MARKED DEPARTURE TEST
R. v. Creighton (1993) SCC
The marked departure test provided a new approach to interpreting objective crimes. The SCC unanimously accepted Hundal that the test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person. When objective standards of fault are used for criminal offences, something more than mere negligence is needed – this concept gave birth to the marked departure test – this was used in Finlay and Gossett. In this case, a reasonable person would have foreseen that a cocaine injection carried the risk of bodily harm. Creighton added a fourth criterion to three set out in Martineau (stigma, blameworthiness, intentional v. unintentional) for determining the constitutionality of mens rea. This criterion added the Thin Skull Doctrine - if one engages in criminal behavior they are responsible for any unforeseen results of their actions. The general rule that there be perfect symmetry between the mens rea and consequences of an offence is ideal but is not a principal of fundamental justice – there can be exceptions – manslaughter caused by an unlawful act is one of them. This is why it is not unconstitutional that manslaughter only requires the foreseeability of bodily harm that is neither trivial nor transitory rather than the foreseeability of death. The SCC rejected the use of the personal characteristics of the accused (Lamer’s approach from Tutton) unless those factors go to incapacity or appreciating the risk involved in ones conduct. An objective fault element of reasonable foresight of non-trivial bodily harm was held not to violate s.7 because the same stigma as murder is not attached.
R. v. Krushel (2000) Ont. CA
Accused was charged with criminal harassment under CC264.1 and contended that there must be symmetry between the mens rea and each consequence of the offence. This was rejected in Creighton by McLauchlin J. There need only be a sufficient blameworthy element in the actus reus to which the culpable mental state attaches when it was asserted that foresight of the prohibited consequences of causing actual fear is not required in order to hold the accused responsible for results of his or her unlawful activity. Therefore, there was no s.7 violation.
R. v. Godin (1994) SCC
Intent was not required respecting those consequences of wounding, maiming or disfiguring. The fault element was deemed to be objective flowing from DeSousa and Creighton. This decision has been criticized because it has added the crime of aggravated assault to the uncertain list of predicate offences for which the fault requirement is much reduced.
RAPE AND SEXUAL ASSAULT
In 1983, the crime of rape was replaced by a 3 tier approach to sexual assault:
s.271 – sexual assault
s.272.1 – sexual assault with a weapon
s. 273 – aggravated sexual assault (wounds, maimed)
Clark and Lewis Report (1977)
Determined that there was great need for reform of these laws because only 10% of rapes were reported and the conviction rate was only 52% compared to 82% for other indictable offences. The purpose of the change was to shift the focus from the sexual nature of the offence to violence. Before 1983, rape was defined as sexual intercourse (penetration was needed) with a female other than the accused’s wife. The marital rape provision was lifted in 1983 and the section was made gender neutral. Many years ago, rape was dealt with through economic compensation to the victim that was fixed based on the severity of the offence. Also, the prior sexual history of the victim was fair game and the doctrine of recent complaint made it necessary for the complainant to come forward at the first possible opportunity. Finally, the testimony of complainants had to be corroborated by experts, such as physicians. Feminists think that women are twice victimized in the process of seeking justice – when they are assaulted and when they are brought before a “patriarchal court system.” Studies have shown that as many as 40% of complainants have been found to have fabricated sexual assault. In 1992, Parliament introduced an amendment that codified “no means no” in response to the controversial rape shield ruling of the SCC in Seaboyer (the exclusion of evidence under CC276 of prior sexual history of a complainant violated the accused’s right to make a full answer and defense under s.7 and 11d). This case was surrounded by media outcry and led to Bill C-49, which enacted provisions to the CC outlining what constitutes consent. Parliament defined consent for sexual assault as a voluntary agreement of the complainant to engage in the sexual activity in question. Consent is said not to exist in cases where:
1. A third party gives the consent
2. The complainant is incapable of deciding (intoxicated, mentally incapacitated)
3. Abuse of trust, power or authority
4. The victim states they don’t want to do it
Bill C-49 also looked at the honest but mistaken belief in consent defense.
R. v. Chase (1987) SCC
This case surveyed the meaning of sexual assault after a young girl complained that her breasts had been touched. The NBCA said that “sexual” should be taken to mean parts of the body, i.e. genitals. A broader definition of the term they continued would only lead to absurd results. In this case, there was no contact with the complainants genitals (contact was restricted to her breasts) which meant that her complaint should have been viewed as a common assault rather than a sexual assault. The SCC restored the conviction of sexual assault due to the ample evidence that existed – breast grabbing constituted an assault of a sexual nature. The SCC asserted that the definition of sexual assault should develop on a case by case basis. The SCC adopted a three stage test:
1. The test for recognition of sexual assault doesn’t depend solely on contact with specific areas of the body.
2. Sexual assault is not confined to attacks from a member of one sex to a member of the other.
3. New offence is truly new and does not merely duplicate the offence it replaces.
Sexual assault is a general intent offence – anything else would hamper the enforcement process (Litchfield – no need to prove specific intent re: the sexual nature of the assault seeing that it forms part of the actus reus). Looks at whether the attack is one of a sexual nature.
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