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SAMPLE PAGE (2) Sexual Assault (3) Murder: (1) Mental Disorder
(7) The Role of Crown Counsel: Murder requires objective foresight of death: Constitutional
s. 265 is general SA provision. requirement. Objective mens rea is not sufficient to convict an s. 16(1): No person is criminally responsible for an act committed or
Crowns obligation is to the state and the administration of Justice. Note, (2) this applies to all forms of assault Accused of murder (R. v. Martineau). an omission made while suffering from a mental disorder that
Their role should exceed beyond wining/losing but to seek justice. [Helps us determine actus reus component.] rendered the person incapable of appreciating the nature and quality
Crown counsel fulfil a public function to seek justice. s. 231(1): Murder is first degree murder or second degree murder. of the act or omission or of knowing that it was wrong.
They are public officers engaged in the administration of justice. s. 265: defines all assault offences: (a) 1st Degree Murder: planned and deliberate; s. 16(2): Every person is presumed not to suffer from a mental
(1) A person commits an assault when (b) 2nd Degree Murder: not planned and deliberate. disorder so as to be exempt from criminal responsibility by virtue of
Crown counsel is considered a public servant. The role is not to win (a) without consent of another person, he applies force subsection (1), until the contrary is proved on the balance of
cases; their role is to ensure justice is sought. This means Crown is intentionally to that other person, directly or indirectly; (1) 2nd Degree Murder: probabilities.
not driven by securing conviction (Boucher v. The Queen). This is (b) he attempts or threatens, by an act or a gesture, to apply force s. 16(3): The burden of proof that an accused was suffering from a
public duty that is imposed on the Crown. to another person, if he has, or causes that other person to s. 229: Culpable homicide is murder mental disorder so as to be exempt from criminal responsibility is on
Despite this public duty, Crown is given discretion to manage believe on reasonable grounds that he has, present ability to s. 231(1) Murder is first degree murder or second degree murder the party that raises the issue.
cases in a way that allows them to still secure convictions or plea effect his purpose; or
agreements they believe is necessary in case at hand. SCC has (c) while openly wearing or carrying a weapon or an imitation s. 229(a): Intentional or Reckless Killing Procedural Element:
held this includes Crowns’ right to revoke plea agreement both thereof, he accosts or impedes another person or begs. s. 229(b): Transferred Intent
sides have agreed to (Nixon), and discussing dropping or adding (2) This section applies to all forms of assault, including sexual s. 229(c): Unlawful object (a) People who are unaware of the criminality of their actions.
charges (Babos). assault, sexual assault with a weapon, threats to a third party or ‘Morally innocent;’ unable to appreciate action.
Part of Crown’s duty to court is to disclose all evidence, even if that causing bodily harm and aggravated sexual assault. Note for all 3: different situations where A means to cause death or Punishment insufficient. Deserve treatment.
evidence is damaging to their case (Krieger). Crown’s disclosure means to cause bodily harm they know is likely to cause death to V. (b) At the time the offence was committed up to trial.
requirements include putting forward all evidence in a fair manner. (1) Actus Reus of Sexual Assault: ‘At point of trial, may by deemed unfit for trial.
(a) Intentional or Reckless Killing: (c) Party who raises mental disorder must prove on a balance of
The Crown does not have the same obligations as the court when it An intentional application of force without consent. probabilities.
comes to the aboriginal status of an Accused (Anderson). Court examines whether, in light of all circumstances, sexual s. 229(a): where the person who causes the death of a human being Can be instigated by defence, Crown, or judge.
context of assault is visible to reasonable observer: Chase. (i) means to cause his death, or
(8) Trial in a Reasonable Time (ii) means to cause him bodily harm that he knows is likely to s. 2: Unfitness to stand trial:
R v Chase SCC 1987: [C neighbour of V (15 year-old girl). C entered cause his death, and is reckless whether death ensues or not; ‘unfit to stand trial’ means unable on account of mental disorder to
s. 11(b) Charter: ‘accused has the right to trial in a reasonable time.’ V’s home without invitation. V’s parents absent but V’s grandfather conduct a defence at any stage of the proceedings before a
R v Askov: SCC held systemic delay can trigger a s. 11(b) claim. home sleeping. C seized V around shoulders and arms, grabbed her (1) Mens rea: subjective: have to mean to cause death or know that verdict is rendered or to instruct counsel to do so, and, in
- Appropriate remedy for significant delay is a stay of proceedings. breasts. When V fought back, C told V he knew she wanted it. death is likely to ensue. particular, unable on account of mental disorder to
R v Jordan: presumptive ceiling is 18 months for cases tried in Eventually V called neighbour and C left. Prior to C leaving, told her (a) ‘means’ = intent: [Need mental disorder; disorder must effect one of these areas]
provincial court, and 30 months for cases in superior court is he was going to tell ‘everyone’ that she raped him. C charged with (b) ‘knows’ = knowledge: (a) understand the nature or object of the proceedings,
presumed to be unreasonable, unless exceptional circumstances sexual assault. CoA found C guilty of common assault, as V’s To satisfy s. 7 Charter, murder must have subjective mens rea (b) understand possible consequences of proceedings, or
justify it. Delay attributable to or waived by defence does not count genitals remained untouched. Issue: Does definition of sexual because of dire consequences. (c) communicate with counsel;
towards presumptive ceiling. assault require genital touching? SCC: test to apply in determining if (2) Actus reus: Directly or indirect causing death of human being by s. 2: “mental disorder”
Once presumptive ceiling is exceeded, burden is on Crown to impugned conduct has requisite sexual nature: ‘viewed in the light of means of an unlawful act. means a disease of the mind.
rebut presumption of unreasonableness on basis of exceptional all the circumstances, is the sexual or carnal context of the assault Note: A can mean to cause V’s death but that does not mean it is [Legal definition, not medical. Court decides what is mental
circumstances. If Crown cannot do so, stay will follow. visible to a reasonable observer?’. Here, viewed objectively, C’s planned and deliberate. disorder and medical community puts forward evidence.]
Two types of Defence delay (Cody): grabbing V’s breasts constituted assault of sexual nature.] (3) Causation: Smithers Test (Was the accused’s conduct ‘a s. 672.22: Accused is presumed fit to stand trial unless court is
1) Delay waived by defence: contributing cause [of victim’s death] beyond de minimus range’?). satisfied on balance of probabilities Accused is unfit to stand trial.
[explicit or implicit but is informed, clear, and unequivocal.] R v V (KB) [A charged with sexually assaulting 3 year-old son. In [May be voir dire trial to determine if A fit.]
2) Delay that is caused solely by the conduct of the defence: statement to police, A explained he grabbed S’s genitals to deter S R v Cooper [C drinking with V. During argument, C blacked out, s. 672.23(2): An accused or prosecutor who makes application
[Any defence conduct that solely or directly caused delay.] from grabbing genital region of adults and show him how much it strangled V. C testified he had no recollection of causing death. under subsection (1) has burden of proof that A is unfit to stand trial.
The only deductible delay one that (Cody): hurts. Issue: Was grabbing S’s genitals of a sexual nature? SCC: Consumed considerable amount of alcohol prior to murder. Argued [Reason Crown would make application A has mental disorder:
(a) is solely or directly caused by the accused; and open to TJ to conclude, from all circumstances, assault was 1 of he did not have required mens rea to commit murder or that he did Crown fulfils public position. Goal is seek justice, not win.]
(b) flows from defence action that is illegitimate insomuch as it is sexual nature. Assault such that sexual integrity of child violated.] not foresee grabbing V by throat would cause her death. Issue: What
not taken to respond to the charges. is nature of intent required for murder? Held: C intended to cause Can only raise defence in two specific circumstances:
(3) Sexual Assault – Mens Rea: bodily harm and knew strangulation was likely to result in death]. (a) Accused places own mental capacity at issue.
(9) The Presumption of Innocence i.e. A calling W saying they are sane. If Crown does not agree,
The mens rea of sexual assault requires: (b) Transferred Intent: call own W’s to dispute this.
s. 11(d) Charter: ‘accused has right to be presumed innocent until (1) Accused intends to apply force; knows victim is not consenting [On balance of probabilities.]
proven guilty according to law in fair and public hearing by [i.e. knowledge & intent.] s. 229(b): where A, meaning to cause death of B or meaning to (b) if A found guilty.
independent and impartial tribunal.’ Accused knows no consent and proceeds anyway. Sexual nature cause B bodily harm A knows is likely to cause B’s death, and being If convicted, Crown or defence can raise mental disorder and
of conduct has to be interpreted in circumstances. This is what reckless whether death ensues or not, by accident or mistake causes argue s. 16 applies.
The Crown must prove A’s guilt beyond a reasonable doubt: makes it tricky (could include kissing). This is where mistaken death of C, notwithstanding that A does not mean to cause death or [Occurs after verdict reached & before conviction entered.]
belief of consent is raised. bodily harm to C; If insanity determined, then not guilty by insanity.
R v Lifchus [1997, SCC]: L stockbroker. Misrepresented value of or Example: A means to shoot B and kills C, intent they had in killing B Raising Mental Disorder Issue: R. v. Swain.
bond in personal margin account to employer, defrauding it of (2) Recklessness or wilful blindness as to lack of consent. is transferred to C, 2nd degree murder can be established. Burden of Proof: s. 16(3): every one who raises issue must prove it
substantial amount of money. L charged with fraud and theft. Accused proceeds anyway, despite lack of consent (and is on a balance of probabilities. R v Chalk and Morrisette.
Convicted of fraud. L appealed on grounds jury was mis-instructed reckless or wilfully blind as to victim’s lack of consent) (1) Mens rea: have to mean to cause death or know that death is
about standard of ‘proof beyond a reasonable doubt’. SCC: ordered R v Sansregret [Even if S was not subjectively aware there was likely to ensue. Mental Disorder defence:
new trial. Cory J used case as opportunity to describe significance of no consent, S was wilfully blind to lack of consent.]
‘reasonable doubt’ standard. Described it as fundamental principle in (1) Presumption of sanity (s. 16(2)):
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