Mandatory Presumption
R. v. Whyte (1988) SCC
The accused was charged with having care and control of a motor vehicle while his ability was impaired. CC234.1 provides that “everyone who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, while his ability to drive is impaired by alcohol or a drug, is guilty of an indictable offence. CC237.1.a. states that one shall be “deemed to have had the control and care of the vehicle unless he establishes that he did not enter or mount the vehicle for the purposes of setting it in motion.” In this case, there was a violation of s.11d because it required the accused to be convicted even if he was able to raise a reasonable doubt about the intent to put the vehicle in motion, but was unable to prove on a balance of probabilities that there was no such intent. This, in turn, triggered a mandatory presumption that the accused was in care and control of the vehicle. This violation passed the Oakes Test and was thus justified due to the problems brought on by drunk driving. The same occurred in R. v. Chaulk (1900) SCC, where the constitutionality of the reverse onus provision regarding the defense of insanity was held violate s.11.d but was nonetheless saved by s.1. Any type of burden of proof on the accused is a prima facie violation of s.11d. Prof. Morrison likes the Edward Books approach the best, under which the test for minimum intrusion asks whether the right is restricted as little as possible.
R. v. Downey (1992)
The accused was said to be living off the avails of prostitution; however, Cory J. clarified that living with a prostitute doesn’t mean they are living off the avails and that such a mandatory presumption was contrary to the presumption of innocence found in s.11d. “Pointing the finger of suspicion.” The court did hold that a mandatory burden that could be displaced by satisfying an evidential burden was justified under s.1 because it is necessary to counter the evils of pimping.
Judicial Bias
R. v. R.D.S. (1997) SCC
A black fifteen year-old was arrested for interfering in the arrest of another youth. The controversy emerged out of the fact that the black judge commented “certainly police officers over react, particularly when dealing with non-white groups.” Cory J. says that it seems that the black judge predetermined the issue of credibility; however, within the entire context, she was just exploring possible reasons. He continued by saying that a high standard must be met before finding of a reasonable apprehension of bias can be made. Major J. “life experience is not a substitute for evidence.” It was open to the appellant to introduce evidence that this police officer was racist and that racism motivated his actions or that he lied. This was not done. L’Heureux-Dube J. says judges should be able to draw on their varied perspectives in decision making. At no time did the black judge rule that the police officer was motivated by racism; however, she goes on to say that if the judge had attributed the officer’s behavior to the racial dynamics of the situation, she would not necessarily have erred.
IV. THE ACT REQUIREMENT (ACTUS REUS)
Actus Reus
The actus reus is shorthand for a variety of behavior and must be present in an offence for criminal liability to be imposed (the mens rea, of course, must also be present and coincidental in time with the guilty act). The actus reus is “an act of commission or omission by a human being that is voluntary and the consequences are part of the definition that has caused those consequences.” Normally, the actus reus applies to a positive act (Acts of Commission). Problems often arise when legislation fails to define the act for a particular crime. Even when it is defined, it can still require careful judicial attention. The age for criminal liability in Canada is 12 years old. The broad range of prohibited acts in the CC requires the judge to distinguish at sentencing among the relative culpability of various levels of participation in crimes. There also numerous policy elements at play, for example, those that vitiate the consent of the complainant.
R. v. Hutt (1978) SCC
This case involved whether the CA erred in interpreting the word “solicit” in CC195.1. Under the legislation, solicitation for the purposes of prostitution must occur in a public place. This transaction did not begin until the prostitute was in the undercover officer’s car. Solicitation involves pestering, pressing or persisting, which did not happen in this case.
Prostitution Reference (1990) SCC
It was claimed that CC195.1 (now 213.1.c), which prohibits communicating for the purposes of prostitution, was a violation of s.2b of the Charter; however, this limit was justified under s.1 as a reasonable and justifiable limit to freedom of expression. Communication for this purpose hardly lies at the core of the s.2b guarantee. The claim that the provision was overbroad also failed due to the need for Parliament to be flexible. Wilson J dissented on the basis that this provision was an attempt to control prostitution, a perfectly legal activity.
Marshall v. R. (1969) Alta. CA
Marshall was charged jointly with three others under s.4.2 of the Narcotic Control Act for being “unlawfully in possession of a narcotic for the purpose of trafficking.” Marshall was a youth and claimed to have been “just getting a ride back” to Calgary. The trial judge found that though Marshall never exercised control over the substance, having ridden in the car for as long he did without any protestations or act that separated him from the others, amounted to acquiescence. The CA found that being in the car with the drugs, though foolish, did not constitute having possession or control over the marijuana.
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