CRIMINAL LAW Cases and Materials Volume 1 Martha Shaffer Hamish Stewart Audrey Macklin Faculty of Law University of Toronto 2003-2004 These materials are distributed solely for use by students in the Faculty of Law, University of Toronto mm msKw w mm AUG 2 2 2093 FACU4.TY W- LaW UNIVERSITY 9F TOWM CRIMINAL LAW Cases and Materials Volume 1 Martha Shaffer Hamish Stewart Audrey Macklin Faculty of Law University of Toronto 2003-2004 These materials are distributed solely for use by students in the Faculty of Law, University of Toronto Digitized by the Internet Archive in 2018 with funding from University of Toronto https://archive.org/details/criminallawcases01shaf_9 Table of Contents 1. INTRODUCTION.1 1 (a) Background and Context.1 A Note About These Materials.1 Crime in Canada: A Statistical Overview.2 Some Criminological Generalizations.10 1(b) Trials and Appeals.10 Trials.10 Appeals.11 R. v. Scott.13 Questions on Scott.31 1(c) Constitutional Constraints on the Creation of Criminal Law.32 1(c)(i) The Common Law, the Criminal Code, and the Constitution.32 1(c)(ii) The Division of Powers.33 1(c)(iii) Preservation of Aboriginal Rights.36 1(c)(iv) Charter of Rights: Guarantee and Limitation of Rights.37 R. v. Oakes. 37 Note: Subsequent Cases on the Presumption of Innocence.49 Further Reading.50 1(c)(v) Charter of Rights: Principles of Fundamental Justice.51 Reference Re: Section 94(2) of the Motor Vehicle Act.51 Questions on the Motor Vehicle Reference.64 R. v. Malmo-Levine... 65 Further Reading.94 1 (d) Statutory Interpretation.96 1(d)(i) Principles of Statutory Interpretation.96 R. v. Goulis.97 * R. v. Pare.100 Problems.108 1(d)(ii) Charter of Rights: Vagueness and Overbreadth.109 R. v. Nova Scotia Pharmaceutical Society.109 R. v. Heywood.117 1 (e) Elements of Offences.125 R. v. Theroux.126 Questions.135 Note on Simultaneity.136 2. ACTUS REUS: THE EXTERNAL ELEMENT.138 2(a) The Act Requirement.138 Rex v. Larsonneur.138 IV R. v. King.139 Kilbride v. Lake.144 Further Reading.147 2(b) Liability for Omissions.148 R. v. Colucci.148 R. v. Instan.149 People v. Beardsley.151 Moore v. The Queen.155 Fagan v. Commissioner of Metropolitan Police.163 R. v. Miller.165 2(c) Causation.173 2(c)(i) Cause in fact 173 . R. v. Winning.173 2(c)(ii) Standards for Causation 174 . Smithers v. The Queen.174 * R. v. Harbottle.177 * R. v. Nette.185 2(c)(iii) Remoteness 196 . British Columbia Electric Railway Company Limited v. Loach.196 excerpt from E.H. Carr, What is History?.196 People v. Lewis.198 R. v. Jordan.200 R. v. Smith.202 R. v. Blaue.204 * R. v. Pagett.207 2(d) Defining the Actus Reus: Sexual Assault.215 2(d)(i) Distinguishing Between Sexual Assault and Common Assault 215 . R. v. Chase (N.B.C.A.).215 R. v. Chase (S.C.C.).217 R. v. V.(K.B.).221 2(d)(ii) Sexual Assault and Consent 222 . R. v. Ewanchuk (Alta. C.A.).222 * * R. v. Ewanchuk (S.C.C.).227 Further Reading for Chapter 2(e).240 2(e) Defining the Actus Reus: Consent.241 2(e)(i) Consent Vitiated on Policy Grounds 241 . R. v. Jobidon.241 * Problems based on Jobidon.262 2(e)(ii) Consent Vitiated by Fraud 264 . R. v. Cuerrier.264 Questions and Notes on Cuerrier.291 V 3. MENS REA: THE FAULT ELEMENT.292 3(a) Introduction.292 R. v. City of Sault Ste. Marie.292 3(b) Purpose and Intention.297 R. v. Steane.297 R. v. Buzzanga and Durocher...301 Note: R. v. Hibbert.311 Questions on Purpose and Intention.314 Further reading.318 3(c) Knowledge, Recklessness, and Wilful Blindness.319 Note.319 R. v. Harding.320 Problem on Wilful Blindness.328 3(d) Criminal Negligence.330 R. v. Tutton and Tutton.330 R. v. Waite.343 Questions and Notes on Tutton and Waite.347 Further Reading.348 3(e) Constitutionally Required Fault.350 Vaillancourt v. The Queen.350 * R. v. Martineau.361 Questions on Vaillancourt and Martineau.380 R. v. DeSousa.381 Questions on De Sousa.389 Note: R. v. Hundal.392 R. v. Creighton.396 Note: Companion Cases to Creighton.425 Note: R. v. Cribbin.426 Problems.429 Further Reading.431 VI 1. INTRODUCTION 1(a) Background and Context A Note About These Materials The criminal law is — as we hope you will discover — a fascinating and intellectually challenging subject; but it is also an emotionally and politically charged subject. Many of the cases you will read in this casebook are disturbing because they involve violence, often violence of a sexual nature. The brutality in these cases is disturbing for those of us who have not experienced violence firsthand — it is often more disturbing for those of us who have. Even though some of the cases in the materials are painful to read, they are included in this casebook because they are the leading cases in their area. As you will see, many of the leading cases throughout the criminal law involve sexual violence committed against women or children. We recognize that theses cases may be particularly difficult to read and have sought to alert students by marking these cases with an asterisk (*). While our notation system will not make these cases any less troubling, we hope that forewarning readers will provide an opportunity to prepare for the disturbing nature of the material. The cases contained in this casebook, unlike those in many other casebooks, are not heavily edited. We have chosen to construct our materials in this way because of our view that it is important for law students to work with full cases rather than to work from heavily edited snippets. As a result, the facts of the cases as set out by the court have seldom been edited. Since many of the cases involve sexual violence against women and children, the facts are sometimes sexually graphic. Again, we have included these cases — despite their explicitness — because we believe that they are essential to a thorough understanding of the criminal law. Finally, most of the cases in these materials are decisions of appellate courts. This means that they are not transcriptions of what occurred at the accused’s trial, but are discussions of points of law that have been argued when a verdict has been appealed. We hope that you enjoy the study of the criminal law and we welcome your comments on the materials or lectures throughout the course. M.S. H.S. A.M. 1 \