Term
|
Definition
| 1990s, Conservative government, struck down because provincial jurisdiction |
|
|
Term
|
Definition
| Mandatory minimum gun laws unconstitutional, but saved by s. 1 |
|
|
Term
|
Definition
| 1982: entrapment not a defense pre trail |
|
|
Term
|
Definition
| 1988: entrapment recognized as a defense |
|
|
Term
|
Definition
| State has to tell all evidence, so full answer and defense. S. 7. Theft and fraud charge. |
|
|
Term
|
Definition
| 11b trial within a reasonable time: 6-8 months |
|
|
Term
|
Definition
| 11b trial within a reasonable time: 8-10 months |
|
|
Term
|
Definition
| Persuasive burden. Narcotics Control Act. Court overturned. |
|
|
Term
|
Definition
| In Care and Control of a motor vehicle: reverse onus, constitutionally |
|
|
Term
|
Definition
| S. 277 (banning evidence of sexual reputation) doesn't violate s. 7 |
|
|
Term
|
Definition
| Reasonable doubt must be explained to the jury |
|
|
Term
|
Definition
| SCC held that trial judges would err if they didn't make clear to the jury that the reasonable doubt standard is closer to certainty than the balance of probabilities used in civil trials |
|
|
Term
|
Definition
| SCC held it's not necessary for there to be a rational connection between the proven and the presumed factors for a reverse onus to be justified under s. 1. Reverse onus of forcing seller of precious metals to prove legal ownership was not proportionate limit. |
|
|
Term
|
Definition
| Court held that provision violated s.11d when reverse onus was placed on man living with prostitutes to prove he wasn't living off the avails. |
|
|
Term
|
Definition
Court said to establish air of reality about extreme toxication/automatism, accused must point to evidence that jury would agree with on a balance of probabilities (so persuasive burden). Upheld in Fontaine.
Also disagreed with Theroux, saying involuntariness takes away mens rea but not the actus reus. |
|
|
Term
|
Definition
| SCC suggested air of reality test should be applied throughout criminal law: Thus not telling jury a defence if there is no evidence. |
|
|
Term
|
Definition
| Absolute liability offense upheld, but only because there was no imprisonment possible |
|
|
Term
|
Definition
Requiring objective fault element of reasonable foresight of non-trivial bodily harm is not against s.7 because the name itself says killing is less blameworthy than murder.
Person's characteristics should be taken into account only if they establish incapacity to appreciate the nature of one's conduct/risk.
Also, this isn't symmetrical between actus reus and mens rea, but that's ok.
3 considerations when determining what the mens rea should be. |
|
|
Term
|
Definition
Must be marked departure to avoid casting the net too wide. Dangerous driving.
Marked departure is in mens rea, instead of actus reus.
Acquitted. Has modified objective standard in this case, looking at whether a reasonable person would not have been aware of the risk.
Reasonable person has to be strict. |
|
|
Term
| Vaillancourt and Martineau and Logan |
|
Definition
Must be subjective fault when it comes to murder, because of stigma. Not necessary or proportionate to use lesser fault element than knowledge of death to impart the objective of deterring violence with weapon
Martineau - bodily harm with the purposeof facilitating a serious offence was not enough for murder. |
|
|
Term
|
Definition
for war crimes/crimes against humanity must be mens rea for the act and knowledge of the attack. Recklessness to not know (willingfully not knowing) could make it true too
War crimes carry heavy amount of stigma |
|
|
Term
|
Definition
Appropriate focus of s. 7 charter is to say restrictions or limits of defense will result in conviction of a morally involuntary person, not morally innocent.
Acquitted if acted in involuntary manner. |
|
|
Term
|
Definition
| Evidence not excluded despite arbitrary detention - drug case |
|
|
Term
|
Definition
| Hunch isn't enough of an articulable cause for detention. |
|
|
Term
|
Definition
| Pornographic material is a reasonable limit on s.2b - prevents violence |
|
|
Term
|
Definition
| Said abortion laws went against s.7 |
|
|
Term
|
Definition
| Used s.7 as defense, they said no, didn't violate fundamental principle of justice because there was a consensus on the value of protecting life |
|
|
Term
|
Definition
| Marijuana isn't a right under s.7. He argued criminal law should only respond to harm. Court said no, lack of consensus and lack of precision in defining harm. Did say an arbitrary/overbroad law would be against s.7. |
|
|
Term
| Insite Safe Injection Site |
|
Definition
| Minister of health refused to allow the site statutory exemption law, people said it was arbitrary, SCC agreed. |
|
|
Term
|
Definition
| Driving with suspended license, then absolute liability. SCC said since it resulted in jail, it's against s.7. |
|
|
Term
|
Definition
| Absolute liability if you have sex under age 14. Overturned, Parliament reconsturcted, made it with strict liability. |
|
|
Term
|
Definition
| offense given a strict construction and reading that favoured the accused in his defense of self-defense. Err on the side of the accused. |
|
|
Term
|
Definition
| Purpositive interpretation. Grammatically impossible for 1st degree murder to have coinciding mens rea and actus reus, or for the extra factors of 231.5 to happen at the same time, but still fair. No reasonable ambiguity. |
|
|
Term
|
Definition
| overturned conviction of a "bawdy house" - wasn't prostitution, it was a private/locked floor used for group sex. No evidence of harm, so strict view was used. |
|
|
Term
|
Definition
| careless use of a firearm required "marked departure" from standard of care - so not de minimis. |
|
|
Term
|
Definition
| Breach of trust of a public officer had to be "marked departure" or it's just de minimis. |
|
|
Term
|
Definition
| Drugs. Mistake of law not a defense. Mistake of fact would have been better. |
|
|
Term
|
Definition
| Didn't know you needed provincial license to operate a bingo on an Aboriginal reserve. Mistake of law didn't work. |
|
|
Term
|
Definition
| HIV non-disclosure, then no consent |
|
|
Term
| Fagan v. Metropolitan Police Commissioner |
|
Definition
| Drove over foot. Simultaneous principle in effect even though initially driving on was accidental. |
|
|
Term
|
Definition
| Had intent to kill, threw off cliff. Survived fall, died of exposure. Still murder. |
|
|
Term
|
Definition
| During 2 min of strangulation, got intent. Counts as simultaneous. |
|
|
Term
|
Definition
| Confirming smithers and creighton. Manslaughter despite more serious abuse from others and drowning in his own blood. Causation link and thin skull principle. |
|
|
Term
|
Definition
| Accused assaulted, causing brain death. Responsible for death regardless of the fact that medical withdrawal of life support was technically cause of death |
|
|
Term
|
Definition
| ultimate issue in homocide is whether the accused's actions constitute a significant contributing cause of death |
|
|
Term
|
Definition
| Manslaughter conviction upheld from kicking in stomach |
|
|
Term
|
Definition
| Revisited Smithers. Said it had to be a "significant contributing cause" not simply more than a "trivial cause" or "insignificant cause." Woman hogtied case. |
|
|
Term
|
Definition
| Causation not limited to homocide. Man got credit through false pretences, but not charged, because the company didnt use those statements. |
|
|
Term
|
Definition
| Accused convicted of publishing false statement with intent to deceive shareholders, didn't disclose something. Implicit duty. |
|
|
Term
|
Definition
| If you accidentally set a house on fire, you have a duty to take reasonable steps |
|
|
Term
|
Definition
| Actus reus not voluntary: drugs at dentist involuntarily |
|
|
Term
|
Definition
| Actus reus has a mental element, not just mens rea |
|
|
Term
|
Definition
| Constructive murder applies even if the enumerated offense took place on another person. No ambiguity, so don't need strict interpretation. |
|
|
Term
|
Definition
| Indecent exposure in house. Restrictive approach to the law, so he wasn't convicted. |
|
|
Term
|
Definition
| Void for vagueness worked. Struck down the vagrancy law about sexual offenders, for being overbroad. |
|
|
Term
|
Definition
| Person ca't consent to an assault that causes serious harm, and a minor can't consent to an adult's assault. |
|
|
Term
|
Definition
| Fight outside nightclub, guy shot in stomach. Dies of blood clot, had done cocaine a ton since. Couldn't be determined cause of death then. |
|
|
Term
|
Definition
| Minimum fault element for attempted murder should be the same as for the commission of murder, since stigmas was the same. |
|
|
Term
|
Definition
| Specific intent to carry out the crime is the lowest fault element of an attempt, even if the completed crime requires less. Must have the mens rea of the completed offense. Not just knowledge/recklessness. |
|
|
Term
|
Definition
| HIV case: attempt conviction |
|
|
Term
|
Definition
| Approaching boy in alley- goes beyond preparation. Impossible to define actus reus for attempts |
|
|
Term
|
Definition
| SCC said it had gone beyond mere preparation when he started interviewing prostitutes |
|
|
Term
|
Definition
| Illegally obtained fish brought to a store counted as beyond preparation |
|
|
Term
|
Definition
| Glovebox in the car case - impossibility not defense for attempt |
|
|
Term
|
Definition
| Following ex-wife with gun was attempted murder |
|
|
Term
|
Definition
| Making a plasticine key for a car was only preparation |
|
|
Term
|
Definition
| Retreat can bring reasonable doubt for attempt. Not defense, but rather reasonable doubt to intent. |
|
|
Term
|
Definition
| Impossibility not a defense for attempts: money laundering, even though it was a sting operation |
|
|
Term
|
Definition
| Attempt to conspire would extend criminal law too far |
|
|
Term
|
Definition
| Conspiracies must have intent to agree and intent to act |
|
|
Term
|
Definition
| Large amount of drugs, tacit agreement. Conspiracy. |
|
|
Term
| NS Pharmaceutical Society |
|
Definition
| Subjective intent to enter into an agreement, objective fault element for the aims of the agreement |
|
|
Term
|
Definition
| Newspaper case - didn't have intent for the crime to occur, so wasn't convicted |
|
|
Term
|
Definition
| Must have intent for the crime to be intended. Lower subjective mens rea is not enough for counselling (such as recklessness) |
|
|
Term
|
Definition
| Hiher than recklessness is necessary for counselling: as it is knowledge that it is likely to happen, not possible |
|
|
Term
|
Definition
| Rwandan Genocide speech inciting murder had intent. Counselling |
|
|
Term
|
Definition
| Marijuana tent: guilty. Sometimes presence can be enough |
|
|
Term
|
Definition
| Willful blindness can be mens rea for aiding/abetting, but not just recklessness. |
|
|
Term
|
Definition
| abandonment can be evidence for lack of intent for aiding/abetting. Murder. Must be "timely notice" |
|
|
Term
|
Definition
| SCC upheld trafficking conviction for someone who helped another person buy drugs |
|
|
Term
|
Definition
| Convicted of possessing drugs when he thought they were heroin. Attempted trafficking. |
|
|
Term
|
Definition
| Guilty of murder even though they could have been principal or party. Don't have to determine. |
|
|
Term
|
Definition
| SCC rape case that says being present at a crime does not necessarily make you a party (through aiding/abetting). Was acquitted. Can be evidence though, if combined with other factors (knowledge, assistance, not allowing escape). |
|
|
Term
|
Definition
| Driving criminals to a store didn't constitute a common purpose. Rejected in Hibbert. |
|
|
Term
|
Definition
Courts say there has to be some form of mens rea: intent, knowledge, recklessness, willful blindness, etc.
Not inquiring is not criminal. So presume some form of subjective mens rea. |
|
|
Term
|
Definition
| Court expressed preference for subjective knowledge of the actus reus, but not necessarily the consequences |
|
|
Term
|
Definition
| Willful blindness, sexual assault case. |
|
|
Term
|
Definition
| Boxing day fight. Transfer of subjective mens rea. |
|
|
Term
|
Definition
| Sexual assault case: didn't have to be reasonable mistake of fact, totally subjective. Changed after that. |
|
|
Term
|
Definition
| Negligence is a fault standard sufficient for most criminal offenses. |
|
|
Term
|
Definition
| Propoganda, charged. COA said he didn't intend the results, he could have wanted to protect family. So not counselling. |
|
|
Term
|
Definition
| If you see a consequence is certain or substantially certain, you intend. Required proof that a document promoted hatred for a group. Motive was relevant - doing it to counter apathy. Still guilty regardless of motive |
|
|
Term
|
Definition
| Willfully breaching probation order. Didn't realize he wasn't allowed. Acquitted, law change. |
|
|
Term
|
Definition
| Willful: Prison riot, under duress but still had mens rea |
|
|
Term
|
Definition
| Prison case: offense of possession of weapon for a purpose dangerous to the public peace. Seemed to equate purpose with knowledge or even reckleessness. |
|
|
Term
|
Definition
| You have to know you have a substance to possess it. |
|
|
Term
|
Definition
| Transferred subjective mens rea - tried to kill wife, killed kids. |
|
|
Term
|
Definition
| Fitting the "reasonable person" to the characteristics of the accused makes it essentially subjective. But some subjective perception could be relevant. Also said negligence requires marked and significant departure. ƒ |
|
|
Term
|
Definition
| Dangerous driving, marked departure was negligence. |
|
|
Term
|
Definition
| SCC manslaughter charges with marked departrue of firearms |
|
|
Term
|
Definition
| Distinguished marked departure from marked (criminal liability) and substantial (criminal negligence). |
|
|
Term
|
Definition
| Pre-charter, murder conviction based on objective, but with subjective factors such as the accused's intoxication, to determine whether he knew children were sleeping in the house he set on fire. |
|
|
Term
|
Definition
| Acquitted dangerous driving due to foggy and snowy weather. Have to make sure it's marked departure. |
|
|
Term
|
Definition
| Mistake of fact wasn't allowed, despite being a reaosnable and honest belief the girl was 18 |
|
|
Term
|
Definition
| Mistake of fact was recognized when he thought she was over 18 |
|
|
Term
|
Definition
| Convicted of possession/trafficking the drug they had, while they thought it was other ones |
|
|
Term
|
Definition
| Disturbing the peace needs subjective fault to the underlying act, but objective to the disturbance. |
|
|
Term
|
Definition
| Imprisonment automatically, against s. 7. Court struct down. Absolute liability, can't be permitted with prison. |
|
|
Term
|
Definition
Common law presumption against regulatory offenses being absolute liability.
Homeowner who hires company is not responsible for pollution, but corporation may be. |
|
|
Term
|
Definition
| Strict liability - due diligence cannot be passive. |
|
|
Term
|
Definition
| Regulatory offense, QCA switched persuasive burden to evidential one. |
|
|
Term
|
Definition
| Manager rolling back odometer, counted as directing mind for corporation criminal offense. |
|
|
Term
|
Definition
Corporation will not be in trouble if a senior officer just scams them.
Strict liability, liability is primary, not vicarious.
More than one directing mind can exist. |
|
|
Term
|
Definition
| Objective arm of 21.2 (subjective intent offenses for corporations) should not be applied for offenses such as murder that constitutionally require subjective fault. |
|
|
Term
|
Definition
| An offence can be absolute liability even if it doesn't clearly state that it is. |
|
|
Term
|
Definition
| Goes against Pontes, agrees with SSM, saying absolute liability should require specific stating. |
|
|
Term
|
Definition
| Sex with under 14, absolute liability struct down, limited defense imported |
|
|
Term
| Wholesale Travel Group inc |
|
Definition
Provisions that required prompt correciton of advertising was absolute liability, not justified.
Also, negligence is sufficient fault element for an offence of false or misleading advertising, because not high stigma. |
|
|
Term
|
Definition
Holding ministers of government vicariously liable for acts of criminal contempt without their knowledge might violate s.7
Vicarious liability from one person to another can be against fundamental justice. At very least, can't be imprisoned. |
|
|
Term
|
Definition
| Not guilty under directing mind criminal corporation idea, but would be under senior officer idea. |
|
|
Term
|
Definition
Looked at capacity as determination of whether or not intoxication was defense. Didn't work. Used to show specific vs. general.
"More likely to give into violent passion" isn't enough. |
|
|
Term
|
Definition
| Robbery was specific intent, assault was general. |
|
|
Term
|
Definition
| Specific vs general intent defined based on objective. Tested Learly, said you're importing mens rea, so against s.7 (absolute liability for drunk people). |
|
|
Term
|
Definition
Specific vs. general intent defined as specific having lesser offence available (crime simpliciter.
Said Leary went against s. 7 and 11d. |
|
|
Term
|
Definition
| Beard went against s.7 and 11d, because it requires jury to convict even if it has a reasonable doubt about actual intent, because of focus on capacity. |
|
|
Term
|
Definition
| Judges shouldn't tell juries word "capacity" when looking at defence of intoxication. |
|
|
Term
|
Definition
Followed Majewski, voluntarily get intoxicated, you've committed mens rea for general intent. Charter challenge for 3 reasons.
Not morally innocent person, so s.7 might not apply.
"Recklessness in the air" |
|
|
Term
|
Definition
| Intoxication is not a defense against intoxicated driving. |
|
|
Term
|
Definition
Trial judge says 33.1 violates 7 and 11d but is justified.
Said "self-induced" intoxication meant voluntary. |
|
|
Term
|
Definition
| Said 33.1 was proportionate, because just violence |
|
|
Term
|
Definition
| Importance of preventing Daviault defense was not great enough to allow a conviction of an involuntary actor |
|
|
Term
|
Definition
| Said 33.1 was essentially Learly common-law rule. |
|
|
Term
|
Definition
| 33.1 unjustifiably violated 7 and 11d |
|
|
Term
|
Definition
| Argued he didn't know effects of marijuana, so was not self-induced intoxication. |
|
|
Term
|
Definition
| Subjective perception of circumstances |
|
|
Term
|
Definition
Common law practice of allowing Crown to raise defense went against s.7 right to control your own defense.
Automatic detnetion without hearing violated s.7 and 9 |
|
|
Term
|
Definition
| BOP burden of mental disorder violates presumption of innocence, but justifibly. |
|
|
Term
|
Definition
| 1843, not guilty by reason of insanity. Defined legally insane person as one who was in a state of disease of the mind to rend him incapable of appreciating the nature and quality of an act or of knowing that it was wrong. |
|
|
Term
|
Definition
Mental disorder needs internal cause and continuing danger.
Likelihood of reoccurance
Automatism is assumed to be mental disorder, bop. |
|
|
Term
|
Definition
| Defines disease of the mind broadly. Alcohol/drug use will count if it produces a permanent condition instead of temporary. |
|
|
Term
| Bouchard-Lebrun, Stone, Rabey |
|
Definition
| Self induced states are not generally accepted as disease of the mind. |
|
|
Term
|
Definition
| Sleepwalking is not disease of the mind. Luedecke followed and said it should because it was an internal matter and there is a continuing danger. |
|
|
Term
|
Definition
| QCA gave mental disorder to guy who thought he was God, but SCC rejected because he appreciated physical consequences (stipulated by Simpson). |
|
|
Term
|
Definition
| 16.1 requires legally wrong, not morally. Chaulk countered. Oommen confirmed Chaulk. |
|
|
Term
|
Definition
| Automatism meant acquittal for murder. |
|
|
Term
|
Definition
| Only emotional blows that would cause an average person to go into a disassociative state would produce defence of NMDA. |
|
|
Term
|
Definition
| For automatism, air of realtiy test should just be evidential, not test the likely success. |
|
|
Term
|
Definition
| Voluntary intoxication only allowed defense of intoxication, not automatism. |
|
|
Term
|
Definition
Gave self defence even though no actual assault.
Have to give accused benefit of the doubt for self defence |
|
|
Term
|
Definition
| Self defence has no burden |
|
|
Term
|
Definition
Use contextual objective standard of "reasonable" actions. Modified objective.
Don't have to wait for self defense to be in face of imminent attack. ƒ |
|
|
Term
|
Definition
| For modified objective, use accused's subjective perception as long as it is objectively reasonable |
|
|
Term
|
Definition
| Killing is not reasonable act in defence of property. |
|
|
Term
|
Definition
| Finally recognized necessity as defence. |
|
|
Term
|
Definition
Created 3 elements of necessity:
Reasonable belief in imminent peril
reasonable belief in no legal alternative/escape
Proportionality between harm inflicted and avoided |
|
|
Term
|
Definition
| S. 17 requirement of immediacy goes against s.7 if family is being threatened. |
|
|
Term
|
Definition
| 1st degree murder, causation must be "essential, substantial, integral part of killing." |
|
|
Term
|
Definition
| If guilty of murder for unlawful object, object must be a separate offence. Meiler says trying to kill someone else counts. |
|
|
Term
|
Definition
| Provocation cannot occur from a victim asserting legal right. |
|
|
Term
|
Definition
| Provocation case. Sudden provocation must include sudden insult and sudden retaliation. |
|
|
Term
|
Definition
| The woman prepared, so not subjective, sudden provocation. |
|
|
Term
|
Definition
| Objective leg of provocation does not violate s.7. |
|
|
Term
|
Definition
| Objective leg of provocation encourages non-violent behaviour |
|
|
Term
|
Definition
| Objective leg of provocation is modified objective |
|
|
Term
|
Definition
| Cultural background not considered in the modified objective standard for provocation |
|
|
Term
|
Definition
| Gender in terms of sexual advancement (so homophobia, to a point) not considered in modified objective standard for provocation. |
|
|
Term
|
Definition
| Unlawful act manslaughter actus reus must be marked departure even if the act doesn't require it. Beatty confirmed. |
|
|
Term
|
Definition
Unlawful act manslaughter actus reus must have reasonable foreseability
Criminal negligence manslaughter actus reus requires marked and substantial departure |
|
|
Term
|
Definition
Actus reus for sexual assault requires touching (obj), sexual nature (obj), and absence of consent (subj).
No implied consent.
Fear doesn't need to be reasonable to vitiate consent. |
|
|
Term
|
Definition
| Consent requires consciousness |
|
|
Term
|
Definition
| Said he had mistake of consent, honest but not reasonable. |
|
|
Term
|
Definition
| Fraud: mens rea is subjective knowledge of the act and subjective knowledge of deprivation/risk of deprivation |
|
|
Term
|
Definition
| Could not revoke guilty plea despite claiming he didn't understand it. |
|
|
Term
|
Definition
| S. 718(e) and (f) (reparation/responsibility) introduce new concerns: promoting restorative justice |
|
|
Term
|
Definition
| S. 718(e) and (f) were designed to reduce reliance on incarceration, promote restorative justice |
|
|
Term
|
Definition
| General deterrence is often considered with crimes such as drunk driving, sexual assault |
|
|
Term
|
Definition
| Sentencing aboriginal offedners, attention should be given to alternative options (718.2(e)) - judge reduced sentence from 3 years to one. |
|
|
Term
|
Definition
| Mandatory minimum of seven years for narcotics violated s.12 |
|
|
Term
|
Definition
| Party seeking fine must prove on balance of probabilities that the offender can pay. |
|
|
