Crim Dufraimont

8/12/2019 Crim Dufraimont

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Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences

ISSUE Actus Reus

)ll criminal offences re


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Cor$ 0. sa$s nature and !, if not explicitl$, along with identit$ fraud andrisk of harm (b$ which he convicts!. C&:F IS -2D /)0&:I-F.*2ereux86ubG 0. sa$s an$ kind of fraud could suffice to vitiate consent./cachlin 0. sa$s nature and


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R. v. Lu%ki' )ccused found not guilt$ after causing freak car accident. 6riving carefull$ but happen to skid #deemed to be involuntar$.

R. v. ol$e' )ccused calling the police to kick victim out of hotel. ictim taps him on the shoulder and)ccused hits him with the phone. )ccused claims this is a reflex reaction and Court of )ppeal accepts this.

R. v. &waby' )ccused charged with constructive possession of a weapon in a car. Court decides that, if he

found out about gun*s presence while in the car, he*d have to have reasonable time to get out before hecould be considered to voluntaril$ have possession over it.

R. v. Ryan' )ccused (foolish $oung man! tries to rob store, thinking he*ll give mone$ to the poor. 2e getsscared and claims he pulls the trigger in reflex, killing the attendant. Court re%ects his involuntarinessclaim # sa$s it was all part of one voluntar$ act.

Kilbride v. Lake' )ccused charged with regulator$ offence of not displa$ing certificate of fitness for a car.-he certificate flew off while the car was parked. 6eemed he could not be found guilt$ as it not beingdispla$ed was not voluntar$.

)cting -hrough Innocent )gentR. v. Mi%hael' )ccused gives poison to the woman looking after her son, claiming it is medicine. =oman*sdaughter gives it to bab$ and he dies. )ccused is convicted.

CausationCertain crimes need to cause a certain result in order to be completed (manslaughter and criminalnegligence causing death most obvious examples.! =ord causing usuall$ is right in the Codeprovision.

Causation in EactIf but8for the action of the )ccused, the result would have occurred, we have causation8in8fact.

Causation in aw=e need a close enough legal relationship in order to impose criminal liabilit$.

&mithers v. R.' )ccused kicks victim in the stomach. 2is epiglottis malfunctions and he chokes to deathon his own vomit. -he odds of this happening in a $oung, sober, health$ man are infinitesimal. ;ut

)ccused still convicted of manslaughter # causation found for "anslauhter if unlawful act is acontributin cause outside the de minimis rane#(de minimisrangeMtrifling!

-hin Skull :uleFou must take $our victim as $ou find them (malfunctioning epiglottis example of this!

R. v. Blaue' 0ehovah*s =itness refuses a blood transfusion (which would have saved her! and dies of)ccused*s stabbing. )ccused still guilt$ of murder # ex. of thin skull rule.

R. v. Harbottle' Sa$s that to be convicted of first8degree murder under s. 9>+(@!, second illegal act mustbe substantial and integral cause of death. -his different causation test applies onl$ to this section.

R. v. )ette' Sa$s outside the de minimis range not a useful term to explain to the %ur$ so replaces it with

significant contributing cause test. )rbour 0. sa$ the$ mean the same thing. (*2ereux86ubG 0. doesn*tbu$ this and neither do I but it*s the law.!

Intervening CausesStatutes sa$, to a certain extent, what does notbreak the chain of causation's. 99@ # bad medical treatments. 99A # acceleration from other causess. 999(@!(c! # threat of violence to another to cause own deathIt*s not exactl$ clear what does break the chain.

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R. v. &mith(main case in common law world # from ;ritain!' ictim stabbed b$ )ccused with ba$onet.2e was dropped twice on his wa$ to the hospital and received bad medical treatment which madematters worse. 2e died. )ccused still convicted.If, at the time of death, the original wound is still an operating cause and a substantial cause, then deathcan properl$ be said to be the result of the wound, albeit that some other cause of death is alsooperating onl$ if it can be said that the original wounding is merel$ the setting in which another causeoperates can it be said that the death does not result from the wound.

R. v. +ordan' ;ritish case where chain of causation NwasN broken but original wound had almost healedand he died from an allergic reaction to another substance while in the hospital.

R. v. Bingaore' )ustralian case where victim behaves idioticall$ after being assaulted, he leaves thehospital despite being told it might cause death. 2e does, in fact, die. Chain of causation 4&- broken.

R. v. Menezes' eading case on street racing. ictim and )ccused street racing together. ictim dies.6eemed that )ccused could have been responsible butchain of causation broken as a reasonabledoubt )ccused withdrew from the race before victim crashed.

ISSUE Mens Rea

-here can be no guilt$ act without a guilt$ mind. -he Crown must alwa$s prove the fault element for theoffence be$ond a reasonable doubt, in addition to proving the act element be$ond a reasonable doubt.

-here are distinctions to be drawn between'8 Sub%ective mens rea )ccused intends to commit their actions and intends their natural conse


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BC Motor ehi%les ,%t Re$eren%e' -he provision was struck down because it made imprisonment apunishment for an absolute liabilit$ offence. )avin i"prison"ent as a punish"ent for an absoluteliability offences offends s. * of the Charter

R. v. Can%oil (hemal Cor.' -he compan$ takes a hand guard off a machine and the victim cuts off part ofhis fingers. -he compan$ tries to get the provision struck down because imprisonment was possible and itappeared to be an absolute liabilit$ offence but court interprets it as strict liabilit$ offence

R. v. holesale (ravel(again!' Court narrowl$ upholds that strict liabilit$ for regulator$ offences can besaved under s. + despite violating s. ++(d!. 6issent, led b$ amer, wanted to have the )ccused %ust have toraise a reasonable doubt that the$ acted dul$ diligent.

R. v. (ransort Robert, R. v. illiam Cameron (ru%king' &ntario gov*t imposes absolute liabilit$ for fl$ingtruck wheels. 4o imprisonment but +E(,high fines. -his is held to violate neither s. " nor s. ++(d!

L/vis v. (/treault' )ccused didn*t get his licence sent to him and didn*t follow up, letting his old one expire.-his is not due diligence according to SCC. Court confirms due diligence is the standard for regulator$offences what due diligence is will var$ b$ offence.

R. v. Beau%ham' )ccused charged with careless driving despite checking his mirrors regularl$ whilebacking up into a street filled with parked cars, a car hits him. &.C.). ac


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3lannedM)rranged beforehand (others sa$ result of scheme or design previousl$ formulated ordesigned b$ the )ccused6eliberateMconsidered and not impulsive

R. v. )ygaard and &%himmens' )ccused beat victim over head with a baseball bat. Juestion is whetherthe$ can return a verdict for first8degree b$ combining s. 99B(a!(ii! and s. 9>+(9! # answer is FDS.

R. v. Collins' )ccused charged with first degree murder of police officer under s. 9>+(?! # court decidesknowledge of being a police officer is necessar$ for conviction.

R. v. *ar/' )ccused charged with first degree murder while committing one of serious offences under s.9>+(@!. -he court sa$s while committing means part of a single transaction.

R. v. ,rkell' )ccused commits murder during sexual assault and tries to get s. 9>+(@! struck down #sa$ing the offences listed in it are arbitrar$. SCC does not accept this argument # sa$s the$ are allserious offences and parliament entitled to deference.

Crimes for =hich Sub%ective Eault is a Constitutional :e


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Intention1Pnowledge-hese words indicate full, sub%ective mens rea. Some crimes (where words like willfull$, intentionall$,with knowledge appear in the statute!, willful blindness and recklessness will not suffice.

R. v. Buzzanga and "uro%her' )ccused take out ad sa$ing awful things about the Erench, thinking it willcreated s$mpath$ for the Erench in their efforts to build a school in Southern &ntario. Charged with

willful promotion of hatred. -his case gives us the leading definition of Intention # one who foreseesthat a conse


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R. v. (utton and (utton' )ccused are members of a religious sect who believe in faith healing. -he$ thinktheir son has been cured of diabetes so the$ stop giving him insulin after doctors told them not to. ;o$dies. SCC orders new trial on procedural grounds but splits >8> on the appropriate fault element'8 =ilson 0. sa$s common law presumption for sub%ective fault must be kept and some level ofrecklessness of willful blindness should be re


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Eault res. 9A@(>! points out when consent is vitiatedss. 9"A19"" rape shield provisionss. 9"@ eliminates doctrine of recent complaints. 9"? eliminates special re


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R. v. &eaboyer' /cachlin 0. strikes down s. 9"A. She thinks evidence could be admitted if it has probativevalue on issue in the case and its pre%udice effects don*t outweigh its probative effects. (/an$ think herideas are actuall$ more protective #no distinction between )ccused and others.!

-hus, 3arliament enacted new rape shield similar to /cachlin*s reasons

R. v. "arra%h' -he )ccused tried to use arguments from &eaboyerto strike down new rape shield laws #

this is unsuccessful.

)ctions of 3arliament to imit )pplication of /istaken ;elief in Consents. 9A@(?! # applies to mistaken belief in consent as it applies to an$ assaults. 9">.9 # limits where mistaken belief in consent is available in sexual assault. 6efence is not availablewhen'(a!(i! )rose due to self8induced intoxication(a!(ii! )rose from recklessness or willful blindness (alread$ in case law but here it*s codified!(b! =here )ccused didn*t take reasonable steps in circumstances known to the )ccused at the time toascertain whether the complainant was consenting.N.B.: s. 9">.9(b! imposes a legal dut$ to show steps were taken and the word reasonable looks like anob%ective standard

R. v. 0wan%huk(D:F I/3&:-)4-!' )ccused gives victim a massage and keeps touching her moresexuall$ (at which points she sa$s no! he stops and then goes again and goes further. )s he is practicall$on top of her, she leaves. )ccused is ac


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R. v. Hess R. v. )guyen' )ccused charged with statutor$ rape when the$ thought the victim was of age(both victims lied.! Onder Codeprovisions, mistake of fact not a defence. )ccused challenge theconstitutionalit$ of this. -he$ win # violation of s. ".

=hat 2appens when the )ccused makes a mistake over whi%h offence the$ are committing7R. v. (olson' Sa$s that )ccused entitled to ac


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ISSUE IncapacityIncapacit$ renders the )ccused incapable of being criminall$ responsible. 6on*t worr$ about )ge # takeChildren*s aw with ;ala in third $ear.

/ental 6isorder1Insanit$8 s. +A of Codesa$s no one shall be convicted on an offence if the$ suffered from a mental disorder that

rendered them incapable of appreciating the nature and


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b. )ccused has to call expert evidence from ps$chiatrists or ps$chologists to suggest )ccused acting ininvoluntar$ manner.

c. )ccused has to have to convince trial %udge that there is evidence upon which a properl$ instructed%ur$ could find involuntariness (air of realit$!

9. 2ave to decide whether it*s sane automatism or mental disorder automatism.a. /ental conditions involving diseases of the mind a of the Codecodifies a lot of this-raditional opinion is that there are specific intent offences (eg. murder! and general intent offences (eg.manslaughter! traditionall$, intoxication never a defence to general intent offences but could be a defenceto specific intent offence because it would render the )ccused incapable of the specific intent.

R. v. Bernard' )ccused charged with sexual assault causing bodil$ harm. 2e sa$s he was ver$ drunk andwhen he reali5ed what he was doing he stopped. -ries to appeal finding of trial %udge that this could not beconsidered. SCC upholds conviction (@89! but for different reasons'8 /cInt$re 0. sa$s intoxication should never be a defence to general intent offences if the )ccused is sodrunk he*s not capable of forming an$ intent, then the fault lies in getting so drunk8 =ilson 0. sa$s intoxication should not be a defence in circumstances like this but would be if )ccused wasso extremel$ drunk incapable of forming an$ intent.

8 6ickson C.0.C. wants to get rid of distinction between specific and general intent offences and alwa$sconsider effects of intoxication on the )ccused*s intent.8 aEorest 0. seems to agree with 6ickson in principle but sa$s no miscarriage of %ustice in this case

R. v. "aviault' )ccused (AB8$ear old longtime alcoholic! drank seven or eight beers and then a bottle ofwhiske$. 2e rapes a A@8$ear wheelchair bound woman. Sa$s he was so extraordinaril$ drunk (this wouldcause death or a coma in a normal person! he was incapable of forming an$ intent (akin to automatism.!Cor$ 0. picks up the =ilson compromise from Bernardand sa$s, as a constitutional re


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ISSUE 4ustifications and E3cuses-hese kick in once all the elements of the offence have been proven

)ir of :ealit$0ustifications and excuses must have an air of realit$ before being put to %ur$. -his is a matter of law for thetrial %udge and if the %udge gets it wrong, it*s an error of law grounds for appeal.

R. v. Cinous' States test for )ir of :ealit$' evidence on the record upon which a properl$ instructed %ur$,acting reasonabl$, could ac. 3resence # -hreatener must be around?. ;elief # )ccused must believe threats will be carried out@. Dxclusion of certain offencesN.B.:-his test got changed in the case law post8Charter

R. v. Carker' )ccused threatened in a prison riot # this was not a successful defence as immediac$ andpresence re


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R. v. *a! If a principal, go to s. +"a. -hreat of ;odil$ 2armb. ;eliefc. Dxclusion of certain offences (this ma$ be unconstitutional!d. 4o safe avenue of escape (added in Ruzi%!

N.B.: Immediac$ and 3resence tossed out in Ruzi%

6efence of 3erson'Eound in ss. >?8>" of the Code # must be disproved b$ Crown once raised on facts

s. 34(1) s. 34(2)Assault of D D unlawfully assaulted by X | D unlawfully assaulted XDs Response causes No requirement that force causes articular result | !auses death or "rie#ous bodily harm

Provocation D did not ro#o$e | No requirement of who ro#o$ed assaltDs state of mind D didn%t intend to cause death or "rie#ous bodily harm | &nder reasonable arehension of death or "rie#ousbodily harm from X%s assault' may ha#e intended tocause death or "rie#ous bodily harm

Degree of Force Justified D used no more force than necessary to defend self | elie#es on reasonable "rounds that couldn%totherwise reser#e self

s. >?(+! Can appl$ if death or grievous bodil$ harm applies but it can*t be intentionals. >?(9! )pplies onl$ if it resultss. >@ 6eals with situations where )ccused starts a fight but later withdraws but person who )ccused

started altercation with tries to come after )ccuseds. >A 6efines provocation because a lot of them have to d with whether assault provoked to begin

with # provocation b$ words, blows or gesturess. >" 6eals with defensive use of force to prevent an assault to oneself or another person under one*s

protection # can*t use excessive force under this provision

R. v. *intar' -hinks s. >?(9! the wider provision and generall$ speaking onl$ necessar$ to put it to %ur$sub%ective element in test

R. v. Bogue' 6runk common8law husband comes at )ccused with knife sa$ing he*s going to kill her. 2efalls. She then stabs him to death. /anslaughter conviction overturned as no proportionalit$ re?(9! # don*t need to measure the nicet$ of the blow # )S& states that a mistaken belief in self8defence can ground self8defence claim.

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R. v. "eegan' 6eals with issue of opportunit$ to retreat # deemed this is not reH8?9 of the Code. /ust be disproved b$ Crown once raised on facts but much more limitedthan defence of person (obviousl$!. 4ever %ustifies murder unless situation turns into self8defence.

R. v. Ba2ter' 6efence of propert$ can be no more than necessar$ # not %ustified to shoot a meretrespasser

R. v. 4unning' )ccused shoots uninvited guest to a house part$ who he*d asked to leave # claims he firingwas an accident and he wasn*t guilt$ of careless use of a firearm (predicate offence for manslaughter!because he was defending propert$.Interpretation of s. ?+(+! #four elements'+! 3ossession # accused (unning! would have to be in possession of a dwelling house Kthis could alsoappl$ to someone acting under lawful authorit$ of possessorL9! 3eaceable # possession that is not seriousl$ challenged b$ others>! -respasser (victim was clearl$ trespassing!?! :easonable Eorce # force used to e%ect trespasser must be reasonable in all the circumstances # this isCharron 0.*s paraphrasing of using no more force than necessar$

)ll things considered, SCC finds air of realit$ to defence of propert$ and orders retrial

3rovocation:educes murder to manslaughter #ss. 9>9(+!, 9>9(9!, 9>9(>! of the Code. /ust be disproved b$ Crownonce raised on the facts.

R. v. Hill' eading case on provocation # )ccused stabbed his big brother to death after he made a sexualadvance to him. -hree8part test for provocation'+! =ould an ordinar$ person be deprived of self8control b$ the act or insult7 -his is an ob%ective


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Case states %ur$ can consider sex and age of person # no such thing as a sexless or ageless ordinar$person. ;ut no error here as no need to charge %ur$ on this. )ccused guilt$ of second8degree murder.

R. v. (hibert' /an kills wife*s lover outside an apartment building while lover is taunting him. Cor$ 0. sa$swe can take into account relationship between deceased and )ccused # Cor$ 0. orders new trial for failingto point out that Crown had to disprove provocation.

R. v. )ahar' Sikh man kills estranged wife # ;C C) sa$s we can take his culture (again, no need toexplicitl$ charge the %ur$ on this! into account but he*s still guilt$ in these circumstances she didn*t doan$thing on night in


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the women and left. -rial %udge tells %ur$ the$ could find them guilt$ as principals (if the$ believe thewoman! oras aiders and abettors (on their stor$!.6ickson 0. sa$s it was wrong for trial %udge to leave aiding and abetting with %ur$. 2e gives examples ofwhen aiding and abetting is appropriate to leave with %ur$ (keeping out police, encouraging principle, luringvictim, etc.! but "ere presence at the scene of the cri"e is not enouh. )lso no dut$ to intervene tostop the offence, as that would impose criminal liabilit$ for omissions.Mens rea re


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ISSUE %tte"ptss. 9? of Code# )ccused has to attempt the offence but not complete it. Eurthermore, )ccused must gobe$ond mere preparation and attempt (where this line is to be drawn is a matter of law and is not at allclear!s. ?A> sa$s penalt$ for attempt less than actual offence s. 9>? is a special provision for attempted murder

R. v. ,n%io' eading case on what is the mens reafor attempted murder. )ccused went to wife*s bo$friend*shouse with a sawed8off shotgun. un discharged (unclear how! but bo$friend not hurt./cInt$re 0. sa$s that mens reais more important in attempts than a%tus reus (usuall$ other wa$ around! #a%tus reusneeds to be a step towards commission of offence be$ond mere preparation a%tus reusdoesnot have to be a crime or even an unlawful act.Mens reafor murder "ust be atte"pt to $illand there*s a reasonable doubt here that that is not the case.4&-D' -his is a lesser standard than for murder, where mens reacan be in reckless beating.

R. v. &orrell and Bondett' 6ufraimont*s second favourite case # worst robbers of all8time. :easonabledoubt as to intent so trial %udge entitled to ac. )ttempting to commit an imaginar$ crime' ex. importing sugar into Canada thinking it is an offence

SCC sa$s no difference of note between the first two. Dither wa$, )ccused attempted to commit a crime but

circumstance made it impossible. -hus, this )ccused is guilt$. (Stuart thinks this is wrong.!ast one is not an offence, though, as there is nothing to charge with attempting to do.

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Crim Dufraimont