Criminal Law & Procedure: Proof, Defences, and Beyond, 5e

Jennie Abell, Elizabeth Sheehy, Natasha Bakht   

Captus Press, ISBN 978-1-55322-296-5 (2014)
540 pages, 1300 g, 8.5 X 11, $62.50 (US$50.00)
 

Criminal Law & Procedure: Proof, Defences, and Beyond is a criminal law casebook aimed primarily at law students in Canadian law schools. The volume surveys the leading cases on the traditional subjects covered in introductory criminal law courses, including proof of actus reus and mens rea and defences such as mistake of fact, automatism, and intoxication, among others. The book also includes emerging legal paradigms and defences: for example, in chapters on the legal treatment of corporate homicide; the defence of color of right — most commonly invoked by Aboriginal peoples in defence of their lands; and the newly reformed defence of self-defence. The casebook draws upon secondary sources to illuminate the implications of criminal defences (for example, for gays and lesbians, persons with disabilities, and those vulnerable to police entrapment) and demonstrates how the Charter, particularly section 15 (the equality principle), can be invoked to broaden defences, such as duress, or narrow other defences like provocation.

 

Criminal Law & Procedure: Proof, Defences, and Beyond continues to explore current cases, legislation, and materials that raise critical and current issues in law relevant to legal educators and law students, as well as for those in law-related disciplines such as criminology or sociology.

 

 

Up-to-date as of October 2013, new cases and discussion in this latest edition include:

 

  • a case that questions whether certain sections of the Criminal Code violate s 11(d) of the Charter: R v St Onge Lamoureux
  • a case that clarifies the test for causation in manslaughter: R v Maybin
  • an assessment of the appropriate fault requirement: R v ADH, R v Raham, and R v Briscoe
  • two Supreme Court of Canada cases that clarify the circumstances when failure to disclose HIV status vitiates consent: R v Mabior and R v DC
  • new research since Canadian Foundation for Children, Youth and the Law v Canada that suggests corporal punishment of children may result in negative consequences
  • the debate over whether losing one’s ability to revoke consent vitiates an “advance consent”: R v JA
  • two lower court decisions that permit comparison of Charter s 1 regarding section 33.1, self-induced intoxication: R v Fleming and R v SN
  • a discussion of fetal alcohol spectrum disorder (FASD) and the interlocking relationship between poverty, mental health, and a lack of resources for treatment and the impact of these issues for Aboriginal accuseds who do not meet the threshold of unfit to stand trial
  • two new Supreme Court of Canada decisions, R v Tran and R v Mayuran, discussing the objective test of the partial defence of provocation
  • the controversial Supreme Court of Canada case, R v Ryan, that clarified and restricted the defence of duress

Criminal Law & Procedure: Proof, Defences, and Beyond is the companion volume to Criminal Law & Procedure: Cases, Context, Critique. Now in their fifth edition, both volumes can be used alone or together.

 

Table of Contents   top

Introduction

I PROVING A CASE

 

1 Burden of Proof

A. INTRODUCTION

B. SECTION 11(D)

R v Oakes

C. SECTION 1

• Questioning the “Wisdom” of Legislation: R. v. Oakes

R v St Onge Lamoureux

 

2 Actus Reus

A. ACT OR OMISSION

R v Instan

People v Beardsley

R v Urbanovich

R v Thornton

B. VOLUNTARINESS

C. CAUSATION

• Factual Causation

R v Nette

• Legal Causation

R v Maybin

 

3 Mens Rea

A. ABSOLUTE LIABILITY

R v Sault Ste. Marie

Re BC Motor Vehicle Act

R v Raham

B. STRICT LIABILITY

R v Wholesale Travel Group Inc

C. NEGLIGENCE

R v Creighton

D. WILFUL IGNORANCE.

R v Briscoe

E. RECKLESSNESS

F. INTENTION OR KNOWLEDGE

R v ADH

R v Vaillancourt.

• Constitutionalizing Subjectivism: Another View

Mens Rea and Party Liability

• Post-Conviction Review Based on Charter Rulings

G. SPECIFIC STATES OF MIND

 

4 Case Study on Corporate Homicide

A. WHY PROSECUTE CORPORATIONS UNDER THE CRIMINAL LAW?

• Criminal Prosecution of Corporations for Defective Products

B. DIRECTING MIND AND WILL DOCTRINE

C. CHALLENGES OF PROVING THE FAULT ELEMENT FOR HOMICIDE

R v Curragh Inc.

 

5 Proof of Inchoate Crimes

A. ATTEMPTS

R v Sorrell

B. CONSPIRACY

C. COUNSELLING

 

II DEFENDING A CASE

 

6 Case Study on Assault: An Introduction to Defences

A. CONSENT

R v Jobidon

R v McDonald

R v Mabior

R v Ewanchuk

R v Leclerc

R v Faith

B. CORRECTION

Ogg-Moss v R

R v Dupperon

Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)

C. DE MINIMIS NON CURAT LEX.

R v Lepage

R v Matsuba

R v Stewart

 

7 Mistake of Fact

A. MISTAKE OF FACT AND SEXUAL ASSAULT

• Characterization of the “Mistake”

• Role of Charter ss 15 and 28

• Against “General Rules of General Application”

B. MISTAKE OF FACT AND SEXUAL HISTORY

R v Seaboyer

C. BILL C-49 AND A REVISED LAW OF SEXUAL HISTORY EVIDENCE, CONSENT,

AND MISTAKE

R v Ewanchuk (Continued)

R v JA (SCC, 2011)

R v JA (Ont CJ, 2008)

 

8 Mistake of Law

A. GENERAL PRINCIPLES

B. POSSIBLE EXCEPTIONS TO THE GENERAL PRINCIPLES

• Mistake Going to the Mens Rea Element of the Offence

• Officially Induced Error of Law

• Impossibility

R v Campbell (Alta Dist Ct, 1973)

 

9 Colour of Right: Mistake of Fact, Mistake of Law, or Affirmative Defence?

R v Stevenson

• David Confronts Goliath: The Innu of Ungava versus the NATO Alliance

R v Ashini

R v Watson

 

10 Intoxication and Extreme Intoxication

• The Intoxication Defence in Canada: Why Women Should Care

R v Daviault

• A Brief on Bill C-72.

R v Fleming

R v SN

 

11 Incapacity and Mental Disorder

A. AGE

B. MENTAL DISORDER

• Fitness to Stand Trial

• Not Criminally Responsible

Winko v British Columbia (Forensic Psychiatric Institute)

• Constructions of Mental Disorder

 

12 Automatism

R v Stone

R v Fontaine

 

13 Provocation

A. CRIMES AGAINST GAYS AND LESBIANS

R v Hill

• Beyond the Privacy Principle

B. RACISM AND RACIST VIOLENCE

C. FEMICIDE

R v Thibert

R v Parent

R v Tran

 

14 Self-Defence and Defence of Others

A. SELF-DEFENCE

B. WIFE BATTERING AND SELF-DEFENCE

• Violence against Women: Feminist Activism and Engagement with Law

R v Whynot (Stafford)

R v Lavallee

• Violence against Women: Feminist Activism and Engagement with Law (Continued)

C. BATTERED WOMEN’S SYNDROME AND THE CASES SINCE LAVALLEE

D. CLEMENCY: REVIEWING THE PAST

E. OTHER DEVELOPMENTS IN THE LAW OF SELF-DEFENCE

R v McConnell

F. THE DEFENCE OF AUTHORITY: POLICE OFFICERS AND THE USE OF FORCE

G. THE DEFENCE OF OTHERS

R v NC

 

15 Duress

A. SECTION 17 DEFENCE

R v Gardiner

R v Robins

R v Ruzic

B. COMMON LAW DEFENCE

R v Ryan

 

16 Necessity

Perka v R

R v Langdon

• Factum of the Intervenors, People in Equal Participation [PEP] in R v Latimer (Sask CA)

• The Defence of Necessity — Who Needs It?

17 Broadening the Defences: Necessity, Self-Defence, and Conscience

A. WHOSE “NECESSITY”?

B. THE DEFENCE OF CONSCIENCE

• Perry Dunlop

• Mordechai Vanunu

• Clive Ponting

• R. v. Ponting

C. THE DUTY IN RESPONSE TO UNJUST LAWS

• The Nürnberg Tribunal

D. THE POLITICALLY MOTIVATED “CRIMINAL”

• The Political Offender

E. SILENCING DISSENT: THE POLITICAL MOTIVATION OF THE STATE

• South Africa

• First Nations And Canada

• The Oglala Shootout

• More Dangerous Desperados

 

18 Entrapment

A. THE POLICE/INFORMER RELATIONSHIP

• Police Informants in Canada: Law and Reality

R v Mack

B. RANDOM VIRTUE TESTING

C. REWARDS TO INFORMERS

D. CRIMINAL ACTIVITY OF POLICE AND INFORMANTS

R v Campbell (SCC, 1999)

E. INFORMER PRIVILEGE

 

Index of Cases

Instructor Resources   top

Related Resources   top

About the Author   top

Jennie Abell, B.A., LL.B., LL.M., is Director of Women's Studies and an associate professor in the Faculty of Law at the University of Ottawa, where she has been teaching "Criminal Law and Procedure" since 1988. Prior to that, she taught in the area of law and social policy with the School of Human Justice, University of Regina. Both her pedagogy and her scholarship draw on her earlier work as a criminal defence lawyer with a legal aid clinic in Northern Saskatchewan, where she represented poor people and Aboriginal peoples. Her research interrogates the relationships between traditional law practice, feminist activism, and critical legal education; feminist analysis of criminal law and violence against woman; and criminialization of poverty and access to justice.

Elizabeth Sheehy, LL. B., LL.M., LL.D. (Honoris Causa), is a professor in the Faculty of Law at the University of Ottawa. She teaches Criminal Law, Criminal Procedure, Sexual Assault Law and Defending Battered Women on Trial. She has worked on criminal law reform from many vantage points, including consultation with the department of Justice Canada, research for the Self-Defence Review, case preparation with the Women's Legal Education and Action Fund, and advocacy work with women's organizations such as the National Association of Women and the Law and the Canadian Association of Elizabeth Fry Societies. Her research and writing concentrates on violence against women, equality analysis, and criminal law reform issues such as self-defence for battered women.

Natasha Bakht (B.A, M.A., LL.B, LL.M) is an assistant professor at the University of Ottawa’s faculty of law. She teaches criminal law, family law, and multicultural rights. She was called to the bar of Ontario in 2003 and then served as a law clerk to Justice Louise Arbour at the Supreme Court of Canada. She holds an LL.M from New York University School of Law, where she attended as a Global Hauser scholar. Professor Bakht’s research interests are generally in the area of law, culture and minority rights, and specifically in the intersecting area of religious freedom and women’s equality. She has written extensively on the issue of religious arbitration in family law. A regular researcher with the National Judicial Institute where she has assists in judicial education on sentencing, demeanour, evidence, and matters of faith and culture. Professor Bakht is also a member of the Law Program Committee of the Women’s Legal Education and Action Fund (LEAF).