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133 Cards in this Set
- Front
- Back
Law (definition) |
A set of rules of conduct established by elected government members (reflects values and beliefs of society) |
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Purposes of laws |
- means of resolving disputes peacefully - rules of conduct for society - protects our rights and freedoms |
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Due process |
Settling disputes by a peaceful means, in front of an appointed judge |
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Law vs Justice |
Law is codified rules, justice contains more personal judgement ("moral rightness") |
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2 Categories of law |
Public (criminal & constitutional law) Private (contracts, torts, property) |
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Criminal vs Civil law |
Criminal - Crown vs an individual, purpose is to punish, deter or protect Civil - between private citizens, purpose is to compensate for harm |
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Crime (definition) |
Conduct that is prohibited because it has an "evil or injurious or undesirable effect upon the public" and can incur a penalty |
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True crime |
Serious breach of basic community values |
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Common law |
Judge's interpretations of the law tell us how the law should be applied in different circumstances |
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Stare decisis |
We must follow case precedent, which flows in a hierarchical manner Higher court decisions considered binding Same- or lower-level court decisions considered persuasive Courts can DISTINGUISH their case if they don't want to follow a binding decision |
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Judicial precedence |
Historical decisions by judges on similar issues or facts; based on the idea we should all be treated the same way as a matter of fairness |
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Mitigating factors |
Circumstances that make someone's actions more reasonable or understandable |
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Aggravating factors |
Circumstances that make someone's actions more reprehensible or serious |
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Charter infringement |
Courts can strike down legislation that infringes on the rights and freedoms of Canadians |
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Reasonable limit (charter) |
Charter rights may remain limited where an infringement can be demonstrably justified in a free and democratic society |
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Oakes Test |
Weighs the effects of infringing one set of individual rights/freedoms against another A violation of a charter right can be limited where: 1) Limit is sufficiently important to justify overriding the right or freedom 2) The means chosen by the legislature are "reasonable and demonstrably justified" a) Means must be rationally connected to the objective b) means should impair "as little as possible" the right or freedom c) there must be a proportionality between the effects of the measures and the objective of the legislation |
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Oakes Test case |
R v NS (niqab) |
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Actus Reus (definition) |
The prohibited conduct, circumstances and consequences; a bad act |
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Mens Rea (definition) |
Guilty mind 2 types distinguished in Creighton case |
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3 Cs of Actus Reus |
- Conduct (voluntary act or omission) - Circumstances - Consequences (criminal code violation) |
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Assault CASES |
- Robinson (beard) - Taylor (beer) - Moquin (assault - not serious but caused interference with comfort, constituting bodily harm) - McCraw (psychological harm, threats of sexual assault) |
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3 Cs of Assault |
-Conduct - application of force -Circumstances - without consent -Consequences - bodily harm |
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3 Cs of Sexual Assault |
-Conduct - intentional application of force -Consequences - application of force, or the reasonable belief that the accused had the "present ability" to apply force - Circumstances - no consent, and of a sexual nature |
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Test for sexual assault |
- Objective (reasonable person) - Was sexual integrity of the victim violated? |
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Consent CASE |
R. v. Ewanchuk (silence does not equal consent) |
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3 Cs of theft |
Conduct - taking or converting anything Circumstances - fraudulently or without colour of right Consequences - owner is deprived of use, ownership, etc. |
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Actus Reus with no consequences |
Perjury - uttering false statements completes the offence; no one need believe or be influenced by the conduct
Unlawful possession of housebreaking instruments (unless for a legitimate purpose)
Found in a stolen car - if they have knowledge (they can exit when they find out with no consequence)
In care or control of a motor vehicle while impaired |
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Care/control of vehicle while impaired CASES |
- Butler - placed in vehicle by friends, not guilty - Boudreault - fell asleep waiting for taxi, engine on because it was cold |
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Care/control of vehicle while impaired - what Crown must prove |
1) intentional course of conduct 2) by a person whose ability to drive is impaired or whose blood alcohol exceeds legal limit 3) in circumstances that create a realistic risk of danger to persons or property Reverse onus - obligation on defence to prove not guilty |
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Reverse onus |
Provision within a statute that shifts the burden of proof to the defence to disprove an element of the offence
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Liability (general rule) |
There is no criminal or civil liability for failure to act, unless there is a pre-existing duty (spouse, child/parent, dependent/caregiver) |
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Test for necessities of life |
Objective (reasonable person) |
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When AR & MR coincide CASES |
- Cooper (strangled gf) - Bottineau (child endangerment) |
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Voluntariness |
Conduct must be a result of free will; mental element of AR |
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Chain of Causation (definition and stages) |
Proof that action led to prohibited consequences; link between initial act and illegal consequences (Proving actus reus) 2 stages: factual and legal causation **MUST HAVE BOTH |
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Factual causation |
Did the action contribute medically, mechanically, or physically to the consequences? "But for" test - but for X's conduct, would the consequences have occurred? |
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Legal causation |
Should the person be held accountable in law for bringing about the consequences? Were consequences reasonably foreseeable? |
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Causation CASES |
Trakas - ran over police officer. No legal causation because it was not foreseeable that driving normally would cause death |
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Foreseeability |
Courts will only hold person legally accountable where prohibited consequences were foreseeable. Objective - reasonable person test |
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Causation in Murder |
Must prove that death occurred after accused's conduct |
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Death |
No specific legislation, but Law Reform Commission of Canada suggests: a person is dead when an irreversible cessation of all brain functions has occurred. |
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Acceleration of death |
Accused can cause death notwithstanding that the effect of the bodily injury is only to accelerate his/her death from a disease or disorder arising from some other cause. Murder of a terminally ill person is still murder. Legal principle: take your victim as you find him/her |
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Euthanasia CASES |
**Carter - criminal code provisions declared unconstitutional Rodriguez - SCC upheld that suicide was prohibited Bodkins Adams - English case, intention was to treat pain symptoms so not criminally liable |
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Withdrawal of treatment |
Where a competent adult patient makes request, physician must withdraw treatment |
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Withdrawal of treatment CASE |
Nancy B - physician had to honour her wishes and disconnect respirator |
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Multiple causes of death |
Defendant's act does NOT have to be the only cause of death, must be a significant contributing cause |
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Multiple causes of death CASES |
Smithers - kick to stomach with pre-existing condition, died Court ruled it was a significant contributing cause (not trivial) Nette - hog-tied grandma, convicted |
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Significant cause CASE |
Younger - abandoned kidnapped child, died from hypothermia |
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Harricharan (case) |
Arson case, fell asleep with cigarette & started fire. OCA tried to prove that X's actions caused, or contributed, to fire. Acquitted. CAUSATION |
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Nette (case) |
Grandma, hog tied, left alone, falls & dies of asphixiation. Significant contributing cause |
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Thin skull rule |
Concerns condition of the victim with pre-existing physical difficulties. Take victim as you find them, pre-existing conditions are irrelevant. Smithers, Nette |
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First degree murder test |
Substantial and integral cause, a physical role in the killing Planned and deliberate Subjective foresight of the likelihood of death |
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First degree murder exceptions (doesn't have to be planned and deliberate when...) |
In combination with one of the following offences: - hijacking an aircraft - sexual assault - sexual assault with a weapon - kidnapping - hostage taking |
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First degree murder CASE |
Harbottle - sexual assault, discussion of how to kill, strangled while one accused held victim - Substantial and integral cause |
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Intervening act |
Something that occurs after the defendant's conduct that breaks the chain of causation and relieves defendant of criminal responsibility - Must be an overwhelming cause of death - Unforeseeable |
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Categories of intervening acts |
- Acts of victim - Acts of third parties - Naturally occurring events |
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Maintaining chain of causation after an intervening act (& CASE) |
Crown must prove that accused's actions were still "operative" at time of vic's death - Kitching & Adams (donated kidneys), tried to argue that that caused death |
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Intervening act CASE |
- Maybin - brothers in bar, bouncer landed fatal blow Legal causation: were the bouncer's actions reasonably foreseeable as a part of the chain of events? Yes. Brothers' actions were significant contributing cause. - Sarazin - gang members shoot rival; rival survives but does cocaine and dies after that. Cocaine breaks chain of events - Jordan - victim stabbed, allergic reaction to treatment. Factual causation but break in chain of legal causation |
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Refusal of medical treatment CASE |
Blaue - JW, refused blood transfusion
- Physical cause of death = bleeding into pleural cavity from wound, due to injury - Thin skull principle - wouldn't have died if not for wound (applies as long as initial injury is serious in nature) |
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Death by acting on vic's mind |
Causes death by threatening or deceiving a person to the extent that they commit suicide. Liable unless act of victim is so overwhelming, unreasonable, or unforeseeable that it would break chain of causation. |
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Death by acting on vic's mind CASE |
Stephenson - KKK head abducted woman, she committed suicide. Convicted. |
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To prosecute a criminal offence, Crown must prove: |
- AR (3 Cs) - Voluntariness & causation - Mens rea coincided with AR - Beyond a reasonable doubt |
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Moral innocence (groups) |
- Not criminally accountable on account of a mental disorder (NCRMD) - No person under the age of 12 can be charged with a criminal offence |
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Subjective mens rea |
Concerned with what was actually going on in the mind of the defendant More morally blameworthy (serious) than objective mens rea |
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Objective mens rea |
Concerned with what should have been in the defendant's mind had he/she acted as a reasonable person *concept of negligence is key |
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Forms of subjective mens rea |
- Intention - Knowledge - Recklessness - Wilful blindness Read code to determine |
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Mens rea knowledge CASE |
Dynar - tried to launder crime $$, but was actually proceeds of crime. Tried to argue he couldn't have knowledge that wasn't true. Change in section to read "knowing or believing to be" |
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Prank rule |
No conviction of theft where accused was engaged in a prank or a well-intentioned blunder |
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Olan, Hudson & Hartnett (case) |
Defrauded dry cleaning company; shares carried out for personal benefit of board of directors, not for business purposes; The didn't say anything dishonest, but judge ruled misuse of company assets constituted dishonesty |
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Fraudulent (temporary nature) |
Defendant must have intended to deprive victim temporary or absolutely Cases: Neve, Skalbania |
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Fraud CASE |
Theroux - realtor makes false representations of insurance over deposits. Deal falls through, deposits not returned. Knew that he didn't have insurance for the deposit, therefore deliberately deceived and deprived victims of $$. |
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Fraud |
Wrongful or criminal deception intended to result in financial or personal gain. Must prove dishonesty and deprivation Sections 322 & 380 |
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Test for fraud |
Subjective mens rea |
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2nd degree murder CASE |
Smith - hunting, killed partner. No evidence that it was previously planned |
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1st degree murder CASE |
Bujold - letters written, phone calls, time lapse to walk, entered building through a ruse - clearly planned and deliberate |
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Intoxicated accused |
Does not generally allow a defence to a criminal charge; can reduce offences at sentencing. Can reduce MR charge - 1st to 2nd degree murder Widdifield case - can't plan or deliberate when intoxicated. |
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Mental illness |
Similar to intoxication - not an excuse but can reduce charge |
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Specific intent |
Certain offences require an additional mental element be proven beyond the basic intention of the AR - Assault with intent to resist arrest - Possessing a weapon for a purpose dangerous to public or for the purpose of committing an offence - Breaking and entering with intent to commit an indictable offence - Murder |
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Direct vs indirect intention |
Direct - acting with the aim of achieving a certain consequence
Indirect - where accused does not wish to bring about certain prohibited consequences, but engages in actions that nevertheless cause the prohibited actions |
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Indirect intention CASE |
Guess - had affair with defendant while serving on jury; goal was not to obstruct justice but this was the result |
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Motive (note) |
Crown is not required to prove motive as part of mens rea - doesn't matter what they intended to do However, can be useful for evidence |
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Transferred intent |
Intention to do an act to one person can be transferred where the act is actually done to another person |
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Transferred intent CASES |
Droste - planned to kill wife, ends up killing kids Vandergraaf - assault by peanut butter jar |
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Recklessness |
An individual is considered to be reckless where he/she foresees the possibility of a certain consequence occurring, but does not desire the consequence, nor know for certain that the consequence will occur Elements: - Subjective foresight of risk - Unjustified assumption of the risk (objective test) |
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Recklessness CASE |
ADH - Walmart baby. Acquitted because she thought baby was dead |
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Test for Recklessness |
1) Determine the defendant's subjective appreciation of risk 2) Determine what a reasonable person with same knowledge would have done 3) Ask would someone acting with normal prudence engage in the conduct |
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CASE where recklessness has been read in |
Sansregret - knowledge of vic's lack of consent, or recklessness as to consent, will justify a conviction of sexual assault |
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Wilful blindness CASE |
Briscoe - kidnapping, sexual assault and murder of young girl at a golf course. Was wilfully blind as to friend's intentions |
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Martineau (case) |
Subjective mens rea: B&E of trailer, co-accused commits homicide. Other person claims no intention Crown must prove that accused deliberately intended to kill, or subjectively foresaw the risk of death due to his/her actions |
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Negligence |
Failure to act with the prudence that a reasonable person would exercise under the same circumstances (failure to use a certain degree of care) |
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Types of negligence |
Civil law (carelessness) - falling below standard of a reasonable person Criminal law (penal negligence) - marked departure from the standard of the reasonable person acting prudently |
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Objective liability |
Imposition of criminal liability on the basis of the standard of the "reasonable person" Note: must be a marked departure Read-in portion: that an accused person will only be convicted of a criminal offence where morally blameworthy |
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Purpose of objective liability |
Creates a specific standard by which all who engage in the activity are expected to meet. |
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Modified objective test |
Whether a reasonable person, with the same knowledge of the facts as the accused, would have behaved in the same way |
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Dangerous driving |
Crown must prove accused drove in a manner that was a marked departure from the standard of a reasonable person in the circumstances OBJECTIVE MENS REA (Provincial offence = just falling below standard of a reasonable driver, not marked departure) |
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Air of reality |
If accused wishes to offer an explanation of the circumstances with the view of proving innocence, the evidence offered must pass the "air of reality" test Must be able to provide evidence to support accused's account |
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Beatty (case) |
Dangerous driving charge (objective mens rea) No conviction because it was a single error in judgement, not marked departure |
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Dangerous driving vs criminal negligence |
Criminal negligence requires much more serious departure from standard of the reasonable person |
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Penal negligence |
Everyone is criminally negligent who shows wanton or reckless disregard for the lives or safety of other persons Applies to both acts and omissions (where legal duty) |
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Increasing standard of MR (driving) |
1) Careless driving: any departure from standard 2) Dangerous driving: marked departure from standard 3) Criminal negligence causing death/bodily harm: marked and substantial departure from standard |
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Manslaughter (2 main types) |
- Criminal negligence - Unlawful act manslaughter |
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Unlawful act manslaughter |
A person commits culpable homicide when he causes the death of a human being - by means of an unlawful act - by criminal negligence - by causing someone to do anything that causes his death - by wilfully frightening someone |
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Infanticide |
Where a woman who is suffering effects related to childbirth kills her child |
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Unlawful acts |
Crown must show intent to kill or inflict bodily harm that the accused knows is likely to cause death and is reckless as to whether death ensues Objective foresight of the risk of bodily harm that is neither trivial nor transitory in nature (for manslaughter) Objective foresight of bodily harm (for unlawful act bodily harm) |
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Vaillancourt (case) |
Russion roulette - thought gun was not loaded Acquitted because no objective foresight of risk of bodily harm UNLAWFUL ACT MANSLAUGHTER charge |
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Dewey (case) |
Bystander getting too involved in a bar fight ends up charged with assault causing bodily harm Convicted because objective foresight of risk of bodily harm UNLAWFUL ACT ASSAULT |
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Aggravated assault |
Wounds, maims, disfigures or endangers the life of the complainant. Objective foresight of injury DJ - improper circumcision case! |
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Elevated standard of care |
Where defendant engages in particularly risky activities, the standard becomes a marked departure from a reasonable person, who has the necessary expertise and training to engage in the activity (firearms, toxic chemicals, surgeries) |
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Elevated standard of care CASE |
Rogers - unlicensed doc kills boy via malnutrition diet Reasonable doc would not have prescribed the diet, therefore marked departure |
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Cuerrier (case) |
If you think you have contracted HIV, you have a legal duty to inform partner prior to sex Duty of care to disclose! |
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Summary conviction offence |
May be tried only before a provincial/territorial court, max penalty $5000 or sentence of 6 months in prison, or both |
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JF (case) |
Manslaughter by criminal negligence charge Foster child - father charged with manslaughter by criminal negligence and failure to provide necessities of life; acquitted because trial was improperly conducted |
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Ultra vires |
Outside |
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Prior inconsistent statements |
Victim gives varied accounts; can be used against them during cross-examination |
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Robinson (case) |
Assault with beard Interferes with health & comfort of victim |
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Ewanchuk (case) |
Lack of consent must be determined based on the subjective intent of the complainant rather than the accused |
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Cooper (case) |
Accused became angry with girlfriend and strangled her, then woke up and claimed to have no memory of the event. If mens rea coincides with AR at any time, conviction. It's reasonable to assume that at some point he meant to inflict bodily harm and was aware that strangulation can cause death. Convicted. |
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For the Crown to proceed with a case, must be: |
- Public interest to proceed - Substantial likelihood of conviction |
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McCrae (case) |
Accused awaiting trial, made threats towards prosecutor, witness, etc. Acquitted because mens rea had not been established. SCC disagreed, said it was sufficient if he intended the threats be taken seriously by those to whom the words were spokenf |
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Hundal (case) |
Driver entered intersection on a red light, struck a car and killed driver who entered on green light. Witnesses claimed he was driving recklessly before incident. Guilty. |
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Supreme law of the land |
Constitution |
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Hatfield |
Impaired - left restaurant drunk, realized he was impaired, stopped to sleep it off. Courts ruled still in care and control of vehicle with intention to continue driving.
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Bottineau |
Reckless murder by neglect Starved grandson of food; mens rea present because they meant to cause him bodily harm that they know is likely to cause his death, and is reckless whether death ensues or not |
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Creighton (case) |
Creighton injected himself and friends with cocaine, causing one friend to die. Creighton prevented other person from calling police. Person called police later anyway. Convicted because a reasonable person would have foreseen that using cocaine could cause death. OBJECTIVE MENS REA |
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Roy (case) |
Terrible driving conditions, entered freeway and was hit by semi. Does not satisfy objective MR b/c one lapse in judgement |
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Effert (case) |
Infanticide - convicted of strangling baby |
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Neve (case) |
Took vic's clothes, left her in remote field; still fraudulent because vic was deprived of personal items, regardless of Neve's motive. |
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Skalbania (case) |
Used money for purposes unrelated to business, repaid it later. Guilty regardless of intent to repay because he knowingly used money for a purpose for which it was not intended. |
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Fontaine (case) |
Tried to commit suicide and accidentally killed another person; not convicted under doctrine of transferred intent |
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Wilful blindness |
Where the accused had a strong suspicion, or knowledge that something unlawful was happening, but did not inquire or do anything to stop it *Issue of knowledge |
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Knowledge |
Accused has subjective knowledge of some fact or state of affairs |
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Semchuk (case) |
Coach tried to "help" teenage girl by rubbing her breasts |
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V. (K.B.) (case) |
Father violently grabbed son's genitals to teach him not to do this to adults |