by the 5ud!e 1:A9&2&>. >ackground  nly those %ound to be acting with the reuired ;oluntariness should be con;icted o% a cri"e# Auto"atis", although spo<en as a de%enceB, is conceptually a sub-set o% the ;oluntariness reuire"ent /n in"oluntary act, includin! one committed in an automatistic condition entitles an accused to an un:ualified ac:uittal, unless the automatistic condition stems from a disease of the mind that has rendered the accused insane  "eryone is presumed to be sane until the contrary is pro"ed%  he :uestion of la at issue here, !i"en that the accused laid the proper foundation for the defence of automatism, as  hether sleepal#in! should be classified as non-insane automatism or a disease of the mind, thereby lea"in! only the defence of insanity for the accused “+isease of mind” or automatistic stateF  “?isease” of the mind” is a le!al term and not a medical term, but contains a substantial medical component as ell as a le!al or policy component%  he medical component of the term, !ener ally, is the medical opinion as to ho the mental condition in :uestion is "ieed or characteri=ed medically  he le!al or policy component relates to6 (a the scope of the exemption from criminal responsibility to be affored by mental disorder$ and (b the protection of the public by the control and treatment of persons ho ha"e caused serious harms hile in a mentally disordered state  ecause disease of mind is a le!al concept, a 2 cannot rely blindly on medical opinion%  o distinct approaches to the policy component of insanity ha"e emer!ed in automatism cases, the @continuing [email protected] and @internal [email protected] theories6 (7 he first theory holds that any condition li#ely to present recurrin! dan!er should be treated as insanity (8 he second holds that a condition stemmin! from the internal ma#e-up of the accused, rather than external factors, should lead to a findin! of insanity  he purpose of the insanity defence has alays been the protection of the public a!ainst recurrent dan!er 9leepwal<ing is not a disease of mind (“?<F”, but instead it;s non-insane automatism because it li#ely on;t reoccur  Tse these theories to help classify ?<F or not E are therefore not bound by psych%Lmed% "idence  Fust also consider policy in addition to theories abo"e (flood!ates # 1ele"ant policy issue6 recurrin! dan!er  Application <n the e"idence there is no li#elihood of recurrent "iolent somnambulism% Foreo"er, none of the other policy considerations rele"ant to the distinction beteen insanity and automatism, for example, the flood!ates ar!ument, or that automatism can be fei!ned, is of concern in this case  Iere, on;t be flood!ates6 'ar#s had supported his testimony ith medical e"idence and expert testimony  9o"na"bulis" is a condition that is not well suited %or analysis under the internal cause theory#  <ur system of 5ustice is predicated on the notion that only those ho act "oluntarily should be punished under the criminal la% Iere, no compellin! policy factors preclude a findin! that the accusedGs condition as one of non-insane automatism 

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 Ioe"er, because the medical e"idence in each case impacts at se"eral sta!es of the policy in:uiry and is si!nificant in its

5hether the trigger is the ;icti"

on ri!ht, sleepal#in! in a different case on different e"idence mi!ht be found to be a disease of the mind% 9tep O*. If Step 8 3 satisfied' the trial 9udge determines whether the condition alleged is mental disorder or non:mental disorder automatism 2ie which defence should !e left with the 9ur-4$ 

1 " Stone (4eading case on t!e automatism defence) FA'/9. S and ife had conflicts in relationship% <ne day in car, S;s ife as tellin! him off, sayin! he;s a lousy fuc#  ith a small dic#, and S claimed that her "oice be!an to fade aay and a “hooshin!” sensation came o"er him% he next thin! he remembers is loo#in! don at her body slumped o"er the seat and a #nife in his hand% Ie had stabbed her A9 times% Ie hid her body in his truc#Gs tool chest, left a note for his dau!hter, and too# off to Fexico% 1:A9&2&>6 Ps-chiatric evidence  ?efence psychiatrist testified that the appellant;s account of the facts in this case as consistent ith a dissociati"e episode caused by a series of psycholo!ical blos  Cron psychiatrist testified that, althou!h it is possible, it is extremely unli#ely that t he appellant as in a dissociati"e state hen he #illed his ife% ?r% Furphy;s scepticism as based upon se"eral factors% 3irst, she pointed out that the appellant;s reported decrease in concentration, difficulty folloin! dri"in! directions and memory loss ere common phenomenon hich, thou!h consistent ith dissociation, could easily be attributed to a number of other factors% ?r% Furphy also pointed out that the fren=ied, o"er#ill nature of the attac# as e:ually consistent ith ra!e as ith dissociation% %ature of automatism  o forms of automatism are reco!ni=ed at la6 insane automatism and non-insane automatism% &n"oluntary action  hich does not stem from a disease of the mind !i"es rise to a claim of non-insane automatism%  &n"oluntary action hich does not stem from a disease of the mind !i"es rise to a claim of non-insane automatism% &f successful, a claim of non-insane automatism entitles the accused to an ac:uittal%  <n the other hand, in"oluntary action hich is found, at la, to result from a disease of the mind !i"es rise to a claim of insane automatism% &t has lon! been reco!ni=ed that insane automatism is subsumed by the defence of mental disorder, formerly referred to as the defence of insanity% /ccordin!ly, a successful claim of insane automatism ill tri!!er s% 7M of the Code and result in a "erdict of not criminally responsible on account of mental disorder

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/he law presu"es people to act ;oluntarily, so accused "ust rebut presu"ption  of "oluntariness by shoin! that there is e"idence upon hich a properly instructed 5ury could find on the <' that the accused  as automatistic ( <ontaine o;erruled this, air o% reality reuire"ent instead o% D=  3ust be eCpert e;idence to con%ir" its clai" he trial 5ud!e ill also examine all other a"ailable e"idence, if any xamine factors to see hether defence has met the e"idential burden ( <ontaine states jury now eCa"ines these %actors, because this would in;ol;e weighing o% e;idence 6  'orroborating e;idence o% a bystander which re;eals that the accused appeared uncharacteristically glassy-eyed, unresponsi;e and or distant i""ediately be%ore, during or a%ter the alleged in;oluntary act  9e;erity o% triggering sti"ulus  'orroborating e;idence o% bystanders  'orroborating "edical history  5hether there is a "oti;e %or cri"e P ie, / moti"eless act ill !enerally lend plausibility to an accused;s claim of in"oluntariness

(*) 'ontinuing danger %actor. /ny condition hich is li#ely to present a recurrin! dan!er to the public should be treated as a disease of the mind (but may still be ?<F if not continuin! dan!er 'onsider eCpert e;idence 'onsider "edical historyEpsychiatric history o 'onsider li<elihood o% triggers occurring o •





() <ther “policy %actors” here may be cases in hich consideration of the internal cause and continuin! dan!er factors alone does not permit a conclusi"e anser to the disease of the mind :uestion$ e%!%, here the internal cause factor is not helpful because it is impossible to classify the alle!ed cause of the automatism as internal or external, and the continuin! dan!er factor is inconclusi"e because there is no continuin! dan!er of "iolence% 'olicy concerns assist trial 5ud!es in anserin! the fundamental :uestion of mixed la and fact hich is at the centre of the disease of the mind in:uiry6 hether society re:uires protection from the accused and, conse:uently, hether the accused should be sub5ect to e"aluation under the re!ime contained in 'art QQ%7 of the Code% 'olicy considerations include6 •

9tep O$ Is there a proper foundation for a finding of automatism5 o

() 2nternal cause %actor6 &f “internal cause” it is ?<F but may still be ?<F if not internal he nature of the alle!ed tri!!er of the automatism is at the centre of the comparison the trial 5ud!e must underta#e% &n effect, the trial 5ud!e must consider the nature of the tri!!er and determine hether a normal person in the same circumstances mi!ht ha"e reacted to it by enterin! an automatistic state as the accused claims to ha"e done 3or psycholo!ical blo automatism, e"idence of an extremely shoc#in! tri!!er ill be re:uired to establish that a normal person mi!ht ha"e reacted to it by enterin! an automatistic state as the accused claims to ha"e done% &t ill be internal if not “extraordinary e"ent that ould cause a normal o person to dissociate” •

/he #tone /est 

/he assess"ent o% which %or" o% auto"atis" should be le%t with the trier o% %act co"es down to the uestion o% whether or not the condition alleged by the accused is a "ental disorder udge to start %ro" proposition that condition is 3 P does e;idence ta<e it out o% categoryJ





o o o o



1eputation of administration of 5ustice ase of fei!nin! (fa#in! 3lood!ates nsurin! public safety

9tep O$  "vaila!le Defences Following the Determination of the Disease of the Mind ;uestion

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(A) &f the trial 5ud!e concludes that the condition the accused claims to ha"e suffered from is not a disease of the mind, only the defence of non-mental disorder automatism ill be left ith the trier of fact as the trial 5ud!e ill ha"e already found that there is e"idence upon hich a properly instructed 5ury could find that the accused acted in"oluntarily% he :uestion for the trier of fact ill then be hether the defence has pro"en, on a balance of probabilities that the accused acted in"oluntarily% / positi"e anser to this :uestion by the trier of fact ill result in an absolute ac:uittal (>) &f the trial 5ud!e concludes that the alle!ed condition is a disease of the mind, only mental disorder automatism ill be left ith the trier of fact% he case ill then proceed li#e any other s% 7M case, lea"in! for the trier of fact the :uestion of hether the defence has pro"en, on a balance of probabilities, that the accused suffered from a mental disorder hich rendered him or her incapable of appreciatin! the nature and :uality of the act in :uestion

$:. he trial 5ud!e had found that only the non-insane automatism defence applied$ hoe"er, the tri!!erin! effect for Stone as not somethin! that ould reasonably be expected from a normal person% Conse:uently, his defence should fail (note, hoe"er, that the SCC did not doubt that a more se"ere psycholo!ical blo could induce a normal person into an automatistic state '33:&/. (i 1emember that one need not be asleep to achie"e a state of automatism% / person ho is aa#e and sane may suffer a “psycholo!ical blo”$ (ii Fa5ority too# 5udicial notice that it ill only be in rare cases that automatism is not caused by mental disorder% 1 " 3ontaine (Gualifies t!e #tone test in some ways) FA'/9. he accused or#ed as a !ara!e mechanic% Ie recei"ed a call from 1, a dis!runtled former employee, ho said, “We;re comin! to !et you, pi!s%” he accused later heard from a co-or#er that the "ictim had been offered a contract to #ill both of them% 3eelin! that he as bein! atched and folloed, the accused purchased a firearm% <ne e"enin!, the accused thou!ht he sa 1 lur#in! outside his home% he co-or#er came by to chec#, but noticed nothin! unusual% ?urin! the ni!ht, after smo#in! mari5uana, the accused thou!ht he heard someone brea#in! into his home% Ie fired the !un at doors and indos and into alls and concluded that he had shot the intruders% Seein! the "ictim at the !ara!e the next day, the accused shot and #illed him% efore a 5ud!e and 5ury, the accused pleaded mental disorder automatism% Se"eral psychiatrists !a"e e"idence% he 5ud!e refused to put this defence to the 5ury on the !round that the re:uired e"idential foundation had not been laid% he accused as con"icted of first de!ree murder% he Court of /ppeal :uashed the con"iction and ordered a ne trial% 299:. (7 ?id the Court of /ppeal err in la as to the nature of the e"idential burden on a defence of mental disorder automatismH (8 ?id the Court of /ppeal err in la in concludin! that the respondent had dischar!ed that burden in this case and as therefore entitled to ha"e his defence considered Y and decided Y by the 5uryH 1:A9&2&>.  Stone case is a bit o"er=ealous in its attempt to almost ma#e non-mental disorder automatism impossible to ar!ue%  Stone can no lon!er be read that ay in "ie of the Court;s subse:uent decisions, particularly R v "rcuri , and R v Cinous%  &n the case of “re"erse onus” def ences, such as automatism, it is the accused ho bears the persuasi"e and the e"idential burdens% 1e;erse onus de%ences will there%ore go to the jury (be i n play) where there is any e;idence upon which a properly instructed jury, acting judicially, could reasonably decide the issue (air o% reality)  5here "ental disorder auto"atis" is raised as a de%ence, an assertion o% in;oluntariness on the part o% t he accused, supported by the logically probati;e opinion o% a uali%ied eCpert, will nor"ally pro;ideQas it did in this caseQa su%%icient e;identiary %oundation %or putting the de%ence to the jury#  So, for step 7 of the automatism defence analysis, the “air of reality” test must be met  3urther, there is to be no ei!hin! of the factors hich ere su!!ested in Stone (this can be left for the 5ury to do (i%e% may apply those factors outlined in Stone at step 7, at step > by the trier of fact

'33:&/. Compare re"erse onus defences, li#e automatism, ith “ordinary” defences, here the accused has no persuasi"e burden at all% <nce the issue has been “put in play”, the defence ill succeed unless it is dispro"ed by the Cron beyond a reasonable doubt%

KK Final &on-insaneEinsane Auto"atis" e%ence Fra"ewor< KK  (as per "arks, #tone, <ontaine) 9/:= (). 2s there a proper %oundation %or a %inding o% auto"atis"5  he la presumes people to act "oluntarily, so [the accused] must rebut presumption of "oluntariness ( Par*s< Stone  o do so, [the accused] must sho that there is an “air of reality” to the defence, namely that there is some e"idence  with hich a properly instructed 5ury could reasonably, on account of that e"idence, conclude in fa"our of the accused (Fontaine  0ote that the e"idence must be supported from psychiatric expert e"idence ( Stone 9/:= (*). ;f #tep H 7 satisfied& t!e trial %udge determines w!et!er t!e condition alleged is mental disorder or non/mental disorder automatism (i8e8 w!ic! defence s!ould be left wit! t!e %ury):  he assessment of hich form of automatism should be left ith the trier of fact comes don to the :uestion of  hether or not the condition alle!ed by the accused is a mental disorder  2ud!e to start from proposition that condition is disease of mind, and as#s hether e"idence ta#es it out of cate!ory (Stone  2ud!e should consider the folloin!6 (a) 2nternal cause %actor6 •





&f the condition stems from an “internal cause”, this means that the condition is a ?<F (0ote6 if not internal cause, still may be ?<F he nature of the alle!ed tri!!er of the automatism is at the centre of the comparison the trial 5ud!e must underta#e% &n effect, the trial 5ud!e must consider the nature of the tri!!er and determine hether a normal person in the same circumstances mi!ht ha"e reacted to it by enterin! an automatistic state as the accused claims to ha"e done 3or psycholo!ical blo automatism, e"idence of an extremely shoc#in! tri!!er ill be re:uired to establish that a normal person mi!ht ha"e reacted to it by enterin! an automatistic state as the accused claims to ha"e done% &t ill be internal if not “extraordinary e"ent that ould cause a o normal person to dissociate”

(b) 'ontinuing danger %actor. /ny condition hich is li#ely to present a recurrin! dan!er to the public should be treated as a disease of the mind (but may still be ?<F if not continuin! dan!er Consider expert e"idence o Consider medical historyLpsychiatric history •



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o

Consider li#elihood of tri!!ers occurrin! 0

(c) Fay consider other “policy %actors” here may be cases in hich consideration of the internal cause and continuin! dan!er factors alone does not permit a conclusi"e anser to the disease of the mind :uestion$ e%!%, here the internal cause factor is not helpful because it is impossible to classify the alle!ed cause of the automatism as internal or external, and the continuin! dan!er factor is inconclusi"e because there is no continuin! dan!er of "iolence% 'olicy concerns assist trial 5ud!es in anserin! the fundamental :uestion of mixed la and fact hich is at the centre of the disease of the mind in:uiry6  hether society re:uires protection from the accused and, conse:uently,  hether the accused should be sub5ect to e"aluation under the re!ime contained in 'art QQ%7 of the Code% 'olicy considerations include6 1eputation of administration of 5ustice o ase of fei!nin! (fa#in! o 3lood!ates potentiality o nsurin! public safety o •



2&/I2'A/2&

- 1emember that the defence applies to both dru!s and alcohol - he applicability of the intoxication defence, as shon belo, turns on hether an offence is one of >:&:1A or 9=:'2F2' 2&/:&/

4eneral &ntention <ffences

Specific &ntention <ffences

7% assault (s% 8MM

7% assault L intent to resist arrest (s% 89K(b

8% arson causin! bodily harm

8% arson L intent to defraud (s A>B



9/:= (). A;ailable de%ences %or trier o% %act to consider (a) &on-insane auto"atis"J &f the trial 5ud!e concludes that the condition the accused claims to ha"e suffered from is not a disease of the mind, only the defence of non-mental disorder automatism ill be left ith the trier of fact as the trial  5ud!e ill ha"e already found that there is e"idence upon hich a properly instructed 5ury could find that the accused acted in"oluntarily% he :uestion for the trier of fact ill then be hether the defence has pro"en, on a balance of probabilities that the accused acted in"oluntarily% / positi"e anser to this :uestion by the trier of fact ill result in an absolute ac:uittal Iere, 5ury may be instructed to consider thin!s such as6  5hether there is a "oti;e %or cri"e P ie, / moti"eless act ill !enerally lend plausibility to an accused;s claim of in"oluntariness  9e;erity o% triggering sti"ulus  'orroborating e;idence o% bystanders  'orroborating "edical history  5hether the trigger is the ;icti" (b) 2nsane auto"atis"J &f the trial 5ud!e concludes that the alle!ed condition is a disease of the mind, only mental disorder automatism ill be left ith the trier of fact% he case ill then proceed li#e any other s% 7M case, lea"in! for the trier of fact the :uestion of hether the defence has pro"en, on a balance of probabilities, that the accused suffered from a mental disorder hich rendered him or her incapable of appreciatin! the nature and :uality of the act in :uestion / successful defence of mental disorder automatism ill result in a "erdict of not criminally responsible on account of mental disorder as dictated by s% M98%>A of the Code% Tnder s% M98%BA, an accused ho recei"es this :ualified ac:uittal may be dischar!ed absolutely, dischar!ed conditionally or detained in a hospital$

(s% A>> >% brea# enter and commit (s >A.(7(a

>% brea# enter L intent to commit (s >A.(7(b

A% sexual assault (rape (s 897

A% touchin! for a sexual purpose (s 7B7

B% manslau!hter

B% murder

===%ote$ this cate ori#ation assumes voluntar into>ication=== 

M% theft 9% attempted  assault, brea# and enter, sexual assault, etc%

(a) #imple ;ntoxication - Simple intoxication “defence” operates only if proof of intoxication helps lea"e the 5ud!e or 5ury in reasonable doubt o"er  hether the accused form the rele"ant mens rea (so it actually isn;t really a defence - hus, the “defence” only applies if intoxication pre"ents the formation of the specific intent re:uired by the rele"ant section - 0<6 his is limited to specific intent offences% 3or !eneral intent offences, the :uestion of mens rea ill be assessed on the assumption that the accused as not intoxicated (e"en if he as% /nd, note that e"en if you are found

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not !uilty of a specific intent offence on the account of intoxication, you can still be con"icted of an included !eneral intent offence (e%!% murder Z manslau!hter, e%!% assault ith intent Z assault - See 1 " ?a"iault belo for a distinction beteen !eneral and specific intent offences 1 " ernard (#exual assault causing bodily !arm is a general intent offence& and t!erefore simple intoxication doesnBt work as a defence) FA'/9.  char!ed L sexual assault causin! bodily harm (s 8AM%8(c%  committed the sexual assault upon the ei!hteen-year-old complainant in his apartment% &t as conceded that intercourse had ta#en place ithout the consent of the complainant% ?urin! the course of the assault, the appellant punched her, caused an in5ury to her eye, and threatened to #ill her% 299:. he intoxication defence$ distin!uishin! beteen !eneral and specific intent crimes 1:A9&2&>.  Sexual assault merely adds the re:uirement of causin! bodily harm to complainant% 1esultin! interference L physical inte!rity of the complainant a!!ra"ates the seriousness of a sexual assault but the mental element remains the same% /here%ore its a general intent o%%ence (i%e% the mental element is the intent to commit the assault >eneral intent. offence in hich the only intent in"ol"ed relates solely to the performance of the act in :uestion L no further ulterior intent or purpose% 9peci%ic intent. in"ol"es the performance of the actus reus, coupled L an intent or purpose !oin! beyond the mere performance of the :uestioned act (e%!% assault ith the intent to maim or ound ?run#enness in a !eneral sense is not a true defence to a criminal act% Where, hoe"er, in a case hich in"ol"es a crime of specific intent, the accused is so affected by intoxication that he lac#s the capacity to form the specific intent re:uired to commit the crime char!ed it may apply% /he de%ence, howe;er, has no application in o%%ences o% general intent# 3or general intent offences simple intoxication does not or# because6 o / person is presumed to ha"e intended the natural and probable conse:uences of his actions% o &n cases here accused as so intoxicated as to raise doubt as to the "oluntary nature of his conduct, Cron may meet this e"identiary obli!ation respectin! the necessary blameorthy mental state of the accused by pro"in! the fact of "oluntary self-induced intoxication by dru!s or alcohol% o /he rec<less beha;iour in attaining the le;el o% intoCication a%%ords necessary e;idence o% a culpable "ental condition% 'olicy !rounds Z can;t intoxicate yourself$ commit a crime, and then use your intoxication as a o defence here  ?oes it "iolate s% 9 and s% 77(d of the Charter5 o 0ot a "iolation% 1ule reco!ni=es that accused persons ho ha"e "oluntarily consumed dru!s or alcohol, thereby o depri"in! themsel"es of self-control leadin! to the commission of a cr ime, are not morally innocent, and are, indeed, criminally blameorthy% o While rule excludes consideration of "oluntary intoxication in the approach to !eneral intent offences, it nonetheless reco!ni=es that it may be a rele"ant factor in those !enerally more serious offences here the mens rea must in"ol"e not only the intentional performance of t he actus reus but, as ell, the formation of further ulterior moti"es and purposes% o <nly intrudes upon security of the person in accordance ith sound principles and Lin established boundaries of le!al process% 1 " 1obinson (5$errules 9acAskill, outlines two step process w!en dealing wit! claims of simple intoxication)

FA'/9. he accused #illed a man but claimed to ha"e acted ithout intent because he as intoxicated% he e"idence re"ealed that he had been drin#in! ith the "ictim and some friends and that the #illin! occurred hen the "ictim said somethin! to offend him% /fter bein! instructed on pro"ocation, self-defence and intoxication, the 5ury found the accused !uilty of second-de!ree murder% he Court of /ppeal, hoe"er, alloed his appeal% 299:. (7 Io 5uries should be instructed re!ardin! e"idence of intoxication$ (8 Whether the char!e to the 5ury, read as a  hole, constituted misdirection and re"ersible error on the issues of intoxication, the common-sense inference that a person intends the natural and probable conse:uences of his or her acts, and the burden on the Cron to pro"e the intent re:uired for murder beyond a reasonable doubt$ 1:A9&2&>.  he rule in Mac"s*ill pro"ides that intoxication is not a rele"ant factor for tr iers of fact to consider except here the intoxicant remo"ed the accused;s “capacity” to form the re:uisite intent  ut a trier of fact only need to find that the accused did not ha"e the mens rea 2ie intent in fact4  for the offence and if not found, do not need to in:uire about capacity to ha"e intent% Why loo# at capacity hen the offence says ? is only !uilty if has he has intentH <f course, if he lac#ed the capacity to form that intent, then he did not ha"e the intent, but the con"erse proposition does not follo, ie%, it does not follo that 5ust because he had the capacity, he also had the specific intent%  &t ould be contrary to the Charter  to re:uire capacity because it ould allo an accused to be con"icted in the face of a reasonable doubt as to hether he had the re:uired mens rea% he in:uiry is in the actually state of mind and not the capacity to ha"e a state of mind hreshold that must be met6 must be e"idence that the intoxication must ha"e undermined the mens rea% Fust ha"e air of reality%  he rule in Mac"s*ill  should be o"erruled  5hat new rule should replace 9acAskillF () / "ust be satis%ied that the e%%ect o% the intoCication was such that its e%%ect "ight ha;e i"paired the accuseds %oresight o% conseuences su%%iciently to raise a reasonably doubt (*) / then instructs jury that the issue be%ore the" is whether the 'rown has satis%ied the" D1 that the accused had the reuisite intent (e#g# 2n the case o% "urder the issue is whether the accused intended to <ill or cause bodily har" with the %oresight that the li<ely conseuence was death) (b) Extreme ;ntoxication - Where extreme intoxication applies, it can operate as a defence to both !eneral and specific intent offences, at least at common la - he theory behind the defence is that a person can become intoxicated enou!h that his mind may cease to operate sufficiently to ma#e conscious choices relatin! to his actions - :Ctre"e de%ence is a co"plete de%ence to cri"inal o%%ending - he “extreme intoxication” C+ defence as de"eloped in ?a"iault6 1 " ?a"iault FA'/9. ? sexually assaults crippled old lady 299:. Can a state of drun#enness hich is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s% 7M of the Criminal Code , 1%S%C%, 7).B, c% C-AM, constitute a basis for defendin! a crime hich re:uires not a specific but only a !eneral intentH 1:A9&2&>.

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5here intoCication is so eCtre"e an essential ele"ent o% t he o%%ence, ;oluntariness, is not present% Can;t hold someone morally at fault L absence of "oluntariness%  Court held & had to be accepted bLc of Charter  - s% 77 (d presumes indi"iduals to be innocent, s% 9 contrary to '32 to commit someone if they didn;t "oluntary commit somethin!% /o use de%ence o% :2, you need. o # :Cpert e;idence (that the accused was in a state o% auto"atis" or insanity) o *# Accused "ust pro;e, with that eCpert e;idence alongside any other e;idence that, on a D=, he was in an eCt re"e state o% intoCication  4i"en the minimal nature of the mental element re:uired for crimes of !eneral intent, e"en those ho are si!nificantly drun# ill usually be able to form the re:uisite mens rea and ill be found to ha"e acted "oluntarily%  0ote6 Should it be thou!ht that the mental element in"ol"ed relates to the actus reus rather than the mens rea then the result must be the same% he actus reus re:uires that the prohibited criminal act be performed "oluntarily as a illed act% / person in a state of automatism cannot perform a "oluntary illed act since the automatism has depri"ed the person of the ability to carry out such an act%   0ote6 'ourt noted that this de%ence would only be a;ailable in rare cases, essentially where the accused was an auto"aton D/ see s8 87 of --: •



40

xtreme intoxication is 0< a defence to any offence hich in"ol"es assault as an element or in"ol"es interferin!, or threatenin! to interfere, ith a persons bodily inte!rity, hether or not that person, by reason of the intoxication, lac#ed the !eneral intent or "oluntariness re:uired for the offence So, the defence of & after Daviault  is a"ailable for all !eneral intent offences eCcept %or assault, seCual assault, or inter%erence wE bodily integrity o% another (basically any ;iolence or threats o% ;iolence

9:F :F:&':

- here are A separate but potentially o"erlappin! statutory defence6s >A(7, >A(8, >B and >9% - 0ote that the concept of pro"ocation for the pur pose of self defence is defined in s >M% - he folloin! cases interpret these pro"isions6 1 " 'intar (Explains t!e relations!ip between ss '(7) and (0) and t!e general approac! to using t!e $arious defences) FA'/9. ' started seein! 1;s ("ictim;s ife% 1 made #non he anted to #ill '% 1 enters ';s home, ta#es sin! at ', and ' duc#s punch and #noc#ed 1 to floor% /fter more threats to ';s life, ' shot and #illed 1% 299:6 1elationship beteen s >A(7 and (8, and the !eneral approach that should be ta#en usin! the "arious defences 1:A9&2&>. ;ssue 7 - he 2 erred in failin! to lea"e the “single transaction” option to the 5ury  i%e% that the initial unpro"o#ed assault by 1 still had si!nificance at the e"ents hich occurred outside the home% he error ta#es on special si!nificance in respect of s% >A(8 since that pro"ision formed the essence of the appellantGs claim to self-defence

;ssue 0 - Tnli#e s >A(7 hich spea#s to the issue of intent, s >A(8 does not% he plain ordin! of s% >A(8 re"eals that the pro"ision is tri!!ered hen a person ho has been unlafully assaulted causes death or !rie"ous bodily harm in

repellin! the assault% y necessary implication, 'arliamentGs silence may be ta#en to mean that s% >A(8 is meant to apply to accused persons ho intend to #ill or cause !rie"ous bodily harm, as ell as to those ho do not ha"e such intent, but ho do in fact cause death or !rie"ous bodily harm ;ssue  / &n order for the appellant to succeed on s% >A(8, it as necessary that the 5ury belie"e or ha"e a reasonable doubt that at the time of the shootin!s, the appellant !enuinely belie"ed on reasonable !rounds, that he as in !ra"e dan!er from the "iolence ith hich 1oss and 4ill pursued their attac# upon him, and that his use of deadly force in response to that attac# as necessary% ac#!round information about the attac#ers; propensity for "iolence is rele"ant here% 1 " Cinous (#!ows !ow t!e defence in s '(0) !as sub%ecti$e and ob%ecti$e elements) FA'/9. C heard that F and D anted to #ill him% F and D, one day, as#ed C to assist in a computer theft% When they met up, F and D ere actin! suspicious$ F as earin! latex !lo"es, and they #ept touchin! their 5ac#ets li#e they had a !un it% While dri"in!, C pulled o"er to !as station, pulled out !un and shot F in bac# of head% C testified that this as an instincti"e reaction to a situation of dan!er% 299:. &nterpretation of self defence under s >A(8 1:A9&2&>. Elements of t!e defence  o succeed in a defence of self-defence, there must be6 he eCistence o% an assault (did the accused reasonably and actually belie"e that sLhe   as unlafully assaultedH  1easonable apprehension o% death or grie;ous bodily har"%  1easonable belie% in the absence o% alternati;es to <illing or causing >D$ (&t must be established both that the accused belie"ed that he could not preser"e himself except by shootin! the "ictim, and that he held this belief on reasonable !rounds  0ote6 if any of these elements lac# an air of reality, the defence should not be put to the 5ury  ach of the three elements ha"e both a sub5ecti"e and ob5ecti"e component% hese three elements must be real as percei;ed by the accused (sub5ecti"e and be reasonable (ob5ecti"e% o 5ith respect to each o% the three ele"ents, the approach is %irst to inuire about the subjecti;e perceptions o% the accused, and then to as< whether those perceptions were objecti;ely reasonable in the circu"stances# he “hole defence” must ha"e an air o% reality and bac<ed by e;idence% ().9 o he accused;s testimony can pro"ide a basis for inferrin! t hat both the sub5ecti"e /0? ob5ecti"e o components of each elements ha"e been met innie, concurrin!, does not !rant self-defence to criminals ho set their on “rule of the criminal o subculture, hich is the antithesis of public order%” ())> Criminals cannot claim self-defence if they a"oid an alternati"e fearin! that the alternati"e ould face them ith arrest%  Application  Tnlaful assaultH &t ould be possible for the 5ury reasonably to conclude that the accused belie"ed that he as !oin! to be attac#ed, and that this belief as reasonable in the circumstances% here is an air of reality to the sub5ecti"e component of the defence as there is direct e"idence on the accused;s beliefs, in the form of the accused;s testimony% /  5ury actin! reasonably could dra an inference from the circumstances described by the accused, includin! particularly

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the many threatenin! indicators to hich he testified, to the reasonableness of his perception that he as !oin! to be attac#ed%  1easonable apprehension of death or 4IH Des% he accused;s testimony is unambi!uously to the effect that he feared a deadly attac#% / 5ury actin! reasonably could dra an inference from the circumstances described by the accused, includin! particularly the indications that D and F ere ar med, the rumours of a plan to assassinate him, the suspicious beha"iour, and the earin! of the !lo"es, to the reasonableness of his perception that he as in mortal dan!er  1easonable belief of no reasonable alternati"es to #illin!H &t must be established both that the accused belie"ed that he could not preser"e himself except by shootin! the "ictim, and that he held this belief on reasonable !rounds% here is an air of reality to the accused;s claim t hat, at the time he shot the "ictim, he actually belie"ed that he had no alternati"e% he accused;s extensi"e direct testimony re!ardin! his sub5ecti"e perceptions at the r ele"ant time amounts to more than a “mere assertion” of the element of the defence% Ioe"er, the belief that the accused had no other option but to #ill must ha"e been ob5ecti"ely reasonable% Iere, there is absolutely no e"idence from hich a 5ury could reasonably infer the reasonableness of a belief in the absence of alternati"es

(Cinous 9 !. /pplies either here6 (i the accused, ithout 5ustification, assaults another but didn;t commence the assault ith intent to cause death or 4I$ <1$ (ii here the accused pro"o#ed an assault him by another  /ccused 5ustified to the use of subse:uent force a!ainst him (in the case of (i, or assault a!ainst him (in the case of (ii, only if force used6 (a Tnder the reasonable apprehension of death or 4I from the person ho he has assaultedLpro"o#ed (b &n the belief, on reasonably !rounds, that it;s necessary to preser"e himself from death or 4I (c Ie declined further conflict and :uitted or retreated from it as far as it as feasible to do before the necessity of preser"in! himself from death or 4I

s 7.  his is used only here other pro"isions don;t apply

KK 9u""ary o% the 9el% e%ence =ro;isions KK !0 9 4().  /pplies here there is an unlaw%ul assault a!ainst the accused his unpro;o<ed [1emember6 the elements of an assault as per s *6! must be met for the accused to rely on this sub section]  /ccused may repel force by usin! force if the force used6 (a &s not intended to cause death or 4I$ (b &s no more than necessary to defend themself  0ote6 (a his section may not be used here accused intended to cause death or 4I (R v )risson (b /n unlaful assault a!ainst accused need not actually occur$ it is sufficient that accused reasonably belie"ed that an assault has occurred ( R v Cinous  (c he accused need not ha"e any apprehension of death or 4I 9 4(*). /pplies here there is an unlaw%ul assault, hether pro"o#ed or unpro"o#ed, and accused, to r epel the assault, causes death or 4I to another [1emember6 the elements of an assault as per s 8MB must be met for the accused to rely on this sub section]  /ccused is 5ustified in causin! death or 4I in response to the assault only if6 (a Ie causes death or 4I under a reasonable apprehension o% his own death or >D$ from the "iolence ith hich the ori!inal assault as made$ and (b Ie belie;es, on reasonable, grounds, that there are no alternati;es to <illing or causin! 4I in order to preser"e himself - 0ote6 (a /n unlaful assault a!ainst accused need not actually occur$ it is sufficient that accused reasonably belie"ed that an assault has occurred ( R v Cinous  (b ach of the abo"e elements must ha"e an air of reality to them (Cinous (c ach of the abo"e element (> elements has a sub5ecti"e and ob5ecti"e component6 first, in:uire about the sub5ecti"e beliefs of the accused$ second, as# hether those perceptions are ob5ecti"ely reasonable

&:':992/

- he defence of necessity permits the conduct of the accused to be excused here its elements are met$ the defence, thou!h, is hea"ily circumscribed - he lo!ic behind this defence “rests on a realistic assessment of human ea#ness, reco!ni=in! that a liberal and humane criminal la cannot hold people to the strict obedience of las in emer!ency situations here normal human instincts, hether of self-preser"ation or of altruism, o"erhelmin!ly impel disobedience” 1 " +atimer  he defence of necessity is narro and of limited application to criminal la  he accused must establish the existence of  ele"ents6 () 2""inent peril or danger6 ?isaster must be imminent, or harm una"oidable and near  it isn;t enou!h that peril is foreseeable or li#ely, it has to be on the "er!e of transpirin! (e%!%, here, the accused did not himself face any peril, and ;s on!oin! pain did not constitute an emer!ency in this case% ;s proposed sur!ery did not pose an imminent threat to her life, nor did her medical condition% &t as not reasonable for the accused to form the belief that further sur!ery amounted to imminent peril, particularly hen better pain mana!ement as a"ailable (*) &o reasonable legal alternati;e to the course o% action. /s#, !i"en that the accused had to act, could he ne"ertheless realistically ha"e acted to a"oid peril or pre"ent harm ithout brea#in! the laH (e%!%, here, the accused had at least one reasonable le!al alternati"e to #illin! his dau!hter6 he could ha"e stru!!led on,  ith hat as un:uestionably a difficult situation, by helpin!  to li"e and by minimi=in! her pain as much as possible or by permittin! an institution to do so () =roportionality between the har" in%licted and the har" a;oided (e%!%, here, lea"in! open the :uestion of hether the proportionality re:uirement could be met in a homicide situation, the harm inflicted in this case as immeasurably more serious than the pain resultin! from ;s operation hich the accused sou!ht to a"oid% Jillin! a person Y in order to relie"e the sufferin! produced by a medically mana!eable physical or mental condition Y is not a proportionate response to the harm represented by the non-life threatenin! sufferin! resultin! from that condition

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5hat standard to e"ployJ 3or the first 8 of the > elements, a modified ob5ecti"e test is employed (i%e% &t in"ol"es an ob5ecti"e e"aluation, but one that ta#es into account the situation and characteristics of the particular accused person, includin! his ability to percei"e the existence of alternati"e courses of action% he third re:uirement for the defence of necessity, proportionality, must be measured on an ob5ecti"e standard, as it ould "iolate fundamental principles of the criminal la to do otherise $:. he trial 5ud!e as correct to remo"e the defence from the 5ury since there as no air of reality to any of the three re:uirements for necessity 

60

1:99

- he defence is a"ailable under s 7 '', and at common la% Section 79 identified a limited defence, but the common la and Charter ha"e extended its application6 1 " Iibbert FA'/9. I accompanied F at the time F shot 3% I as punched in the face by F as a ay of forcin! I to help him find 3% I helped !et F don from his apartment here he as subse:uently shot 1:A9&2&>. s 79 of the Code does not constitute an exhausti"e codification of the la of duress% S 79 applies only to persons  ho commit offences as '1&0C&'/+S% he common la defence applies to persons liable as parties  he fact that a person ho commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be rele"ant to the :uestion of hether he possessed the mens rea necessary to commit an offence% Whether or not this is so ill depend, amon! other thin!s, on the structure of the particular offence in :uestion -- that is, on hether or not the mental state specified by 'arliament in its definition of the offence is such that the presence of coercion can, as a matter of lo!ic, ha"e a bearin! on the existence of mens rea% &f the offence is one here the presence of duress is of potential rele"ance to the existence of mens rea, the accused is entitled to point to the presence of threats hen ar!uin! that the Cron has not pro"en beyond a reasonable doubt that he possessed the mental state re:uired for liability% A person who co""its a cri"inal act under threats o% death or bodily har" "ay also be able to in;o<e an eCcuse based de%ence (either the statutory de%ence set out in s# 7 o% the -riminal -ode or the co""on law de%ence o% duress, depending on whether the accused is charged as a principal or as a party)# /his is so regardless o% whether or not the o%%ence at issue is one where the presence o% coercion also has a bearing on the eCistence o% mens rea#  he mental states specified in ss% 87(7( ! and 87(8 of the Code  are not susceptible to bein! @[email protected] by duress  An accused person cannot rely on the co""on law de%ence o% duress i% he had an opportunity to eCtricate hi"sel% sa%ely %ro" the situation o% duress# 1ationale for the @safe a"enue of [email protected] rule is simply that, in such circumstances, the condition of @normati"e in"[email protected] that pro"ides the theoretical basis for the defences of both duress and necessity is absent% he :uestion of hether or not a safe a"enue of escape existed is to be determined accordin! to an ob5ecti"e standard% When considerin! the perceptions of a @reasonable [email protected], hoe"er, the personal circumstances of the accused are rele"ant and important, and should be ta#en into account% 1 " 1u=ic FA'/9. he accused as tried before a 5ud!e and 5ury on char!es of unlafully importin! to #ilo!rams of heroin into Canada, contrary to s% B(7 of the %arcotic Control "ct , and of possession and use of a false passport contrary to s% >M. of the Criminal Code % he accused admitted ha"in! committed both offences but claimed that she as then actin! under duress and should thus be relie"ed from any criminal liability% She testified that a man in el!rade, here she li"ed in an apartment ith her mother, had threatened to harm her mother unless she brou!ht the heroin to Canada% She also said that she did not see# police protection because she belie"ed the police in el!rade ere corrupt and ould do nothin! to assist her% he accused conceded that her claim of duress did not meet the immediacy and presence re:uirements of s%

79 of the Code, hich pro"ides a defence for a per son “ho commits an offence under compulsion by threats of immediate death or bodily harm from a person ho is present hen the offence is committed”% She successfully challen!ed the constitutionality of s% 79 under s% 9 of the Canadian Charter of Rights and Freedoms , raised the common la defence of duress and as ac:uitted% he Cron appealed the ac:uittal on the char!e of importin! heroin, but the Court of /ppeal dismissed the appeal% 299:. Scope and constititutionality of the defence of duress 1:A9&2&>. Section 79 of the Code breaches s% 9 of the Charter  because it allos indi"iduals ho acted in"oluntarily to be declared criminally liable% he section limits the defence of duress to a person ho is compelled to commit an offence under threats of immediate death or bodily harm from a person ho is present hen the offence is committed% he plain meanin! of s% 79 is :uite restricti"e in scope% he phrase “present hen the offence is committed”, coupled ith the immediacy criterion, indicates that the person issuin! the threat must be either at the scene of the crime or at hate"er other location is necessary to ma#e !ood on the threat ithout delay should the accused resist% 'ractically spea#in!, a threat of harm ill seldom :ualify as immediate if the threatener is not physically present at the scene of the crime% he immediacy and presence re:uirements, ta#en to!ether, clearly preclude threats of future harm% While s% 79 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relyin! on the defence in hosta!e or other third party situations% he underinclusi"eness of s% 79 infrin!es s% 9 of the Charter % he Cron made no attempt before this Court to 5ustify the immediacy and presence criteria accordin! to the s% 7 analysis and has therefore failed to satisfy its onus under s% 7% &n any e"ent, the criteria ould li#ely not meet the proportionality branch of the s% 7 analysis% &n particular, these re:uirements seemin!ly do not minimally impair the accused;s s% 9 ri!hts% he common la defence of duress as ne"er completely superseded by s% 79 of the Code, and remains a"ailable to parties to an offence he common la defence of duress frees itself from the constraints of “immediacy” and “presence”% he elements include6 (7 / threat to the inte!rity of the person6 he la includes a re:uirement of proportionality beteen the threat and the criminal act to be executed% he accused should be expcted to demonstrate some fortitude to put up a normal resistance to the threat (8 he threat must depri"e the accused of any safe a"enue of escape in the eyes of a reasonable person, similarly situated% /lthou!h the threat need not be immediate, there must be a close temporal connection beteen the threat and the harm threatened (i%e% the threat had to be a real threat affectin! the accused at the time of the offence (no immediacy re:uirement (> hreats need not be made by a person ho is at the scene of the crime (no presence re:uirement  / modified ob5ecti"e test is employed 70

=1?'A/2&

- See s 8>8

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'1232&A =1':1: /$: '$A1>:

0 A2&> /$: '$A1>: - 0o person may be considered an accused in the absence of a char!e and, therefore, no court can ha"e 5urisdiction o"er the prosecution of a person in the absence of a char!e - With the exception of direct indictments, indictable offences are char!ed hen an information is sorn, recei"ed, and appro"ed by a 5udicial officer in accordance ith sections BKA and folloin! of the CC [his procedure applies e:ually to offences prosecuted by summary proceedin!s under 'art QQO&& CC$ see s 9)B] - s !+4 (non-discretionary, "inisterial %unction). 2ustice must recei"e the information here6 (i “any person” ho has reasonable !rounds to belie"e an offence has been committed$ (ii under oath, lays an information in ritin!$ /0? (iii the information alle!es a number of re:uired thin!s - s !+66 /n information may be laid in the manner set out in 3orm 8 - s !+7 (substance o% in%or"ation considered)6 <nce the information has been recei"ed (under s BKA, the 5ustice ho recei"ed the information must consider the substance of the information;s alle!ations% ssentially, 5ud!e, to endorse it, must conclude that there are 1/S<0/+ 41<T0?S, as disclosed in the information and any e"idence adduced thereof, that the offence as committed [&f the 5ud!e si!ns the information, that mar#s the moment at hich a char!e is formally laid and a prosecution be!ins] - he char!e document6 hether the trial proceeds by information (for pro"incial courts or an indictment (for superior courts, it is the startin! point for t he trial and sets out the case e the accused has to meet% *0 92>&2F2'A&': F /$: '$A1>:

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/$: A?:19A12A =1'::2&>

- he accused is in 5eopardy of con"iction only for the offence char!ed, and for any offences that are included” in the criminal char!e, but nothin! more6 0 1 " 4%1% FA'/9. 41 ac:uitted of the char!e of incest% 299:. Whether the rules !o"ernin! “included” offences under s MM8 of the Criminal Code can be applied t o 5ustify the result in this case of the respondent bein! found !uilty of sexual assaultLsexual interference, but bein! ac:uitted of t he char!e of incest 1:A9&2&>.  2t is %unda"ental to a %air trail that an accused <nows the charge or charges he or she "ust "eet P the proper %ocus is on what the 'rown alleges, not on what the accused already <nows  he Cron see#s to ha"e the respondent con"icted of char!es hich re:uire the prosecution to establish elements  hich ere not part of the alle!ations a!ainst him at trial  he Cron did not alle!e that the dau!hter as belo the a!e of consent on the indictment, and there is nothin! in the nature of the offence of incest as described in the CC to put the respondent on notice that he as in 5eopardy of a con"iction for sexual assault or sexual interference  An accused is entitled to <now which a"ongst those charges a;ailable he or she is reuired to answer  An o%%ence is included i% its ele"ents are e"braced in the o%%ence charged, or i% it is eCpressly stated to be an included o%%ence in the '' itsel%% ut the offence of incest can be committed ithout committin! sexual assault or sexual interference $:. Cron cannot add these char!es

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 ?oinder and Severance - Can ha"e a 5oinder and se"erance of char!es Content of Charges - Fust be sufficiently detailed6 s B.7(>% - he purpose is of each count in an indictment is to put the accused on notice of the case to meet - here are to interrelated rules6 s B.7(> (insufficient detail and the surplusa!e rule (excessi"e detail Remedies for a Defective Charge - > possibilities6 (7 So flaed that the char!e is an absolute nullity6 he 2 has no 5urisdiction to hear the matter, and the char!e must be :uashed% ut the Cron can lay a ne char!e (8 Char!e mi!ht be flaed, but not so flaed that it is a nullity6 2 is to /F0? the char!e% 4rant an ad5ournment in order to remedy the pre5udice [0ote6 a char!e ill only be :uashed if the pre5udice caused by the amendin! cannot be remedied by an ad5ournment] (> he remedies set out in s MK7 - /ccused may also see# particulars

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(a The presumption of innocence and the ultimate standard of proof  - /n accused is presumed to be innocent6 s 77(d Charter% he Cron must pro"e !uilt 1?6 1 " +ifchus6 1? does not in"ol"e proof to an absolute certainty$ it is not proof beyond any doubt nor is it an ima!inary or fri"olous doubt% Fore is re:uired than proof that the accused is probably !uilty% &t must not be based upon sympathy or pre5udice% 1ather, it is based on common sense$ it is lo!ically deri"ed from the e"idence or absence of e"idence% /  5ury char!e that includes these considerations ill be a "alid one% here is no ma!ic incantation (b .ther !urdens - =ri"a %acie case6 3or directed "erdicts, and to be able to pass throu!h the preliminary in:uiry sta!e, the defence and the Cron, respecti"ely, must sho that there is a prima facie case% he test is hether there is any e"idence upon  hich a reasonable trier of fact, properly instructed, could con"ict (/rcuri% &n /rcuri, a complicated situation arose, because the e"idence as entirely circumstantial% he test (abo"e applies in this context as ell% ut the nature of the  5ud!e;s ta#es "aries accordin! to the type of e"idence that the Cron has ad"anced% 3or circumstantial e"idence, the 5ud!e is re:uired to determine hat reasonable inferences can be made (i%e% hether elements of offence may be reasonably inferred from e"idence% his re:uires limited ei!hin!, i%e%, not entitled to as#  hether accused is !uilty% he 5ud!e only as#s hether the e"idence, &3 +&O?, could reasonably support an inference of !uilt - :;idential burden %or putting %orward de%ences 6 1 " Cinous (;n criminal cases& t!e accused may !a$e an e$idential burden w!ere s!e seeks to rely upon positi$e defences& like self defence, “air of reality test”6 he correct approach to the air of reality test is ell established6 the test is hether there is e"idence on the record upon  hich a properly instructed 5ury actin! reasonably could ac:uit (assumin! the e"idence to be true$ in other ords, a defence should be put to a 5ury if and only if there is an e"idential foundation for it% Whether there is an air of reality to a defence is a :uestion of la% /wo principles deri"e from this test6 () a 5ud!e must put to the 5ury all defences that arise on the facts hich ha"e an air of reality (*) they must #eep from the 5ury defences lac#in! an e"idential foundation% &n applyin! the test, loo# at the totality of the e"idence, and the purpose is not aimed at establishin! the substanti"e elements of the defence 1 " 3ontaine ("utting in play “re$erse onus” defences %ust re3uires e$idential& not persuasi$e burden)6 &n Stone, it appeared that the accused needed to dischar!e a persuasi"e burden before the 5ury could e"en hear the defence of non-mental disorder automatism% &n 3ontaine, the Court altered this% &t as held that all the accused has to do is put forard S<F e"idence capable of supportin! the defence% - Durden to rebut a presu"ption6 here are numerous rules of e"idence called “presumptions” that operate to assi!n burdens of proof on the accused% / presumption directs 5ud!esL5ury to assume that a fact is true (#non as the presumed fact in any case here the Cron pro"es that another fact is true (#non as the basic fact, unless the accused can rebut the presumed fact accordin! to the assi!ned standard of proof% “Fandatory presumptions” can be rebutted by the accused simply raisin! a reasonable doubt about hether the presumed fact follos from the basic fact% / presumption can be reco!ni=ed as a “mandatory presumption” because the

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le!al rule raisin! the presumption ill use the term “e"idence to the contrary” to describe the burden of rebuttal% / presumption ill be interpreted as a mandatory pr esumption here it fails to set out the re:uired standard of rebuttal% <ther presumptions operate as “re"erse onus pro"isions”, deemin! the presumed fact to exist here the Cron pro"es the basic fact, unless the accused dispro"es the presumed fact on a balance of probabilities% &n criminal cases, legal presu"ptions are o%ten in tension with the presu"ption o% innocence% / pro"ision hich re:uires an accused to dispro"e on a balance of probabilities the existence of a presumed fact "iolates the presumption of innocence% 2% an accused bears the burden o% dispro;ing an ele"ent o% the o%%ence, it would be possible %or a con;iction to occur despite the eCistence o% a reasonable doubt% his ould arise if the accused adduced sufficient e"idence to raise a reasonable doubt as to his or her innocence but did not con"ince the 5ury on a balance of probabilities that the presumed fact as untrue ( 1 " <a#es (c The neutral impartial trier  1 " 4unnin!6  &t is a basic principle of la that, on a trial by 5ud!e and 5ury, it is for the 5ud!e to direct the 5ury on the la and to assist the 5ury in their consideration of the facts, but it is for the 5ury, and the 5ury alone, to decide hether, on the facts, the offence has been pro"en% 2t is o% %unda"ental i"portance to <eep these %unctions separate#  he trial 5ud!e also erred by failin! to instruct the 5ury on the pro"isions of s% A7 of the Criminal Code , 1%S%C% 7).B, c% C-AM, in respect of the defence of house or property 1 " Iamilton6 FA'/9. I and F ere char!ed ith importin! cocaine% oth ere blac# sin!le mothers% F as not a Canadian citi=en and faced ris# of deportation% /t the sentencin! hearin!s conducted by 2ustice Iill, extensi"e social context e"idence concernin! po"erty, !ender bias and systemic racism as filed, and the 5ud!e pro"ided 9KK pa!es of materials% ased on this e"idence, the 5ud!e concluded that the omen should not recei"e imprisonment, but should recei"e conditional sentences% he <ntario Co/ commented on the inappropriateness of the 5ud!es decision% 1:A9&2&>6 - 2ud!e made se"eral findin!s of “fact” hich ere not supported by e"idence (e%!%, the respondents ere paid minimal amounts and used those amounts to pro"ide the bare necessities for their children - he respondents didn;t offer an explanationLdescription of their in"ol"ement in the crimes apart from I;s indication that she acted out of financial need% he 5ud!e had no indication of ho may ha"e hired them, hat compensation they recei"ed or hat ould happen to their children if they ent to 5ail% - **2ud!e did not purport to base his findin!s of fact on any material that actually related to these respondents% &nstead, he relied on his experiences in sentencin! other indi"iduals ho couriered cocaine from 2amaica, and applied those !enerali=ations to the respondents% While a 5ud!e is permitted to use common sense and isdom !ained from personal experience in 5ud!in! the trustorthiness of a particular itness, the 5ud!e must a"oid 5ud!in! the credibility on the basis of !enerali=ations or upon matters that ere not in e"idence, Cory 2 said in 1 " S (1%?%% - **1 " S (1%?% dras a distinction beteen findin!s of fact based exclusi"ely on per sonal 5udicial experience and 5udicial perceptions of applicable social context, and the findin!s of fact based on e"idence "ieed throu!h the lens of per sonal  5udicial experience and social context% he latter is proper, the former is not% (d The role of the prosecutor  he prosecutor is an ad"ocate but also a :uasi 5udicial officer, and so must ma#e decisions in best interests of 5ustice and lar!er public interest, includin! accused

1 " Coo#6 he Cron cannot adopt a purely ad"ersarial role toards the defence, !i"en its special function in ensurin! that 5ustice is ser"ed, but it is both permissible and desirable that the Cron "i!orously pursue a le!itimate r esult to the best of its ability% 'art of this discretion in"ol"es the choice of hich itnesses to call% 4i"en the stron! preference this Court has shon for deferrin! to the Cron;s discretionary authority, it ould ta#e a stron! opposin! rationale to arrant the creation of a duty hich so clearly impedes it% he accused is not “ambushed” by the fact that a !i"en itness is not called$ any existin! unfairness can be resol"ed throu!h the disclosure process and the accused;s ability to call the  itness% he trial 5ud!e did not err in failin! to in:uire into hy the Cron chose not to call the "ictim% he onus to pro"e the Cron;s misconduct lies upon the accused% Similarly, a findin! of an abuse of process or “obli:ue moti"e” is only a"ailable here the accused can establish such conduct on a balance of probabilities Jrie!er " +a Society of /lberta6 'rosecutorial discretion ill not be re"ieable except in cases of fla!rant impropriety% ecause Cron prosecutors must be members of the +a Society, they are sub5ect to the +a Society;s code of professional conduct, and all conduct that is not protected by the doctrine of prosecutorial discretion is sub5ect to the conduct re"ie process% /s the disclosure of rele"ant e"idence is not a matter of prosecutorial discretion but rather a le!al duty, the +a Society possesses the 5urisdiction to re"ie an alle!ation that a Cron prosecutor actin! dishonestly or in bad faith failed to disclose rele"ant information, notithstandin! that the /ttorney 4eneral had re"ieed it from the perspecti"e of an employer% / clear distinction exists beteen prosecutorial discretion and professional conduct, and only the latter can be re!ulated by the +a Society% ?isclosure of rele"ant e"idence is a matter of prosecutorial duty, and trans!ressions related to this duty constitute a "ery serious breach of le!al ethics% Iere, it appears that J failed to disclose rele"ant information, a "iolation of his duty, but later offered an explanation hich ould help to determine if he had acted dishonestly or in bad faith% &f so, this ould be an ethical breach fallin! ithin the +a Society;s 5urisdiction% he +a Society;s 5urisdiction to re"ie J;s failure to disclose rele"ant e"idence to the accused is limited to examinin!  hether it as an ethical "iolation%

(e The role of the defence

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- heme throu!hout6 balancin! liberty ith public security @eneral police powers - 'olice ha"e broad poers under statute (mainly Criminal Code, and poers at common la%

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- 9tatutory powers include poers alloin! police to6 arrest an accused$ compel an accused;s appearance in court "ia a summons or appearance notice$ use force$ search suspects$ etc [0ote6 the important ones are co"ered in the upcomin! sections] - 'o""on law poers6 (7 Iistorical cLl poers6 a% Search incident to arrest for the purposes of ensurin! safety$ protection of e"idence from destruction, and disco"ery of e"idence ( R v Casla*e % hen, see R v @olden  for strip searches incident to arrest, and the particular re:uirements that must be met (p 7M b% o enter into a pri"ate dellin! in a hot pursuit (alloed  leadin! case is 1 " 3eeney

(8 0e cLl poers can be created  the “ancillary poers” doctrine (see 1 " Waterfield (p 796 he SCC has relied on this doctrine to support police poer in a number of areas% here are problems ith relyin! on this test, thou!h, as it as not intended to allo the creation of ne C+ poers% (> Consent (a final area from hich police de"elop their poers (A ?efault common la poers6 'olice ha"e the poer to do anythin! that ill not result in some remedy bein! !ranted to an accused Powers of search and sei#ure - <ther than in poers of ar rest, the ability of police offers to interfere ith the liberty of indi"iduals is most e"ident in poers of search and sei=ure - 0ote the la in this area attempts to balance indi"idual interests (i%e% liberty ith interests of the state - What is a searchH / state in"esti!ati"e techni:ue is or is not a search dependin! on hether it infrin!es on a persons reasonable eCpectation o% pri;acy% - /naly=e searches ith arrant and ithout arrant separately

() 9earches with a warrant 2a4 Searching places with warrant  - 4eneral search arrant pro"ision is found in s 487 - Fust be issued by a 5ustice$ 5ustice must be satisfied on reasonable !rounds that e"idence ill be found (hich must fall into A cate!ories6 (i anythin! on or in respect of hich an offence has been committed$ (ii anythin! that ill pro"ide e"idence re!ardin! an offence or the location of a person suspected of committin! an offence$ ( iii anythin! reasonably belie"ed to be intended to be used to commit an offence for hich the person could be arrested ithout arrant or (i" offence related property$ the search must be related to a “buildin!, receptacle or place”$ there must be someone responsible for carryin! out the search$ - 0ote that there are some limits to this search arrant poer (e%! specificity (see p M) - / related pro"ision found in s A.) allos police ho are searchin! under a arrant to sei=e items not mentioned in the  arrant if they belie"e on reasonable !rounds that they ere obtained by, or ere used in, or afford e"idence concernin! an offence 2!4 Searching people 2D%" warrants4$ - Warrants for ta#in! blood, sali"a etc - <nly a"ailable for “desi!nated offences” listed in s A.9%KA (see p )AB of Code - See s A.9%KB for the re:uirements to !et the arrant

- asic re:uirements Z a pro"incial court 5ud!e (i%e% cannot be a 2' must be satisfied by information on oath that a bodily substance connected ith an offence has been found, that a person as a party to the offence, and the ?0/ analysis of the substance ill pro"ide e"idence about hether the bodily substance as from that person$ 5ud!e is re:uired to belie"e that the issuin! of the arrant ill be in the bests interests of the administration of 5ustice$ etc (see p 98 - ?ifferent rules apply hen the ?0/ arrant concerns youn! people (see p 9> 2c4 Reviewing a warrant$ - he Code contains no pro"isions to re"ie a arrant% ut it is possible to challen!e the issuance of a arrant by ay of Certiorari (used to re"ie the process by hich the arrant is used - he central issue in re"iein! a arrant is hether the re:uirements for its issuance under the Code ha"e been met - he :uestion for the re"iein! 5ud!e is hether there is e"idence upon hich the issuin! 5ud!e could ha"e decided to issue the arrant (1 " 4arofoli% he actual result of the search is not rele"ant on re"ie

(*) 9earches without a warrant - "ery arrantless searche is prima facie unreasonable under s . of the Charter (i%e% !uarantee a!ainst unreasonable search and sei=ure (Iunter " Southam% - /s a result, e"ery arrantless search must be made consistent ith minimum Charter standards% - he folloin! is the approach to determine the constitutional "alidity of the arrantless search6 () hreshold issue6 3irst, to be a breach of s ., the indi"idual searched must be determined to ha"e a reasonable eCpectation o% pri;acy o"er their person, territory and information ( i%e% if there is no reasonable expectation of pri"acy, there is no searchLsei=ure at all, and therefore no breach of s .% (a +oo# at “entitlement” to pri"acy  not hether Q had, in that case, pri"acy  i%%e the standards of pri"acy that a person can Q'C to en5oy in a free and democratic society (Won! (b +oo# at factors in Edwards (loo#in! at “totality of circumstances” (p .9 (c 0ote the three #inds of interests that pri"acy protects (e%!% personal pri"acy, territorial pri"acy, and informational pri"acy (esslin!% 0ote6 informational pri"acy Z more difficult to pro"e% (d Io si!nificant of a ri!ht to pri"acy is this on a slidin! scaleH (*) <nce it has been determined that an indi"idual has a reasonable expectation of pri"acy, then it follos that the search as a prima facie "iolation of the accused;s s . ri!ht% he issue then becomes whether the search itsel% is reasonable, or was it an intrusion, in light o% that eCpectation o% pri;acy)# Iere, the nature of the accused;s reasonable expectation of pri"acy is also a bac#!round factor in determinin! ho reasonable the search is (the hi!her the le"el of pri"acy expected, the more difficult it ill be to determine that the search as reasonable, e%!% a person has !reater pri"acy hen the search in"ol"es a bodily ca"ity as opposed to the trun# of t heir car$ or in the situation of a search incident to arrest  hea"y state interests% 1easonableness of the search is !enerally determined by the -ollins %actors  ha;e they been "etJ (a &s the arrantless search authori=ed by la6 (i StatuteH (e%!% arrantless searches are authori=ed by s A.9%77 (in relation to the s A.9 search arrant poer (ii CL+H (i%e% search incident to arrest$ search durin! in"esti!ati"e detention$ exi!ent Circumstances% Iere, if you are sayin! that there is a search incident to arrest, you ould ha"e to !o throu!h the elements identified in the boo#,

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i%e%, you ould ha"e to establish that6 the arrest as laful$ the search  as truly incidental to that arrest and that the search as conducted in a reasonable manner (iii ConsentH (b &s the la itself reasonableH (c &s the manner in hich the search is carried out reasonableH - 0<6 here are "ariations on the Iunter " Southam standard% Searches under an administrati"e scheme and searches of press offices ha"e different rules (see p 777 - 0< <ther in"esti!ati"e poers, ie%, !eneral arrants (s A.9%K7 (hich ha"e broader arrant poer than s A.9 Powers of Detention at the Investigative Stage (a ?efinition of detention - S 7K(b !i"es ri!hts to people ho are “detained”, e%!% ri!ht to counsel% he issue is hether someone has been detained% <ne troublin! context is police :uestionin!  hen does this :ualify as a detention and therefore !i"e the detainee s 7K(b ri!htsH (b Common la poers of detention - Some poers of detention exist by statute% he ability to ma#e breathalyser demands and routine traffic stops, and some aspects of customs searches are all le!islati"ely created detentions% Common la detentions are more contro"ersial (e%!% ?edman case upheld 1&? pro!ram under Waterfield test as a "alid form of detention (i &n"esti!ati"e detention (Fann test6 1easonable !rounds for officer;s suspicion that indi"idual is implicated in criminal acti"ity under in"esti!ation% he o"erall reasonableness of the decision to detain must further be assessed a!ainst all of the circumstances% (ii 'olice roadbloc#s  "!ilit- to !rea* the law 6 s 8B%7

- udicial con%ir"ation "ust occur be%ore or a%ter the arrest% / police officer, in principle, cannot unilaterally compel the appearance of an accused in court% hat decision must, at some point, be confirmed by a 5udicial officer, typically 2's% Confirmation can occur either before or after arrest% - Fust !i"e notice to arrestin! person of reasons for arrest6 s +(a) 'harterG s *H - he least intrusi"e ay is here a police officer can sho a 5ustice that there are reasonable !rounds to belie"e that a persons has committed an offence, and conse:uently obtains a su""ons re:uirin! the accused to appear in court on a specific date. s !+7()(b)# - /lternati"ely, the officer can first encounter a per son on the street committin! an offence and then re:uire that person to appear by means of an appearance notice, hich must be confirmed by a 5ustice6 ss !+, !+! and !+8()(b) - he most intrusi"e method is by t a#in! physical control of the person (by ay of arrest, either after 5udicial authori=ation or before (this is the focus here - What is an arrestH /n arrest consists of ords of arrest accompanied either by touchin! of the person ith a "ie to detention, or by the person submittin! to the arrest ( R v hitfield  - rea# don the situations into arrest ith arrant and ithout arrant6  "rrest with a warrant  - / arrant can be issued only after an information is layed6 see s !+7 for indictable offences and s 7H! for summary offences% - hen, a 5ustice, ho si!ns off on the information, can either issue a su""ons or warrant re:uirin! the accused to attend before a 5ustice to anser the char!e% - / summons FTS be issued instead of a arrant, unless to do so ould not be in the interests of the public6 s !+7# - Fust !i"e notice to arrestin! person of reasons for arrest6 s +(a) 'harter - here are some other, less important rules for effectin! the arrant  "rrest without warrant  - See s 4H4 and 4H!

s 4H4 [Applies to any one (and is re!arded as the citi=ens arrest poer]6 - /nyone may arrest someone they find committin! an indictable offence - /nyone may arrest someone they find fleein! from authorities, if they reasonably belie"e an indictable offence as committed - s A)A(8 applies to property oners; arrest poer 

/AM2&> '&/1 ?:1 /$: A''9:. Arrest, 'o"pelling Appearance wEout Arrest, and Dail 0

/$: A11:9/

- he police ha"e specified poers to arrest indi"iduals% So do non-police officers% - he common theme of the rele"ant le!al pro"isions is that arrest  ta#in! physical control o"er the sub5ect  is to be used as a last resort hen other measures a"ailable for ensurin! !ood conduct and attendance before the criminal  5ustice process are not practical or desirable - he least intrusi"e modes of securin! attendance include the appearance notice, the promise to appear and the summons% hese ill be discussed belo, and it ill be identified ho can issue these, and under hat authority Introduction - /rrest is only one method to compel appearance of an accused before a court - here are 8 other ones, summons and appearance notice (less intrusi"e% Similar to poers of search and sei=ure, 'art QO& of the Coe is aimed at balancin! le!itimate state interests in prosecutin! crime a!ainst indi"idual freedom

s 4H! [Applies to police o%%icers] () (a 'eace officer may arrest anyone ho has committed an indictable offence or ho, on reasonable !r ounds, he belie"es has committed, or is about to commit, an indictable offence (b 'eace officer may arrest anyone he finds committin! a criminal offence (i%e% “apparently committin!”6 1 " iron (c 'eace may arrest a person if he reasonably belie"es that a arrant exists for the person;s arrest (*) his section adopts a principle of restraint$ essentially says that for minor offences, officers are directed not to arrest simply because an arrest poer exists, rather to consider other factors as ell% he officer may arrest only to6 (i establish identity of accused$ (ii secure or preser"e e"idence of or relatin! to the offence$ (iii pre"ent the continuation or repetition of an offence% /lternati"ely, officer may arrest if it;s e"ident accused on;t appear in court () Shos that the principle of restraint adopted in (8 is only a !uideline 

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @andrew#[email protected]#ca # $e success%ully co"pleted all o% the &'A reuire"ents in the anuary, *++ sitting &ote. /oronto and surrounding area only0

 [9upporting

powers0 - Tse of force permitted in certain circumstances (s 8B(7$ use of force li#ely to cause death or 4I permitted in certain circumstances (s 8B(A$ special rules apply hen enterin! a home to ma#e an arrest (s B8) etc - %!% officer is 5ustified in usin! as much force as necessary hen ma#in! an arrest, pro"ided that there is reasonable !rounds to use that much force Rights arising on arrest  (7 Statutory protections6 - s 4H7 calls for officer ho has arrested a per son for one of the offences listed in s 4H!(*)(a), (b) or (c) (basically less serious, summary con"iction or hybrid con"iction offences to release that per son on an appearance notice or summons, unless !rounds similar to those in sections 4H!(*)(d) or (e) apply (i%e% belie"es that need to !et &?$ secure e"idence$  on;t sho in court etc - Where the offender is 0< released, s !+ comes into play$ accused is to be brought be%ore a = to consider the issue o% release ("ust occur without unreasonable delay, and in any e;ent, within *4 hours)G “ithout unreasonable delay” is the #ey factor here% 3ailure to do so may result in an arbitrary detention under s ) of the Charter

(8 Charter ri!hts6 - s + o% the 'harter creates specific !uarantees arisin! on arrest6 (a accused must be informed promptly of the reasons for arrest$ (b must be informed of ri!ht to counsel .ther Code arrest powers - Se"eral Code pro"isions hich authori=e arrest in order to pro"ide a measure of compulsion to the 5udicial process (e%!% if you fail to comply ith fin!er printin! re:uirements

*0

'3=:2&> A==:A1A&': 52/$/ A11:9/

- here are different ays to compel appearance, ithout arrest,either pre- or post-charge - /rrest is a poer of last resort Compelling appearance when charges have %.T !een laid 2ie pre:charge4 - &f a peace officer decides that a person should be prosecuted, there are a number of ays to compel that person to attend court 3<1 an information is laid and he is actually char!ed$ most ob"ious example is an arrest ithout  arrant - ut the Code also pro"ides that a person may be re:uired to attend court by means of an appearance notice, a pro"ise to appear or a recogniRance - 0ote s 4H!(*) (discussed abo"e in arrest section, hich su!!ests that, for less serious offences, an officer should not necessarily use arrest poers% he pro"ision indicates, implicitly, that the officer issue an appearance notice instead, unless there is !ood reason not to% So, if officer decides 0< to arrest, then they may issue an appearance notice6 s 4H!(*) - "en if an officer has arrested a person, the officer can decide afterord, under s 4H7(), to release that person L the intention to compel her appearance by means of a su""ons or appearance notice% - he “officer in char!e”, under s 4H8, is also directed to prefer releasin! the accused (officer in char!e has broader poers$ can release ith more restricti"e conditions, includin! a reco!ni=ance - he release pro"isions, hoe"er, are not mandatory, and are merely !uidelines (i%e% an officer ho fails to comply ith the sections is still complyin! ith their duty

- 0ote that before accused;s first appearance an information must be laid before a 5ustice6 s !+! Compelling appearance when charges have !een laid 2ie post:charge4 - /fter the layin! of the information is completed, the 5ustice ill issue process in the form of either a su""ons or a  warrant %or the arrest of the accused (if the char!e is endorsed - / summons is a document issued by the court commandin! the accused to attend court at a specified time and place - he choice bL summons or arrest arrant lies in the discretion of the 5ustice% - 9 !+7(4), thou!h, directs the 5ustice to issue a summons T0+SS there are reasonable !rounds to belie"e that a  arrant is necessary in the “public interest”%

0

/$: DA2 $:A12&>

- Where an indi"idual is arrested, he or she must be released or !i"en a bail hearin! here it ill be decided hether the indi"idual should be released absolutely, sub5ected to conditions of release, or held in custody pendin! the trial @eneral scheme$ Release !- 9ustice - /ssumption that accused should be released pendin! trial and ith fe restrictions as possible - s !!() directs that the 5ustice shall order that the accused is released on an underta#in! ithout conditions T0+SS the Cro shos cause as to hy somethin! more restricti"e is 5ustified - s !!(*)6 Where a 5ud!e doesn;t order an outri!ht release under s B7B, he shall, T0+SS I C1<W0 SI<WS C/TS /S < WID ?0&<0 &S 2TS&3&?, the 5ud!e must release the accused in one of the ays listed in that section (a-(e% / 5ud!e cannot ma#e an order under (b) to (e) o% s !!(*) unless prosecutor shos cause as to hy an order under the immediately precedin! para!raph ould be inade:uate6 s !!() - s !4(4) P (4#). Set out "arious types of conditions that F/D or FTS be imposed hen an order for release is made under s !!(*) [<b5ecti"e is to ensure accused attends court or safety of community] - STFF/1D6 &f an “order of release (ithout conditions” is not made by the 5ud!e (s B7B(7, there are to options, each for hich the Cron must sho cause6 (a Sho cause hy detention is necessary (see belo$ (b or if that fails, try and sho cause as to hy a more serious condition of release should be imposed% @eneral scheme$ Crown see*ing continued detention - s !!(+) specifies > !rounds on hich continued detention of an accused may be ordered6  (7 detention is necessary to ensure accused;s attendance in court (8 detention is necessary to ensure for the protection or safety of the public (> detention is necessary in order to maintain confidence in the administration of 5ustice, ha"in! re!ard to all the circumstances [and there ar e a fe listed] (e%!% apparent stren!th of prosecutions case, !ra"ity of offence, circumstances surroundin! commission of offence$ et] (see R v (all  for test to apply  "d9ournment  - he 5ustice, on the application of the prosecutor, can ad5ourn the bail hearin! by up to > days ithout the consent of the accused6 s B7M E>ceptions to the general !ail scheme

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- s !!(6). +ists a number of types of indictable offences hich lead to a re"erse onus  i%e% accused must sho cause  hy he is to be released% &f the accused is ordered to be released, any of the ordinary conditions apply - s !!() S s !** (re. s 46H o%%ences). (i What are s AM) offencesH (see p ..B of Code$ (ii &f it;s a AM) offence, then hayH /nd, a!ain a re"erse onus applies% &f the accused is order to be released, any of the ordinary conditions apply% Reviewing order  - / decision made by a 5ustice concernin! release or detention may be re"ieed by a 5ud!e upon application of the accused or the prosecution6 s !*+E!*

1 " Iall FA'/9. ?a"id Scott Iall as char!ed ith the murder of a oman in a hi!h profile case% Ie applied for bail pendin! trial% he 5ud!e denied the application--not for reasons of ensurin! appearance in court or protectin! the public--but in order @to maintain confidence in the administration of [email protected]% 'ara!raph B7B(7K(c of the Criminal Code allos the denial of bail for this reason% Iall appealed the decision on the basis that section B7B(7K(c "iolated the ri!ht @not to be denied reasonable bail ithout 5ust [email protected] under section 77(e of the Charter 299:. he issue in this case is hether olan 2% erred in denyin! bail on the basis that this as necessary “to maintain confidence in the administration of 5ustice”% 1:A9&2&>.  “& a!ree that the openin! phrase of s% B7B(7K(c, read as conferrin! a broad discretion to deny bail for “5ust cause”, is unconstitutional% Ioe"er, the balance of s% B7B(7K(c, hich permits denial of bail here necessary to maintain confidence in the administration of 5ustice, plays a "ital role in preser"in! the bail system and the !ood administration of  5ustice, and is neither unduly "a!ue nor o"erbroad”  3unction of para (c6 o allo an accused to be released into the community on bail in the face of a heinous crime and o"erhelmin! e"idence may erode the publics con%idence in the ad"inistration o% justice% Without public confidence, the bail system and the 5ustice system !enerally stand compromised% Dail denial to "aintain con%idence in the ad"inistration o% justice is not a "ere catch-allB %or cases where the %irst two grounds ha;e %ailed# 2t represents a separate and distinct basis %or bail denial not co;ered by the other two categories  'ara (c is not unconstitutionally "a!ue or o"erbroad6 t he !round based on maintainin! confidence in the administration of 5ustice is more narroly defined than the “public interest” standard in Morale  /nother :uestion is hether the means it has chosen !o further than necessary to achie"e that purpose% &n my "ie, they do not% 'arliament has hed!ed this pro"ision for bail ith important safe!uards% he 5ud!e must be satisfied that detention is not only ad"isable but necessary% he 5ud!e must, moreo"er, be satisfied that detention is necessary not  5ust to any !oal, but to maintain confidence in the administration of 5ustice% At the end o% the day, the judge can only deny bail i% satis%ied that in ;iew o% these %actors and related circu"stances, a reasonable "e"ber o% the co""unity would be satis%ied that denial is necessary to "aintain con%idence in the ad"inistration o% justice $:. 'ara (c is constitutionally "alid

>://2&> 1:A F1 /12A. isclosure and =reli" 2nuiries 0

29'91:

- / #ey ri!ht of the accused, and an important obli!ation on the Cron, is to ma#e full disclosure of the fruits of the in"esti!ation to the accused - /ll the fruits of the in"esti!ation are to be disclosed sa"e hat is clearly irrele"ant or pri"ile!ed - ?isclosure is to be made before t he accused is called upon to elect his mode of trial for s B>M indictable offences / . $ #tinc!combe established the ri!ht of disclosure for an accused, and the case also established "arious rules that apply to disclosure Content of the right to disclosure - "idence, if rele"ant, must be disclosed by Cron, hether inculpatory or exculpatory - "idence is rele"ant if it is of some use ot the defence (R v Egger  - ?isclosure must be made prior to election or plea - &t is a continuin! duty to disclose - ut the ri!ht isn;t absolute  e%!% need not produce pri"ile!ed or irrele"ant material - What if disclosure isn;t made properlyH R v Di>on  set out a > part test for determinin! hether and, if so, hat remedy  ould be a"ailable if there is un5ustified non-disclosure (see p 8K9 - /nother issue is pri"ile!ed information (of hich there are > !eneral cate!ories  informer pri"ile!e, solicitor-client pri"ile!e and pri"ile!e in counsellin! records% Conflicting protections$ disclosure and privileged information - he folloin! topics are co"ered in this part6 (7 &nformation pri"ile!e$ (8 Solicitor-client pri"ile!e$ (> Counsellin! records$

1 " Stinchcombe FA'/9. he accused, a layer, as char!ed ith breach of trust, t heft and fraud% / former secretary of his as a Cron itness at the preliminary in:uiry, here she !a"e e"idence appar ently fa"ourable to the defence% /fter the preliminary in:uiry but prior to trial, the itness as inter"ieed by an 1CF' officer and a tape-recorded statement as ta#en% +ater, durin! the course of the trial, the itness as a!ain inter"ieed by a police officer and a ritten statement ta#en% ?efence counsel as informed of the existence but not of the content of the statements% Iis re:uests for disclosure ere refused% ?urin! the trial defence counsel learned conclusi"ely that the itness ould not be called by the Cron and sou!ht an order that t he itness be called or that the Cron disclose the contents of the statements to the defence% he trial 5ud!e dismissed the application% he trial proceeded and the accused as con"icted of breach of trust and fraud% Conditional stays ere entered ith respect to the theft counts% he Court of /ppeal affirmed the con"ictions  ithout !i"in! reasons% 1:A9&2&>. Sub5ect to the CronGs discretion, all rele"ant information must be disclosed, both that hich the Cron intends to introduce into e"idence and that hich it does not, and hether the e"idence is inculpatory or exculpatory% /ll statements obtained from persons ho ha"e pro"ided rele"ant infor mation to the authorities should be produced, e"en if they are not proposed as Cron itnesses% Where statements are not in existence, other information such as notes should be produced% &f there are no notes, all information in the prosecutionGs possession relatin! to any rele"ant e"idence the person could !i"e should be supplied%  Cron counsel has a duty to respect the rules of pri"ile!e and to protect the identity of informers% / discretion must also be exercised ith respect to the rele"ance of information% he CronGs discretion is re"ieable by the trial 5ud!e,  ho should be !uided by the !eneral principle that information should not be ithheld if there is a reasonable possibility that this ill impair the ri!ht of the accused to ma#e full anser and defence%

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he absolute ithholdin! of information hich is rele"ant to the

defence can only be 5ustified on the basis of the existence of a le!al pri"ile!e hich excludes the information from disclosure% his pri"ile!e is re"ieable, hoe"er, on the !round that it is not a reasonable limit on the ri!ht to ma#e full anser and defence in a particular case%  Counsel for the accused must brin! to t he trial 5ud!eGs attention at the earliest opportunity any failure of the Cron to comply ith its duty to disclose of hich counsel becomes aare% his ill enable the trial 5ud!e to remedy any pre5udice to the accused if possible and thus a"oid a ne trial%  &nitial disclosure should occur before the accused is called upon to elect the mode of trial or plead% $:. Cron counsel as not 5ustified in refusin! disclosure here on the !round that the itness as not orthy of credit6 hether the itness is credible is for the trial 5ud!e to determine after hearin! the e"idence% he trial 5ud!e ou!ht to ha"e examined the statements% Since the information ithheld mi!ht ha"e affected the outcome of the trial, the failure to disclose impaired the ri!ht to ma#e full anser and defence% here should be a ne trial at hich the statements are produced% *0 =1:232&A1 2&L212:9 )ac*ground  - Tntil 8KKA, the preliminary in:uiry as understood chiefly as a test of the sufficiency of the prosecution;s case for trial - Since 8KKA, amendments to the Code ha"e altered the nature of the preliminary in:uiry and it can no lon!er be said that its primary function is to test the sufficiency of the prosecution case as a hole - he in:uiry ill only be conduct ith re!ard to the issues and itnesses that are specified in ad"ance6 s B>M%> - he preliminary in:uiry is no a limited examination of the sufficiency of the prosecution case ith re!ard to the specific issues and the e"idence of specific itnesses  ?urisdiction - he authority of a 5ustice to conduct a preliminary in:uiry is strictly statutory under 'art QO&&& of the Code

Scope - he scope of the in:uiry is defined by s B>B, hich directs the 5ud!e to in:uire into the char!e of any indictable offence or any other indictable offence in respect o the same transaction disclosed by the e"idence - he Code expressly allos the accused to call e"idence and this can include exculpatory e"idence on a matter of defence6 s BA7% Committal  - s !48 directs the 5ustice or 5ud!e at the preliminary in:uiry to commit the accused for trial on any indictable offence if the e"idence in support of the char!e is sufficient% &t also re:uires the accused to be dischar!ed (but this doesn;t mean ac:uitted if the e"idence is insufficient% :;erything turns on the word su%%icientB# - &n Shephard' the SCC stated that the test of sufficiency at t he prelim in:uiry is hether a reasonable 5ury, properly instructed, could find the char!e pro"ed 1?% - <ne uncertainty is the issue of hether the 5ud!e should asses the probati"e "alue of the e"idence - 'riterion o% co"pleteness. =rosecution "ust lead e;idence corresponding to each o% the ele"ents (this is uncontro"ersial - Criterion of ei!ht6 Se"eral cases su!!est it is not the role of the 5ud!e to ei!h e"idence$ e%!% 5ud!e cannot assess credibility of itnesses ( "rcuri % ut here the prosecution;s case is circumstantial e"idence, a limited ei!hin! of e"idence is permitted, and re:uires the 5ud!e to consider hether, if the e"idence is belie"ed, it could support inferences in fa"our of the prosecution

- 2n short, as< whether the essential ele"ents o% the o%%ence can be pro;ed D1 in the eyes o% a reasonable trier o% %act

=12&'2=:9 A& A5 1:A/: / 9:&/:&'2&> 0<6 efore be!innin! a sentencin! :uestion, first loo# at hat offence for hich the offender is bein! sentenced6 &s there a minimum sentenceH &s there a maximumH hese points ill be important for the applicability of some of the sentences% 0

>:&:1A =12&'2=:9 F 9:&/:&'2&>

- Fostly codified in the Criminal Code S 97.6 S 97.%K76 S 97.%76 S 97.%86

+ists ob5ecti"es of sentencin!, includin! denunciation, deterrence, rehabilitation, reparation etc Where children "ictim of abuse and under 7., then primary ei!ht to denunciation and deterrence ob5ecti"es 'roportionality principle enforced (a fundamental principle of sentencin! <ther sentencin! principles court FTS ta#e into account6 (a /!!ra"atin! and miti!atin! factors (b &f /bori!inal offender, then imprisonment last resort

1 " C%/%F (Absent an error in principle& failure to consider a rele$ant factor or an o$eremp!asis of t!e appropriate factors& a court of appeal s!ould only inter$ene to $ary a sentence imposed at trial if t!e sentence is demonstrably unfit)  he accused pleaded !uilty to numerous counts of sexual assault, incest and assault ith a eapon, in addition to other lesser offences, arisin! from a lar!ely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children o"er a number of years% 0one of the offences committed carried a penalty of life imprisonment  he Court of /ppeal erred in applyin! as a principle of sentencin! that fixed-term sentences under the Criminal Code ou!ht to be capped at 8K years, absent special circumstances  Within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial 5ud!es en5oy a ide ambit of discretion under s% 979 in selectin! a 5ust and appropriate fixed-term sentence hich ade:uately promotes the traditional !oals of sentencin!, sub5ect only to the fundamental principle that the !lobal sentence imposed should reflect the o"erall culpability of the offender and the circumstances of the offence  he Court of /ppeal erred in reducin! the accusedGs sentence% /bsent an error in principle, failure to consider a rele"ant factor or an o"eremphasis of the appropriate factors, a court of appeal should only inter"ene to "ary a sentence imposed at trial if the sentence is demonstrably unfit  &t as open to the sentencin! 5ud!e to reasonably conclude that the particular blend of traditional sentencin! !oals re:uired a sentence of 8B years in this instance 1 " 'riest (#ets out sentencing principles re: (7) appropriate sentences w!ere crime committ ed in an area of !ig! incidence of t!e rele$ant crime, (0) first time offenders, () proportionality of sentences)  rea# and enter, Lout "iolence or "andalism as the offence, committed in an area of unusually hi!h incidence of the crime

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @andrew#[email protected]#ca # $e success%ully co"pleted all o% the &'A reuire"ents in the anuary, *++ sitting &ote. /oronto and surrounding area only0

 he principles to be applied here there

appears to be an unusually hi!h incidence of a particular crime in the community ha"e been set don by this court% &t is <0 factor to ta#e into account, and can;t be determinati"e of the sentence  he primary ob5ecti"es in sentencin! a first offender are indi"idual deterrence and rehabilitation% xcept for "ery serious offences and offences in"ol"in! "iolence, these ob5ecti"es are not only par amount but best achie"ed by either a suspended sentence and probation, or a "ery short term of imprisonment folloed by a term of probation% Court should consider all other dispositions before imposin! a custodial sentence% S 97.(c instructs that separation of offenders from society is an appropriate ob5ecti"e of sentencin! “WI1 0CSS/1D”% S 97.%8(d directs that an offender should not be depri"ed of liberty if less restricti"e sanctions may be appropriate in the circumstances%  'roportionality is a fundamental principle of sentencin!% he sentence imposed by the trial 5ud!e in this case as  holly disproportionate to hat occurred% his as a brea#-in of non-residential premises% here ere a number of miti!atin! factors that ere completely i!nored by the trial 5ud!e% he appellant had no prior record$ he confessed to the offence$ he returned all of the stolen !oods$ and he pled !uilty at an early opportunity% he trial 5ud!e as re:uired to !i"e effect to these miti!atin! factors in imposin! sentence on this appellant% While & hesitate to label the sentence !rossly disproportionate, it approaches that standard% &t as ell abo"e the threshold of the @clearly [email protected] or @demonstrably [email protected] sentence re:uirin! inter"ention by this court  3or the fore!oin! reasons, e alloed the appeal and reduced the sentence to time ser"ed (approximately fi"e  ee#s and one year probation on the statutory terms and on the special terms that the appellant report forthith to a probation officer and thereafter once per month if re:uired and that he ma#e reasonable efforts to see# and maintain employment or education% 1 " oucher ((7) Appropriate sentence for cases in$ol$ing domestic $iolence, (0) Aggra$ating factor of “planned and persistent” conduct)  /ttempted murder as the offence  'rinciples of denunciation and deterrence are of paramount si!nificance in cases in"ol"in! domestic "iolence  While it is true that the complainant did not suffer any physical in5uries, in the context of an attempted murder, the absence of physical in5uries is a function of chance and does not necessarily 5ustify a si!nificant reduction in the ran!e of sentence that is otherise appropriate  &n addition to the a!!ra"atin! feature of a domestic context, there is an additional a!!ra"atin! factor present in this case that appears to ha"e been pr esent in some, but not all, of the authorities relied on by the Cron, namely, the planned and persistent nature of the r espondent;s conduct  ?espite the fore!oin! conclusions, & ould not interfere at this time ith the sentence that as imposed by the trial  5ud!e, other than to "ary the period of probation from to years to three years% &n all of the circumstances, & do not consider that it ould be in the interests of 5ustice to re-incarcerate the appellant at this time%

*0

/=:9 F 9:&/:&':9

a0

2ncarceration

S 97.(c6 &mprisonment should be used “here necessary” (as pointed out in 1 " 'riest

S 97.%8(e6 &mprisonment should be used as a sentence of last resort, particularly L /bori!inal offenders Tse case la to add more discussion b0

'onditional 9entence o% 2"prison"ent

S 9A8%76 his section authori=es ser"ice of a sentence of imprisonment in the community in certain circumstances% Some offenders are excluded (e%!% those con"icted of a serious personal in5ury offence6 s 9B8, or an offence punishable by a minimum term of imprisonment% o impose this sentence, the folloin! re:uirements must be met6 (i the sentence of imprisonment is imposed for less than 8 years$ (ii the ser"ice of the sentence in the community ouldn;t endan!er the safety of the community$ (iii the sentence ould be consistent ith the fundamental purpose and principles of sentencin! S 9A8%>6 (7 <utlines the compulsory conditions of such an order$ (8 <utlines optional conditions 1 " 'roulx (!is case establis!es t!e following: (7) A conditional sentence& unlike probation& is aimed at bot!  puniati$e A*+ re!abilitati$e aspects, probation is aimed at a re!abilitati$e sentence, (0) #ets out t!e process a  %udge must go t!roug! w!en imposing t!is sentence, () Ieneral principles re: conditio nal sentences)  he accused entered !uilty pleas to one count of dan!erous dri"in! causin! death and one count of dan!erous dri"in! causin! bodily harm ()  / conditional sentence should be distin!uished from probationary measures% 'robation is primarily a rehabilitati"e sentencin! tool% y contrast, 'arliament intended conditional sentences to include both puniti"e and rehabilitati"e aspects% herefore, conditional sentences should !enerally include puniti"e conditions that are restricti"e of the offenderGs liberty% Conditions such as house arrest should be the norm, not the exception (*)  Section 9A8%7 of the Code lists four criteria that a court must consider before decidin! to impose a conditional sentence6 (7 the offender must be con"icted of an offence that is not punishable by a minimum term of imprisonment$ (8 the court must impose a term of imprisonment of less than to years$ (> the safety of the community ould not be endan!ered by the offender ser"in! the sentence in the community$ and (A a conditional sentence ould be consistent  ith the fundamental purpose and principles of sentencin! set out in ss% 97. to 97.%8%  &nterpretin! the re:uirement that 5ud!e must impose a sentence of imprisonment of less than 8 years6 (7 &n a preliminary determination, the sentencin! 5ud!e should re5ect a penitentiary term and probationary measures as inappropriate$ (8 Ia"in! determined that the appropriate ran!e of sentence is a term of imprisonment of less than to years, the 5ud!e should then consider hether it is appropriate for the offender to ser"e his or her sentence in the community%  he re:uirement in s% 9A8%7( ! that the 5ud!e be satisfied that the safety of the community ould not be endan!ered by the offender ser"in! his or her sentence in the community is a condition precedent to the imposition of a conditional sentence% o factors should be ta#en into account6 (7 the ris# of the offender re-offendin!$ and (8 the !ra"ity of the dama!e that could ensue in the e"ent of re-offence  <nce the prere:uisites of s% 9A8%7 are satisfied, the 5ud!e should !i"e serious consideration to the possibility of a conditional sentence in all cases by examinin! hether a conditional sentence is consistent ith the fundamental purpose and principles of sentencin! set out in ss% 97. to 97.%8% his follos from 'arliament;s clear messa!e to the  5udiciary to reduce the use of incarceration as a sanction% / conditional sentence can pro"ide si!nificant denunciation and deterrence% /s a !eneral matter, the more serious the offence, the lon!er and more onerous the conditional sentence should be% here may be some circumstances, hoe"er, here the need for denunciation or deterrence is so

For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @andrew#[email protected]#ca # $e success%ully co"pleted all o% the &'A reuire"ents in the anuary, *++ sitting &ote. /oronto and surrounding area only0

pressin! that incarceration ill be the only suitable ay in hich to express societyGs condemnation of the offenderGs conduct or to deter similar conduct in the future ()  4enerally, a conditional sentence ill be better than incarceration at achie"in! the restorati"e ob5ecti"es of rehabilitation, reparations to the "ictim and the community, and promotion of a sense of responsibility in the offender and ac#noled!ment of the harm done to the "ictim and the community  / conditional sentence may be imposed e"en here there are a!!ra"atin! circumstances, althou!h the need for denunciation and deterrence ill increase in these circumstances  0o party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances% he 5ud!e should consider all rele"ant e"idence c0

=robation and 'o""unity 9er;ice

S 9>76 &f person con"icted of an offence, ha"in! re!ard to the a!e and character of the offender, the nature of the offence and the circumstances surroundin! the offence, a prohibition order may be made (a if no minimum punishment is prescribed <1 (b in addition to finin! or sentencin! the offender to imprisonment for a term not exceedin! 8 years S 9>7%76 <ptional and mandatory conditions to be imposed 1 " Riatas d0

Fines. s 74

e0

Absolute or 'onditional discharge. s 7+()

%0

1ecogniRance rders

/n information can be laid before a 5ustice here a person fears that another person ill cause harm to them, a partner, child etc% / 5ustice, if satisfied on the e"idence, can order that the defendant enter into a reco!ni=ance, ith or ithout sureties, to #eep the peace and be of !ood beha"iour g0

1estitution

S 9>.6 Where an offender is con"icted (or dischar!ed, the court imposin! sentence or dischar!in! may, &0 /??&&<0 < /0D <I1 F/ST1 imposed on the offender, order that the offender ma#e restitution t o another (and then the section lists a number of scenarios here restitution can be ordered (e%!% payments for dama!ed property$ and payments to "ictim ho suffered pecuniary loss as a r esult of psycholo!ical or bodily harm deli"ered by the con"icted h0

i0

9entencing Aboriginal %%enders

S 97.%8(e re:uires that all a"ailable sanctions other than imprisonment be first considered ith all offenders, ith “particular attention to the circumstances of abori!inal offenders” 1 " 4ladue <"erreliance upon incarceration is a particular concern in the sentencin! of abori!inal Canadians  he pro"ision may properly be seen as 'arliament;s direction to members of the 5udiciary to in:uire into the causes of the problem and to endea"our to remedy it, to the extent that a remedy is possible throu!h the sentencin! process%  he Court identified 8 uni:ue circumstances of /bori!inal offenders6 (7 he systemic factors hich often play a part in brin!in! the specific offender before the courts$ and - /s a practical matter, the Court does not re:uire each /bori!inal offender to pro"ide the sentencin! 5ud!e ith a history of the discrimination faced by /bori!inal people in Canada% 1ather, the Court states that 5ud!es must ta#e 5udicial notice of these factors - &t is important to note that the Court states that the pro"isions of s% 97.%8% (e apply to all /bori!inal offenders% &t does not matter if the person is a status or non-status &ndian, Fetis or &nuit person - the section applies e:ually to all (para )K% Similarly, it does not matter if the person li"es in an urban area andLor has been totally estran!ed from his or her culture the section still must be applied% /he pro;isions o% the section "ust be applied in all cases where the o%%ender identi%ies hi" or hersel% as an Aboriginal person and pro;ides so"e e;idence as to how their Aboriginal identity has had a part to play in understanding why they are be%ore the court# (8 he types of sentencin! approaches that mi!ht be appropriate to the offender because of his or her /bori!inal herita!e - 1estorati"e 5ustice approach is rele"ant hen sentencin! abori!inal offenders - he Court broadly terms these approaches “restorati"e 5ustice” approaches% &t describes restorati"e 5ustice as6 “an approach to remedyin! crime in hich it is understood that all thin!s are interrelated and that crime disrupts the harmony  hich existed prior to its occurrence, or at least hich it is felt should exist% he appropriateness of a particular sanction is lar!ely determined by the needs of the "ictims, and the community, as ell as the offender% he focus is on the human bein!s closely affected by the crime” - he Court ma#es it clear that a sentence that is intended to address restorati"e 5ustice concerns should not be seen as necessarily Pli!hter; than a sentence of imprisonment% he Court also cites articles that su!!est that in some circumstances, a restorati"e 5ustice sentence mi!ht impose !reater burdens on an offender than 5ail, particularly if there are probation terms incorporated into the sentence - Community-based sanctions coincide ith the abori!inal concept of sentencin! and the needs of abori!inal people and communities% &t is often the case that neither abori!inal offenders nor their communities are ell ser"ed by incarceratin! offenders, particularly for less serious or non-"iolent offences% - he Court ma#es it clear that the fact that an offender is an /bori!inal person ill not automatically result in a nonprison sentence% he Court also indicates that the more "iolent the offence, the more li#ely that the sentence ill in"ol"e imprisonment, althou!h the Court indicates that perhaps the term of imprisonment mi!ht be less in the case of an /bori!inal offender as opposed to a non-/bori!inal offender 

?icti" 9urcharges. s 77() <0 =arole

Where ? is con"icted or dischar!ed of an offence, a "ictim surchar!e may be imposed upon himLher, in addition to any other punishment% Consideration is ta#en into account hether or not such a penalty ould result in undue hardship to the con"icted

9A>%M6 Where an offender is sentenced to a term of 8 years of imprisonment or more on con"iction of an offence set out in Schedule & or && that ere prosecuted by ay of indictment, the court may order that the portion of the sentence that must be ser"ed before the offender may be released on full parole is \ of the sentence, or ten years, hiche"er less (ha"in! re!ard to the circumstances of the offence, characteristics of the accused etc

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