Crim 230 Midterm

Front 1

Law (definition)

Back 1

A set of rules of conduct established by elected government members (reflects values and beliefs of society)

Front 2

Purposes of laws

Back 2

- means of resolving disputes peacefully

- rules of conduct for society

- protects our rights and freedoms

Front 3

Due process

Back 3

Settling disputes by a peaceful means, in front of an appointed judge

Front 4

Law vs Justice

Back 4

Law is codified rules, justice contains more personal judgement ("moral rightness")

Front 5

2 Categories of law

Back 5

Public (criminal & constitutional law)

Private (contracts, torts, property)

Front 6

Criminal vs Civil law

Back 6

Criminal - Crown vs an individual, purpose is to punish, deter or protect

Civil - between private citizens, purpose is to compensate for harm

Front 7

Crime (definition)

Back 7

Conduct that is prohibited because it has an "evil or injurious or undesirable effect upon the public" and can incur a penalty

Front 8

True crime

Back 8

Serious breach of basic community values

Front 9

Common law

Back 9

Judge's interpretations of the law tell us how the law should be applied in different circumstances

Front 10

Stare decisis

Back 10

We must follow case precedent, which flows in a hierarchical manner

Higher court decisions considered binding

Same- or lower-level court decisions considered persuasive

Courts can DISTINGUISH their case if they don't want to follow a binding decision

Front 11

Judicial precedence

Back 11

Historical decisions by judges on similar issues or facts; based on the idea we should all be treated the same way as a matter of fairness

Front 12

Mitigating factors

Back 12

Circumstances that make someone's actions more reasonable or understandable

Front 13

Aggravating factors

Back 13

Circumstances that make someone's actions more reprehensible or serious

Front 14

Charter infringement

Back 14

Courts can strike down legislation that infringes on the rights and freedoms of Canadians

Front 15

Reasonable limit (charter)

Back 15

Charter rights may remain limited where an infringement can be demonstrably justified in a free and democratic society

Front 16

Oakes Test

Back 16

Weighs the effects of infringing one set of individual rights/freedoms against another

A violation of a charter right can be limited where:

1) Limit is sufficiently important to justify overriding the right or freedom

2) The means chosen by the legislature are "reasonable and demonstrably justified"

a) Means must be rationally connected to the objective

b) means should impair "as little as possible" the right or freedom

c) there must be a proportionality between the effects of the measures and the objective of the legislation

Front 17

Oakes Test case

Back 17

R v NS (niqab)

Front 18

Actus Reus (definition)

Back 18

The prohibited conduct, circumstances and consequences; a bad act

Front 19

Mens Rea (definition)

Back 19

Guilty mind

2 types distinguished in Creighton case

Front 20

3 Cs of Actus Reus

Back 20

- Conduct (voluntary act or omission)

- Circumstances

- Consequences (criminal code violation)

Front 21

Assault CASES

Back 21

- Robinson (beard)

- Taylor (beer)

- Moquin (assault - not serious but caused interference with comfort, constituting bodily harm)

- McCraw (psychological harm, threats of sexual assault)

Front 22

3 Cs of Assault

Back 22

-Conduct - application of force

-Circumstances - without consent

-Consequences - bodily harm

Front 23

3 Cs of Sexual Assault

Back 23

-Conduct - intentional application of force

-Consequences - application of force, or the reasonable belief that the accused had the "present ability" to apply force

- Circumstances - no consent, and of a sexual nature

Front 24

Test for sexual assault

Back 24

- Objective (reasonable person)

- Was sexual integrity of the victim violated?

Front 25

Consent CASE

Back 25

R. v. Ewanchuk (silence does not equal consent)

Front 26

3 Cs of theft

Back 26

Conduct - taking or converting anything

Circumstances - fraudulently or without colour of right

Consequences - owner is deprived of use, ownership, etc.

Front 27

Actus Reus with no consequences

Back 27

Perjury - uttering false statements completes the offence; no one need believe or be influenced by the conduct

Unlawful possession of housebreaking instruments (unless for a legitimate purpose)

Found in a stolen car - if they have knowledge (they can exit when they find out with no consequence)

In care or control of a motor vehicle while impaired

Front 28

Care/control of vehicle while impaired CASES

Back 28

- Butler - placed in vehicle by friends, not guilty

- Boudreault - fell asleep waiting for taxi, engine on because it was cold

Front 29

Care/control of vehicle while impaired - what Crown must prove

Back 29

1) intentional course of conduct

2) by a person whose ability to drive is impaired or whose blood alcohol exceeds legal limit

3) in circumstances that create a realistic risk of danger to persons or property

Reverse onus - obligation on defence to prove not guilty

Front 30

Reverse onus

Back 30

Provision within a statute that shifts the burden of proof to the defence to disprove an element of the offence

Front 31

Liability (general rule)

Back 31

There is no criminal or civil liability for failure to act, unless there is a pre-existing duty (spouse, child/parent, dependent/caregiver)

Front 32

Test for necessities of life

Back 32

Objective (reasonable person)

Front 33

When AR & MR coincide CASES

Back 33

- Cooper (strangled gf)

- Bottineau (child endangerment)

Front 34

Voluntariness

Back 34

Conduct must be a result of free will; mental element of AR

Front 35

Chain of Causation (definition and stages)

Back 35

Proof that action led to prohibited consequences; link between initial act and illegal consequences (Proving actus reus)

2 stages: factual and legal causation **MUST HAVE BOTH

Front 36

Factual causation

Back 36

Did the action contribute medically, mechanically, or physically to the consequences?

"But for" test - but for X's conduct, would the consequences have occurred?

Front 37

Legal causation

Back 37

Should the person be held accountable in law for bringing about the consequences? Were consequences reasonably foreseeable?

Front 38

Causation CASES

Back 38

Trakas - ran over police officer. No legal causation because it was not foreseeable that driving normally would cause death

Front 39

Foreseeability

Back 39

Courts will only hold person legally accountable where prohibited consequences were foreseeable.

Objective - reasonable person test

Front 40

Causation in Murder

Back 40

Must prove that death occurred after accused's conduct

Front 41

Death

Back 41

No specific legislation, but Law Reform Commission of Canada suggests: a person is dead when an irreversible cessation of all brain functions has occurred.

Front 42

Acceleration of death

Back 42

Accused can cause death notwithstanding that the effect of the bodily injury is only to accelerate his/her death from a disease or disorder arising from some other cause.

Murder of a terminally ill person is still murder.

Legal principle: take your victim as you find him/her

Front 43

Euthanasia CASES

Back 43

**Carter - criminal code provisions declared unconstitutional

Rodriguez - SCC upheld that suicide was prohibited

Bodkins Adams - English case, intention was to treat pain symptoms so not criminally liable

Front 44

Withdrawal of treatment

Back 44

Where a competent adult patient makes request, physician must withdraw treatment

Front 45

Withdrawal of treatment CASE

Back 45

Nancy B - physician had to honour her wishes and disconnect respirator

Front 46

Multiple causes of death

Back 46

Defendant's act does NOT have to be the only cause of death, must be a significant contributing cause

Front 47

Multiple causes of death CASES

Back 47

Smithers - kick to stomach with pre-existing condition, died

Court ruled it was a significant contributing cause (not trivial)

Nette - hog-tied grandma, convicted

Front 48

Significant cause CASE

Back 48

Younger - abandoned kidnapped child, died from hypothermia

Front 49

Harricharan (case)

Back 49

Arson case, fell asleep with cigarette & started fire. OCA tried to prove that X's actions caused, or contributed, to fire. Acquitted.

CAUSATION

Front 50

Nette (case)

Back 50

Grandma, hog tied, left alone, falls & dies of asphixiation.

Significant contributing cause

Front 51

Thin skull rule

Back 51

Concerns condition of the victim with pre-existing physical difficulties. Take victim as you find them, pre-existing conditions are irrelevant.

Smithers, Nette

Front 52

First degree murder test

Back 52

Substantial and integral cause, a physical role in the killing

Planned and deliberate

Subjective foresight of the likelihood of death

Front 53

First degree murder exceptions (doesn't have to be planned and deliberate when...)

Back 53

In combination with one of the following offences:

- hijacking an aircraft

- sexual assault

- sexual assault with a weapon

- kidnapping

- hostage taking

Front 54

First degree murder CASE

Back 54

Harbottle - sexual assault, discussion of how to kill, strangled while one accused held victim

- Substantial and integral cause

Front 55

Intervening act

Back 55

Something that occurs after the defendant's conduct that breaks the chain of causation and relieves defendant of criminal responsibility

- Must be an overwhelming cause of death

- Unforeseeable

Front 56

Categories of intervening acts

Back 56

- Acts of victim

- Acts of third parties

- Naturally occurring events

Front 57

Maintaining chain of causation after an intervening act (& CASE)

Back 57

Crown must prove that accused's actions were still "operative" at time of vic's death

- Kitching & Adams (donated kidneys), tried to argue that that caused death

Front 58

Intervening act CASE

Back 58

- Maybin - brothers in bar, bouncer landed fatal blow

Legal causation: were the bouncer's actions reasonably foreseeable as a part of the chain of events? Yes. Brothers' actions were significant contributing cause.

- Sarazin - gang members shoot rival; rival survives but does cocaine and dies after that. Cocaine breaks chain of events

- Jordan - victim stabbed, allergic reaction to treatment. Factual causation but break in chain of legal causation

Front 59

Refusal of medical treatment CASE

Back 59

Blaue - JW, refused blood transfusion

- Physical cause of death = bleeding into pleural cavity from wound, due to injury
- Thin skull principle - wouldn't have died if not for wound (applies as long as initial injury is serious in nature)

Front 60

Death by acting on vic's mind

Back 60

Causes death by threatening or deceiving a person to the extent that they commit suicide. Liable unless act of victim is so overwhelming, unreasonable, or unforeseeable that it would break chain of causation.

Front 61

Death by acting on vic's mind CASE

Back 61

Stephenson - KKK head abducted woman, she committed suicide. Convicted.

Front 62

To prosecute a criminal offence, Crown must prove:

Back 62

- AR (3 Cs)

- Voluntariness & causation

- Mens rea coincided with AR

- Beyond a reasonable doubt

Front 63

Moral innocence (groups)

Back 63

- Not criminally accountable on account of a mental disorder (NCRMD)

- No person under the age of 12 can be charged with a criminal offence

Front 64

Subjective mens rea

Back 64

Concerned with what was actually going on in the mind of the defendant

More morally blameworthy (serious) than objective mens rea

Front 65

Objective mens rea

Back 65

Concerned with what should have been in the defendant's mind had he/she acted as a reasonable person

*concept of negligence is key

Front 66

Forms of subjective mens rea

Back 66

- Intention

- Knowledge

- Recklessness

- Wilful blindness

Read code to determine

Front 67

Mens rea knowledge CASE

Back 67

Dynar - tried to launder crime $$, but was actually proceeds of crime. Tried to argue he couldn't have knowledge that wasn't true.

Change in section to read "knowing or believing to be"

Front 68

Prank rule

Back 68

No conviction of theft where accused was engaged in a prank or a well-intentioned blunder

Front 69

Olan, Hudson & Hartnett (case)

Back 69

Defrauded dry cleaning company; shares carried out for personal benefit of board of directors, not for business purposes;

The didn't say anything dishonest, but judge ruled misuse of company assets constituted dishonesty

Front 70

Fraudulent (temporary nature)

Back 70

Defendant must have intended to deprive victim temporary or absolutely

Cases: Neve, Skalbania

Front 71

Fraud CASE

Back 71

Theroux - realtor makes false representations of insurance over deposits. Deal falls through, deposits not returned.

Knew that he didn't have insurance for the deposit, therefore deliberately deceived and deprived victims of $$.

Front 72

Fraud

Back 72

Wrongful or criminal deception intended to result in financial or personal gain.

Must prove dishonesty and deprivation

Sections 322 & 380

Front 73

Test for fraud

Back 73

Subjective mens rea

Front 74

2nd degree murder CASE

Back 74

Smith - hunting, killed partner. No evidence that it was previously planned

Front 75

1st degree murder CASE

Back 75

Bujold - letters written, phone calls, time lapse to walk, entered building through a ruse - clearly planned and deliberate

Front 76

Intoxicated accused

Back 76

Does not generally allow a defence to a criminal charge; can reduce offences at sentencing.

Can reduce MR charge - 1st to 2nd degree murder

Widdifield case - can't plan or deliberate when intoxicated.

Front 77

Mental illness

Back 77

Similar to intoxication - not an excuse but can reduce charge

Front 78

Specific intent

Back 78

Certain offences require an additional mental element be proven beyond the basic intention of the AR

- Assault with intent to resist arrest

- Possessing a weapon for a purpose dangerous to public or for the purpose of committing an offence

- Breaking and entering with intent to commit an indictable offence

- Murder

Front 79

Direct vs indirect intention

Back 79

Direct - acting with the aim of achieving a certain consequence

Indirect - where accused does not wish to bring about certain prohibited consequences, but engages in actions that nevertheless cause the prohibited actions

Front 80

Indirect intention CASE

Back 80

Guess - had affair with defendant while serving on jury; goal was not to obstruct justice but this was the result

Front 81

Motive (note)

Back 81

Crown is not required to prove motive as part of mens rea - doesn't matter what they intended to do

However, can be useful for evidence

Front 82

Transferred intent

Back 82

Intention to do an act to one person can be transferred where the act is actually done to another person

Front 83

Transferred intent CASES

Back 83

Droste - planned to kill wife, ends up killing kids

Vandergraaf - assault by peanut butter jar

Front 84

Recklessness

Back 84

An individual is considered to be reckless where he/she foresees the possibility of a certain consequence occurring, but does not desire the consequence, nor know for certain that the consequence will occur

Elements:

- Subjective foresight of risk

- Unjustified assumption of the risk (objective test)

Front 85

Recklessness CASE

Back 85

ADH - Walmart baby. Acquitted because she thought baby was dead

Front 86

Test for Recklessness

Back 86

1) Determine the defendant's subjective appreciation of risk

2) Determine what a reasonable person with same knowledge would have done

3) Ask would someone acting with normal prudence engage in the conduct

Front 87

CASE where recklessness has been read in

Back 87

Sansregret - knowledge of vic's lack of consent, or recklessness as to consent, will justify a conviction of sexual assault

Front 88

Wilful blindness CASE

Back 88

Briscoe - kidnapping, sexual assault and murder of young girl at a golf course. Was wilfully blind as to friend's intentions

Front 89

Martineau (case)

Back 89

Subjective mens rea:

B&E of trailer, co-accused commits homicide. Other person claims no intention

Crown must prove that accused deliberately intended to kill, or subjectively foresaw the risk of death due to his/her actions

Front 90

Negligence

Back 90

Failure to act with the prudence that a reasonable person would exercise under the same circumstances (failure to use a certain degree of care)

Front 91

Types of negligence

Back 91

Civil law (carelessness) - falling below standard of a reasonable person

Criminal law (penal negligence) - marked departure from the standard of the reasonable person acting prudently

Front 92

Objective liability

Back 92

Imposition of criminal liability on the basis of the standard of the "reasonable person"

Note: must be a marked departure

Read-in portion: that an accused person will only be convicted of a criminal offence where morally blameworthy

Front 93

Purpose of objective liability

Back 93

Creates a specific standard by which all who engage in the activity are expected to meet.

Front 94

Modified objective test

Back 94

Whether a reasonable person, with the same knowledge of the facts as the accused, would have behaved in the same way

Front 95

Dangerous driving

Back 95

Crown must prove accused drove in a manner that was a marked departure from the standard of a reasonable person in the circumstances

OBJECTIVE MENS REA

(Provincial offence = just falling below standard of a reasonable driver, not marked departure)

Front 96

Air of reality

Back 96

If accused wishes to offer an explanation of the circumstances with the view of proving innocence, the evidence offered must pass the "air of reality" test

Must be able to provide evidence to support accused's account

Front 97

Beatty (case)

Back 97

Dangerous driving charge (objective mens rea)

Crossed centre line for no apparent reason. Driving normally up until then.

No conviction because it was a single error in judgement, not marked departure

Front 98

Dangerous driving vs criminal negligence

Back 98

Criminal negligence requires much more serious departure from standard of the reasonable person

Front 99

Penal negligence

Back 99

Everyone is criminally negligent who shows wanton or reckless disregard for the lives or safety of other persons

Applies to both acts and omissions (where legal duty)

Front 100

Increasing standard of MR (driving)

Back 100

1) Careless driving: any departure from standard

2) Dangerous driving: marked departure from standard

3) Criminal negligence causing death/bodily harm: marked and substantial departure from standard

Front 101

Manslaughter (2 main types)

Back 101

- Criminal negligence

- Unlawful act manslaughter

Front 102

Unlawful act manslaughter

Back 102

A person commits culpable homicide when he causes the death of a human being

- by means of an unlawful act

- by criminal negligence

- by causing someone to do anything that causes his death

- by wilfully frightening someone

Front 103

Infanticide

Back 103

Where a woman who is suffering effects related to childbirth kills her child

Front 104

Unlawful acts

Back 104

Crown must show intent to kill or inflict bodily harm that the accused knows is likely to cause death and is reckless as to whether death ensues

Objective foresight of the risk of bodily harm that is neither trivial nor transitory in nature (for manslaughter)

Objective foresight of bodily harm (for unlawful act bodily harm)

Front 105

Vaillancourt (case)

Back 105

Russion roulette - thought gun was not loaded

Acquitted because no objective foresight of risk of bodily harm

UNLAWFUL ACT MANSLAUGHTER charge

Front 106

Dewey (case)

Back 106

Bystander getting too involved in a bar fight ends up charged with assault causing bodily harm

Convicted because objective foresight of risk of bodily harm

UNLAWFUL ACT ASSAULT

Front 107

Aggravated assault

Back 107

Wounds, maims, disfigures or endangers the life of the complainant.

Objective foresight of injury

DJ - improper circumcision case!

Front 108

Elevated standard of care

Back 108

Where defendant engages in particularly risky activities, the standard becomes a marked departure from a reasonable person, who has the necessary expertise and training to engage in the activity (firearms, toxic chemicals, surgeries)

Front 109

Elevated standard of care CASE

Back 109

Rogers - unlicensed doc kills boy via malnutrition diet

Reasonable doc would not have prescribed the diet, therefore marked departure

Front 110

Cuerrier (case)

Back 110

If you think you have contracted HIV, you have a legal duty to inform partner prior to sex

Duty of care to disclose!

Front 111

Summary conviction offence

Back 111

May be tried only before a provincial/territorial court, max penalty $5000 or sentence of 6 months in prison, or both

Front 112

JF (case)

Back 112

Manslaughter by criminal negligence charge

Foster child - father charged with manslaughter by criminal negligence and failure to provide necessities of life; acquitted because trial was improperly conducted

Front 113

Ultra vires

Back 113

Outside

Front 114

Prior inconsistent statements

Back 114

Victim gives varied accounts; can be used against them during cross-examination

Front 115

Robinson (case)

Back 115

Assault with beard

Interferes with health & comfort of victim

Front 116

Ewanchuk (case)

Back 116

Lack of consent must be determined based on the subjective intent of the complainant rather than the accused

Front 117

Cooper (case)

Back 117

Accused became angry with girlfriend and strangled her, then woke up and claimed to have no memory of the event.

If mens rea coincides with AR at any time, conviction. It's reasonable to assume that at some point he meant to inflict bodily harm and was aware that strangulation can cause death. Convicted.

Front 118

For the Crown to proceed with a case, must be:

Back 118

- Public interest to proceed

- Substantial likelihood of conviction

Front 119

McCrae (case)

Back 119

Accused awaiting trial, made threats towards prosecutor, witness, etc. Acquitted because mens rea had not been established.

SCC disagreed, said it was sufficient if he intended the threats be taken seriously by those to whom the words were spokenf

Front 120

Hundal (case)

Back 120

Driver entered intersection on a red light, struck a car and killed driver who entered on green light. Witnesses claimed he was driving recklessly before incident. Guilty.

Front 121

Supreme law of the land

Back 121

Constitution

Front 122

Hatfield

Back 122

Impaired - left restaurant drunk, realized he was impaired, stopped to sleep it off. Courts ruled still in care and control of vehicle with intention to continue driving.

Front 123

Bottineau

Back 123

Reckless murder by neglect

Starved grandson of food; mens rea present because they meant to cause him bodily harm that they know is likely to cause his death, and is reckless whether death ensues or not

Front 124

Creighton (case)

Back 124

Creighton injected himself and friends with cocaine, causing one friend to die. Creighton prevented other person from calling police. Person called police later anyway. Convicted because a reasonable person would have foreseen that using cocaine could cause death.

OBJECTIVE MENS REA

Front 125

Roy (case)

Back 125

Terrible driving conditions, entered freeway and was hit by semi.

Does not satisfy objective MR b/c one lapse in judgement

Front 126

Effert (case)

Back 126

Infanticide - convicted of strangling baby

Front 127

Neve (case)

Back 127

Took vic's clothes, left her in remote field; still fraudulent because vic was deprived of personal items, regardless of Neve's motive.

Front 128

Skalbania (case)

Back 128

Used money for purposes unrelated to business, repaid it later.

Guilty regardless of intent to repay because he knowingly used money for a purpose for which it was not intended.

Front 129

Fontaine (case)

Back 129

Tried to commit suicide and accidentally killed another person; not convicted under doctrine of transferred intent

Front 130

Wilful blindness

Back 130

Where the accused had a strong suspicion, or knowledge that something unlawful was happening, but did not inquire or do anything to stop it

*Issue of knowledge

Front 131

Knowledge

Back 131

Accused has subjective knowledge of some fact or state of affairs

Front 132

Semchuk (case)

Back 132

Coach tried to "help" teenage girl by rubbing her breasts

Front 133

V. (K.B.) (case)

Back 133

Father violently grabbed son's genitals to teach him not to do this to adults