TABLE OF CONTENTS. Preface... Major Works Referred to... INTRODUCTION: THE NEED TO ADOPT BROADER PERSPECTIVES... 1

Transcription

1 Preface... Major Works Referred to... v ix Chapter 1 INTRODUCTION: THE NEED TO ADOPT BROADER PERSPECTIVES... 1 A. Canada s Criminal Code... 2 B. Rocky Road to General Part... 4 C. Sources of Criminal Law Statutory Judge-made Charter of Rights and Freedoms (1) Purposeful Interpretation of Entrenched Rights (2) Dialogue with Parliament : A Dangerous Metaphor (3) Demonstrably Justified Reasonable Limits (4) Impact of Charter on Criminal Justice D. Nullum Crimen Sine Lege, Nulla Poena Sine Lege Certainty (1) As an Ideal (2) As a Constitutional Imperative (Vagueness and Overbreadth) Accessibility Non-retroactivity Strict Construction (Presumption in Favour of Liberty) E. Procedural and Evidentiary Contexts Presumption of Innocence Contrasting Substantive Issues Classification of Offences F. Truths of Criminology G. Using Penal Sanctions with Restraint H. Sentencing Aims and Principles I. Diversion and Restorative Justice J. Rights of Victims K. Feminist Perspectives L. Overview Chapter 2 THE ACT REQUIREMENT (ACTUS REUS) A. Why Insist on an Act? B. Definition Act of Commission (1) Ambiguously Defined Acts (2) Status Offences... 91

2 xii 2. Act of Omission (1) Definition (2) Existing Law (3) Omissions to Provide Necessaries of Life (4) What Should the Law Be? By a Human Being Voluntary (1) Generally (2) Rationale (3) Restrictions (a) Insanity (b) Voluntary intoxication (c) Negligence (4) What Should the Law Be? Causing Consequences (1) Rationale (2) Code Homicide Causation Rules (3) Smithers (4) Challenging the Smithers Test (5) Nette: Re-consideration and Confusion (6) Factual Cause (7) Imputable Cause (8) Acts of Independent Actors (9) Codifying Causation Principles Chapter 3 THE FAULT REQUIREMENT (MENS REA OR NEGLIGENCE) A. Need for Fault B. Subjective/Objective Distinction For Substantive Tests Objective Approach to Proof C. Common Law Tradition of Subjective Approach to Mens Rea D. Fault for Public Welfare Offences Prior to Sault Ste. Marie The Decision in Sault Ste. Marie (1) Classification of Offences (2) Half-way House Approach (3) Absolute Liability Applying Sault Ste. Marie (1) Supreme Court (2) Lower Court Rulings Distinguishing Real and Regulatory Offences Minimum Charter Standard of Due Diligence for Any Offence (1) Where Liberty Interest Threatened (2) Where Security Interests Affected

3 xiii (3) Due Diligence Standard Not to be Qualified (4) Reverse Onus for Regulatory Offences Summary: Normally Due Diligence Defence E. Fault for Crimes Charter Standards (1) Constructive Murder Unconstitutional (2) Constructive First Degree Murder Constitutional (3) Subjective Awareness Required for Few Crimes to Reflect Stigma and Proportional Punishment (4) Intentional Conduct to be Punished More Than Negligence (5) Objective Crimes Require Marked Departure; Crimes Based on Predicate Offences Merely Require Reasonable Foresight of Harm (6) No Constitutional Requirement of Foresight of Consequences Three Categories of Crime (Creighton) (1) Subjective Mens Rea (a) Express or implied (b) Policy favouring subjective awareness (c) Intent or knowledge (d) Intent or motive (e) Indirect intent or knowledge (f) Extension to recklessness (g) Definition of recklessness (h) Wilful blindness (i) U.K. courts return to subjective standard (j) Foresight of consequences (k) Knowledge of wrongness not required (l) Particular states of mind (i) Dishonesty, etc (ii) Specific intent (iii) Planned and deliberate murder (m) The doctrine of transferred malice (2) Objective Crimes (Negligence) (a) Trend to individualised objective standards (b) Express or implied (c) Marked departure requirement (Creighton and Beatty) (d) No individual factors short of incapacity (Creighton) (e) Criminal negligence under section 216: Marked and substantial departure (3) Crimes Based on Predicate Offences (a) Limited fault requirements (b) Why have constructive liability? (c) Special case for constructive manslaughter?

4 xiv (d) Aggravated assault and assault causing bodily harm F. Basic Deficiencies of Current Law on Fault Due Diligence Compromise for Regulatory Offences Sets Standard Too Low Current Objective Standards for Criminal Code Offences Need to be Further Restricted Clear Definitions of Various Forms of Fault Need to be Codified Guidelines Needed as to Fault Standard G. Normative Theories Chapter 4 MISTAKE OR IGNORANCE A. Mistake or Ignorance of Fact Question of Fault Ignorance and Mistake Subjective or Objective (1) U.K. Law (2) Canadian View (3) Mistaken Belief in Consent (a) Air of reality test (b) Honest belief approach (Pappajohn) (c) Are general principles adequate for sexual assault? (d) Duty to take reasonable steps (Parliament) (e) Ewanchuk limits (f) Testing Ewanchuk in ambiguous situations (g) Possible Charter challenges Materiality B. Mistake or Ignorance of Law General Rule Rationale Exceptions (1) Impossibility (Including Non-publication) (2) Colour of Right (3) Reliance on Erroneous Statement of Law (4) Incapacity C. Distinguishing Mistakes of Fact and Law D. Mistake or Ignorance and Omissions Chapter 5 THE SIMULTANEOUS PRINCIPLE A. Generally B. Departures Superimposing Intent on Innocent Act Failing to Correct Created Danger Regarding Series of Acts as One Transaction

5 xv 4. Intoxication for Purpose of Crime Negligence Offences Chapter 6 INCAPACITY A. Immaturity Special Criminal Laws for Children Rules of Age Incapacity B. Insanity (Mental Disorder) Introduction (1) Limited Truths of Psychiatry (2) Dangers of Civil Commitment Procedures (3) Limited Dispositional Alternatives in Criminal Law Fitness to Stand Trial (1) Present Law (2) Unfitness Not Due to Mental Disorder Defence of Insanity (Mental Disorder) at Trial (1) Under Section (a) Onus (b) Disease of the mind (c) Incapable of appreciating the nature and quality of an act or omission (d) Incapable of knowing conduct is wrong (e) Juristic nature of section 16 defence (2) Evidence of Mental Disorder Negativing Mens Rea (3) Reform Options C. Intoxication Generally Defences to Specific Intent Crimes (Beard Rules) (1) Specific Intent (2) Incapacity or Intent in Fact? (3) Degree of Intoxication Case Against Specific/General Intent Approach Extreme Intoxication Akin to Automatism or Insanity as Defence to General Intent Crimes (Daviault) Parliament Abolishes the Daviault Defence Three Degrees of Intoxication (Daley) Reform Options (1) Allow Intoxication to be Considered for All Mens Rea Determinations but Not Negligence (2) Proposals Aimed at Drunken Offenders (a) Constructive mens rea (b) Special verdict like that for insanity (c) An independent intoxication offence (d) Special verdict of guilty but intoxicated

6 xvi Chapter 7 JUSTIFICATIONS OR EXCUSES A. Generally New Defences: At Common Law or Under the Charter Principle of Justification or Excuse Purported Distinction Between Justification and Excuse Moral Involuntariness becomes Charter Standard for Defences Subjective or Objective Putative Justifications Onus of Proof and Air of Reality B. Individual Defences Defence of Person (Including Self-defence) (1) Outdated and Unduly Complex Criminal Code Rules (2) New Simplified Umbrella Approach in Section (3) Sensitivity where Accused Victim of Abuse Defence of Property Duress (Compulsion, Coercion) (1) Excluded Offences (2) Nature of Threat (3) Belief of Accused (4) No Safe Avenue of Escape and Proportionality (5) Not a Party to Conspiracy (6) Need for Major Reform Protection of Persons Administering and Enforcing the Law Lawful Authority or Reasonable Excuse Protection of Persons in Authority (1) Physical Discipline of Children (2) Physical Discipline on Board Ship (3) Surgery Necessity (Including Impossibility) (1) Perka (2) Morgentaler (3) Latimer (4) Other Necessity Claims (5) Separate Defence of Impossibility? (6) Residual Defence of Necessity? (7) A More Generous Defence of Necessity Partial Defences to Murder (1) Provocation (a) Only to murder (b) Provocation and voluntariness (c) Anger alone not sufficient (d) Wrongful act or insult (e) Sufficient to deprive an ordinary person of selfcontrol

7 xvii (f) Accused must have acted in response to provocation (g) On the sudden before there was time for his passion to cool (h) Air of reality and proof (i) Murder with extenuating circumstances? (2) Voluntary Intoxication (3) Diminished Responsibility (4) Excessive Force (5) Cumulative Effect on Intent ( Rolled up Charge) (6) Infanticide Defence of Prank Obedience to Orders Chapter 8 OTHER DEFENCES A. Consent Juristic Nature Subjectively Determined Express or Implied Informed Codifying No Means No Philosophy for Sexual Assault Not to Death Not Excluded by the Nature of the Offence Freely Given Vitiated by Fraud Vitiated by Policy Considerations Concluding Comment B. Entrapment Generally Defence in United States Stay as Abuse of Process Substantive Requirements Matter for Trial Judge Burden and Standard of Proof Mitigating Sentence Should There Be Defences of Entrapment? C. Dispensing Powers Generally Discharges De Minimis Non Curat Lex Chapter 9 PARTIES TO AN OFFENCE A. History B. Principals C. Aiders and Abettors

8 xviii 1. Actus Reus Mens Rea Special Rules D. Counsellors and Procurers E. Doctrine of Common Intent Common Intent Carrying Out Common Purpose Ought to Have Known About Probable Commission of Offence Party Commits Offence in Carrying Out Common Purpose F. Reforming Law of Complicity G. Accessories After the Fact Present Law Reform Considerations H. Vicarious Responsibility Chapter 10 INCOMPLETE CRIMES: ATTEMPTS, CONSPIRACY AND COUNSELLING A. Attempts Rationale Mens Rea Actus Reus (1) Existing Tests (2) A Time for Re-appraisal Should the Law of Attempts be Abandoned? Voluntary Desistance Impossible Attempts Attempting Any Offence Penalty B. Conspiracy Common Law History Legislative Background Abolishing Common Law Conspiracies General Doctrine (1) Agreement for Common Purpose (2) Between Two or More Persons (a) Spouses (b) One person companies (c) Agents provocateurs (3) Purpose Prohibited by Statute (a) Conspiracy to commit indictable offence (section 465(1)) (b) Conspiracy to commit summary conviction offence (section 465(1)(d)) Need to Further Restrict Conspiracy Voluntary Desistance

9 xix 7. Impossible Conspiracies Merger Specialized Conspiracies C. Counselling Present Law Comment D. Combining Incomplete Crimes Chapter 11 GROUP RESPONSIBILITY: CORPORATIONS, CRIMINAL ORGANIZATIONS AND TERRORIST GROUPS A. Corporations Common Law United Kingdom United States Applying General Principles to Corporations Reform Options (1) Change Focus to Corporate Culture (2) Special Standards for Directors New Criminal Code Provisions for Organizations (2003) B. Criminal Organizations (Anti-gang Laws) Biker Violence Participation in Criminal Organization (Gangsterism) (1997) Fiasco of Manitoba Warriors Trial Widening Gangsterism Laws (2001) C. Terrorist Groups /11 Attacks Definition of Terrorism Broad New Offences Three Year Review Appendix A Draft General Part Table of Cases Index