Criminal Law in Canada Cases Questions and the Code 7th Edition by Simon Verdun Jones ISBN 9780176724412 0176724419

CHAPTER 1: Introduction to Canadian Criminal Law

WHAT IS CRIMINAL LAW?

The Definition of Crime in Canada

True Crimes and Regulatory Offences

CRIMINAL LAW AS A FORM OF PUBLIC LAW

THE SOURCES OF CRIMINAL LAW IN CANADA

Federal Legislation

Quasi-Criminal Law: Regulatory Offences and the Constitution

Problems of Jurisdiction in the Enactment of Legislation

Judicial Decisions as a Source of Criminal Law

THE IMPACT OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ON THE CRIMINAL LAW IN CANADA

CHAPTER 2: The Actus Reus Elements of a Criminal Offence

INTRODUCTION

THE ACTUS REUS AS A COMBINATION OF CONDUCT, CIRCUMSTANCES, AND CONSEQUENCES

EXCEPTIONS TO THE GENERAL RULE REQUIRING CONDUCT, CIRCUMSTANCES, AND CONSEQUENCES

Offences Where Consequences are not a Required Element of the Actus Reus

Offences Where Conduct Is not a Required Element of the Actus Reus

CAN A FAILURE TO ACT CONSTITUTE A CRIMINAL OFFENCE?

The General Principle: No Liability for Omissions Unless There is a Preexisting Duty to Act

Voluntarily Assuming a Legal Duty under Section 217 of the Criminal Code

SPECIFIC LEGAL DUTIES IMPOSED BY THE CRIMINAL CODE

The Duty to Provide the Necessaries of Life to Dependent Persons

Criminal Negligence, Manslaughter, and Failure to Act

Is There a Duty to Act When a Person Creates a Dangerous Situation by Accident?

Should There Be a Duty to Rescue?

When a Failure to Act May Render an Accused Person Liable as a Party to an Offence Committed by Another Person

The Need for the Actus Reus and Mens Rea to Coincide

The Element of Voluntariness in the Actus Reus

CHAPTER 3: Causation in the Criminal Law

CAUSATION IN CRIMINAL LAW

Specific Rules Concerning Causation in Homicide Cases

CHAPTER 4: The Mental Element in the Criminal Law: Subjective Liability

MENS REA: AN INTRODUCTION

SUBJECTIVE AND OBJECTIVE MENS REA

Particular Forms of Subjective Mens Rea

The Concepts of Intention and Knowledge

Special Mental Elements That Must Be Proved in Addition to Intention and Knowledge

The Distinction between Direct and Indirect Intention

Intention and Motive Distinguished

The Concept of Transferred Intent

RECKLESSNESS AS A FORM OF SUBJECTIVE MENS REA

Definition of Recklessness

Examples of Criminal Code Offences Requiring Proof of Recklessness

WILFUL BLINDNESS AS A FORM OF SUBJECTIVE MENS REA

Examples of Wilful Blindness

SUBJECTIVE MENS REA AS A CHARTER REQUIREMENT: THE CASE OF MURDER

Impact of the Charter on the Doctrine of Mens Rea

The Charter Requirement of Subjective Mens Rea and Section 229(c) of the Criminal Code

CHAPTER 5: The Mental Element in the Criminal Law: Objective Liability

WHAT IS OBJECTIVE LIABILITY?

OFFENCES IMPOSING OBJECTIVE LIABILITY

Driving Offences and Objective Liability

Dangerous Driving and Criminal Negligence

Unlawful Act Manslaughter

The Offences of Unlawfully Causing Bodily Harm and Assault Causing Bodily Harm

The Offence of Aggravated Assault

Offences Involving Criminal Negligence

CAUSING DEATH BY CRIMINAL NEGLIGENCE AND MANSLAUGHTER BY CRIMINAL NEGLIGENCE: IDENTICAL TWINS

INFANTICIDE

CRIMINAL CODE SECTIONS IMPOSING A SPECIAL STANDARD OF CARE

1. Reasonable Medical Treatment—Section 216

2. The Duty to Take Reasonable Care in the Handling of Explosives and Firearms—Sections 79 and 86(1)

CHAPTER 6: The Special Case of Regulatory Offences: Strict and Absolute Liability in Canada

INTRODUCTION

REGULATORY OFFENCES AND ABSOLUTE LIABILITY

THE ARGUMENTS FOR AND AGAINST ABSOLUTE LIABILITY

THE EMERGENCE OF THE “HALFWAY HOUSE” APPROACH

The Supreme Court Endorses the “Halfway House” Approach: The Sault Ste. Marie Case (1978)

The Three Categories of Offences Since the Sault Ste. Marie Case (1978)

The Facts in the Sault Ste. Marie Case (1978)

THE CLASSIFICATION OF REGULATORY OFFENCES: STRICT OR ABSOLUTE LIABILITY?

1. The Importance of Examining the Overall Regulatory Pattern in a Statute

2. The Importance of Examining the Subject Matter of the Regulatory Offence

3. The Importance of the Penalty in Determining Whether a Regulatory Offence Imposes Strict or Absolute Liability

4. The Importance of Examining the Precise Wording of Regulatory Legislation

STRICT LIABILITY OFFENCES AND RAISING THE DEFENCE OF DUE DILIGENCE

IS STRICT LIABILITY A VALID DEVICE UNDER THE CHARTER?

THE CHARTER AND ABSOLUTE LIABILITY OFFENCES

CHAPTER 7: Modes of Participation in Crime and Inchoate Offences

INTRODUCTION

THE VARIOUS MODES OF PARTICIPATION IN A CRIMINAL OFFENCE

Actually Committing an Offence

Aiding and Abetting the Commission of an Offence

Becoming a Party to an Offence by Virtue of Common Intention

COUNSELLING AN OFFENCE THAT IS ACTUALLY COMMITTED

Liability as an Accessory after the Fact

The Impact of Section 23.1 of the Criminal Code

INCHOATE OFFENCES

1. Counselling an Offence That Is Not Committed

2. Attempt

3. Conspiracy

CHAPTER 8: Mental Impairment and Criminal Responsibility: The Defences of “Not Criminally Responsible on Account of Mental Disorder” (NCRMD) and Automatism

INTRODUCTION

THE ISSUE OF FITNESS TO STAND TRIAL

THE DEFENCE OF NOT CRIMINALLY RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER

The M’Naghten Rules

The Modern NCRMD Defence in Canada

The Capacity of the Accused Person to Appreciate the Nature and Quality of the Act or Omission

The Capacity of the Accused Person to Appreciate That the Act or Omission Was Wrong

The Problem of Irresistible Impulse

MISCELLANEOUS PROCEDURAL ISSUES

The Power of the Crown to Raise the Mental Disorder Defence

The Burden and Standard of Proof When the Defence of NCRMD Is Raised

THE DISPOSITION OF NCRMD ACCUSED PERSONS

Right of the NCR Accused Person to Appeal

Criteria for Making Decisions About the Disposition of NCR Accused Persons

The “High-Risk Accused” Designation

Mental Disorder as a Partial Defence

AUTOMATISM

Definition of Automatism

Automatism Caused by “Normal” States Such as Sleepwalking

Automatism Triggered by an External Trauma

Automatism Involuntarily Induced by Alcohol or Other Drugs

Automatism Voluntarily Self-Induced by Alcohol or Other Drugs

Automatism Distinguished from Amnesia

Automatism Caused by a Mental Disorder

The Definition of Mental Disorder: Problems of Judicial Interpretation

Psychological Blow Automatism

Automatism and the Persuasional Burden of Proof

Automatism and the Evidential (or Evidentiary) Burden

CHAPTER 9: Mistake of Fact, Consent, and Mistake of Law as Defences to a Criminal Charge

INTRODUCTION

MISTAKE OF FACT

Mistake of Fact: The General Nature of the Defence

Exceptions to the General Rule That a Mistake of Fact Does Not Have to Be Reasonable in Order to Excuse the Accused Person from Criminal Liability

Intoxication and the Defence of Honest Mistake of Fact

When Can the Defence of Mistake of Fact Be Considered by the Trier of Fact?

How “Honest” Must a Mistake of Fact Be?

CONSENT

The General Principles

Consent and Assault under Section 265

Special Provisions Relating to the Defence of Consent in Relation to a Charge of Sexual Assault

Can an Individual Consent to the Infliction of Bodily Harm?

Consent to the Infliction of Bodily Harm in the Context of Sporting Activity

MISTAKE OF LAW

The General Principle: Mistake of Law Is Not a Defence

The Evolution of a New Defence or “Excuse”: Officially Induced Error

Mistake of Law and “Colour of Right”

CHAPTER 10: Provocation and Intoxication: Partial Defences to a Criminal Charge

PROVOCATION AND INTOXICATION

PROVOCATION

The General Nature of the Defence and Section 232

Requirement 1: Conduct of the Victim That Would Constitute an Indictable Offence under This Act That Is Punishable by Five or More Years of Imprisonment and That Is of Such a Nature as to Be Sufficient to Deprive an Ordinary Person of the Power of Self-Control

Requirement 2: A Wrongful Act or Insult That Was Sudden and Unexpected

Requirement 3: A Wrongful Act or Insult That in Fact Caused the Accused to Act in Anger

Requirement 4: The Accused Acted before Having Recovered Their Normal Self-Control

“Legal Right” in Section 232(3)

The Differing Roles of Judge and Jury in Canada When Provocation Is Raised

INTOXICATION

Historical Overview of the Defence

The Evolution of the Beard Rules: 1920 to the Present

The First Beard Rule: Intoxication That Causes a “Disease of the Mind”

Applying the Second and Third Beard Rules: The Critical Distinction between Crimes of Specific and General (Basic) Intent

Applying the Second Beard Rule to Crimes of Specific Intent

Applying the Third Beard Rule

The Decision of the Supreme Court of Canada in the Daviault Case (1994)

The Enactment of Section 33.1 of the Criminal Code and Its Aftermath

CHAPTER 11: Necessity and Duress: Two Excuses Recognized by the Courts as Defences to a Criminal Charge

THE DEFENCE OF NECESSITY

The General Principles

The Rationale for the Defence of Necessity

Applying the Defence of Necessity in Relation to Less Serious Criminal Offences

Applying the Defence of Necessity in Relation to More Serious Criminal Offences

The Perka Case: The Foundation of the Modern Canadian Defence of Necessity

The Case of Robert Latimer

THE DEFENCE OF DURESS

The Rationale for the Defence

Section 17 and the Statutory Defence of Duress

The Common Law Defence of Duress

CHAPTER 12: Self-Defence and Defence of Property

SELF-DEFENCE AND DEFENCE OF PROPERTY

The Criminal Code Provisions Concerning Self-Defence

What Are the Essential Requirements for a Successful Defence of Self-Defence under Section 34 of the Criminal Code?

The Criminal Code Provisions Concerning Defence of Property

What Are the Essential Requirements for a Successful Claim of Defence of Property under Section 35 of the Criminal Code?

APPENDIX: A Brief Note on the Canadian Criminal Court System

GLOSSARY

INDEX OF CASES

INDEX