uviclss.cauviclss.ca/outlines/358-Clark_-_Law_102_-_Final.docx · Web viewEvidence and proof....

Criminal summary Kayli Clark 1 of 29

EVIDENCE AND PROOF

- Three elements: (i) Who has the burden, (ii) to do what, (iii) to what standard

- Presumption of innocence: It is incumbent on the Crown to prove the elements of the offence (actus reus and mens rea) & the absence of a defence, BRD (Oakes)

- Exceptions to presumption of innocence = Reverse Onuses:1. Statutory presumptions —> Balance of probabilities

- The Crown does not need to prove a certain fact if there is a statutory presumption. The accused has the reverse onus to rebut the evidentiary presumption- Control of car: Accused found in front seat of a car —> Presumed to be in control of the care.

Accused must prove they were not- Possession of drugs: Accused found in possession of drugs —> Presumed to be in possession

for purposes of Trafficking. Accused must prove they were not trafficking2. Defences —> Balance of probabilities

- There are certain defences where the Crown does not need to prove a certain fact. Rather the ac-cused holds the persuasive burden to rebut the evidentiary presumption- NCRMD —> Every person presumed to be sane- Automatism/ Extreme Intox/ NCRMD —> Accused presumed to act voluntarily

3. Evidentiary burden —> Air of reality- Before a judge is legally obliged to include a description of a defence, there is an onus on the ac-

cused to show that there is some evidence on each of the elements of that defence. The accused must persuade the judge that the defence has an “air of reality” before it will be put to the jury

- Reverse onus violated the Charter- Oakes SCC 1986—> s.8 of the Narcotics Control Act

- Reverse onus does not violate the Charter —> constitutional- Chaulk SCC 1990 —> s. 16(4) of CC

- Presumption of sanity in s. 16(4) and reverse onus violates the presumption of innocence in s. 11(d) BUT is justi-fied under s. 1.

- Why: Sanity is essential for guilt, so this presumption allows a factor which is essential to guilt to be pre-sumed – and moreover, actually requires accused to disprove this. However, avoids placing an impossible burden on Crown

- S.11(d): Every accused has the right to be presumed innocent until proven guilty (Oakes)- Why: Because s.11(d) protects the fundamental liberty and human dignity of the accused. This is essential to

fairness- Therefore, anytime there is a reverse onus (proven on BOP), s.11(d) is violated bcuz can be convicted despite

the existence of a R.D. regarding an essential element of the defence- However, a provision can remain in force if Crown can prove it is justified under s.1


ACTUS REUS - A/R: A voluntary act or omission or both that causes prescribed harm or consequences or occurs in pro-

hibited circumstances- General:

- Contemporaneity: There must be a temporal overlap between the mental fault (M/R) and the prohib-ited conduct (A/R)- It is not necessary for the guilty act and the guilty mind to be completely concurrent. Not necessary

for the requisite intent to continue throughout the entire act (Cooper)- The requirement of contemporaneity is satisfied if the guilty act and the intention coincided at some

point (Williams)- First act was an accident (No M/R): A series of actions is considered as one continuous transac-

tion. If M/R coincided with one act in the series of acts, then the contemporaneity principle is met (Meli). Courts can view multiple acts as continuous and will superimpose the subsequent M/R on the proceeding A/R (Fagan)

- Prescribed harm: Killing someone- Prohibited circumstances: Driving while impaired (conduct does not need to actually cause harm)

- Act or omission or status offences:- General: Principle of general construction if the code is vague re: prohibited conduct- Acts: Positive act (you have done something)- Omission: Failure to act (you should have done something and you did not

- Deep discomfort in criminalizing failure to act- When should the law impose a duty to act: No general duty to be a good samaritan but there are

recognized circumstances in the code where a duty to act is required (s.215-218)- s.9: No person shall be convicted of an offence @ CL. Can have a general duty to act (guilty of

omission) based on a duty indicated by CL which would run afoul of s.9 (Nixon, Coyne)- Undertaking (s.217): Mere expression of a willingness to do an act does not trigger this duty Re-

quires a binding commitment to justify the penal consequences of a breach (Brown)- HIV+: Omission to disclose HIV status + unprotected sex can = sexual assault if (Mabior):

- Non-disclosure + deprivation (realistic possibility of transmission of HIV) bcuz = Fraud- Result of omission: criminal negligence (s. 219) or common nuisance (endangers the public)

- Status offence: Criminalization of a state of being. Issues w/ charter breach (gender, ethnicity, etc)

- Voluntariness:- The prohibited conduct is a product of the will of the accused. Consciousness alone is not enough to

establish voluntariness, an element of control is required (conscious choice). There must also be moral voluntariness (Ruzic)

- A voluntary act is a result of a willing mind at liberty to make a definite choice or decision (King)

- Fundamental principle of justice: It is a CL principle that is recognized by the court because it is unfair to convict someone for an unintentional act that was:

i) Physically involuntary (twitches, spasms, reflexes) (Killbride); orii) Did not want to do (intoxicated, sleep walking, concussed, anaesthetized) (King)

- Factual and legal causation: —>”In order for the Crown to proceed, must prove F&L causation”- Factual causation: “But For” the act, would the harm have occurred (Winning/ Blaue)

- “I am satisfied that the factual causation is made out bcuz there is a logical link btwn D’s conduct and P’s injuries. But for D’s conduct, the harm would not have occurred”

- Legal causation: Is the factual link significant enough to justify finding criminal liability?- 1st degree murder: Act must be an essential, substantial & integral part of the killing (Harbottle)


- 2nd degree: Act must be beyond de minimus (Smithers) / Contributing significant cause (Nette)- Thin skull: No D: victim’s death/ reaction was unforeseen. Take ur victim as u find them (Blaue)- Remoteness: If consequences of A/R are remote, there can be no legal causation (tough test)- Intervening cause: Breaks causation. Does not qualify if it was dependant or RF (Maybin)


MENS REA - General:

- Intro:

- “An act is not criminal unless the mind is criminal as well. A degree of fault is required to justify the imposition of a criminal sanction bcuz criminal law should not punish the morally innocent.”

- “M/R is not defined in the CC. However, the CC does specify the differing degrees of fault req’d for conviction”

- “The M/R for a crime may be either subjective or objective, as long as the moral fault of the offence is proportionate to its gravity and the corresponding penalty (PFJ)”

- Approach:1. Is there express language of M/R?

- Subj M/R: (i)Intentionally (for purpose of); (ii)Wilfully; (iii)Knowingly; (iv)Recklessly; (v) Wilfully Blind- Crim Neg: Marked & substantial departure from the conduct of a RP which shows a wanton &

reckless disregard for the safety of others (F(J) per s. 219 of CC)- Penal Neg: Marked departure from the conduct of a RP; “Careless”; “Dangerous” (ADH)- Strict Liab: Claiming “no negligence” = no defence. Claiming “due diligence” = is a defence- Absolute Liab: No defence by M/R, Due diligence is no defence

2. If Yes : Determine what the express words mean. Is the prescribed M/R unconstitutional? - Stigma offences require Subj M/R: (i)murder (ii)attempt murder (iii)theft (Vaillancourt)- True crimes cannot dip below Penal Negligence standard (Hundal)- Crimes requiring incarceration cannot be absolute liability offences (BC Motor Vehicles)

3. If No : Determining if True Crime or Regulatory Offence - True Crime: In CC unless clear intention otherwise (Prue & Baril); In Fed Statute; Or:

i) Say “indictable”? = presumption of true crimeii) Nature & seriousness of the conduct (prohibit vs regulate). Is the crime bad in itself?iii) Severity of penalty (less than 2 years = probably regulatory). Fine = regulatory (Beaver)

- Regulatory Offence: If not in CC=presumption it’s regulatory. Filing paper=regulatory. Provincial4. Determine M/R requirements

- True Crime: Presumption of subjective M/R. If CC silent, could be any of the 4 (Buzzanga/ ADH)- Rebutted if: Parliament intended obj. standard through use of clear language (Pen/Crim neg):✴ (i) Dangerous, (ii) Careless, (iii) Predicate offence, (iv) Crim neg, (v) Duty-based offence

(ADH)- Regulatory: Presumption of strict liability (Sault St Marie).

- Rebutted if: Clear that absolute liability was Parliament’s intent (Does it say the word “abso-lute”? Are there any defences? Is there jail time? Is the misconduct minor?)

- Rule of symmetry:

- Definition: M/R must apply to all elements of the A/R. This is a rule and not a PFJ bcuz there are ex-ceptions to it (Creighton)- Exception: Predicate offences = An underlying offence followed by a prescribed harm (De Sousa)

- Example of predicate offence: Assault (underlying offence) causing bodily harm (prescribed harm)

- M/R for Predicate Offences: Crown needs to prove subj M/R for the underlying offence, and obj M/R (obj. foreseeability of the risk of harm) for the prescribed harm (De Sousa) = Easier for Crown to prove


- Justification for exceptions: M/R for manslaughter: Death does not need to be foreseeable, only bod-ily injury. Otherwise, would override thin skull rule if death had to be obj foreseeable (Creighton)- Obj M/R is constitutional: Bcuz it is not assessed in a vacuum (“What would a RP have done in all

the circumstances?”)- Deterrence: Want to deter dangerous conduct (even if only bodily injury was foreseeable). Crim

Law needs to consider POV of the Victim and Society as well as the Accused- Stigma: the stigma attached to manslaughter is less than murder, therefore, reasonable that a

lower standard of M/R is required - True Crimes - Subjective Mens Rea:

- Subj Fault Def ’n : Accused intended the consequences of their actions, or knowing (or being wilfully blind) to the probable consequences of those actions, proceeded recklessly in the face of risk (SSM)✴ Stigma offence: Subj M/R gives rise to moral blameworthiness which justifies the stigma &

penalty attached to a stigma offence (i.e. maintains proportionality) (Vaillancourt)• Provisions that allow conviction of murder w/o subj. foresight of death = unconst (Martineau)

- Common sense conclusion: “RP” standard is evidence from which a conclusion can be drawn that the accused anticipated the same consequences (Tennant and Naccarato)

- Motive: Is legally irrelevant to criminal responsibility (can be convicted w/ or w/o motive) BUT the exis-tence of motive is always factually important to the Crown’s case.

- What do the “express” subjective M/R words mean : (Subj states of mind = no constitutional concerns)

- Intentionally: Intent exists if an act will certainly, probably or only possibly cause harm (Buzzanga)- Direct intent: Does an act w/ intent, purpose, desire of bringing about the harm (Keegstra)

- Indirect intent: Does an act w/ intent, purpose, desire of bringing about something other than the prescribed harm but knows/ foresees prescribed harm is “substantially certain” (Chartrand)✴ “For the purpose of aiding” Doesnt require the accused to “desire” the offence. (Hib-

bert)✴ “Highly probable” not enough to constitute indirect intent. Must=substantially certain

(Hibbert)- Wilfully: If offence specifies “wilful” then Crown must prove it was done intentionally (Buzzanga)

- “Wilfully” requires two elements (Buzzanga):- Conscious purpose: Conscious purpose to do the prohibited act- Foreseeable result: Prohibited act was certain, or morally certain, to result from their ac-

tions —> Greater the likelihood of the consequences = easier it is to infer intention

- Knowingly: Subjective knowledge of some fact or state of affairs

- Recklessly: Accused knows or foresees that the harm possibly or probably could occur (Hibbert)- Is the minimal subj M/R that can be read into offences containing no specific M/R (Buzzanga)- Not Negligence bcuz of subj. element: accused “sees a risk but takes a chance”(Sansregret)✴ Reckless is diff than Wilfull Blindness bcuz can use defence of Mistake of Fact (Sansregret)

- Willful blindness: Deliberately failing to inquire when had knowledge about facts (Sansregret)- Must foresee a need for inquiry and choose not to. Prefer to remain ignorant (Briscoe)- Not Negligence bcuz of subj. element: accused “sees a need to inquire but does not”(Sansregret)

- True Crimes - Objective Mens Rea:

- Obj Fault Def ’n : Accused failed to direct their mind to a risk a R.P. would’ve seen (Creighton)

- Criminal negligence: Manslaughter (Creighton). Can be proven by an obj test (F(J))


✴ Manslaughter: Conduct causing death of another person, short of intent to kill (e.g. commit-ting another unlawful act which then causes death

- Penal negligence: Dangerous driving; careless use/ storage of a firearm; arson by negligence (Finlay)

- Situational Objective Standard (for both penal & crim neg): 1. A/R established? (i.e. marked departure from the standard of a R.P. in all the circumstances)2. M/R established? (i.e. standard of a R.P. in the circumstances of the accused)

- M/R cannot be inferred from A/R alone (Beatty)- Momentary lapse of judgement cannot establish M/R for dangerous driving (Beatty)

3. If both made out, consider capacity (i.e. did accused lack capacity to appreciate the risk)?- Short of incapacity, personal factors (age, experience, education) = NOT RELEVANT (Beatty)

- Conclusion:

- “In light of the evidence, would a RP have foreseen the risks and taken steps to avoid the risks?”

- “If yes, was the accused’s failure to foresee the risk a marked and substantial departure for the SOC expected of that RP?”


- Regulatory Offence - Objective Mens Rea / No Mens Rea:

- Strict Liability: Crown proves A/R BRD. Accused will then be guilty unless they can prove (burden shifts) on BOP that they acted w/ reasonable care or due diligence (Sault St Marie)✴ Reverse onus: Breaches of s. 11(d) rights but it is saved under s.1 (Wholesale Travel)

- Absolute liability: Crown only proves A/R BRD. Accused is convicted even if they took every precau-tion to avoid harm (i.e. no fault requirement). Accused can only argue no A/R✴ Imposed when: Parliament makes it very clear; or stigma/ penalty is so low in a regulatory

offence✴ Charter challenge: Absolute liab offences that have disposition of imprisonment bcuz vio-

lates freedom of s.7 Charter Rights (Reference Case)


SEXUAL ASSAULT - Definition:

- Definition: Sexual assault is not defined in the CC. Instead it is assault (intention / threat of touching per s.265) that was (i) Sexual in nature so that the (ii) Sexual integrity of the victim is violated (Chase)- Of a sexual nature: Objective test. Would a reasonable observer think it was sexual based on:

- The part of the body touched

- The intention behind the touching/ the nature of the touch

- The words, gestures or threats accompanying the act

- Of a sexual nature: does not require sexual gratification or proof of sexuality. It is an objective test. It is irrelevant what the accused actually felt or experienced (R v VKB)

- Actus Reus:

- Three elements: Touch; Of a sexual nature; Without consent (Chase)(1) Touch: Requires an objective test. (Ewanchuck)(2) Of a sexual nature: Requires an objective test. (Chase)(3) Without Consent: Requires a subjective test based on the victim’s state of mind (Ewanchuck)

- Consent requires: (i)A conscious & operating mind & (ii)positive affirmation- Conscious & operating mind: Must be able to revoke consent at any time & consent to each

and every sexual act —> Advance consent is not valid consent (R vJA)- Positive affirmation: Words/ conduct must positively affirm a willingness to participate

- Even if gives consent: If it was given because she feared she’d suffer violence = no consent. - Doesn ’t matter : If fear was: (i)Unreasonable or (ii)Uncommunicated. ✴ Forced consent = No consent

- Unnecessary: Consider accused’s perception of victim’s conduct to establish consent (Ewanchuck)

- Mens Rea:

- Two elements: Intention to touch; Knowing or being recklessly/ wilfully blind to a lack of consent(1) Intention to touch(2) Lack of Consent: Established if the victim communicates it thru words or actions (Ewanchuck)

- Use obj test (per s.273(2)(b)): Accused needs to take reasonable steps, in the circumstances known to the accused @ the time, to ascertain whether the complainant was consenting ????

- Constitutional: Obj. test upheld as constitutional bcuz sexual assault is not a stigma offence. PFJ can be respected w/o giving accused the most favourable procedures imaginable (Darrach)

- Mistake of Fact Defence:

- Mistake of fact: That the victim was consenting —> Denial of M/R for one or all of the A/R- To Deny Obj M/R: Mistake of fact must be honest & reasonable (Sexual Assault)- To Deny Sub M/R: Mistake of fact must be honest (Murder)

- Air of reality: For this defence to be put to the jury - there must be evidence explaining HOW the ac-cused could have mistaken the complainant’s lack of consent, as consent (Davis)- Pre 1992 Subj Test: MOF defence could be advanced if there was an “honest” but mistaken belief

in consent. Did not require accused’s belief to be “reasonable (too easy for accused) (Pappajohn)- Post 1992 Obj Test s.273(2) : If accused’s lack of knowledge of consent is due to own self-in-

duced intoxication/ recklessness/ wilful blindness, then no consent is proven & no defence can be advanced. The accused must take reasonable steps to ascertain consent (Sansregret)

- No defence:

- Implied consent (i.e. silence): is NO CONSENT AT LAW. (Ewanchuck)


- Accused ’s perception : Cannot apply if the accused believed the victim WANTED him to touch her if she NEVER EXPRESSED THAT DESIRE

- Passivity: Complainant does not have to expressly reject the advances (Ewanchuck)- Lapse of time: Once a victim says no, needs to expressly say “yes” for there to be consent again


DEFENCES - s. 19 —> Mistake if Law

- Ignorance of the law: Is not an excuse- Justification: It would (i)Create an insurmountable evidentiary burden for the Crown; and (ii)Encour-

age people to be uneducated

- Exceptions ignorance of the law —> Mistake:

- Mistake of fact: Accused reasonably believed in an honest but mistaken set of facts that, if true, would have rendered their act or omission innocent because they were unable to form the essential M/R

✴ There is no legal necessity that mistaken belief has to be on “reasonable grounds”

✴ Intoxication can be used to establish a mistake of fact —> Unlikely this would hold up in Court bcuz the “reasonableness” of the mistake can be used to assessed whether it was made honestly

- Regulatory offence not published in the Gazette: Ignorance of an unpublished regulatory offence is ex-cused

- Mistake of civil law: Will be treated as a mistake of fact for (i)Criminal offences when (ii)It is an essential element of the offence- Mistake of civil law is NOT a defence if the offence is in the provincial code (i.e. a regulatory of-

fence) (MacDougall) —> Overrides Prue & Baril

- Colour of Right: An honest but mistaken belief that you have a right in law to the property- Not guilty of ignorance in the law: If you can prove you had an honest but mistaken belief that

you thought the property was legally yours (Howson)

- Officially induced mistake of law: When a government official says it is okay to do something, and you relied on it, you should not be penalized for this reliance- Applies to: Both criminal and regulatory offences- Remedy: Stay in the proceedings (not an acquittal)- Requires: Six factors the accused has to prove on the BOP reverse onus constitutional?)—> Diffi-

cult standard to meet (Levis)(1) Error of law or mixed law and fact(2) Person who committed the act, considered the legal consequences of their actions(3) Advice was obtained from the appropriate official(4) Advice was reasonable(5) Advice was erroneous(6) Person reasonably relied on the advice in committing the act

- Due diligence: Relates to a fulfilment of a duty imposed by law- It is not fulfilled: By merely ascertaining the existence of a prohibition/ making diligent inquiries re-

garding the legality of their actions (Pontes)- Defence form strict liability offence: Needs to be a mistake of fact or an officially induced error

- Objective standard: Defence requires the consideration of what a reasonable person would have done in similar circumstances (Souverine) Is there a defence of due diligence??

-


INTOXICATION - General:

- Challenges M/R: Intoxication challenges the M/R —> Accused lacked the guilty mind bcuz of drug or alcohol abuse or both- Logic: Intoxicant can make actions involuntary v. Policy: Law shouldn’t reward getting overly drunk

- Does not apply: (i)Get intoxicated to have the courage to commit the crime; (ii)Drunkenness affects A/R

- Beard rules:

- Beard Rules #1: Did drugs/alcohol produce a “ disease of the mind ”? —> Is this eliminated???- If yes – consider application for NCRMD declaration under s. 16 CC- If no – go to rules #2 and #3 (and ask whether specific or general intent offence)- NB: Scope in this area seems to be narrowing (e.g. in 2011, SCC held that voluntary cocaine-in-

duced psychosis is not a disease of the mind for the purposes of this defence) (Bouchard Lebrun)

- Beard Rules #2 and #3: Did accused lack capacity to form specific intent by reason of intoxication? - Specific intent offence: Complex M/R. The accused must intend to commit this act but also have

an ulterior purpose in mind —> Something more than a simple act (Tutton)- Defence of intoxication was only available for specific intent offences (Leary)

- General intent offence: Simple M/R. Offence requires little mental acuity and consciousness- Policy for determining specific vs general:

- Habitual association: Alcohol habitually associated w/ crime = general offence- Lesser offence: If there is a lessor offence associated w/ the crime = specific offence- Judicial discretion: If there is minimum sentencing = specific offence

- NB: Reasonable doubt that accused had specific intent, must be convicted of general intent (Daley)

- Questions coming out of Beard rules:

- What is meant by “capacity” : Jury must be convinced BRD that the accused had the requisite intent to commit the prohibited act. Therefore, intoxication can be a defence if the accused established that the did not have the intent NOT whether they had the capacity for the intent (Robinson)

- Daviault:- General intent offences: Defence of intoxication can apply to general-intent offences IF intoxication is

so extreme it is akin to automatism (Daviault)- Reverse onus: Accused must prove on BOP that level of intoxication was this rare, extreme level

- Rejects guilty by proxy: Cannot substitute M/R to become drunk w/ M/R to commit an offence - To deny that a minimal mental element is required to commit an offence would offend the Charter

- s.33.1:

- Severely Limits Daviault Defence: Of self-induced intoxication for general intent offences if:- Intoxication was self-induced; and- Crime involved personal violence (assault, sexual assault, threat of interference)

- Charter issues with s.33.1 - Intoxication defence:

- Patchwork criminal law: ON says provision is invalid but BC upholds it = unequal application of the law- Issue: If some people are found guilty in one province but acquitted in others for the same crime

- Proof: The trial occurs months after the offence is committed - there is no opportunity to take a breath sample. Further, do they even know what or how much they consumed? If they were as incapacitated as they claim, can their memory of events be relied on?


- Disease of the mind: SCC held “disease of the mind” excludes mental states brought on by voluntary intoxication (Bouchard-Lebrun) If cannot prove underlying mental disorder - defence won’t work

- Daviault “fiction” : The state of alcohol-induced automatism may not actually exist - if so the mischief this law sought to remedy does not even exist

- “ Self-induced” : Is a person suffering from severe alcoholism “self-inducing” intoxicated? (Capozzi)


MENTAL DISORDER - Fitness to stand trial:

- Unfit to stand trial (s.2): Anyone who is unable to understand either (i)the nature or object of the pro-ceedings, (ii)the possible consequences of the proceedings or to (iii)communicate w/ counsel as a re-sult of a mental disorder (Whittle)- Very low threshold: Most ppl found fit. People do not need to make beneficial or rational decisions.

Just need to have a basic understanding of what is going on & communicate w/ counsel (Whittle)- Mental disorder (s.2): Given a broad interpretation. However, it does not include: volitional im-

pairments (Impulsivity) or emotional appreciations (Personality Disorders)- Unable to understand or communicate: Given a narrow interpretation. This is concerned w/ the

disease of the mind @ THE TIME OF TRIAL not @ the alleged crime. Therefore, it is not a defence.- Onus of proof: Presumption that people are fit to stand trial.

- Rebutted: If proven on the BOP that they are unfit (per Whittle). Onus on whoever raises the issue

- Disposition: If the accused is found unfit, the trial is delayed and the accused may be forced to:1. Be discharged into the community subject to conditions2. Be subject to mandatory treatment or 60 days in hospital if reasonable medical grounds to be-

lieve the treatment will render the accused fit - Charter issue: People have s.7 rights to refuse medical treatment but it has been found that

criminal law trumps the Charter Right in order make the accused fit for trial (Admin of Justice)- Disposition reviewed: Every 6 months if in a hospital. Every 12 months if in the community

- Not the definition of a MD: The test for fitness to stand trial is DIFFERENT than the definition of a mental disorder in s.16 (Whittle)

- Law reform: Test for fitness is too low —> Should require an individual to be “fit” enough to make de-cisions that are beneficial and in their best interest- Why: Bcuz allowing accused to go to trial w/o capacity to make decisions in their best interest can

lead to wrongful convictions

- General NCRMD Defence:

- NCRMD Defence is a statutory defence (s.16): By reason of a mental disorder, the accused lacked the guilty mind required for conviction- NCRMD doesn’t justify an accused’s actions, but it exempts them from criminal responsibility bcuz:

(i) They do not have the capacity to tell right from wrong. (Swain)(ii) Their actions were not actually voluntary or a product of their free will (Swain)

- Who can bring the defence: The accused OR the Crown if the accused has someone put their men-tal capacity at issue (Swain)

- Presumption of sanity: Every person is presumed not to suffer from a mental disorder unless the con-trary is proven on the BOP by who ever raises the issue (McNaughten)- Reverse onus charter challenge: Presumption of sanity does violate s.11(d) presumption of inno-

cence but is justified under s.1 (Chaulk)- Against: It permits the accused to be convicted despite M/R being proven BRD - For: If the Crown had to prove sanity BRD, it would be encumbered w/ an unworkable burden

- Issues with s.16 - NCRMD defence:

- Impulsivity: Irresistible impulses (addictions) cannot be used as a defence bcuz s.16 only deals w/ cognitive impairments —> Not issues w/ volitional control- Other options: Address voluntariness in A/R. Use Automatism defence


- Co-occurring mental disorders: s.16 silos insanity & intoxication when NCRMD is often contributed to by substance abuse —> NCRMD caused by: Person’s body, nature of the substance, enviro stressors

- NCRMD is not a good option: Can result in significantly longer incarceration. Accused’s future is more uncertain bcuz it is controlled by subjective assessments. Only use for most serious offences (Evans)


- NCRMD: Exemption from liability:

- To successfully run the defence: Accused must meet a two stage test (on BOP):1. Characterizing the mental state: Was the accused suffering from a s.2 “disease of the mind”?2. Effects of the mental state: By a result of the disorder, was the accused:

i) Incapable of appreciating the nature & quality of the act (Cooper); orii) Incapable of knowing it was wrong (Chaulk)

- Characterizing the mental state (Cooper)- Disease of the mind: Is a legal term defined by the courts NOT medical experts

- Broad interpretation: Any illness or disorder which impairs the human mind & it’s functioning

- Excludes: Self-induced states caused by intoxication & transitory mental states (automatism)- Also excludes personality disorders

- Intoxication:Temporary psychotic state caused EXCLUSIVELY by voluntary consumption of drugs or alcohol does not constitute a disease of the mind & cannot be used as a defence under s. 16 Presumption: from voluntary intoxication—> So run s.33—> Constitutional? (Bouchard-Lebrun).

- Rebuttal: Show evidence of an underlying disease (unrelated to intoxication-symptoms) - Did the psychosis persist after the effects of the drugs/ alcohol wore off?

- Imperative to show that psychosis was a result of an INTERNAL SOURCE (NCRMD) not an EXTERNAL SOURCE (Drugs and Alcohol). Was there an internal vulnerability?

- Meaning of “appreciate” - Intro: “Given the analysis above, it has been established on the BOP that the accused had a condi-

tion that constitutes a “mental disorder”. The next question is: Was the accused capable of appreci-ating the nature or quality of the act”.

- Appreciate: Appreciating the nature of the act focuses on physical nature of an essential element of the act. It does not extend to the (i)penal consequences or (ii)emotional consequences (Landry)✴ Penal consequences: You do not have to know the action is against the law (Abbey)✴ Emotional consequences: You do not have to know your action will cause another pain

(Abbey)• Why Psychopathy (emotional disorders) cannot use NCRMD defence

- Meaning of “wrong” - Intro: “It has been established that the accused has a mental disorder (s. 2) but they “appreciated”

the nature and quality of the physical act. As such, the question is: Was the accused incapable of knowing that what they were doing was ‘wrong”?”

- Wrong: Knowing something was “wrong” = understanding it was morally wrong by the standards of reasonable members of society (not morally wrong by accused’s standards) (Chaulk)- Swartz said “wrong” = incapable of knowing the act was “legally wrong”. Overruled by Chaulk.- “Wrong” means knowing that a particular act is wrong in particular circumstances (Oommen)

- Law reform: Very concerning that ppl are being judged on their level of rationality WHILE UNDER PSYCHOSIS. Rationality should not be a question if it is determined that they have a “disease of the mind” @ the time of the crime.

- NCRMD: Disposition:

- S. 672.54 in Part XX.1: The verdict is NOT not-guilty. Three dispositions available:i) Accused may be detained in custody in a hospitalii) Accused may be released to community, subject to conditions of supervisioniii) Accused may be discharged absolute\ly

- Decision maker must take into account: Health of the accused; Protecting public from dangerous ppl


- There must be a real risk/ threat of harm. If risk is uncertain = accused is released (Winko)- Other requirements: Must issue the least onerous disposition bcuz these accused are NCR.

- Must be an annual review regarding decisions of discharge

- Not a requirement: For an individual to undergo compulsory treatment if successfully run NCRMD- Harper Bill C- 54????


AUTOMATISM - General:

- Common Law defence preserved by s.8: Defence of Automatism negates “voluntariness” in A/R

- Result: Successful Non-MD Automatism Defence = Full acquittal

- Success depends on: The source of disassociation/ automatism

- Definition: A state of impaired consciousness where an individual, though capable of action, has no voluntary control over it (Stone)- Two branches: (i) MD-automatism and (ii) Non MD automatism (Stone)

- Why it is justified: PFJ that conviction can only occur if conduct is voluntary. Automatism applies when a person does not have any voluntary control over their actions; mind & body are disconnected

- Burden of proof: Can intoxication get to automatism and then get to NCRMD from MD-Automatism???

- Initially: If some evidence of automatism, Crown had to prove A/R was voluntary (Rabey & Parks)

- Now: Start w/ presumption that actions were voluntary (same as s.16 presumption of sanity). Then Burden falls to the accused to show on the BOP that their conduct was involuntary (Stone)- Same reverse onus for automatism, s.16 NCRMD & Daviault defence of extreme intoxication- Why accepted: To rebut presumption of sanity, only evidence is in the mind of the accused. Re-

quiring the Crown to prove this BRD would set an impossible high burden (Stone)- Evidence: Expert evidence (psych report) + Supporting evidence (family history, prev incidents)

(Stone)- Results:

- MD-Automatism: Funnelled thru s.16—> Part XX.—> discharged: absolutely, conditionally, hospi-tal

- Non MD-Automatism: Full acquittal —> Cannot assign fault to an involuntary act

- Intoxication: Daviault defence (extreme intoxication akin to automatism)—> s.33.1 —> Charter

- Law reform: s.16 SPECIFICALLY EXCLUDES people whose MD comes from impulsivity (i.e. au-tomatism). Stone expanded the reach of s.16 beyond its statutory confines —> Now s.16 will capture those with cognitive deficiencies AND volitional deficiencies Good or bad thing??

- Non MD Automatism:

- Examples: Concussion; Chronic Insomnia(Jiang); Stroke; Extraordinary psychological blow (Stone)

- Holistic approach: To decide which conditions are “diseases of the mind” Courts should take a holistic approach and consider: (i)Internal cause theory (ii)Continuing danger theory (iii)Policy concerns. (Stone)

(i) Internal cause theory (Rabey): - MD- Automatism: Dissociative conduct arising from normal stressed of life = disease of the mind

- Results from an internal weakness.

- If normal stresses throw you into that kind of a state, you should be treated

- Non MD-Automatism: Dissociative conduct arising from extraordinary event = automatism- Psychological blow req’r REALLY SHOCKING TRIGGER. Amnesia alone is not evidence (Stone)

(ii) Continuing danger theory (Parks)- MD- Automatism: Chronic, persistent condition that is likely to reoccur = disease of the mind

- Because it is a danger to the public to release someone who is likely to cause harm again- There must be a REAL risk of criminal conduct (Stone)

- Non MD-Automatism: Condition is a one time thing, transient = automatism(iii) Policy concerns (Stone)


- Concerns about accused fabricating their condition? Public disillusionment over outright acquittal? Concerned that full acquittal won’y allow for subsequent monitoring?

- MD Automatism:

- Definition: Conduct resulted from impaired consciousness due to a disease of the mind

- Presumption: In favour of MD-automatism. Judge must then decide if accused is NOT MD

- Help: Delay trial to get treatment options to lessen public danger concerns. Risk: Evidence of NCRMD


PROVOCATION - General:

- Partial/ limited defence: Can reduce murder to man slaughter BUT DOES NOT RESULT in a full ac-quittal —> Can escape mandatory minimums

- Application: Only to Murder AFTER the Crown has established A/R and M/R

- Revised defence (s.232):- What is provocation (s.232(2)) : Has three parts:

1. Wrongful act: Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and - Seeing a wife having an affair would NOT constitute a wrongful act (Tran)

2. Objective standard: That is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, - Charter: Attributes of “ordinary person” must be consistent w/ charter values (Tran)

- Culture: Irrelevant to “ordinary person” test if antithetical to Charter values (Humaid)- Personal attributes: May be considered but they do not shift the objective standard (Tran)

- Relevant: Age can be relevant to assessing the degree of self-control?? (Hill)- Not relevant: Race or gender (Hill) Thibert said it was relevant??

- Characteristics can be attributed to the ordinary person if help assess the gravity of harm

- Law reform: Should proportionality be a requirement in the objective standard? The test is cur-rently: “Would an ordinary person lose self-control”. NOT “would an ordinary person do what the accused did”. This could be a way to restrict the defence. - Self-defence requires proportionality

3. Suddenness: If the accused acted on it on the sudden & b4 there was time for passion to cool. - Subjective test: Not met if the accused already “suspected” something b4 murdering (Tran)

- Not included: s.232(3) No one shall be deemed to have given provocation to another by doing any-thing that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

- Rationale:

- A person who loses self control, momentarily, in response to someone elses’s action has dimin-ished culpability

- Limits: The victim’s conduct and the objective test limit the use of this excuse by people who are ex-citable. Attempting to balance human frailties (inability to stop themselves from responding to provoca-tion) with the need to protect society from homicidal acts- Victims conduct: Victim’s conduct must be a criminal act subject to 5 years or more in prison

- Objective test: The conduct of the victim must cause an ordinary person to lose control

- Law reform: We should be harsher on people who lose their temper and commit homicidal acts

- s.232 still promotes:- Idea of male temper, violence against women, gays (majority of acts against vulnerable ppl)

- Victim blaming at trial

- Privileging anger (can be excused) over other emotions (killing people out of compassion)


- That human facilities (excitable) exist —> do they really?


- Evolution of the defence:

- Original defence:

- Wrongful act or insult: Injurious speech or behaviour that was intended to wound or affront the dignity of the accused

- New defence (as of July 2015):

- Wrongful act: Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment

- Burden of proof:- Accused: To leave the defence w/ the jury they must establish that (Thibert):

1. Conduct of the victim constituted an indictable offence (punishable by 5 or more yrs)2. Some evidence to suggest the act would have caused an ordinary person to lose self control3. Some evidence that the accused was actually deprived of self control in a state of suddenness

- Crown: Prove BRD that there was no provocation (Thibert)


SELF DEFENCE - General:

- Defence: Accused must show all three elements of the defence of Self Defence have an “air of reality” before it will be put to the jury- Air of reality = Is there evidence, on the record, upon which a properly instructed jury (acting rea-

sonably) could acquit the accused if it believed the evidence to be true? (Cinous)- Result: “Not guilty” = full acquittal. No longer seen as a justification or an excuse

- s.26: Still applies if excess force was used in Self Defence. Accused will be criminally responsible for any acts of excess force

- S.34(1):- s.34(1)(a): Accused believed on reasonable grounds that force is being used against them or an-

other person or that a threat of force is being made against them or another person- Subjective/ Objective test: The accused must subjectively perceive an unlawful assault and their

subjective perception must be reasonable (Petel)- The accused’s fear or perception of harm does not have to be correct, only reasonable

(Lavallee)- External Attributes: A reasonable person is a sober person. Cannot argue their beliefs were rea-

sonable in the context of “an intoxicated state” (Reilly) - Internal Attributes: A reasonable person should consider:

a) Diminished intelligence of an accused (Nelson)b) History of relationship:

- Battered woman —> Require expert evidence to explain her fear (Lavalee)

- Prison environment syndrome —> Assault does not need to be imminent (McConnell)c) Aspergers syndrome should be considered (Kagan)

- Distinguished from mistake of fact: Bcuz it requires the mistake to be reasonable- Law reform: Reasonable person is a sober person —> But what about people living with addic-

tions? Are they barred from using this defence?

- s.34(1)(b): The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force [NEW]- Subjective test: Look at the intentions of the accused

- Revenge: This defence CANNOT BE USED for vengeance or retribution

- Time lag: The longer the time lag btwn the original unlawful act and the accused’s response = the more likely the accused’s actions were motivated by revenge- Exception: Battered women. Danger does not need to be imminent for accused’s intentions to

be reasonable. History of violence may allow her to predict onset of future violence (Lavalee)

- s.34(1)(c): The act committed is reasonable in the circumstances

- Objective test: Assessed based on s. 34(2)


- S.34(2):- s.34(2) : In determining whether the act committed is reasonable in the circumstances, the court shall

consider the relevant circumstances of the person, the other parties and the act, including, but not lim-ited to, the following factors:

- The list is not exhaustive. The list adds proportionality, but it is not determinativea) the nature of the force or threat;

- Consensual fistfights: Cannot use defence of self-defence in consensual fistfights (Paice) b) the extent to which the use of force was imminent and whether there were other means

available to respond to the potential use of force;

- Other means: If in a public area, difficult to argue there were no other means to protect your-self (Cinous)

- Imminent: Imminence is only a factor —> Reasonable for a prison inmate to kill another, in cer-tain circumstances, w/o the threat being immediate (McConnel)

- Retreat: No REQUIREMENT to retreat. But also no right to stand one’s ground (Cinous)

- Home: When in your home —> No requirement to retreat (Lavallee)c) the person’s role in the incident;d) whether any party to the incident used or threatened to use a weapon;e) the size, age, gender and physical capabilities of the parties to the incident (contextual);

- Intoxication: Cannot be used to justify the “reasonableness” of their act (Reilly)

- Mental health: Aspergers symptoms (paranoia, anxiety) can be considered when determining the reasonableness of the accused’s actions (Kagan)

- Intelligence: Diminished intelligence taken into account to determine “reasonableness”(Nelson)f) the nature, duration and history of any relationship between the parties to the incident,

including any prior use or threat of force and the nature of that force or threat;

- Battered woman (Lavalee)- Threats made the night before the killing were relevant (Petel)

g) any history of interaction or communication between the parties to the incident;h) the nature and proportionality of the person’s response to the use or threat of force; and

- Objective standard: court looks at the force/ threat of force that was used by the attacker and the force that was used by the accused, and then decides whether objectively it was propor-tionate.- Objectively proportionate: Whether a reasonable person would think it was no more force

than necessary. The test is contextualized (reasonable person in accused’s circumstances)- Excessive force: If killing results from excessive force cannot be justified by self defence (Faid)

✴ Lack of proportionality is not determinative

i) whether the act committed was in response to a use or threat of force that the person knew was lawful.

- Battered woman:

- Jury must be told: Four things to properly understand the evidence given by a battered woman in duress, provocation, self defence

1. Why an accused remains in a relationship2. Nature and extent of violence existing in prior relationship


3. Accused’s ability to perceive danger4. Whether accused believed they could not otherwise preserve their life


DURESS - General:

- Definition: Defence for an accused who commits a criminal act while subject to a threat or compul-sion from another person (Ryan)

- Application: After the Crown has proved A/R and M/R (Ruzic)

- Duress excuses the action but does not negate M/R. Accused committed a wrong act & knew what they were doing - but EXCUSED bcuz THEY DID NOT DESIRE THE CONSEQ. (Hibbert)

- Burden of proof:

- Accused needs to provide some evidence on each element of the defence b4 it is put to the Jury- Crown needs to prove BRD that the offence was not committed under duress

- Result: Acquittal

- Primary offender:- Primary offender: One who actually commits an act —> Statutory Law (s.17 of CC)

- s.17: Very stringent but only applies to primary offenders (Pacquette):a) A person who commits an offence under compulsion of threat of immediate death or bodily

harm- Can be explicit or implied (Mena)

b) By a person who is present when offence is committed, is excused:c) If the person believes the threat will be carried outd) It not party to a conspiracy (part of a criminal gang)

• If person voluntarily puts themselves in a positions where they could be coerced, we cannot conclude there was no safe avenue of escape (Ryan)

✴ SCC struck out (i)Immediacy and (ii)Presence requirements (Ruzic).

• Why: Bcuz it eliminated the defence against a threat of future harm or harm to a 3P

- s.17 exceptions: Defence will not apply if a primary offender commits:

- Murder, sexual assault, bodily harm, abduction, high treason = cannot use duress

- Justification for exceptions: Parliament decided you should be killed instead of killing, etc.

- Law reform: Exclusion clauses are UNCONSTITUTIONAL. If we cannot convict the morally-invol-untary, then why do we have 22 exceptions to s. 17?

- Likely unconstitutional bcuz no exclusions in CL (secondary offenders)

- Reasoning for exclusions: “He rather die himself, then escape by murder of an innocent”.

- This is a ridiculous: Not certain that if accused REFUSES, victim’s death WILL BE AVERTED


- Secondary offender:- Secondary offender: one who aids or encourages someone else to offend —> Common Law

- Common law: Very generous but only applies secondary offenders (Pacquette):

- To have a successful defence of duress, it must be established that the secondary offenders has:a) Threat of present or future death or bodily harm directed @ accused or 3Pb) Accused reasonably believes the threat will be carried outc) No Safe Avenue of Escape (defence does not apply where the person could have legally and

safely extricated themselves from the situation) (Ryan)

- Modified obj test: Evaluate accused’s options against what RP, similarly situated, would do

d) Close Temporal Connection (a threat that is too far removed in time would cast doubt on the seriousness of the threat and the absence of an available safe avenue of escape) (Ryan)

- Modified obj test

- Must show some pressure on accused bcuz immediacy & presence req’m were struck down

e) Proportionality (harm must not be greater than the harm avoided). Only an action based on the proportionally grave threat can be considered morally involuntary (Ryan)

- Modified obj test: Evaluate accused’s response to the threat against what a RP, similarly situ-ated, would do

- Two elements: Diff. btwn magnitude of harm threatened & offence committed; General moral judgement about accused’s behaviour in the circumstances

- Exclusions: Does not have any exclusions (Pacquette)

- Narrow interpretation: Duress is not available in situations where self-defence is not available

- Law reform: Imminency and presence restrictions have loosened. BUT duress still presents areas of concern for battered women who react to what is perceived as “no imminent danger”

- Battered women claims in duress have been rejected (Ryan)


Policy- NCRMD: Reverse onus to prove insane aims to prevent sane people from getting off on tenuous insanity pleas, but govt

has failed to prove this is a real social problem – no widespread evidence of this.

- A/R Causation: Is it a good thing that first degree murder has a much higher test for causation then second degree?- “Gravity of a first degree crime and the severity of the sentence both indicate that a substantial and high degree of

blameworthiness, above and beyond that of manslaughter, must be established (Harbottle)- However, gravity of 2nd crime and the sentence are also pretty severe. Yet, the causation standard is so much

lower. Is this a disconnect? Unduly punishing second degree murder? A preventative/ deterrent aspect - do not let emotions get the better of you?

- Absolute liability offences: Incarceration (Sault St Marie)- Against: People will not take precautionary measures if they cannot use it as a defence (due diligence)- Against: If due care is exercised, and still incarcerated, there is no deterrent value to this law

- Officially induced mistakes: - Remedy: Only get a “stay of proceedings” rather than an acquittal.

- It is not Accused’s fault - so why do they not get acquitted?- Burden of Proof: Accused must prove the “officially induced mistake” defence on the BOP

- Burden of proof should not be on the accused if it is a true crime- Analogized: Officially induced error has been analogized to entrapment, however the moral culpability of the ac-

cused in “officially induced error” is much different than the moral culpability in entrapment

- Bill C-54 re: NCRMD Defence- After accused is found NCRMD, Crown can argue they are a high risk offender which would then require a hospital

detention order. This will stop the accused from being released UNTIL detention order is removed- Controversial: There was no mischief that required this new bill to be introduced. No reason to enact harsher pun-

ishments when old law was working. No proof of subsequent harm done by NCRMD-released- Bouchard LeBrun

- When dealing with a temporary transient psychosis: PRESUMPTION of external cause from intoxication- Not treated under NCRMD- Not treated under Automatism.

- If the person is substance-dependent, is the psychosis induced by an internal or external factor?- Brain damage from substance abuse: the damage may render the accused more vulnerable to a psychotic

episode while on drugs —> tension between external and internal.- Internal cause theory:

- External factor: Use of drug- Internal factor: Continued use of drug because of internal addiction problem

- If the brain damage is more likely to cause substance abuse, then what causes the intoxication? Is it voluntary any-more?

- “ Self-induced” : Is a person suffering from severe alcoholism getting “self-induced” intoxicated?- s.33.1: If not —> Should an addict not be subject to s.33.1??

- Is there enough money for drug addicts to go into the psych system under s. 16?

Criminal summary Kayli Clark 28 of 29- Sex sombulism (Leudecke)

- Should this be treated under s.16?- Should these cases be acquitted?- Is this really a state

Questions to practice- Should an offence be recognized as a stigma offence? If not, note that they should require a lesser degree of fault, obj

fault

- Is it right or wrong that s.16 excludes psychopaths?

- Is it right to focus on moral wrongness vs. legal wrongness in the test for NCRMD?

- Would you advise your client to use the defence of NCRM


ESSAY

- What area of law would you reform:

- Mental disorder - Fitness to Stand Trial

- Mental disorder - Presumption of sanity

- Mental disorder - Co-occurence

Conclusion- There are many questions left unanswered but the most important thing to do with NCRMD is to start by asking

those questions and gathering the proof.- Evidence needs to be put before the court so they can start taking these questions seriously and adapting the in-

terpretation of the NCRMD defence to respond to these concerns and shortcomings- The evidence can take the form of evidence of the limitations in the clinical environment regarding NCRDM diag-

nosis- Can also take the form of psychiatrist bias towards the crown.

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