JUST 1020 Lecture Notes - Lecture 7: Indictable Offence, Fundamental Justice, Partial Defence
Offences
Robbery
→
Mischief
→
Arson
→
https://www.youtube.com/watch?v=YhJMi6YeB8k
•
Robbery 344 CC
343.Every one commits robbery who
○
steals, and for the purpose of extorting whatever is stolen or to prevent or overcome
resistance to the stealing, uses violence or threats of violence to a person or
property;
(a)
steals from any person and, at the time he steals or immediately before or
immediately thereafter, wounds, beats, strikes or uses any personal violence to that
person;
(b)
assaults any person with intent to steal from him; or
(c)
steals from any person while armed with an offensive weapon or imitation thereof.
(d)
344. (1) Every person who commits robbery is guilty of an indictable offence
○
https://www.youtube.com/watch?v=gJwfmCEmty4
Mischief
○
430 CC
•
Every one who wilfully:
•
Destroys or damages property;
a)
Renders property dangerous, useless, inoperative or ineffective;
b)
Obstructs, interrupts or interferes with the lawful use, enjoyment or
c)
operation of property;
Obstructs, interrupts or interferes with any person in the lawful use,
d)
enjoyment or operation of property.
Every one who willfully
•
Destroys or alters data
a)
Renders data meaningless, useless or ineffective
b)
Obstructs, interrupts or interferes with the lawful use of data, or
c)
Obstructs, interrupts or interferes with any person in the lawful use of data or denies
access to data to any person who is entitled to access thereto.
d)
Mischief to Religious Property
(4.1) Every one who commits mischief in relation to property that is a building,
structure or part thereof that is primarily used for religious worship, including a
church, mosque, synagogue or temple, or an object associated with religious worship
located in or on the grounds of such a building or structure, or a cemetery, if the
commission of the mischief is motivated by bias, prejudice or hate based on religion,
race, colour or national or ethnic origin,
○
is guilty of an indictable offence(a)
is guilty of an offence punishable on summary conviction.(b)
Mischief Penalties
Mischief that causes actual danger to life is guilty of an indictable offence –life
imprisonment
-
Mischief Over or testamentary instrument dual procedure
-
Mischief Under Dual procedure
-
Mischief in relation to religious worship –Dual
-
Mischief in relation to cultural property Dual procedure
-
Mischief in relation to data Dual Procedure
-
Arson
○
433 CC
•
Every person who intentionally or recklessly causes damage by fire or explosion to
property, whether or not that person owns the property, is guilty of an indictable
offence and liable to imprisonment for life where
•
the person knows that or is reckless with respect to whether the property is
inhabited or occupied; or
(a)
the fire or explosion causes bodily harm to another person.(b)
Actual burning:
•
There must be actual burning, other than just smoke damage and scorching, R. v.
Jorgenson (1954) 20 C.R.382
-
Crown must prove:
•
the accused knew, or was reckless as to whether or not the property was inhabited or
occupied.
1.
bodily harm to another person resulting from the fire or explosion. uIrrelevant
whether or not the accused owns the property.
2.
Arson
○
434 CC
•
Every person who intentionally or recklessly causes damage by fire or explosion to
property that is not wholly owned by that person is guilty of indictable offence.
•
“Recklessly” defined
Property is defined in s 428. To find “recklessly” must refer to R vs Sansregret
(1985)
-
Accused of sexual assault on his wife.
-
“in the attitude of one who, aware that there is danger that his conduct could bring
about the result prohibited by the criminal law, nevertheless persists, despite the
risk.”
-
Arson 434.1 (own property)
○
Every person who intentionally or recklessly causes damage by fire or explosion to
property owned, in whole or in part, by that person is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years, where the fire
or explosion seriously threatens the health, safety or property of another person.
•
Arson for Fraudulent Purpose 435 CC
○
435.1 Every person who, with intent to defraud any other person, causes damage by
fire or explosion to property, whether or not that person owns, in whole or in part,
the property, is guilty of an indictable offence.
•
the fact that the person was the holder of or was named as a beneficiary under a
policy of fire insurance relating to the property in respect of which the offence is
alleged to have been committed is a fact from which intent to defraud may be
inferred by the court.
2.
Arson by Negligence
436. (1) Every person who owns, in whole or in part, or controls property is guilty of
an indictable offence and liable to imprisonment for a term not exceeding five years
where, as a result of a marked departure from the standard of care that a reasonably
prudent person would use to prevent or control the spread of fires or to prevent
explosions, that person is a cause of a fire or explosion in that property that causes
bodily harm to another person or damage to property
○
Possession of incendiary material
436.1 Every person who possesses any incendiary material, incendiary device or
explosive substance for the purpose of committing an offence under any of sections
433 to 436 is guilty of an indictable offence and liable to imprisonment for a term
not exceeding five years.
○
Chapter 10
Provocation and Intoxication: Partial Defences to a Criminal Charge
Provocation and Intoxication
They are referred to as “partial defences” because they operate to reduce the
severity of the charge rather than lead to an absolute acquittal
→
•
Presentation
Provocation -Ly
•
Provocation
Section 232 of the Criminal Code.
○
Only available for person charged with Murder
-
What does the charge get reduced to?
-
Defence of Provocation can never be raised merely because the accused lost self-
control
-
Provocation-Requirement 1(A) wrongful act
Firstly, it must be shown that the deceased victim engaged in a wrongful act or insult
that was “sufficient to deprive an ordinary person of the power of self-control”
•
Tran (2010) -found his ex wife in bed with boyfriend
stabbed boyfriend 17 times, 2nd degree murder.
→
raised provocation -trial judge accepted
→
Court of Appeal set aside acquittal and substituted conviction for 2nd degree
murder.
→
Supreme Court -upheld -no evidence of not engaged in unlawful behaviour
→
•
Evans (2012)
2nd degree murder on sex trade worker
→
‘Lost it’ because too drunk to obtain erection
→
Acquittal or Guilty?
→
•
Provocation –1(B) Insult that would cause ordinary person to be deprived of his
or her self-control
accused lost temper must be of such “a nature as to be sufficient to deprive an
ordinary person of the power of self-control”.
This is Objective component -Would an ordinary person lose control?
→
Crown must prove Objective component THEN
→
Subjective component -that is, the accused was in fact provoked.
→
•
Ordinary Person Test
Should the “ordinary person test” incorporate his alleged cultural beliefs and permit
him to assert the defence of provocation when he has killed a woman who did not
submit to his conception of what is appropriate conduct for women?”
•
Thibert (1996)
acknowledged that the objective test should include some consideration of the
background relationship between the deceased and the accused.
→
Thibert married, his wife in process of leaving him, boyfriend taunted Thibert
→
Requirement 2: A wrongful act or insult that was sudden and unexpected
Parent (2001) “sudden and unexpected”
“must strike upon a mind unprepared for it, that must make an unexpected
impact that takes the understanding by surprise and sets the passions aflame”.
→
•
Requirement 3 : Wrongful act or insult caused the accused to act in anger
Subjective component
the accused must show that he or she was in fact provoked.
→
the accused person subjective perceptions of the circumstances
→
•
Requirement 4 The accused acted before having recovered his or her normal
control
“before there was time for his passion to cool
→
Friesen (1995)
charged first degree murder
→
nail gun
→
•
Legal Right
In what circumstances are the courts likely to find that the victim had a “legal right”
to do what she or he did within the meaning of section 232(3)
•
Lousion (1975)
Robbed taxi driver at knifepoint
→
Trunk
→
Open –attacked,
→
Embedded hammer in skull
→
Defence –provocation
→
Not allowed, appeal
→
SCC reject appeal
→
•
Role of Judge and Jury
Mayuran (2012)
Sets out evidential burden when provocation is raised as a defence
→
stabbed sister in law 45 times
→
Witnesses Say killed her because victim had ”ridiculed her about her learning
disability”
→
SCC –the defence of provocation should only be put to the jury if it has an “air
of reality”
→
Test is whether there is evidence upon which a properly instructed jury acting
reasonably could acquit if it believed the evidence to be true.
→
•
Role of Jury
Questions such as:
whether a particular wrongful act or insult amounted to provocation.
→
or
→
whether the accused was deprived of the power of self-control by the
provocation that he alleges he received.
→
Questions of Fact
→
•
Intoxication as a partial defence
Until 1996 CC made no mention of defence of intoxication common law
•
Beard Rules
•
If intoxication induces “disease of the mind” the accused must be acquitted NCR on
account of a mental disorder.
1.
If intoxication prevents accused to form intent for specific intent offence he must be
acquitted.
Basic intent -intoxication can never be used as a defence
→
2.
Beard Rules
If intoxication falls short of preventing the accused from forming the intent
necessary for conviction of a crime of specific intent, it does not constitute a valid
defence
-
Application of Beard
George (1960)
accused entered victim’s home robbed and beat man of $22.
→
severe state of intoxication
→
Acquitted at trial
→
SCC-Robbery specific intent -partial defence
→
verdict of guilty of assault (Basic intent)
→
•
First Beard Rule
intoxication that induces a “disease of mind” -can raise defence of NCRMD sec 16
CC
•
intoxication beyond alcohol.
•
Bouchard-Lebrun (2011)
high on ecstasy
→
beat up victim because he was wearing an upside down cross
→
Aggravated Assault
→
Supreme Court had to decide whether a psychotic state brought on by a
voluntary ingestion of a drug constituted a “disease of the mind” under section
16(1) CC
→
No pre-existing psychosis
→
examined on a case by case basis
→
Distinction between Basic and Specific-Daley (2007)
charged 1st degree murder of his common law wife.
→
extremely intoxicated
→
Trial Judge to Jury:
→
“Crown counsel must prove beyond a reasonable doubt the Daley had the
intent to kill or to cause bodily harm, knowing it was likely to cause death
→
SCC -clearly instructed-The jury had to consider whether Daley foresaw the
consequences of his actions when he stabbed her to death.
→
Daviault 1994
Clearly establishes two categories of offences -Specific and Basic Intent
7 or 8 beers and 35 ounces of brandy
→
pharmacologist testified 400 to 600 mgs
→
victim 65 years old and in a wheelchair
→
Trial -Acquitted of sexual assault.
→
Quebec Court of Appeal -overturn
→
Supreme Court said Que court of appeal interpretation of Beard rules violated
Daviault Rights sec 7 11(d)
→
•
Supreme Court ruled that a defence should be available to a person accused of an
offence of general intent if, owing to an extreme degree of intoxication, he or she
was in a “state kin to automatism or insanity”
“Mens rea for a crime is so well recognized that to eliminate that mental
element would deprive an accused of fundamental justice” (295)
→
defence must prove this on a balance of probabilities
→
•
Section 33.1
deals with those offences of general intent that involve an element of assault or
interference or threat of interference with the bodily integrity of another person.
Constitutional?
→
•
Summary of present state of law
Specific intent -2nd and 3rd Beard Rules will continue to apply1.
a) General intent -if threat or interference with bodily integrity -self induced
intoxication can never be a valid defence (section 33.l)
2.
b) no interference with bodily integrity and intoxicated in such a state that it is akin
to automatism or insanity -accused has benefit of absolute defence.
2.
Chapter 12
Self Defence and the Defence of Property
TWO major criminal defences in Canada
self-defence 1.
defence of property2.
•
Presentation
Self Defence -Petel
•
Section 34
○
3 elements
•
the accused person believed on reasonable grounds that force was being used against
him or her or another person or that a threat of force was being made against him or
her or another person.
1.
the action taken by the accused person was committed for the purpose of defending
or protecting himself or the other person from that use or threat of force.
2.
action taken was reasonable.3.
Subjective and Objective Test
Subjective Element -accused persons’ subjective perceptions of the circumstances
they encountered at the time of the alleged offence
•
Objective Element: Did the accused perceptions have a reasonable basis?
Would a reasonable person have responded with the same measure of force
→
•
Determining Reasonableness
2 critical factors
•
the immanence of an attack on the accused person.1.
the availability of alternative means of responding to the threat of the attack.
Docherty (2012) -“castle doctrine” The idea that one’s home is the last
refuge, the last line of defence.
•
2.
Self Defense
Evidence “battered wife syndrome” may be introduced in order to assist the
members of the jury to decide whether or not a woman who has killed her partner
reasonably believed that her life was in danger and that she had no option but to
employ lethal force in self-defence
•
R vs Lavallee (1990)
shot husband in back of head
→
judged on the standards of a reasonable woman
→
•
Reasonableness
takes into account as a means of establishing the reasonableness of the accused
woman’s beliefs and actions in light of her experience of chronic abuse at the hands
of her partner.
•
Jury to Consider
Why an abused woman might remain in an abusive relationship
→
The nature and extent of the violence that may exist in a battering relationship
•
The accused’s ability to perceive danger from her abuser
•
Whether the accused believed on reasonable grounds that she could not otherwise
preserve herself from death or grievous bodily harm.
•
Vaillancourt
married 30 years
→
evidence of physical and psychological abuse
→
test husband about divorce
→
Husband-“Good for him!”
→
She killed husband with shotgun
→
Craig (2011)
accused killed husband by placing pillow over head and stabbing him four times
with butcher knife.
→
defence -abused and feared assault when drunk husband woke up.
→
no evidence of violent history.
→
Ont Court of Appeal -no air of reality
→
Self Defence Parker (2013)
accused, victim and accused girlfriend drinking.
→
victim violently wrestled Parker to ground.
→
Parker go on top and repeatedly punched him in the head.
→
Ont Court of Appeal -Parker’s response to the victim’s assault on him was
disproportionate and therefore unreasonable.
→
Defence of Property
Section 35
the accused person believes on reasonable grounds that they are in “peaceable
possession” of property (or acting under the authority of someone who is)
→
accused reason to believe is about to enter, is entering, or has entered
unlawfully or is about to take property
→
accused persons actions are to prevent the other person from entering or
damaging or taking property
→
accused person’s conduct was reasonable in the circumstances
→
○
Gunning(2005)
3 elements satisfied
possession of the house
→
possession was peaceable
→
deceased was a trespasser
→
deceased crashed party, Gunning got a gun and accidentally shot deceased
→
Fourth element-Did Gunning use reasonable force under the circumstances?
What do you think?
}
→
•
Jamieson (2002)
uennings and Jamieson consuming crystal meth and Jennings getting out of control.
asked to leave -refused
→
through acid on face -disfigured
→
•
uhttp://globalnews.ca/news/2499007/hamilton-man-charged-after-trespasser-
fatally-shot-while-trying-to-steal-truck/
W7 Ch10/12 Partial Offences/Crim Offences
Friday,)March)2,)2018
7:36)AM
Offences
Robbery
→
Mischief
→
Arson
→
https://www.youtube.com/watch?v=YhJMi6YeB8k
•
Robbery 344 CC
343.Every one commits robbery who
○
steals, and for the purpose of extorting whatever is stolen or to prevent or overcome
resistance to the stealing, uses violence or threats of violence to a person or
property;
(a)
steals from any person and, at the time he steals or immediately before or
immediately thereafter, wounds, beats, strikes or uses any personal violence to that
person;
(b)
assaults any person with intent to steal from him; or(c)
steals from any person while armed with an offensive weapon or imitation thereof.(d)
344. (1) Every person who commits robbery is guilty of an indictable offence
○
https://www.youtube.com/watch?v=gJwfmCEmty4
Mischief
○
430 CC
•
Every one who wilfully:
•
Destroys or damages property;a)
Renders property dangerous, useless, inoperative or ineffective;b)
Obstructs, interrupts or interferes with the lawful use, enjoyment orc)
operation of property;
Obstructs, interrupts or interferes with any person in the lawful use,d)
enjoyment or operation of property.
Every one who willfully
•
Destroys or alters dataa)
Renders data meaningless, useless or ineffectiveb)
Obstructs, interrupts or interferes with the lawful use of data, orc)
Obstructs, interrupts or interferes with any person in the lawful use of data or denies
access to data to any person who is entitled to access thereto.
d)
Mischief to Religious Property
(4.1) Every one who commits mischief in relation to property that is a building,
structure or part thereof that is primarily used for religious worship, including a
church, mosque, synagogue or temple, or an object associated with religious worship
located in or on the grounds of such a building or structure, or a cemetery, if the
commission of the mischief is motivated by bias, prejudice or hate based on religion,
race, colour or national or ethnic origin,
○
is guilty of an indictable offence
(a)
is guilty of an offence punishable on summary conviction.
(b)
Mischief Penalties
Mischief that causes actual danger to life is guilty of an indictable offence –life
imprisonment
-
Mischief Over or testamentary instrument dual procedure
-
Mischief Under Dual procedure
-
Mischief in relation to religious worship –Dual
-
Mischief in relation to cultural property Dual procedure
-
Mischief in relation to data Dual Procedure
-
Arson
○
433 CC
•
Every person who intentionally or recklessly causes damage by fire or explosion to
property, whether or not that person owns the property, is guilty of an indictable
offence and liable to imprisonment for life where
•
the person knows that or is reckless with respect to whether the property is
inhabited or occupied; or
(a)
the fire or explosion causes bodily harm to another person.
(b)
Actual burning:
•
There must be actual burning, other than just smoke damage and scorching, R. v.
Jorgenson (1954) 20 C.R.382
-
Crown must prove:
•
the accused knew, or was reckless as to whether or not the property was inhabited or
occupied.
1.
bodily harm to another person resulting from the fire or explosion. uIrrelevant
whether or not the accused owns the property.
2.
Arson
○
434 CC
•
Every person who intentionally or recklessly causes damage by fire or explosion to
property that is not wholly owned by that person is guilty of indictable offence.
•
“Recklessly” defined
Property is defined in s 428. To find “recklessly” must refer to R vs Sansregret
(1985)
-
Accused of sexual assault on his wife.
-
“in the attitude of one who, aware that there is danger that his conduct could bring
about the result prohibited by the criminal law, nevertheless persists, despite the
risk.”
-
Arson 434.1 (own property)
○
Every person who intentionally or recklessly causes damage by fire or explosion to
property owned, in whole or in part, by that person is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years, where the fire
or explosion seriously threatens the health, safety or property of another person.
•
Arson for Fraudulent Purpose 435 CC
○
435.1 Every person who, with intent to defraud any other person, causes damage by
fire or explosion to property, whether or not that person owns, in whole or in part,
the property, is guilty of an indictable offence.
•
the fact that the person was the holder of or was named as a beneficiary under a
policy of fire insurance relating to the property in respect of which the offence is
alleged to have been committed is a fact from which intent to defraud may be
inferred by the court.
2.
Arson by Negligence
436. (1) Every person who owns, in whole or in part, or controls property is guilty of
an indictable offence and liable to imprisonment for a term not exceeding five years
where, as a result of a marked departure from the standard of care that a reasonably
prudent person would use to prevent or control the spread of fires or to prevent
explosions, that person is a cause of a fire or explosion in that property that causes
bodily harm to another person or damage to property
○
Possession of incendiary material
436.1 Every person who possesses any incendiary material, incendiary device or
explosive substance for the purpose of committing an offence under any of sections
433 to 436 is guilty of an indictable offence and liable to imprisonment for a term
not exceeding five years.
○
Chapter 10
Provocation and Intoxication: Partial Defences to a Criminal Charge
Provocation and Intoxication
They are referred to as “partial defences” because they operate to reduce the
severity of the charge rather than lead to an absolute acquittal
→
•
Presentation
Provocation -Ly
•
Provocation
Section 232 of the Criminal Code.
○
Only available for person charged with Murder
-
What does the charge get reduced to?
-
Defence of Provocation can never be raised merely because the accused lost self-
control
-
Provocation-Requirement 1(A) wrongful act
Firstly, it must be shown that the deceased victim engaged in a wrongful act or insult
that was “sufficient to deprive an ordinary person of the power of self-control”
•
Tran (2010) -found his ex wife in bed with boyfriend
stabbed boyfriend 17 times, 2nd degree murder.
→
raised provocation -trial judge accepted
→
Court of Appeal set aside acquittal and substituted conviction for 2nd degree
murder.
→
Supreme Court -upheld -no evidence of not engaged in unlawful behaviour
→
•
Evans (2012)
2nd degree murder on sex trade worker
→
‘Lost it’ because too drunk to obtain erection
→
Acquittal or Guilty?
→
•
Provocation –1(B) Insult that would cause ordinary person to be deprived of his
or her self-control
accused lost temper must be of such “a nature as to be sufficient to deprive an
ordinary person of the power of self-control”.
This is Objective component -Would an ordinary person lose control?
→
Crown must prove Objective component THEN
→
Subjective component -that is, the accused was in fact provoked.
→
•
Ordinary Person Test
Should the “ordinary person test” incorporate his alleged cultural beliefs and permit
him to assert the defence of provocation when he has killed a woman who did not
submit to his conception of what is appropriate conduct for women?”
•
Thibert (1996)
acknowledged that the objective test should include some consideration of the
background relationship between the deceased and the accused.
→
Thibert married, his wife in process of leaving him, boyfriend taunted Thibert
→
Requirement 2: A wrongful act or insult that was sudden and unexpected
Parent (2001) “sudden and unexpected”
“must strike upon a mind unprepared for it, that must make an unexpected
impact that takes the understanding by surprise and sets the passions aflame”.
→
•
Requirement 3 : Wrongful act or insult caused the accused to act in anger
Subjective component
the accused must show that he or she was in fact provoked.
→
the accused person subjective perceptions of the circumstances
→
•
Requirement 4 The accused acted before having recovered his or her normal
control
“before there was time for his passion to cool
→
Friesen (1995)
charged first degree murder
→
nail gun
→
•
Legal Right
In what circumstances are the courts likely to find that the victim had a “legal right”
to do what she or he did within the meaning of section 232(3)
•
Lousion (1975)
Robbed taxi driver at knifepoint
→
Trunk
→
Open –attacked,
→
Embedded hammer in skull
→
Defence –provocation
→
Not allowed, appeal
→
SCC reject appeal
→
•
Role of Judge and Jury
Mayuran (2012)
Sets out evidential burden when provocation is raised as a defence
→
stabbed sister in law 45 times
→
Witnesses Say killed her because victim had ”ridiculed her about her learning
disability”
→
SCC –the defence of provocation should only be put to the jury if it has an “air
of reality”
→
Test is whether there is evidence upon which a properly instructed jury acting
reasonably could acquit if it believed the evidence to be true.
→
•
Role of Jury
Questions such as:
whether a particular wrongful act or insult amounted to provocation.
→
or
→
whether the accused was deprived of the power of self-control by the
provocation that he alleges he received.
→
Questions of Fact
→
•
Intoxication as a partial defence
Until 1996 CC made no mention of defence of intoxication common law
•
Beard Rules
•
If intoxication induces “disease of the mind” the accused must be acquitted NCR on
account of a mental disorder.
1.
If intoxication prevents accused to form intent for specific intent offence he must be
acquitted.
Basic intent -intoxication can never be used as a defence
→
2.
Beard Rules
If intoxication falls short of preventing the accused from forming the intent
necessary for conviction of a crime of specific intent, it does not constitute a valid
defence
-
Application of Beard
George (1960)
accused entered victim’s home robbed and beat man of $22.
→
severe state of intoxication
→
Acquitted at trial
→
SCC-Robbery specific intent -partial defence
→
verdict of guilty of assault (Basic intent)
→
•
First Beard Rule
intoxication that induces a “disease of mind” -can raise defence of NCRMD sec 16
CC
•
intoxication beyond alcohol.
•
Bouchard-Lebrun (2011)
high on ecstasy
→
beat up victim because he was wearing an upside down cross
→
Aggravated Assault
→
Supreme Court had to decide whether a psychotic state brought on by a
voluntary ingestion of a drug constituted a “disease of the mind” under section
16(1) CC
→
No pre-existing psychosis
→
examined on a case by case basis
→
Distinction between Basic and Specific-Daley (2007)
charged 1st degree murder of his common law wife.
→
extremely intoxicated
→
Trial Judge to Jury:
→
“Crown counsel must prove beyond a reasonable doubt the Daley had the
intent to kill or to cause bodily harm, knowing it was likely to cause death
→
SCC -clearly instructed-The jury had to consider whether Daley foresaw the
consequences of his actions when he stabbed her to death.
→
Daviault 1994
Clearly establishes two categories of offences -Specific and Basic Intent
7 or 8 beers and 35 ounces of brandy
→
pharmacologist testified 400 to 600 mgs
→
victim 65 years old and in a wheelchair
→
Trial -Acquitted of sexual assault.
→
Quebec Court of Appeal -overturn
→
Supreme Court said Que court of appeal interpretation of Beard rules violated
Daviault Rights sec 7 11(d)
→
•
Supreme Court ruled that a defence should be available to a person accused of an
offence of general intent if, owing to an extreme degree of intoxication, he or she
was in a “state kin to automatism or insanity”
“Mens rea for a crime is so well recognized that to eliminate that mental
element would deprive an accused of fundamental justice” (295)
→
defence must prove this on a balance of probabilities
→
•
Section 33.1
deals with those offences of general intent that involve an element of assault or
interference or threat of interference with the bodily integrity of another person.
Constitutional?
→
•
Summary of present state of law
Specific intent -2nd and 3rd Beard Rules will continue to apply1.
a) General intent -if threat or interference with bodily integrity -self induced
intoxication can never be a valid defence (section 33.l)
2.
b) no interference with bodily integrity and intoxicated in such a state that it is akin
to automatism or insanity -accused has benefit of absolute defence.
2.
Chapter 12
Self Defence and the Defence of Property
TWO major criminal defences in Canada
self-defence 1.
defence of property2.
•
Presentation
Self Defence -Petel
•
Section 34
○
3 elements
•
the accused person believed on reasonable grounds that force was being used against
him or her or another person or that a threat of force was being made against him or
her or another person.
1.
the action taken by the accused person was committed for the purpose of defending
or protecting himself or the other person from that use or threat of force.
2.
action taken was reasonable.3.
Subjective and Objective Test
Subjective Element -accused persons’ subjective perceptions of the circumstances
they encountered at the time of the alleged offence
•
Objective Element: Did the accused perceptions have a reasonable basis?
Would a reasonable person have responded with the same measure of force
→
•
Determining Reasonableness
2 critical factors
•
the immanence of an attack on the accused person.1.
the availability of alternative means of responding to the threat of the attack.
Docherty (2012) -“castle doctrine” The idea that one’s home is the last
refuge, the last line of defence.
•
2.
Self Defense
Evidence “battered wife syndrome” may be introduced in order to assist the
members of the jury to decide whether or not a woman who has killed her partner
reasonably believed that her life was in danger and that she had no option but to
employ lethal force in self-defence
•
R vs Lavallee (1990)
shot husband in back of head
→
judged on the standards of a reasonable woman
→
•
Reasonableness
takes into account as a means of establishing the reasonableness of the accused
woman’s beliefs and actions in light of her experience of chronic abuse at the hands
of her partner.
•
Jury to Consider
Why an abused woman might remain in an abusive relationship
→
The nature and extent of the violence that may exist in a battering relationship
•
The accused’s ability to perceive danger from her abuser
•
Whether the accused believed on reasonable grounds that she could not otherwise
preserve herself from death or grievous bodily harm.
•
Vaillancourt
married 30 years
→
evidence of physical and psychological abuse
→
test husband about divorce
→
Husband-“Good for him!”
→
She killed husband with shotgun
→
Craig (2011)
accused killed husband by placing pillow over head and stabbing him four times
with butcher knife.
→
defence -abused and feared assault when drunk husband woke up.
→
no evidence of violent history.
→
Ont Court of Appeal -no air of reality
→
Self Defence Parker (2013)
accused, victim and accused girlfriend drinking.
→
victim violently wrestled Parker to ground.
→
Parker go on top and repeatedly punched him in the head.
→
Ont Court of Appeal -Parker’s response to the victim’s assault on him was
disproportionate and therefore unreasonable.
→
Defence of Property
Section 35
the accused person believes on reasonable grounds that they are in “peaceable
possession” of property (or acting under the authority of someone who is)
→
accused reason to believe is about to enter, is entering, or has entered
unlawfully or is about to take property
→
accused persons actions are to prevent the other person from entering or
damaging or taking property
→
accused person’s conduct was reasonable in the circumstances
→
○
Gunning(2005)
3 elements satisfied
possession of the house
→
possession was peaceable
→
deceased was a trespasser
→
deceased crashed party, Gunning got a gun and accidentally shot deceased
→
Fourth element-Did Gunning use reasonable force under the circumstances?
What do you think?
}
→
•
Jamieson (2002)
uennings and Jamieson consuming crystal meth and Jennings getting out of control.
asked to leave -refused
→
through acid on face -disfigured
→
•
uhttp://globalnews.ca/news/2499007/hamilton-man-charged-after-trespasser-
fatally-shot-while-trying-to-steal-truck/
W7 Ch10/12 Partial Offences/Crim Offences
Friday,)March)2,)2018 7:36)AM
Offences
Robbery
→
Mischief
→
Arson
→
https://www.youtube.com/watch?v=YhJMi6YeB8k
•
Robbery 344 CC
343.Every one commits robbery who
○
steals, and for the purpose of extorting whatever is stolen or to prevent or overcome
resistance to the stealing, uses violence or threats of violence to a person or
property;
(a)
steals from any person and, at the time he steals or immediately before or
immediately thereafter, wounds, beats, strikes or uses any personal violence to that
person;
(b)
assaults any person with intent to steal from him; or(c)
steals from any person while armed with an offensive weapon or imitation thereof.(d)
344. (1) Every person who commits robbery is guilty of an indictable offence
○
https://www.youtube.com/watch?v=gJwfmCEmty4
Mischief
○
430 CC
•
Every one who wilfully:
•
Destroys or damages property;a)
Renders property dangerous, useless, inoperative or ineffective;b)
Obstructs, interrupts or interferes with the lawful use, enjoyment orc)
operation of property;
Obstructs, interrupts or interferes with any person in the lawful use,d)
enjoyment or operation of property.
Every one who willfully
•
Destroys or alters dataa)
Renders data meaningless, useless or ineffectiveb)
Obstructs, interrupts or interferes with the lawful use of data, orc)
Obstructs, interrupts or interferes with any person in the lawful use of data or denies
access to data to any person who is entitled to access thereto.
d)
Mischief to Religious Property
(4.1) Every one who commits mischief in relation to property that is a building,
structure or part thereof that is primarily used for religious worship, including a
church, mosque, synagogue or temple, or an object associated with religious worship
located in or on the grounds of such a building or structure, or a cemetery, if the
commission of the mischief is motivated by bias, prejudice or hate based on religion,
race, colour or national or ethnic origin,
○
is guilty of an indictable offence(a)
is guilty of an offence punishable on summary conviction.(b)
Mischief Penalties
Mischief that causes actual danger to life is guilty of an indictable offence –life
imprisonment
-
Mischief Over or testamentary instrument dual procedure
-
Mischief Under Dual procedure
-
Mischief in relation to religious worship –Dual
-
Mischief in relation to cultural property Dual procedure
-
Mischief in relation to data Dual Procedure
-
Arson
○
433 CC
•
Every person who intentionally or recklessly causes damage by fire or explosion to
property, whether or not that person owns the property, is guilty of an indictable
offence and liable to imprisonment for life where
•
the person knows that or is reckless with respect to whether the property is
inhabited or occupied; or
(a)
the fire or explosion causes bodily harm to another person.(b)
Actual burning:
•
There must be actual burning, other than just smoke damage and scorching, R. v.
Jorgenson (1954) 20 C.R.382
-
Crown must prove:
•
the accused knew, or was reckless as to whether or not the property was inhabited or
occupied.
1.
bodily harm to another person resulting from the fire or explosion. uIrrelevant
whether or not the accused owns the property.
2.
Arson
○
434 CC
•
Every person who intentionally or recklessly causes damage by fire or explosion to
property that is not wholly owned by that person is guilty of indictable offence.
•
“Recklessly” defined
Property is defined in s 428. To find “recklessly” must refer to R vs Sansregret
(1985)
-
Accused of sexual assault on his wife.
-
“in the attitude of one who, aware that there is danger that his conduct could bring
about the result prohibited by the criminal law, nevertheless persists, despite the
risk.”
-
Arson 434.1 (own property)
○
Every person who intentionally or recklessly causes damage by fire or explosion to
property owned, in whole or in part, by that person is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years, where the fire
or explosion seriously threatens the health, safety or property of another person.
•
Arson for Fraudulent Purpose 435 CC
○
435.1 Every person who, with intent to defraud any other person, causes damage by
fire or explosion to property, whether or not that person owns, in whole or in part,
the property, is guilty of an indictable offence.
•
the fact that the person was the holder of or was named as a beneficiary under a
policy of fire insurance relating to the property in respect of which the offence is
alleged to have been committed is a fact from which intent to defraud may be
inferred by the court.
2.
Arson by Negligence
436. (1) Every person who owns, in whole or in part, or controls property is guilty of
an indictable offence and liable to imprisonment for a term not exceeding five years
where, as a result of a marked departure from the standard of care that a reasonably
prudent person would use to prevent or control the spread of fires or to prevent
explosions, that person is a cause of a fire or explosion in that property that causes
bodily harm to another person or damage to property
○
Possession of incendiary material
436.1 Every person who possesses any incendiary material, incendiary device or
explosive substance for the purpose of committing an offence under any of sections
433 to 436 is guilty of an indictable offence and liable to imprisonment for a term
not exceeding five years.
○
Chapter 10
Provocation and Intoxication: Partial Defences to a Criminal Charge
Provocation and Intoxication
They are referred to as “partial defences” because they operate to reduce the
severity of the charge rather than lead to an absolute acquittal
→
•
Presentation
Provocation -Ly
•
Provocation
Section 232 of the Criminal Code.
○
Only available for person charged with Murder
-
What does the charge get reduced to?
-
Defence of Provocation can never be raised merely because the accused lost self-
control
-
Provocation-Requirement 1(A) wrongful act
Firstly, it must be shown that the deceased victim engaged in a wrongful act or insult
that was “sufficient to deprive an ordinary person of the power of self-control”
•
Tran (2010) -found his ex wife in bed with boyfriend
stabbed boyfriend 17 times, 2nd degree murder.
→
raised provocation -trial judge accepted
→
Court of Appeal set aside acquittal and substituted conviction for 2nd degree
murder.
→
Supreme Court -upheld -no evidence of not engaged in unlawful behaviour
→
•
Evans (2012)
2nd degree murder on sex trade worker
→
‘Lost it’ because too drunk to obtain erection
→
Acquittal or Guilty?
→
•
Provocation –1(B) Insult that would cause ordinary person to be deprived of his
or her self-control
accused lost temper must be of such “a nature as to be sufficient to deprive an
ordinary person of the power of self-control”.
This is Objective component -Would an ordinary person lose control?
→
Crown must prove Objective component THEN
→
Subjective component -that is, the accused was in fact provoked.
→
•
Ordinary Person Test
Should the “ordinary person test” incorporate his alleged cultural beliefs and permit
him to assert the defence of provocation when he has killed a woman who did not
submit to his conception of what is appropriate conduct for women?”
•
Thibert (1996)
acknowledged that the objective test should include some consideration of the
background relationship between the deceased and the accused.
→
Thibert married, his wife in process of leaving him, boyfriend taunted Thibert
→
Requirement 2: A wrongful act or insult that was sudden and unexpected
Parent (2001) “sudden and unexpected”
“must strike upon a mind unprepared for it, that must make an unexpected
impact that takes the understanding by surprise and sets the passions aflame”.
→
•
Requirement 3 : Wrongful act or insult caused the accused to act in anger
Subjective component
the accused must show that he or she was in fact provoked.
→
the accused person subjective perceptions of the circumstances
→
•
Requirement 4 The accused acted before having recovered his or her normal
control
“before there was time for his passion to cool
→
Friesen (1995)
charged first degree murder
→
nail gun
→
•
Legal Right
In what circumstances are the courts likely to find that the victim had a “legal right”
to do what she or he did within the meaning of section 232(3)
•
Lousion (1975)
Robbed taxi driver at knifepoint
→
Trunk
→
Open –attacked,
→
Embedded hammer in skull
→
Defence –provocation
→
Not allowed, appeal
→
SCC reject appeal
→
•
Role of Judge and Jury
Mayuran (2012)
Sets out evidential burden when provocation is raised as a defence
→
stabbed sister in law 45 times
→
Witnesses Say killed her because victim had ”ridiculed her about her learning
disability”
→
SCC –the defence of provocation should only be put to the jury if it has an “air
of reality”
→
Test is whether there is evidence upon which a properly instructed jury acting
reasonably could acquit if it believed the evidence to be true.
→
•
Role of Jury
Questions such as:
whether a particular wrongful act or insult amounted to provocation.
→
or
→
whether the accused was deprived of the power of self-control by the
provocation that he alleges he received.
→
Questions of Fact
→
•
Intoxication as a partial defence
Until 1996 CC made no mention of defence of intoxication common law
•
Beard Rules
•
If intoxication induces “disease of the mind” the accused must be acquitted NCR on
account of a mental disorder.
1.
If intoxication prevents accused to form intent for specific intent offence he must be
acquitted.
Basic intent -intoxication can never be used as a defence
→
2.
Beard Rules
If intoxication falls short of preventing the accused from forming the intent
necessary for conviction of a crime of specific intent, it does not constitute a valid
defence
-
Application of Beard
George (1960)
accused entered victim’s home robbed and beat man of $22.
→
severe state of intoxication
→
Acquitted at trial
→
SCC-Robbery specific intent -partial defence
→
verdict of guilty of assault (Basic intent)
→
•
First Beard Rule
intoxication that induces a “disease of mind” -can raise defence of NCRMD sec 16
CC
•
intoxication beyond alcohol.
•
Bouchard-Lebrun (2011)
high on ecstasy
→
beat up victim because he was wearing an upside down cross
→
Aggravated Assault
→
Supreme Court had to decide whether a psychotic state brought on by a
voluntary ingestion of a drug constituted a “disease of the mind” under section
16(1) CC
→
No pre-existing psychosis
→
examined on a case by case basis
→
Distinction between Basic and Specific-Daley (2007)
charged 1st degree murder of his common law wife.
→
extremely intoxicated
→
Trial Judge to Jury:
→
“Crown counsel must prove beyond a reasonable doubt the Daley had the
intent to kill or to cause bodily harm, knowing it was likely to cause death
→
SCC -clearly instructed-The jury had to consider whether Daley foresaw the
consequences of his actions when he stabbed her to death.
→
Daviault 1994
Clearly establishes two categories of offences -Specific and Basic Intent
7 or 8 beers and 35 ounces of brandy
→
pharmacologist testified 400 to 600 mgs
→
victim 65 years old and in a wheelchair
→
Trial -Acquitted of sexual assault.
→
Quebec Court of Appeal -overturn
→
Supreme Court said Que court of appeal interpretation of Beard rules violated
Daviault Rights sec 7 11(d)
→
•
Supreme Court ruled that a defence should be available to a person accused of an
offence of general intent if, owing to an extreme degree of intoxication, he or she
was in a “state kin to automatism or insanity”
“Mens rea for a crime is so well recognized that to eliminate that mental
element would deprive an accused of fundamental justice” (295)
→
defence must prove this on a balance of probabilities
→
•
Section 33.1
deals with those offences of general intent that involve an element of assault or
interference or threat of interference with the bodily integrity of another person.
Constitutional?
→
•
Summary of present state of law
Specific intent -2nd and 3rd Beard Rules will continue to apply1.
a) General intent -if threat or interference with bodily integrity -self induced
intoxication can never be a valid defence (section 33.l)
2.
b) no interference with bodily integrity and intoxicated in such a state that it is akin
to automatism or insanity -accused has benefit of absolute defence.
2.
Chapter 12
Self Defence and the Defence of Property
TWO major criminal defences in Canada
self-defence 1.
defence of property2.
•
Presentation
Self Defence -Petel
•
Section 34
○
3 elements
•
the accused person believed on reasonable grounds that force was being used against
him or her or another person or that a threat of force was being made against him or
her or another person.
1.
the action taken by the accused person was committed for the purpose of defending
or protecting himself or the other person from that use or threat of force.
2.
action taken was reasonable.3.
Subjective and Objective Test
Subjective Element -accused persons’ subjective perceptions of the circumstances
they encountered at the time of the alleged offence
•
Objective Element: Did the accused perceptions have a reasonable basis?
Would a reasonable person have responded with the same measure of force
→
•
Determining Reasonableness
2 critical factors
•
the immanence of an attack on the accused person.1.
the availability of alternative means of responding to the threat of the attack.
Docherty (2012) -“castle doctrine” The idea that one’s home is the last
refuge, the last line of defence.
•
2.
Self Defense
Evidence “battered wife syndrome” may be introduced in order to assist the
members of the jury to decide whether or not a woman who has killed her partner
reasonably believed that her life was in danger and that she had no option but to
employ lethal force in self-defence
•
R vs Lavallee (1990)
shot husband in back of head
→
judged on the standards of a reasonable woman
→
•
Reasonableness
takes into account as a means of establishing the reasonableness of the accused
woman’s beliefs and actions in light of her experience of chronic abuse at the hands
of her partner.
•
Jury to Consider
Why an abused woman might remain in an abusive relationship
→
The nature and extent of the violence that may exist in a battering relationship
•
The accused’s ability to perceive danger from her abuser
•
Whether the accused believed on reasonable grounds that she could not otherwise
preserve herself from death or grievous bodily harm.
•
Vaillancourt
married 30 years
→
evidence of physical and psychological abuse
→
test husband about divorce
→
Husband-“Good for him!”
→
She killed husband with shotgun
→
Craig (2011)
accused killed husband by placing pillow over head and stabbing him four times
with butcher knife.
→
defence -abused and feared assault when drunk husband woke up.
→
no evidence of violent history.
→
Ont Court of Appeal -no air of reality
→
Self Defence Parker (2013)
accused, victim and accused girlfriend drinking.
→
victim violently wrestled Parker to ground.
→
Parker go on top and repeatedly punched him in the head.
→
Ont Court of Appeal -Parker’s response to the victim’s assault on him was
disproportionate and therefore unreasonable.
→
Defence of Property
Section 35
the accused person believes on reasonable grounds that they are in “peaceable
possession” of property (or acting under the authority of someone who is)
→
accused reason to believe is about to enter, is entering, or has entered
unlawfully or is about to take property
→
accused persons actions are to prevent the other person from entering or
damaging or taking property
→
accused person’s conduct was reasonable in the circumstances
→
○
Gunning(2005)
3 elements satisfied
possession of the house
→
possession was peaceable
→
deceased was a trespasser
→
deceased crashed party, Gunning got a gun and accidentally shot deceased
→
Fourth element-Did Gunning use reasonable force under the circumstances?
What do you think?
}
→
•
Jamieson (2002)
uennings and Jamieson consuming crystal meth and Jennings getting out of control.
asked to leave -refused
→
through acid on face -disfigured
→
•
uhttp://globalnews.ca/news/2499007/hamilton-man-charged-after-trespasser-
fatally-shot-while-trying-to-steal-truck/
W7 Ch10/12 Partial Offences/Crim Offences
Friday,)March)2,)2018 7:36)AM
Document Summary
Arson https://www. youtube. com/watch?v=yhjmi6yeb8k (a) (b) (c) (d) a) b) c) d) a) b) c) d) Obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; Obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. Obstructs, interrupts or interferes with the lawful use of data, or. Obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto. Mischief that causes actual danger to life is guilty of an indictable offence life imprisonment. Mischief in relation to religious worship dual. Mischief in relation to cultural property dual procedure. There must be actual burning, other than just smoke damage and scorching, r. v. Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of indictable offence.
