Term 2 Notes

Criminal Law: Winter 2009 Exam Guide

R. v. Beatty (2008), SCC

IMPORTANT

Dangerous Driving = marked departure

Negligence (causing death OR bodily harm) = marked & substantial departure (modified objective test)

Other Crimes = marked departure

Test for dangerous driving: (separating AR and MR) USE THISAR: must prove objectively, BARD, that the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances, include the nature, cond’n and use of the place at which the motor vehicle was being operated and amount of traffic at the time– NOT using a marked departure here!

Must fall below standard of reasonably prudent driver

MR: the conduct amounted to a marked departure from a reasonable person in the accused’s circumstances, short of incapacity to appreciate the risk or avoid creating it. The accused’s personal attributes (such as age) are not relevant (but mental state can be relevant)

Negligence is a form of fault, not actus reus

Activities that require “little conscious thought” and are done by a substantial portion of society (e.g. driving) require higher fault requirements – can’t paint everyone a criminal, lapses will happen often

Dangerous driving causing 3 deaths bc momentary lack of attn

Notes: McLachin +2 = infer MR from AR (i.e. absolute liability offence) All penal charges require at least a marked departure from the objective norm Most car accidents happen in a flash -> case seems to imply that majority of crashes will have to be dealt with provincial regulatory legislation

R. v. JF Are these verdicts inconsistent?

Crim negligence causing death: fault = marked and substantial departure; Failing to provide necessities = marked departureThus, doesn’t make sense that was convicted of Criminal negligence and not failing to provide necessities which is lower on the continuum. See pg. 559 for 3 types of objective fault requirements

Mom abused child and child dies. Father does nothing to intervene. Father is charged w 2 predicate offences

CRIMES BASED ON PREDICATE OFFENCES (if A then B offences)The unlawful act cannot be an AL offence (Desousa).If it starts out as a simple negligence then it gets bumped up to gross negligence, the lowest fault form in the CC. Test: Objective foreseeability of the risk of bodily harm in the context of the dangerous act. We don’t want to convict someone of manslaughter unless the orig. Offence is a dangerous one.Special Stigma: Murder, sexual assault, theft will bump it up to subjective fault.Case Name Issue/Holding Reason/Ratio FactsR. v. DeSousa [1992] SCC

What is the fault requirement for the underlying offence in a predicate offence?

Part 1: Unlawful act – assaultPart 2: It was objectively foreseeable that throwing the bottle against the wall could cause bodily harm

Bystander injured when accused threw bottle against wall. Charged w/ neg.


OBJECTIVE, we can hold u responsible for causing harm even if there was no fault w regard to that consequence as long as you had some fault (If you had fault for the underlying offence)

The fault element for an underlying offence is one of objective foresight of bodily harm. The bodily harm must be more than merely trivial or transitory in nature Underlying offence can’t be one of absolute liability.

Note: created 2 categories of criminal offenses:1. special stigma: subjective2. no spec stigma: objectiveDoesn’t address what special stigma is. Suggests that if there is flexibility, no special stigma here bc will soften their blow in sentencing.

causing bodily harm. S. 269

R. v. Creighton (1993 SCC) (part II)

Can you be responsible for manslaughter?

Same test used

You have to objectively foresee harm, not death, in an unlawful manslaughter caseTest for the fault element for an unlawful act:1. must be mens rea for the underlying predicate offence (cannot be AL offence)

(must prove the unlawful act and fault element); PLUS2. Must prove objective foreseeability of the risk of bodily that is neither trivial nor

transitory in the context of a dangerous act

The minimal fault element for predicate offence is marked departure; Predicate offences don’t always have the same fault threshold it could vary – could be gross negligence or SF

Note: take your victim as you find him – If we can find you guilty for a federal or provincial crime – you will be responsible for everything that flows from it – as long as we can show in hind sight that it is objectively dangerous – this will not be hard! Overturned 100s of years of jurisprudence

Unlawful act = trafficking. Ended up causing death (manslaughter) while trafficking. No intention to kill anyone.

Wilson thinks we should be able to charge absolute liability offense as predicate offence bc once it becomes a predicate offence, the fault changes

***Know there is a distinction between the unlawful act and negligence. Different tests used

Example: Throw oil in river, want to get rid of it. Evidence shows that it floated down the stream, someone ingests it and dies. Couldn’t charge w murder. Could you try to charge criminal neg (would you be able to show marked and sub dep? - possibly). Going to charge w unlawful act, culpable homicide. Unlawful act = environmental offence of pollution. Prosecute them on this. This is a strict liability offence.

First need to prove BARD actus reus and mens rea of the original offenceo Then accused must show on a BOP that they acted as a reasonable person – Fault element is simple negligence – Will be hard to show this

so gets finedNext we find out that as a result of this conduct, someone dies – so we charge person w manslaughter under s. 222(5)a – unlawful act, culpable homicide


o Unlawful act = violation of provincial environmental legislation. This is no longer an environmental offense, it is now a crimeo Elevate the fault element to marked departure – Burden of proof switches to the Crown – crown needs to show BARD that the conduct was a

marked departure (So if the unlawful act turns into a predicate offence then the fault and burden of proof changes – so just bc you can convict of an environmental offence, doesn’t mean that once it turns to predicate offence, you can convict bc now fault elevated and needs to prove based on this act)Then need to show objective foreseeability in the context of a dangerous act

SEXUAL ASSAULT

Actus Reus of Sexual Assault: An unwanted sexual touching. (1) Involves touching the person; (2) the touching has to be sexual in nature or violate the sexual integrity of the victim; (3) and it has to be in the

absence of consent. The third aspect is subjective: subjective to the victim and her state of mind.Mens Rea of Sexual Assault: (1) An intention to assault, (2) and then knowledge, recklessness or willful blindness on the issue of consent and whether the person was

consenting or not.

Sexual IntegrityCase Name Issue/Holding Reason/Ratio FactsR. v. Chase [1987] SCC

Distinction bw rape and sexual assault

Sexual assault is broader than touching of genitalsTest = objective – would a reasonable observer view as a violation to the sexual integrity of the person? no req’m for sexual gratification and it is not limited to certain parts of the body

Neighbor grabs girl’s breasts. She fought back and he attempted to grab ger vagina.

KB Case Was this sexual assault? YES

assault is of a sexual nature when the accused’s sexual integrity is violated

Grabbed son in genital area as disciple to show him how much it hurts after he grabbed a boy’s

R. v. M (1995) Mall in Edmonton

Is there sexual assault w/o gratification? YES

Sexual gratification isn’t a necessary prerequisite for sexual assault, as many times, it is to show domination and power sexual assault if integrity is violated – she was 12!!!

12 year old was refusing to obey parents. Step-father pulled down her pants and pantis, and spanked her in mall

New LegislationA. Rape Shield

Can you bring in past sexual history?Rape Shield provision: tried to limit defenses which attack the victim by saying that the victim is more likely to lie declared invalid – huge

outcry


Response: bill 276 which codifies the admitting of past sexual history o sexual history is allowed in rare circumstances such as personal relationshipso can’t go fishing for information, there needs to be something specific you are after and must establish that this evidence is absolutely

necessaryVictim impact stmts – accused goes face to face w victim and victim tells how was affected

Case Name Issue/Holding Reason/Ratio FactsR. v. Darrach

Does disallowing sexual history prevent him from full answer and defense?

SA = stigma crime SUBJECTIVE

allows admitting of evidence of significant probative value that is not outweighed by the dangers of prejudice to the proper administration of justice

Charged w SA and wanted to introduce evidence of complainant’s sexual history – deals w s. 276

B. ConsentSection 273.1: voluntary agreement of the complainant to engage in the sexual activity in question if consent, then NO ARSection 273.2: no consent is obtained if the accused’s belief arose from: (1) self-induced intoxication; (2) recklessness or willful blindness; (3) failed to take reasonable steps in the circumstances – not an exhaustive list

C. Mistaken Belief in ConsentNo consent if:(1) given by a 3rd party; (2) if person is incapable of consenting; (3) abuse of power; (4) word/conduct show lack of consent (4) change of mind This list is not exhaustive

Person to take reasonable steps to ascertain consent– SUBJECTIVE – burden of proof is on Crown to show that person didn’t take all reasonable steps

Case Name

Issue/Holding Reason/Ratio Facts

Pappajohn v. R

Cannot argue Honest but mistaken belief here bc accused argued there was actual consent not mistaken so defense is unavailable

consent = SUBJECTIVE TEST (state of accused’s mind) In order to argue mistaken belief, you must have taken reasonable steps to determine if there is consent – if so, then this negates the MR The accused has the burden to raise this defense but the burden of proof is on the Crown

Charged of rape. Victim runs out of house naked looking for help. Accused argues TJ should’ve put forwards defense of mistaken belief to jury

R. v. Ewanchuk [1999] SCC

Is it a defense if you thought there was consent? NO

I thought she wanted to have sex (not a defense) and I thought she gave consent

Test for SA:AR has 3 elements: 1. Touching = OBJECTIVE – sufficient for Crown to prove that accused’s

actions were voluntary2. Sexual nature of conduct = OBJECTIVE – Apply Chase Test – Crown

doesn’t need to prove that the accused had any MR wrt a sexual nature of his

Victim goes in van for job interview. She said no to each of his advances. Ended up massaging each other bc she was afraid


(defense) behaviour3. Absence of consent = SUBJECTIVE – look at victim’s state of mind – no

defense of implied consent

MR: = GENERAL INTENT – looking at the accused’s mind (honestly belief of consent)1. Intention to touch2. Knowing of OR being recklessly or willfully blind to lack of consent

MISTAKEDEFENSES: Mistake of Fact (can result in acquittal) vs. Mistake of Law (no acquittal)

Mistake of Fact: DEFENSE honest mistake as to a certain part of the fact pattern (e.g. thought she consented)Mistake of Law: NO DEFENSE honest mistake as to what the law is (e.g. didn’t know you needed consent by law)Mistake of Fact and Law: DEFENSE MISTAKE OF FACTNegating the MRPappajohn leading caseIf the offence requires: The mistake MUST be:Subjective MR HONEST mistake, reasonably held; reasonableness is used to assess credibility (Pappajohn); crown must prove this

BARDObjective negligence requirement HONEST and REASONABLE (R v. Tutton) – crown must prove marked departure from reasonable standardStrict Liability, with due diligence

HONEST and REASONABLE, with onus of proof on accused to show that care was taken

Absolute liability No mistake of fact defence. There must be no jail time possible though. (R v. Hess, R. Nguyen)

Case Name Issue/Holding Reason/Ratio FactsR. v. Hess; R. v. Nguyen [1990] SCC

Consent and age A person under a certain age (16) cannot consent, so the defense of mistake isn’t available Exception is if there is a closeness in the age range This amnts to an AL offence

Aside – Charter Issue here: S. 7 and 15 violated but not saved by s. 1

Both men were charged w having sexual intercourse w a person under 14

R. v. McLeod (1954) BC CA

HMB that about person being a cop negated the MR

must have the requisite fault for the particular crime charged (If you are charged w X, Crown needs to show that X was intended) BUT, no need for perfect correlation bw AR and MR – u can be convicted of a lesser offence than the one you are charged w (convicted of assault, not assaulting a cop)

Officer in plainclothes tried to break up a fight bw kids. Onlooker punched officer telling him to mind his own


Problem w these cases: if the act he believed he was committing doesn’t have a lesser included offence, we can’t convict bc no MR plus, we can’t enter into a conviction for what he thought he was committing bc there is no AR

business.

R. v. Ladue [1965] YT CA

Cannot rely on HMB bc he was intending to commit one crime (rape)

an intention to commit a crime, though not the precise crime provides MR (MR from SA was used to convict on charge of interfering w a dead body) his mistake was a crime in itself The defence of mistake of fact will excuse only the morally innocent.

Note: he had the AR and MR for attempted SA so he could’ve been charged w that!

Charged w having sex (or attempting to) w a dead person. Argued mistake of fact that he was too drunk to know she was dead

R. v. Kundeus [1976] SCC

Transferred intent If bring defense of mistake of fact Evidentiary obligation, but you don’t have to do very much Transferable intent: courts took the intent to sell X and put it together w Y and convicted him; Regardless, he was trafficking

Note: drug laws have changed since this case. Under the present CC you’re only liable for the offence you are charged w. Courts cannot convict you for a lesser offence. There were suggestions that a reform should be added whereby you can be charged with an offence, but if you raise the mistake of fact defence, then you can enter conviction for the lesser offence if not convicted of the greater offence.

Charged w trafficking LSD, however, he thought he was trafficking a less serious drug.

R. v. Beaver defense may be allowed if mistake goes to the essence of the offense Thought possessing powder milk, not cocaine

MISTAKE OF LAWMistake you’ve made isn’t about fact, rather something w the existence of the law; idea in the minds of pplSection 19 CC: ignorance of the law is no excuse BUT there are some exceptions

Note: Law Reform Commission- If you made a mistake about the law under which you were charged = big trouble.- If you made a mistake about one area of law resulting in a prosecution in another area of law = defense (acquittal) – bc treats it as a mistake of fact

3 Exceptions: 1. Colour of Right – when there is no actual right, and you took it under the misapprehension that you had the legal right (statutory exception)2. Officially Induced Error (common law defence)3. Lack of Publication – publication (in Gazette) is sufficient notice; defense can arise if change in law wasn’t published in the Gazette


Case Name Issue/Holding Reason/Ratio FactsMistake of LawR.v.Campbell &Mlynarchuk 1972 (AL TC)

Innocent mistake

mistake of law is no defenseShe had the MR since she intended to do what she did

Can be a defence if willful, maliciously, or knowingly is required – because of mistake of law, there was no willful intent or malice

Use mistake of law to mediate punishment, not find person not guilty (given absolute discharge)

Kokoliades v Kennedy (1911) QC SC: man relied on municipal by-law that allowed him to perform an act, even though federal legislation banned it – was still convicted

Charge for obscene performance (“go-go”) – believed it was legal based on another case that was later overturned

Distinguishing bw Mistake of Law and Mistake of FactR. v. Prue; R. v. Baril [1979] SCC

No mens rea, case dismissed

Laskin: MoF (Wilson has issues w this), ignorance of suspension = ignorance of fact CC requires mens rea – existence of a suspension from driving is a question

of factRichie (dissent): MoL, legal consequences of their initial conviction

Where admin. action required to inform person license has been suspended, and has not been taken, accused can rely on mistake of fact

Here, ignorance of law upon failure to be aware of automatic suspension – ignorance of legal effect of suspension

hard to distinguish bw MoL and MoF. It depends on the court. If sympathetic court, and they don’t want to find person guilty, will find MoF

Guilty of impaired driving. License was suspended(prov). Accused didn’t know. Later, pulled over, charged w driving w suspended license (fed CC)

Exceptions

R v Custance (2005), MAN CAReleased on bail, reported his address as an apartment his friend had apparently rented – which the friend in fact did notMistake of law -> accused slept in his car when he realized apartment wasn’t available, rather than reporting himself to the police- Found guilty, given time servedR v Forster (1992) SCC: accused tendered resignation from armed forced and didn’t show up to assigned post the next day, even though according to law she was not officially released from service Was a mistake of law, not fact

Case Name Issue/Holding Reason/Ratio Facts


COLOUR OF RIGHT for property offencesR. v. Dorosh 2004 (Sask CA)

s.322 CC – colour of right

arises in your mistaken belief about the civil law of property or state of facts- Honest belief in a proprietary or possessory right to the thing which is the subject

matter of the theft, or an honest belief in the state of facts which if it actually existed would at law justify or excuse the act done

can only use the defense if the code allows for it – mens rea defence, not actus reus can be used for legal or factual mistakes or both***Burden of proof on the Crown to prove absence of colour of right

Bought a van and cleaning unit in exchange for money and a trailer -> found out cleaning unit not working/liens on the van, so he took back his trailer – charged with theft

R.. v. Drainville [1991, Ont. Prov. Div.]

Charged w mischief (s. 429(2))

Must have an honest mistaken belief in law or fact, not morality (Here, D’s mistaken belief in moral rights, not legal) Test = SUBJECTIVE- Reasonableness is not necessary element R v Pratt – civil disobedience does not transform illegal actions into legal ones

if charged of any offense from s. 430-446, you will not be convicted IF you provide that you acted w “legal justification or excuse” or “colour of right”-An honest belief in the existence of a state of facts which, if it actually existed, would at law justify or excuse the act done (Creaghan)

D blocked land to protest the developmt of the road. He believed it was wrongfully taken from the aboriginals in the 1st place

OFFICIALLY INDUCED ERRORLevis (City) v. Tetreault [2006] SCC

Charged bc didn’t take due diligence (SL offence)

Accused must prove 6 elements on a BoP:1. An error of aw or of mixed law and fact was made2. the person who committed the act considered the legal consequences of his actions3. the advice obtained came from an appropriate official4. the advice was reasonable5. that the advice was erroneous6. the person relied on the advice in committing the act

Successful defence leads to remedy of a judicial stay, not an acquittal

Official told them a renewal license would be sent before license expiration – but sent to wrong address, returned to sender

INCAPACITYAge12 is the age of criminal responsibility at CL. The legislation drew arbitrary age lines, so can argue any age bc line is arbitrary. Children under 12 cannot be criminal responsible but they can be put into rehabilitation programs and kept indefinitely

Mental Disorder (Insanity)Was known as the insanity defence but is now known as Not Criminally Responsible by Reason of Mental Disorder (NCRBMD) – s. 16 of the code


Legal def’n doesn’t run parallel to the medical def’n (Luedecke)Legal def’n = likelihood of reoccurrence and danger

There are 3 points where mental disorders apply in criminal law:1) At the time of the offence: insanity goes to the mens rea – fault requirement – and is absent when a disease of the mind is present.2) At the time of trial: under the rubric of “fit to stand trial”;

a. The court can evaluate if a person is ‘fit to stand trial’ at any time before the verdict is reached (s. 672.23)b. If a person is subsequently found ‘fit to stand trial’, they will go to trial and the burden of proof is on a BoP (s. 672.32)

3) At sentencing: can be used in consideration of the sentence given.

Section 16 was a Canadian version of the famous M’Naghten case- Whether or not the accused knew the nature and quality of the act- The q looks at the time of the alleged offence – was this person insane at the time of the offence even though he may now be fit to stand trial?Section 16 looks at if you have a mental disorder = disease of the mind:

Disease of the mind must cause:a) Failure to appreciate the nature and quality of the act or perceive the consequences; ANDb) Failure to know that the act was wrong (legally / morally).

Concern: a person charged w an offence w maximum incarceration could be subject to a confinement much longer if found mentally incapable. (Swain)In response, they are trying to establish caps, which are not in force. However, even if the caps were in force, it may be irrelevant bc once your jail time is done, you are reassessed and they can send you back to jail. PLUS the purpose is to provide them w health to benefit them, not to punish

STEPS: Section 16 Claim there is a presumption of sanity BoP (onus on whoever raises the defesnse) disease of the mind (1) Nature & Quality; AND (2) Appreciate the Wrong – legal and moral

Case Name Issue/Holding Reason/Ratio FactsDISEASE OF THE MINDCooper v. R [1979, S.C.C.]

Disease of the mind is a legal concept, not for jury to decide

there must be a disease of the mind (impairs the function of the mind) AND;1. failure to appreciating the nature and quality of the act; AND2. failure to know that it was wrong

Medical expert evidence is to provide an opinion on the condition however, medical def’n ≠ legal def’n. Disease of the mind excludes self-induced states by alcohol or drugs and concussions

Charged w murder of a patient. Accused had history of mental illness

Nova Scotia Case

Fit to stand trial? Yes, but no

Subsequently determined to be fit, while in mental health regime, he was subjected to high shock therapy.Problem was that the type of shock therapy that made him fit destroyed large parts of his memory. So he was now fit to go back to trial, but he had no recollection of the crime committed.


Problems of deterioration in care in mental health wards

Thus, even though he was fit, he wasn’t fit to stand trial.

FAILURE TO APPRECIATE THE NATURE/QUALITY OF THE ACTR. v. Abbey [1982] SCC

Failure to appreciate penal consequences = legally sane

Failure to appreciate the penal consequences does not go to the MR of the offence, and does not render a person incapable of appreciating the nature and quality of their act. the defense of insanity negates the MR – what about if AL offence!?***must show the AR and MR before raising the defense of insanity, but insanity is argued to negate the MR so how the heck does this make sense! Wilson thinks insanity shouldn’t be a negation of the MR

Confessed to importing cocaine for trafficking. Believed there was an external force protecting him from getting caught

FAILURE TO KNOW THE ACT WAS WRONGKjeldsen v. R [1981] SCC

No remorse = legally sane Section 16 is not available to an accused who has the necessary understanding of the nature, character and consequences of their act, but lacks the appropriate feelings for the victim or lacks feelings of remorse or guilt for what they have done as a result of their diseased mind.

Psychopaths know their actions are legally wrong, and morally wrong, but feel no remorse.

R. v. Chaulk (1991)(SCC)

Legally Sane broadened the insanity defn’ – the def’n of “wrong” in s. 16 includes morally wrong as well as legally wrong

Ppl thought that they could acquire superhuman powers by killing a stranger

Landry NOT criminally responsible thought he was God, knew there were killing and knew it was against the law but incapable of knowing what they were doing was morally wrong

Lee Case although he didn’t appreciate that he was doing something wrong, he was fit to stand trial bc he could instruct his lawyer mentally ill ≠ legally ill he knew killing was prohibited by law he didn’t appreciate that this act was morally wrong

Dennis Schizophrenic. Thought all his coworkers were trying to kill him + nobody could protect him, not even authorities. Thought he was acting in self defense

Not able to make moral distinctionWJM 1999 BC

Legally sane Burden of proof is on whoever raises the defense on a BoP Disease of the mind doesn’t always equal not criminally responsible if accused knew what they were doing (sophisticated plan here) and knew the physically consequences

Could’ve argued that they maybe weren’t capable of knowing it was morally wrong bc they thought they were trying to benefit the world

2 schizophrenics, had same delusions. Extravagant plan to hijack a bus in order to take over the world


BURDEN OF PROOF/RAISING THE DEFENSER. v. Swain 1991 SCC

Can the Crown argue insanity even if the accused doesn’t want to? YES

An accused person should be able to raise their own defense and shouldn’t allow the Crown to take over THUS: Crown needs to prove the AR and MR (until after the finding that the accused committed the act) before raising defense of insanity

losing control ≠ insanity Need to know accused’s state of mind at the time of the offence

Wilson: Crown should have an obligation to raise such defense – say if they know person is insane or killed a person

Thought evil spirits were after his family and the only way to protect them was to do something unusual (eg. Cut his wife w a knife, swing child around his head). Charged w assault

Borg Irresistible impulse ≠ insanity

Irresistible impulse can be significant to help raise defense of insanity, but it is not a defense alone

More 1963 Psychiatrist evidence descried cond’n as depressive psychosis.His actions was impulsive, not calculated, considered or planned so was convicted of the lesser offence

Person shot and killed wife

Baltzer if able to show that although u killed, and that although you may have had some sense that you were killing, that your mental state didn’t allow you to form the intent to kill, may allow a charge of manslaughter

Jackard if person viewed actions differently than they actually occurred, defense of insanity may be relevant

AUTOMATISMNegates the AR not the MR

Test to distinguish automatism from insanity: What is the likelihood of reoccurrence Non-insane automatism (external factors; unconscious but not bc of a DoM; ) vs. Insane Automatism (Internal factors; unconscious bc of a DoM)

When can you argue involuntary act and automatism:1. Physical blow to the head = pure case of automatism and can lead to involuntary actions2. Sleep walking = automatist state and can lead involuntary actions = can get an acquittal3. Involuntary Intoxication = involuntary act4. Unconscious bc you drank too much = issues is if your act is voluntary

a. complete defense if no voluntary act b. Unless offence involves an assault = voluntary

5. Epilepsy = depends on the circumstances


6. insulin- hyper-glycaemia states = External; can enter into a trancelike state and carry physical acts that are unconscious which has been recognized by courts

7. Unconscious when driving, ran over, someone but you were told not to drive and still did = voluntary act bc you voluntarily created a dangerous situation = reckless

Case Name Issue/Holding Reason/Ratio FactsGrant (BC) Unconscious bc seize

rendered him guity ONLY BC ignored medical instructions

G drove in total defiance of medical information that he shouldn’t drive bc his epilepsy wasn’t under control IF you don’t take medical precautions, and cause damages bc unconscious, will be found guilty usually, will not be guilty bc involuntary act

Epileptic seizure while driving. Caused collision

R. v. Rabey [1977, Ont. C.A.]

Psych said R suffered from a psychological blow at the time but was not DoM and unlikely to reoccur. HELD: no dissociative state, just rage but if dis state, then caused by DoM

TEST of non-insane automatism: 1. emotional shock render you unconscious 2. event must be extraordinary – high threshold3. the average person would reasonably suffer that type of reaction

makes distinction bw transitory states caused by external causes (non-insane) AND those caused by circumstances that arise from personal psychological make-up of the person, which creates an inability to deal w everyday stresses (internal case = disease of the mind) the normal everyday disappointments and stresses of life don’t count as external factors but don’t meet the test of non-insane automatism bc #2 and #3

Strong Dissent (becomes the law):External and internal stnd is wrong – doing this violates criminal law:1. Reversed presumption of sanity – they said that if you cant point to external

cause than it must be internal and insanity – onus should be on the Crown not the accused

2. Involuntary Acts- shouldn’t be criminally responsible if the act is involuntary3. Disease of the Mind- shouldn’t be committed to institution for the criminally

insane unless he suffers from DoM in need of treatment or there is a likelihood of recurrence – evidence here that chance of reoccurrence was minimal IF likelihood of reocurrence DoM; IF recurrence is unlikely non-insane automatism

R was dissed by a girl who he liked so he bashed her over the head w a rock under a stairwell, then tried to strangle her to death. Went into dissociative state

R. v. Parks [1992] SCC

sleeping walking ≠ DoM

Factually unique case and not valuable as precedents. Would be decided differently today

P sleep walking drives to in-laws house. Gets knife from kitchen, strangles father in-law, then stabs mother


R v. Stone (1999)(SCC)

Changed test for non-insane automatism – follow this

TEST: Reverses the Burden of proof to accused on a BoP1. Accused must make the automatism and involuntariness assertion and call

evidence to prove ita. Evidence can come from: Bystanders, severity of the triggering stimulus,

medical history, motive for crime, 2. TJ should start w the position that the cond’n the accused claims results from a

DoM Accused then has burden on a BoP of establishing that the act was not bc of a mental disorder Judge must determine whether the evidence in the particular case takes the cond’n out of the disease of the mind category

Wife is constantly verbally abusing S. S felt a whoosh sensation and when he regains state of mind, realizes that he stabbed her 47 times

INTOXICATION- Partial Defense: you will be charged of the lesser offense (eg. if you murder someone and pass intoxication test, you’ll be charged w manslaughter- Only available for specific intent crimesSpecific = (1) murder, (2) robbery, (3) break and enter and (4) aiding and abetting one of these specific intent offenses defense

- unlawful object must be distinct (eg. punching in head isn’t unrelated to the possibility of death)Not Specific Intent (General) = (1) sexual assault, (2) manslaughter, (3) mischief not a defense

Note: if the underlying offense is one of specific intent, then you can use defense of intoxication to negate MR for the underlying offense. WILSON thinks crown could avoid all this by charging criminal negligence instead of a predicateCase Name Issue/Holding Reason/Ratio FactsBernard Sexual assault

requires proof of general, not specific intent

General Intent – only intent involved related solely to the performance of the act in question w no other ulterior or purposeSpecific – Performance of AR coupled w intent or purpose going beyond the mere performance of the question

Sexual assault causing bodily harm

Creba s. 229c is constitutional w creba’s revision – Don’t need to intend bodily harm unlawful object must be distinct (eg. punching in head isn’t unrelated to possibility of death)Used this bc no intent, so can’t be charged under s. 229a

Daviault [1994] SCC

Not guilty bc no voluntary act

Not a case of intoxication (which isn’t available for sexual assault), rather involuntary act

Note: alarming decision so in respond, Parliament passed s. 33.1 (this is constitutionally valid) – if you are charged w an offence which includes any form of assault, if your unconscious act was caused by voluntary consumption, no defense!

Self-induced drinker to point of unconsciousness

Penno 1990 SCCCHECK SPELLING

Argued that there needs to be specific intent to have care and control while impaired, which means that intoxication was a defense – defense for drunk driving is cant charge bc I was drunk!

SCC: you got us at law, but this is bad public policy and rule in this case that having care and control isn’t specific intent

Charged w having car and control of vehicle while impaired. Defense, “I was drunk”


Documents

Term 2 Notes