Lecture 3B
R v Molis [1980]
Appellant: Albert Peter Molis ; Respondent: Crown
On appeal from Ontario Court of Appeal
Facts
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Charge: trafficking restricted drug (MDMA)
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Not a restricted drug months prior to arrest
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New law published in Canada Gazette
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Issue
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Law was not yet in the Criminal Code
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Is ignorance of law a reasonable defence?
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Decision
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Appeal is dismissed: Molis lost
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Reason
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Ignorance is not a defence ; Gazette is public & sufficient
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Did not meet standard of due diligence (did not try as hard as he could have to find out if it was illegal)
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Relevance
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R v Cooper [1993]
Appellant: Crown ; Respondent: Lyndon Paul Cooper
On appeal from Newfoundland Court of Appeal
Facts
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Cooper was drinking with victim
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Sitting in the jeep Cooper was hit so he grabbed the victims throat
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Cooper woke up, and saw the body
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Cooper charged with 2nd degree murder
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Issue
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Nature of intent required for murder conviction under Criminal Code s 212 (a) (ii)
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Subjective intent to cause bodily harm
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Subjective knowledge that bodily harm is likely to result in death
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Decision
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Appeal allowed: Crown won
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Reason
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Cooper had intent at some point during the Actus Reus
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Blacking out is not a defence
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Relevance
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Mens Rea & Actus Reus must coincide at some point
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Intent need not be throughout
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Concept: de minimis
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Common law concept used in defence
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Long form: de minimis non curat lex
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Law should not punish a “mere trifle” (p. 90)
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Applies in disputes over trivial matters
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Small amount of drug possession; theft od small value object
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Intended to not over-criminalize, stigmatize
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Can be applied to determine significant contributing cause
R v Nette [2001]
Appellant: Daniel Matthew Nette ; Respondent: Crown
On appeal from British Columbia Court of Appeal
Facts
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95 year old woman robbed and left bound with head covered
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She had been suffocated within the last 48 hours
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Charge: 1st degree murder
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Conviction: 2nd degree murder
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Issue
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How to decide when cause was not trivial?
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Usefulness of de minimis test for juries
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Decision
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Appeal was dismissed: Nette lost
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2nd degree murder charge was upheld
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Jury was correct, but the instructions should change
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Reason
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Test should ask if cause is significant, rather than ask if cause is “not insignificant”
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Relevance
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Causation test should be worded positively for juries deciding 2nd degree murder charge
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Avoid the latin
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Facts
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95 year old woman robbed and left bound with head covered
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She had been suffocated within the last 48 hours
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Charge: 1st degree murder
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Conviction: 2nd degree murder
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Issue
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How to decide when cause was not trivial?
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Usefulness of de minimis test for juries
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Decision
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Appeal was dismissed: Nette lost
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2nd degree murder charge was upheld
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Jury was correct, but the instructions should change
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Reason
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Test should ask if cause is significant, rather than ask if cause is “not insignificant”
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Relevance
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Causation test should be worded positively for juries deciding 2nd degree murder charge
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Avoid the latin
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R v Naglik [1993]
Appellant / Respondent: Christine Naglik (appealed conviction)
Respondent / Appellant: Crown (cross-appealed application of law by lower court)
On appeal from the Ontario Court of Appeal
Facts
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Charge: Failure to provide the necessaries of life for her son
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Objective test applied
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Naglik was convicted ; her husband was not
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Issue
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Applicability of objective standard of care
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Does Criminal Code s 215 violate Charter s 7 (stigma)?
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As a parent, foster parent, guardian or head of a family to provide necessaries of life for a child under the age of sixteen years
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Decision
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Appeal and cross-appeal allowed
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Convictions set aside; retrial allowed
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Reason
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Objective standard applies
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Does not violate Charter s. 7
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Relevance
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