LECTURES 7 + 8 + 9

Impossible Attempts

(1) A thinks he is poisoning B, but it's only sugar (2) A bombs B's house, when B has gone away on vacation s.24(1) includes phrase "whether or not it was possible under the circumstances..." dates back to 1864 case in which accused pickpocket was acquitted because pocket was empty Issue: do we punish intent alone, when accompanied by futile or mistaken acts? Policy: want to prevent any further attempts argued by some that it is common sense to impose criminal liability on person who has criminal intent and carries out actions to effect his purpose even where commission of the offence is factually or legally impossible

Question of Law

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. Actus reus is the first step: preparing Mens reus: specific offence to commit crime Trying to commit crime even if it wasn't possible

SECTION 265(3)

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority

Lévis (City) v. Tetreault (2006, SCC, p. 769/748)

Accepts the reasoning of Lamer J. in Jorgenson: officially induced error is a defence wherever the offence requires proof of fault; a stay of proceedings is the appropriate remedy, not an acquittal

R. v. Ancio (1984, SCC)

Accused was married to the victim for 25 years Wife left their home, drinking excessively, phoned wife and said that son was going to commit suicide, asked her to meet him, but she refused, accused broke into friends house and had taken 3 shotguns Went to where the wife was, saw him going upstairs, threw chair and jacket and the gun had gone off Convicted of an attempted murder under section 213d (now 230d) Can there be an attempt to commit an unintentional act? No There must be an attempt to commit the desired offence

R. v. Ewanchuk (1999, SCC)

Actus reus of sexual assault consists of 3 elements: 1 touching (objective test: did ∆ in fact touch C?) Crown only has to prove act was voluntary 2 sexual nature of contact (objective test: would a reasonable person see sexual nature?) 3 absence of consent (subjective test: focus is on actual state of mind of C, not ∆); Mens rea: Crown only has to prove an intention to touch Honest but mistaken belief in consent is a C/L defence Therefore, mens rea has 2 elements: intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent "The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon and it is not necessary for ∆ to testify in order to raise the issue. Support for the defence may stem from any of the evidence before the court, including the Crown's case-in-chief and the testimony of C. However, as a practical matter, this defence will usually arise in the evidence called by the accused." In order for the defence to apply, evidence must show that ∆ believed that C communicated consent to engage in the sexual activity in question. "A belief by ∆ that C, in her own mind wanted him to touch her but did not express that desire, is not a defence. ∆'s speculation as to what was going on in C's mind provides no defence." For the purposes of the mens rea analysis, the question is whether ∆ believed that he had obtained consent. What matters is whether ∆ believed that C effectively said "yes" through her words and/or actions The defence is limited, both by C/L and by statute: see s.273.1, 273.2 S.273.2 changes the Pappajohn test: now ∆'s belief must not only be honest, it must be reasonable ∆ cannot rely on mistake if he knows that C has revoked her consent

The law reflected the 5 "myths" about rape (Rioux and Kinnon):

1 Frequency of rape: myth is that it is relatively rare doesn't happen to "good girls" attack is avoidable - avoid certain situations 2 Situation of rape: seen as separate or deviant type of behaviour not on the spectrum of normal sexual relations rapist is sick, deviant (classic movie view) 3 Victim of rape: women who fall into different categories or more blameworthy white, middle-class, married or virgin = more innocent victim minority group, single, career-minded = "loose", "asked for it" also look at behaviour: eg, hitchhiker is asking for it 4 Nature of act of rape: seen as an act of sexual passion, rather than aggression 5 Reaction of victim of rape: "she enjoyed it" relates to notion that rape is a sexual act

4 elements of RAPE: s.143

1 vaginal penetration... (the victim had to be female) 2 by the penis (the accused had to be male) 3 the victim could not be the wife of the accused 4 lack of consent, or at least perceived lack of consent (honest mistake is a defence: Pappajohn) subjective belief in consent is a defence

R. v. J.L.A.P. (1994, Man. Q.B., per Beard J.)

Spanked stepdaughter Sexual assault

R. v. Gordon, (2009, OCA)

If ∆ attempts to kill "X", but shoots and injures "Y", ∆ is not guilty of attempted murder of Y

R. v. Glen Crangle (2010, Ont. CA, p. 684/669)

Identical twin case: ∆ did not take reasonable steps

Officially Induced Error First Canadian case was R. v. MacLean (1974, N.S. Co. Ct.)

In MacLean, Justice O'Hearn was sympathetic to an accused who had been prohibited from driving after refusing a breathalyzer. MacLean worked at the Halifax airport. He made conscientious efforts to find out if he could drive on airport property without a licence. He obtained permission from the Registrar of Motor Vehicles. O'Hearn relied on U.S. cases to support this new defence of officially induced error In 1978, in R. v. Potter (PEISC), McQuaid J. praised the decision in MacLean but felt that he could not follow it. (∆ had imported a gambling device, which he thought was legal because he got the OK from customs officials.) McQuaid gave an absolute discharge instead

Rape and Sexual Offences

Mistake of fact in the sexual assault context Look first at the common law situation

R. v. Edgar (2016, OCA) ∆ convicted of sexual assault, appeals

Nov. 8, 2011, ∆ accosted a stranger outside her apartment door; he forced his way in to her apartment by using a chokehold around her neck He ordered her, "Don't f'n scream, open your door, I need to use your phone." Inside, he let go of her and locked the door, told her about how he was being chased by police, complained of being mistreated by others. • Acted erratically; made several phone calls; while on the phone he paced between V and the door. V thought ∆ was high on drugs ∆ gave permission to V to go out to the balcony to drink tea and smoke While V was drinking her second cup of tea, ∆ came to the balcony door and said, "Before I go, we have to have an agreement, but first I need you to come in and watch me masturbate." V complied, came in and sat on the couch near ∆ while he masturbated by putting his hand down his pants. ∆ did not expose his penis and did not touch V. After a few minutes, ∆ asked V when her husband was going to be home. She said soon. At this point ∆ had been in the apartment for about an hour. V was afraid that she would be raped or killed. She ran to the balcony and jumped over the railing, falling 12 feet and breaking both ankles. She tried to run away. Issue: Does ∆'s act of masturbation, which he forced V to watch in close proximity, amount to a threat of sexual assault? Held: Yes; guilty (conviction upheld)

R.v Dickie (1982) Ont C.A

Question of whether act amounts to more preparation or to an attempt is a question of law for the judge, question of intention is a question of the fact for the jury

RAPE AND SEXUAL OFFENCES Until January 4, 1983, the offence was rape

Rape historically was an offence against the property of a man, not an offence against the woman per se rape was a sexual offence, i.e. the essence of the offence was intercourse, not violence

R. v. Hess; R. v. Nguyen (1990, SCC, p. 726/700)

· Issue was constitutionality of "statutory rape" section re sex with someone under 14 · Pursuant to Criminal Code provisions, mistake re V's age, even if honest, was not a defence ·SCC: (5:2, Wilson: McLachlin): unconstitutional; therefore should be at least a due diligence defence

R. v. Bruce (1994, BCSC, per Wilkinson J.; not in text)

∆ acquitted of assault; Crown appeals Crazy couple fighting Issue: Can ∆ rely on the defence of implied consent? i.e., Is domestic assault another category where public policy requires recognition of implied consent, or is it simply a subcategory of "fist-fights" or "bar brawls"? Held: we don't recognize consent here: domestic assault is not a separate category

R. v. McLeod (1954, BCCA, mentioned p. 739/713)

∆ acquitted of assaulting a police officer; Crown appeals Facts: ∆ 17 years old · fight between ∆ and somebody else · Cst. Secord of RCMP arrived on scene, in plain clothes, tried to break up the fight · ∆ didn't know he was a police officer; tried to pull officer off, told him to mind his own business · officer resisted; ∆ punched him in the nose Issue: In order to be convicted, does ∆ have to know the status of the victim? Held: Yes: acquittal upheld Ratio: what makes this type of assault more aggravating than a regular assault are the facts that (1) V is a police officer (2) in the execution of his duty · Crown must prove that ∆ was aware of this aggravating fact · the mistaken belief must be both honest (i.e., genuine) and reasonable · if these criteria are met, then the defence of mistake can be relied on · differs from British cases, where absolute liability re the status of the victim · [note: mistake can be combined with self-defence: ∆ thought that he was defending himself against V, which was not true] ·[Note: followed in R. v. Collins (1989, Ont. CA): for first degree murder re killing of police officer or jail guard, must know that victim is a police officer]

R. v. Jobidon (1991, SCC; p. 214/205)

∆ acquitted of manslaughter; Crown successfully appealed to Ont. C.A.; ∆ appeals conviction Issue: Was there consent to the punches that killed Haggart? Held: No: conviction upheld Ratio: Court of Appeal (1988): Haggart could not consent while unconscious · SCC: Following British cases, the court recognizes "social uselessness" of fistfights · p. 223/214 (per Gonthier J.):

R. v. Metro News Ltd. (1986, Ont. CA)

∆ convicted by a jury of distributing an obscene publication (December 1984 edition of Penthouse); appeals to Ont. C.A. Issues: (1) Is s. 159(6) unconstitutional, in that it creates an absolute liability offence? (2) Is mistake of fact a defence? (3) Is due diligence a defence? Held: (1) Yes, unconstitutional; (2) No; (3) Yes · Bottom line: mistake of fact must be both honest and reasonable · this is true in any case where proof of actus reus "imports the offence", or is prima facie proof of the mens rea · examples: distributing obscene materials; assaulting a peace officer ·∆ does not have to prove mistake; must only raise a reasonable doubt

Mistake of Fact

eg. Beaver, where ∆ thought he was selling milk sugar but it was really heroin ·what if he thought it was heroin, but thought heroin was legal?

WHERE BELIEF IN CONSENT NOT A DEFENCE

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject matter of the charge, where (a) the accused's belief arose from the accused's (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Colour of Right ("An honestly held belief in entitlement to property")

322(1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it... 429.(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

CONSENT

Consent is conceptually different from justifications or excuses: Necessity, self defence, etc.: for policy reasons we excuse otherwise unlawful conduct Consent: the conduct was lawful all along

R. v. Kundeus (1976, SCC, per Laskin and de Grandpre, p. 741/714)

Crown appeal from BCCA, overturning ∆'s conviction for trafficking in LSD Facts: ∆ was at table in beer parlour calling out "speed, acid, MDA or hash" to passersby · undercover cop asked for hash or acid; ∆ said he was all sold out · ∆ offered to sell mescaline at $2 per hit; cop bought 2 hits · ∆ went away, came back, gave cop 2 capsules which contained LSD · ∆ intended to sell and thought he was selling mescaline; cop thought he was buying mesc. Issue: Did ∆ have the mens rea for trafficking in LSD? i.e., is mistake of fact shown on proof that, on the proof of the facts as the accused honestly believed them to be, he was innocent of the offence charged, albeit guilty of another offence, or must he show that he was innocent of any offence? Held: Yes (must show innocent of any offence) - convivtion restored (7:2) Ratio: (1) De Grandpré J. (majority) · distiguishes Beaver, where ∆ sold heroin but thought that he was selling milk sugar · in Beaver, ∆'s intention was innocent · here, ∆ still thought that he was selling a narcotic · did not have an honest belief amounting to non-existence of mens rea · transferred intent · *look also at Ladue (1965 YTCA), where ∆ interfered with dead body · Court there said, "An intention to commit a crime, although not the precise crime charged, will provide the necessary mens rea..." ·*look also at Droste (1982, Ont. C.A.), where ∆ meant to kill wife but killed children instead (below)

R. v. Antonio Alicandro (2009, OCA)

Deals with s. 172.1(1)(c), child luring ∆'s defence was that the person he was sending a video of himself to was not in fact under 14 Thinks is a child, but really an undercover cop Defence of factual impossibility, can't be guilty Court of appeal rejects this What the intention is Words of the judge: Focus in attempt is on intent The offences created by s. 172.1, like the inchoate crimes of conspiracy, attempt and counselling, are prophylactic in that they seek to prevent the commission of the designated crimes by criminalizing conduct that occurs on the way toward the commission of the designated crimes. Also like the inchoate offences, justification for criminalizing the conduct described in s. 172.1 is found in the required mens rea. It is the intention to facilitate the commission of one or more of the designated offences that makes the accused's otherwise lawful conduct, sufficiently harmful and potentially dangerous to warrant the imposition of criminal sanction. The intent to commit the desired offence is a basic element of the offence of attempt. Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent. Emphasis added

R.v Cline (1956) Ont.C.A

Indecent assault Doesn't involve rape Chased down the street, for holding suitcases Grabbed him second time Young boys who faced similar circumstances There can be no general test to distinguish attempt from preparation, but guidelines are as follows: (1) there must be both mens rea and actus reus to constitute a criminal attempt, but the criminality of misconduct lay mainly in the intention of the accused; (2) evidence of similar acts done by ∆ before the offence, and afterwards, if not too remote in time, was admissible to establish a pattern of conduct from which the Court might properly find mens rea (3) such evidence might be advanced in the case for the prosecution (4) it was not essential that the actus reus be a crime or a tort or even a moral wrong or social mischief (5) the actus reus must be more than mere preparation to commit a crime (6) when the preparation was fully complete and ended, the next step done by ∆ for the purpose and with the intention of committing a specific crime constituted an actus reus sufficient in law to establish a criminal attempt to commit that crime.

R. v. Prue; R. v. Baril (1979, SCC, p. 756/730)

-follows Beaver and Sault Ste. Marie: must be knowledge for guilt -the fact that one is suspended is a question of fact, not law; lack of knowledge that one is suspended following an Impaired/Over 80 conviction amounts to mistake of fact

Mistake of law

19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

R. v. Cancoil Thermal Corporation and Parkinson (1986, Ont. C.A., Lacourciere)

Appeal by Crown from ∆'s acquittal Facts: ∆ charged with offence under Occupational Health and Safety Act · operated dangerous machinery without a guard; thought that the guard created more of a hazard · an employee accidentally cut off the tips of 6 fingers · before operating the machinery, pointed the problem out to an inspector; · inspector indicated that it was safe to remove the guard Point: defence of officially induced error of law exists where (1) ∆ adverts to possibility of illegality (2) ∆ gets advice from official who is responsible for the administration or enforcement of the law, who says ∆ is not acting illegally (3) ∆ acts in reliance on this advice (4) the reliance was reasonable, which depends on following factors: (a) efforts made to ascertain the proper law; (b) complexity or obscurity of the law; (c) position of the official who gave the advice; (d) clarity, definitiveness and reasonableness of advice given In other words, ∆ must show due diligence Applied only to regulatory offences

R. v. Colburne (1991, Qué. C.A.)

Appeal by Crown from ∆'s acquittal on robbery charge Showed up to a restaurant 10 mins before they were closing Someone noticed that they had a gun Was there enough evidence to prove intent to rob? No, acquitted if there is extrinsic evidence (eg., statements etc.) which prove intent, then equivocal acts sufficiently proximate may constitute the attempt if there is no extrinsic evidence, then equivocal acts cannot be relied on to prove intent

Laybourn, Bulmer and Illingworth v. The Queen (1987, SCC, McIntyre J., p. 628/613)

Appeal by ∆ from BCCA, which affirmed convictions on 2 x rape and 1 x indecent assault Facts: C was a prostitute · the 3 ∆s were at Bulmer's hotel room · Laybourn went out to the street and picked up C after discussing prices with her · she agreed to provide services for $80 · at the hotel room, C objected to the presence of the other 2 · Illingworth talked to C, and was told to come back 20 minutes later · Bulmer and Illingworth left, came back a few minutes later · Bulmer told C that she was not worth $80, and that she would have to perform without payment · out of fear, C performed various sexual acts with the 3 ∆s Issue: Must there be some objective evidence from which the inference could be drawn that the complainant might be consenting? In other words, must there be reasonable grounds for the belief? Held: No. However (6:1, Lamer dissenting), there must be "some other evidence or circumstances" in addition to the testimony of ∆ that would support honest belief in consent Ratio: As long as there is an air of reality to the mistaken belief, the defence ought to be put to the jury. It is up to the jury to decide whether the mistaken belief is honestly held. · new trial ordered ·(consent was revoked after more than one person became involved, but might be grounds for honest belief in consent)

R. v. Deutsch (1986, SCC)

Appeal by ∆ from Ont.C.A., reversing his acquittal on charge of attempting to procure females for illicit intercourse with other persons, s.195(1)(a) [now s.212(1)(a)] & s.24 Put ad in newspapers for sales assistant (undercover cop) Sometimes required to close deal with it Never actually hired anyone Nature/quality of act -> compare with completed offence Taking into account relative proximity of act to complete offence in terms of -> time, location, acts remaining to be accomplished by accused Issue: (1) was the sexual intercourse proposed "illicit"? (2) do the actions of ∆ constitute an attempt to procure, or just preparation? Yes -> convicted distinction between preparation and attempt is qualitative must compare: (a) nature and quality of act in question with nature and quality of complete offence (b) taking into account relative proximity of act to completed offence in terms of: time, location, acts remaining to be accomplished by accused here, procure means "induce or attempt to have a persuasive effect upon the woman in question to have illicit sexual intercourse the complete offence occurs when intercourse takes place the holding out of a large financial reward is a step, and an important step, in the commission of the offence such inducement or persuasion is the decisive act in procuring because trial judge made no finding re intent, new trial is ordered

LEGAL IMPOSSIBILITY Haughton (R.) v. Smith (1973, HL)

Appeal from conviction for attempted handling of stolen goods Facts: Sept. 18, 1971, burglary at warehouse in Liverpool many cartons of corned beef taken Sept 28, 2 police officers saw van obviously overloaded stopped van; driver was Dixon, passenger was Nicholson van was filled with stolen corned beef police decided to let D and N carry on and see who else was involved 2 officers in van, followed by police car 7 pm arrived at Scratchwood Service Area ∆ and others were waiting to transfer goods to another vehicle ∆ was clearly the leader the items were no longer "stolen goods", pursuant to s.24(3) of the Theft Act Issue: is there an attempt to deal with stolen goods when it is legally impossible? Held: no - conviction quashed Ratio: this is a case where ∆ has meticulously planned, and is acting under the impression that he is committing a criminal offence however, he has not committed a criminal offence because in law it was not a crime • therefore charged with attempt

R. v. Campbell and Mlynarchuk (1972, Alta. Dist. Ct., Kerans DCJ, p. 742/724)

Appeal from conviction for taking part in an immoral performance Facts: ∆ is a go-go dancer, "which, I understand, is a violent movement of almost all parts of the body, more or less in time to strongly rhythmic music" · at the start of performance, she was wearing some clothes; at the end she wasn't · she had been told by Pierre Couchard, her employer, that he had spoken to a Supreme Court Judge who had told him that they could go ahead with bottomless dancing · The Alta. C.A. had recently ruled in R. v. Johnson (No. 1) that bottomless dancing falls w/in s. 163(2), and this decision was being appealed to the Supreme Court of Canada · -note: SCC overturned Alta. C.A. decision in Johnson (No. 1): 13 C.C.C. (2d) 402 (1973) Issue: is mistake of law available as a defence? Held: no - absolute discharge Ratio: in some cases a mistake of law is a defence because it negates a specific intent · this is a general intent offence · in cases where an accused has an honest but mistaken belief in the state of the law, sympathy for the accused is expressed not by acquitting but by granting a lesser sentence ·there is a policy behind s. 19: it exists not because it is fair, but because it is necessary

FACTUAL IMPOSSIBILITY R. v. Scott (1963, Alta. C.A.)

Appeal from conviction on charge of attempted theft under $50 Felt something in his pocket, was a hand, pickpocketer Had intent to steal Is there intent to steal even though the theft was factually impossible? Yes, convicted Johnson j. (dissent) it used to be possible to draw the inference that cash is what pickpockets were after now, people carry credit cards and other documents Information states "cash valued at less than $50" if Information said only "attempt theft", then there would be conviction however, info is particularized and Crown is bound by it

R. v. Ewanchuk (1999, SCC, p. 666/651) Already discussed, but mentioned here for comments on mistaken belief (p. 674/659):

Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to "test the waters". Continuing sexual contact after someone has said "No" is, at minimum, reckless conduct which is not excusable. (Note: see facts of case at pp. 670-672/652-654, to put this in context.)

R. v. Dorosh (2003, SASK. C.A., p. 763/737)

Facts: was convicted of Theft Under $5000 for stealing a trailer belonging to Randy Zayshley; summary conviction appeal dismissed; appeals to CA · ∆ bought a 1988 Dodge Van with carpet cleaning unit from RZ, as is, no warranty · There was no purchase price stated; instead it was a trade · ∆ paid RZ with a cargo trailer, a roto tiller and a power plant, plus $1200 cash and $1300 to be paid in 30 days · ∆ did not pay the $1300 in 30 days · ∆ determined that the cleaning unit was not operational, although RZ claimed it was fine when he sold it · The unit needed several thousand dollars in repaiurs · ∆ could not reach RZ, so he contacted a lawyer · The lawyer did a search and found that RZ had several writs of exectution against him · In fact it was RZ's son, with the same name, who had the writs · ∆ concluded that there were liens against the van; also he felt that RZ had not shown him how to use the cleaning unit, as promised; also the unit was a lemon · ∆ went to RZ's home to get his trailer back. RZ wasn't home. ∆ took his trailer · ∆ then sold his trailer to Donald Heisler · Police arranged for the trailer to be returned to RZ, and charged ∆ with theft · Trial Judge concluded that ∆ did not have a colour of right because he was mistaken about the "civil law", not about a fact Issue: Did the trial judge err in his decision that ∆ did not have a colour of right? Decision: Trial judge erred, new trial ordered

R. v. Aryeh (1972, Ont. CA)

Facts: ∆ brought jewelry into Canada in his wife's name · ∆ thought he had the right to do so, and not pay duty · ∆ had an innocent state of mind Held: majority: ignorance of the law is not a defence, even where ∆ makes an honest mistake · minority (Brooke J.A.): ∆ had no blameworthy state of mind, therefore no mens rea, therefore not guilty · *is there a moral difference between mistake of law and mistake of fact?

R. v. Drainville (1991, Ont. Prov. Ct., p. 758/741)

Facts: ∆ is a priest and an elected member of the provincial Legislature; involved in civil disobedience when he, along with other protesters, blocked a roadway for an hour Applies Howson: "colour of right" refers to an honest but mistakem belief in a legal right to do something Here, ∆ felt that he had a moral right to block the road; this does not amount to colour of right, and is not a defence

R. v. Jorgensen (1995, SCC, p. 502/492)

Facts: ∆ owns and operates a store in Scarborough called "Adults Only Video and Magazine" · undercover Metro Toronto cops bought 8 videotapes from ∆'s store · the tapes had been approved by the OFRB · the cops concluded that the tapes were obscene, even though the censor board had passed them · Movies: "Oriental Taboo", "D-Cup Delights", "La Bimbo", "The Honeymooners", "Lawyers in Heat", "Kinky Sluts", "Secret Action Man", "Suzy Superstar III" · Robert Payne, chair of OFRB, testified as expert witness for defence at trial; felt that the movies were not obscene · Trial Judge found that films were degrading and dehumanizing and were obscene Issue: (1) Did ∆ knowingly sell obscene matter, pursuant to s.163(2)(a)? (2) Is there a defence of officially induced error due to ∆'s reliance on OFRB approval? Held: (1) No (9:0); he didn't know what was in the movies (2) Yes (per Lamer CJC alone; other judges had no comment) Ratio: (per Lamer CJC): officially induced error of the law should exist as an excuse for criminal behaviour Requirements for the defence/excuse to succeed: 1. The error must be an error of law 2. ∆ considered the legal consequences of his actions, i.e., (a) ∆ considered that conduct may be illegal, and (b) ∆ sought advice 3. ∆ obtained advice from an appropriate official; examples include govt. officials involved in the administration of the law; The official must be one whom a reasonable person in the position of the accused would normally consider responsible for advice about the particular law in question 4. advice was reasonable in the circumstances (a very low threshold: the advice will be presumed to be reasonable if it comes from an appropriate person unless it appears on its face to be utterly unreasonable) 5. The advice must have been erroneous 6. ∆ relied on the erroneous advice

Inchoate Crimes

Incomplete crimes

RAPE SHIELD R. v. Seaboyer; R. v. Gayme (1991, SCC, p. 638/623)

Issue was constitutionality of the rape shield provisions, enacted in 1983 Seaboyer: had been drinking in a bar with C; he says they had consensual sex; she says it wasn't consensual, and has marks and bruises to prove it; he says these were caused in previous sexual acts with somebody else, and wanted to call evidence of these other incidents Gayme: was 18 yrs old, C was 15; they were friends; alleged that Gayme sexually assaulted C at school; ∆ says C was the sexual aggressor, and wanted to call evidence showing that she was sexually aggressive Judge comes up with new rules (see p. 650-651/632-633) Trial judge has 2 duties: (1) assess whether weight/probative value of proffered evidence outweighs damage and prejudice to C; does the evidence logically support a legitimate defence? Defence should not be allowed on a fishing expedition; (2) where such evidence is permitted, take very special care in instructing the jury as to the use to be made of the evidence

R. v. Esop (1836, p. 750/724)

It is not a defence to say, "What I did may be illegal here, but it is not illegal in the country where I come from and I had no idea that it was illegal."

R. v. Leclerc (1991, Ont. C.A., not in text) ∆ acquitted of aggravated assault; Crown appeals Facts:

Steven Leclerc and James Conboy played on opposite teams in an industrial league semifinal hockey game ∆ played forward for the Calabogie team, and Conboy played left defence for Joe's Lake under C.A.H.A. rules, no bodily contact is allowed; however, evidence was that "in practice all players expected and accepted the risks of contact inherent in the spirited play this level of hockey traditionally produced" puck went behind Joe's Lake's net; Conboy went after the puck, and ∆ followed after Conboy ∆ was skating at a high rate of speed towards the puck; he and Conboy got there at the same time ∆ lost his balance slightly, and was going to collide violently with Conboy ∆ pushed Conboy in the back in order to avoid colliding; his action was an "instinctive reflex reaction" Conboy went face first into the boards; he remained conscious, but his neck had been broken and he was paralyzed from the neck down Issue: was there consent to the push into the boards? Held: yes Ratio: (pre-Jobidon) Follows civil case, Agar v. Canning(1965, Man. Q.B.): "The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse. But a little reflection will establish that some limit must be placed on a player's immunity from liability. Each case must be decided on its own facts so it is difficult, if not impossible, to decide how the line is to be drawn in every circumstance. But injuries inflicted in circumstances which show a definite resolve to cause serious injury to another, even where there is provocation and in the heat of the game, should not fall within the scope of the implied consent." The question becomes whether the act of ∆ was so inherently dangerous as to be excluded from implied consent

O. W. Holmes, The Common Law (p. 748/722)

The policy reason behind the rule is stated as follows: Public policy sacrifices the individual to the general good... It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales.

R. v. Cornejo (2003, Ont. C.A., p. 684/666, at p. 681/666): re "reasonable steps"

These were circumstances crying out for reasonable steps to ascertain consent. The complainant's prior rejections of his sexual advances, his apology to her in the past for his inappropriate sexual advances, her request to him that he hang up during the first two telephone calls so she could speak to her boyfriend, her ambiguous response to his third phone call, her failure to answer the door, his entering the apartment without permission and finding the complainant sleeping and shocked by his presence, all required that he take reasonable steps to clarify whether she was consenting to sexual activity. She never touched him, her eyes were closed, he knew she had been drinking that day, and every rejection by her that evening, even according to his own evidence, resulted in more aggressive sexual conduct on his part.

R. v. Mugenzi (1995, Ont. Ct., Prov. Div.,)

Trial on 2 x s.266 Facts: ∆ described himself as a spiritualist · ∆ concluded that his girlfriend's 2 children suffered difficulties due to supernatural intervention · with the mother's help, ∆ cut both children several times with a razor blade · children's mother was supportive of ∆ throughout the procedure and approved of it Issue: Did mother's consent constitute a defence? Held: No: convicted Ratio: Jobidon: ∆ caused bodily harm, and nobody could consent to the bodily harm, let alone vulnerable young children

R. v. Maki (1970, Ont. Prov. Ct., Carter Prov. Ct. J.; not in text)

Trial on charge of ABH Hockey game between St. Louis Blues and Boston Bruins at Ottawa on Sept. 21, 1969 \ 11 min. mark of 1st period: St. Louis shot puck into Boston zone, behind net ∆ and Green followed puck, collided Green pushed or punched ∆ in the face [Green was acquitted of assault on the basis of self-defence] referee called penalty, play continued ∆ was a little dazed players went at each other again, sticks swinging; Green swung first, hitting ∆ on neck Green raised stick, ∆ hit him in head with stick Green did not testify, did not want to prosecute Issue: Is there a defence of consent here? Held: No, but acquitted on ground of self-defence. Ratio: all players in sports assume certain risks; usually defence of consent would be available no athlete should be presumed to accept malicious, unprovoked or overly violent attack

R. v. Darrach (2000, SCC, p. 658/643)

Upholds constitutionality of s. 276, although there still is a live issue re constitutionality of the provisions when it comes to C's prior sexual activity with ∆

U.S. v. Dynar (1997, SCC) Defines legal impossibility

in both cases (legal and factual impossibility), ∆ intended to commit a crime ∆ was thwarted by some fact, or attendant circumstance Examples: 1. "inadequate means": ∆ tries to shoot V, but gun doesn't fire far enough 2. ∆ is prevented from committing the offence because some element of the actus reus cannot be brought within the criminal design; for example, ∆ shoots V, who is already dead; ∆ tries to steal from a safe that is empty 3. ∆ completes the intended offence, but there is no offence because some element of actus reus is missing; e.g., ∆ takes possession of property that is not in fact stolen; ∆ smuggles sugar, thinking it is heroin. The above are all really the same thing. Legal impossibility refers to situation where the crime is imaginary: there is no mens rea known to law. For example, ∆ thinks sugar is illegal, and smuggles it into Canada. Has mens rea for smuggling banned substances, but this mens rea is not known to our criminal law.

2. Part V, Sexual Offences, Public Morals and Disorderly Conduct

s. 151: Sexual Interference (V under 16) s. 152: Sexual invitation (V under 16) s. 153: Sexual exploitation (V 16-17) s. 153.1: Sexual exploitation of person with disability s. 150.1: where consent is not a defence s. 155: Incest s. 159: Anal intercourse (Note: in R. v. M. (C.) (1995, OCA) and R. v. Roy (1998, Qué. C.A.), it was held that the section is unconstitutional in that it discriminates on the basis of age (OCA), as well as sexual orientation and marital status (QCA)) s. 160: Bestiality s. 162: Voyeurism s. 170: parent or guardian procuring sexual activity (V under 18) s. 171: Householder permitting sexual activity (V under 18) s. 172: Corrupting children (V under 18) s. 172.1: Luring a child s. 173: Indecent acts s. 174: Nudity

Current sexual offences: 1. Part VIII, Offences Against the Person and Reputation

s. 265: Definition of Assault s. 271: sexual assault; ss. 272, 273 s. 265(3): "consent"; s. 265(4): ∆'s belief in consent s. 273.1: "consent"; s. 273.2: where belief in consent is not a defence s. 274: corroboration not required s. 275: recent complaint (Crown can call evidence of recent complaint to buttress V's credibility) s. 276-276.5: "rape shield law" s. 277: sexual reputation evidence is inadmissible s. 278: spouse may be charged s. 278.1-278.91: 3rd party records application

R. v. Davis (1999, SCC, p. 633/618)

· applies only in cases where the actus reus is proven (sexual touching, etc. - see Ewanchuk) but mens rea is the issue · "Before the defence can be considered, there must be sufficient evidence for a reasonable trier of fact to conclude that (1) the complainant did not consent to the sexual touching, and (2) the accused nevertheless honestly but mistakenly believed that the complainant consented. · i.e., it must be possible for a reasonable trier of fact to conclude that the actus reus is made out but the mens rea is not · where this is the case, there is an "air of reality" to the defence · In considering whether there is an air of reality, the trial judge must consider all of the evidence. The TJ does not weigh the evidence and does not consider the merits of the defence, as this would be usurping the role of the trier of fact. · The accused's mere assertion does not give the defence an air of reality; there must be something in the totality of the evidence that lends an air of reality. ·The evidence that gives an air of reality may come only from the accused; ∆ must give evidence that explains why he thought C consented.

R. v. LaCasse (1994, NSSC)

· ∆ put arms around C, touched her buttocks, kissed her on the neck, rested his face in the area of her breasts; he says it was just a sexual advance, and that he stopped as soon as she protested · still a sexual assault: "The accused had no reason to think or believe that his physical contact, as a form of sexual advance, no matter how slight, was wanted or would be favourably received." ·There were sufficient sexual overtones to make this a sexual assault

R. v. Paice (2005, SCC)

∆ acquitted of manslaughter; Crown successfully appealed to Sask. CA; ∆ appeals Facts: consensual fist fight at a bar in Moose Jaw in which Clinton Bauck died; the fight started as a dispute over a game of pool, between a friend of ∆'s and a friend of Bauck's § Bauck approached ∆ and asked if he wanted to step outside; ∆ agreed § Outside, Bauck pushed ∆; ∆ elbowed Bauck in the jaw, causing him to land backwards on the pavement § Bauck did not cushion his fall, and his head bounced § ∆ then straddled Bauck and hit him a couple more times Decision: the Crown must prove 2 things in order to prove no consent: (1) intentional application of force, and (2) intention to cause non-trivial bodily harm (see para. 14); otherwise it would lead to an absurdity

R. v. Litchfield (1993, SCC)

∆ acquitted on 14 counts sexual assault; Crown lost appeal to Alta. C.A.; appeals to SCC ∆ was family physician in Edmonton; C's were 7 patients each C consented to being touched in intimate areas of her body, but that consent was predicated on the touching being carried out for valid medical purposes (e.g., breast examinations, internal examinations); ∆ also saw patients alone, and watched them dress and undress; he spent undue amounts of time with them trial judge ordered separate trials on breast examinations and vaginal examinations (therefore C's had to each go through 2 trials) Sexual assault -> actus reus, assessed on objective reus The sexual aspect of a sexual assault forms part of the actus reus; there is no requirement that a person accused of sexual assault have any mens rea with respect to the sexual nature of a sexual assault.... The test to be applied in determining whether an accused's conduct had the requisite nature to constitute a sexual assault is therefore an objective one.

Sansregret v. R. (1985, SCC, p. 611/596)

∆ acquitted on charge of rape, s.143(b)(i), by Her Honour Judge Krindle; conviction entered by Man. C.A.; ∆ appeals Facts: ∆ charged under s.143(b)(i), which defined rape as sexual intercourse with a female "with her consent if the consent is extorted by threats or fear of bodily harm." · Trial Judge: there was no real consent · however, trial Judge believes that ∆ honestly believed that everything was back to normal by the time they had sex · trial Judge: while no rational, reasonable person would have believed there was consent here, people have an uncanny ability to blind themselves into believing the existence of facts as they would wish them to be Issue: Is it a defence if the belief in consent is unreasonable? Held: Yes; however, in this case no defence because ∆ was willfully blind; willful blindness imputes knowledge · trial Judge found that ∆ blinded himself to the obvious · despite what trial Judge found, ∆ clearly was aware that C had complained to the police before; therefore, there was a duty on ∆ to ascertain that she was freely consenting this time · therefore, there is a defence of mistake even if the belief is unreasonable, but not if it arises from willful blindness ·mistake also can't arise from recklessness: Pappajohn

Pappajohn v. The Queen (1980, SCC, p. 597/583)

∆ appeals rape conviction, which was affirmed in the BCCA Facts: complainant was a successful real-estate saleswoman in Vancouver · ∆ is a businessman who was selling his home; complainant was his agent · on August 4, 1976, ∆ met C in restaurant · ate and drank from 1pm to 4 or 4:30pm; lunch became quite convivial · after lunch, ∆ drove C's car to his house; C was in passenger seat C's account: · when they got to house, ∆ grabbed her and pushed her down hallway to bedroom · she resisted; he said he was going to break her · she screamed and verbally resisted while he removed her blouse · she became hysterical when she realized he was going to rape her and threw her on the bed · she told ∆ she was not on birth control, was trying to have a baby · 3 short acts of intercourse, no ejaculation · ∆ then got a bow tie, which he tied around C's mouth; also got a sash and tied her hands behind her back, then had intercourse from the rear · after about 3 hours, ∆ left the room and C escaped, running naked to a nearby house where a priest lived ∆'s account · when they got to house, he went to bathroom · then he and C went to living room and began to kiss · C took off her necklace and left car keys on a table · in bedroom, C consented to having her clothes removed; ∆ folded them at foot of bed and put blouse in closet · she consented to all acts, but freaked out when he tied and gagged her Police account · necklace and keys found in living room · blouse hanging in closet, clothes folded at foot of bed · C had been tightly tied up, was hysterical · no serious injuries to C Issue: Do the facts support a defence of honest but mistaken belief in consent? Held: No Ratio: ∆'s defence is that there was true consent

R. v. V. (K.B.) (1992, Ont. C.A.)

∆ charged with sexually assaulting 3-yr-old son; convicted; appeals (already served 9-mo. sent.) Decision: Grange (dissent): "The assault was a misguided form of discipline and a cruel, unjustified attack upon a helpless child. It was assaultive; it was contemptible; it was deserving of punishment; but it was not a sexual assault." [would convict of assault instead]

R. v. MacDonald (2014, SCC, p. 760/734)

∆ charged with unauthorized possession of a loaded restricted firearm, s. 95(1) bought in Alberta, brought it to his condo in Halifax the authorization did not extend to Halifax ∆ honestly thought that he could possess the rifle in his condo this is a mistake of law, not a defence

R. v. Welch (1995, Ont. C.A.)

∆ convicted at trial of Sexual Assault Causing Bodily Harm and Forcible Confinement; 34 months jail; appeals Compliant and accused both had different stories (3) Injuries · bruises to right breast, abdomen, left calf, right bicep and buttocks; bleeding from rectum for 3-4 days · Medical records: 2 days after incident, vagina and rectum were normal Issues: (1) Is consent a defence to a charge of Sexual Assault Causing Bodily Harm? (2) Is there room for the defence of honest but mistaken belief in consent? Held: (1) and (2): No Ratio: sadomasochistic conduct is more violent than sexual · In Jobidon, the SCC said that a victim cannot consent to the infliction of bodily harm unless ∆ is acting in the course of a generally approved social purpose · SCC mentioned specifically rough sporting activities, medical treatment, social interventions, and "daredevil activities" performed by stuntmen "in the creation of a socially liable cultural product" · Acts of sexual violence were left off this list · If Parliament wants to legislate such that people can get kinky in private, then it can do so; in the meantime, Jobidon is binding ·(2) Pappajohn

R. v. Droste (1982, Ont. C.A.)

∆ convicted of 2 counts 1st degree murder of his 2 kids on February 27, 1977 Facts: ∆ intended to kill his wife, and had told this to a friend several times · ∆ was going to saturate his car with gasoline, then leave a full can of gas in the car, then go for a drive with his wife. He was going to crash the car into a bridge, then use a metal pipe to knock his wife out, then set the car on fire · ∆ was involved in a relationship with a woman who lived down the street · on February 27th, ∆ went to the gas station and filled up a can of gas, and took other steps to prepare for the murder that was going to take place · on the 27th, ∆, his wife and their 2 kids went to a birthday party. His wife complained about the gasoline smell. The car spontaneously caught fire. ∆ reached under the seat and pulled out the metal bar, which he started to hit his wife with · the car crashed. Mrs. Droste was able to get out. She helped her husband to get out. They were unable to get the children out of the back seat Issue: Can the intention to kill the wife be transferred? Held: Yes: transferred intent · "Clearly, the moral culpability of one who intends to kill one person, preceded by planning and deliberation, but who by accident or mistake kills another person, is the same as if he had succeeded in killing his intended victim." ·What else could ∆ be charged with? [Attempt murder of wife.]

AIR OF REALITY R. v. Cinous (2002, SCC, p. 929/897)

∆ convicted of 2nd degree murder; appeal to Que. C.A. dismissed; appeals to SCC Issue: Is there an air of reality to the defence of self-defence? Decision: Important points on "air of reality" test (no air of reality here); this applies to ALL defences: 1. The air of reality test imposes an evidential burden on ∆, but not a persuasive burden 2. In applying the air of reality test, the trial Judge assumes that the accused's version is true 3. The trial judge does not decide the substantive merits of the defence, as this is a question for the jury. 4. The trial Judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw factual inferences. 5. The test is not intended to assess whether the defence would succeed. 6. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. 7. The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true Therefore there is a 2-pronged test for determining whether there is an evidentiary foundation warranting putting the defence to the jury: 1. Whether a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. 2. Whether the evidence is reasonably capable of supporting the inference required to acquit the accused. In this case there are 3 elements to the defence of self-defence under s. 34(2): [1] the accused reasonably believed that he was going to be attacked; [2] the accused reasonably believed that, if attacked, he would suffer death or GBH; [3] the accused reasonably believed that he had no alternative but to kill V There is an air of reality to the subjective and objective components of [1] and [2], and to the subjective component of [3]; however, the belief that there were no alternatives must have been reasonable, and there is no air of reality to this assertion. Therefore, there is no air of reality to the defence.

R. v. M. (S.) (1995, Ont. C.A., not in text)

∆ convicted of ABH; appeals to Ont. C.A. Facts: ∆ and complainant were both 16-year-old girls, and had both dated the same boy; they did not know each other they met in a restaurant, got into an argument, which became a fight outside the restaurant inside restaurant, C slapped ∆ across the face; waitress told the two girls to "take their problem outside" C immediately left, followed by ∆ C then turned around and hit ∆ in the head with her purse ∆ grabbed C by the hair and hit her 5-6 times with her other hand C had a 1/4" cut on nose; her nose was swollen and she had headaches for a week Issue: Does Jobidon apply, or is there consent here? Held: Consent; ∆ acquitted Ratio: Jobidon specifically limited its ruling to adults:

R. v. Hutchinson (2014, SCC, McLachlan C. J)

∆ convicted of Sexual Assault; NSCA upheld conviction in 2:1 decision; ∆ appeals to SCC Facts: C consented to sex with ∆, on condition he use a condom. ∆ poked holes in the condom and C became pregnant Issue: Has the Crown proven that there was no consent? Held: Yes

Detering v. The Queen (1982, SCC)

∆ convicted of fraud; Ont.CA overturned conviction and substituted Attempt Fraud; ∆ appeals Women gives car because she does not know what is wrong with it The mechanical knows that her transmission was tampered with and could easily be repaired He told her that it would have to be rebuilt and would cost $189 Harris let ∆ keep the car; she paid the money even though she knew the work had not been done (i.e., she was never deceived) Issues: (1) If the deception has not been achieved, can ∆ be charged with attempt (2) If ∆ goes beyond mere preparation, and actually does what he set out to do — i.e., he succeeds [attempt, by definition, requires failure] — and if what he did is not a crime, can he be guilty of attempt? Held: Yes to both

R. v. Ladue (1965, YTCA, p. 739/713)

∆ convicted of indecently interfering with dead human body; appeals Facts: ∆ either copulated or attempted to copulate with a dead woman · ∆ contends that he did not know the woman was dead; he was extremely intoxicated and thought she was unconscious · trial Judge did not allow ∆ to use this mistaken belief as a defence Issue: Does ∆'s mistaken belief constitute a defence when his state of mind was not innocent? Held: No: guilty Ratio: Even in his drunken state, ∆ must have realized that the woman was at least unconscious and incapable of giving her consent. "So if the woman was alive he was raping her. Therefore it is impossible for him to argue that, not knowing her to be dead, he was acting innocently. An intention to commit a crime, although not the precise crime charged, will provide the necessary mens rea... All that is required is mens rea in the widest sense."

R. v. Pea (2008, OCA)

∆ failed roadside breath test in Newmarket; arrested for Over 80 at station, ∆ spoke with Duty Counsel who told ∆ not to give any breath samples and "to reject the police request to do anything" ∆ refused to give a breath sample, and was charged with refusal at trial, ∆ sought a stay of proceedings based on officially induced error trial judge believed ∆, but rejected the defence

RAPE AND SEXUAL OFFENCES CONT'D R.v Chase (1987 SCC)

∆ was a neighbour of complainant, 15 yrs old ∆ came to C's house uninvited, grandfather was upstairs sleeping ∆ grabbed C around shoulders and arms and grabbed her breasts, saying "Come on dear, don't hit me, I know you want it." ∆ also tried to grab at her genitals, but did not succeed Issue: Is the assault sexual when the accused touches a secondary sexual area of the body? (What is the definition of sexual assault?) Held: Yes. (Sexual assault is an assault committed in circumstances of a sexual nature.) Ratio: Analogous to definition for indecent assault use objective test: is the sexual or carnal context of the assault visible to a reasonable observer? must look at all the circumstances, including words used, part of body touched, nature of contact, situation etc. sexual assault is an offence of general intent

R. v. Krzysztofik (1992, Man. Q.B., not in text)

∆ was playing hockey; victim hit ∆ with his elbow as he skated past; ∆ decided to teach him a lesson; he chased him with stick at chest level, and cross-checked near boards; stick went under visor; lacerations were caused to victim's chin and gums, requiring stitches ∆ guilty of assault: (1) force employed was unnecessarily violent; (2) entailed a high degree of risk of injury, and (3) it was not related to any play on hand. It fell outside the parameters of acceptable play