Index. All references are to page numbers. AIDING AND ABETTING intoxication and, 106 party liability, 20, 22, 25 ABORIGINAL SENTENCING, 395

Transcription

1 Index All references are to page numbers. ABORIGINAL SENTENCING, 395 ABSOLUTE DISCHARGES, 409 ABSOLUTE LIABILITY, 5 ACCELERATED PAROLE REVIEW, ABOLITION OF, 377 ACTUS REUS causation, 8 co-accused, 9 driving offences, 52 generally, 7 murder, first degree, 8 passive acquiescence, conduct more than, 7 special causation instruction, 9 ADMISSIONS adoptive, 263 confessions and, 222 method of proof, 222 Mr. Big investigations, 222 voluntariness, 230 ADVERSE INFERENCE, 92 AGGRAVATING FACTORS sentencing generally, 381 Youth Criminal Justice Act, 444 AIDING AND ABETTING intoxication and, 106 party liability, 20, 22, 25 AIR OF REALITY consent, mistaken belief in, 116 self-defence and, 132 AIRGUNS, 90 ALIBIS adverse inference, 92 false, 92 generally, 92 precision of evidence, 93 APPEAL accused, by, 343 counsel, ineffective, 363 Crown, by, 341, 373 curative proviso, 365 insufficient reasons, 343 misapprehension of evidence, 360 right to, 339 unreasonable verdict, 353 APPROVED SCREENING DEVICE (ASD), 49 ARBITRARINESS, 170

2 452 Annual Review of Criminal Law, 2014 ARBITRARY DETENTION arbitrariness, 170 detention, elements of, 168 generally, 168 ARREST counsel, See also counsel, consultation with generally, 174 implementation, duties re, 177 informational duties, 174 ARSON, 103 AS SOON AS PRACTICABLE, MEANING OF, 40 ASSAULT aggravated, attempted, 13 HIV-transmission via spitting, 13 self-defence and, 139 sexual, 430 ASSISTED SUICIDE, 28 ATTEMPTS aggravated assault, 13 generally, 10 murder, 429 AUTOMATIC ROADSIDE PROHIBITIONS, 46 AUTOMATISM, 95 BAD CHARACTER, EVIDENCE OF, 244 BREACH OF TRUST offence, 30 sentencing, 384 BURNOUT, 435 CARE AND CONTROL, MEANING OF, 42 CASE-BY-CASE PRIVILEGE, 284 CAUSATION, 8 CAUSING AN ACCIDENT WHILE OVER.08, 37 CHARACTER EVIDENCE bad character, 244 complainant, relating to, 253 generally, 244 intent/motive, relating to, 247 similar act evidence, 249 similar act evidence proving identity, 251 CHARITABLE DONATION, 409 CHARTER exclusion of evidence, 200. See also exclusion of evidence under the Charter generally, 193 party liability and, 20 section 24(1), 193 section 24(2), 200 CHILD PORNOGRAPHY file-sharing software, 36 generally, 32 making, 32 making available, 36 possessing, 32 private use defence, 32 CIRCUMSTANTIAL EVIDENCE corroboration required, 241 generally, 236 post-offence conduct, 237 CLOTHING-OPTIONAL BEACH, 88

3 Index 453 COMMON INTENTION agreement, 18 generally, 17 knowledge, 19 offences, 19 COMPELLABILITY, 211 COMPETENCE, 211 COMPLAINANT age of, 116 character evidence re, 253 unresponsive, 83 COMPUTER DATA OFFENCES fraud, 86 theft, 86 CONDITIONAL DISCHARGES, 409 CONDITIONAL SENTENCE ORDERS sentencing option, 410 suspending pending appeal, 374 CONFESSIONS admissions and, 222 Mr. Big investigations, 222 voluntariness, 230 CONSENT air of reality, absence of, 116 complainant, age of, 122, 124 FASD (Fetal Alcohol Spectrum Disorder), effect of, 124 honest but mistaken, 119 mistaken belief in, 116 reasonable steps, failure to take, 122 sexual assault and, 83 CONSPIRACY, 16 CONSTRUCTIVE POSSESSION, 58 CORROBORATION, 241 COUNSEL consultation with, ineffective, 363 interventions by, 318 police officers, consultation by, 184 young persons, consultation by, 183 CREDIT CARD DATA OFFENCES, 77 CRIMINAL ORGANIZATIONS, 36 CROSS-EXAMINATION, 212 CROWN APPEALS, 341, 373 CURATIVE PROVISO appeals, 365 dangerous/long-term offenders, 433 CUSTODY RE YOUTHS, 445 DANGEROUS AND LONG- TERM OFFENDERS burnout, 435 curative proviso, 433 development of scheme, 439 fresh evidence on appeal, 433 generally, 433 indeterminate incarceration, 440 intractability, 439 predicate offences, 437 reasonable expectation standard, 440 reasonableness assessments, 433

4 454 Annual Review of Criminal Law, 2014 serious personal injury offence, 437 seriousness, 437 severe psychological harm, 437 DANGEROUS DRIVING, 52 DEFAULT TIME, 414 DEFENCES alibi, 92. See also alibis automatism, 95 consent, mistaken belief in, 116. See also consent domestic violence, 100 double jeopardy, 98 duress, 100 entrapment, 102 generally, 92 intoxication, 103. See also intoxication involuntariness, 110 Kienapple principle, 98 mental disorder, 95, 112. See also mental disorder/illness mistake of law, 126 private use, 32 property, in defence of, 97 provocation, 127 reflex action, 110 self-defence, 130. See also self-defence DELAY RE SENTENCING, 409 DETENTION arbitrary. See arbitrary detention elements of, 168 DISCHARGES, 409 DISCLOSURE, 293 DISPROPORTIONATE FORCE, 136 DOMESTIC VIOLENCE, 100 DOUBLE JEOPARDY, 98 DOUBLE-COUNTING, 387 DRINKING AND DRIVING OFFENCES approved screening device (ASD), 49 as soon as practicable, meaning of, 40 automatic roadside prohibitions, 46 burden of accused, 44 care and control, meaning of, 42 causing an accident while over.08, 37 forthwith, meaning of, 39 generally, 37 private road, 39 public road, 39 refusal, excuse for, 44 suspicion for, 49 DRIVING OFFENCES actus reus, 52 dangerous driving, 52 drinking and, 37. See also drinking and driving offences generally, 51 hand-held devices, 51 mens rea, 52 DRUG OFFENCES constructive possession, 58 generally, 55 party liability and, 22 possession, 55

5 Index 455 possession for purposes of trafficking, 56 wilful blindness, 55 DUE DILIGENCE, 5 DURESS, 100 ELECTION, 292 ENTRAPMENT, 102 EVIDENCE exclusionary rules, 244. See also exclusionary rules generally, 211 misapprehension of, 360 precision of, 93 proof, methods of, 222. See also proof, methods of witnesses, 211. See also witnesses EXCLUSION OF EVIDENCE UNDER THE CHARTER impact on protected interests, 207 obtained in a manner, 200 seriousness of conduct, 202 society s interests in adjudicating case on its merits, 209 EXCLUSIONARY RULES character evidence, 244. See also character evidence generally, 244 hearsay, 256. See hearsay opinion evidence, 268. See also opinion evidence prior consistent statements, 278 privilege, 280. See also privilege EXPERT EVIDENCE, 268 EXTRADITION, 59 FAIRNESS generally, 316, 321 interventions, 318 nature of proceedings, 316 right to be present, 320 FAINT HOPE APPLICATIONS, 380 FETAL ALCOHOL SPECTRUM DISORDER (FASD), 124 FILE-SHARING SOFTWARE, 36 FINE financial gain, in absence of, 413 forfeiture, in lieu of, 411 victim fine surcharge, 415 FIREARMS. See also WEAPONS forfeiture, 412 mistake of law, 126 possession, 126 robbery, 81 FITNESS TO STAND TRIAL, 301 FORESEEABILITY, 73 FORFEITURE fine in lieu of, 411, 413 firearms, 412 generally, 411 mandatory, 412 partial, 411 FORTHWITH, MEANING OF, 39 FRAUD computer data, 86 large-scale, 425 FRESH EVIDENCE appeal, on, 218, 433

6 456 Annual Review of Criminal Law, 2014 dangerous/long-term offenders, 433 generally, 218 motions, 375 GYNECOLOGICAL EXAMINA- TIONS, FRAUDULENT, 85 HIV-TRANSMISSION VIA SPITTING, 13 HAND-HELD DEVICES, 51 HEARSAY adoptive admissions, 263 narrative exception, 262 principled exception, 256 spontaneous utterances, 264 statutory exceptions, 266 HOME INVASIONS, 382, 427 HUMAN SMUGGLING, 63 IDENTIFICATION/IDENTITY method of proof, 231 similar act evidence proving, 251 IMMIGRATION, 381 INCHOATE OFFENCES aggravated assault, attempted, 13 attempts, 10 conspiracy, 16 generally, 10 HIV-transmission via spitting, 13 jury instructions, 16 INCLUDED OFFENCES, 26 INDETERMINATE SENTENCE/ INCARCERATION, 440 INDICTMENT, 297 INFORMATION, LAYING OF, 297 INFORMER PRIVILEGE, 283 INTENT character evidence re, 247 common. See intention generally, 103 murder, 73 specific, 107 INTOXICATION aiding and abetting, 106 arson, 103 generally, 103 intent, 103 jury instructions, 106 specific intent, 107 INTRACTABILITY, 439 INVESTIGATION, POLICE, 145 INVOLUNTARINESS, 110. See also VOLUNTARINESS JOINT LIABILITY, 23 JURISDICTION generally, 287 indictment, form of, 297 information, laying of, 297 offence, over the, 290 proceedings, over the, 291 SOIRA order, correcting, 372 territorial, 287 JURY actus reus, instructions re, 9 addresses to, 325 causation, instructions re, 9 deliberations, 336

7 Index 457 inchoate offences, instructions re, 16 included offences, instructions re, 26 instructing, 9, 16, 23, 106, 130, 133, 325 intoxication, instructions re, 106 party liability, instructions re, 23 selection, 303 self-defence, instructions re, 130, 133 KIENAPPLE PRINCIPLE, 98 LONG-TERM OFFENDERS, 433. See also DANGEROUS AND LONG-TERM OFFENDERS MR. BIG INVESTIGATIONS, 222 MANDATORY MINIMUMS, 388 MENS REA absolute liability, 5 driving offences, 52 due diligence, 5 generally, 1 inferring, 84 mistake of law, 126 offence, 2 party liability, 25 reasonable mistake of law, 5 seat belt, failure to wear, 5 sexual assault, 84 strict liability, 5 strict liability offence, 2 subjective, 21 wilful blindness, 1 MENTAL DISORDER/ILLNESS ability to remember, 112 defence and, 95, 112 not knowing conduct was wrong, 114 protected statements, 112 sentencing and, 382 MISCHIEF, 65 MISTAKE OF LAW defence, 126 mens rea and, 5 MITIGATING FACTORS sentencing generally, 381 Youth Criminal Justice Act, 444 MURDER actus reus, 8 attempted, 429 first degree, 67 foreseeability, 73 intent, 73 second degree, 73 sexual assault, involving, 70 unlawful confinement, involving, 67, 70 NATIONAL SECURITY, PRIVILEGE RE, 283 OFFENCES assisted suicide, 28 breach of trust, 30 child pornography, 32. See also child pornography common intention, 19 computer data, 86 constitutionality, 28 credit card data, 77 criminal organizations, 36 drinking and driving, 37. See also drinking and driving offences driving offences, other, 51. See also driving offences

8 458 Annual Review of Criminal Law, 2014 drug offences, 55. See also drug offences extradictable, 59 generally, 28 human smuggling, 63 inchoate, 10. See also inchoate offences included, 26 mens rea generally, 2 mischief, 65 murder, 67. See also murder possession. See possession prostitution, 78. See also prostitution robbery, 80. See also robbery sexual assault, 83. See also sexual assault strict liability, 2 voyeurism, 88 weapons, 76, 90. See also firearms; weapons OPEN COURT PRINCIPLE, 310 OPINION EVIDENCE experts, 268 generally, 268 novel scientific evidence, 276 OPTIONS RE SENTENCING absolute discharges, 409 charitable donation, 409 conditional discharges, 409 conditional sentence orders, 410 default time, 414 discharges, 409 fine in lieu of forfeiture in absence of financial gain, 413 fines in lieu of forfeiture, 411 forfeiture, 411 generally, 409 home invasions, 427 mandatory firearms forfeiture, 412 parole eligibility/ineligibility periods, 422 partial forfeiture, 411 probation, 409 restitution, 421 restitution order, 414 victim fine surcharge, 415 Youth Criminal Justice Act, PAROLE accelerated reviews, 377 eligibility/ineligibility periods, 422 PARTIAL FORFEITURE, 411 PARTY LIABILITY aiding and abetting, 20, 22, 25 Charter, 20 common intention, 17. See also common intention generally, 17 joint liability, 23 jury instructions, 23 mens rea, 25 presence at a drug deal, 22 Section 21(2), 17 subjective mens rea, 21 PASSIVE ACQUIESCENCE, CONDUCT MORE THAN, 7 PERJURY, 429 PLEAS, 300 POLICE arbitrary detention, 168. See also arbitrary detention arrest, 174. See also arrest

9 Index 459 Charter remedies, 193. See also Charter remedies counsel, consultation with, 184 investigative stage, 145 search and seizure, 146. See also search and seizure TRIAL WITHIN REASONABLE TIME, 186 POSSESSING/POSSESSION child pornography, 32 constructive, 58 drugs, 55, 56 firearms, 126 trafficking, for purposes of, 56 weapons, 76 POST-OFFENCE CONDUCT, 237 POST-TRIAL PROCEDURE appeal by accused, 343. See also appeal Crown appeal, 341. See also appeal extraordinary remedies, 368 generally, 339 right to appeal, 339 PRE-SENTENCE CREDIT, 402 PRE-TRIAL PROCEDURE disclosure, 293 election, 292 fitness to stand trial, 301 generally, 287 jurisdiction, 287. See also jurisdiction pleas, 300 severance, 299 PREDICATE OFFENCES, 437 PRIVATE ROAD, 39 PRIVATE USE DEFENCE, 32 PRIVILEGE case-by-case, 284 generally, 280 informer, 283 national security interests, 283 solicitor-client, 280 spousal, 282 PROBATION, 409 PROCEDURE generally, 287 post-trial, 339. See also posttrial procedure pre-trial, 287. See also pre-trial procedure sentencing, 381. See also sentencing procedure trial, 303. See also trial PROOF, METHODS OF admissions, 222. See also admissions circumstantial evidence, 236. See also circumstantial evidence confessions, 222. See also confessions identification, 231. See also identification/identity PROPERTY defence of, in, 97 interference with enjoyment of, 65 PROSTITUTION constitutionality of offences, 78 generally, 78 newly enacted laws, 79

10 460 Annual Review of Criminal Law, 2014 PROTECTED STATEMENTS, 112 PROVOCATION, 127 PUBLIC ROAD, 39 PUBLICATION BANS, 310 REASONABLE EXPECTATION STANDARD, 440 REASONABLENESS ASSESS- MENTS, 433 REASONS, INSUFFICIENT, 343 REBUTTAL EVIDENCE, 217 REFLEX ACTION, 110 REFUSAL (RE ASD), EXCUSE FOR, 44 RESTITUTION generally, 421 order, 414 ROADS, 39 ROBBERY firearm, proof of, 81 generally, 80 threat of violence, involving, 80 SOIRA ORDER, CORRECTING, 372 SEARCH AND SEIZURE authorized by law, 152 common law, 161 generally, 146 legislation, 152 reasonable conduct of, 166 reasonable expectation of privacy, 146 reasonableness of the law, 164 warrant, 152 SEAT BELT, FAILURE TO WEAR, 5 SEIZURE. See SEARCH AND SEIZURE SELF-DEFENCE actual assault not required, 139 air of reality, 132 disproportionate force, 136 generally, 130 jury instructions, 130, 133 retreat, failure to, 136, 143 SENTENCING Aboriginal principles, 395 aggravating factors, 381 attempted murder, 429 breach of trust, 384 dangerous/long-term offenders, 433. See also dangerous and long-term offenders delay, 409 double-counting, 387 elderly victims, 427 generally, 371 home invasion, 382 immigration and, 381 large-scale fraud, 425 mental illness, 382 minimums, mandatory, 388 mitigating factors, 381 options, 409. See also options re sentencing perjury, 429 pre-sentence credit, 402 principles/rules, 381 procedures, 371. See also sentencing procedure sexual assault, 430

11 Index 461 standard of proof, 386 Youth Criminal Justice Act, 441 See also Youth Criminal Justice Act SENTENCING PROCEDURE accelerated parole review, abolition of, 377 aggravating circumstances, 371 correcting SOIRA order, jurisdiction to, 372 Crown appeals, successful, 373 faint hope applications, 380 fresh evidence motions, 375 generally, 371 hearings, 371 re-incarceration, 373 suspending CSO pending appeal, 374 Youth Criminal Justice Act, 444 SERIOUS PERSONAL INJURY OFFENCE, 437 SERIOUSNESS dangerous/long-term offenders, 437 exclusion of evidence, 202 SEVERANCE, 299 SEVERE PSYCHOLOGICAL HARM, 437 SEXUAL ASSAULT consent, 83 fraudulent gynecological exams, 85 generally, 83 inferences, 84 mens rea, 84 murder and, 70 sentencing and, 430 unresponsive complainant, 83 SIMILAR ACT EVIDENCE generally, 249 identity, proving, 251 SOLICITOR-CLIENT PRIVI- LEGE, 280 SPOUSAL PRIVILEGE, 282 STRICT LIABILITY, 2, 5 SUPERVISION RE YOUTHS, 445 TERRITORIAL JURISDICTION, 287 THEFT OF COMPUTER DATA, 86 THREAT OF VIOLENCE, ROBBERY INVOLVING, 80 TRIAL control of the process, 305 directed verdicts, 324 fairness, 316, 321. See also fairness jury. See jury language, 315 open court principle, 310 procedure generally, 303 publication bans, 310 within reasonable time, 186 UNLAWFUL CONFINEMENT, 67, 70 VERDICT directed, 324 unreasonable, 353 VICTIM elderly, 427 fine surcharge, 415 VOLUNTARINESS, 230

12 462 Annual Review of Criminal Law, 2014 VOYEURISM, 88 WARRANT, 152 WEAPONS airguns, 90 generally, 90 possession of, 76 WILFUL BLINDNESS drug offences and, 55 mens rea and, 1 WITNESSES compellability, 211 competence, 211 cross-examination of, 212 experts, 268 fresh evidence on appeal, 218 generally, 211 rebuttal evidence, 217 YOUNG PERSONS counsel, consultation with, 183 YOUTH CRIMINAL JUSTICE ACT aggravating factors, 444 custody, 445 generally, 441 mitigating factors, 444 options, principles/rules, 441 procedure, 444 serious offences, 445 supervision, 445