Crime Fall 2014 Silver

Introduction
What is a Crime?

Any act prohibited or punishable by law

Any form of human behaviour designated as a crime by lawmakers and is subject to penal sanctions

What is the Objective of Criminal Law

Public Identification of moral wrongdoings

Personal responsibility
Protection of Public
Restorative Justice to restore the victim
Underline societys fundamental values

When to use Criminal Law?

1969 Ouimet Report: instrument of last resort

o less intrusive
o not to give rise to more harm than trying to prevent

What kind of Behaviour is a Crime?

Violation of public order, morally reprehensible

Ouimet Report
substantially damaging to society
Criminal law ought to be minimalist in nature. This is known as the principle of restraint. That is, use criminal law
only where no other remedy is possible. Part of the reason for this is that it is expensive to process a criminal
conviction.

R. v. Heffer (1970) Man CA

Facts: Heffer arrived in Winnipeg with little money. He immediately goes to the unemployment office where he
received a paper telling him where the local employment office was. The then went to the local youth centre,
which directed him to a church to spend the night. The next day while on his way to the employment office, he
stopped on some stairs to have a cigarette where he was met by some friends. Eventually, a police office arrested
him, and refused to look at his papers that outlined his objective of finding employment. He was detained without
opportunity to give reason to why he was there and was charged with vagrancy.
Heffer was ultimately convicted largely doue to s. 164(1)(a) of the CC, which stated you must have apparent
means of support, and was found wandering, and was not able to justify his presence on the steps.
Issue: Did Heffers actions constitute vagrancy?
Analysis: This case is about statutory interpretationwhat harm is the legislation aimed at? With respect to
vagrancy, it loked at the historical view of the offnce and the purpose it was enacted. The original point was to
protect the public from beggars, the main threat the legislation took aim at was the threat to public order. The
court determined vagrants must pose a threat to public order. If vagrancy applied in this case, it would punish
people who are not causing harm and would in effect punish hippie culture. The section was read narrowly to
avoid punishing Heffer unjustly.
Main Takeaway: Criminal law should be used only where necessary, and should not be used superfluously. In
addition, penal statutes should be read narrowly and in favour of the accused in cases of ambiguity.

Malmo-Levine
Facts: The appleants, citing JS Mills harm principle, suggest that because marijuana does not cause harm to
others, it is a violation of s. 7 Charter rights, specifically, a violation of the principle of fundamental justice to
punish under the criminal code. Section 7 states Everyone has the right to life, liberty, and security of the person
and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The
appellants wish to establish that the prohibition of possession of marijuana is a violation of their Charter Rights.
Issue: Whether the Charter requires that harm to other or to society be an essential element of an offence
punishable by imprisonment.
Analysis: By adopting the Harm Principle, the definition of harm would be limited to narrow harm: tangible harm.
This would restrict the legislatures ability to dissuade people from certain actions by criminalizing behaviour. The
harm principle would create an untenable standard. In order for something to be a fundamental principle of
justice it need be:
1. A legal principle
2. There must be consensus that the rule or principle is fundamental to the way the legal systmen ought
fairly to operate
3. The rule or principle must be identified with sufficient precision to constitue a manageable standard to
measure deprivation of life, liberty or security of the person.
Main Takeaway: The harm principle is not a principle of fundamental justice because it doesnt conform to the
requirements above. It would create an untenable standard that would limit legislators signifigantly.

R v. Labaye; Kouri (2005) SCC

Facts: Labaye: Private club was set up for group sex. The only people allowed in were members or registered
guests. Prospective members were interviewd so as to ensure they understood the nature of the establishment
before joining. There was a doorman that prevented the public from entering along iwht a key code. Entry and
participation were voluntary.
Kouri: owned a licensed bar, restricted to couples. Doorman asked if they were liberated couples. Group sex
occurred.
s.210 of the CC: Keeping common bawdy-houseeveryone who keeps a common bawdy-house is guilty of an
indictable offence and liable to imprisonment for a term not exceeding 2 years. (A place kept, occupied, or
resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency.
Issue: Is there indecency in the acts that occur at either of the establishments?
Analysis: This case replaces the old community standard of tolerance test, which is subjective, with the harm
principle test, which is more objective. There is a test on whether or not something is indecent, known as the
Butler Test:
1. Is the harm or risk of harm to others going against societal norms or values 3 ways
a. Interfering with the autonomy of people by confronting members of the public with the
activity
b. Predisposing others to anti-social behavious
c. Physically or mentally harming others
2. Does the activity detract from the proper functioning of society? I.e. is it incompatible with the
proper functioning of society?
Applying the test to the facts of the case reveals that it does not cause harm. The acts all occur behind closed
doors and are voluntary. The test is called the Butler Test and it replaces the old community standard of indecency
(subjective test)

Sources of Canadian Criminal Law

Common Law Crime
R v. Sedley (1663) English Case
Facts: Sire Charles Sedley was indicted a tcommon law for misdemeanors abgainst the Kings Peace for being
naked on a balcony in front of nubmerous people, urinating on the crowd and violently cursing.
Issue: Is this a criminal offence? Can the judiciary create new offecnces at common law?

Analysis: This case is considered the first in which an offnce was created ad common law. Prior to this case people
were sent to Star-chambers in which punishments would be handed out on a whim, Star chambers were closed in
1641 and the Kings Bench took over.
Main Takeaway: This case gave judges the power to create offences. Not that in Canada this was overruled by
Frey and now offnces cannot be created at common law.
There are no common law offences (except contempt of court), only common law
defences.

Canadian Criminal Law

In 1867 the power to make offences was given to the federal and provincial jurisdictions. The provinces can make
prohibitions so long as they are anchored in another head of power under section 92.
In 1892 the Federal Government passed the Criminal Code but it did not supersede all prior common law offences
for the different provinces. So any gap in the Code would fall on the common law.

Causation
Consequesnce based offences where the crown must prove, beyond a reasonable doubt, that the accused caused
the consequences.
Examples are: criminal negligence, murder, arson causing death, wilful damage to property, mischief causing
danger to life, and dangerous driving.
Causation has two components:
1. Factual causation: But for the accused conduct would the prohibited consequence have occurred?
Maybin.
a. Time can also play a part in finding causation.
b. Factual causation is broad
c. Not limited to the most significant cause -- Maybin
2. Legal Causation: outside di minimus, which allows for policy considerations to negate causation.
a. Gives causation a standard: to what degree or level must the accused cause the consequence
b. Imptuable causation Nette

R v. Smithers (1978) SCC Legal Causation, De Minimus

Facts: Hockey game where things get out of hand and one player waits to assault the other in a parking lot after
the game. The accused punches the victim causing him to double over and then kicks him in the stomach. The
victim has a medical defect that allows vomit to be aspirated and he dies. Accused is charged with manslaughter.
Issue: Was there causation for homicide?
Analysis: The SCC applied the thin skull test
De Minimus : the law does not take notice of very small or trifling matters
Even if the unlawful at alone would not have caused the death, it was still a legal cause so long as it contributed in
some way to the death (broadSilver says inconsistent with Nette and it would be wrong to charge the jury with
this. Nette is about significant contributing cause).
The burden of proof for causation is on the crown. The victims epiglottis failed, which caused him to choke on the
vomit. But for the kick, or the assault, the victim would not have vomited and therefore the accused contributed
to the death of the victim. You take your victim as you find them.
Smithers test for legal causation: Sufficient causation exists where the actions of the accused are a contributing
cause of death beyond/outside the de minimus range. The factual causation test is the but for test, but the act
needing to be outside the di minimus range is the legal causation aspect (normative).
Main takeaway: The legal causation comes from a contributing act that is outside the di minimus range that
causes the harm. The thin skull rule you take your victim as you find them.

Harbottle (1993) SCC

Facts: s.214(5) now 231(4) first degree murder. Held womans hands down for sexual assault, she dies. Convicted
st
of 1 degree murder.
Issue: Did the actions of Harbottle meet de minimus requirement for first degree murder?
Analysis: Required stricter causation
Causation Rule for First Degree Murder: The Crown must prove the accused committed an act or series of acts
which are a substantial and integral cause of death. This doesnt have to have a physical touching element (you
could lock someone up and burn the building down)
Substantial Cause Test: expressed the increased degree of moral culpability, as evidenced by the accused
persons degree of participation in the killing, that is required before an accused can be found guilty of first degree
murder.

Legal Causation Test in Homicide other than First Degree: Nette

Nette
Facts: Robbed house and tied up 95 year old who then died when he fell off his bed. Used a Mr. Big Operation to
get a confession. Nettes lawyer argued the judge erred in directing the jury
Issues:
1. Degree (standard), any kind of murder needs elevated culpability
2. How should judges instruct the jury on causation?
Analysis:
nd
1. Standard for 2 Degree murder: the court refers to common law and statutory analysis
Causation in civil law is not applicable here
Outside of de minimus range vs. significant contributing cause
Court said outside of de minimus is a double negative that might confuse the jury and that
significant contributing cause means the same thing, just in a proactive way.
We prefer significant over not insignificant
i. Lheureux Dube says this is not a bright line
How to charge a jury:
TJ instructs the jury on requisite degree of factual and legal causation that they must find before the accused is
held criminally responsible. It is not a two part test, factual and legal causation must be viewed as one issue as to
not confuse the jurylook at the whole picture.
Legal Causation for non-homicide cases is the same: The Crown must show conduct was a contributing cause
outside the de minimus range or as articulated in Nette.

Criminal Code Tests for Causation and Intervening Causes

Sections 224-227 outline test for the Criminal Code with respect to murder and homicide
Section 224 says that even if a person could have been saved had they been given proper care by a doctor
but didnt, there is still murder.
Section 225 says that if there is death from a treatment as a result of the original injury, and the
treatment is the cause, then it is still murder.

Intervening Causes
R v. Smith (1959) UK
Facts The appellant got into a fight and was stabbed. A person trying to help the deceased dropped him twice on
the way to the hospital where the victim received inadequate treatment form the doctor. If blood transfusion was
given, experts indiacted he would have had a 75% chance of recovery. The appellant was convicted of murder.
Analysis: This case illustrates that improper treatment should not be an intervening cause that breaks the chain
of causation.
It seems to the court that if at the time of death the original wound is still an operating cause and a substantial
cause, then the death can be properly said to be the result of the wound.
This decision echoes the Criminal Code s.225.

However if something overwhelming happens to make the original wound part of the history and does not
contribute to the death, then the chain may be broken.
The case mentions the other case of Jordan, in which the court found that if the treatment is abnormal, the same
principle may not apply.
Main Takeaway: Medical treatment applied in good faith does not break the chain of causation. As long as the
original act is still an operating and substantial cause, the accused will be found guilty of murder. Only if it can be
shown that the treatment breaks the chain of causation will there be an intervening cause.

R. v. Blaue (1975) UK
Facts: Victim is stabbed by the accused, he goes to hospital and needs surgery but refuses blood transfusion for
religious reasons.
Held: The court finds that the blood transfusion does not factor into the causation that is, it doesnt break the
chain. The stab wounds were the operating and substantial cause. The wounds caused the death, and it was the
accused who did the stabbing, thus there is causation. Echo of s. 224.

R. v. Maybin (2012) SCCforeseeability and independent intervening act

Facts: Two brothers attack a person, hes knocked out on the pool table then, the hero bouncer punches the
victim in the head. Bleed on the brain and he dies.
Analysis: The Talbot case tells us that the test for causation is a significant contributing cause of the consequence.
This includes the but-for analysis (factual causation) and legal causation (policy) the court outlines tools to
examine cases with causation problems: look at reasonable foreseeability, and independent, intervening acts.
Reasonable Foreseeability it doesnt necessarily need to be the specific mean sof achieving it, but the
general nature. This is limited by reasonable contemplation. Without reasonable foreseeabitlity, it is not
likely it wa a significant contributing cause.
Independent Act how independent was the other persons behaviours? If it has nothing to do with the
original act, it will likely be that the original act was a significant cause.
The bouncer was acquitted because there was no basis for factual causation. NO way to prove a but-for test. On
the other hand, the brothers started the chain of causation with their punch, but the question was whether or not
the blow was a significan contributing cause.
In order to determine if the actions were significant enouth, the court used several tools: reasonable foreseeability
and independent intervening acts. IN terms of r.f. you dont need to know specifics of what will happen, you
merely need to know the kind of thing that might happen. In terms of this case, was it likely that someone else is
going to get involved in a fight? There is an internal limit here in that it needs to be reasonably contemplated.
The courts found that the bouncer was connected to the brothers actions. Further, they found that the acts of the
brothers caused the death by starting the chain of causation.
Main Takeaway: When examining the chain of causation, the court gives us tools (reasonable foreseeability and
independent, intervening acts) to examine the facts. If the actor set off the chain of action they may be liable.