CL Quiz 2

• • Liability of accused
• 3 main concerns of bail:

  • Primary grounds:
  • Is the accused a flight risk?
  • Will they show up for their court hearing?
  • Ties to the community (usually not an issue)
  • Secondary grounds:
  • Is there a likelihood of committing further offences?
  • Is the accused a threat to the safety of society?
  • Circumstances of the offence, including criminal record, especially for breaching court orders (most common concern)
  • Tertiary grounds:
  • Is detention necessary for maintaining confidence in the justice system?
  • Very serious criminal offenses
  • Strength of prosecution's case
• 60% of cases go to bail hearing, 40% are released from the police station with conditions

  Of all cases, 15% are detained in custody, 85% are released by police or justice of court
• What should happen at a bail hearing:

  • Presumptions:
  • Person should be released with the least conditions possible
  • Should be released within minimal amount of time (24 hrs)
  • Bail should be according to the Ladder principle (start with the lowest form of release)
  • Should be released on fewest conditions possible
  • Should always do everything possible to benefit the accused
  • Any conditions imposed must be necessary in the circumstances of the case
  • Forms of Release:
  • From the police station - form 10 (with or without conditions)
• • From the court - form 11 (with or without financial obligation, with or without surety)
• What is a surety:

  • Someone who is willing to take responsibility for the accused
  • Usually someone who knows the accused well (family, friend, co-worker)
  • Might be required to live with the accused (highest form of surety)
  • Surety release is the highest form of release
• Who bears the Onus at the Bail Hearing:

  • Usually the crown
  • Reverse onus in cases of s. 469 (treason, piracy, etc.)
  • Reverse onus bail hearing under section 515(6) for certain cases like outstanding charges, IPV offences, or failure to comply offences
• Actus Reus:

  • Defined by statute, enacted by parliament
  • Interpreted by judicial
  • Interpreted to achieve the purpose of enactment
  • Mistake of Law: accused is deemed to know the law, mistake of law is not a defense
  • Di minimis non curat lex: trivial/minor acts are not a concern of the law
  • Causation: many crimes include a necessary consequence of the act, chain of events and thin skull rule are considerations
• Mens Rea:

  • No solid definition, usually left to judicial interpretation
  • Objective foreseeability vs subjective awareness & intention
  • Objective fault: foreseeability & reasonableness
  • Subjective fault: highest level of Mens Rea, used for intentional acts
  • 4 different levels of Subjective Awareness:
  • Full intention to achieve the prohibited result
  • Knowledge that prohibited result will occur
  • Wilful blindness
  • Recklessness
• 3 main concerns of bail:

  • Primary grounds:
  • Is the accused a flight risk?
  • Will they show up for their court hearing?
  • Ties to the community (usually not an issue)
  • Secondary grounds:
  • Is there a likelihood of committing further offences?
  • Is the accused a threat to the safety of society?
  • Circumstances of the offence, including criminal record, especially for breaching court orders (most common concern)
  • Tertiary grounds:
  • Is detention necessary for maintaining confidence in the justice system?
  • Very serious criminal offenses
  • Strength of prosecution's case
• • Liability of accused
• 60% of cases go to bail hearing, 40% are released from the police station with conditions

  Of all cases, 15% are detained in custody, 85% are released by police or justice of court
• What should happen at a bail hearing:

  • Person should be released with the least conditions possible
  • Should be released within minimal amount of time (24 hrs)
  • Bail should be according to the Ladder principle (start with the lowest form of release)
  • Should be released on fewest conditions possible
  • Should always do everything possible to benefit the accused
  • Any conditions imposed must be necessary in the circumstances of the case
• Forms of Release:

  • From the police station - form 10 (held for bail hearing in hopes of obtaining form 11), either without conditions or with conditions
  • From the court - form 11 allowed back in the community with a release order
  • Release order, with or without financial obligation
  • With financial obligation - with or without surety
  • Financial obligation can either be a promise to pay (pledge) or deposit
• Who bears the Onus at the Bail Hearing:

  • Usually the crown
  • Reverse onus in cases of s. 469 (treason, piracy, etc.)
  • Reverse onus bail hearing under section 515(6) for certain cases like accused with outstanding charges and new offences, selected forearm offences, accused not ordinarily a resident of Canada, IPV offences, failure to comply offences, Aboriginal accused or vulnerable populations
• Actus Reus:

  • Defined by statute, enacted by parliament
  • Interpreted by judicial
  • Interpreted in a manner to achieve the purpose of enactment
  • If ambiguous, should be interpreted to most benefit the accused
  • Mistake of law is not a defence, but may rarely mitigate sentence
  • Di minimis non curat lex: trivial/minor acts are not a concern of the law
  • Very minor transgressions are “di minimis”
  • Some acts, like sexual assault offences and IPV, are NEVER trivial
• Mens Rea “the guilty mind”:

  • No solid definition, usually left to judicial to decide
  • Includes “purposely,” “knowingly,” “recklessly,” “negligently”
  • Objective foreseeability vs subjective awareness & intention
  • Objective fault: foreseeability & reasonableness
  • Accused’s personal characteristics are irrelevant unless they prevented them from foreseeing as a reasonable person would
  • Subjective fault - highest level of Mens Rea, used for most serious crimes
  • Accused was aware of the result that would occur while committing the act
• • Different levels require different levels of subjective awareness
  • Purpose is to prevent punishment of morally innocent
  • NOT the same as MOTIVE
  • Crown is (almost) never required to prove motive
• Causation:

  • Many crimes include a necessary consequence of the act
  • Chain of events: were there other events that occurred that may have contributed to the prohibited result
  • Thin skull rule: unforeseeable vulnerability of the victim that accused would not have known
  • General Principle of Causation: Smithers test is the governing test for causation in criminal law
  • Test for causation that requires that the accused’s act be “contributing cause” to the death which includes anything beyond a trivial or di minimis act
  • Causation: a different question in homicide cases
• • Specific provisions in the criminal code address homicide causation
  • SCC has imposed a slightly higher test of causation for murder
• Parties & Attempts:

  • Criminal liability is not restricted to those who commit a crime
  • Attempted crimes are still crimes
  • Helping in a crime is a crime
  • Person will be liable for punishment of the crime if they helped with the crime
  • Still need actus reus and mens rea
  • Accessory to a crime: not liable for the crime committed by the other person
  • Being an accessory after the fact to a crime is in itself a crime
  • Conspiring to a crime is in itself a crime
• Voluntariness of the act:

  • For an act to be criminal, it must be voluntary
  • Refers to the physical aspect of the act, if they did act with conscious and voluntary mind
  • Different from mens rea
  • For an act to be criminal, it must be the result of a willing mind, at liberty to make a choice; absent voluntariness = no actus reus
• Gladue Principle:

  • Extension resulting from Antic case; essentially codifies Antic
  • Necessitates early release with least onerous conditions
  • Includes special considerations for vulnerable minorities
  • Asks court to consider unique systematic and background factors in bail hearing
  • Does not trump primary/secondary/tertiary grounds
  • Applies after sentencing (after accused is deemed guilty)
• Proper Approach to Bail Moving Forward:

  • Each province seems to have different approaches so moving forward need to take a standard approach with specific release guidelines followed across the country
  • Presumption of innocence
  • Court must explain why a surety is needed (if needed)
  • Need to consider risk to public safety
  • Bail/release needs to be strictly tailored to the offence and accused
  • Breach of bail terms (an offence) will have accused back in court
• Sentencing and Pre-sentencing Custody:

  • Judge has pre-sentencing custody, time spent in custody can be used to reduce jail time after sentencing (1:1 ratio)
  • Truth and sentencing act changed pre-sentencing credit to 1.5:1 ratio
  • Pre-sentencing credit is used to reduce post-sentence jail time
• Can an Omission qualify as a Criminal Act:

  • Yes, where person had a legal duty to act and fails to do so
  • Criminal negligence: example parents failing to provide necessities of life, medical practitioner failing to provide treatment, managers in the workplace failing to fulfill legal responsibilities
• R. v. Nette:

  • Charges for first degree murder of 95-year-old
  • Found guilty of second degree murder
  • Harbottle test if for first degree murder and must be substantial contributing cause
  • SCC decision that for second degree murder “significant” contributing cause (so Smithers test)
• Javanmardi Case:

  • Old man died after naturopath gave him an injection
  • Naturopath accused of manslaughter and criminal negligence
  • Found guilty of manslaughter, acquitted of both charges after trial judge
  • Failed to arrive at final conclusion
  • 3 elements to actus reus:
  • An underlying unlawful act
  • Objective dangerousness of the act
  • A causal connection between the act and the death
• First vs Second Degree Murder:

  • First degree: planned & deliberate, death happens during the course of a criminal offence that is unlawful confinement, underlying offence is sexual assault, a murder of a police officer
  • Criminal act must have both actus reus & mens rea, must be combined and simultaneous
  • Smithers test is for second degree murder and manslaughter (significant contributing cause)
  • Harbottle test is for first degree murder (substantial contributing cause)
• Mistake of Law:

  • Crown never has to prove that the accused knew what the law is
  • Exception: if accused was told something is legal by an authority figure (police) when really it isn’t
  • “Colour of right” a narrow defence in particular crimes, mainly theft where accused genuinely believed something was their property
• Evidentiary procedures:

  • Crown usually reads the evidence, including allegations of what happened, criminal records, outstanding charges, other relevant info
  • Accused rarely testifies
  • Sureties might be called to testify by defence
  • Sureties encouraged to provide affidavit evidence instead of oral statement
• Revocation of release if accused misbehaves while on bail - reverse onus

  • Actus Reus defined by statute, enacted by parliament
  • Exception: contempt of court (a common law crime where accused breached court order; not defined by statute but by judicial interpretation)
  • Interpreted by judicial
  • Interpreted in a manner to achieve the purpose of enactment
  • If ambiguous, should be interpreted to most benefit the accused
• Causation:

  • Many crimes include a necessary consequence of the act
  • Mostly crimes causing bodily harm or death
  • Chain of events: were there other events that occurred that may have contributed to the prohibited result
  • Thin skull rule: unforeseeable vulnerability of the victim that accused would not have known
  • General Principle of Causation: Smithers test is the governing test for causation in criminal law
• 3 main concerns of bail:

  • Primary grounds:
  • Is the accused a flight risk?
  • Will they show up for their court hearing?
  • Ties to the community (usually not an issue)
  • Secondary grounds:
  • Is there a likelihood of committing further offences?
  • Is the accused a threat to the safety of society?
  • Circumstances of the offence, including criminal record, especially for breaching court orders (most common concern)
  • Tertiary grounds:
  • Is detention necessary for maintaining confidence in the justice system?
  • Very serious criminal offenses
• • Strength of prosecution's case
  • Liability of accused
• 60% of cases go to bail hearing, 40% are released from the police station with conditions

  Of all cases, 15% are detained in custody, 85% are released by police or justice of court

  What should happen at a bail hearing:

  • Presumptions:
  • Person should be released with the least conditions possible
  • Should be released within minimal amount of time (24 hrs)
  • Bail should be according to the Ladder principle (start with the lowest form of release)
  • Should be released on fewest conditions possible
  • Should always do everything possible to benefit the accused
• • Any conditions imposed must be necessary in the circumstances of the case

  Forms of Release:

  • From the police station - form 10 (being held for bail hearing in hopes of obtaining form 11):
  • Either without conditions or with conditions
  • From the court - form 11 allowed back in the community with a release order:
  • Release order, with or without financial obligation
  • With financial obligation - with or without surety
  • Financial obligation can either be a promise to pay (pledge) or deposit
• Javanmardi Case:

  • Old man died after naturopath gave him an injection
  • Naturopath is accused of manslaughter and criminal negligence
  • Found guilty of manslaughter, need new case for the criminal negligence after trial judge acquitted both charged
  • Acquittals restored (she's not guilty)
  • Failed to arrive at final conclusion
  • Found that naturopath was qualified and did not depart from what a reasonable person would have done
  • 3 elements to actus reus:
  • An underlying unlawful act
  • Objective dangerousness of the act
  • A causal connection between the act and the death
• • If the accused already has outstanding charges and is charged with new offences

  Selected forearm offences

  If accused is not ordinarily a resident of Canada

  IPV offences (if there’s a record)

  If charged with failure to comply offence

  Aboriginal accused or vulnerable populations

  Crown must pay special attention to background/circumstances of aboriginal people and people belonging to a vulnerable population
• What is a surety:

  • Someone who is willing to take responsibility for the accused
  • Usually someone who knows the accused well (usually family, friend, co-worker)
  • Might be required to live with the accused (highest form of surety)
  • Surety release is the highest form of release

  Who bears the Onus at the Bail Hearing:

  • Usually the crown
  • Reverse onus in cases of s. 469 (treason, piracy, etc.) - must be detained under s. 515(6) if charged with an indictable offense committed while on bail for an indictable offence

  Reverse Onus bail hearing under section 515(6):