JUST 1020 Lecture Notes - Lecture 10: Summary Offence, Indictable Offence, Hybrid Offence
Assault
Assault is a general intent offence.
-
General intent vs Specific intent
-
When is Consent Not a Defence?
Consent may be a defence to a charge of assault, however, consent is not valid
if it is obtained by:
-
threats of, fear of, or the actual application of force to any person, or fraud,
or the exercise of authority.
Section 265.(3) C.C.
→
-
Three Levels of Assault
First Level (Common Assault) Sec. 266
Hybrid offence
→
1.
Second Level (Assault Causing Bodily Harm or Assault with a weapon) Sec.
267
Hybrid offence
→
2.
Third Level (Aggravated Assault) Sec. 268.(1)
indictable offence
→
3.
Assault -(Common Assault)
266. Everyone who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not
exceeding five years; or
(b) an offence punishable on summary conviction.
Facts in Issue-Assault
Day, date, time and place of the offence.
A)
Identity of the accused (anyone).
B)
The accused assaulted the complainant.
C)
What about section 43?
Every schoolteacher, parent or person standing in the place of a parent is
justified in using force by way of correction toward a pupil or child, as the case
may be, who is under his care, if the force does not exceed what is reasonable
under the circumstances.
•
http://youtu.be/Wl9y3SIPt7o
Assault Causing Bodily Harm
267. Everyone who, in committing an assault,
carries, uses or threatens to use a weapon or an imitation thereof; or(a)
causes bodily harm to the complainant(b)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years or an offence punishable on summary conviction and liable
to imprisonment for a term not exceeding eighteen months.
-
What is ‘bodily harm’?
“Bodily harm” means “any hurt or injury to the complainant that interferes
with his health or comfort and that is more than merely transient and trifling
in nature.
•
Section 2 C.C.-Offensive Weapon
An “offensive weapon” is
•
anything used or intended for use in causing death or injury to persons whether
designed for that purpose or not, or
(a)
anything used or intended for use for the purpose of threatening or
intimidating any person, and without restricting the generality of the
foregoing, includes any firearm as defined in section 84(1).
(b)
Section 2 C.C.-Aggravated Assault
268.
•
Every one commits an aggravated assault who wounds, maims, disfigures or
endangers the life of the complainant.
1)
Everyone who commits an aggravated assault is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years.
2)
Included Offences
an offence for which all the Facts in Issue are included in the Facts in Issue of
another offence.
-
This means that if charged with assault bodily harm but Crown fails to prove
the injury meets the threshold of beyond transient and trifling, then guilty of
included offence of assault.
-
Included Offences -Aggravated Assault
The included offences Aggravated Assault Sec. 268.(1) are:
Assault Causing Bodily Harm Sec. 267
→
Common Assault Sec. 266
→
w
Summary
There are three ways to commit assault: actual application of force,
threatened application of force, and implicit threats to apply force.
-
There are three levels of assault. Each level is distinguished by the level of
violence used. Third Level is the most violent and First Level is the least
violent.
-
First and Second Levels are included offences of Third Level Assault, and First
Level is an included offence of Second Level Assault.
-
Implied Consent
Individuals who voluntarily participate in sporting events should be deemed to
have given implied consent to the infliction of a certain degree of force upon
their bodies.
•
http://yooutube.link/en/video/iwB21wtLN84/Ugliest-On-Ice-Beha viour
Implied Consent in Sexual Assault
Ewanchuk (1999)
•
Sexual Assault
-
Everyone who commits a sexual assault is guilty of
an indictable offence and is liable to imprisonment for a term not exceeding 10
years and, if the complainant is under the age of 16 years, to a minimum
punishment of imprisonment for a term of one year; or
a)
an offence punishable on summary conviction and is liable to imprisonment for
a term not exceeding 18 months and, if the complainant is under the age of 16
years, to a minimum punishment of imprisonment for a term of 90 days.
b)
Sexual Assault
Case law has determined that Assault as defined in section 265. applies to the
sexual assaults; however, the term ‘sexual assault’ is not defined in the
Criminal Code.
-
Case law has determined that an assault is of a sexual nature, regardless of the
part of the body touched, if the accused’s intention in committing the assault
is to obtain sexual gratification (R. v. Alderton; R. v. Taylor)
-
Sexual Assault -Second Level
272.(1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a
weapon;
(b) threatens to cause bodily harm to a person other than the
complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.
Sexual Assault -Third Level
273.(1) Every one commits an aggravated sexual assault who, in committing a sexual
assault, wounds, maims, disfigures or endangers the life of the complainant.
Facts in Issue
Sexual Assault -Third Level
273.(1) Every one commits an aggravated sexual assault who, in committing a sexual
assault, wounds, maims, disfigures or endangers the life of the complainant.
Facts in Issue
Day, date, time and place of the offence.A)
Identity of the accused (anyone).B)
The accused assaulted the complainant.C)
The assault was of a sexual nature.D)
The assault was ‘aggravated’ in that the complainant wasE)
wounded;i)
maimed;ii)
disfigured, oriii)
had his/her life endangered.iv)
CONSENT
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the
purposes of sections 271, 272 and 273, the voluntary agreement of the complainant
to engage in the sexual activity in question.
No Consent
No consent is obtained, for the purposes of sections 271, 272 and 273, where
•
the agreement is expressed by the words or conduct of a person other than the
complainant;
A)
the complainant is incapable of consenting to the activity;B)
the accused induces the complainant to engage in the activity by abusing a
position of trust, power or authority;
C)
the complainant expresses, by words or conduct, a lack of agreement to
engage in the activity; or
D)
the complainant, having consented to engage in sexual activity, expresses, by
words or conduct, a lack of agreement to continue to engage in the activity.
E)
Consent
R vs J.A.(2011)
DEFENCE OF MISTAKEN BELIEF
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused
believed that the complainant consented to the activity that forms the subject-
matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting.
R v. Chase 1987
Chase took a hold of a 15yr old girl around her shoulders and arms and grabbed
her breasts
-
He stated to her ‘come on dear, don’t hit me. I know you want it’
-
The victim also stated that he tried to ‘grab her privates’
-
The accused was convicted but appealed to court of appeal in New Brunswick
-
The court of Appeal stated that for the accused to be convicted of sexual
assault there must be contact with the genitals
-
The Crown appealed the Court of Appeals definition of sexual assault
-
The SCC stated that the assault must be committed in the circumstances of a
sexual nature
-
Sexual Integrity
It is possible for the court to rule that an assault was sexual in nature even if it
was established that his or her intent was not to obtain sexual gratification
-
This requires that application of the subjective test
-
V. (K.B) (1993) –violently grabbing his son’s genitals to prevent him from
grasping the genitals region of adults
-
Claimed discipline
-
SCC held that the assault violated the sexual integrity of the victim
-
Wilful Blindness
-
Sansregret (1985)
Trial Judge acquitted him under an honest mistake of fact as to the consent of
the victim.
-
He went to ex wife’s house
-
Mistake of Fact
-
Mailhot -Charged with Indecent Act in a public place in the presence of one or
more persons.
-
Mistake of fact -he mistakenly believed that undercover officer wished to
participate in sexual act.
acquitted
-
Sexual History
Complainant’s sexual history not relevant –concern of S.C.C. is that it re-
victimizes the person and/or leads the Trier of Fact to the erroneous
conclusion that if the person has multiple partners, they must have consented
on this occasion to sexual activity.
-
Section 277
-Parliament enacted legislation regarding Sexual History
Evidence of sexual reputation, whether general or specific is NOT admissible
for the purpose of challenging or supporting the credibility of the complainant.
-
Exception
the judge, provincial court judge or justice determines, in accordance with the
procedures set out in sections 276.1 and 276.2, that the evidence
is of specific instances of sexual activity;a)
is relevant to an issue at trial; andb)
has significant probative value that is not substantially outweighed by the
danger of prejudice to the proper administration of justice.
c)
Judge must Consider
the interests of justice, including the right of the accused to make a full
answer and defence;
a)
society’s interest in encouraging the reporting of sexual assault offences;b)
whether there is a reasonable prospect that the evidence will assist in arriving
at a just determination in the case;
c)
the need to remove from the fact-finding process any discriminatory belief or
bias;
d)
the risk that the evidence may unduly arouse sentiments of prejudice,
sympathy or hostility in the jury;
e)
the potential prejudice to the complainant’s personal dignity and right of
privacy;
f)
the right of the complainant and of every individual to personal security and to
the full protection and benefit of the law; and
g)
any other factor that the judge, provincial court judge or justice considers
relevant.
h)
Hearing
Absence of Jury
-
Complainant not compellable to testify
-
Sexual Interference
Every person who, for a sexual purpose, touches directly or indirectly, with a
part of the body or with an object, any part of the body of a person under the
age of 16 is:
•
Guilty of an indictable offence and is liable to jail for minimum of 45 days in
jail and not exceeding 10 years, or
a)
Guilty of a summary conviction offence and liable to imprisonment for
minimum of 14 days and not exceeding 18 months
b)
Mistake of Age
Reasonable steps to ascertain age
Defences
Defences of consent and exculpatory mistaken belief regarding complainant’s
age is limited by s.150.1
-
Consent is a defence IF complainant is between 12-14 and accused less than
two years older AND not in a position of trust.
-
Consent is a defence IF complainant is between 14 up to 16 and accused less
than five years older AND not in a position of trust.
-
Invitation to Sexual Touching
Every person who, for a sexual purpose invites, counsels or incites a person
under the age of 16 to touch directly or indirectly, ……, including the body of
the person who so invites,
•
is guilty of indictable offence and liable to a minimum 45 days jail and liable to
a term not exceeding 10 years;
a)
is guilty of summary offence and liable to minimum 14 days jail and not
exceeding 18 months.
b)
Mens Rea
•
Offence committed where accused asks the complainant if the accused can
touch him/her (or does touch him/her)
-
Sexual Exploitation –s.153
Everyone commits an offence who is in a position of trust or authority to a
young person, who is a person with whom the young person is in a relationship
of dependency or who is in a relationship with a young person that is
exploitative and:
•
for a sexual purpose touches ora)
for a sexual purposes invites…. A touching.b)
Hybrid offence
Indictment –minimum 45 days
•
Summary –minimum 14 days
•
Interference or Sexual Exploitation
A judge may infer that a person is in an exploitive relationship from the nature
and circumstances of the relationship including:
•
the age of the young person;a)
the age difference between the two;b)
the evolution of the relationship;c)
the degree of control or influence over the young person.d)
Elements of Offence
Crown must prove beyond a reasonable doubt:
•
1. the complainant and young person within the meaning of s.153(2)
2. the accused engaged in one of the activities in s.153(1)
3. the acts in question were committed
4. the accused was in a position of trust
What is Position of Trust or Authority?
Founded on notions of safety and confidence and reliability that they not be
breached.
→
Teachers
→
Dance instructor in program taught as a high school delivered through City;
→
Hockey coaches,
→
Unlawfully Cause Bodily harm269 cc
Hybrid
-
Indictable 10 years
-
Summary 18 months
-
Objectively Dangerous
-
A reasonable person would realize that actions would subject another person to
the risk of bodily harm.
-
Mens Rea
•
While the mens rea requires proof of objective foreseeability of the risk of
bodily harm generally, there is no requirement that the specific type of harm
occasioned be objectively foreseeable.
-
Utter Threats
264.1 (1) Every one commits an offence who, in any manner, knowingly utters,
conveys or causes any person to receive a threat
to cause death or bodily harm to any person;a)
to burn, destroy or damage real or personal property; orb)
to kill, poison or injure an animal or bird that is the property of any person.c)
Every one who commits an offence under paragraph (1)(a) is guilty of(2)
an indictable offence and liable to imprisonment for a term not exceeding five
years; or
a)
an offence punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months.
b)
(3) Every one who commits an offence under paragraph (1)(b) or (c)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding two years; or
a)
is guilty of an offence punishable on summary convictionb)
Elements
It is immaterial whether the ‘victim’ appreciated he was being threatened. The
crown need only to prove the threat was uttered. R vs Carons (1978)
-
The threat viewed objectively. Reasonable Persons Test
-
Mistake of Law
General Principal is that “ignorance of law is no defence.”
-
Officially Induced Error
-
received information from a public official whose duty is to advise the public.
-
Ch9 Mistake of Fact, Consent
Friday,(March(23,(2018
7:57(AM
Assault
Assault is a general intent offence.
-
General intent vs Specific intent
-
When is Consent Not a Defence?
Consent may be a defence to a charge of assault, however, consent is not valid
if it is obtained by:
-
threats of, fear of, or the actual application of force to any person, or fraud,
or the exercise of authority.
Section 265.(3) C.C.
→
-
Three Levels of Assault
First Level (Common Assault) Sec. 266
Hybrid offence
→
1.
Second Level (Assault Causing Bodily Harm or Assault with a weapon) Sec.
267
Hybrid offence
→
2.
Third Level (Aggravated Assault) Sec. 268.(1)
indictable offence
→
3.
Assault -(Common Assault)
266. Everyone who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not
exceeding five years; or
(b) an offence punishable on summary conviction.
Facts in Issue-Assault
Day, date, time and place of the offence.A)
Identity of the accused (anyone).B)
The accused assaulted the complainant.C)
What about section 43?
Every schoolteacher, parent or person standing in the place of a parent is
justified in using force by way of correction toward a pupil or child, as the case
may be, who is under his care, if the force does not exceed what is reasonable
under the circumstances.
•
http://youtu.be/Wl9y3SIPt7o
Assault Causing Bodily Harm
267. Everyone who, in committing an assault,
carries, uses or threatens to use a weapon or an imitation thereof; or
(a)
causes bodily harm to the complainant
(b)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years or an offence punishable on summary conviction and liable
to imprisonment for a term not exceeding eighteen months.
-
What is ‘bodily harm’?
“Bodily harm” means “any hurt or injury to the complainant that interferes
with his health or comfort and that is more than merely transient and trifling
in nature.
•
Section 2 C.C.-Offensive Weapon
An “offensive weapon” is
•
anything used or intended for use in causing death or injury to persons whether
designed for that purpose or not, or
(a)
anything used or intended for use for the purpose of threatening or
intimidating any person, and without restricting the generality of the
foregoing, includes any firearm as defined in section 84(1).
(b)
Section 2 C.C.-Aggravated Assault
268.
•
Every one commits an aggravated assault who wounds, maims, disfigures or
endangers the life of the complainant.
1)
Everyone who commits an aggravated assault is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years.
2)
Included Offences
an offence for which all the Facts in Issue are included in the Facts in Issue of
another offence.
-
This means that if charged with assault bodily harm but Crown fails to prove
the injury meets the threshold of beyond transient and trifling, then guilty of
included offence of assault.
-
Included Offences -Aggravated Assault
The included offences Aggravated Assault Sec. 268.(1) are:
Assault Causing Bodily Harm Sec. 267
→
Common Assault Sec. 266
→
w
Summary
There are three ways to commit assault: actual application of force,
threatened application of force, and implicit threats to apply force.
-
There are three levels of assault. Each level is distinguished by the level of
violence used. Third Level is the most violent and First Level is the least
violent.
-
First and Second Levels are included offences of Third Level Assault, and First
Level is an included offence of Second Level Assault.
-
Implied Consent
Individuals who voluntarily participate in sporting events should be deemed to
have given implied consent to the infliction of a certain degree of force upon
their bodies.
•
http://yooutube.link/en/video/iwB21wtLN84/Ugliest-On-Ice-Beha viour
Implied Consent in Sexual Assault
Ewanchuk (1999)
•
Sexual Assault
-
Everyone who commits a sexual assault is guilty of
an indictable offence and is liable to imprisonment for a term not exceeding 10
years and, if the complainant is under the age of 16 years, to a minimum
punishment of imprisonment for a term of one year; or
a)
an offence punishable on summary conviction and is liable to imprisonment for
a term not exceeding 18 months and, if the complainant is under the age of 16
years, to a minimum punishment of imprisonment for a term of 90 days.
b)
Sexual Assault
Case law has determined that Assault as defined in section 265. applies to the
sexual assaults; however, the term ‘sexual assault’ is not defined in the
Criminal Code.
-
Case law has determined that an assault is of a sexual nature, regardless of the
part of the body touched, if the accused’s intention in committing the assault
is to obtain sexual gratification (R. v. Alderton; R. v. Taylor)
-
Sexual Assault -Second Level
272.(1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a
weapon;
(b) threatens to cause bodily harm to a person other than the
complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.
Sexual Assault -Third Level
273.(1) Every one commits an aggravated sexual assault who, in committing a sexual
assault, wounds, maims, disfigures or endangers the life of the complainant.
Facts in Issue
Sexual Assault -Third Level
273.(1) Every one commits an aggravated sexual assault who, in committing a sexual
assault, wounds, maims, disfigures or endangers the life of the complainant.
Facts in Issue
Day, date, time and place of the offence.A)
Identity of the accused (anyone).B)
The accused assaulted the complainant.C)
The assault was of a sexual nature.D)
The assault was ‘aggravated’ in that the complainant wasE)
wounded;i)
maimed;ii)
disfigured, oriii)
had his/her life endangered.iv)
CONSENT
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the
purposes of sections 271, 272 and 273, the voluntary agreement of the complainant
to engage in the sexual activity in question.
No Consent
No consent is obtained, for the purposes of sections 271, 272 and 273, where
•
the agreement is expressed by the words or conduct of a person other than the
complainant;
A)
the complainant is incapable of consenting to the activity;B)
the accused induces the complainant to engage in the activity by abusing a
position of trust, power or authority;
C)
the complainant expresses, by words or conduct, a lack of agreement to
engage in the activity; or
D)
the complainant, having consented to engage in sexual activity, expresses, by
words or conduct, a lack of agreement to continue to engage in the activity.
E)
Consent
R vs J.A.(2011)
DEFENCE OF MISTAKEN BELIEF
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused
believed that the complainant consented to the activity that forms the subject-
matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting.
R v. Chase 1987
Chase took a hold of a 15yr old girl around her shoulders and arms and grabbed
her breasts
-
He stated to her ‘come on dear, don’t hit me. I know you want it’
-
The victim also stated that he tried to ‘grab her privates’
-
The accused was convicted but appealed to court of appeal in New Brunswick
-
The court of Appeal stated that for the accused to be convicted of sexual
assault there must be contact with the genitals
-
The Crown appealed the Court of Appeals definition of sexual assault
-
The SCC stated that the assault must be committed in the circumstances of a
sexual nature
-
Sexual Integrity
It is possible for the court to rule that an assault was sexual in nature even if it
was established that his or her intent was not to obtain sexual gratification
-
This requires that application of the subjective test
-
V. (K.B) (1993) –violently grabbing his son’s genitals to prevent him from
grasping the genitals region of adults
-
Claimed discipline
-
SCC held that the assault violated the sexual integrity of the victim
-
Wilful Blindness
-
Sansregret (1985)
Trial Judge acquitted him under an honest mistake of fact as to the consent of
the victim.
-
He went to ex wife’s house
-
Mistake of Fact
-
Mailhot -Charged with Indecent Act in a public place in the presence of one or
more persons.
-
Mistake of fact -he mistakenly believed that undercover officer wished to
participate in sexual act.
acquitted
-
Sexual History
Complainant’s sexual history not relevant –concern of S.C.C. is that it re-
victimizes the person and/or leads the Trier of Fact to the erroneous
conclusion that if the person has multiple partners, they must have consented
on this occasion to sexual activity.
-
Section 277
-Parliament enacted legislation regarding Sexual History
Evidence of sexual reputation, whether general or specific is NOT admissible
for the purpose of challenging or supporting the credibility of the complainant.
-
Exception
the judge, provincial court judge or justice determines, in accordance with the
procedures set out in sections 276.1 and 276.2, that the evidence
is of specific instances of sexual activity;a)
is relevant to an issue at trial; andb)
has significant probative value that is not substantially outweighed by the
danger of prejudice to the proper administration of justice.
c)
Judge must Consider
the interests of justice, including the right of the accused to make a full
answer and defence;
a)
society’s interest in encouraging the reporting of sexual assault offences;b)
whether there is a reasonable prospect that the evidence will assist in arriving
at a just determination in the case;
c)
the need to remove from the fact-finding process any discriminatory belief or
bias;
d)
the risk that the evidence may unduly arouse sentiments of prejudice,
sympathy or hostility in the jury;
e)
the potential prejudice to the complainant’s personal dignity and right of
privacy;
f)
the right of the complainant and of every individual to personal security and to
the full protection and benefit of the law; and
g)
any other factor that the judge, provincial court judge or justice considers
relevant.
h)
Hearing
Absence of Jury
-
Complainant not compellable to testify
-
Sexual Interference
Every person who, for a sexual purpose, touches directly or indirectly, with a
part of the body or with an object, any part of the body of a person under the
age of 16 is:
•
Guilty of an indictable offence and is liable to jail for minimum of 45 days in
jail and not exceeding 10 years, or
a)
Guilty of a summary conviction offence and liable to imprisonment for
minimum of 14 days and not exceeding 18 months
b)
Mistake of Age
Reasonable steps to ascertain age
Defences
Defences of consent and exculpatory mistaken belief regarding complainant’s
age is limited by s.150.1
-
Consent is a defence IF complainant is between 12-14 and accused less than
two years older AND not in a position of trust.
-
Consent is a defence IF complainant is between 14 up to 16 and accused less
than five years older AND not in a position of trust.
-
Invitation to Sexual Touching
Every person who, for a sexual purpose invites, counsels or incites a person
under the age of 16 to touch directly or indirectly, ……, including the body of
the person who so invites,
•
is guilty of indictable offence and liable to a minimum 45 days jail and liable to
a term not exceeding 10 years;
a)
is guilty of summary offence and liable to minimum 14 days jail and not
exceeding 18 months.
b)
Mens Rea
•
Offence committed where accused asks the complainant if the accused can
touch him/her (or does touch him/her)
-
Sexual Exploitation –s.153
Everyone commits an offence who is in a position of trust or authority to a
young person, who is a person with whom the young person is in a relationship
of dependency or who is in a relationship with a young person that is
exploitative and:
•
for a sexual purpose touches ora)
for a sexual purposes invites…. A touching.b)
Hybrid offence
Indictment –minimum 45 days
•
Summary –minimum 14 days
•
Interference or Sexual Exploitation
A judge may infer that a person is in an exploitive relationship from the nature
and circumstances of the relationship including:
•
the age of the young person;a)
the age difference between the two;b)
the evolution of the relationship;c)
the degree of control or influence over the young person.d)
Elements of Offence
Crown must prove beyond a reasonable doubt:
•
1. the complainant and young person within the meaning of s.153(2)
2. the accused engaged in one of the activities in s.153(1)
3. the acts in question were committed
4. the accused was in a position of trust
What is Position of Trust or Authority?
Founded on notions of safety and confidence and reliability that they not be
breached.
→
Teachers
→
Dance instructor in program taught as a high school delivered through City;
→
Hockey coaches,
→
Unlawfully Cause Bodily harm269 cc
Hybrid
-
Indictable 10 years
-
Summary 18 months
-
Objectively Dangerous
-
A reasonable person would realize that actions would subject another person to
the risk of bodily harm.
-
Mens Rea
•
While the mens rea requires proof of objective foreseeability of the risk of
bodily harm generally, there is no requirement that the specific type of harm
occasioned be objectively foreseeable.
-
Utter Threats
264.1 (1) Every one commits an offence who, in any manner, knowingly utters,
conveys or causes any person to receive a threat
to cause death or bodily harm to any person;a)
to burn, destroy or damage real or personal property; orb)
to kill, poison or injure an animal or bird that is the property of any person.c)
Every one who commits an offence under paragraph (1)(a) is guilty of(2)
an indictable offence and liable to imprisonment for a term not exceeding five
years; or
a)
an offence punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months.
b)
(3) Every one who commits an offence under paragraph (1)(b) or (c)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding two years; or
a)
is guilty of an offence punishable on summary convictionb)
Elements
It is immaterial whether the ‘victim’ appreciated he was being threatened. The
crown need only to prove the threat was uttered. R vs Carons (1978)
-
The threat viewed objectively. Reasonable Persons Test
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Mistake of Law
General Principal is that “ignorance of law is no defence.”
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Officially Induced Error
-
received information from a public official whose duty is to advise the public.
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Ch9 Mistake of Fact, Consent
Friday,(March(23,(2018 7:57(AM
Assault
Assault is a general intent offence.
-
General intent vs Specific intent
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When is Consent Not a Defence?
Consent may be a defence to a charge of assault, however, consent is not valid
if it is obtained by:
-
threats of, fear of, or the actual application of force to any person, or fraud,
or the exercise of authority.
Section 265.(3) C.C.
→
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Three Levels of Assault
First Level (Common Assault) Sec. 266
Hybrid offence
→
1.
Second Level (Assault Causing Bodily Harm or Assault with a weapon) Sec.
267
Hybrid offence
→
2.
Third Level (Aggravated Assault) Sec. 268.(1)
indictable offence
→
3.
Assault -(Common Assault)
266. Everyone who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not
exceeding five years; or
(b) an offence punishable on summary conviction.
Facts in Issue-Assault
Day, date, time and place of the offence.A)
Identity of the accused (anyone).B)
The accused assaulted the complainant.C)
What about section 43?
Every schoolteacher, parent or person standing in the place of a parent is
justified in using force by way of correction toward a pupil or child, as the case
may be, who is under his care, if the force does not exceed what is reasonable
under the circumstances.
•
http://youtu.be/Wl9y3SIPt7o
Assault Causing Bodily Harm
267. Everyone who, in committing an assault,
carries, uses or threatens to use a weapon or an imitation thereof; or(a)
causes bodily harm to the complainant(b)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years or an offence punishable on summary conviction and liable
to imprisonment for a term not exceeding eighteen months.
-
What is ‘bodily harm’?
“Bodily harm” means “any hurt or injury to the complainant that interferes
with his health or comfort and that is more than merely transient and trifling
in nature.
•
Section 2 C.C.-Offensive Weapon
An “offensive weapon” is
•
anything used or intended for use in causing death or injury to persons whether
designed for that purpose or not, or
(a)
anything used or intended for use for the purpose of threatening or
intimidating any person, and without restricting the generality of the
foregoing, includes any firearm as defined in section 84(1).
(b)
Section 2 C.C.-Aggravated Assault
268.
•
Every one commits an aggravated assault who wounds, maims, disfigures or
endangers the life of the complainant.
1)
Everyone who commits an aggravated assault is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years.
2)
Included Offences
an offence for which all the Facts in Issue are included in the Facts in Issue of
another offence.
-
This means that if charged with assault bodily harm but Crown fails to prove
the injury meets the threshold of beyond transient and trifling, then guilty of
included offence of assault.
-
Included Offences -Aggravated Assault
The included offences Aggravated Assault Sec. 268.(1) are:
Assault Causing Bodily Harm Sec. 267
→
Common Assault Sec. 266
→
w
Summary
There are three ways to commit assault: actual application of force,
threatened application of force, and implicit threats to apply force.
-
There are three levels of assault. Each level is distinguished by the level of
violence used. Third Level is the most violent and First Level is the least
violent.
-
First and Second Levels are included offences of Third Level Assault, and First
Level is an included offence of Second Level Assault.
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Implied Consent
Individuals who voluntarily participate in sporting events should be deemed to
have given implied consent to the infliction of a certain degree of force upon
their bodies.
•
http://yooutube.link/en/video/iwB21wtLN84/Ugliest-On-Ice-Beha viour
Implied Consent in Sexual Assault
Ewanchuk (1999)
•
Sexual Assault
-
Everyone who commits a sexual assault is guilty of
an indictable offence and is liable to imprisonment for a term not exceeding 10
years and, if the complainant is under the age of 16 years, to a minimum
punishment of imprisonment for a term of one year; or
a)
an offence punishable on summary conviction and is liable to imprisonment for
a term not exceeding 18 months and, if the complainant is under the age of 16
years, to a minimum punishment of imprisonment for a term of 90 days.
b)
Sexual Assault
Case law has determined that Assault as defined in section 265. applies to the
sexual assaults; however, the term ‘sexual assault’ is not defined in the
Criminal Code.
-
Case law has determined that an assault is of a sexual nature, regardless of the
part of the body touched, if the accused’s intention in committing the assault
is to obtain sexual gratification (R. v. Alderton; R. v. Taylor)
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Sexual Assault -Second Level
272.(1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a
weapon;
(b) threatens to cause bodily harm to a person other than the
complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.
Sexual Assault -Third Level
273.(1) Every one commits an aggravated sexual assault who, in committing a sexual
assault, wounds, maims, disfigures or endangers the life of the complainant.
Facts in Issue
Sexual Assault -Third Level
273.(1) Every one commits an aggravated sexual assault who, in committing a sexual
assault, wounds, maims, disfigures or endangers the life of the complainant.
Facts in Issue
Day, date, time and place of the offence.
A)
Identity of the accused (anyone).
B)
The accused assaulted the complainant.
C)
The assault was of a sexual nature.D)
The assault was ‘aggravated’ in that the complainant wasE)
wounded;i)
maimed;ii)
disfigured, oriii)
had his/her life endangered.iv)
CONSENT
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the
purposes of sections 271, 272 and 273, the voluntary agreement of the complainant
to engage in the sexual activity in question.
No Consent
No consent is obtained, for the purposes of sections 271, 272 and 273, where
•
the agreement is expressed by the words or conduct of a person other than the
complainant;
A)
the complainant is incapable of consenting to the activity;B)
the accused induces the complainant to engage in the activity by abusing a
position of trust, power or authority;
C)
the complainant expresses, by words or conduct, a lack of agreement to
engage in the activity; or
D)
the complainant, having consented to engage in sexual activity, expresses, by
words or conduct, a lack of agreement to continue to engage in the activity.
E)
Consent
R vs J.A.(2011)
DEFENCE OF MISTAKEN BELIEF
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused
believed that the complainant consented to the activity that forms the subject-
matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting.
R v. Chase 1987
Chase took a hold of a 15yr old girl around her shoulders and arms and grabbed
her breasts
-
He stated to her ‘come on dear, don’t hit me. I know you want it’
-
The victim also stated that he tried to ‘grab her privates’
-
The accused was convicted but appealed to court of appeal in New Brunswick
-
The court of Appeal stated that for the accused to be convicted of sexual
assault there must be contact with the genitals
-
The Crown appealed the Court of Appeals definition of sexual assault
-
The SCC stated that the assault must be committed in the circumstances of a
sexual nature
-
Sexual Integrity
It is possible for the court to rule that an assault was sexual in nature even if it
was established that his or her intent was not to obtain sexual gratification
-
This requires that application of the subjective test
-
V. (K.B) (1993) –violently grabbing his son’s genitals to prevent him from
grasping the genitals region of adults
-
Claimed discipline
-
SCC held that the assault violated the sexual integrity of the victim
-
Wilful Blindness
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Sansregret (1985)
Trial Judge acquitted him under an honest mistake of fact as to the consent of
the victim.
-
He went to ex wife’s house
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Mistake of Fact
-
Mailhot -Charged with Indecent Act in a public place in the presence of one or
more persons.
-
Mistake of fact -he mistakenly believed that undercover officer wished to
participate in sexual act.
acquitted
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Sexual History
Complainant’s sexual history not relevant –concern of S.C.C. is that it re-
victimizes the person and/or leads the Trier of Fact to the erroneous
conclusion that if the person has multiple partners, they must have consented
on this occasion to sexual activity.
-
Section 277
-Parliament enacted legislation regarding Sexual History
Evidence of sexual reputation, whether general or specific is NOT admissible
for the purpose of challenging or supporting the credibility of the complainant.
-
Exception
the judge, provincial court judge or justice determines, in accordance with the
procedures set out in sections 276.1 and 276.2, that the evidence
is of specific instances of sexual activity;a)
is relevant to an issue at trial; andb)
has significant probative value that is not substantially outweighed by the
danger of prejudice to the proper administration of justice.
c)
Judge must Consider
the interests of justice, including the right of the accused to make a full
answer and defence;
a)
society’s interest in encouraging the reporting of sexual assault offences;b)
whether there is a reasonable prospect that the evidence will assist in arriving
at a just determination in the case;
c)
the need to remove from the fact-finding process any discriminatory belief or
bias;
d)
the risk that the evidence may unduly arouse sentiments of prejudice,
sympathy or hostility in the jury;
e)
the potential prejudice to the complainant’s personal dignity and right of
privacy;
f)
the right of the complainant and of every individual to personal security and to
the full protection and benefit of the law; and
g)
any other factor that the judge, provincial court judge or justice considers
relevant.
h)
Hearing
Absence of Jury
-
Complainant not compellable to testify
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Sexual Interference
Every person who, for a sexual purpose, touches directly or indirectly, with a
part of the body or with an object, any part of the body of a person under the
age of 16 is:
•
Guilty of an indictable offence and is liable to jail for minimum of 45 days in
jail and not exceeding 10 years, or
a)
Guilty of a summary conviction offence and liable to imprisonment for
minimum of 14 days and not exceeding 18 months
b)
Mistake of Age
Reasonable steps to ascertain age
Defences
Defences of consent and exculpatory mistaken belief regarding complainant’s
age is limited by s.150.1
-
Consent is a defence IF complainant is between 12-14 and accused less than
two years older AND not in a position of trust.
-
Consent is a defence IF complainant is between 14 up to 16 and accused less
than five years older AND not in a position of trust.
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Invitation to Sexual Touching
Every person who, for a sexual purpose invites, counsels or incites a person
under the age of 16 to touch directly or indirectly, ……, including the body of
the person who so invites,
•
is guilty of indictable offence and liable to a minimum 45 days jail and liable to
a term not exceeding 10 years;
a)
is guilty of summary offence and liable to minimum 14 days jail and not
exceeding 18 months.
b)
Mens Rea
•
Offence committed where accused asks the complainant if the accused can
touch him/her (or does touch him/her)
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Sexual Exploitation –s.153
Everyone commits an offence who is in a position of trust or authority to a
young person, who is a person with whom the young person is in a relationship
of dependency or who is in a relationship with a young person that is
exploitative and:
•
for a sexual purpose touches ora)
for a sexual purposes invites…. A touching.b)
Hybrid offence
Indictment –minimum 45 days
•
Summary –minimum 14 days
•
Interference or Sexual Exploitation
A judge may infer that a person is in an exploitive relationship from the nature
and circumstances of the relationship including:
•
the age of the young person;a)
the age difference between the two;b)
the evolution of the relationship;c)
the degree of control or influence over the young person.d)
Elements of Offence
Crown must prove beyond a reasonable doubt:
•
1. the complainant and young person within the meaning of s.153(2)
2. the accused engaged in one of the activities in s.153(1)
3. the acts in question were committed
4. the accused was in a position of trust
What is Position of Trust or Authority?
Founded on notions of safety and confidence and reliability that they not be
breached.
→
Teachers
→
Dance instructor in program taught as a high school delivered through City;
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Hockey coaches,
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Unlawfully Cause Bodily harm269 cc
Hybrid
-
Indictable 10 years
-
Summary 18 months
-
Objectively Dangerous
-
A reasonable person would realize that actions would subject another person to
the risk of bodily harm.
-
Mens Rea
•
While the mens rea requires proof of objective foreseeability of the risk of
bodily harm generally, there is no requirement that the specific type of harm
occasioned be objectively foreseeable.
-
Utter Threats
264.1 (1) Every one commits an offence who, in any manner, knowingly utters,
conveys or causes any person to receive a threat
to cause death or bodily harm to any person;a)
to burn, destroy or damage real or personal property; orb)
to kill, poison or injure an animal or bird that is the property of any person.c)
Every one who commits an offence under paragraph (1)(a) is guilty of(2)
an indictable offence and liable to imprisonment for a term not exceeding five
years; or
a)
an offence punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months.
b)
(3) Every one who commits an offence under paragraph (1)(b) or (c)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding two years; or
a)
is guilty of an offence punishable on summary convictionb)
Elements
It is immaterial whether the ‘victim’ appreciated he was being threatened. The
crown need only to prove the threat was uttered. R vs Carons (1978)
-
The threat viewed objectively. Reasonable Persons Test
-
Mistake of Law
General Principal is that “ignorance of law is no defence.”
-
Officially Induced Error
-
received information from a public official whose duty is to advise the public.
-
Ch9 Mistake of Fact, Consent
Friday,(March(23,(2018 7:57(AM
