- Home
- Constitutional - Index
- Constitutional Law1
- Constitutional Law2
- Professional Responsibility - Index
- Professional Responsibility
- Criminal Law - INDEX
- Criminal Law
- Criminal Procedure - INDEX
- Criminal Procedure
- Criminal Procedure Glossary
- Foundations of Canadian Law - INDEX
- Foundations of Canadian Law
- Foundations.notes 2
- Foundations of Canadian Law.cases - INDEX
- Foundations of Canadian Law.cases
- Foundations of Canadian Law.articles - INDEX
- Foundations of Canadian Law.articles
- Administrative Law - INDEX
- Administrative Law
- Administrative.notes 2
- Administrative.notes 3
- Administrative Law.B - INDEX
- Administrative Law.B notes
- Admin Law. Quick Notes
CRIMINAL LAW
GENERAL OVERVIEW AND PRELIMINARY MATTERS
1. The Sources of Criminal Law
With the exception of contempt of court, criminal offences are created in Canada by statute. Most criminal offences are created by Criminal Code. Drug trafficking, for example, is made a criminal offence by the Controlled Drugs and Substances act. The common law cannot be used to created offences in Canada because of concerns related to the principle of legality, and the notion that criminal offences should be clear, certain, and should pre-exist the act being prosecuted. Many rules of criminal procedure are created in the Criminal Code, and many other rules of procedure are common law based.
Frey v Fedoruk (1950) S.C.R. 617
PRINCIPLE: No one shall be convicted of a crime unless the offence charged is recognized as such by the Criminal Code, or can be established by the authority of some reported case as an offence known to the law.
FACTS (Civil case): P was arrested by Ds (police + homeowner) for “peeping tommery,” under the provision of disturbance of the peace.
ISSUE: P is suing D because peeping tommery is not a crime.
HELD: Peeping tommery is not a criminal offense, because of no precedence. Thus P was falsely imprisoned.
NOTES:
· The “generic principle” of “breach of the King’s peace” is too vague and all-encompassing.
· Common law offenses do not exist(except the law of contempt for court).
o Not true for defenses. (ie. self-defense, etc.) Common law arguments can be used. This allows more room for the accused to defend themselves (gives them the benefit of the doubt).
CC s.9: This section prohibits conviction or finding of guilty of offences at s.9(a) common law or under statutes other than those of the Parliament of Canada. The exception is contempt of court.
While common law offences are not allowed, common law defences are available under Canadian criminal law and can still be created by the courts. The SCC recognized a common law defence in Levis(City) v Tetrault (2006) 1 S.C.R. 420. Moreover, the common law can deeply influence the way that statutory criminal offences are interpreted.
CC s.8: This section describes the application of the Code and the extent to which the criminal and common law of England continues to apply under the Code.
R v Jobidon (1991) 2 S.C.R. 714
PRINCIPLE: Under s.8(3), courts may look to pre-existing common law rules and principles to give meaning to and explain the outlines and boundaries of an existing defence or justification to indicate where they will not be held legally effective, provided there is no clear language in the Code to indicate its displacement of the common law.
FACTS: The appellant and the deceased were involved in a fist fight. The appellant punched the deceased who fell onto the hood of a car. Unaware that the deceased was unconscious, the appellant continued to punch the deceased on the head. The victim died as a result of one of the punches received from the appellant. The trial judge held that the appellant did not intend to kill the deceased and that he believed that the deceased had consented to a fight. The trial judge held that the victim's consent negated assault and that there was no criminal negligence.
ISSUE: whether absence of consent is a material element which must be proved by the Crown in all cases of assault or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases.
HELD: Appeal dismissed. The common law limitations to consent applied in the context of section 265 of the Criminal Code. Thus the victim's consent to a fist fight did not preclude the commission of an assault under section 265. The limits on consent to assault vitiated consent between adults to apply force causing serious bodily harm to each other in the course of a fist fight.
Gonthier J. (majority):
Gonthier J. states that public policy is the reason why the common law defence of “consent” cannot be used as a defence to a fist fight.
Sopinka J. states that although public policy is sufficient to conclude the absence of consent, the proposition is strengthened by s.9(a) CC which provides that “notwithstanding anything in this Act or any other Act, no person shall be convicted ... (a) of an offence at common law”. Thus, the effect of Gonthier J.’s approach would be to create an offence where one does not exist under the terms of the Code by application of the common law. The offence created is the intentional application of force with the consent of the victim. “... use of the common law to eliminate an element of the offence that is required by statute is more than interpretation and is contrary to s.9(a).
2. The Power to Create Criminal Offences and Rules of Criminal Procedure
a) Constitutional Division of Powers Introduced – Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences) and to use jail to enforce those regulatory offences, but only the Federal Government can create “criminal” offences, or “true crimes”, pursuant to its powers under s.91(27) of the Constitution Act, 1867. The principles that apply to true crimes differ from those that apply to regulatory offences.
Curiously, while they cannot create criminal offences, Canadian provinces do have jurisdiction over the administration of justice within the province under s.92(14) of the Constitution Act, 1867. For example, the provinces have set up the lowest level of criminal court where the vast majority of cases are actually prosecuted (the provincial courts); it is the provincial Attorneys General who prosecute most offences, including serious offences; and the provinces have passed statutes setting out juror eligibility within the province. The procedure during criminal hearings, however, is governed by Federal rules and by the common law.
Distribution of powers
Since 1892, the criminal law has been codified in one federally-enacted Criminal Code. However, for the most part, the Criminal Code is enforced by the provinces; and the decisions to investigate, charge and prosecute offences are therefore matters of provincial policy.
s.91(27) – confers on Parliament the power to make laws in relation to: “the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters”.
P.A.T.A. case (1931) – Lord Atkin: “... Is the act prohibited with penal consequences?”
Margarine Reference (1951)
The third ingredient of a criminal law is a (3) “criminal purpose”.
R v Malmo-Levine (2003) SCC 74
ISSUE: The federal Narcotic Control Act’s criminalization of the possession of marijuana was challenged. Also, D’s argued that marijuana causes no harm.
HELD: the Act was a valid exercise of the criminal law power under s.91(27), and overruled Hauser which held that the Act came within the national concern branch of POGG. The presence of harm to others was not a requirement of a valid criminal law. Also, the court did succeed in identifying some harms caused by marijuana use (i.e. memory loss, etc).
(2) backed by a prohibition, and
(3) a penalty”
The Charter can be used by courts to invalidate offences that Parliament has created, and courts have done so on a number of occasions, but this is not common. It has also been used to strike down rules of criminal procedure, although this too is uncommon.
Example of a criminal offence being struck down:
R v Heywood (1994) 3 S.C.R. 761
FACTS: The respondent was convicted of sexually assaulting children. Pursuant to section 179(10)(b) of the Criminal Code he was prohibited from loitering near playgrounds, school yards or public parks. He was arrested when he was seen at a public park and near a playground. The respondent argued that section 179(1)(b) of the Criminal Code violated sections 7, 11(d), 11(h) and 12 of the Canadian Charter of Rights and Freedoms.
HELD: Appeal dismissed. Section 179(1)(b) violated section 7 of the Charter and was not justified under section 1. Section 179(1)(b) was overbroad in that it applied to the accused without notice and it was too broad in its geographical ambit. It was also overly broad in that it applied to an accused for life with no possibility of review.
Example of a rule of criminal procedure being struck down:
R v Oakes (1986) 1 S.C.R. 103
FACTS: The Court of Appeal held that s. 8 of the Narcotic Control Act was unconstitutional as violating s. 11(d) of the Charter. Section 8 constituted the "reverse onus" clause under which if the accused was found in possession of a narcotic he was presumed to be in possession for the purpose of trafficking and must be convicted of trafficking unless he rebutted the presumption. The constitutionality of this question was again raised on the Crown's appeal to the Supreme Court of Canada.
HELD: The appeal was dismissed. The presumption of the accused's innocence was protected expressly by s. 11(d) and inferentially by s. 7 of the Charter. Section 8 of the Narcotic Control Act infringed s. 11(d) of the Charter by requiring the accused to disprove the existence of a presumed fact. There was no rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking. The Court was not satisfied that the limitation of the right in s. 8 of the Act was reasonable and demonstrably justified in a free and democratic society.
The Charter can also be used as an important interpretive tool. Even when it is not used to strike down a provision, it is practice of courts to permit constitutional values to influence the way statutes are interpreted. The Charter’s largest impact on criminal procedure has been in creating constitutional procedural protections.
Example of how the Charter changed the criminal concept of indecency through a progression of cases described therein:
Defining indecency under the Criminal Code is notoriously difficult. The CC offers no assistance, leaving the task to judges:
Butler (1992) 1 S.C.R. 452
PRINCIPLE: Butler created the harm-based test. Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society.
FACTS: The appellant owned a store which sold and rented hard-core pornographic videotapes and magazines. He was charged with several counts of selling obscene material and possessing obscene material for the purpose of distribution. At trial, the appellant was convicted on some of the charges and acquitted on others. The trial judge held that the obscene material was protected by section 2(b) of the Canadian Charter of Rights and Freedoms. He held that only materials which contained violence or cruelty intermingled with sexual activity or which were otherwise dehumanizing were legitimately proscribed under section 1 of the Charter.
HELD: Appeal allowed; a new trial was ordered. The definition of obscenity contained in section 163(8) of the Criminal Code provides an exhaustive test of obscenity with respect to publications and objects which exploit sex as a dominant characteristic. In order to determine whether the exploitation was "undue", the court must apply the community standard of tolerance test and determine what Canadians would not tolerate other Canadians being exposed to on the basis of harm that may flow from such exposure.
Follows Butler:
R v Labaye (2005) S.C.J. No.83 and R v Kouri (2005) SCC 81
PRINCIPLE: SCC abandons the community standard of tolerance test for indecency in favour of an objectively determined harms approach.
FACTS: The accused was charged with keeping a common bawdy-house for the practice of acts of indecency under s. 210(1) of the Criminal Code. The accused operated a club in Montréal the purpose of which was to permit couples and single people to meet each other for group sex. Only members and their guests were admitted to the club. Prospective members were interviewed to ensure that they were aware of the nature of the activities of the club. A doorman manned the main door of the club, to ensure that only members and their guests entered. The club had three floors. Two doors separated the third floor apartment from the rest of the club. One was marked "Privé" and the other was locked with a numeric key pad. This was the only place where group sex took place. At trial, the accused was convicted. The trial judge found that the accused's apartment fell within the meaning of "public place", as defined in s. 197(1) of the Criminal Code. A majority of the Quebec Court of Appeal upheld the accused's conviction.
HELD: Appeal allowed, on the new approach both accused should be acquitted. The CA erred in applying an essentially subjective community standard of tolerance test and failing to apply the harm-based test of Butler.
In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met:
(1) The first is that by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
Dissent LeBel J. (Bastarache J):
(c) Rules of Practice – Section 482 of the Criminal Code permits courts to create rules of practice to govern the administrative mechanics of practice in criminal courts. Example: R v Grundy (2008) O.J. No.1410
3. The Classification of Offences
In Canada, criminal offences are divided into two general categories: “indictable offences” and “summary” (or “summary conviction”) offences. Offences can be “hybrid” in the sense that the prosecutor has the right to elect whether to treat the offence as “indictable” or “summary”. The classification of offences has important implications for the penalties that are possible, and for the procedure that will be used, including the mode of trial.
Modes of trial:
(1) In front of the “court of criminal jurisdiction”, and
In front of the “superior court of criminal jurisdiction” who can hear matters in two ways:
(2) Without a jury (a ‘judge alone’ trial) or
(3) With a jury
Summary conviction offences – the only mode of trial is in the court of criminal jurisdiction.
Indictable offences – the accused has an “election” and can choose whether to have a trial by superior court judge and jury, by superior court judge alone, or by provincial court judge.
HOWEVER, having given that election to the accused, the Code then takes it away in a number of situations:
Criminal offences are classified as indictable or summary conviction. Hybrid offences should not be viewed as a third classification of offences because they represent no more than a legislative decision to allow the prosecution the right to elect to proceed by one form of procedure or the other.
Summary conviction offences
Indictable offences
Hybrid offences
Seriousness – Less serious than indictable offences.
Limitations – Yes “statute of limitations” – Summary conviction offences are time-barred six months after the completion of the offence.
Sentencing – allow a maximum of six months or a fine of $2,000, or both (unless otherwise provided).
Seriousness – More serious than summary offences.
Limitations – No “statute of limitations”.
Sentencing – allow a maximum term of imprisonment that exceeds two years
Limitations – If a hybrid offence could be charged in relation to conduct that was completed more than six months previously, the prosecutor is not generally time-barred against proceeding by way of indictment.
Summary conviction offences – in all summary conviction matters, and some indictable matters, the information remains the document of charge throughout the proceedings. The proceedings at trial are conducted in the provincial court.
Indictable offences – the usual procedure is to begin with a preliminary inquiry on the information before a provincial court judge.
Interpreting the Criminal Code and related enactments is not unlike interpreting other statutes. There are special considerations that operate, however. For example:
(a) Definitions – The Criminal Code has definitions for many of the terms used but they are not always easy to locate. Section 2 contains definitions that apply throughout the Code. The Code is divided into Parts, and at the beginning of each Part, there will be a definition section that applies solely to that Part. Sometimes definitions are found in or around the relevant statutory provision to be interpreted. See, for example, ss.348(3) and 350, which apply to offences in s.348(1) (i.e., breaking and entering).
(b) Strict Construction – Historically, criminal statutes were interpreted strictly in favour of the liberty of the accused. In other words, the accused would get the benefit of the doubt or ambiguity in matters of interpretation. This principle continues to apply but has been heavily modified by the purposive interpretation.
R v Pare (1987) 2 S.C.R. 618
FACTS: The respondent, who was 17 years old, lured a seven-year-old boy from a swimming pool to a parking lot where the respondent indecently assaulted him. The respondent then got dressed but became afraid that the boy was going to inform his mother what had happened. The respondent thereupon killed the boy by strangulation and by hitting him on the head. The respondent was found guilty of first degree murder by the trial court. The verdict was reduced to guilty of second degree murder by the Court of Appeal on the basis that the respondent had not murdered the boy "while committing" the indecent assault. The Crown appealed on the basis that the Court of Appeal erred in concluding that s. 214(5) of the Cr. Code created a substantive offence of murder and that it erred in its interpretation of the words "while committing".
HELD: The appeal was allowed and the conviction for first degree murder was restored. With respect to the interpretation of the words "while committing" the literal meaning applied by the Court of Appeal was too restrictive. It was the continuing illegal domination of the victim giving continuity to the sequence of events and culminating in the murder of the victim that was to be considered. The murder, being the exploitation of the position of power created by the underlying crime, made the entire course of conduct a single transaction. The murder, committed two minutes after the assault out of fear that the victim would tell his mother what had happened, was temporally and casually connected to the underlying offence so that they formed one continuous sequence of events.
R v McIntosh (1995) – “It is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable provision”.
PRINCIPLE: the principle of strict construction applies only in cases of ‘true ambiguity’. Words must be determined by examining the context they are in.
FACTS: The forged credit card charges were laid under s.369(b) CC alleging that the accused was in possession of various machines and materials adapted for and intended to be used to create forged credit cards.
ISSUE: The word “adapted” was argued to mean “altered so as to be suitable for” by the accused, opposed to how the judge instructed the jury with saying “suitable for”.
HELD: Given real ambiguity, the offence of possession of machines “adapted” for creating credit cards had to be given the strict construction of “altered so as to be suitable for” rather than just “suitable for”.
Doherty J.A. – “The principle that ambiguous penal provisions must be interpreted in favour of an accused does not mean that the most restrictive possible meaning of any word used in the penal statute must always be the preferred meaning. The principle applies only where there is true ambiguity as to the meaning of a word in a penal statute. The meaning of words cannot be determined by examining those words in isolation. Meaning is discerned by examining words in their context. True ambiguities in a statute exist only where the meaning remains unclear after a full contextual analysis of the statute”.
(c) Purposive Interpretation – Canadian law makes liberal use of purposive interpretation, in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole, with the underlying purpose of the provision in mind so as to best accomplish its underlying purpose, always bearing in mind that the limit on purposive interpretation is that damage cannot be done to the language employed. R v Pare is an example.
Hunter v Southam Inc. (1984) 2 S.C.R. 145
“The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms ...”
HELD: Under this purposive approach the interest to be protected under s.8 was privacy, and the purposive way to protect that interest was to require a police officer to obtain a search warrant to search unless that was not feasible.
(d) French/English – Federal laws like the Criminal Code are passed in both of Canada’s official languages. Each version is equally authoritative, and ambiguities in one language can be clarified by the other.
R v J.(D). (2002) O.J. No. 4916 (Ont. C.A.)
FACTS: Appeal by JD, a young person, from a conviction for forcible entry (that is, entry into his friend’s home). He let JD enter and JD told VB's son to pretend that he, JD, lived there. JD then headed straight for the back door, but found that a couch prevented his exiting through it.... HELD: Appeal allowed, conviction set aside and acquittal entered. Forcible entry occurred only where the entry interfered with the peaceable possession of a person in actual possession of the property. A known person simply walking in the front door, straight through the residence and out the back door did not have such an intention. Further, JD did not act in a manner likely to cause a breach of the peace or a reasonable apprehension of such a breach.
French/English interpretations:
(e) The Charter – The Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid.
A Charter challenge encouraged the Court to read significant content into the concept of “reasonable corrective force”:
Canadian Foundation for Children, Youth & the Law v Canada (A.G.) (2004) 1 S.C.R. 76
PRINCIPLE: VAGUENESS and corrective force.
FACTS: Appeal by the Canadian Foundation for Children, Youth and the Law from the dismissal of its appeal from the dismissal of its application for a declaration that section 43 of the Criminal Code violated the Charter. Section 43 permitted schoolteachers and parents to use force by way of correction to a child where such force did not exceed what was reasonable under the circumstances.
HELD: Appeal dismissed. While, as conceded by the Crown, section 43 violated children's rights to security of the person, it did not offend a principle of fundamental justice in violation of section 7 of the Charter. The section accorded procedural safeguards. The best interests of the child principle was not a principle of fundamental justice. Finally, the section was not impermissibly vague or overly broad. The phrases by way of correction and reasonable under the circumstances provided sufficient precision to delineate the zone of risk of criminal sanction having regard to international treaty obligations, the social consensus, expert evidence and judicial interpretation. Pursuant to these resources, the force used had to be for the purposes of education or correction, and could not be more than trifling. Corporal punishment against children under two or teenagers, degrading, inhuman or harmful conduct and the use of objects or blows to the head were not protected by section 43. Teachers were not permitted to use corporal punishment, but could use force to remove a child from a class or secure compliance with instructions. As section 43 only permitted reasonable corrective force, it did not breach section 12 of the Charter by permitting cruel and unusual punishment against children. Finally, section 43 did not violate children's section 15(1) equality rights. Children needed a safe environment, but they also depended on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development.
The Standard for “Vagueness”
A law is unconstitutionally vague if it “does not provide an adequate basis for legal debate” and “analysis”: “does not sufficiently delineate any area of risk”; or “is not intelligible”. The law must offer a “grasp to the judiciary”. Certainty is not required.
s.43 sets real boundaries and delineates a risk zone for criminal sanction. It does not violate the principle of fundamental justice that laws must not be vague or arbitrary. It is not overbroad.
THE ELEMENTS OF A CRIMINAL or REGULATORY OFFENCE
Each criminal offence has “elements” that must be present before a conviction is possible. Indeed, all elements of the offence must be present at the same time, or there will be no crime (see R v Williams). As is the case internationally, it is convenient to think of the elements of an offence as:
As a general proposition of interpretation, a true crime will be interpreted as requiring subjective mens rea unless it is clear that Parliament wished to impose objective liability. Identifying what the elements of an offence are is a challenging enterprise, turning on interpretation of the offence and familiarity with relevant precedents and principles. It is not possible or desirable to attempt here to “teach” the elements of every offense. Instead, some offences will be selected for their illustrative value in demonstrating the key actus reus and mens rea concepts. Applicants are expected to be able to demonstrate interpretive and application skills for all criminal offences, whether included in these reading materials or not.
Subjective mens rea (accused’s state of mind)
Objective mens rea (reasonable person)
Intent
Planning and premeditation
Recklessness
Knowledge
Wilful blindness
Negligence
5. The Actus Reus
(a) Acts and Statutory Conditions – The act must be the act of the accused and must be the kind of act described in the relevant provision. Further, the act must be committed under the circumstances or conditions specified in the offence. For example, an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s.348(1)(a) unless he “breaks” and “enters” something that qualifies as a “place” according to the CC, with the relevant mens rea.
Example of interpretation of the actus reus conditions not being met:
R v J.(D). (2002) O.J. No. 4916 (Ont. C.A.)
FACTS: Appeal by JD, a young person, from a conviction for forcible entry (that is, entry into his friend’s home). While investigating a break and enter, a police dog picked up JD's scent and followed it to a park. When approached by police officers, JD fled to VB's house. VB knew JD as the friend of her children, one of whom answered the door when JD knocked. He let JD enter and JD told VB's son to pretend that he, JD, lived there. JD then headed straight for the back door, but found that a couch prevented his exiting through it. The police arrived at VB's front door, and VB let them in, whereupon they arrested JD without incident. The trial judge found that forcible entry did not require any force as long as the surrounding circumstances gave rise to a reasonable apprehension of a breach of the peace.
HELD: Appeal allowed, conviction set aside and acquittal entered. Forcible entry occurred only where the entry interfered with the peaceable possession of a person in actual possession of the property. A known person simply walking in the front door, straight through the residence and out the back door did not have such an intention. Further, JD did not act in a manner likely to cause a breach of the peace or a reasonable apprehension of such a breach.
Example of interpretation of the actus reus conditions being met:
R v D’Angelo (2002) O.J. No. 4312 (Ont. C.A.)
FACTS: Appeal by the Crown from the acquittal of the accused, D'Angelo. D'Angelo was on probation in relation to a conviction for sexual interference with a minor. He was under a 10-year prohibition order not to be in a public swimming place where persons under 14 might be present. D'Angelo was arrested swimming in his condominium community's pool, where minors were present, including children taking swimming classes. He argued at trial that the pool was not a "public" swimming pool because it was restricted to members of the condominium's club. The pool serviced over 8,000 people. The trial judge found that the pool was not public, since the membership had not opened it to use by the general public, and acquitted D'Angelo. The Crown argued that the pool was a public swimming pool, and pointed to the fact that it served such a large community, and to the fact that no one had been refused membership in the club in 10 years.
ISSUE: The sole issue on the appeal is whether the trial judge erred in her interpretation and application of the words "public swimming area" in s. 161 of the Criminal Code.
HELD: Appeal allowed. Considering the large size of the community served by the pool, it could not be considered anything other than public. A new trial was ordered.
(b) Acts Must be “Voluntary” or “Willed” – The act described by the offence must be “voluntary” in the sense that it must be the willed act of the accused. For example, a man in the throes of a seizure does not “will” his movements; it would be no assault on his part even if his arm was to strike another without the other’s consent. It would have been possible to deal with this kind of issue using the mens rea concept by suggesting that he did not intend to strike the other, but Canadian law has also accepted that unless a physical motion is wilful, it is not fair to call it an act of the accused person. This is the foundation for the automatism defence (below). It is easier to understand the concept of voluntariness together with automatism authorities, so this discussion will be deferred until the voluntariness-based defences (below).
(c) The “Act” of Possession – At times part of the actus reus for an offence has an inherent mental element to it, as it does with the important element, common to many offences, of “possession”. This concept demonstrates that the divide between the actus reus and mens rea is not a solid one. What matters is that lawyers appreciate what the elements are, regardless of how they are characterized.
CC s.4(3) Possession – For the purposes of this Act,
(a) a person has anything in “possession” when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
s.4(3)(a) – personal possession
ss.4(3)(a)(i) and 4(3)(a)(ii) – constructive possession (or attributed possession)
s.4(3)(b) – joint possession
The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence.
Controlled Drugs and Substances Act
s.2(1) Definitions – In this Act,
“possession” means possession within the meaning of subsection 4(3) of the Criminal Code.
R v York (2005) 193 C.C.C. (3d) 331 (B.C.C.A.)
PRINCIPLE: knowledge of stolen goods and exercising control over the goods (even if a brief period) will not constitute possession if the goods were not taken into custody with the intention of using them in a prohibited manner.
FACTS: York operated a warehouse with several business partners. York discovered vans with furniture parked outside the warehouse. One of his business partners refused to disclose the origin of the goods. York realized the goods were stolen and drove the vans away in order to take them off his property. York was stopped by the police and charged with theft and possession of stolen property. At trial, the judge stated that he had reasonable doubt about York's involvement in the theft, that he believed York's explanation about the manner in which York came into possession of the goods, but convicted York.
HELD: Appeal allowed. While York knew the goods were stolen and he exercised control over the goods for a brief period of time, he did not take the objects into custody with the intention of using them in a prohibited manner. York's conduct was inconsistent with any intention to retain or deal with the goods. The judge should have acquitted York given that he believed his explanation and that he had reasonable doubt about his guilt.
R v Marshall (1969) 3 C.C.C. 149 (Alta. C.A.)
PRINCIPLE: Knowledge of the presence of a narcotic does not constitute consent.
FACTS: This was an appeal by the accused who was convicted of the unlawful possession of marijuana for trafficking. He was a 16 year-old student and had gone for a weekend holiday trip in a friend's car. On the return journey, the accused learned of the presence of the prohibited drug in the car. He, unlike his friends, did not smoke marijuana. He testified that he remained in the car because he had no money and had to get back to class. He was convicted and had brought this appeal on the ground that the trial magistrate was wrong in coming to the conclusion that he was in possession of the prohibited drug simply because he was in the car. The prosecution relied on Criminal Code, s. 3(4)(b) which provides that "where one of two or more persons with the knowledge and consent of the rest, has anything in his custody or possession, it shall lie deemed to be in the custody and possession of each and all of them". It was also pointed out that the appellant had passed on the hookah pipe which amounted to his consent.
ISSUE: There is no doubt that Marshall had knowledge of the marijuana being in the car so the question is did he consent to it being there.
HELD: The appeal was allowed and the conviction was quashed. The Appellate Court believed the story of the appellant in that he had no alternative but to continue to remain in the car or hitchhike as he had no money with him and he wanted to be back for his classes. He could not control the persons possessing marijuana. He himself did not smoke it. He did nothing to impede the police, although he did not volunteer any assistance to them. Under the circumstances of this case, the appellant's conduct on the whole was childish and silly but that did not make him guilty of the offence. Passing of the hookah pipe came close to consent but that was done in a reflex action.
· “In my opinion, although Marshall certainly had knowledge of the presence of the marijuana he had no control, right to control, nor did he consent to its presence”.
· The trial judge might not have believed his story but once it was believed his decision to continue the journey was consent to riding in the car, but such consent does not mean he consented to the marijuana being in the car.
R v Pham (2005) O.J. No. 5127 (Ont. C.A.)
PRINCIPLE: direct evidence of knowledge (i.e. of narcotics) is not essential to prove, knowledge could be established by circumstantial evidence.
FACTS: Appeal by Pham from her conviction for possession of cocaine for the purpose of trafficking. A neighbour testified she witnessed numerous visitors to Pham and Nguyen's apartment who would slip money under the door and that clear plastic bags containing white stuff would then be passed out from the apartment. The neighbour heard Pham's voice on several occasions and twice saw Pham open the apartment door during these exchanges. Drugs were found in the apartment Pham shared with Nguyen. The drugs were found in plain view and in close proximity to Pham's possessions. Pham was not present when the drugs were seized. Nguyen was jointly charged but those charges were later dismissed. Pham claimed the drugs belonged to Nguyen. Pham was found in constructive possession of the drugs. The judge found the drugs were in the apartment before Pham went out.
Appellant’s argument: Nguyen was trafficking cocaine during her absence and therefore the drugs and money, all of which were found in a common are of the apartment (i.e. bathroom) could reasonably belong to Nguyen.
Crown’s argument: on the facts, constructive or joint possession has been proven.
ISSUE: whether the appellant had knowledge and control of the cocaine found in the black cloth purse in the bathroom, sufficient to constitute constructive or joint possession as defined in s.4(3)(a) and (b) CC.
s.4(3)(a) – personal possession
ss.4(3)(a)(i) and 4(3)(a)(ii) – constructive possession (or attributed possession)
s.4(3)(b) – joint possession
HELD: Appeal dismissed. The foregoing provided ample basis to found an inference of the requisite knowledge and supported the trial judge’s finding that the appellant had sufficient knowledge and control to constitute constructive possession of the cocaine either personally or jointly.
Dissent: The dissenting judge found Pham's absence from the apartment gave rise to a reasonable doubt she had knowledge of the drugs.
(d) Consent as an Element of the Actus Reus – Often the question of absence of consent by the victim is an important actus reus condition that must be present for offences to occur. Consent is a complex idea, animated by statute and the common law.
s.271(1) Sexual assault – Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Commentary: Sexual assault is not defined, although an essential element, assault, is elsewhere defined for such purposes. In general, it is an assault under s.265(1) committed in circumstances of a sexual nature such as to violate the sexual integrity of V. The mental element requires proof of a general intent only.
s.265 CC
(1) Assault – A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) Application – This section applies to all forms of assault, including sexual assault, ...
(3) Consent – For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
NOTE on s.265: Assault has been given a very encompassing definition in s.265. The definition says nothing about the degree of harm which must be sustained. Nor does it refer to the motives for the touching. If taken at face value, this formulation would mean that the most trivial intended touching would constitute assault.
R v Ewanchuk (1999) 1 S.C.R. 330
PRINCIPLE: the defence of implied consent does not apply to sexual assault. There is consent or there is no consent AND mens rea/actus reus components of sexual assault AND limits on honest but mistaken belief.
FACTS: The 17-year-old female complainant met Ewanchuk at his trailer to discuss a job offer. Ewanchuk closed the door of the trailer which was located in a mall parking lot. The complainant believed the door was locked and was frightened. Ewanchuk made increasingly serious sexual advances toward the complainant but stopped each time the complainant said no. Any compliance by the complainant was out of fear and she did not reciprocate the sexual contact. Ewanchuk relied on the defence of implied consent and was acquitted of sexual assault at trial. His acquittal was confirmed on appeal. The Crown appealed to the Supreme Court of Canada.
ISSUE: whether the defence of implied consent existed in Canadian law.
HELD: Appeal allowed and a conviction entered. The defence of implied consent did not exist in the context of sexual assault. The complainant either consented or she did not. Ewanchuk's perception of the complainant's state of mind was irrelevant in absence of a defence of honest but mistaken belief in consent. The trial judge's conclusion that the complainant's conduct raised a reasonable doubt constituting implied consent was a reviewable mistake in law. Once the trial judge was satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault was established and the inquiry shifted to Ewanchuk's state of mind. That he stopped touching the complainant each time she said no demonstrated that he understood that she meant no. There was nothing to support his claim that he continued to believe her to be consenting. The evidence did not disclose a defence of honest but mistaken belief in consent. His persistent and increasingly serious advances constituted a sexual assault for which he had no defence. A new trial was not in the interests of justice.
The Components of Sexual Assault
A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea.
Actus reus – unwanted sexual touching.
The actus reus of sexual assault is established by the proof of three elements:
(i) Touching (objective test)
(ii) The sexual nature of the contact (objective test)
(iii) The absence of consent (subjective test; determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred)
· “Implied Consent” – “... the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law”.
· “The court’s concern is whether she freely made up her mind about the conduct in question. The relevant section of the Code is s.265(3)(b), which states that there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force. ... The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated ... the approach is subjective.
Mens rea – the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
Honest but Mistaken Belief in Consent
· Since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent.
· The defence of mistake is simply a denial of mens rea.
Limits on Honest but Mistake Belief in Consent
· “Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable”.
· R v Esau (1997) – “An accused who, due to wilful blindness or recklessness, believes that a complainant ... in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: s.273.2(a)(ii).
· “... unless and until an accused first takes reasonable steps to ensure that there is consent, the defence of honest but mistaken belief does not arise”.
R v Jobidon (1991) 2 S.C.R. 714
PRINCIPLE: The word “consent” in s.265 CC, defining the crime of assault, should be construed subject to common law limits under which consent to a fight in private or public is not a defence to a charge of assault if actual bodily harm is intended and/or caused.
FACTS: The appellant and the deceased were involved in a fist fight. The appellant punched the deceased who fell onto the hood of a car. Unaware that the deceased was unconscious, the appellant continued to punch the deceased on the head. The victim died as a result of one of the punches received from the appellant. The trial judge held that the appellant did not intend to kill the deceased and that he believed that the deceased had consented to a fight. The trial judge held that the victim's consent negated assault and that there was no criminal negligence.
ISSUE: whether absence of consent is a material element which must be proved by the Crown in all cases of assault or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases.
Appellant’s argument: The Legislature could have specified that in certain situations, or in respect of certain forms of conduct, absence of consent would not be an operative element of the offence. It has done so with other offences. Parliament has provided that not person is entitled to consent to have death inflicted on him (s.14). But with the assault provisions in s.265, it chose not to insert policy-based limitations on the role of consent.
Also, we have a code of general principles by which, it is presumed, ambiguity is to be construed in favour of the liberty of the subject.
HELD: Appeal dismissed. The common law limitations to consent applied in the context of section 265 of the Criminal Code. Thus the victim's consent to a fist fight did not preclude the commission of an assault under section 265. The limits on consent to assault vitiated consent between adults to apply force causing serious bodily harm to each other in the course of a fist fight.
Gonthier J. – Justifying the application of the common law to s.265
Due to the encompassing definition of assault in s.265, a father would assault his daughter if he attempted to place a scarf around her neck to protect her from the cold but she did not consent to that touching. That absurd consequence could not have been intended by Parliament. Rather its intention must have been for the courts to explain the content of the offence, incrementally and over the course of time.
Gonthier J. – Policy considerations
· Foremost among the policy considerations supporting the Crown is the social uselessness of fist fight. As the English CA noted in the AG’s Reference, it is not in the public interest that adults should willingly cause harm to one another without a good reason.
· Our social norms no longer correlate strength of character with prowess at fisticuffs.
· Consensual fights may sometimes lead to larger brawls and to serious breaches of the public peace.
· The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight.
· Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile.
· Insofar as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wider ground of people as well (applies to surgery and stuntmen).
Sopinka J. – concurs, but with a different approach
“It appears clear from the finding of the trial judge that the accused had an honest belief in consent, but that consent extended only until Haggart ‘gave up or retreated’. The extent of ceonsent given by Haggart did not, therefore, extend to being struck once he had been knocked unconscious. The accused knew that Haggart’s consent did not extend beyond consciousness. The accused is therefore guilty of manslaughter via ss.222(5)(a) and 234.
R v Cuerrier (1998) 2 S.C.R. 371
PRINCIPLE: A complainant's consent to sexual intercourse was vitiated (invalidated) by fraud if the accused's failure to disclose his HIV-positive status was dishonest (objective/reasonable person test) and put the complainant at a significant risk of suffering serious bodily harm.
FACTS: Appeal by the Crown from a decision of the British Columbia Court of Appeal dismissing its appeal from Cuerrier's acquittal on two charges of aggravated assault. Having been informed by a public health nurse that he was HIV-positive, Cuerrier had unprotected sex with two women without informing them of his status. The women consented to unprotected sex with Cuerrier. Cuerrier was charged with two counts of aggravated assault. At trial, the complainants testified that had they known Cuerrier was HIV-positive, they would not have consented to unprotected sex. The trial judge found that the complainants' consents were not vitiated by fraud as only fraud going to the nature and quality of the act or the identity of the offender vitiated a consent given to sexual intercourse. The trial judge entered a directed verdict acquitting Cuerrier. The Court of Appeal dismissed the Crown's appeal, and the Crown appealed to the Supreme Court of Canada. Interveners argued that the criminal law was not the most effective tool for dealing with HIV transmission.
HELD: Appeal allowed; a new trial was ordered. It was not necessary to consider whether an accused's fraud was related to the nature and quality of the act in order to establish that he intentionally applied force without a complainant's consent. An objective assessment of the accused's actions was necessary in order to determine whether a reasonable person would find them to be dishonest. The extent of the duty to disclose increased with the risks attendant upon the act of intercourse. The greater the risk of deprivation, the higher was duty to disclose. Where the risk included serious illness and death, there was a positive duty to disclose. A complainant's consent to sexual intercourse was vitiated by fraud if the accused's failure to disclose his HIV-positive status was dishonest and put the complainant at a significant risk of suffering serious bodily harm. The Crown was still required to prove that the complainants would have refused to engage in unprotected sex if they had been advised that the accused was HIV-positive. To proceed by way of a criminal assault charge was not to criminalize the accused's behaviour, but was simply to apply the provisions of the Criminal Code to conduct which would constitute the crime of assault.
The court was divided in its reasons:
Cory J. –
· “Non-disclosure can constitute fraud where it would be viewed by the reasonable person as dishonest. The essential elements of fraud then are dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation”.
· “Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV-positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV-positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent”.
· “The extent of the duty to disclose will increase with the risks attendant upon the act of intercourse. To put it in the context of fraud the greater the risk of deprivation the higher the duty of disclosure”.
· Limits on fraud in context of s.265(3)(c)
s.265(3) – simply states that no consent is obtained where the complainant submits or does not resist by reason of fraud. There are no limitations or qualification on the term “fraud”.
Some limitations on the concept of fraud as it applies to s.265(3)(c) are clearly necessary or the courts would be overwhelmed – “The existence of fraud should not vitiate consent unless there is a significant risk of serious harm”.
o i.e. where a man promises a woman a fur coat in return for sexual intercourse.
McLachlin J. –
· “fraud does not vitiate (invalidate) consent to assault unless the mistake goes to the nature of the act (sex) or the identity of the partner. Fraud as to collateral aspects of a consensual encounter, like the possibility of contracting serious venereal disease, does not vitiate (invalidate) consent”.
· It’s up to Parliament.
(e) Causation – Where the relevant offences prescribes a “consequence” that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt. As Williams shows, if causation is not proved, the accused cannot be convicted of an offence that requires act to produce a prohibited consequence. Menezes shows that causation is a two-stage analysis, requiring “factual causation” and “legal or imputable causation”. Nette deals with the higher standard of responsibility of imputable cause that is required to secure a first-degree murder conviction, and it illustrates the legal causation principle of the “thin skull”. Both Nette and Menezes illustrate how most imputable causation (legal causation) principles explain why blame can be assigned in criminal cases, in spite of arguments that might, in civil cases, reduce or even eliminate civil liability.
R v Williams (2003) 2 S.C.R. 134
PRINCIPLE: Where the relevant offences prescribes a “consequence” that must occur before the offence is complete (i.e. aggravated assault), the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt.
FACTS: Williams learned that he was HIV-positive six months after commencing a relationship with the complainant. He did not tell the complainant and continued to have unprotected sexual relations with her for a further 12 months even though he received medical counselling and was informed of his duty to disclose his HIV status to sexual partners. The complainant contracted HIV. At trial, Williams was convicted of aggravated assault and common nuisance. The Newfoundland Court of Appeal confirmed the common nuisance conviction but allowed Williams's appeal from conviction of aggravated assault, convicting him instead of attempted aggravated assault.
ISSUE: whether an accused who fails to disclose that he is HIV-positive can be convicted of an aggravated assault endangering life by engaging in unprotected sex with a complainant who, at the time of the alleged assault, could herself have been infected with HIV.
HELD: Appeal dismissed. Williams's continued sexual activity with the complainant while knowing of his HIV status was evidence beyond a reasonable doubt of the necessary mens rea of the offence of aggravated assault. However, the Crown failed to prove that Williams's conduct after finding out about his HIV status risked endangering the complainant's life because it was likely she had already contracted HIV in the six months before he knew about his status. The lack of proof of this essential element of the actus reus was fatal to the aggravated assault conviction but was not fatal to the attempt charge. Thus, he was guilty of attempted aggravated assault.
· The focus in the external circumstances is on the nature of the consequences (i.e. HIV), not the nature of the assault (i.e. sex).
Aggravated assault and ‘proof of certain consequences’
s.268(1) Aggravated assault – Every one commits an aggravated assault who wounds, mims, disfigures or endangers the life of the complainant.
· The external circumstances (actus reus) consist of an assault and resultant harm to V.
o THUS, the offence is based on proof of certain consequences.
o In Willliams, there exists a reasonable doubt that the assault in question was capable of causing the life-threatening consequences alleged in the indictment. The Crown is therefore unable to establish the actus reus of that particular offence.
The Mental Element in Aggravated Assault
The mental element in aggravated assault is the mental element in assault (intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm.
· Recklessness was established – Once an individual becomes aware of a risk that he or she has contracted HIV, and hence that his or her partner’s consent has become an issue, but nevertheless persists in unprotected sex that creates a risk of further HIV transmission without disclosure to his or her partner, recklessness is established.
· There is no dispute that, in this case, this mental element of aggravated assault has been proven beyond a reasonable doubt. HOWEVER, the Crown was unable to prove the actus reus due to timing.
Williams VS Cuerrier – the differing results simply reflect the different factual circumstances.
R v Nette (2001) 3 S.C.R. 488
PRINCIPLE: The correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences is “a contributing cause [of death] that is not trivial or insignificant” (the Smithers test). While, to be guilty of first degree murder under s.231(5), the accused’s actions must have been an essential, substantial and integral part of the killing of the victim (Harbottle test).
FACTS: Appeal by Nette from the dismissal of his appeal from conviction for second degree murder pursuant to section 231(5) of the Criminal Code, which was murder while committing the offence of unlawful confinement. Loski was robbed in her home. She was bound with electrical wire, and a garment was wrapped around her head and neck. She died of asphyxiation within the next 48 hours. Nette was charge with first degree murder. He denied that he killed Loski. The trial judge charged the jury on first and second degree murder, and manslaughter. He indicated that the standard of causation for second degree murder was that Nette's actions must have been more than a trivial cause of Loski's death. Later in the main charge and a re-charge, he described the standard of causation as slight or trivial.
HELD: Appeal dismissed. The issues of the standard of causation for second degree murder, and how that standard should be explained to the jury, were different. The first issue was to be determined by considering whether the accused cause the victim's death in factual and legal terms. The jury was to then determine whether the moral culpability of the accused justified a verdict of first degree murder. The trial judge had discretion as to how the standard of causation was to be articulated to the jury. It was better to articulate the test in a positive rather than a negative manner. The phrases significant contributing cause, not a trivial cause and not insignificant were appropriate. It was not appropriate to apply a different standard of causation to manslaughter and murder. Here, there was no issue as to the cause of Loski's death so that it was unnecessary to instruct the jury on the law of causation for homicide. The trial judge accurately described the correct standard of causation. His errors later in the main charge and the recharge would not have caused the jury to believe that the standard of causation for second degree murder was lower than the standard of more than a trivial cause. The jury charge on second degree murder was unimpeachable.
· The correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences is “a contributing cause [of death] that is not trivial or insignificant”.
Causation
In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law:
Factual causation – is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result.
Legal causation (imputable causation) – is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation.
Causation expressed in the Criminal Code
s.225 – where a person causes bodily injury that is in itself dangerous and from which death results, that person causes the death notwithstanding that the immediate cause of death is proper or improper treatment.
ss.222(5)(c) and 222(5)(d) – similar provisions.
· These statutory provisions preempt any speculation as to whether the act of the accused would be seen as too remote to have caused the result alleged, or whether the triggering of a chain of events was then interrupted by an intervening cause which serves to distance and exonerate the accused from any responsibility for the consequences.
NO contributory negligence in Criminal Law
The criminal law does not recognize contributory negligence, nor does it have any mechanism to apportion responsibility for the harm occasioned by criminal conduct, expect as part of sentencing after sufficient causation has been found.
Explaining the Standard of Causation to the Jury
Arbour J.: (reformulates the Smithers test by removing the double negative)
Instructing the jury:
All forms of Homicide (manslaughter or murder) – It would make sense to instruct the jury that the acts of the accused have to have made a “significant” contribution to the victim’s death to trigger culpability for the homicide (reformulation of the Smithers test).
First degree murder – to be guilty of first degree murder under s.231(5), the accused’s actions must have been an essential, substantial and integral part of the killing of the victim (Harbottle test).
L’Heureux-Dube J.: (keeps the Smithers test the same)
I do not agree with Arbour’s suggestion to rephrase the standard of causation for culpable homicide set out by this Court in R v Smithers.
There is a meaningful difference between expressing the standard as “a contributing cause that is not trivial or insignificant” and expressing it as a “significant contributing cause”. Changing the terminology of the Smithers test in this manner would drastically change its substance.
· “I reiterate that the causation test in Smithers remains the law and to rephrase it in the language of a “significant contributing cause”, as my colleague suggests, would draw the line at a different place, thus drastically changing the law ... As a result, I consider the current language of “a contributing cause [of death] that is not trivial or insignificant” to be the correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences”.
R v Menezes (2002) O.J. No.551 (Ont.Ct. of J.)
PRINICPLE: In a joint venture (car racing) an intervening event will break the chain of causation if communicated to the other involved.
FACTS: Trial of Menezes on a charge of criminal negligence causing death. Menezes incited Meuszynski into a car race. They raced in a residential area, and then further on a highway. Several witnesses testified to the cars' excessive speeds, unsafe lane changes and tailgating. Meuszynski came to a curve in the road, lost control, and was killed when his vehicle went into a lamppost. Whether Menezes slowed down and thus "withdrew" from the race before the crash was not clear from the witnesses' testimony. There was evidence that Menezes's arrived at the site of the crash 10 seconds after the crash. Menezes admitted to dangerous driving, but denied that he was racing and that he caused Meuszynski's death. The Crown argued that because Menezes was a co-participant in a dangerous activity that could foreseeably result in death, Menezes was criminally responsible for the death.
HELD: Menezes was found not guilty of criminal negligence causing death, but guilty of dangerous driving. Contributory negligence was not a defence to a criminal charge. Menezes incited and participated in a dangerous race with Meuszynski. However, the driving conditions were good on a relatively unpopulated straight road, and no other motorists or pedestrians were forced to take evasive action. There was no proof beyond a reasonable doubt that the conduct amounted to wanton and reckless disregard for the safety of others. While Menezes's conduct did show a marked departure from the standard expected of a reasonably prudent driver, the driving was dangerous, but not criminally negligent. The judge concluded that about half a mile before the crash site, Menezes slowed down for an underpass and a curve in the road. He found that given the race situation, Meuszynski would have been aware that Menezes had slowed down. This amounted to an intervening event in which Menezes withdrew from the race, and was no longer liable for the consequences if Meuszynski chose to continue with the dangerous activity for his own purposes, which he did. Meuszynski kept racing, lost control on the curve and caused his own death.
Causation
· As there can be more than one cause of death, the causation test is not restricted to a search for the most proximate, the primary, or the only cause of death. Regardless of whether the accused’s conduct is the sole cause, was it a material cause?
· If the act of the accused is too remote to have caused the result alleged, causation is not established. If the accused’s actions are fairy viewed as only part of the history of the setting in which the prohibited result unfolded, without more, causation is not proven.
· Intervening Act/cause – if the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused from any responsibility for the consequence.
o “An intervening act terminating the causal chain of events may be the withdrawal or abandonment by the accused of involvement in the dangerous enterprise. Ordinarily, as a matter of law, abandonment requires communication or timely notice of intention to abandon the common pursuit: In other words, as a general rule, "in the absence of exceptional circumstances", something more is necessary than a mere mental change of intention and physical change of place by the person wishing to disassociate from the joint venture and the consequences attendant upon participation up to the point of the crime. The standard of positive action required of the accused for legal abandonment will often depend on the nature of the offence and his or her degree of participation in the unlawful enterprise”.
Joint venture/Blame
· Where two motorists knowingly undertake the dangerous course of racing on a public thoroughfare, and driver A’s car strikes the auto of C, an innocent motorist, resulting in C’s death, driver B’s participation in the unlawful venture can be a cause of C’s death (Regina v Rotundo).
· By their actions, those who race at excessive speeds on a public roadway assist one another in creating a dangerous risk. Each encourages and incites the other. It is the mutuality of their contribution toward the rivalry of speed which creates a singular hazardous situation.
· In my view, there is no reason rooted in law or policy not to identity the same degree of moral blameworthiness in the surviving racer when it is the driver of the second vehicle, and not the passenger therein, who loses his or her life or is injured.
· Each driver bears equal responsibility for its continued lifespan subject to withdrawal or intervening event. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created.
· With his friend, the accused deliberately embarked on a hazardous joint venture.
(f) Omissions – Some offences do not require a positive act by the accused. Rather, they can be committed by a showing that the accused failed to act, or omitted to act. Whether an offence can occur by “omission” is a question of construction. To be guilty by omission (1) the offence must contemplate guilt for omissions, (2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and (3) the omission in question must be a failure to fulfill that legal duty.
· The general common-law principle is that criminal responsibility for omissions is limited to cases where there is a legal and not merely a moral duty to act.
· Although a man has a perfect right to stand by and see his neighbour’s property destroyed, or, to watch his neighbour perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will (O.W. Holmes, The Common Law).
· CC ss. 215, 216, 217
· Can the Courts create legal duties? Is this desirable? Remember s.9 CC.
R v Thornton (1991) 3 C.R. (4th) 381
PRINCIPLE: donating blood known to be HIV-contaminated (a common nuisance) is a failure to discharge a legal duty under s.180.
FACTS: Appeal from a conviction and sentence of common nuisance thereby endangering the lives of others by knowingly donating AIDS infected blood. Appellant withheld information from the Red Cross that he had tested HIV positive. The Red Cross's screening process detected the contamination and the blood was not used.
Appellant’s arguement: donating contaminated blood was not an offence known to law and that it was not proved that his conduct endangered anybody.
HELD: Appeal from sentence and conviction dismissed. Although donating contaminated blood is not an offence under the Criminal Code, the appellant's conduct amounted to a failure to discharge the common law duty to refrain from conduct which could cause injury to another person. The "legal duty" in section 180(2) of the Criminal Code includes a duty arising at common law. By donating infected blood, the appellant endangered the lives of the public, as the screening devices are not 100% accurate, as well as the lives of those handling the blood. Section 180 does not require actual injury or damage. Appellant knew he was infected and that his blood must not be transferred to any person and that he should not donate his blood. Appellant had requisite mens rea.
· The CC does not make it an offence to donate contaminated blood, however, it amounted to a failure to discharge a “legal duty”.
Statutory sections
CC s.180(1) Common nuisance – Every one who commits a common nuisance and thereby
(a) Endangers the lives, safety of health of the public, or
(b) Causes physical injury to any person,
Is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Definition – For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty (omission) and thereby
(a) endangers the lives, safety, health, property or comfort of the public; or
(b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.
Commentary: The section defines and punishes the offence of common nuisance. In general, a common or public nuisance is one which materially affects the public by substantially annoying fellow citizens.
“The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour” (Donoghue v Stevenson).
· This jurisprudence in civil matters shows that there is deeply embedded in the common law a broad fundamental duty which requires everyone to refrain from conduct which could injure another. At the very least, it requires everyone to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons.
· “Donating blood which one knows to be HIV-contaminated to an organization whose purpose is to make the blood available for transfusion to other persons, clearly constitutes a breach of the common law duty to refrain from conduct which one foresees could cause serious harm to another person. It is thus a failure to discharge a “legal duty” within the contemplation of s.180(2). It is therefore my conclusion that the indictment which alleges the commission of a nuisance by the donation of blood which the appellant knew to be HIV-contaminated does allege an offence known to law”.
Thornton v R (1993) 2 S.C.R. 445
PRINCIPLE: s.216 imposed upon the accused a duty of care in giving his blood to the Red Cross. This duty of care was breached by not disclosing that this blood contained HIV antibodies. This common nuisance obviously endangered the life, safety and health of the publice.
· This seems to establish a new wide measure of criminal responsibility for omissions.
· The Court appears to read s.216 literally to impose a duty of care on those doing lawful acts which endanger others’ lives.
CC s.216 Duty of persons undertaking acts dangerous to life – Everyone who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in doing so.
R v Moore (1979) 1 S.C.R. 195
PRINCIPLE: When a police officer witnesses a person actually committing an offence, the officer is under a duty to attempt to identify the wrongdoer. Failure to do so constitutes obstruction of the police officer in the performance of his duties.
FACTS: At an intersection, the accused proceeded through a red light on his ten-speed bicycle. A police officer, in uniform on a motorcycle, saw this infraction and set about to ticket him. The accused refused to come to stop saying he was in a hurry. Upon an indictment, he was not charged with failing to stop at a stop light, but only with obstructing a peace officer in the performance of his duty. The obstruction which the Crown put forward was constituting the offence was failure to give his name when requested.
HELD: The officer was under a duty to attempt to identify the wrongdoer, and the failure to identify himself by the wrongdoer did constitute an obstruction of the police officer in the performance of his duties. A bicycle was neither a "motor vehicle" nor a "vehicle" within the Motor-vehicle Act, R.S.B.C. 1960, c. 253 and the Court of Appeal was quite correct in holding that the accused was not in breach of s. 58 of that Act when he refused to give his name to the constable. The Court of Appeal was correct in finding that when the accused refused to accede to the constable's request for his identification he was obstructing the constable in the performance of his duties.
R v Peterson (2005) O.J. No. 4450 (Ont. C.A.)
PRINCIPLE: A son is under a duty to provide for his father if the father is ‘under his charge’ under s.215.
FACTS: The accused (Dennis, the son) failed to properly tend to his elderly father (Arnold). The father’s living conditions were atrocious, he hadn’t been bathed, and did not eat properly which was evidenced as his clothes did not fit and used rope for a belt.
ISSUE: when a parent is under the charge of a child thereby requiring the child to provide necessaries of life to that parent pursuant to s.215.
HELD: the trial judge’s reasons were sufficient to place Arnold under the charge of Dennis. He was guilty under s.215.
Statutory Sections
CC s.215(1) Duty of persons to provide necessaries – Every one is under a legal duty
(a) 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;
(b) To provide necessaries of life to their spouse or common-law partner; and
(c) To provide necessaries of life to a person under his charge if that person
(i) Is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) Is unable to provide himself with necessaries of life.
s.215(2) – D must fail to perform a legal duty imposed by s.215(1) without lawful excuse. The proof of lawful excuse if statutorily shifted to D, thereby attracting Charter ss.7 and 11(d) scrutiny.
· s.215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other.
s.32 Family law Act – imposes a duty on a child to support a parent. The mere breach of this (provincial statute) does not constitute a crime.
‘Under the Charge of Another’
· The relationship of the parties to each other is among the factors to consider in determining whether a person is in the charge of another. The dependency of the parent under a disability on an independent adult child is justified not only by their past course of dealing in which the parent supported the child, but also by their relationship to one another in which an element of trust will usually be present.
· If the parent is otherwise in the child’s charge and the child cannot care for the parent due to the parent’s refusal to accept care, the child is obliged to seek the help of a community agency.
· A further consideration in determining whether a person is in the charge of another is whether one person has explicitly assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly acknowledging to others in the community by words or conduct an assumption of responsibility.
· Insofar as the legal test for determining when a person is under the charge of another is concerned, the evidence that Arnold did not wish to bathe or change his clothes does not negate the appellant’s having charge of him. The evidence simply supports the conclusion that Arnold had a mental disability that prevented him from exercising sound judgment to provide himself with the necessaries of life. This disability cannot be used by Dennis as a defence for failing to provide the necessaries of life. Dennis could have called a community agency for help and did not.
R v Browne (1997) 116 C.C.C. (3d) 183 (Ont. C.A.)
PRINCIPLE: “I’ll take you to the hospital” is NOT an undertaking under s.217.
FACTS: This was an appeal from conviction for criminal negligence causing death. The victim swallowed a bag of crack cocaine to avoid detection by police. The appellant, Browne, was another drug dealer and a partner of the victim. The victim was unable to vomit the bag. Three hours later, the victim showed symptoms of narcotic poisoning. Browne told the victim that he would take her to the hospital. He called a taxi. Browne and the victim had to wait 15 minutes for the taxi to arrive. The victim died on the way to the hospital. The trial judge found that Browne undertook to care for the victim. He found that the duty of care included taking her to the hospital immediately by ambulance. He found that Browne breached the duty owed to the victim and was guilty of criminal negligence causing death. Browne argued on appeal that he did not undertake to care for the victim.
ISSUE: whether an undertaking existed which would place the appellant under a legal duty under to s.217.
HELD: The appeal was allowed. The conviction was overturned and an acquittal was entered. The trial judge erred in finding that the relationship between the victim and Browne gave rise to an implicit undertaking that Browne was obliged to care for the victim. The trial judge erred in finding that Browne's agreement to take the victim to the hospital constituted a legal undertaking. There was no evidence that an emergency call for an ambulance would have saved the victim's life.
· “In my view, the evidence does not disclose any undertaking of a binding nature. These were two drug dealers who were used to swallowing bags of drugs to avoid detection by the police. There was no evidence that the appellant knew that Audrey Greiner was in a life-threatening situation until 2:00 a.m., when he immediately phoned a taxi. His words to her at that time – “I’ll take you to the hospital” – hardly constitute an undertaking creating a legal duty under s.217. He said he would take her to the hospital when he saw the severity of her symptoms, and she did”.
· “There being no undertaking within the meaning of s.217 of the CC, there can be no finding of a legal duty. There being no duty there can be no breach contrary to s.219”.
CC s.217 Duty of persons undertaking acts – Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.
· THUS, the issue becomes whether an undertaking existed which would impose a legal duty to act.
· “To find a legal duty, there had first to be a finding of an undertaking. The legal duty does not flow from their relationship between the parties, as it does in s.215 (which creates legal duties between spouses, parents and children, etc.). Under s.217, there is no pre-existing relationship or situation that creates a legal duty; there must be an undertaking before a legal duty is introduced into the relationship. The relationship or context is relevant only to the determination of whether the breach reflected a “wanton or reckless disregard” under s.219(1), not to whether there was an undertaking under s.217”.
s.219(1) Criminal negligence – Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
Shows wanton or reckless disregard for the lives or safety of other persons.
Error by Trial Judge
The fundamental error made by the trial judge was in reversing the analytical steps under s.217 by starting her analysis with whether a duty of care existed, finding that it did, and then basing her finding of an undertaking on the existence of a legal duty. The inquiry should have begun with whether there was an undertaking. Only if there was an undertaking in the nature of a binding commitment could a legal duty have arisen under s.217, regardless of the nature of the relationship between the appellant and the victim.
6. Subjective Mens Rea
As indicated, subjective mens rea focuses on the actual state of mind of the subject of the prosecution, namely, the accused. Since what someone thinks or wants or knows is personal to him unless communicated, subjective mens rea ordinarily must be gleaned circumstantially, including by using the common sense inference that persons usually tend to intend the natural consequences of their acts. Since the state of “knowledge” is not often manifested circumstantially the way apparent intent is, the law will assume that the accused knew of the elements of the offence unless the so-called “defence of mistake of fact”, below, is made out. The close link between knowledge and mistake of fact makes it sensible to discuss the “defence” together with this mens rea concept.
There are many states of mind described by the various CC provision. For example, one form of first degree murder requires proof of planning and deliberation (premeditation), while second degree murder requires only that the accused intend to cause death, or intend to cause bodily harm he knows is likely to cause death.
Most offences require more than one mental state to exist. For example, to be guilty of murder, the accused must know that the living thing he is killing is a human being and intend to cause death to that human being. A sexual assailant must intend to touch the complainant, and know that she is not consenting (although as indicated, that knowledge will be assumed absent a mistake of fact defence being raised successfully).
It is a close exercise of construction to see what mental states are required by a particular offence. If an offence is explicit and specifies the relevant state of mind, then only that state of mind will suffice. This is why “assault” contrary to s.265 requires “intentional” touching, and not simply reckless touching. Many offences do not specify the relevant mental state. If a true crime is silent as to the mental state and the offence requires a consequence, it is implied that intention or “recklessness” in bringing out the consequence will suffice (that presumption was rebutted for the offence charged in R v Buzanga and Durocher below, requiring the Crown to prove actual intention to bring about the consequence).
Again, subject to exception (see for example s.150.1) where an offence sets out conditions or circumstances that have to exist, the accused must, as a general rule, know tthat those conditions or circumstances exist before the offence can be committed, although the mens rea known as “wilful blindness” can substitute for full knowledge. Use the mens rea provided for in the relevant provision, as construed according to relevant criminal law principles. In the cases included below, the most common mental states are identified and illustrated:
(a) Intention, and Ulterior Mens Rea – Intention is a complex idea. The accused must have the very intention required by the relevant provision. For example, Vandergraff intended to throw the object, but not to make contact with the victim. His “assault” was not intended and he was not guilty. He could have been charged with criminal negligence causing injury, but the wrong charge was laid. For his part Murray intended to hold the Bernardo tapes, but not for the purposes of obstructing justice. He was therefore not guilty. R.(J.S.) intended to shoot into a crowd, with intent to kill a human being (albeit not the one killed), opening the door to his possible murder conviction during his upcoming trial, depending on how the evidence comes out.
R v Vandergraff (1994) M.J. No. 503 (Man. C.A.)
PRINCIPLE: The accused must have intended to injure the victim for a charge of assault.
FACTS: Appeal by the accused from conviction for assault with a weapon. The accused had thrown a jar of peanut butter toward the ice surface of a hockey rink in frustration at the outcome of a game, but it had struck the complainant and caused her injury. The trial judge had found intent to apply force in a general sense, which happened to be to the complainant, and convicted.
HELD: Appeal allowed and acquittal entered. There was no proof of intention to apply force to a person. Imputed intent to wound, maim, disfigure or endanger life, in the case of aggravated assault where intent to apply force was already established, did not apply here. The accused's conduct was foolish, negligent and may have been criminal, but did not constitute assault.
R v Murray (2000) O.J. No. 2182 (Ont. S.C.J.)
PRINCIPLE: The accused’s intention must be proven.
FACTS: Trial of the accused, Murray, on a charge of attempted obstruction of justice. Murray was a lawyer retained by Bernardo, who was charged with the murders of French and Mahaffy. Murray removed videotapes from Bernardo's home which depicted gross sexual abuse of French and Mahaffy by Bernardo and his wife, Homolka. Murray retained the tapes for 17 months without disclosing their existence to the authorities. Murray withdrew from the case prior to trial and was replaced by Rosen, who disclosed the tapes to the Crown. Murray charged with attempting to obstruct justice by concealing the tapes. He claimed that he never intended to permanently conceal the tapes and that he would have used them to undermine Homolka, who was the Crown's key witness.
HELD: Murray was acquitted. His concealment of the tapes had the tendency to obstruct justice. The tapes were not privileged. Solicitor-client privilege protected communications between a solicitor and client. The tapes were not communications, but rather evidence of crime which pre-existed the solicitor-client relationship. Once Murray had discovered the overwhelming significance of the tapes, he was left with only three legally justifiable options: Immediately turn them over to the prosecution, deposit them with the trial judge or disclose their existence to the prosecution and attempt to retain them. However, Murray's testimony raised a reasonable doubt as to his intention to obstruct justice. While he made only a token effort to determine his disclosure obligations, even if he had done careful research he might have remained confused. The Rules of Professional Conduct provided no guidance as to the nature of evidence that had to be disclosed. A defence strategy to use the tapes at trial was reasonably feasible. Therefore, Murray may not have intended to permanently suppress the tapes and he may have believed that he was not obligated to disclose them before trial.
R v J.S.R [2008] O.N.C.A 544
PRINCIPLE:
FACTS: Appeal by the Crown from an order of the Superior Court of Justice quashing the respondent's committal for trial on a charge of second degree murder and remitting the matter to the preliminary inquiry judge for reconsideration.
The respondent young person was charged with second degree murder, six counts of attempted murder and several gun charges. Following a lengthy preliminary inquiry, the judge committed the respondent for trial on all counts. The respondent moved to quash only the committal on the murder charge. The motion judge granted the motion. He held that there was no evidence upon which a jury, properly instructed, could convict the respondent of murder. The motion judge was satisfied that there was evidence upon which a jury could convict on the charge of manslaughter. The respondent also appealed the order of the motion judge. He contended that that motion judge erred in holding that the preliminary inquiry judge correctly concluded that there was evidence upon which a jury, properly instructed, could conclude that the respondent caused the victim's death. The respondent submitted that absent a proper evidentiary basis for a finding of causation, the respondent could not be ordered to stand trial on either a murder or manslaughter charge. The circumstances giving rise to the proceedings involved the death of Jane Creba, a 15 year-old girl, on Yonge Street in Toronto. A gun battle had broken out, and at least three, and as many as five, shooters exchanged multiple shots over the course of several seconds. Three innocent bystanders were shot and wounded. Jane Creba was killed by a single gunshot wound.
HELD: Crown appeal allowed. The committal for trial on the charge of second degree murder was restored. The respondent's appeal was dismissed. There was evidence at the preliminary inquiry upon which a reasonable trier of fact could make certain findings. The respondent's conduct, if proved, would meet the high degree of moral blameworthiness required to justify the stigma of a murder conviction and the consequences flowing from it.
(b) Subjective Mens Rea with Objective Features – Some criminal offences use standards to define criminal conduct. For example, some assaults are sexual in their nature, and others are not. Some acts are dishonest, and others are not. It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow since that would permit the content of offences to vary from offender to offender. For example, the accused can commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction of that nature is “dishonest”. If it were otherwise objective dishonest people would be held to lower standards than the rest of us. Or an accused can commit sexual assault if he intends to touch another, even if he does not believe that the contact is sexual in nature, so long as it is.
R v Theroux (1993) 2 S.C.R. 5
PRINCIPLE: If the accused was subjectively aware that his conduct would put the property or economic expectations at risk, fraud is established. It is no defence if the accused believed (subjectively) that his conduct was not wrong or that no one would be hurt.
FACTS: The appellant was involved in building houses and sold several residences before their completion. The appellant represented to the purchasers that their deposits were insured, although no such insurance existed. When the corporation went bankrupt, many purchasers lost their deposits. The appellant claimed that he believed that the residences would be completed and that the purchasers would not be harmed.
ISSUE: whether the fact that he honestly believed that the projects would be completed negates the guilty mind or mens rea of the offence.
HELD: Appeal dismissed. The mens rea of fraud was established by proof of the subjective knowledge of the prohibited act and the subjective knowledge that the prohibited act could have as a consequence the deprivation of another. The accused must have subjective awareness that his or her conduct would put the property or economic expectations of others at risk. The accused's belief that the conduct was not wrong or that no one would be hurt was no defence to a charge of fraud. The appellant deliberately lied to his customers by representing to them that their deposits were insured. The appellant committed deliberate falsehoods which caused or gave rise to deprivation. Although the appellant believed that the houses would be completed, he knew that his misrepresentations deprived the purchasers of the insurance protection they believed they had. He knew that he was placing the purchasers' deposits at risk, even though he believed that this risk would not materialize.
Is the test for mens rea subjective or objective?
Most scholars and jurists agree that, leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens rea is subjective.
Actus reus – has its own mental element; the act must be the voluntary act of the accused.
Mens rea – refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent – those who do not understand or intend the consequences of their acts.
Subjective mens rea test – the test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the Court looks to the accused’s intention and the facts as the accused believed them to be.
· The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral.
o i.e. Just as the pathological killer would not be acquitted on the mere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that what he was doing was honest.
Fraud
Actus reus of fraud:
1. the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and
2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.
Mens rea of fraud:
1. subjective knowledge of the prohibited act; and
2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).
Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.
· “... The accused may introduce evidence negating that inference, such as evidence that his deceit was part of an innocent prank, or evidence of circumstances which led him to believe that no one would act on his lie or deceitful or dishonest act ...”.
R v Chase (1987) 2 S.C.R. 293
PRINCIPLE: A sexual assault is determined according to an objective test in light of all the circumstances (i.e. part of body touched, circumstance, intent, etc.) AND the offence is one of general intent only.
FACTS: The accused was a neighbour of the complainant, a 15-year-old girl. He entered her home without invitation while no other adults were immediately present and seized the fifteen-year-old complainant and grabbed her breasts. He was convicted of sexual assault, but on appeal, a verdict of guilty of the included offence of common assault was substituted. The appeal court held that the assault was not sexual, since the girl's genitalia were not involved.
ISSUE: concerns the meaning of the term ‘sexual assault’ in s.244 and 246.1 (now ss.265 and 271).
HELD: The appeal was allowed. Under s. 244(2) of the Criminal Code, sexual assaults were included in the types of assaults listed in s. 244(1). For an assault to become a sexual assault, particular areas of the body did not have to be involved. Sexual assault was not limited to the scope of the former sexual offences in the Criminal Code. A sexual assault occurred when, by an objective test, an assault was made in circumstances of a sexual nature. The general intent of the attacker would be a factor in determining the nature of the assault. The attack in this case constituted an assault of a sexual nature.
Assault and Sexual Assault Provisions
CC s.265 – creates the offence of sexual assault, an expression nowhere defined in the CC.
s.265CC
(1) Assault – A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) Application – This section applies to all forms of assault, including sexual assault, ...
s.271
(1) Sexual assault – Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Commentary: Sexual assault is not defined. In general, it is an assault under s.265(1) committed in circumstances of a sexual nature such as to violate the sexual integrity of V. The mental element requires proof of a general intent only.
‘Sexual Assault’ in s.244 and 246.1 NOW ss.265 and 271 is a New Offence
McIntyre J.:
I agree as well with those who say that the new offence is truly new and does not merely duplicate the offences it replaces. Accordingly, the definition of the term “sexual assault” and the reach of the offence it describes is not necessarily limited to the scope of its predecessors.
Objective TEST for Sexual Assault
The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer”.
Factors to be considered when determining whether the conduct is sexual:
· The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force will be relevant.
· The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
· I agree that the test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy.
· I am also of the view that sexual assault need not involved an attack by a member of one sex upon a member of the other; it could be perpetrated upon one of the same sex.
Mens Rea – General Intent
The offence of sexual assault is one requiring a general intent only.
· The factors which could motivate sexual assault are said to be many and varied. To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment. Moreover, there are strong reasons in social policy which would support this view. To import an added element of specific intent in such offences, would be to hamper unreasonably the enforcement process.
(b) Recklessness – Recklessness is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act, the prohibited consequence will be brought about. It therefore differs from negligence which can apply even if the actor does not personally see the risk, provided a reasonable person would have. Still, recklessness is a subjective men rea with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking. The fact that the accused may have felt the risk to be justifiable would be no answer. Recklessness will apply where the provision creates a consequence, but does not, as a matter of construction, require some more limited kind of mens rea.
· THUS, recklessness requires that the accused have actual awareness of the risk of a consequence even though the accused may not intend the consequence to occur. Recklessness does not imply that the accused had actual knowledge that the consequence would occur, only that a risk or a possibility of a certain prohibited criminal consequence could occur.
o “It is the conduct of one who sees the risk and who takes the chance” (Sansregret v R).
Recklessness VS Wilful blindness
The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
R v Theroux (1993) 2 S.C.R. 5 (For facts see above)
Fraud
Actus reus of fraud:
1. the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and
2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.
Mens rea of fraud:
3. subjective knowledge of the prohibited act; and
4. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).
Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.
Sansregret v R (1985) 1 S.C.R. 570
PRINCIPLE: Definition of Negligence / Recklessness / Wilful Blindness / Knowledge
Sansregret is a leading decision on the crime of rape. Mr Justice McIntyre authoritatively defined and distinguished the concepts of recklessness and wilful blindness as follows:
Negligence – the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveal less than reasonable care will involve liability in civil law but forms no basis for the imposition of criminal penalties.
Recklessness – to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.
A finding of recklessness [in this case] could not override the defence of mistake of fact. It could be used as a defence.
Wilful blindness – is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.
Recklessness VS Wilful blindness
The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
Glanville Williams:
Knowledge – “... the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.
R v Buzzanga and Durocher (1979) 25 O.R. (2d) 705
PRINCIPLE: the term “wilfully” in s.319(2) does NOT include “recklessly” AND defines INTENT.
FACTS: These were appeals from convictions of wilfully promoting hatred against the French Canadian public in Essex County. Both the accused were involved in a movement for the construction of a French-language high school in Essex County. The Board of Education decided not to build the school despite a grant being obtained from the Ministry. The accused distributed pamphlets showing the prejudice directed towards French Canadians and exposing the truth about the real problem with respect to the French-language school. They said that they thought the pamphlet would bring a quick solution to the problem of French-language school by provoking a Government reaction and thereby put pressure on the school board. It was not their intention to raise hatred towards anyone. One of the grounds of appeal was that the trial judge misdirected himself with respect to the meaning of the word "wilfully".
ISSUE: the meaning of “wilfully” in the term “wilfully promotes hatred” in s.281.2(2) [now s.319(2)].
HELD: The appeal was allowed and a new trial was ordered. As a general rule, a person who foresaw that a consequence was certain or substantially certain to result from an act which he did in order to achieve some other purpose, intended that consequence. What the accused intended or foresaw must be determined from a consideration of all the circumstances and his own evidence as to what his state of mind or intention was. The accused's background and their commitment to preserving the French Canadian culture was relevant to the credibility of their denial of an intention to promote hatred. Their evidence as to their state of mind or intention was not conclusive. The trial judge, not having disbelieved the accused's evidence, failed to give appropriate consideration to their evidence on the issue of intent and thereby misdirected himself. He also misdirected himself in his definition of “wilfully”.
Relevant Provision
s.319(2) – Wilful promotion of hatred – Every one who, by communicating statements, other than in private conversation wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence ...
(b) an offence punishable on summary conviction.
What is meant by “wilfully”?
The word “wilfully” has not been uniformly interpreted and its meaning to some extent depends upon the context in which it is used. Its primary meaning is “intentionally”, but it is also sued to mean “recklessly”.
· Recklessly – is here used to denote the subjective state of mind of a person who foresees that this conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about.
BUT I am satisfied that in the context of s.281.2(2) it means with the intention of promoting hatred, and does NOT include recklessness. ... It is reasonable to assume that Parliament intended to limit the offence under s.281.2(2) to the intentional promotion of hatred. ... Proof of an intention to promote hatred is essential ...
I conclude, therefore, that the appellants “wilfully” (intentionally) promoted hatred against the French Canadian community of Essex County only if:
(a) Their conscious purpose in distributing the document was to promote hatred against that group, or (DIRECT INTENT IN ENGLAND).
(b) They foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet, but distributed it as means of achieving their purpose of obtaining the French-language high school (INDIRECT OR OBLIQUE INTENT IN ENGLAND).
Intent: conscious purpose of foresight of a certainty.
(d) Knowledge – As indicated, bearing in mind what is said above about standards of criminality, the accused must generally know that the conditions of the actus reus exist. For example, an accused cannot be convicted of assaulting a police officer, if she does not know the victim is a police officer. Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume the accused knows of the relevant conditions, unless the accused presents a “mistake of fact defence”. In the sexual offence context, the mistake of fact defence is heavily limited for policy reasons.
R v Ewanchuk (1999) 1 S.C.R. 330
PRINCIPLE: the defence of implied consent does not apply to sexual assault. There is consent or there is no consent. However, the defence of ‘mistake of fact’ could be a defence to sexual assault.
FACTS: The 17-year-old female complainant met Ewanchuk at his trailer to discuss a job offer. Ewanchuk closed the door of the trailer which was located in a mall parking lot. The complainant believed the door was locked and was frightened. Ewanchuk made increasingly serious sexual advances toward the complainant but stopped each time the complainant said no. Any compliance by the complainant was out of fear and she did not reciprocate the sexual contact. Ewanchuk relied on the defence of implied consent and was acquitted of sexual assault at trial. His acquittal was confirmed on appeal. The Crown appealed to the Supreme Court of Canada.
ISSUE: In issue was whether the defence of implied consent existed in Canadian law.
HELD: Appeal allowed and a conviction entered. The defence of implied consent did not exist in the context of sexual assault. The complainant either consented or she did not. Ewanchuk's perception of the complainant's state of mind was irrelevant in absence of a defence of honest but mistaken belief in consent. The trial judge's conclusion that the complainant's conduct raised a reasonable doubt constituting implied consent was a reviewable mistake in law. Once the trial judge was satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault was established and the inquiry shifted to Ewanchuk's state of mind. That he stopped touching the complainant each time she said no demonstrated that he understood that she meant no. There was nothing to support his claim that he continued to believe her to be consenting. The evidence did not disclose a defence of honest but mistaken belief in consent. His persistent and increasingly serious advances constituted a sexual assault for which he had no defence. A new trial was not in the interests of justice.
The Components of Sexual Assault
A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea.
Actus reus – unwanted sexual touching.
The actus reus of sexual assault is established by the proof of three elements:
(i) Touching (objective test)
(ii) The sexual nature of the contact (objective test)
(iii) The absence of consent (subjective test; determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred)
· “Implied Consent” – “... the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law”.
· “The court’s concern is whether she freely made up her mind about the conduct in question. The relevant section of the Code is s.265(3)(b), which states that there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force. ... The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated ... the approach is subjective.
Mens rea – the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
Honest but Mistaken Belief in Consent
· Since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent.
· The defence of mistake is simply a denial of mens rea.
Limits on Honest but Mistaken Belief in Consent
· “Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable”.
· R v Esau (1997) – “An accused who, due to wilful blindness or recklessness, believes that a complainant ... in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: s.273.2(a)(ii).
· “... unless and until an accused first takes reasonable steps to ensure that there is consent, the defence of honest but mistaken belief does not arise”.
Sansregret v R (1985) 1 S.C.R. 570
PRINCIPLE: Definition of Knowledge
Glanville Williams:
Knowledge – “... the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge (applies to ‘wilful blindness).
(e) Wilful Blindness – Wilful blindness is related to but distinct from recklessness. It is a subjective state of mind, requiring that the accused personally sees the risk of a fact, but then wilfully avoids confirmation so as to be able to deny knowledge. This concept fits best when used as a substitute for knowledge, although courts (and Parliament in CC s.273.2) have an unfortunate habit of using “wilful blindness” terminology as interchangeable with recklessness. This leads to confusion. If the two concepts were indeed interchangeable wilful blindness would disappear because everyone who is wilfully blind is necessarily reckless – if you suspect that a fact exists but wilfully avoid confirmation so as to be able to deny knowledge (and are wilfully blind) then you must necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are reckless). The two concepts are not the same and should not be equated.
R v Currie (1975) 24 C.C.C. (2d) 292 (Ont. C.A.)
PRINCIPLE: the doctrine of ‘constructive knowledge’ has no application in the criminal law.
FACTS: The accused cashed a cheque payable to B, on the back of which was a signature purporting to be that of B. In fact, the cheque had been stolen from B's mailbox. The cheque was cashed in a bank where the accused was known and where he had a deposit. He had written his name, address and phone number at the back of the cheque. He testified that a stranger asked him to cash the cheque and paid him $5 to do so. He claimed that nothing in the stranger or in the cheque aroused his suspicion. The trial Judge convicted him, applying the doctrine of wilful blindness, stating that accused should have made further inquiries. The accused appealed. HELD: The appeal was allowed. The trial Judge did not reject accused's evidence that nothing in the transaction nor in the person who gave him the cheque aroused his suspicion. Generally speaking, the doctrine of constructive knowledge had no application in criminal law. The fact that a person ought to have known that certain facts existed may in civil proceedings, be equivalent to actual knowledge, but did not constitute knowledge for the purpose of criminal liability.
R v Duong (1998) 15 C.R. (5th) 209
PRINCIPLE: Example of wilful blindness.
FACTS: Lam was publicly connected to two murders. He approached Duong for help. Duong told police that he knew Lam was in trouble when he let him stay at his apartment. Lam was convicted of two counts of second degree murder and two counts of attempted murder. Duong was convicted of being an accessory to murder after the fact. Duong claimed the trial judge erred in finding that he knew or was wilfully blind to the possibility that Lam committed murder. HELD: The trial judge did not err in assessing the issue of wilful blindness. There was evidence to indicate that Duong decided not to inquire further once he developed a real suspicion that Lam was a party to murder.
· Liability based on wilful blindness is subjective. Wilful blindness refers to a state of mind which is aptly described as “deliberate ignorance”. Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability.
· The fact that the appellant may have contemplated other possible connections between Lam and the murders afforded no bar to a finding that he was wilfully blind to the fact that Lam was a party to murder.
R v Hawkins (1995) 4 S.C.R. 55 – “... It is well established in criminal law that wilful blindness will also fulfil a mens rea requirement. If the retailer becomes aware of the need to make further inquiries about the nature of the videos he was selling yet deliberately chooses to ignore these indications and does not make any further inquiries, then the retailer can be nonetheless charged under s.163(2) for “knowingly” selling obscene materials. Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element of the offence ...”.
Sansregret v R (1985) 1 S.C.R. 570 (see above)
PRINCIPLE: Definition of Wilful Blindness
Recklessness – to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.
A finding of recklessness [in this case] could not override the defence of mistake of fact. It could be used as a defence.
Wilful blindness – is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.
Recklessness VS Wilful blindness
The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
R v Vinokurov (2001) A.J. No. 612 (Alta C.A.)
PRINCIPLE: Recklessness was NOT sufficient to satisfy the knowledge requirement of a charge of possession of stolen property (it appears that wilful blindness would have been sufficient).
FACTS: This was an appeal by the accused Vinokurov from his conviction on a charge of possession of stolen property. At trial the Crown established beyond a reasonable doubt that Vinokurov, who was the manager of a pawnshop, received stolen property from a customer. The stolen property represented the proceeds of a series of break and entries committed by the individual who pawned the merchandise. Vinokurov testified and denied knowing that the items were stolen. The uncontradicted evidence was that he completed all of the required paperwork and made inquiries of his mother who was the owner of the store to determine whether he ought to purchase certain of the merchandise. The judge found that the Crown had failed to prove that Vinokurov was wilfully blind. He concluded, however, that Vinokurov was reckless.
HELD: Appeal allowed. Recklessness did not satisfy the knowledge requirement on a charge of possession of stolen property.
R v Briscoe [2010] SCC 13
PRINCIPLE:
FACTS: Appeal by Briscoe from a decision of the Court of Appeal of Alberta overturning his acquittal on charges of kidnapping, rape and murder.
Three young persons and two adults were charged for their participation in the kidnapping, rape, and brutal murder of a 13-year-old girl. The two adults in the group, Briscoe and Laboucan, were charged jointly with kidnapping, aggravated sexual assault and first degree murder. Briscoe, Laboucan and the others lured two young victims into their car. Laboucan had said earlier in the day that he would like to find someone to kill. Briscoe drove the group to a secluded golf course. He then stood by and watched as the victim was raped and murdered. The trial judge concluded that Briscoe did not know of Laboucan's intention to commit each of the crimes and acquitted Briscoe. The Crown appealed Briscoe's acquittals to the Court of Appeal of Alberta. The Court of Appeal held that the trial judge erred in law by failing to consider whether Briscoe was wilfully blind to the harm his cohorts intended to cause the victim and set aside the acquittals.
HELD: Appeal dismissed. The mens rea requirement had two components: intent and knowledge. The Crown had to prove that the accused intended to assist the principal in the commission of the offence. It was not required that the accused desired that the offence be successfully committed. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider had to know that the perpetrator intended to commit the crime, although he or she did not need to know precisely how it would be committed. The aider and abettor of a murder did not need to have the same mens rea as the actual killer. It was sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acted with the intention of assisting the perpetrator in its commission. Wilful blindness did not define the mens rea required for particular offences. Rather, it could substitute for actual knowledge whenever knowledge was a component of the mens rea. The doctrine of wilful blindness imputed knowledge to an accused whose suspicion was aroused to the point where he or she saw the need for further inquiries, but deliberately chose not to make those inquiries. Briscoe's own statements to the police suggested that he had a strong, well-founded suspicion that someone would be killed that night and that he might have been wilfully blind to the kidnapping and prospect of sexual assault. The Court of Appeal rightly concluded that the trial judge's failure to consider Briscoe's knowledge from that perspective constituted a legal error which necessitated a new trial on all charges.
Court Summary:
C, a 13-year-old girl, and a young friend were lured into a car on the false promise of being taken to a party. B drove the group, which included L and three youths, to a secluded golf course. Unbeknownst to C or her friend, L had said earlier in the day that he would like to find someone to kill. It would appear that the idea had been generally well received and C was chosen by L and some of the others as the victim. On their arrival, B opened the trunk and, at L's request, handed him some pliers. B stayed behind at the car as the others went onto the golf course under the guise of seeking the party. B rejoined the group around the time that one of the youths hit C from behind with a wrench. For a moment, B held on to C and angrily told her to be quiet or shut up. B then stood by and watched as C was brutally raped and murdered. All five persons involved were charged with kidnapping, aggravated assault and first degree murder and the two adults, B and L, were jointly tried by a judge alone. B was acquitted. The trial judge found that the actus reus for being a party to the offences was proven, but not the mens rea because B did not have the requisite knowledge that L's intended to commit the crimes. The Court of Appeal overturned the acquittals and ordered a new trial, holding that the trial judge erred in law by failing to consider wilful blindness.
Held: The appeal should be dismissed.
àThe mens rea requirement reflected in the word "purpose" under s. 21(1)(b) of the Criminal Code has two components: intent and knowledge. For the intent component, the Crown must prove that the accused intended to assist the principal in the commission of the offence. It is not required that the accused desired that the offence be successfully committed. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the principal intends to commit the crime, although he or she need not know precisely how it will be committed. Even in the case of murder, the principal's intention to commit the crime must be known to the aider or abettor, but it need not be shared. It is sufficient that he or she, armed with knowledge of the principal's intention to commit the crime, acts with the intention of assisting the principal in its commission.
àThe doctrine of wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused's state of mind which must be undertaken to establish an aider or abettor's knowledge. Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. Wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.
àIn this case, the evidence cried out for an analysis on wilful blindness. Even B's own statements to the police, on which the trial judge relied heavily, suggest that he had a strong, well-founded suspicion that someone would be killed at the golf course and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. The trial judge's failure to consider B's knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges.
7. Objective Mens Rea and True Crimes
Negligence is judged objectively, according to what a reasonable person would know or understand or how a reasonable person would act. The criminal law has long been uncomfortable with objective fault, as historically the criminal law responded to an “evil” mind, and careless people may be dangerous but they are not evil. Gradually the law has come to accept objective fault, although this has not happened for murder, where, as a matter of constitutional law, convictions must be based on subjective mens rea in the form of full scale intention. For crimes using objective fault as the mens rea, “penal-negligence” – a more restricted form of negligence – is generally required. The exception is with “predicate offences”, those aggravated forms of offence that apply when serious consequences result, and that include within their elements another complete but lesser offence, a “predicate” offence. For predicate offences the consequence need not be brought about by “penal negligence”. It is enough if the accused commits the underlying or predicate offence, and that the aggravated consequence that has been thereby caused was objectively foreseeable.
Constructive murder – ss.229(c) and 230:
Vaillancourt v R (1987) 2 S.C.R. 636
PRINCIPLE: s.213(d) [now s.230(d)] is unconstitutional.
FACTS: The appellant and another had intended to rob a pool hall armed with knives. However, the accomplice brought a gun with him which the appellant insisted was unloaded. The accomplice took out three bullets and gave them to the appellant. On the assumption that the gun was unloaded, the appellant proceeded with the robbery. When the accomplice struggled with a patron of the hall, he discharged the gun and the patron was killed. The appellant was charged and convicted of second degree murder.
ISSUE: whether s.213(d) [now s.230(d)] is inconsistent with ss.7 or 11(d).
HELD: The appellant's conviction for murder was set aside and a new trial was ordered. Section 213(d) violated both ss. 7 and 11(d) of the Charter and was of no force or effect. There must be some special mental element with respect to death before a culpable homicide can be treated as a murder. As a principle of fundamental justice, a conviction for murder cannot rest on less than proof beyond a reasonable doubt of subjective foresight.
Relevant Provisions
s.212 [now s.229]
Murder, Manslaughter and Infanticide
CC s.229 Murder – Culpable homicide is murder
(a) Where the person who causes the death of a human being
(i) means to cause his death, or (DIRECT INTENT IN ENGLAND)
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (INDIRECT/OBLIQUE INTENT IN ENGLAND)
(b) ...
(c) Where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
s.229(a)(i) – clearly requires that the accused have actual subjective foresight of the likelihood of causing the death, coupled with the intention to cause that death. This is the most morally blameworthy state of mind in our system.
s.229(a)(ii) – again, the accused must have actual subjective foresight of the likelihood of death. However, the Crown need no longer prove that he intended to cause the death, but only that he was reckless whether death ensued or not. It should also be noted that s.229(a)(ii) is limited to cases where the accused intended to cause bodily harm to the victim.
s.229(c) – in part, this is simply a more general form of recklessness, and thus the logical extension of s.212(a)(ii), in that it applies when the accused “does anything ... he knows ... is likely to cause death”. However, there is also a further relaxation of the mental element required for murder, in that it is also murder where the accused “does anything that he ... ought to know is likely to cause death”. This eliminates the requirement of actual subjective foresight and replaces it with objective foreseeability or negligence.
· The words “ought to know” are constitutionally deficient under s.7 (see Commentary).
The final relaxation in the definition of murder occurs at s.213 [now s.230]:
CC s.230 Murder in commission of offences – Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or an offence mentioned in s.52 (sabatoge), 75 (piratical acts), 76 (hijacking an aircraft), ... s.270 (assaulting a peace officer), s.271 (sexual assault), ... s.343 (robbery) ... whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if
(a) He means to cause bodily harm for the purpose of
(i) Facilitating the commission of the offence, or
(ii) Facilitating his flight after committing or attempting to commit the offence,,
And the death ensues from the bodily harm;
(b) He administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom; or
(c) He wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom,
(d) Repealed 1991 (he uses a weapon or has it upon his person)
Commentary: The section defines murder on a constructive basis. Culpable homicide is murder where V’s death is caused in defined circumstances arising out of the commission of a listed primary crime or predicate offence, and notwithstanding (despite of) the absence of an intention to cause death, as well as objective foresight of it likelihood.
Sections 230(a) and (c) have been declared constitutionally invalid by the SCC. There is substantial reason to doubt the validity of s.230(b).
· THUS, it is murder if the accused causes the victim’s death while committing or attempting to commit one of the enumerated/predicate offences if he performs one of the acts subsections (a) to (d). Proof that the accused performed one of the acts is subsections (a) to (d) is substituted for proof of any subjective foresight, or even objective foreseeability, of the likelihood of death.
Section 213(d) [now s.230(d)] and the Charter
Prior to the enactment of the Charter, Parliament had full legislative power with respect to “The Criminal Law” (s.91(27), Constitution Act 1867). It was always open to Parliament expressly to relieve the prosecution of its obligation to prove any part of the mens rea, as it is said to have done in s.213 with respect to the foreseeability of the death of the victim. It is thus clear that, prior to the enactment of the Charter, the validity of s.213 could not have been successfully challenged.
· Not only does s.213(d) violate the Charter, it does not even meet the lower threshold test of objective foresseability.
· Any provision creating an offence which allows for conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss.7 and 11(d) of the Charter.
· The acid test of the constitutionality of s.213 is this ultimate question: Would it be possible for a conviction for murder under s.213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? – If the answer is “Yes”, then the section is prima facie in violation of ss.7 and 11(d). ... in my view the answer is “Yes”. The section is not saved by s.1.
La Forest J.:
· “... because of the stigma attached to a conviction for murder the principles of fundamental justice require a mens rea reflecting the particular nature of the crime, namely, one referable to causing death”.
· “It is sufficient to say that the mental element required by s.213(d) is so remote from the intention specific to murder that a conviction under that paragraph violated fundamental justice. All the provision requires is an intention to commit another crime and to possess a weapon while carrying out this intention or in fleeing afterwards. The provision is so broad that under it a person may be found guilty of murder even though the death was the result of an accident.
· “... the objective of discouraging the use of weapons in the commission of crimes can be achieved by means other than attaching the stigma of a conviction for murder to a person who has caused death in the circumstances like those described in the provision.
R v Martineau (1990) 2 S.C.R. 633
PRINCIPLE: It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. Therefore, since s.213 expressly eliminates the requirement of proof of subjective foresight, it infringes ss.7 and 11(d) of the Charter. It cannot be saved by s.1. Those who cause harm intentionally should be punished more severely than those who cause harm inadvertently.
HELD: Appeal dismissed. Conviction for murder required proof beyond a reasonable doubt of subjective foresight of death. As conviction for murder carried with it the most severe stigma and punishment of any crime in our society, it was a requirement that the accused be shown to have guilty knowledge reflecting the particular nature of that crime. The effect of section 213 [s.230] was to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender. The stigma and punishment attached to murder should be reserved for those persons who intentionally caused death or who chose to inflict bodily harm knowing that it was likely to cause death. The impairment of the accused's sections 7 and 11(d) Charter rights was not rationally connected to the objective sought to be upheld by section 213 [230]. The impairment of rights was too broad in view of other offences which did or could address the issue of deterrence of the use of deadly force during the commission of another crime. In the result the offences created in section 213 and section 212(c) violated sections 7 and 11(d) of the Charter and could not be saved by section 1 of the Charter.
“... a conviction for murder requires proof beyond a reasonable doubt of subjective foresight of death”.
· s.213(a) [now s.230(a)] – defines culpable homicide as murder where a person causes the death of a human being while committing or attempting to commit a range of listed offences, whether or not the person means to cause death or whether or not he or she knows that death is likely to ensue if that person means to cause bodily harm for the purpose of facilitating the commission of the offence or flight after committing or attempting to commit the offence. The introductory paragraph of the section, therefore, expressly removes from the Crown the burden of proving beyond a reasonable doubt that the accused had subjective foresight of death.
· This section stands as an anomaly as regards the other murder provisions, especially in light of the common-law presumption against convicting a person of a true crime without proof of intent or recklessness (R v Sault Ste. Marie (City) (1978)).
· A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. The effect of s.213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender (Hart).
R v DeSousa (1992) 2 S.C.R. 944 (Unlawful act causing bodily harm – s.269)
PRINCIPLE: An offence could constitutionally depend upon a predicate offence (initial offence) provided that the predicate offence (i) is a federal or provincial offence, (ii) is not an absolute liability offence, (iii) is constitutional and (iv) is objectively dangerous (that is more than merely trivial or transitory in nature and in most cases, this will involve an act of violence done deliberately to another.
Basically, s.269 states: if the accused commits a crime (i.e. a fight and a bottle is thrown), and this crime causes harm to another, then the accused could be convicted of s.269 (Unlawful act causing bodily harm) as long as the four factors (i-iv) are satisfied.
FACTS: The accused was involved in a fight at a party. A bystander was injured when a bottle, allegedly thrown by the accused, broke against a wall and a glass fragment struck the bystander. The accused was charged with unlawfully causing bodily harm contrary to s.269.
ISSUE: whether s.269 violated ss.7 or 11(d) of the Charter.
HELD: s.269 complies with the requirements of ss.7 and 11(d). On a proper interpretation of s.269, the concept of an unlawful act as it is used in that section (i) includes only federal and provincial offences. (ii) Excluded from this general category of offences are any offences which are based on absolute liability and (iii) which have constitutionally insufficient mental elements on their own. (iv) Additionally, the term “unlawfully”, as it is used in this section requires an act which is at least objectively dangerous. Although there must be an element of personal fault respecting a culpable aspect of the actus reus, it was not necessary to establish fault with respect to each consequence of an action.
Relevant Provision
CC s.269 Unlawfully causing bodily harm – Every one who unlawfully causes bodily harm to any person is guility of
(a) An indictable offence ...
(b) An offence punishable of summary conviction ...
Commentary: The external circumstances of this offence require proof of an act that is unlawful as a federal or provincial offence, other than one of absolute liability. The act must also be likely to subject another to danger of bodily harm that is more than merely trivial or transitory in nature.
The mental element comprises the mental element required of the underlying unlawful act and objective foresight of bodily harm.
Components of the s.269 Offence and No Intent Requirement
To be brought within the ambit of s.269, an accused must have committed an underlying offence (predicate offence) and have caused bodily harm to another person as a result of committing that underlying offence.
The mental element requirement is composed of both the mental element of the underlying unlawful act (predicate offence) and the additional requirement of objective foresight of bodily harm.
There is, however, no constitutional requirement that “intention”, either on an objective or a subjective basis, extend to the consequences of unlawful acts in general.
· s.7 does not mandate intention in regard to all of the consequences required of the offence.
· Intention does not need to extend to all of the required consequences of an offence.
· Hess – there must be an element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in regard to each and every element of the actus reus.
· One is not morally innocent simply because a particular consequence of an unlawful act was unforeseen by that actor. In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful action.
Conditions of the ‘Unlawful’ Predicate Offence
(i) The predicate (or underlying) offence can only include federal and provincial offences.
(ii) The predicate (or underlying) offence cannot include an offence of absolute liability.
(iii) The predicate (or underlying) offence must be constitutionally sufficient in its own right.
(iv) The predicate (or underlying) offence must be at least objectively dangerous.
o Thus the test is one of objective foresight of bodily harm for all underlying offences.
o Requires objective foresight of the consequences of an accused’s unlawful act.
o The act must be both unlawful and one that is likely to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve an act of violence done deliberately to another person.
R v Creighton (1993) 3 S.C.R. 3(manslaughter category of unlawful act causing death-s.222)
PRINCIPLE: Unlawful act manslaughter, s.222 – the unlawful act requires objective foreseeability of the risk of bodily harm. No personal factors, for the exception of incapacity could be considered.
FACTS: Appeal by the accused from a conviction of manslaughter. With the deceased's consent, the accused injected cocaine into her forearm. She experienced a cardiac arrest and died. Creighton was charged under s. 222(5)(a) and (b) for manslaughter. The appellant argued that the common law definition of unlawful act manslaughter contravened s.7 of the Charter.
ISSUE: whether the common law use of manslaughter (s.222) violated s.7 of the Charter (whether the objective test for unlawful act manslaughter required reasonable foresight of death (minority) OR merely reasonable foresight of bodily harm (majority)).
HELD: Appeal dismissed. The test for the mens rea of unlawful act manslaughter did not violate s.7. The mens rea required objective foreseeability of the risk of bodily harm. The standard was that of the reasonable person in the circumstances of the accused and this standard did not vary with the background and pre-disposition of each accused, unless the accused did not have the capacity to appreciate the nature of the risk which the activity in question entailed. Under the circumstances of this case, a reasonable person would have foreseen that the cocaine injection could cause bodily harm. Thus, the accused was guilty.
· The Court found that the common law requirement for mens rea of manslaughter of "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act" to be constitutional. The unlawful act must be objectively dangerous and the unreasonableness must be a marked departure from the standard of care of a reasonable person.
Relevant Provisions
The Criminal Code, s.222(4), defines three general types of culpable homicide:
(i) Murder – the intentional killing of another human being.
(ii) Infanticide – the intentional killing of a child.
(iii) Manslaughter – all other culpable homicides.
CC s.222(5) Idem – A person commits culpable homicide when he causes the death of a human being,
(a) By means of an unlawful act,
(b) By criminal negligence,
(c) ...
(d) ...
Mens rea of unlawful act manslaughter = In addition to the mens rea of the underlying offence, objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required.
Structure of a Manslaughter Offence
The structure of the offence of manslaughter depends on a predicate offence of an unlawful act or criminal negligence, coupled with a homicide. It is now settled that the fact that an offence depends upon a predicate offence does not render it unconstitutional, provided that the predicate offence involves a dangerous act, is not an offence of absolute liability, and is not unconstitutional (R v DeSousa).
Subjective and Objective Distinction
The SCC in R v Creighton (1993) and R v Hundal (1993) accept that there should be a clear distinction between the subjective standard of whether the accused was actually aware of a risk and the objective standard of whether the accused failed to measure up to the external standard of the reasonable person, irrespective of awareness.
Subjective standard – all of the accused’s individual factors are taken into account.
Objective standard – no personal factors, such as age, race, gender, poverty and experience, can be taken into account except where they relate to incapacity.
· This standard became tougher given the ruling in Creighton.
· Incapacity – to appreciate the nature of the risk which the activity in question entails.
o This principle that the criminal law will not convict the morally innocent does not, in my view, require consideration of personal factors short of incapacity.
o This principle comes into play only at the point where the person is shown to lack the capacity to appreciate the nature and quality or the consequences of his or her acts. Apart from this, we are all, rich and poor, wise and naive, held to the minimum standards of conduct prescribed by the criminal law.
o Ubhi (1994) – severe mental retardation can be taken into account for criminal negligence.
What “human frailties” may not factor into the objective test
· Intoxication or impairment through drug use which occurs as a result of voluntary consumption cannot serve to vitiate liability for the risks created by the negligent conduct of an accused.
· A sudden and temporary incapacity to appreciate risk due to exigent circumstance (an emergency which diverts one’s attention from an activity, for example). However, this may still result in an acquittal if a reasonable person’s attention in the same circumstances of the accused have been diverted from that activity.
It should be emphasized that the relevant characteristics must be traits which the accused could not control or otherwise manage in the circumstances. For example, while a person with cataracts cannot be faulted for having reduced vision, he or she may be expected to avoid activity in which that limitation will either create risk or render him or her unable to manage risk which is inherent in an activity (driving, for example). The reasonable person is expected to compensate for his or her frailties, to the extent he or she is conscious of them and able to do so.
The Nature of the Objective Test
Objective mens rea is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably.
R v City of Sault Ste. Marie (1978) – acts of ordinary negligence may not suffice to justify imprisonment.
Hart – No one should be held blameworthy and punished for criminal conduct if he or she acted without free will.
Penalty/Sentence
Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. It follows that the sentence attached to manslaughter does not require elevation of the degree of mens rea for the offence.
· The majority dismissed Lamer's focus on "stigma" as indicator for the requirement of mens rea. The very fact that manslaughter is named differently from murder indicates that it is to be treated as less blameworthy. The punishment reflects this in that it has no minimum sentence. As well, this is in line with the principle that intentional crimes are to be punished more severely than unintentional crimes.
Symmetry
The majority further dismissed the proposition that there must be symmetry between all the external elements of the offence and the fault elements. Symmetry would require that there be a fault element for the consequences of the act, namely, that the accused could foresee death. This would require the courts to abandon the thin skull rule which has already been affirmed in cases of homicide (R v Smithers), thus it would not be reasonable to require symmetry in all cases. Rather symmetry remains a rule with clear exceptions and cannot be a principle of fundamental justice.
R v Hundal (1993) 1 S.C.R. 867
PRINCIPLE: the mens rea for the offence of dangerous driving should be assessed by a ‘modified objective’ test. The test is objective, but considers the context of all the events surrounding the incident.
FACTS: The accused killed a motorist by driving his truck through a red light at an intersection. The appellant argued that he could not stop the truck in time when the light turned amber. The trial judge held that the appellant's conduct was a gross departure from the standard of care of a prudent driver. The appellant argued that the Crown was required to prove a subjective mental element of his intention to drive dangerously.
ISSUE: whether there is a subjective element in the requisite mens rea which must be established by the Crown in order to prove the offence of dangerous driving described in s.233 [now s.249].
HELD: Appeal dismissed. Due to the nature of driving offences, a modified objective test should be applied to dangerous driving. The nature of driving was often routine and automatic, so that it was almost impossible to determine a particular state of mind of a driver at any given time. The basis of liability for dangerous driving was negligence and the question was not what the driver intended but whether, viewed objectively, he exercised the appropriate standard of care. The objective test should be applied in the context of the events surrounding the incident. The trial judge properly applied this test.
Relevant Provisions
CC s.249(1) Dangerous operation of motor vehicles, vessels and aircraft – Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
s.249(4) Dangerous operation causing death – Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
The Constitutional Requirement of Mens Rea
The appellant contends that the prison sentence which may be imposed for a breach of s.233 [now s.249] makes it evident that an accused cannot be convicted without proof beyond a reasonable doubt of a subjective mental element of an intention to drive dangerously.
s.7 prohibits the imposition of imprisonment in the absence of proof of that element of fault (Re B.C. Motor Vehicle Act (1985)).
What is the Mens Rea Required to Prove the Offence of Dangerous Driving?
The nature of driving offences suggests that an objective test, or more specifically a modified objective test, is particularly appropriate to apply to dangerous driving. I say that for a number of reasons:
(a) The Licensing Requirement – it serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. Licensed drivers place themselves in a position of responsibility to others.
(b) The Automatic and Reflexive Nature of Driving – the nature of driving itself is often so routine, so automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment. It is an activity that is primarily reactive and not contemplative. Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B.
(c) The Wording of s.233 [now s.249] – the wording of the section itself which refers to the operation of a motor vehicle “in a manner that is dangerous to the public, having regard to all the circumstances” suggests that an objective standard is required. The “manner of driving” can only be compared to a standard of reasonable conduct. That standard can be readily judged and assessed by all who would be members of juries.
· Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care.
(d) Statistics – the statistics which demonstrate that all too many tragic deaths and disabling injuries flow from the operation of motor vehicles indicate the need to control the conduct of drivers.
(e) Modified Objective Test – Although an objective test must be applied to the offence of dangerous driving it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct. The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.
There will be occasions when the manner of driving viewed objectively will clearly be dangerous yet the accused should not be convicted. i.e., a driver who, without prior warning, suffers a totally unexpected heart attack.
· McLachlin J.: “The better analysis is that the onset of a ‘disease or disability’ makes the act of losing control of the motor vehicle involuntary, with the result that there is no actus reus”.
Application of These Principles to the Facts
Did the trial judge apply the modified objective test correctly?:
· The trial judge carefully examine the circumstances of the accident.
· He took into account the busy downtown traffic, the weather conditions, and the mechanical conditions of the accused vehicle.
· He concluded, in my view very properly, that the appellant’s manner of driving represented a gross departure from the standard of a reasonably prudent driver. No explanation was offered by the accused that could excuse his conduct. There is no reason for interfering with the trial judge’s finding of fact and application of the law.
Applying the Hundal test:
R v Beatty (2008) S.C.J. No.5
PRINCIPLE: Pursuant to R. v. Hundal, the requisite mens rea could only be found when there was a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused.
FACTS: The accused was charged with three counts of dangerous operation of a motor vehicle causing death under s. 249(4). The accused's truck had suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all three occupants. Witnesses had observed the accused's vehicle being driven in a proper manner prior to the accident, and that the accident happened instantaneously. There was no evidence of speeding or vehicle failure, and intoxicants were not a factor. After the accident, the accused stated that he was not sure what happened but that he must have fallen asleep and collided with the other vehicle. The trial judge acquitted the accused on all three counts. She found that the test in R. v. Hundal required more than a few seconds of lapsed attention to establish objectively dangerous driving. She noted that, in the absence of something more, the accused's few seconds of negligent driving was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver. The Court of Appeal found that the accused's driving was a marked departure from the standard of care of a reasonable person. It found that the trial judge did not adequately engage the analysis required under the second step in R. v. Hundal.
HELD: Appeal allowed and acquittals restored. There was an important distinction between civil negligence and penal negligence. An act of negligent driving did not necessarily constitute the offence of dangerous driving. Pursuant to R. v. Hundal, the requisite mens rea could only be found when there was a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused. There was no evidence in this case of any deliberate intention to create a danger for other drivers. The limited evidence that was adduced about the accused's actual state of mind suggested that the dangerous conduct was due to a momentary lapse of attention. There was no reason to interfere with the trial judge's assessment of the accused's conduct in this case and her conclusion on his criminal liability. The accused's momentary act of negligence was insufficient to support a finding of a marked departure from the standard of care of a reasonably prudent driver, and was therefore insufficient to constitute dangerous operation of a motor vehicle causing death within the meaning of s. 249(4).
8. Regulatory Offences
Regulatory offences can be created by any level of government. Regulatory offences can be full mens rea offences just as true crimes are, but a clear indication that mens rea is required is needed before regulatory offences will be interpreted as having mens rea elements. They are presumed to be “strict liability” offences (offences that can be committed by simple, non-penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction). Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant actus reus is proved, provided this is clearly what the legislators intended when establishing the offence. Given the different modes of interpretation used, it is important to be able to distinguish true crimes from regulatory crimes.
R v City of Sault Ste. Marie (1978) 2 S.C.R. 1299
PRINCIPLE: Created three categories of offences: Absolute liability, Strict liability and Mens rea.
FACTS: The City contracted with a garbage disposal company. They were charged with polluting and, consequently, the City was also charged. The City appealed the charge.
HELD: Since s.32(1) of the Ontario Water Resources Act created a public welfare offence without a clear indication that liability was absolute and without any such words as "knowingly" or "wilfully" expressly to import mens rea, application of that criteria placed the offence in the category of strict liability. Proof of the prohibited act prima facie imported the offence, but the accused might avoid liability by proving that it took reasonable care. A new trial was ordered.
Dickson J. for the SCC divided offences into 3 categories:
(1) Absolute liability – the offence consists simply of doing the prohibited act.
True Crimes: In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea.
· In order to convict someone of a true crime, proof of intent or recklessness must be proven.
R v Chapin (1979) 2 S.C.R. 121
PRINCIPLE: Factors to consider when determining what category an offence is in.
FACTS: This was an appeal by the Crown from the judgment of the Ontario Court of Appeal allowing the accused's appeal against her conviction, after a trial de novo, on a charge of hunting migratory birds within one-quarter mile of a place where bait had been deposited, contrary to s. 14(1) of the Migratory Birds Regulations, thereby committing an offence, contrary to s. 12(1) of the Migratory Birds Convention Act. The Ontario Court of Appeal held that mens rea was an ingredient of the offence charged.
Crown’s argument: the offence is one of absolute liability or, in the alternative, strict liability.
Respondent’s argument: the offence is one requiring full mens rea or, if not, strict liability.
HELD: The appeal was dismissed. The offence created by s. 14(1) of the Migratory Birds Regulations was one of strict liability. An accused might absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances. On the evidence on the record it would have been unreasonable to convict the accused (there were no signs indicating that this was a baited area) in this case and the Court ought not to direct a new trial.
Relevant Provisions
The Migratory Birds Regulations
s.14(1) – ... no person shall hunt for migratory game birds within one-quarter mile of any place where bait has been deposited.
Migratory Birds Convention Act
s.12(1) – Every person who violates this Act or any regulation is, for each offence, liable upon summary conviction ...
Not a Mens Rea Offence
One would be hard pressed to characterize the offence created by s.14(1) as a “crime in the true sense”. Violation is punishable upon summary conviction, and not by indictment. One must note the absence of the usual signals connoting mens rea, such as “wilfully” or “with intent”. For example, s.10 Migratory Birds Convention states: “Any person who wilfully refuses ...”.
s.14(1) is not creating a new crime, but in the public interest is prohibiting an act under a penalty.
Not an Absolute Liability Offence
The language of the offence is straightforward: “No person shall ...”. Yet there is not a strict prohibition on hunting, rather a hunt controlled within certain limits as to season, methods, and types and numbers of species taken.
Hunting being a permitted sport, it would be a practical impossibility for a hunter to search a circular area having a diameter of ½ mile for the presence of illegally deposited bait before hunting. One must bear in mind the nature of the terrain over which hunting is done, as the evidence in this case discloses, and the fact that many hunters hope to get into position before first light. Is one first expected to search through swamp, bog, creeks, corn fields, over land and in water in search of illegal bait?
Strict Liability Offence
Is it one of strict liability. It is a classic example of an offence in the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances, in other words, that he was in no way negligent.
Absolute liability offence:
Reference re Section 94(2) of the Motor Vehicle Act (B.C.) (1985) 2 S.C.R. 486
PRINCIPLE: An offence punishable by imprisonment cannot be an absolute liability offence. Absolute liability offences must abide by the principles of fundamental justice (i.e. be given a trial) or else it violates s.7.
ISSUE: A section of the B.C. Motor Vehicle Act made it an offence to operate a motor vehicle while one was prohibited or suspended from driving. A subsection explicitly stated that the offence was to be interpreted as “an absolute liability offence, for which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension. It maintained the possibility of imprisonment.
HELD: The offence was a violation of s.7. Absolute liability was a denial of “the principles of fundamental justice” if one’s liberty is at risk (i.e. imprisonment). Since the offence carried a short term of imprisonment, a conviction would mean a deprivation of “liberty”.
R v Pontes (1995) 41 C.R. (4th) 201
PRINCIPLE: if no penalty of imprisonment exists, then an absolute liability offence need not comply with the principles of fundamental justice.
ISSUE: The SC reconsidered the constitutionality of the offence of driving while prohibited under s.94 of the B.C. Motor Vehicle Act.
HELD: The offence was constitutional and the court classified it as one of absolute liability, BUT held there was no violation of the right to life, liberty and security of the person as there was no longer any risk of imprisonment.
Rv Hess (1990)
PRINCIPLE: cannot have absolute liability if imprisonment is a possible consequence (breach of s.7).
Facts: A provision in the Criminal Code made it an offence for a male person to have intercourse with a female person under the age of 14 whether or not he believes that she is fourteen years of age or more. The offence carried a penalty of imprisonment.
SCC Held: an absolute liability offence that carried the penalty of imprisonment was a breach of fundamental justice in violation of s.7.
Absolute liability offence interpreted as strict liability offence:
R v Cancoil Thermal Corp. (1986) 52 C.R. (3d) 188
PRINCIPLE: An absolute liability offence cannot have imprisonment as a consequence.
FACTS: A supervisor/foreman of the factory took of a protective cover over a blade of a machine because he felt that it made it more difficult for workers to clear pieces of scrap metal, however, did not replace it with anything. The blade was left exposed. The blade operated once the foot pedal was pushed down. A worker injured himself when placing hand in while foot was on pedal. There was no doubt that the guard would have prevented this injury. They were charged under s.14(1)(a) and (c) of the Occupational Health and Safety Act.
HELD:
The Act provides a statutory equivalent of the defence of due diligence. However, this provision does not apply to the offence charged. This specific exclusion of this statutory defence would suggest that the Legislature, as a matter of policy, had determined that the subsection creates an offence of absolute liability. However, if s.14(1)(a) were treated as creating an absolute liability offence, it would offend s.7 and the right not to be deprived thereof except in accordance with the principle of fundamental justice. Under s.37(1), a violation of s.14(1)(a) may attract a term of imprisonment.
To avoid a violation of s.7, s.14(1)(a) must be treated as creating a strict liability offence. The defence of due diligence was available to the respondents.
NOTE: the trial judge believed that the removal of the original guard did not leave the blade unguarded (since the machine needed to be manually operated to propel the blade) and found the respondents not guilty on each account. HOWEVER, the meaning of a word in a statute is a question of law. There is no evidence upon which the Court could find that the foot pedal was a guard. The acquittal were therefore based on an error of law. A new trial was ordered. The onus then would be on the respondents to show, by a preponderance of evidence, that they acted with due diligence.
Levis v Tetreault (2006) S.C.J. No.12
PRINCIPLE: In order to succeed with a defence of due diligence in a strict liability offence, the accused must not simply remain passive, but attempt to discover the nature of their legal obligation.
FACTS: T and a company were charged with driving a motor vehicle without a valid driver’s licence contrary to s.93.1 of the Highway Safety Code. T raised the defence of due diligence, stating that the was unaware that the date appearing on his licence was the date the licence expired rather than a payment due date. The company raised the defence of due diligence and officially induced error, alleging that they did not receive a renewal (which they did not because it was mislabelled and never was delivered or received).
HELD: the offences were confirmed as strict liability. However, the defence of due diligence had not been established. Both accused had simply remained passive rather than attempting to discover the nature of their legal obligation to pay. They were convicted.
R v Wholesale Travel Group (1991) 3 S.C.R. 154
PRINCIPLE: A “regulatory offence” or a “public welfare offence” may impose a penalty of imprisonment considering a due diligence defence exists AND a ‘True crime’ which imposes a penalty of imprisonment requires proof of mens rea.
element of fault must be subjective mens rea if the offence is a true crime, but need only be negligence (departure from an objective standard or due diligence) if the offence is a regulatory offence (i.e. mislead advertising as in this case).
FACTS: the corporation was charged with the offence of false or misleading advertising under the Competition Act. The Act made clear that there was no requirement of mens rea: the only defence was one of due diligence (reasonable care), and the burden of proving due diligence rested with the accused. The penalty for the offence was a fine or imprisonment.
ISSUE: the accused argued that it was a violation of fundamental justice to place an individual in jeopardy of imprisonment for any lesser fault than mens rea.
HELD: The court classified the offence of false/misleading advertising as a “regulatory offence” and said it was sufficient that the offence was premised on negligence rather than mens rea. It did not have a stigma which would require it to have mens rea.
In the case of a “regulatory offence” or a “public welfare offence”, including those that carry the penalty of imprisonment, fundamental justice does not require that mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care (due diligence), and the burden of proving a reasonable care (to the civil standard) may be cast on the defendant. In the case of “true crimes”, however, fundamental justice requires mens rea be an element of the offence, and the burden of proving mens rea (to criminal standard) would have to be the Crown.
HOWEVER, the court seems to be abandoning its silly distinction between true crimes and regulatory crimes (Hogg).
Murder/mens rea:
R v Vaillancourt (1987)
PRINCIPLE: mens rea is required in relation to murder, if not, then violation of s.7.
Facts: the accused was charged with murder as the result of a poolroom robbery in which the accused’s accomplice shot and killed a customer of the poolroom. He was charged under the felony-murder branch;
SCC Held: the felony-murder rule was a violation of fundamental justice under s.7. Before an accused can be found guilty of murder, s.7 required that there be mens rea with respect to the death.
R v Raham [2010] 253 C.C.C (34.) 188 (Ont. C.A); O.J. No. 1091
PRINCIPLE:
FACTS: Appeal by the Crown from Raham's successful appeal from conviction on a charge of stunt driving or racing under s. 172 of the Highway Traffic Act. Raham was clocked at 131 km per hour in an 80 km per hour zone.
The police officer could have charged Raham with speeding. Instead, based on the single radar reading of 131 km per hour, which was 51 km per hour over the speed limit, the officer elected to charge her with stunt driving. The offence of stunt driving or racing was punishable by a fine, a term of imprisonment or both. At trial, Raham argued that the offence was an absolute liability offence and that, as imprisonment was a possible punishment, s. 172 violated her rights under s. 7 of the Charter. The Justice of the Peace interpreted the offence as one of strict liability, rejected the constitutional argument and convicted Raham. In allowing Raham's appeal and entering an acquittal, the appeal judge held that the offence was an absolute liability offence punishable by imprisonment and therefore was contrary to s. 7 of the Charter and unconstitutional.
HELD: Appeal allowed, acquittal set aside and new trial ordered. The appeal judge erred in holding that stunt driving was an absolute liability offence and in finding that a due diligence offence was not available to a charge of stunt driving. The offence was properly regarded as a public welfare offence and was prima facie a strict liability offence. The availability of incarceration suggested strict liability. However, the potential for incarceration was more than one of the factors to be considered in categorizing an offence. An absolute liability offence that provided for incarceration as a potential penalty was unconstitutional and of no force and effect, subject to an argument based on s. 1 of the Charter. Because of the presumption of constitutionality, it would take very clear language to create an absolute liability offence that was potentially punishable by incarceration. The presumption in favour of a constitutional interpretation meant that if the offence charged against Raham reasonably could be interpreted as a strict liability offence, it had to be so interpreted even if it also could be reasonably interpreted as an absolute liability offence. The Legislature could not, absent reliance on s. 1 of the Charter, imprison without fault. Strict liability set the lowest standard of fault available. The Legislature chose, through s. 172, to up the penal stakes for speeding at 50 km per hour or more over the speed limit by including the risk of incarceration. In doing so, the Legislature had to be taken, in the absence of clear language excluding the defence, to have accepted the availability of the due diligence defence.
EXTENSIONS OF CRIMINAL LIABILITY
9. Aiding and Abetting
It is not only the person who actually performs the actus reus (the “principal offender”) who can be convicted of the offence. So too can those who aid (physically support) or abet (encourage) the accused to commit the offence. Indeed, persons who aid and abet one offence can, in some circumstances, be convicted of offences they did not intend to aid or abet, provided that offence is a foreseeable outcome of the offence they did intend to aid or abet.
CC s.21(1) Parties to offence – Everyone is a party to an offence who
(a) Actually commits it;
(b) Does or omits to do anything for the purpose of aiding any person to commit it; or
(c) Abets any person in committing it.
(2) Common intention – Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probably consequence of carrying out the common purpose is a party to that offence.
R v Dunlop and Sylvester (1979) 2 S.C.R. 881
PRINCIPLE: Mere presence (and doing nothing to prevent a crime) at the scene of a crime is not sufficient to ground culpability under s.21(1). Prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement will constitute aiding and abetting.
FACTS: The complainant had been raped by a group of about 18 members of a motorcycle gang. She identified Dunlop and Sylvester as two of the rapists. They both denied the assault, and testified that they only delivered beer to the location and observed the woman having intercourse, they stayed for only three minutes, did not have intercourse with the complainant and did not assist anyone else to do so.
Appellant’s argument: the trial judge had erred by leaving it open to the jury to convict on the basis of s.21(1), as having aided and abetted others to commit the rape. No evidence had been presented by the Crown at trial, they argued, to support a conviction on that basis.
HELD: The jury's task was to decide whether to believe the victim's identification of the accused as two of the rapists, or the accused's denial of their participation in the rape. It was not open to the jury to convict the accused of aiding and abetting the rape by their mere presence at the scene.
BC CA Held: confirmed the convictions, being of the view that the spectators furnished encouragement to the perpetrators of the outrages and their mere presence in the circumstances of the case ensured against the escape of the victim. There was thus something more than “mere presence”
R v Clarkson (1971) 3 All E.R. 344 ENGLAND – victim was rape while soldiers stood by door doing nothing at all.
Appeal court Held: it was not enough that the presence of the accused, in fact, gave encouragement, “It must be proved that the accused intended to give encouragement; the he wilfully encouraged”. There must be an intention to encourage and encouragement in fact.
R v Logan (1990) 2 S.C.R. 731
PRINCIPLE: the words “or ought to have known” in s.21(2) are inoperative if the offence requires that foresight of the consequence be subjective. When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of men rea is constitutionally required to convict a party to the offence of attempted murder in order not to violate s.7.
FACTS: The accused were convicted of attempted. Accused and two others robbed a convenience store. Lone store clerk shot in neck resulting in severed spinal cord. Accused Johnson testified that he had no intention to shoot anyone and that there had been no discussion concerning the use of guns. Trial judge charged jury under s.21 stating that the jury must be satisfied beyond a reasonable doubt that the accuseds knew or ought to have known that someone would probably shoot with the intention to kill. Court of Appeal overturned the convictions for attempted murder on the grounds that the mens rea criteria of objective foreseeability in s.21 permitted the court to convict the accuseds of a crime which required proof of specific intent as against the principal actor. The Court of Appeal held that this offended the principles of fundamental justice.
ISSUE: the possibility that a party to an attempted murder could be convicted upon proof of objective intent, whereas a conviction of the principal would require proof of subjective intent.
HELD: Appeal dismissed. The fact that conviction of an accused as a party to an offence might entail applying a lesser standard of mens rea than the standard applied in convicting the actual perpetrator did not render section 21 fundamentally unjust in all cases. It was first necessary to determine whether the crime charged required a minimum degree of mens rea. If there was no minimum criteria of mens rea, the objective component of section 21(2) would not result in a restriction of the accused's constitutional rights. Where the principles of fundamental justice required that there be a minimum standard of mens rea with respect to the offence charged, then that minimum degree of mens rea must also be proved with respect to the accomplice charged as a party to that particular offence. Attempted murder was an offence which required proof of the specific intent to kill. This required proof that the accused had the subjective foresight that the death of the victim was likely to ensue. The continuing social stigma associated with a conviction of murder was the crucial factor in elevating the requirement of specific intent mens rea to the level of a constitutional requirement. As section 21(2) merely required objective foresight ("ought to have known") of the party to the possibility of death as a result of the action taken by the principal, s.7 was infringed. The legislative objective behind section 21 was to deter joint criminal enterprises. An accused's rights were unduly impaired where section 21(2) allowed for conviction on a test of objective foreseeability where the offence charged required that a constitutionally required minimum degree of mens rea be proved.
Requisite mens rea for conviction pursuant to s.21(2)
The question whether a party to an offence had the requisite mens rea to found a conviction pursuant to s.21(2) must be answered in two steps:
(1) Is there a minimum degree of mens rea which is required as a principle of fundamental justice before one can be convicted as a principal for this particular offence?
· This is an important initial step because if there is no such constitutional requirement for the offence, the objective component of s.21(2) can operate without restricting the constitutional rights of the party to the offence.
(2) If the principles of fundamental justice do require a certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is constitutionally required to convict a party to that offence as well.
Case Analysis – Step 1: s.7 and Attempted Murder
Case Analysis – Step 2: Mens Rea for Attempted Murder Pursuant to s.21(2)
R v Briscoe [2010] SCC 13 (See above)
PRINCIPLE:
FACTS: Appeal by Briscoe from a decision of the Court of Appeal of Alberta overturning his acquittal on charges of kidnapping, rape and murder.
Three young persons and two adults were charged for their participation in the kidnapping, rape, and brutal murder of a 13-year-old girl. The two adults in the group, Briscoe and Laboucan, were charged jointly with kidnapping, aggravated sexual assault and first degree murder. Briscoe, Laboucan and the others lured two young victims into their car. Laboucan had said earlier in the day that he would like to find someone to kill. Briscoe drove the group to a secluded golf course. He then stood by and watched as the victim was raped and murdered. The trial judge concluded that Briscoe did not know of Laboucan's intention to commit each of the crimes and acquitted Briscoe. The Crown appealed Briscoe's acquittals to the Court of Appeal of Alberta. The Court of Appeal held that the trial judge erred in law by failing to consider whether Briscoe was wilfully blind to the harm his cohorts intended to cause the victim and set aside the acquittals.
HELD: Appeal dismissed. The mens rea requirement had two components: intent and knowledge. The Crown had to prove that the accused intended to assist the principal in the commission of the offence. It was not required that the accused desired that the offence be successfully committed. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider had to know that the perpetrator intended to commit the crime, although he or she did not need to know precisely how it would be committed. The aider and abettor of a murder did not need to have the same mens rea as the actual killer. It was sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acted with the intention of assisting the perpetrator in its commission. Wilful blindness did not define the mens rea required for particular offences. Rather, it could substitute for actual knowledge whenever knowledge was a component of the mens rea. The doctrine of wilful blindness imputed knowledge to an accused whose suspicion was aroused to the point where he or she saw the need for further inquiries, but deliberately chose not to make those inquiries. Briscoe's own statements to the police suggested that he had a strong, well-founded suspicion that someone would be killed that night and that he might have been wilfully blind to the kidnapping and prospect of sexual assault. The Court of Appeal rightly concluded that the trial judge's failure to consider Briscoe's knowledge from that perspective constituted a legal error which necessitated a new trial on all charges.
10. Counselling
An accused can be convicted of counselling offences, whether or not the offences counselled are actually committed. If the offences counselled are committed, CC s.22 operates. If they are not committed, CC s.464 operates.
CC. s.22(1) Person counselling offence – Where a person counsels another person to be party to an offence and that other person is afterwards a arty to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
(2) Idem – Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
(3) Definition of “counsel” – For the purposes of this Act, “counsel” includes procure, solicit or incite.
CC s.464 Counselling offence that is not committed – Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,
(a) Every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) Every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.
R v Hamilton (2005) 2 S.C.R. 432
PRINCIPLE: Mens rea of counselling requires that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.
FACTS: Appeal by the Crown from an acquittal of Hamilton on four counts of counseling indictable offences that were not committed. Hamilton sent e-mails to more than 300 people marketing the sale of "Top Secret Files" and software that would enable the purchaser to generate "valid" credit card numbers. Hamilton made at least 20 sales. The trial judge and the CA acquitted Hamilton on the basis that the Crown failed to demonstrate Hamilton had the required mens rea.
HELD: The mens rea necessary for the offence of counselling is that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware that the offence was likely to be committed. The trial judge's conclusion that Hamilton did not intend to induce his customers to use the numbers is incompatible with her finding that Hamilton knew that the use of the generated numbers was illegal. The judge erred in finding that Hamilton lacked intent because his motive was simply to make money. The trial judge confounded "motive" and "intent".
Note: the counselling consisted of providing the software to generate credit card numbers – counselling of fraud. The actual offence would be committed by the purchaser of the software who used the numbers.
Actus reus for Counselling – the deliberate encouragement or active inducement of the commission of a criminal offence.
· Counselling will be established where the materials or statements made or transmitted by the accused actively induce or advocate and do not merely describe the commission of the offence (R v Sharpe).
Mens rea for Counselling – consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.
“Intent” VS “Motive”
“It does not matter to society, in its efforts to secure social peace and order, what an accused’s motive was, but only what the accused intended to do”.
· i.e. It is no consolation to one whose care has been stolen that the thief stole the car intending to sell it to purchase food for a food bank.
· Thus, motive aids the prosecution in their effort to prove the intent (mens rea), but is not necessary for the purpose of the charge.
Applying Intent/Motive to the case
The trial judge’s assertion that “his motivation was monetary” immediately after her reference to these facts demonstrates an error of law as to the mens rea for counselling the commission of a crime, and warrants a new trial.
“I would for these reasons allow the appeal on the count for counselling fraud and order a new trial on that count.
11. Attempts
As the counselling offence in CC s.464 illustrates, not all crimes need to be complete before an offence arises. There is (1) the discrete offence of counselling, (2) the offence of conspiracy in which the agreement to commit a crime is a crime, and (3) there is liability for attempting to commit an offence. Ancio shows the relevant mens rea for attempts (in attempted murder – s.239), and Deustch is instructive on when the attempt proceeds far enough to constitute a crime. The fact that an offence is legally impossible in the factual circumstances is no defence to an attempt charge, but it is not an offence to try to commit an act you believe is an offence, when it is not actually an offence. Dery exposes the limits of piggy-backing incomplete forms of liability.
CC s.24(1) Attempts – Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) Question of law – The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
CC s.463 Attempts, accessories – (a)-(d)(i)(ii)
Commentary: This section provides a general punishment scheme upon conviction of attempt and accessory after the fact to certain offences ... The punishments, which are identical, are determined by reference to what may be imposed for the substantive offence.
Under s.463(a), where the substantive offence attracts a penalty of imprisonment for life, an attempt or accessoryship after the fact is an indictable offence punishable by imprisonment for a term not exceeding 14 years.
CC s.465 Conspiracy – (1)-(7)
Commentary: This section describes and punishes various conspiracy offences, and determines trial jurisdiction.
CC s.660 Full offences charged, attempt proved – Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
R v Ancio (1984) 1 S.C.R. 225
PRINCIPLE: The mens rea for attempted murder is the specific intent to kill.
FACTS: The accused had broken into premises occupied by his estranged wife and another man. He had in his possession a sawed-off shotgun which he had taken from an acquaintance's home. The male occupant heard noises and came to investigate, carrying a chair. He threw the chair at the accused. The gun discharged. No injury resulted. The accused claimed that his intention was to compel his wife to come with him to assist their son, and that the weapon was fired accidentally.
ISSUE: whether ss. 24 and 213(d) [now s.230(d) which is repealed], in combination, could form the basis for a conviction for attempted murder or whether the mens rea for attempted murder was limited to an intention to cause death, as distinct from an intention to cause bodily harm, knowing it to be likely to cause death.
HELD: The mens rea for attempted murder is the specific intent to kill. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent.
R v Deustch (1986) 2 S.C.R. 2
PRINCIPLE: If the accused has the requisite mens rea and if there is little else for the accused to do before embarking on the crime (actus reus), then the accused’s actions will be more than merely preparatory and guilty of attempt.
FACTS: The appellant had advertised for the position of secretary/sales assistant and conducted three interviews with women applicants and another interview with a police officer who posed as an applicant. In the interviews the appellant told the applicants that they would be expected to have sexual intercourse with clients and also said that a successful secretary/sales assistant could earn as much as $100,000 a year through commission or bonuses. The appellant did not make an offer of employment to the applicants or the police officer. The appellant was indicted for attempting to procure female persons to become common prostitutes, and attempting to procure female persons to have illicit intercourse with another person.
ISSUE: whether if there was the necessary intent, the acts of the appellant were mere preparation to commit the offence of procuring or whether any of them was a step in the commission of the offence.
HELD: This is a question of law. The Court agreed with the Court of Appeal that if the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with clients then the holding out of the large financial rewards in the course of the interviews would constitute the actus reus of an attempt to procure. Such inducement would be the decisive act in the procuring; there was little else the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment.
R v Dery (2006) S.C.J. No.53
PRINCIPLE: An attempt to conspire to commit a substantive offence is NOT an offence under Canadian law.
FACTS: DÚry and Savard were charged with conspiring to commit theft and conspiring to possess stolen liquor. The trial judge found that no agreement had been established between the two men to steal or possess liquor and acquitted them of conspiracy. However, finding their actions more than merely preparatory to conspiracy, the judge convicted them of attempting to conspire. DÚry appealed, and a majority of the Court of Appeal affirmed his convictions.
HELD: Appeal allowed. DÚry's convictions should be set aside and acquittals entered. An attempt to conspire to commit a substantive offence is not an offence under Canadian law. Acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. Given that conspiracy is essentially a crime of intention, it is difficult to reach further than the law of conspiracy already allows. Only agreement exposes the otherwise hidden criminal intentions of the parties to it and demonstrates their commitment to a prohibited act. By contrast, overt steps are thought necessary to disclose and establish with sufficient certainty the criminal intention that is an essential element of the attempt to commit an offence when someone acts alone. By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission. Early intervention through the criminalization of conspiracy is therefore both principled and practical. Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm. However, when applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.
In order to establish the commission of the offence of attempted robbery charged, it was necessary for the Crown to prove that the respondents:
(i) Intended to do that which would in law amount to the robbery specified in the indictment (mens reas), and
(ii) Took steps in carrying out that intent which amounted to more than mere preparation (actus reus).
By virtue of s.24(2), the existence of element (i) is a question of fact, but whether the steps taken are sufficient to satisfy element (ii) is a question of law.
Lack of intent (mens rea) to commit robbery
· In the present case, there was no evidence of the intent to rob other than that furnished by the acts relied on as constituting the actus reus. There was no extrinsic evidence in the form of statement of intention, or admissions by the respondents showing what their intention was.
· The prosecution in this case was forced to rely exclusively upon the acts of the accused, not only to constitute the actus reus, but to supply the evidence of the necessary mens rea.
· In our view, the trial judge’s reasons are more consisted with a finding that the necessary intent to commit robbery was not proved beyond a reasonable doubt, than with a finding that such intent was established by the evidence. In any event, the Crown has not satisfied us that the trial judge found the existence of an intent to rob.
12. Corporate and Association Liability
Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the actus reus alone, there is no need to use any legal devices to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do not apply to regulatory offences. For true crimes the Criminal Code sets out standards for corporate and association liability. s.22.1 applies to objective fault or negligence offences where an association is charged, and s.22.2 applies to subjective mens rea offences charged against an association.
NOTE: THE FOLLOWING CASE AND EXPLAINATION WAS NOT IN THE SYLLIBUS, THUS, IT IS NOT NECESSARY TO KNOW
The massive width of these new provisions becomes clearer when one reads the definitions in s.2 CC of the terms “organization” and “senior officer”. The responsibility of the organization is no longer dependant on establishing fault in the “directing mind” (Canadian Dredge and Dock Co. v R below) but extends to a much lower level.
Canadian Dredge and Dock Co. v R (1985) 1 S.C.R. 662
PRINCIPLE: “Identification doctrine” – culpability for acts and mental states of a corporation can be represented by employees/officers on the basis that they are the “directing mind” of the corporate entity.
FACTS: Four corporations, including Canadian Dredge & Dock Company, were charged with conspiring to rig bids for government contracts under section 338(1) and 423(1)(d). The offences related to bid-rigging in the submission of tenders for dredging the St. Lawrence river.
Accused corporations’ arguments: criminal liability could not be imposed on them because the managers were either acting in fraud of their corporations for their own benefit, or were acting outside the scope of their employment. They also challenged the existence of any theory of corporate criminal liability for mens rea offences.
HELD: The appeals were dismissed. The accused corporations were criminally liable on the basis of the identification theory. The company was liable even in mens rea offences if the manager or other person who acted for the company was the directing mind of the company in the sphere of duty assigned to him so that his actions and intent were the action and intent of the company itself. The wrongful act of the agent was attributed to the principal, thus creating primary rather than vicarious liability. The fact that in this case the manager or agent acted in breach of instructions, or acted partly or wholly for his own benefit, or acted outside the scope of his duty, or defrauded the company did not remove the company's criminal liability. Liability could arise irrespective of express prohibition of the conduct in question. Identification of the directing mind with the corporation rendered the prohibition of no effect in law for determining the criminal liability of the directing mind or of the corporation. In this case the actions taken by the managers were within the scope of their duties, not totally in fraud of the companies, but resulting partly or wholly for the benefit of the companies. The conditions for the operation of the identification theory had thus been satisfied.
· The SCC adopted the English “identification doctrine” for liability, which states that culpability for acts and mental states of a corporation can be represented by employees and officers on the basis that they are the “directing mind” of the corporate entity. This principle was later elaborated on in The Rhone v The Peter A.B. Widener (1993).
· A corporation may, by this means, have more than one directing mind. This must be particularly so in a country such as Canada where corporate operations are frequently geographically widespread.
· However, the Court also noted that the identification doctrine could not be used where the criminal act of the directing mind had been totally in fraud of the corporation or where the act was intended to, or did result in, benefit exclusively to the directing mind.
Absolute Liability Offences
No particular state of mind is a prerequisite to guilt. Corporations and individual persons stand on the same footing in the face of such a statutory offence. The corporation is treated as a natural person.
Offences of Strict Liability
Subject to the defence of due diligence. It matters not whether the accused is corporate or unincorporated. The corporation and the natural defendant are in the same position.
Offences Requiring Mens Rea
There are certain crimes which cannot in any real sense be committed by a corporation as a principal, such as perjury and bigamy, whatever the doctrine of corporate criminal liability may be.
As a corporation may only act through agents, there are basically only three approaches whereby criminal intent could be said to reside or not reside in the corporate entity:
(i) “A total vicarious (taking the place of another) liability for the conduct of any of its agents whatever their level of employment or responsibility so long as they are acting within the scope of their employment”;
· Corporation is responsible due to act of employee if employee is simply doing what was required under their employment terms.
(ii) “No criminal liability unless the criminal acts in question have been committed on the direction or at last at the request, express or clearly implied of the corporation as expressed through its board of directors”;
· Corporation is responsible due to act of employee if employee simply does something implied by the corporation or requested by its board of directors.
(iii) The corporation will be “criminally liable so long as the employee or agent in question is of such a position in the organization and activity of the corporation that he or she represents its de facto directing mind, will, centre, brain area or ego so that the corporation is identified with the act of that individual”. There will be no responsibility through vicarious liability ... “but rather a liability arising in criminal law by reason of the single identity wherein is combined the legal entity and the natural person; in short, a primary liability.
· “Identification doctrine” – culpability for acts and mental states of a corporation can be represented by employees/officers on the basis that they are the “directing mind” of the corporate entity.
SELECT CRIMINAL DEFENCES
Not all criminal defences are listed below. For example, s.25 CC permits law enforcement personnel to use some force to carry out their duties, s.40 permits the defence of property, and there is a general de minimis non curat lex defence gaining recognition that can be used to resist prosecution for trivial legal violations (It has been restated as "the law does not concern itself with trifles". The defence of provocation is a partial defence to murder alone. There are also procedural defences such as entrapment, and double jeopardy. Charges can be “stayed” pursuant to ss.11(b) and 24 of the Charter because of unreasonable delay.
13. Mental Disorder (Defence)
s.16 of the CC modifies the common law defence of insanity. To have access to this defence the accused must establish that he has a “mental disorder” as defined by the case law and that it affected him in one or both of the ways described in s.16(1). R v Cooper provides a definition of mental disorder, although it has been modified by R v Park (discussed below). Cooper also stresses the significance of the concept of “appreciates” while R v Kjeldson describes how the defence works for sociopathic or psychopathic offenders. R v Oommen edifies us about the meaning of “wrong”.
CC s.16(1) Defence of mental disorder – No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Presumption – Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) Burden of Proof – The burden of proof that an accused was suffering from a mental disorder so as to exempt from criminal responsibility is on the party that raises the issue.
R v Cooper (1980) 1 S.C.R. 1149
PRINCIPLES:
“Disease of the mind” – “Disease of the mind” is a legal term embracing any illness, disorder or abnormal condition that impairs the human mind and its functioning. Excluded are self-induced states caused by alcohol or drugs, or transitory mental states such as hysteria or concussion. A personality disorder may be a disease of the mind if it meets either test of s.16(1).
· Once the evidence is sufficient to indicate that an accused suffers from a condition which could, in law, constitute disease of the mind, the Judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed.
AND
“appreciating the nature and quality of the act” TEST – was D, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the physical consequences of the act.
FACTS: The appellant, an out-patient at the Hamilton Psychiatric Hospital, was charged with the murder of an in-patient. There was evidence that the appellant had been drinking during the day. That evening he arrived at a dance held at a nearby church for patients of the hospital, and met an acquaintance, the victim. At his invitation, the two left to seek a bottle of pop and cigarettes. Ultimately, after an unsuccessful attempt at sexual intercourse the appellant chocked the deceased which caused the death.
ISSUE: whether there was evidence from which a properly charged jury could conclude, that the appellant had disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was charged or of knowing that it was wrong.
OR/AND
The question which arose for determination on this appeal related to the obligation of a trial judge to charge the jury on insanity in circumstances where an accused had a lengthy psychiatric history but the medical evidence was that he did not suffer from "disease of the mind".
HELD: The appeal was allowed and a new trial ordered. s.16 did not set out a test of insanity but rather set out the criteria to be taken into account in determining criminal responsibility. The term "disease of the mind" was a legal concept, although it included a medical component, and what was meant by that term was a question of law for the judge. It was within the province of the judge to determine what mental conditions were within the meaning of that phrase and whether there was any evidence that an accused suffered from an abnormal mental condition comprehended by that term. The trial judge in this case fell into error in that she confused the legal issue of whether the accused's disorder could constitute disease of the mind with the factual issue of whether the accused was suffering from a disease of the mind but whether he was capable of appreciating the nature and quality of the act. This question ought to have been left to the jury in clear terms. The trial judge erred in failing to review adequately the evidence bearing upon the insanity issue and in failing to relate the evidence of the accused's capacity to intend certain acts to the issue of insanity.
Disease of the Mind
· R v Kemp (England) – “Doctors’ personal views are not binding on me”.
· Bratty v A.G. for Northern Ireland (England) – the question of whether an accused suffers from a disease of the mind is properly resolved by the Judge.
· In summary, one might say that, in a legal sense, “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states (non-permanent) such as hysteria or concussion.
· In order to support a defence of insanity, the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.
· Once the evidence is sufficient to indicate that an accused suffers from a condition which could, in law, constitute disease of the mind, the Judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed.
R v Kjeldson (1981) 2 S.C.R. 617
PRINCIPLES:
“Appreciates” – The absence of appropriate feelings about conduct is not a lack of appreciation.
· to be capable of appreciating the nature and quality of his acts, the appellant had to not only have the capacity to know what he was doing (i.e. know that he was hitting the woman on the head with a rock), but also to have the capacity to estimate and understand the physical consequences of his act (i.e. that he was causing physical injury which would result in death).
AND
Psychopathy was a disease of the mind within the meaning of s.16
FACTS: The appellant had killed the victim after raping her, by delivering several blows to her head with a large rock, shattering her skull. The only defence at trial was insanity. Two defence psychiatrists and three Crown psychiatrists all were of the opinion that the appellant was a dangerous psychopath with sexually deviant tendencies. They differed, however, in their opinions as to whether the appellant was capable of appreciating the nature and quality of his acts.
ISSUE: whether appreciates includes the ability to comprehend appropriate feelings of the victim or whether it is limited to only understanding the physical consequences of the accused’s actions.
Defence psychiatrists: assumed that the word "appreciate" meant an ability to foresee not only the physical consequences of his acts but the emotional reactions of his victim as well. They were of the opinion that the appellant was incapable of "appreciating" when used in this sense. Trial Judge’s charge: The trial judge instructed the jury that the accused need only be capable of understanding the physical consequences of his acts.
The jury convicted the appellant of first degree murder. The Alberta CA substituted a verdict of second degree murder but held that the trial judge's charge on the insanity issue was proper.
HELD: The appeal was dismissed. The trial judge concluded, as a matter of law, that psychopathy could be a "disease of the mind" and he therefore made no error in leaving the issue as to whether the appellant, as a matter of fact, was a psychopath. The trial judge also made it clear to the jury that to be capable of appreciating the nature and quality of his acts, the appellant had to not only have the capacity to know what he was doing, in this case to know that he was hitting the woman on the head with a rock, but also to have the capacity to estimate and understand the physical consequences of his act, in this case that he was causing physical injury which would result in death. The trial judge was correct in limiting the scope of "appreciate" to physical consequences.
· “While I am of the view that s.16(2) exempts from liability an accused who by reason of disease of the mind has no real understanding of the nature, character and consequences of the act at the time of its commission, I do not think the exemption provided by the section extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim of lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from “disease of the mind”.
R v Oommen (1994) 2 S.C.R. 507
PRINCIPLE:
“Knowing that it was wrong” in s.16(1) – D is exempt from criminal responsibility where, at the time of the act, a mental disorder deprived D of the capacity for rational perception, hence rational choice about the rightness or wrongness of the act.
FACTS: The accused was suffering from a mental disorder causing paranoid delusion at the time of the killing. He believed that the victim was party to a conspiracy to kill him.
ISSUE: whether the disorder rendered the accused incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
HELD: Appeal dismissed. There was evidence to support the conclusion that the accused was deprived of the capacity to know his act was wrong. The accused believed that he was in imminent danger and that the killing was, therefore, justified. Also, s.16 is an independent condition of criminal responsibility, It was not necessary to show that the defence of self-defence would also apply.
· “The question is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. Does the accused possess the capacity present in the ordinary person to know that the act was wrong having regard to the everyday standards of the ordinary person?”
14. Voluntary Acts “Negativing” the Actus Reus and Automatism
As indicated above, the accused does not satisfy the actu reus requirement unless his act is willed. Some courts have acquitted individuals who reflexively strike out, using the specious (apparently good or right but lacking real merit) reasoning that their physical act was not willed, but the legitimacy of this reasoning is questionable. A more sophisticated application of the voluntariness concept was employed in R v Swaby.
It is the “voluntariness” concept that explains the defence of automatism, which operates on the theory that the accused’s physical motions were not culpable where they are not voluntary or thought-directed or conscious, as in the sleep-walking case of R v Parks. Please note that automatism will not realistically operate in any case where the accused appears conscious of his conduct – it is reserved to those unusual cases where there appears to be some disconnect between the actions of the accused and his conscious will. The result of the Parks decision was controversial enough that the SCC took procedural steps to cut the defence back in R v Stone, although in R v Fontaine some of the excessive language of Stone was qualified by the Court.
Note that “automatism” is divided into two categories, “insane (or mental disorder) automatism” and “non-insane (non-mental disorder) automatism”. Where a court finds “insane automatism” the real defence it is applying is “mental disorder”, since an accused person who is automatistic because of a disease of the mind cannot appreciate the nature and quality of his act or have the capacity to understand that the act is wrong. If the defence that applies is “non-insane automatism”, a complete acquittal is appropriate, although Stone has stacked the deck against this kind of defence succeeding.
R v Swaby (2001) O.J. No. 2390 (Ont. C.A.)
PRINCIPLE: The requirement for voluntary conduct applies even if the provision creating the offence does not expressly require one.
FACTS: Acting on a confidential tip, police officers followed a car driven by the accused in which Johnson (who had a long criminal record) was a passenger. The car stopped and Johnson ran into a nearby backyard. Swaby, the accused, drove off. Both me were arrested shortly after. The police found a loaded handgun in the backyard. Swaby was convicted of being an occupant in a vehicle knowing there was present an unlicensed, restricted weapon contrary to s.91(3) CC. According to J’s testimony the gun was the accused’s and he gave it to J to dispose of. According to the accused the gun was J’s and he only learned of it after the arrest.
HELD: The Crown had to prove occupancy of the vehicle and knowledge. It also had to prove that the occupancy and knowledge occurred because of Swaby's voluntary conduct. If Swaby learned about the weapon while the vehicle was in motion, he had to be given a reasonable opportunity to remove himself or the weapon from the vehicle. If he only learned about the weapon when Johnson left he would be acquitted.
· “To establish guilt on this count, the Crown had to prove the coincidence of the two essential elements of the offence as defined by s.91(3), namely occupancy of the vehicle and the appellant’s knowledge of the weapon. In my view, it is implicit as well that the Crown had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the appellant. Although the section under which the appellant was charged contained no explicit defence in the terms, it must be interpreted so as to exclude the possibility of conviction for what would amount to an involuntary act.
· Voluntary conduct is a necessary element for criminal liability. The requirement for voluntary conduct applies even if the provision creating the offence does not expressly require one. There is no general Code stipulation that the guilty act be voluntary. The requirement exists by virtue of judicial reasoning”.
R v Parks (below)
Although automatism is spoken of as a “defence”, it is conceptually a subset of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability.
R v Stone (1999) 2 S.C.R. 290 (below)
· “I prefer to define automatism as a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”
· “Voluntariness, rather than consciousness, is the key legal element of automatistic behaviour since a defence of automatism amounts to a denial of the voluntariness component of the actus reus”.
R v Rabey (1980) 2 S.C.R. 513 (disassociated state)
PRINCIPLES: Definition of “Automatism” AND absence of volition, as in automatism, is always a defence AND an involuntary defence, as automatism, entitles a complete and unqualified acquittal AND what constitutes a “disease of the mind” is a question of law, but the trier of fact will determine if it has occurred in a given case.
· “Automatism is a term used to describe unconscious, involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he is doing. It means an unconscious involuntary act, where the mind does not go with what is being done”.
· “...it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question”.
· “Although spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act”.
· The general rule is that it is for the judge as a question of law to decide what constitutes a “disease of the mind”, but that the question of whether or not the facts in a given case disclose the existence of such a disease is a question to be determined by the trier of fact.
R v Parks (1992) 2 S.C.R. 871 (Sleepwalking)
PRINCIPLE: sleepwalking is not a ‘disease of the mind’ AND the defence of insanity should only be put to the jury if disease of the mind is present AND recurrence is a factor to aid in determining disease of the mind.
FACTS: The respondent drove to the resident of his parents-in-law, killed one and seriously injured the other. He then notified the police. The respondent argued that he was sleepwalking throughout the incident and pleaded automatism. The jury acquitted him of first degree and then of second degree murder. The Crown argued that sleepwalking should be classified as a disease of the mind giving, rise to the verdict of not guilty by reason of insanity.
ISSUE: At issue here is a question of law: is sleepwalking properly classified as non-insane automatism, or does it stem from a disease of the mind, thereby leaving only the defence of insanity for the accused?
HELD: Appeal dismissed. Medical experts testified that sleepwalking was not an illness but a sleep disorder. In the present case, it was not sleepwalking that was the cause of the respondent's state of mind, but sleep, which was a natural condition. There was thus no basis on which the trial judge could have put the defence of insanity before the jury. The Crown failed to prove that somnambulism stemmed from a disease of the mind. There was no likelihood of recurrent violent somnambulism.
Sleepwalking
· This Court has only ruled on sleepwalking in an obiter dictum in R v Rabey. The Court found that sleep walking was not a “disease of the mind” in the legal sense of the term and gave rise to a defence of automatism.
· Bratty v AG for Northern Ireland (1963) (England) – sleepwalking gave rise to a defence of automatism.
· “... the expert witnesses unanimously stated that at the time of the incidents the respondent was not suffering from any mental illness and that, medically speaking, sleepwalking is not regarded as an illness, whether physical, mental or neurological. They also unanimously stated that a person who is sleepwalking cannot think, reflect or perform voluntary acts”.
· “Dr. Broughton indicated that he had never known of sleepwalkers who had acted violently and who had repeated this kind of behaviour.
THUS, the trial judge did not err in leaving the defence of automatism rather than that of insanity with the jury, and that the instant appeal should be dismissed. BUT, “This is not to say that sleepwalking could never be a disease of the mind, in another case on different evidence”.
Recurrence as a factor to consider to constitute disease of the mind
La Forest J. (five justices concurring): Recurrence is but one of a number of factors to be considered in the policy phase of the disease of the mind inquiry. Moreover, the absence of a danger of recurrence will not automatically exclude the possibility of a finding of insanity.
R v Stone (1999) 2 S.C.R. 290 (“psychological blow” automatism, i.e. provoking words)
PRINCIPLE: If the trial judge concludes that the condition is not a ‘disease of the mind’, ONLY the defence of non-insane automatism could be put to the jury AND Burden of proof for any defence of automatism is upon the defence AND Automatism types vs Insanity sentencing.
FACTS: Stone was charged with murder for the stabbing death of his wife. He admitted stabbing her but claimed it was involuntarily done while he was in an automatistic state brought on by his wife's insults. At trial, he testified that he felt a whooshing feeling go over him, and that when his eyes focused, he felt and saw a knife in his hand, and looked down and saw his wife slumped over. He disposed of the body in his truck, drove home, wrote a note, and left for Mexico, where he claimed that he dreamed and remembered stabbing his wife twice in the chest before the whooshing feeling. Stone's defences were insane and non-insane automatism, lack of intent, or provocation. The trial judge found that a proper foundation for an automatism defence was established; but, he refused to instruct the jury on non- insane automatism. Stone was convicted of manslaughter and sentenced to seven years imprisonment. The British Columbia Court of Appeal upheld the conviction and dismissed the Crown's sentence appeal.
ISSUE: whether non-insane automatism should have been left with the jury.
HELD: Appeals dismissed. There was no substantial wrong or miscarriage of justice when the trial judge did not put the non-insane automatism defence to the jury. Both non-insane and insane automatism were recognized at law. Stone had to establish a proper foundation for an automatism defence and then the trial judge had to determine whether Stone's condition was mental disorder or non-mental disorder automatism. Placing the burden on the defence did not violate the Canadian Charter of Rights and Freedoms. If the trial judge concluded that the condition was not a disease of the mind, only the defence of non-insane automatism would be put to the jury. However, if the trial judge found that there was a disease of the mind, only insane automatism was put to the jury. Here, the trial judge reached the correct result in finding there was a disease of the mind.
Burdens of Proof Applied in Automatism
· “The law presumes that people act voluntarily. Accordingly, since a defence of automatism amounts to a claim that one’s actions were not voluntary, the accused must rebut the presumption of voluntariness”.
· “... the legal burden in cases involving automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact”.
· The defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion.
Disease of the Mind
The question of whether the accused actually suffered from a disease of the mind is a question of fact to be determined by the trier of fact (Rabey).
The evidence in this case raised only one alleged causes of automatism, Mrs Stone’s words. Based on this evidence, the trial judge found that only mental disorder automatism should be left with the jury.
Insanity VS Automatism (Why argue one over the other?)
Insanity = Guilty by reason of insanity (since disease of the mind which requires special care since the accused is suffering, most likely, from a recurring problem and needs treatment)
VS
Automatism = complete and unqualified acquittal (since actions are involuntary). BUT:
· Mental disorder automatism – will result in a verdict of not criminally responsible on account of mental disorder as dictated by s.672.34. Under s.672.54, an accused who received this qualified acquittal may be discharged absolutely, discharged conditionally or detained in a hospital.
· Non-mental disorder automatism – will always result in an absolute acquittal.
Court qualified the approach in Stone:
R v Fontaine (2004) 1 S.C.R. 702
PRINCIPLE: The TEST whether to put a defence of mental disorder automatism (insane automatism) to the jury – whether there was any evidence in the record upon which the jury, properly instructed and acting judicially, could reasonably conclude that the defence of automatism by reason of mental disorder had been made out.
· NOTE – this modifies the approach in Stone which required there to be a ‘disease of the mind’ before the defence could be put before the jury.
FACTS: The accused worked as a garage mechanic. He received a call from R, a disgruntled former employee, who said, "We're coming to get you, pigs." The accused later heard from a co-worker that the victim had been offered a contract to kill both of them. Feeling that he was being watched and followed, the accused purchased a firearm. One evening, the accused thought he saw R lurking outside his home. The co-worker came by to check, but noticed nothing unusual. During the night, after smoking marijuana, the accused thought he heard someone breaking into his home. He fired the gun at doors and windows and into walls and concluded that he had shot the intruders. Seeing the victim at the garage the next day, the accused shot and killed him. Before a judge and jury, the accused pleaded mental disorder automatism. Several psychiatrists gave evidence. The judge, applying R v Stone, refused to put the mental disorder automatism defence to the jury on the ground that there was no evidence that would allow a properly instructed jury to conclude on a balance of probabilities that the accused had acted involuntarily.
The accused was convicted of first degree murder. The Court of Appeal quashed the conviction and ordered a new trial.
ISSUE: whether the accused was entitled to have his defence of mental disorder automatism put to the jury.
HELD: The accused’s defence of mental disorder automatism should have been put to the jury. If there is some evidence upon which a properly instructed jury could reasonably conclude that an accused probably perpetrated the alleged criminal act in a state of automatism, the evidential burden has been discharged and the defence is in play before the jury.
“Evidential” and “Persuasive” Burdens
Evidential burden – is not a burden of proof. It determines whether an issue should be left to the trier of fact.
Applying the law to the facts, the Court of Appeal did not err as to the nature of the evidential burden on a defence of mental disorder automatism, nor did it err in concluding that the accused had discharged that burden and was entitled to have his defence considered and decided by the jury. The accused gave evidence tending to establish that he was acting involuntarily at the time of the offence. He also adduced expert evidence to support his own testimony. The evidence clearly went beyond a mere allegation of the existence of a defence. It included a relatively detailed description of the accused's perception of the facts at the moment of the criminal act. The main defence expert, a psychiatrist, concluded that the accused was suffering, at the time of the offence, from a psychotic episode induced by substance abuse. According to the expert, at the relevant times the accused was "seeing things" and making pathological connections between people, situations and events. Taken as a whole, this evidence was sufficient to discharge the accused's evidential burden on his defence of mental disorder automatism.
TEST whether to put a defence of mental disorder automatism (insane automatism) to the jury
whether there was any evidence in the record upon which the jury, properly instructed and acting judicially, could reasonably conclude that the defence of automatism by reason of mental disorder had been made out.
15. Simple Intoxication
Intoxication does not operate as a justification or excuse for criminal conduct. This so-called defence of intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in reasonable doubt over whether the accused formed the relevant mens rea. The law is hostile to this claim. It therefore limits the defence to “specific intent” offences. Thus, for “general intent” offences, the question of whether the accused had the relevant mens rea will be assessed on the assumption that the accused was not intoxicated – even if he was. In other words, the law of simple intoxication operates less as a defence than as a way of limiting cases where the judge or jury can factor intoxication into mens rea determinations. The concept of a “specific intent” and “general intent” offence is described in the extreme intoxication case of R v Daviault below. Please note that in Canada, the inquiry is no longer into “capacity to form the intent” as it was in common law England – the defence applies if intoxication prevents the formation of the specific intent required by the relevant section.
R v Bernard (1988) 2 S.C.R. 833
PRINCIPLE: sexual assault causing bodily harm, s.272(c), is a general offence crime AND the Leary Rule is upheld – drunkenness is no defence to general intent offences, only to specific intent offence.
FACTS: The accused was charged with sexual assault causing bodily harm contrary to s. 246.2(c) [now s.272(c)], tried by judge and jury and found guilty. He admitted forcing the complainant to have sexual intercourse with him and stated that his drunkenness caused the attack on her. The Ontario CA dismissed an appeal from conviction, holding that the offence of sexual assault causing bodily harm was an offence of general intent, to which the defence of drunkenness did not apply. The accused appealed.
ISSUE: whether sexual assault causing bodily harm, s.272(c), is an offence requiring proof of specific or of general intent.
HELD: sexual assault causing bodily harm, s.272(c), creates an offence of general rather than specific intent, requiring only the minimal intent to apply force. In most cases involving general intent offences and intoxication the Crown will be able to establish the accused’s blameworthy mental state by inference from his or her acts, which is the case here.
· By his own admission the accused had sufficient wits about him after the violent assault to hide a bloodied towel and pillowcase from the police. There is no evidence that we are dealing here with extreme intoxication, verging on insanity or automatism, and as such capable of negating the inference that the minimal intent to apply force was present.
Distinction between “General intent” and “Specific intent”
General intent – the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose.
· i.e. The minimal intent to apply force in the offence of common assault.
Specific intent – involves the performance of the actus reus, coupled with an intent or purpose
going beyond the mere performance of the questioned act.
· i.e. Striking a blow or administering poison with the intent to kill, or assault with intent to maim or would.
This difference is best illustrated by a consideration of the relationship between murder and manslaughter:
He who kills intending to kill or cause bodily harm is guilty of murder, whereas he who has killed by the same act without such intent is convicted of manslaughter.
· THUS, drunkenness is a defence to murder (specific intent), however, it will become manslaughter (general intent).
Applying Intoxication as a Defence to General and Specific Intent Offences
Specific intent – where the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged, drunkenness may be a defence to a criminal act.
General intent – drunkenness as a defence has no application.
Leary v The Queen (1978) 1 S.C.R. 29 – rape is a crime of general intention as distinguished from specific intention, a crime therefore “in which the defence of drunkenness can have no application”.
· Leary Rule – drunkenness is no defence to a general intent offence.
Justifying the Leary Rule
· The effect of excluding the drunkenness defence from such offences is merely to prevent the accused from relying on his self-imposed drunkenness as a factor showing an absence of any necessary intent.
· While this Court has consistently recognized the basic proposition that an accused person should not be subject to criminal sanction unless the Crown shows the existence of a blameworthy or criminal mental state associated with the actus reus of the crime, it does not follow that a person who so deprives himself by the voluntary consumption of alcohol or a drug of the normal power of self-restraint that a crime results, should be entitled to an acquittal.
· I must reemphasize that the Leary rule does not relieve the Crown from its obligation to prove the mens rea in a general intent offence.
· “They cannot be heard to say: ‘I was so drunk that I did not know what I was doing’. If they managed to get themselves so drunk that they did not know what they were doing, the reckless behaviour in attaining that level of intoxication affords the necessary evidence of the culpable mental condition. Hence, it is logically impossible for an accused person to throw up his voluntary drunkenness as a defence to a charge of general intent. Proof of his voluntary drunkenness can be proof of his guilty mind.
· When the Leary rule is applied in this case the Crown must still prove beyond a reasonable doubt the existence of the required mental element of the intentional application of force. The offence cannot be said to be one of absolute liability in the sense that no mental element has to be proved in order to obtain a conviction.
Wilson (concurring) – The “Wilson compromise”
“I view it as preferable to preserve the Leary rule in its more flexible form, so as to allow evidence of intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence”.
R v Robinson (1996) 1 S.C.R. 683
PRINCIPLE: Before a trial judge may charge the jury on intoxication, s/he must be satisfied that the effect of the intoxication effected the accused’s foresight of consequences sufficiently to raise a reasonable doubt.
FACTS: The accused was convicted of second degree murder. He had struck the victim with a rock after the victim said something to him. He then fatally stabbed him. He argued that he acted without intent because he was intoxicated. There was evidence that the accused had consumed a considerable amount of alcohol before the alleged killing. The accused appealed his conviction on the basis that the trial judge erred in his directions to the jury respecting how the jury could use the evidence of intoxication as it related to the requisite intent for murder.
ISSUE: whether the Court should overrule the Beard rules of intoxication.
HELD: The Beard rules that intoxication was not a relevant factor to consider except where the intoxicant removed the accused's capacity to form the requisite intent should be overruled. These rules violated ss.7 and 11(d) of the Charter because they created a form of constructive liability that had been outlawed. Once a trial judge was satisfied that intoxication might have impaired the accused's foresight of consequences sufficient to raise a reasonable doubt, the judge must instruct the jury to consider whether the Crown showed beyond a reasonable doubt that the accused had the requisite intent. The trial judge erred in failing to instruct the jury that they were entitled to consider whether, in light of the intoxication evidence, the accused had the requisite intent in fact. The trial judge made a reversible error in failing to link the intoxication evidence with the inference that a sane and sober person intends the natural consequences of his actions.
· “I am of the view that before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt. Once a judge is satisfied that this threshold is met, he or she must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent”.
o i.e. “In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death”.
16. Extreme Intoxication
This defence was created in R v Daviault under the influence of the Charter. Extreme intoxication is distinct from the simple intoxication defence. Where extreme intoxication applies, it can operate as a defence to any offence, whether specific intent or general intent. The theory behind the defence is that a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Scientifically, the premise that this can happen is controversial, although Daviault recognized that if this were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice. Daviault was so controversial that Parliament immediately enacted s.33.1 CC to eradicate the defence in sexual offence and violence cases. This means that, subject to Charter challenge [Canadian courts are split on whether s.33.1 is constitutionally valid] extreme intoxication can only be used for other kinds of offences. Be aware that nothing in s.33.1 abolishes the defence of simple intoxication – it limits only the defence of extreme intoxication.
Modified the decision in Bernard:
R v Daviault (1994) 3 S.C.R. 63
PRINCIPLE: SCC adopted the Wilson compromise that extreme intoxication akin to automatism or insanity had, under the Charter, to be a defence to general intent crimes such as sexual assault AND the accused bears the burden of proof of extreme intoxication which requires expert testimony.
FACTS: The appellant, a chronic alcoholic, allegedly grabbed the 65-year-old complainant, who was a friend of the appellant's wife, out of her wheel chair, threw her on her bed and sexually assaulted her. The appellant claimed he had been drinking heavily on the day in question and had no recollection of what had happened when he woke up in the complainant's bed. An expert hypothesized, based on the consumption of alcohol by the appellant that day, that his blood alcohol content would have been between .4 and .6 and that a blackout might be suffered by a person with this much alcohol in their system.
ISSUE: whether extreme drunkenness can be a defence to general intent offences.
HELD: Appeal allowed and a new trial ordered. The rule that the mens rea of a general intent offence could not be negated by drunkenness offended sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. An intention to become intoxicated was not an intention to commit a sexual assault and did not establish the requisite mens rea. However, the court commented that given the minimal nature of the mental element required for general intent offences, even significant intoxication would generally not prevent the formation of the required mens rea. Extreme intoxication comparable to automatism or insanity had to be proven by the accused on a balance of probabilities, which usually meant the testimony of an expert witness, as in this case. While such a burden infringed an accused's rights under section 11(d) of the Charter, it was justified under section 1.
How the Leary Rule Violates ss.7 and 11(d) of the Charter
The rule that self-induced automatism cannot be a defence has never been subjected to a Charter analysis.
· The result of the decision in Leary, applied to this case, is that the intentional act of the accused to voluntarily become intoxicated is substituted for the intention to commit the sexual assault or for the recklessness of the accused with regard to the assault. This is a true substitution of mens rea.
· The substituted mens rea of intention to become drunk cannot establish the mens rea to commit the assault.
· Mens rea for a crime is so well-recognized that to eliminate that mental element, an integral part of the crime, would be to deprive an accused of fundamental justice.
· The presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime. These elements include the mental element of voluntariness. That element cannot be eliminated without violating ss.11(d) and 7 of the Charter.
· Voluntary intoxication is not yet a crime. It is difficult to conclude that such behaviour should always constitute a fault to which criminal sanctions should apply.
· A person intending to drink cannot be said to be intending to commit a sexual assault.
· A person in a state of automatism cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such an act. It follows that someone in an extreme state of intoxication akin to automatism must also be deprived of that ability. Thus a fundamental aspect of the actus reus of the criminal act is absent. It would equally infringe s.7 if an accused who was not acting voluntarily could be convicted of a criminal offence. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault
Reverse Onus
· Since the defence will only be put forward in those rare circumstances of extreme intoxication, I would suggest that the accused should be called upon to establish it on the balance of probabilities. Although the reverse onus constitutes a violation of the accused’s s.11(d) rights, such a burden could be justified under s.1. It is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him. Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking.
Parliament’s response to Daviault
CC s.33.1 – Extreme intoxication is no defence to crimes where the accused interfered or threatened to interfere with the bodily integrity of another, i.e. sexual assault and violent offences.
17. Defence of the Person
Self-defence is a complex defence in Canada. There are four separate but potentially overlapping statutory defences. All of the defences apply where the accused is being unlawfully assaulted, or reasonably believes he is about to be unlawfully assaulted but each of the four separate offences has its own additional requirements that must be satisfied.
s.34(1) – applies where the accused does not provoke the assault being defended against, and defends against it without intending to cause death or grievous bodily harm, whether or not death of grievous bodily harm is caused.
s.34(2) – applies whether or not the accused provoked the assault being defended against and intends to cause death or grievous bodily harm.
s.35 – applies where the accused provoked the assault, but this defence has lost much of its relevance given that s.34(2), which is less restrictive than s.35, can be used where assaults are provoked. The concept of provocation is defined for the purposes of self-defence in s.36.
s.37 – operates as a general defence that is broad enough to subsume the other defences but courts tend not to use it if any of the other provisions apply.
Pintar explains the relationship between ss.34(1) and (2), and the general approach that should be taken to using the various defences. As Cinous shows, each of these defences has both subjective and objective components that have to be satisfied. Lavallee illustrates the defence applied in the battered women context.
R v Pintar (1996) O.J. No.3451 (Ont. C.A.)
PRINCIPLE: The trial judge must not put excess defences to the jury under ss.34-37 because it is confusing. Only the most relevant provisions should be given. A narrower provision must NOT be put where there is an air of reality in the evidence for a wider provision.
FACTS: The accused was charged with two counts of second degree murder. One of the deceased, R, blamed the accused for the break-up of his marriage, and threatened on many occasions to kill him. The appeal focussed on the appellant's claim of self-defence and the charge to the jury in this respect. The judge charged the jury on the defences available under ss.34-37 and 265(1)(a) and (b). He divided the events related to the shooting into three phases and charged the jury that they could not consider Ross's original unprovoked assault on Pintar in determining whether the killing was justified under ss.34(1) and (2).
HELD: The appeal was allowed and a new trial ordered. The self-defence provisions of the Criminal Code were complex and confusing. Judges were requried to be selective in which defences to put to the jury. The judge should not have left s.34(1) with the jury as s.34(2) was more applicable to this case. s.35 also did not apply as there was no evidence that the appellant attempted to retreat before it became necessary to fire the fatal shots. Despite this, the charge was not so unneccessarily complex and confusing that it constituted an error of law.
· “... the underlying purpose of this exercise is not to remove self-defence from the jury’s consideration. Rather it is designed to focus the jury’s attention on the essence of the claim to self-defence and the available Code provision(s) most relevant to it”.
· The major pronouncement of Justice Moldaver is that a narrower provision must not be put where there is an air of reality in the evidence for a wider provision.
· The particular message of Pintar is that s.34(2) and not s.34(1) should be put in all murder cases whether or not the accused intended to kill or cause grievous bodily harm. The Court relies on the analysis that s.34(2) is wider than s.34(1) as it applies on present interpretations even if the accused provoked the assault, even if the accused intended to kill or cause grievous bodily harm and the question is not whether more force was used than was necessary but whether the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm.
o THUS, in murder cases arising from self-defence, the trial judge should put s.34(2) to the jury since it applies “whether or not the accused provoked the assault”, thus allowing a wider category for the accused to fall in.
R v Cinous (2002) 2 S.C.R. 852
PRINCIPLE: Before the trial judge may put a defence to the jury, there must be an “air of reality” to that offence. The TEST is whether there is evidence (an evidential foundation) on the record upon which a properly instructed jury acting reasonably could acquit.
FACTS: Appeal by the Crown from a decision of the Quebec Court of Appeal overturning a conviction and ordering a new trial. The accused Cinous was charged with the first degree murder of Vancol. Cinous had collaborated with Vancol and Louis in the theft and resale of computers. He claimed that he began hearing rumours that Vancol and Louis intended to kill him. He decided to participate in another theft with them to determine if this was true. They met at his apartment and departed in his van. Cinous testified that he became convinced that Vancol and Louis wanted to kill him when he saw the type of gloves they were wearing, which he associated with situations where bloodshed was expected. He pulled into a populated and well-lit gas station and bought a bottle of windshield washer fluid. He claimed that it did not occur to him to run away or call the police. When he returned to the van, he pulled out his gun and shot Vancol in the back of the head. The trial judge allowed the defence of self-defence to be put to the jury, but Cinous was still found guilty of second degree murder. The Court of Appeal held that the defence wasn't properly explained to the jury.
HELD: Appeal allowed. Cinous's conviction was restored. A defence was to be put to the jury if and only if it had an evidential foundation. The judge had a positive duty to keep from the jury defences that lacked an air of reality. The question was whether there was evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The air of reality test had to be applied to each of the three elements of self-defence under s.34(2). With respect to the first element, it was possible for the jury to reasonably conclude that he was going to be attacked, and this belief was reasonable. There was also an air of reality to Cinous's perception that the attack would be deadly. However, it had to be established that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. In this case, there was absolutely no evidence from which a jury could reasonably infer the reasonableness of such a belief. As one of the conditions of self-defence was not met, the defence lacked the required air of reality and should never have been put to the jury.
Rationale Behind The Air of Reality Test
The principle that a defence should be put to a jury if an only if there is an evidential foundation has long been recognized by the common law. This reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict.
Two principles of the requirement of an evidential foundation for defences:
(1) A trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury.
(2) A trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence that lacks an air of reality should be kept from the jury.
Air of Reality test imposes a burden on the accused
It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.
· Persuasive burden – the burden of establishing a case also referred to as the “major burden”, the “primary burden” and the “legal burden”.
· Evidential burden – the burden of putting an issue in play also referred to as the “minor burden”, the “secondary burden”, the “burden of going forward” and the “burden of adducing evidence”.
o The air of reality test is concerned only with whether or not a putative defence should be “put in play”, that is, submitted to the jury for consideration.
Features of the Air of Reality Test
· The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence.
· The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.
· Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.
· Whether or not there is an air of reality to a defence is a question of law, subject to appellate review. It is an error of law to put to the jury a defence lacking an air of reality, just as it is an error of law to keep from the jury a defence that has an air of reality.
· This Court has held on many occasions that a single air of reality test applies to all defences.
R v Lavallee (1990) 1 S.C.R. 852 (Battered woman)
PRINCIPLE: Under s.34(2), self-defence, the jury must ask itself whether, given the history, circumstances and perception of the appellant, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable AND expert evidence is both relevant and necessary in assisting the jury in making that determination (in the case of battered women).
FACTS: The accused was a battered woman in a violent relationship with her common law partner. The deceased had loaded a gun. The deceased told the accused that when everyone left the house she would "get it". The deceased then gave the gun to the accused and she was going to commit suicide but then aimed at the deceased and shot him in the back of the head as he was exiting the room they were in. The accused pleaded not guilty and raised the defence of self-defence. At trial the accused did not testify but defence counsel presented expert psychiatric evidence as to the psychological make-up of women who were battered and felt trapped in the abusive relationship. The Crown sought to have the evidence excluded but the trial judge permitted the evidence to remain and dealt with the Crown's concerns in his charge to the jury. On appeal the Manitoba Court of Appeal found fault with the jury charge as it related to the expert evidence and ordered a new trial.
ISSUE: whether she acted in self-defence under s. 34(2).
· On the accused’s appeal the SCC was faced with the decision in R v Whynot. That Court followed what was then considered to be the law, that it was inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault was actually in progress.
HELD: Acquittal restored. The SCC announced a change in the law from R v Whynot.
Relevant Provision
s.34(2) Extent of justification – Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable (objective) apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursued his purposes; and
(b) he believes (subjective), on reasonable (objective) grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
There are two elements of the defence under s.34(2):
(i) The temporal connection in s.34(2)(a) between the apprehension of death or grievous bodily harm and the act allegedly taken in self-defence.
o Was the appellant “under reasonable apprehension of death or grievous bodily harm” from Rust as he was walking out of the room?
(ii) The assessment in s.34(2)(b) of the magnitude of the force used by the accused.
o Was the accused’s belief that she could not “otherwise preserve herself from death or grievous bodily harm” except by shooting the deceased based “on reasonable grounds”?
Question to the Jury and Expert Evidence
The situation of the battered woman as described by Dr. Shane strikes me as somewhat analogous to that of a hostage. If the captor tells her that he will kill her in three days time, is it potentially reasonable for her to seize an opportunity presented on the first day to kill the captor or must she wait until he makes the attempt on the third day? I think the question the jury must ask itself is whether, given the history, circumstances and perception of the appellant, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable. To the extent that expert evidence can assist the jury in making that determination, I would find such testimony to be both relevant and necessary.
Expert Evidence
The appeal was allowed. Expert evidence was properly admitted in any situation where the subject matter of the inquiry was such that ordinary people were unlikely to form a correct judgment about it if unassisted by persons with special knowledge. In the context of the facts in this case, expert evidence on the psychological effects of battering on wives and common law partners was both relevant and necessary for the jury to render a correct verdict. Without such evidence the jury would not be able to fully appreciate the mental state of the female accused.
Self-defence
The defence of self-defence was made out if it was shown by the imposition of an objective standard of reasonableness that the accused apprehended imminent death which required deadly force to repel the assault. The standard of reasonableness to be applied was a gender specific standard so that the question was what a reasonable woman in the accused's shoes would have felt and thought.
18. Necessity
The defence of necessity permits the conduct of the accused to be excused where its elements are met. The defence is heavily circumscribed.
R v Dudley and Stephens (1884) (England)
FACTS: shipwrecked, led to cannibalism
PRINCIPLE: No defence of necessity to cannibalism/kill.
Perka v R (1984) 2 S.C.R. 233
FACTS: marijuana of ship, forced to dock.
PRINCIPLE: Three elements that must be present for the defence of necessity –
(1) The requirement of imminent peril of danger.
(2) The accused must have had no reasonable legal alternative to the course of action he or she undertook.
o If there was a reasonable legal alternative, then the accused’s decision became a voluntary one.
(3) There must be proportionality between the harm inflicted and the harm avoided.
R v Latimer (2001) 1 S.C.R. 3
PRINCIPLE: All three-stages of the Perka test must be satisfied before a defence of necessity may be put to a jury.
FACTS: Latimer's 12-year-old daughter had been severely physically and mentally disabled. After learning that doctors wished to perform additional painful surgery on her, Latimer took his daughter's life via carbon monoxide poisoning. He was found guilty of second degree murder, but the Supreme Court of Canada ordered a new trial.
ISSUE: whether the jury should have been left to consider the defence of necessity. The correct test on that point is whether there is an air of reality to the defence.
HELD: The defence of necessity did not apply. Neither Latimer nor his daughter was in imminent peril, Latimer had a reasonable legal alternative in continuing to care for her, and the murder outweighed any harm avoided in the form of pain from the operation.
· Side note: The mandatory minimum sentence for second degree murder was not cruel and unusual punishment under s.12 of the Charter. Second degree murder was an act of the most serious and morally blameworthy intentionality. Although Latimer was of good character and standing in the community, was anxious about his daughter's well-being, and was a caring and involved parent, his case was aggravated by his initial attempts to conceal his actions, his lack of remorse, his position of trust, his planning and premeditation, and the daughter's extreme vulnerability. Since there was no violation of s.12, there was no basis for granting a constitutional exemption from receiving the mandatory minimum sentence.
Perka Three-stage TEST – “Modified Objective” and “Objective” Test
(1) The requirement of imminent peril of danger.
(2) The accused must have had no reasonable legal alternative to the course of action he or she undertook.
o Modified objective test – involves an objective evaluation, but one that take into account the situation and characteristics of the particular accused person. In evaluating the accused’s conduct, it is appropriate to take into account personal characteristics that legitimately affect what may be expected of that person.
(3) There must be proportionality between the harm inflicted and the harm avoided.
o Objective test – evaluating the nature of an act is fundamentally a determination reflecting society’s values as to what is appropriate and what represents a transgression.
Air of Reality to the Defence of Necessity
Air of Reality test – The question is whether there is sufficient evidence that, if believed, would allow a reasonable jury – properly charged and acting judicially – to conclude that the defence applied and acquit the accused.
Necessity Defence – the trial judge must be satisfied that there is evidence sufficient to give an air of reality to each of the three requirements. If the trial judge concludes that there is no air of reality to any one of the three requirements, the defence of necessity should not be left to the jury.
(1) Imminent peril – not met (he was not in peril, it was his daughter).
(2) No reasonable legal alternative – not met (prolonging life and continuing with care system)
(3) Proportionality – not met (death over life, albeit uncomfortable).
THUS, the defence of necessity was rightfully not put to the jury.
Compare Latimer and Morgentaler:
R v Morgentaler (1985) – the Court considered whether Dr. Henry Morgentaler could rely on the defence of necessity for having provided therapeutic abortions without complying with the law in force at the time concerning such abortions. ALTHOUGH the necessity defence was weak, it was nevertheless left with the jury.
19. Duress
The defence of duress is available under s.17 CC and at common law. s.17 identifies a limited defence, but the common law and Charter have been used to extend its application.
· If duress is accepted, the defence provides a complete bar to conviction.
R v Hibbert (1995) 2 S.C.R. 973
PRINCIPLE: Defence of duress does not negate mens rea, rather it justifies or excuses what would otherwise be criminal conduct AND the defence of duress is unavailable if a “safe avenue of escape” was open to the accused AND whether a “safe avenue of escape” exists is assessed on an objective basis taking into account the particular circumstances and human frailties of the accused AND if accepted, the defence of duress provided a complete bar to conviction.
FACTS: The appellant had been charged with the attempted murder of C. He had accompanied B to C's apartment building and had buzzed up to C's apartment for him to come down to the lobby even though he knew that B had a gun and was intending to shoot C. Indeed, upon C's appearance in the lobby B had shot him four times. The appellant testified that he had believed that B would shoot him if he refused to cooperate with B. He indicated that he believed that he had no opportunity to run. He turned himself in to the police on the following morning. He appealed from his conviction on the ground that the trial judge's charge to the jury contained errors on the mental element of party liability under s.21(1)(b) of the Criminal Code.
HELD: The appeal was allowed, the conviction set aside and a new trial ordered. The judge erred in his instructions to the jury in referring to the relevant mental state under s.21(1)(b) as being a common intention to carry out an unlawful purpose and by suggesting that duress might have negated the accused's mens rea under the offence. The most important error was the failure by the judge to instruct the jury that even if the appellant possessed the required mens rea, his conduct could be excused by operation of the common law defence of duress. It could not be said that the errors in the charge relating to the nature of the defence of duress necessarily had no effect on the verdict. The jurors did not have the opportunity to consider whether the appellant's conduct could be excused due to the threats made. There was no error in the portion of the charge instructing the jury that the appellant could not rely on the defence of duress if the Crown established that he had failed to avail himself of a safe avenue of escape.
Section 21(1)(b) imposed liability on a party to a crime who did anything for the purpose of aiding any person to commit an offence. The word "purpose" was interpreted meaning intention and not desire. Duress could not negate the mens rea for aiding under section 21(1)(b) of the Code. This analysis was extended to the mens rea required by an offender under section 21(2). While the mens rea of a crime could not be negated by threats of death or bodily harm, the common law defence of duress continued to apply to justify or excuse what would otherwise be criminal conduct in cases involving party liability under section 21 of the Code. If accepted, the defence of duress provided a complete bar to conviction. The common law defence of duress was based on the same juridical foundation as the defence of necessity. If the accused could have escaped without danger, the decision to commit the offence became a voluntary one. The issue as to whether there was a safe avenue of escape was to be considered objectively, having regard to the particular circumstances and human frailties of the accused.
Relevant Provision
s.21(1) Parties to offence – Every one is a party to an offence who
(b) does or omits to do anything for the purpose of aiding any person to commit it
Meaning of “Purpose” in s.21(1)(b)
· The term “purpose” is capable of two different meanings: purpose as “intention” or purpose as “desire”. Purpose as “intention” should be adopted: “a person who consciously performs an act knowing the consequences that will (with some degree of certainty) flow from it ‘intends’ these consequences or causes them ‘on purpose’, regardless of whether he or she desired them.
Mens rea for aiding under s.21(1)(b) is Not Negated by Duress
· DPP for Northern Ireland v Lynch (England) – HL – the common law defence of duress provided an excuse, rather than operating by negating mens rea.
· I conclude that the expression “for the purpose of aiding” in s.21(1)(b) does not require that the accused actively view the commission of the offence he or she is aiding as desirable in and of itself. As a result, the mens rea for aiding under s.21(1)(b) is not susceptible of being “negated” by duress.
· The common law defence of duress is not based on the idea that coercion negates mens rea. Rather, it operates by justifying or excusing what would otherwise be criminal conduct.
o Duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea.
The Safe Avenue of Escape Requirement
· The rule that the defence of duress is unavailable if a “safe avenue of escape” was open to the accused is simply a specific instance of this general requirement – if the accused could have escaped without undue danger, the decision to commit an offence becomes (as Dickson J observed in the context of necessity) “a voluntary one, impelled by some consideration beyond the dictates of ‘necessity’ and human instincts”.
· Compliance with the law must be “demonstrably impossible”.
Is the Existence of a Safe Avenue of Escape to Be Determined Subjectively or Objectively?
The question of whether a “safe avenue of escape” was open to an accused who pleads duress should be assessed on an objective basis. The appropriate objective standard to be employed is one that takes into account the particular circumstances and human frailties of the accused.
· Side note: Same basis as necessity.
R v Ruzic (2001) 1 S.C.R. 687
PRINCIPLE: The immediacy and presence requirements of s.17 make it unconstitutional in order to establish that defence AND s.17 includes threats against third parties AND the common law defence of duress is wider AND the burden of proof shifts from the accused to the prosecution after the defence of duress has been raised.
FACTS: Appeal by the Crown from the dismissal of its appeal from Ruzic's acquittal on charges of importing heroin and using a false passport. Ruzic claimed that she was acting under duress, as a man in Belgrade, where she lived with her mother, threatened to harm her mother unless she brought the heroin to Canada. She claimed that she could not seek police protection because the police in Belgrade were corrupt and would not assist her. Section 17 of the Criminal Code provided a defence for persons who committed an offence under compulsion by threats of immediate death or bodily harm from a person who was present when the offence was committed. Ruzic's claim of duress did not meet the immediacy and presence requirements of section 17. She successfully challenged its constitutionality under section 7 of the Charter, raised the common law defence of duress, and was acquitted by a judge and jury.
HELD: Appeal dismissed. Only morally voluntary conduct attracted criminal liability. Depriving Ruzic of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if she did not have any realistic choice. Section 17 breached section 7 of the Charter because it allowed individuals who acted involuntarily to be declared criminally liable. The immediacy and presence requirements precluded threats of future harm. They did not minimally impair Ruzic's section 7 rights, and so were not saved by section 1 of the Charter. The common law defence of duress was not restricted by requirements of immediacy and presence, and so was more consistent with Charter values. The trial judge was correct in allowing the common law defence of duress to go to the jury, and the trial judge adequately instructed the jury on the defence. Ruzic was not required to seek official police protection. Once she raised the defence of duress and introduced some evidence about it, the burden of proof shifted to the Crown to show beyond a reasonable doubt that Ruzic did not act under duress.
Relevant Provision
s.17 Compulsion by threats – A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out ...
Do the Immediacy and Presence Requirements in s.17 Infringe the Principle of Involuntariness in the Attribution of Criminal Responsibility?
· Neither the words of s.17 nor the Court’s reasons in Carker and Paquette dictate that the target of the threatened harm must be the accused. They simply require that the threat must be made to the accused.
o s.17 may thus include threats against third parties.
· The immediacy and presence requirements, taken together, clearly preclude threats of future harm.
· Thus, by the strictness of its conditions, s.17 breaches s.7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable.
· The underinclusiveness of s.17 infringes s.7 of the Charter because the immediacy and presence requirements exclude threats of future harm to the accused or to third parties. It has the potential of convicting persons who have not acted voluntarily. The immediacy and presence conditions cannot be saved by s.1.
Burden of Proof
The accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress.
GENERAL OVERVIEW AND PRELIMINARY MATTERS
1. The Sources of Criminal Law
With the exception of contempt of court, criminal offences are created in Canada by statute. Most criminal offences are created by Criminal Code. Drug trafficking, for example, is made a criminal offence by the Controlled Drugs and Substances act. The common law cannot be used to created offences in Canada because of concerns related to the principle of legality, and the notion that criminal offences should be clear, certain, and should pre-exist the act being prosecuted. Many rules of criminal procedure are created in the Criminal Code, and many other rules of procedure are common law based.
Frey v Fedoruk (1950) S.C.R. 617
PRINCIPLE: No one shall be convicted of a crime unless the offence charged is recognized as such by the Criminal Code, or can be established by the authority of some reported case as an offence known to the law.
FACTS (Civil case): P was arrested by Ds (police + homeowner) for “peeping tommery,” under the provision of disturbance of the peace.
ISSUE: P is suing D because peeping tommery is not a crime.
HELD: Peeping tommery is not a criminal offense, because of no precedence. Thus P was falsely imprisoned.
NOTES:
· The “generic principle” of “breach of the King’s peace” is too vague and all-encompassing.
· Common law offenses do not exist(except the law of contempt for court).
o Not true for defenses. (ie. self-defense, etc.) Common law arguments can be used. This allows more room for the accused to defend themselves (gives them the benefit of the doubt).
CC s.9: This section prohibits conviction or finding of guilty of offences at s.9(a) common law or under statutes other than those of the Parliament of Canada. The exception is contempt of court.
While common law offences are not allowed, common law defences are available under Canadian criminal law and can still be created by the courts. The SCC recognized a common law defence in Levis(City) v Tetrault (2006) 1 S.C.R. 420. Moreover, the common law can deeply influence the way that statutory criminal offences are interpreted.
CC s.8: This section describes the application of the Code and the extent to which the criminal and common law of England continues to apply under the Code.
R v Jobidon (1991) 2 S.C.R. 714
PRINCIPLE: Under s.8(3), courts may look to pre-existing common law rules and principles to give meaning to and explain the outlines and boundaries of an existing defence or justification to indicate where they will not be held legally effective, provided there is no clear language in the Code to indicate its displacement of the common law.
FACTS: The appellant and the deceased were involved in a fist fight. The appellant punched the deceased who fell onto the hood of a car. Unaware that the deceased was unconscious, the appellant continued to punch the deceased on the head. The victim died as a result of one of the punches received from the appellant. The trial judge held that the appellant did not intend to kill the deceased and that he believed that the deceased had consented to a fight. The trial judge held that the victim's consent negated assault and that there was no criminal negligence.
ISSUE: whether absence of consent is a material element which must be proved by the Crown in all cases of assault or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases.
HELD: Appeal dismissed. The common law limitations to consent applied in the context of section 265 of the Criminal Code. Thus the victim's consent to a fist fight did not preclude the commission of an assault under section 265. The limits on consent to assault vitiated consent between adults to apply force causing serious bodily harm to each other in the course of a fist fight.
Gonthier J. (majority):
Gonthier J. states that public policy is the reason why the common law defence of “consent” cannot be used as a defence to a fist fight.
- “All criminal offences in Canada are now defined in s.9 CC. But that does not mean the common law no longer illuminates these definitions nor gives content to the various principles of criminal responsibility those definitions draw from.
- “Section 8 expressly indicates that the common law rules and principles continue to apply, but only to the extent that they are not inconsistent with the Code or other Act of Parliament and have not been altered by them.
Sopinka J. states that although public policy is sufficient to conclude the absence of consent, the proposition is strengthened by s.9(a) CC which provides that “notwithstanding anything in this Act or any other Act, no person shall be convicted ... (a) of an offence at common law”. Thus, the effect of Gonthier J.’s approach would be to create an offence where one does not exist under the terms of the Code by application of the common law. The offence created is the intentional application of force with the consent of the victim. “... use of the common law to eliminate an element of the offence that is required by statute is more than interpretation and is contrary to s.9(a).
- “One of the basic reasons for s.9(a) is the importance of certainty in determining what conduct constitutes a criminal offence. That is the reason we have codified the offences in the C”.
- “An accused should not have to search the books to discover the common law in order to determine if the offence charged is indeed an offence at law”.
2. The Power to Create Criminal Offences and Rules of Criminal Procedure
a) Constitutional Division of Powers Introduced – Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences) and to use jail to enforce those regulatory offences, but only the Federal Government can create “criminal” offences, or “true crimes”, pursuant to its powers under s.91(27) of the Constitution Act, 1867. The principles that apply to true crimes differ from those that apply to regulatory offences.
Curiously, while they cannot create criminal offences, Canadian provinces do have jurisdiction over the administration of justice within the province under s.92(14) of the Constitution Act, 1867. For example, the provinces have set up the lowest level of criminal court where the vast majority of cases are actually prosecuted (the provincial courts); it is the provincial Attorneys General who prosecute most offences, including serious offences; and the provinces have passed statutes setting out juror eligibility within the province. The procedure during criminal hearings, however, is governed by Federal rules and by the common law.
Distribution of powers
Since 1892, the criminal law has been codified in one federally-enacted Criminal Code. However, for the most part, the Criminal Code is enforced by the provinces; and the decisions to investigate, charge and prosecute offences are therefore matters of provincial policy.
s.91(27) – confers on Parliament the power to make laws in relation to: “the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters”.
- Thus, the rules of procedure and evidence in a criminal trial are federal.
- Thus, this provision authorizes provincial policing and prosecution of offences under the Criminal Code and the establishment of courts of criminal jurisdiction.
- Criminal trials accordingly take place in provincial courts.
P.A.T.A. case (1931) – Lord Atkin: “... Is the act prohibited with penal consequences?”
- This definition appeared to be too wide in that it would enable the federal Parliament to expand its jurisdiction indefinitely, simply by framing its legislation in the form of a prohibition coupled with a penalty.
- Thus far, two ingredients for a criminal law: (1) prohibition; and (2) a penalty
Margarine Reference (1951)
The third ingredient of a criminal law is a (3) “criminal purpose”.
R v Malmo-Levine (2003) SCC 74
ISSUE: The federal Narcotic Control Act’s criminalization of the possession of marijuana was challenged. Also, D’s argued that marijuana causes no harm.
HELD: the Act was a valid exercise of the criminal law power under s.91(27), and overruled Hauser which held that the Act came within the national concern branch of POGG. The presence of harm to others was not a requirement of a valid criminal law. Also, the court did succeed in identifying some harms caused by marijuana use (i.e. memory loss, etc).
- “For a law to be classified as a criminal law, it must possess three prerequisites:
(2) backed by a prohibition, and
(3) a penalty”
- The use of marihuana is therefore a proper subject matter for the exercise of the criminal law power.
The Charter can be used by courts to invalidate offences that Parliament has created, and courts have done so on a number of occasions, but this is not common. It has also been used to strike down rules of criminal procedure, although this too is uncommon.
Example of a criminal offence being struck down:
R v Heywood (1994) 3 S.C.R. 761
FACTS: The respondent was convicted of sexually assaulting children. Pursuant to section 179(10)(b) of the Criminal Code he was prohibited from loitering near playgrounds, school yards or public parks. He was arrested when he was seen at a public park and near a playground. The respondent argued that section 179(1)(b) of the Criminal Code violated sections 7, 11(d), 11(h) and 12 of the Canadian Charter of Rights and Freedoms.
HELD: Appeal dismissed. Section 179(1)(b) violated section 7 of the Charter and was not justified under section 1. Section 179(1)(b) was overbroad in that it applied to the accused without notice and it was too broad in its geographical ambit. It was also overly broad in that it applied to an accused for life with no possibility of review.
Example of a rule of criminal procedure being struck down:
R v Oakes (1986) 1 S.C.R. 103
FACTS: The Court of Appeal held that s. 8 of the Narcotic Control Act was unconstitutional as violating s. 11(d) of the Charter. Section 8 constituted the "reverse onus" clause under which if the accused was found in possession of a narcotic he was presumed to be in possession for the purpose of trafficking and must be convicted of trafficking unless he rebutted the presumption. The constitutionality of this question was again raised on the Crown's appeal to the Supreme Court of Canada.
HELD: The appeal was dismissed. The presumption of the accused's innocence was protected expressly by s. 11(d) and inferentially by s. 7 of the Charter. Section 8 of the Narcotic Control Act infringed s. 11(d) of the Charter by requiring the accused to disprove the existence of a presumed fact. There was no rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking. The Court was not satisfied that the limitation of the right in s. 8 of the Act was reasonable and demonstrably justified in a free and democratic society.
The Charter can also be used as an important interpretive tool. Even when it is not used to strike down a provision, it is practice of courts to permit constitutional values to influence the way statutes are interpreted. The Charter’s largest impact on criminal procedure has been in creating constitutional procedural protections.
Example of how the Charter changed the criminal concept of indecency through a progression of cases described therein:
Defining indecency under the Criminal Code is notoriously difficult. The CC offers no assistance, leaving the task to judges:
Butler (1992) 1 S.C.R. 452
PRINCIPLE: Butler created the harm-based test. Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society.
FACTS: The appellant owned a store which sold and rented hard-core pornographic videotapes and magazines. He was charged with several counts of selling obscene material and possessing obscene material for the purpose of distribution. At trial, the appellant was convicted on some of the charges and acquitted on others. The trial judge held that the obscene material was protected by section 2(b) of the Canadian Charter of Rights and Freedoms. He held that only materials which contained violence or cruelty intermingled with sexual activity or which were otherwise dehumanizing were legitimately proscribed under section 1 of the Charter.
HELD: Appeal allowed; a new trial was ordered. The definition of obscenity contained in section 163(8) of the Criminal Code provides an exhaustive test of obscenity with respect to publications and objects which exploit sex as a dominant characteristic. In order to determine whether the exploitation was "undue", the court must apply the community standard of tolerance test and determine what Canadians would not tolerate other Canadians being exposed to on the basis of harm that may flow from such exposure.
Follows Butler:
R v Labaye (2005) S.C.J. No.83 and R v Kouri (2005) SCC 81
PRINCIPLE: SCC abandons the community standard of tolerance test for indecency in favour of an objectively determined harms approach.
FACTS: The accused was charged with keeping a common bawdy-house for the practice of acts of indecency under s. 210(1) of the Criminal Code. The accused operated a club in Montréal the purpose of which was to permit couples and single people to meet each other for group sex. Only members and their guests were admitted to the club. Prospective members were interviewed to ensure that they were aware of the nature of the activities of the club. A doorman manned the main door of the club, to ensure that only members and their guests entered. The club had three floors. Two doors separated the third floor apartment from the rest of the club. One was marked "Privé" and the other was locked with a numeric key pad. This was the only place where group sex took place. At trial, the accused was convicted. The trial judge found that the accused's apartment fell within the meaning of "public place", as defined in s. 197(1) of the Criminal Code. A majority of the Quebec Court of Appeal upheld the accused's conviction.
HELD: Appeal allowed, on the new approach both accused should be acquitted. The CA erred in applying an essentially subjective community standard of tolerance test and failing to apply the harm-based test of Butler.
In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met:
(1) The first is that by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
- (a) The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual conduct in question. (b) Nor was there evidence of the second type of harm, the harm disposing people to anti-social acts or attitudes. On the evidence, only those already disposed to this sort of sexual activity were allowed to participate and watch. The fact that the club is a commercial establishment does not in itself render the sexual activities taking place there commercial in nature. (c) Finally, there is no evidence of the third type of harm--physical or psychological harm to persons participating. The only possible danger to participants on the evidence was the risk of catching a sexually transmitted disease. However, this must be discounted as a factor because it is conceptually and causally unrelated to indecency.
- Since the Crown failed to establish the first requirement to prove indecent criminal conduct, it is unnecessary to proceed to the second branch of the test.
Dissent LeBel J. (Bastarache J):
- In contrast to our colleagues, we propose to continue applying the original test for indecency, which focuses on a contextual analysis of the impugned acts and incorporates the concept of harm as a significant, but not determinative, factor to consider in establishing the applicable level of tolerance.
- In our view, indecency cannot be based solely on the exposure of the general public to sexual acts.
- Another thing to bear in mind is that it is the standards of the community as a whole that must be considered and not the standards of a small segment of the community. Consequently, indecency cannot be based solely on the presence of participants or on their views.
- Furthermore, the existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct. The existence of fundamental social and ethical considerations is sufficient (R v Malmo-Levine(2003)).
- The philosophical underpinnings of the majority’s harm-based approach are found in the liberal theories of J.S. Mill.
(c) Rules of Practice – Section 482 of the Criminal Code permits courts to create rules of practice to govern the administrative mechanics of practice in criminal courts. Example: R v Grundy (2008) O.J. No.1410
3. The Classification of Offences
In Canada, criminal offences are divided into two general categories: “indictable offences” and “summary” (or “summary conviction”) offences. Offences can be “hybrid” in the sense that the prosecutor has the right to elect whether to treat the offence as “indictable” or “summary”. The classification of offences has important implications for the penalties that are possible, and for the procedure that will be used, including the mode of trial.
Modes of trial:
(1) In front of the “court of criminal jurisdiction”, and
In front of the “superior court of criminal jurisdiction” who can hear matters in two ways:
(2) Without a jury (a ‘judge alone’ trial) or
(3) With a jury
Summary conviction offences – the only mode of trial is in the court of criminal jurisdiction.
Indictable offences – the accused has an “election” and can choose whether to have a trial by superior court judge and jury, by superior court judge alone, or by provincial court judge.
HOWEVER, having given that election to the accused, the Code then takes it away in a number of situations:
- s.469 – lists a series of offences that must be tried by a judge and jury, so the accused is given no election.
- Rationale = the offences are so serious, the public interest demands a jury trial.
- s.553 – lists a number of offences that will be tried in provincial court, so the accused is given no election.
- Rationale = lists less serious offences, and so there is no justification to offer any choice.
- s.471 – trial by jury is compulsory for all indictable offences, unless some other Code provision creates an exception to that requirement
- Other Code provisions then create exceptions for literally every offence. One could easily gain the impression that trial by jury is the norm when, in fact, it is a rarity.
Criminal offences are classified as indictable or summary conviction. Hybrid offences should not be viewed as a third classification of offences because they represent no more than a legislative decision to allow the prosecution the right to elect to proceed by one form of procedure or the other.
Summary conviction offences
Indictable offences
Hybrid offences
Seriousness – Less serious than indictable offences.
Limitations – Yes “statute of limitations” – Summary conviction offences are time-barred six months after the completion of the offence.
Sentencing – allow a maximum of six months or a fine of $2,000, or both (unless otherwise provided).
Seriousness – More serious than summary offences.
Limitations – No “statute of limitations”.
Sentencing – allow a maximum term of imprisonment that exceeds two years
Limitations – If a hybrid offence could be charged in relation to conduct that was completed more than six months previously, the prosecutor is not generally time-barred against proceeding by way of indictment.
- Neither the severity of the maximum penalty, nor the perceived seriousness of violence provides a sound basis to explain why offences have been designated as they have.
- Offenders sentenced to terms of less than two years are incarcerated in provincial jails, whereas offenders sentenced to more than two years are incarcerated in federal penitentiaries.
Summary conviction offences – in all summary conviction matters, and some indictable matters, the information remains the document of charge throughout the proceedings. The proceedings at trial are conducted in the provincial court.
Indictable offences – the usual procedure is to begin with a preliminary inquiry on the information before a provincial court judge.
- The inquiry provides an opportunity for the parties to test the evidence of selected witnesses on specific issues. If the accused is committed for trial upon completion of the inquiry, the prosecutor may file a new document of charge, called the indictment, in the court where the accused will be tried.
Interpreting the Criminal Code and related enactments is not unlike interpreting other statutes. There are special considerations that operate, however. For example:
(a) Definitions – The Criminal Code has definitions for many of the terms used but they are not always easy to locate. Section 2 contains definitions that apply throughout the Code. The Code is divided into Parts, and at the beginning of each Part, there will be a definition section that applies solely to that Part. Sometimes definitions are found in or around the relevant statutory provision to be interpreted. See, for example, ss.348(3) and 350, which apply to offences in s.348(1) (i.e., breaking and entering).
(b) Strict Construction – Historically, criminal statutes were interpreted strictly in favour of the liberty of the accused. In other words, the accused would get the benefit of the doubt or ambiguity in matters of interpretation. This principle continues to apply but has been heavily modified by the purposive interpretation.
- The Doctrine of Strict Construction: the Court adopts the interpretation most favourable to the accused.
- Marcotte (1976) – “No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication”.
- R v Goulis (1981) – “This Court has on many occasions applied the well-known rule of statutory construction that if a penal provision is reasonably capably of two interpretations that interpretation which is the more favourable to the accused must be adopted”.
R v Pare (1987) 2 S.C.R. 618
FACTS: The respondent, who was 17 years old, lured a seven-year-old boy from a swimming pool to a parking lot where the respondent indecently assaulted him. The respondent then got dressed but became afraid that the boy was going to inform his mother what had happened. The respondent thereupon killed the boy by strangulation and by hitting him on the head. The respondent was found guilty of first degree murder by the trial court. The verdict was reduced to guilty of second degree murder by the Court of Appeal on the basis that the respondent had not murdered the boy "while committing" the indecent assault. The Crown appealed on the basis that the Court of Appeal erred in concluding that s. 214(5) of the Cr. Code created a substantive offence of murder and that it erred in its interpretation of the words "while committing".
HELD: The appeal was allowed and the conviction for first degree murder was restored. With respect to the interpretation of the words "while committing" the literal meaning applied by the Court of Appeal was too restrictive. It was the continuing illegal domination of the victim giving continuity to the sequence of events and culminating in the murder of the victim that was to be considered. The murder, being the exploitation of the position of power created by the underlying crime, made the entire course of conduct a single transaction. The murder, committed two minutes after the assault out of fear that the victim would tell his mother what had happened, was temporally and casually connected to the underlying offence so that they formed one continuous sequence of events.
R v McIntosh (1995) – “It is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable provision”.
- Lamer C.J. went as far as to add that this should be so even if this led to absurdity or illogicality.
PRINCIPLE: the principle of strict construction applies only in cases of ‘true ambiguity’. Words must be determined by examining the context they are in.
FACTS: The forged credit card charges were laid under s.369(b) CC alleging that the accused was in possession of various machines and materials adapted for and intended to be used to create forged credit cards.
ISSUE: The word “adapted” was argued to mean “altered so as to be suitable for” by the accused, opposed to how the judge instructed the jury with saying “suitable for”.
HELD: Given real ambiguity, the offence of possession of machines “adapted” for creating credit cards had to be given the strict construction of “altered so as to be suitable for” rather than just “suitable for”.
Doherty J.A. – “The principle that ambiguous penal provisions must be interpreted in favour of an accused does not mean that the most restrictive possible meaning of any word used in the penal statute must always be the preferred meaning. The principle applies only where there is true ambiguity as to the meaning of a word in a penal statute. The meaning of words cannot be determined by examining those words in isolation. Meaning is discerned by examining words in their context. True ambiguities in a statute exist only where the meaning remains unclear after a full contextual analysis of the statute”.
(c) Purposive Interpretation – Canadian law makes liberal use of purposive interpretation, in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole, with the underlying purpose of the provision in mind so as to best accomplish its underlying purpose, always bearing in mind that the limit on purposive interpretation is that damage cannot be done to the language employed. R v Pare is an example.
Hunter v Southam Inc. (1984) 2 S.C.R. 145
“The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms ...”
HELD: Under this purposive approach the interest to be protected under s.8 was privacy, and the purposive way to protect that interest was to require a police officer to obtain a search warrant to search unless that was not feasible.
(d) French/English – Federal laws like the Criminal Code are passed in both of Canada’s official languages. Each version is equally authoritative, and ambiguities in one language can be clarified by the other.
R v J.(D). (2002) O.J. No. 4916 (Ont. C.A.)
FACTS: Appeal by JD, a young person, from a conviction for forcible entry (that is, entry into his friend’s home). He let JD enter and JD told VB's son to pretend that he, JD, lived there. JD then headed straight for the back door, but found that a couch prevented his exiting through it.... HELD: Appeal allowed, conviction set aside and acquittal entered. Forcible entry occurred only where the entry interfered with the peaceable possession of a person in actual possession of the property. A known person simply walking in the front door, straight through the residence and out the back door did not have such an intention. Further, JD did not act in a manner likely to cause a breach of the peace or a reasonable apprehension of such a breach.
French/English interpretations:
- There are two distinctions between the French and English versions which take on some importance in the interpretative exercise. Section 72(1) in the English version uses the word "enters" to describe the prohibited conduct, while the French version uses the phrase "prend possession". The word "enters" can refer to a purely physical act. However, the phrase "prend possession" suggests the taking of some form of control over the property.
- The common meaning of the French and English versions of s. 72(1) speaks of more than a mere physical entry upon the property. Read together, I think, the two versions require a taking of possession in the sense of some interference with the peaceable possession of the person in actual possession of the real property at the time of the entry.
- The appellant's entry into Ms. V.B.'s residence was not accompanied by any force, violence, or threat of force or violence. He had been in the residence before and was allowed into the residence by a person who had authority to grant him entry. The appellant was not even a trespasser as long as he was not asked to leave by Ms. V.B. On these facts, there is no basis for concluding that the appellant took possession of the residence when he entered it in the sense that he interfered in any way with the peaceable possession of the residence by Ms. V.B. and her family.
- The evidence offered by the Crown was incapable in law of proving the offence of forcible entry. I would allow the appeal, set aside the conviction on the charge of forcible entry and enter an acquittal.
(e) The Charter – The Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid.
A Charter challenge encouraged the Court to read significant content into the concept of “reasonable corrective force”:
Canadian Foundation for Children, Youth & the Law v Canada (A.G.) (2004) 1 S.C.R. 76
PRINCIPLE: VAGUENESS and corrective force.
FACTS: Appeal by the Canadian Foundation for Children, Youth and the Law from the dismissal of its appeal from the dismissal of its application for a declaration that section 43 of the Criminal Code violated the Charter. Section 43 permitted schoolteachers and parents to use force by way of correction to a child where such force did not exceed what was reasonable under the circumstances.
HELD: Appeal dismissed. While, as conceded by the Crown, section 43 violated children's rights to security of the person, it did not offend a principle of fundamental justice in violation of section 7 of the Charter. The section accorded procedural safeguards. The best interests of the child principle was not a principle of fundamental justice. Finally, the section was not impermissibly vague or overly broad. The phrases by way of correction and reasonable under the circumstances provided sufficient precision to delineate the zone of risk of criminal sanction having regard to international treaty obligations, the social consensus, expert evidence and judicial interpretation. Pursuant to these resources, the force used had to be for the purposes of education or correction, and could not be more than trifling. Corporal punishment against children under two or teenagers, degrading, inhuman or harmful conduct and the use of objects or blows to the head were not protected by section 43. Teachers were not permitted to use corporal punishment, but could use force to remove a child from a class or secure compliance with instructions. As section 43 only permitted reasonable corrective force, it did not breach section 12 of the Charter by permitting cruel and unusual punishment against children. Finally, section 43 did not violate children's section 15(1) equality rights. Children needed a safe environment, but they also depended on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development.
The Standard for “Vagueness”
A law is unconstitutionally vague if it “does not provide an adequate basis for legal debate” and “analysis”: “does not sufficiently delineate any area of risk”; or “is not intelligible”. The law must offer a “grasp to the judiciary”. Certainty is not required.
- A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction.
- It similarly makes it difficult for law enforcement officers and judges to determine whether a crime has been committed.
- It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis.
s.43 sets real boundaries and delineates a risk zone for criminal sanction. It does not violate the principle of fundamental justice that laws must not be vague or arbitrary. It is not overbroad.
- s.43 delineates who may access its sphere with considerable precision. The terms “schoolteacher” and “parent” are clear.
- The person applying the force must have intended it to be for educative or corrective purposes. Out of anger will not be tolerated.
- If conduct raises an apprehension of bodily harm s.43 cannot be relied on.
THE ELEMENTS OF A CRIMINAL or REGULATORY OFFENCE
Each criminal offence has “elements” that must be present before a conviction is possible. Indeed, all elements of the offence must be present at the same time, or there will be no crime (see R v Williams). As is the case internationally, it is convenient to think of the elements of an offence as:
- The physical elements or actus reus of the offence (the act that must be performed or omission that is proscribed, the circumstances or conditions in which the act must occur, and any consequence that must be caused by the act); and
- The mental or mens rea elements of the offence.
As a general proposition of interpretation, a true crime will be interpreted as requiring subjective mens rea unless it is clear that Parliament wished to impose objective liability. Identifying what the elements of an offence are is a challenging enterprise, turning on interpretation of the offence and familiarity with relevant precedents and principles. It is not possible or desirable to attempt here to “teach” the elements of every offense. Instead, some offences will be selected for their illustrative value in demonstrating the key actus reus and mens rea concepts. Applicants are expected to be able to demonstrate interpretive and application skills for all criminal offences, whether included in these reading materials or not.
Subjective mens rea (accused’s state of mind)
Objective mens rea (reasonable person)
Intent
Planning and premeditation
Recklessness
Knowledge
Wilful blindness
Negligence
5. The Actus Reus
(a) Acts and Statutory Conditions – The act must be the act of the accused and must be the kind of act described in the relevant provision. Further, the act must be committed under the circumstances or conditions specified in the offence. For example, an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s.348(1)(a) unless he “breaks” and “enters” something that qualifies as a “place” according to the CC, with the relevant mens rea.
Example of interpretation of the actus reus conditions not being met:
R v J.(D). (2002) O.J. No. 4916 (Ont. C.A.)
FACTS: Appeal by JD, a young person, from a conviction for forcible entry (that is, entry into his friend’s home). While investigating a break and enter, a police dog picked up JD's scent and followed it to a park. When approached by police officers, JD fled to VB's house. VB knew JD as the friend of her children, one of whom answered the door when JD knocked. He let JD enter and JD told VB's son to pretend that he, JD, lived there. JD then headed straight for the back door, but found that a couch prevented his exiting through it. The police arrived at VB's front door, and VB let them in, whereupon they arrested JD without incident. The trial judge found that forcible entry did not require any force as long as the surrounding circumstances gave rise to a reasonable apprehension of a breach of the peace.
HELD: Appeal allowed, conviction set aside and acquittal entered. Forcible entry occurred only where the entry interfered with the peaceable possession of a person in actual possession of the property. A known person simply walking in the front door, straight through the residence and out the back door did not have such an intention. Further, JD did not act in a manner likely to cause a breach of the peace or a reasonable apprehension of such a breach.
Example of interpretation of the actus reus conditions being met:
R v D’Angelo (2002) O.J. No. 4312 (Ont. C.A.)
FACTS: Appeal by the Crown from the acquittal of the accused, D'Angelo. D'Angelo was on probation in relation to a conviction for sexual interference with a minor. He was under a 10-year prohibition order not to be in a public swimming place where persons under 14 might be present. D'Angelo was arrested swimming in his condominium community's pool, where minors were present, including children taking swimming classes. He argued at trial that the pool was not a "public" swimming pool because it was restricted to members of the condominium's club. The pool serviced over 8,000 people. The trial judge found that the pool was not public, since the membership had not opened it to use by the general public, and acquitted D'Angelo. The Crown argued that the pool was a public swimming pool, and pointed to the fact that it served such a large community, and to the fact that no one had been refused membership in the club in 10 years.
ISSUE: The sole issue on the appeal is whether the trial judge erred in her interpretation and application of the words "public swimming area" in s. 161 of the Criminal Code.
HELD: Appeal allowed. Considering the large size of the community served by the pool, it could not be considered anything other than public. A new trial was ordered.
(b) Acts Must be “Voluntary” or “Willed” – The act described by the offence must be “voluntary” in the sense that it must be the willed act of the accused. For example, a man in the throes of a seizure does not “will” his movements; it would be no assault on his part even if his arm was to strike another without the other’s consent. It would have been possible to deal with this kind of issue using the mens rea concept by suggesting that he did not intend to strike the other, but Canadian law has also accepted that unless a physical motion is wilful, it is not fair to call it an act of the accused person. This is the foundation for the automatism defence (below). It is easier to understand the concept of voluntariness together with automatism authorities, so this discussion will be deferred until the voluntariness-based defences (below).
(c) The “Act” of Possession – At times part of the actus reus for an offence has an inherent mental element to it, as it does with the important element, common to many offences, of “possession”. This concept demonstrates that the divide between the actus reus and mens rea is not a solid one. What matters is that lawyers appreciate what the elements are, regardless of how they are characterized.
CC s.4(3) Possession – For the purposes of this Act,
(a) a person has anything in “possession” when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
s.4(3)(a) – personal possession
ss.4(3)(a)(i) and 4(3)(a)(ii) – constructive possession (or attributed possession)
s.4(3)(b) – joint possession
The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence.
Controlled Drugs and Substances Act
s.2(1) Definitions – In this Act,
“possession” means possession within the meaning of subsection 4(3) of the Criminal Code.
R v York (2005) 193 C.C.C. (3d) 331 (B.C.C.A.)
PRINCIPLE: knowledge of stolen goods and exercising control over the goods (even if a brief period) will not constitute possession if the goods were not taken into custody with the intention of using them in a prohibited manner.
FACTS: York operated a warehouse with several business partners. York discovered vans with furniture parked outside the warehouse. One of his business partners refused to disclose the origin of the goods. York realized the goods were stolen and drove the vans away in order to take them off his property. York was stopped by the police and charged with theft and possession of stolen property. At trial, the judge stated that he had reasonable doubt about York's involvement in the theft, that he believed York's explanation about the manner in which York came into possession of the goods, but convicted York.
HELD: Appeal allowed. While York knew the goods were stolen and he exercised control over the goods for a brief period of time, he did not take the objects into custody with the intention of using them in a prohibited manner. York's conduct was inconsistent with any intention to retain or deal with the goods. The judge should have acquitted York given that he believed his explanation and that he had reasonable doubt about his guilt.
R v Marshall (1969) 3 C.C.C. 149 (Alta. C.A.)
PRINCIPLE: Knowledge of the presence of a narcotic does not constitute consent.
FACTS: This was an appeal by the accused who was convicted of the unlawful possession of marijuana for trafficking. He was a 16 year-old student and had gone for a weekend holiday trip in a friend's car. On the return journey, the accused learned of the presence of the prohibited drug in the car. He, unlike his friends, did not smoke marijuana. He testified that he remained in the car because he had no money and had to get back to class. He was convicted and had brought this appeal on the ground that the trial magistrate was wrong in coming to the conclusion that he was in possession of the prohibited drug simply because he was in the car. The prosecution relied on Criminal Code, s. 3(4)(b) which provides that "where one of two or more persons with the knowledge and consent of the rest, has anything in his custody or possession, it shall lie deemed to be in the custody and possession of each and all of them". It was also pointed out that the appellant had passed on the hookah pipe which amounted to his consent.
ISSUE: There is no doubt that Marshall had knowledge of the marijuana being in the car so the question is did he consent to it being there.
HELD: The appeal was allowed and the conviction was quashed. The Appellate Court believed the story of the appellant in that he had no alternative but to continue to remain in the car or hitchhike as he had no money with him and he wanted to be back for his classes. He could not control the persons possessing marijuana. He himself did not smoke it. He did nothing to impede the police, although he did not volunteer any assistance to them. Under the circumstances of this case, the appellant's conduct on the whole was childish and silly but that did not make him guilty of the offence. Passing of the hookah pipe came close to consent but that was done in a reflex action.
· “In my opinion, although Marshall certainly had knowledge of the presence of the marijuana he had no control, right to control, nor did he consent to its presence”.
· The trial judge might not have believed his story but once it was believed his decision to continue the journey was consent to riding in the car, but such consent does not mean he consented to the marijuana being in the car.
R v Pham (2005) O.J. No. 5127 (Ont. C.A.)
PRINCIPLE: direct evidence of knowledge (i.e. of narcotics) is not essential to prove, knowledge could be established by circumstantial evidence.
FACTS: Appeal by Pham from her conviction for possession of cocaine for the purpose of trafficking. A neighbour testified she witnessed numerous visitors to Pham and Nguyen's apartment who would slip money under the door and that clear plastic bags containing white stuff would then be passed out from the apartment. The neighbour heard Pham's voice on several occasions and twice saw Pham open the apartment door during these exchanges. Drugs were found in the apartment Pham shared with Nguyen. The drugs were found in plain view and in close proximity to Pham's possessions. Pham was not present when the drugs were seized. Nguyen was jointly charged but those charges were later dismissed. Pham claimed the drugs belonged to Nguyen. Pham was found in constructive possession of the drugs. The judge found the drugs were in the apartment before Pham went out.
Appellant’s argument: Nguyen was trafficking cocaine during her absence and therefore the drugs and money, all of which were found in a common are of the apartment (i.e. bathroom) could reasonably belong to Nguyen.
Crown’s argument: on the facts, constructive or joint possession has been proven.
ISSUE: whether the appellant had knowledge and control of the cocaine found in the black cloth purse in the bathroom, sufficient to constitute constructive or joint possession as defined in s.4(3)(a) and (b) CC.
s.4(3)(a) – personal possession
ss.4(3)(a)(i) and 4(3)(a)(ii) – constructive possession (or attributed possession)
s.4(3)(b) – joint possession
HELD: Appeal dismissed. The foregoing provided ample basis to found an inference of the requisite knowledge and supported the trial judge’s finding that the appellant had sufficient knowledge and control to constitute constructive possession of the cocaine either personally or jointly.
Dissent: The dissenting judge found Pham's absence from the apartment gave rise to a reasonable doubt she had knowledge of the drugs.
(d) Consent as an Element of the Actus Reus – Often the question of absence of consent by the victim is an important actus reus condition that must be present for offences to occur. Consent is a complex idea, animated by statute and the common law.
s.271(1) Sexual assault – Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Commentary: Sexual assault is not defined, although an essential element, assault, is elsewhere defined for such purposes. In general, it is an assault under s.265(1) committed in circumstances of a sexual nature such as to violate the sexual integrity of V. The mental element requires proof of a general intent only.
s.265 CC
(1) Assault – A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) Application – This section applies to all forms of assault, including sexual assault, ...
(3) Consent – For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
NOTE on s.265: Assault has been given a very encompassing definition in s.265. The definition says nothing about the degree of harm which must be sustained. Nor does it refer to the motives for the touching. If taken at face value, this formulation would mean that the most trivial intended touching would constitute assault.
R v Ewanchuk (1999) 1 S.C.R. 330
PRINCIPLE: the defence of implied consent does not apply to sexual assault. There is consent or there is no consent AND mens rea/actus reus components of sexual assault AND limits on honest but mistaken belief.
FACTS: The 17-year-old female complainant met Ewanchuk at his trailer to discuss a job offer. Ewanchuk closed the door of the trailer which was located in a mall parking lot. The complainant believed the door was locked and was frightened. Ewanchuk made increasingly serious sexual advances toward the complainant but stopped each time the complainant said no. Any compliance by the complainant was out of fear and she did not reciprocate the sexual contact. Ewanchuk relied on the defence of implied consent and was acquitted of sexual assault at trial. His acquittal was confirmed on appeal. The Crown appealed to the Supreme Court of Canada.
ISSUE: whether the defence of implied consent existed in Canadian law.
HELD: Appeal allowed and a conviction entered. The defence of implied consent did not exist in the context of sexual assault. The complainant either consented or she did not. Ewanchuk's perception of the complainant's state of mind was irrelevant in absence of a defence of honest but mistaken belief in consent. The trial judge's conclusion that the complainant's conduct raised a reasonable doubt constituting implied consent was a reviewable mistake in law. Once the trial judge was satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault was established and the inquiry shifted to Ewanchuk's state of mind. That he stopped touching the complainant each time she said no demonstrated that he understood that she meant no. There was nothing to support his claim that he continued to believe her to be consenting. The evidence did not disclose a defence of honest but mistaken belief in consent. His persistent and increasingly serious advances constituted a sexual assault for which he had no defence. A new trial was not in the interests of justice.
The Components of Sexual Assault
A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea.
Actus reus – unwanted sexual touching.
The actus reus of sexual assault is established by the proof of three elements:
(i) Touching (objective test)
(ii) The sexual nature of the contact (objective test)
(iii) The absence of consent (subjective test; determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred)
· “Implied Consent” – “... the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law”.
· “The court’s concern is whether she freely made up her mind about the conduct in question. The relevant section of the Code is s.265(3)(b), which states that there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force. ... The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated ... the approach is subjective.
Mens rea – the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
Honest but Mistaken Belief in Consent
· Since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent.
· The defence of mistake is simply a denial of mens rea.
Limits on Honest but Mistake Belief in Consent
· “Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable”.
· R v Esau (1997) – “An accused who, due to wilful blindness or recklessness, believes that a complainant ... in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: s.273.2(a)(ii).
· “... unless and until an accused first takes reasonable steps to ensure that there is consent, the defence of honest but mistaken belief does not arise”.
R v Jobidon (1991) 2 S.C.R. 714
PRINCIPLE: The word “consent” in s.265 CC, defining the crime of assault, should be construed subject to common law limits under which consent to a fight in private or public is not a defence to a charge of assault if actual bodily harm is intended and/or caused.
FACTS: The appellant and the deceased were involved in a fist fight. The appellant punched the deceased who fell onto the hood of a car. Unaware that the deceased was unconscious, the appellant continued to punch the deceased on the head. The victim died as a result of one of the punches received from the appellant. The trial judge held that the appellant did not intend to kill the deceased and that he believed that the deceased had consented to a fight. The trial judge held that the victim's consent negated assault and that there was no criminal negligence.
ISSUE: whether absence of consent is a material element which must be proved by the Crown in all cases of assault or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases.
Appellant’s argument: The Legislature could have specified that in certain situations, or in respect of certain forms of conduct, absence of consent would not be an operative element of the offence. It has done so with other offences. Parliament has provided that not person is entitled to consent to have death inflicted on him (s.14). But with the assault provisions in s.265, it chose not to insert policy-based limitations on the role of consent.
Also, we have a code of general principles by which, it is presumed, ambiguity is to be construed in favour of the liberty of the subject.
HELD: Appeal dismissed. The common law limitations to consent applied in the context of section 265 of the Criminal Code. Thus the victim's consent to a fist fight did not preclude the commission of an assault under section 265. The limits on consent to assault vitiated consent between adults to apply force causing serious bodily harm to each other in the course of a fist fight.
Gonthier J. – Justifying the application of the common law to s.265
Due to the encompassing definition of assault in s.265, a father would assault his daughter if he attempted to place a scarf around her neck to protect her from the cold but she did not consent to that touching. That absurd consequence could not have been intended by Parliament. Rather its intention must have been for the courts to explain the content of the offence, incrementally and over the course of time.
Gonthier J. – Policy considerations
· Foremost among the policy considerations supporting the Crown is the social uselessness of fist fight. As the English CA noted in the AG’s Reference, it is not in the public interest that adults should willingly cause harm to one another without a good reason.
· Our social norms no longer correlate strength of character with prowess at fisticuffs.
· Consensual fights may sometimes lead to larger brawls and to serious breaches of the public peace.
· The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight.
· Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile.
· Insofar as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wider ground of people as well (applies to surgery and stuntmen).
Sopinka J. – concurs, but with a different approach
“It appears clear from the finding of the trial judge that the accused had an honest belief in consent, but that consent extended only until Haggart ‘gave up or retreated’. The extent of ceonsent given by Haggart did not, therefore, extend to being struck once he had been knocked unconscious. The accused knew that Haggart’s consent did not extend beyond consciousness. The accused is therefore guilty of manslaughter via ss.222(5)(a) and 234.
R v Cuerrier (1998) 2 S.C.R. 371
PRINCIPLE: A complainant's consent to sexual intercourse was vitiated (invalidated) by fraud if the accused's failure to disclose his HIV-positive status was dishonest (objective/reasonable person test) and put the complainant at a significant risk of suffering serious bodily harm.
FACTS: Appeal by the Crown from a decision of the British Columbia Court of Appeal dismissing its appeal from Cuerrier's acquittal on two charges of aggravated assault. Having been informed by a public health nurse that he was HIV-positive, Cuerrier had unprotected sex with two women without informing them of his status. The women consented to unprotected sex with Cuerrier. Cuerrier was charged with two counts of aggravated assault. At trial, the complainants testified that had they known Cuerrier was HIV-positive, they would not have consented to unprotected sex. The trial judge found that the complainants' consents were not vitiated by fraud as only fraud going to the nature and quality of the act or the identity of the offender vitiated a consent given to sexual intercourse. The trial judge entered a directed verdict acquitting Cuerrier. The Court of Appeal dismissed the Crown's appeal, and the Crown appealed to the Supreme Court of Canada. Interveners argued that the criminal law was not the most effective tool for dealing with HIV transmission.
HELD: Appeal allowed; a new trial was ordered. It was not necessary to consider whether an accused's fraud was related to the nature and quality of the act in order to establish that he intentionally applied force without a complainant's consent. An objective assessment of the accused's actions was necessary in order to determine whether a reasonable person would find them to be dishonest. The extent of the duty to disclose increased with the risks attendant upon the act of intercourse. The greater the risk of deprivation, the higher was duty to disclose. Where the risk included serious illness and death, there was a positive duty to disclose. A complainant's consent to sexual intercourse was vitiated by fraud if the accused's failure to disclose his HIV-positive status was dishonest and put the complainant at a significant risk of suffering serious bodily harm. The Crown was still required to prove that the complainants would have refused to engage in unprotected sex if they had been advised that the accused was HIV-positive. To proceed by way of a criminal assault charge was not to criminalize the accused's behaviour, but was simply to apply the provisions of the Criminal Code to conduct which would constitute the crime of assault.
The court was divided in its reasons:
Cory J. –
· “Non-disclosure can constitute fraud where it would be viewed by the reasonable person as dishonest. The essential elements of fraud then are dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation”.
· “Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV-positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV-positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent”.
· “The extent of the duty to disclose will increase with the risks attendant upon the act of intercourse. To put it in the context of fraud the greater the risk of deprivation the higher the duty of disclosure”.
· Limits on fraud in context of s.265(3)(c)
s.265(3) – simply states that no consent is obtained where the complainant submits or does not resist by reason of fraud. There are no limitations or qualification on the term “fraud”.
Some limitations on the concept of fraud as it applies to s.265(3)(c) are clearly necessary or the courts would be overwhelmed – “The existence of fraud should not vitiate consent unless there is a significant risk of serious harm”.
o i.e. where a man promises a woman a fur coat in return for sexual intercourse.
McLachlin J. –
· “fraud does not vitiate (invalidate) consent to assault unless the mistake goes to the nature of the act (sex) or the identity of the partner. Fraud as to collateral aspects of a consensual encounter, like the possibility of contracting serious venereal disease, does not vitiate (invalidate) consent”.
· It’s up to Parliament.
(e) Causation – Where the relevant offences prescribes a “consequence” that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt. As Williams shows, if causation is not proved, the accused cannot be convicted of an offence that requires act to produce a prohibited consequence. Menezes shows that causation is a two-stage analysis, requiring “factual causation” and “legal or imputable causation”. Nette deals with the higher standard of responsibility of imputable cause that is required to secure a first-degree murder conviction, and it illustrates the legal causation principle of the “thin skull”. Both Nette and Menezes illustrate how most imputable causation (legal causation) principles explain why blame can be assigned in criminal cases, in spite of arguments that might, in civil cases, reduce or even eliminate civil liability.
R v Williams (2003) 2 S.C.R. 134
PRINCIPLE: Where the relevant offences prescribes a “consequence” that must occur before the offence is complete (i.e. aggravated assault), the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt.
FACTS: Williams learned that he was HIV-positive six months after commencing a relationship with the complainant. He did not tell the complainant and continued to have unprotected sexual relations with her for a further 12 months even though he received medical counselling and was informed of his duty to disclose his HIV status to sexual partners. The complainant contracted HIV. At trial, Williams was convicted of aggravated assault and common nuisance. The Newfoundland Court of Appeal confirmed the common nuisance conviction but allowed Williams's appeal from conviction of aggravated assault, convicting him instead of attempted aggravated assault.
ISSUE: whether an accused who fails to disclose that he is HIV-positive can be convicted of an aggravated assault endangering life by engaging in unprotected sex with a complainant who, at the time of the alleged assault, could herself have been infected with HIV.
HELD: Appeal dismissed. Williams's continued sexual activity with the complainant while knowing of his HIV status was evidence beyond a reasonable doubt of the necessary mens rea of the offence of aggravated assault. However, the Crown failed to prove that Williams's conduct after finding out about his HIV status risked endangering the complainant's life because it was likely she had already contracted HIV in the six months before he knew about his status. The lack of proof of this essential element of the actus reus was fatal to the aggravated assault conviction but was not fatal to the attempt charge. Thus, he was guilty of attempted aggravated assault.
· The focus in the external circumstances is on the nature of the consequences (i.e. HIV), not the nature of the assault (i.e. sex).
Aggravated assault and ‘proof of certain consequences’
s.268(1) Aggravated assault – Every one commits an aggravated assault who wounds, mims, disfigures or endangers the life of the complainant.
· The external circumstances (actus reus) consist of an assault and resultant harm to V.
o THUS, the offence is based on proof of certain consequences.
o In Willliams, there exists a reasonable doubt that the assault in question was capable of causing the life-threatening consequences alleged in the indictment. The Crown is therefore unable to establish the actus reus of that particular offence.
The Mental Element in Aggravated Assault
The mental element in aggravated assault is the mental element in assault (intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm.
· Recklessness was established – Once an individual becomes aware of a risk that he or she has contracted HIV, and hence that his or her partner’s consent has become an issue, but nevertheless persists in unprotected sex that creates a risk of further HIV transmission without disclosure to his or her partner, recklessness is established.
· There is no dispute that, in this case, this mental element of aggravated assault has been proven beyond a reasonable doubt. HOWEVER, the Crown was unable to prove the actus reus due to timing.
Williams VS Cuerrier – the differing results simply reflect the different factual circumstances.
R v Nette (2001) 3 S.C.R. 488
PRINCIPLE: The correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences is “a contributing cause [of death] that is not trivial or insignificant” (the Smithers test). While, to be guilty of first degree murder under s.231(5), the accused’s actions must have been an essential, substantial and integral part of the killing of the victim (Harbottle test).
FACTS: Appeal by Nette from the dismissal of his appeal from conviction for second degree murder pursuant to section 231(5) of the Criminal Code, which was murder while committing the offence of unlawful confinement. Loski was robbed in her home. She was bound with electrical wire, and a garment was wrapped around her head and neck. She died of asphyxiation within the next 48 hours. Nette was charge with first degree murder. He denied that he killed Loski. The trial judge charged the jury on first and second degree murder, and manslaughter. He indicated that the standard of causation for second degree murder was that Nette's actions must have been more than a trivial cause of Loski's death. Later in the main charge and a re-charge, he described the standard of causation as slight or trivial.
HELD: Appeal dismissed. The issues of the standard of causation for second degree murder, and how that standard should be explained to the jury, were different. The first issue was to be determined by considering whether the accused cause the victim's death in factual and legal terms. The jury was to then determine whether the moral culpability of the accused justified a verdict of first degree murder. The trial judge had discretion as to how the standard of causation was to be articulated to the jury. It was better to articulate the test in a positive rather than a negative manner. The phrases significant contributing cause, not a trivial cause and not insignificant were appropriate. It was not appropriate to apply a different standard of causation to manslaughter and murder. Here, there was no issue as to the cause of Loski's death so that it was unnecessary to instruct the jury on the law of causation for homicide. The trial judge accurately described the correct standard of causation. His errors later in the main charge and the recharge would not have caused the jury to believe that the standard of causation for second degree murder was lower than the standard of more than a trivial cause. The jury charge on second degree murder was unimpeachable.
· The correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences is “a contributing cause [of death] that is not trivial or insignificant”.
Causation
In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law:
Factual causation – is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result.
Legal causation (imputable causation) – is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation.
Causation expressed in the Criminal Code
s.225 – where a person causes bodily injury that is in itself dangerous and from which death results, that person causes the death notwithstanding that the immediate cause of death is proper or improper treatment.
ss.222(5)(c) and 222(5)(d) – similar provisions.
· These statutory provisions preempt any speculation as to whether the act of the accused would be seen as too remote to have caused the result alleged, or whether the triggering of a chain of events was then interrupted by an intervening cause which serves to distance and exonerate the accused from any responsibility for the consequences.
NO contributory negligence in Criminal Law
The criminal law does not recognize contributory negligence, nor does it have any mechanism to apportion responsibility for the harm occasioned by criminal conduct, expect as part of sentencing after sufficient causation has been found.
Explaining the Standard of Causation to the Jury
Arbour J.: (reformulates the Smithers test by removing the double negative)
Instructing the jury:
All forms of Homicide (manslaughter or murder) – It would make sense to instruct the jury that the acts of the accused have to have made a “significant” contribution to the victim’s death to trigger culpability for the homicide (reformulation of the Smithers test).
First degree murder – to be guilty of first degree murder under s.231(5), the accused’s actions must have been an essential, substantial and integral part of the killing of the victim (Harbottle test).
L’Heureux-Dube J.: (keeps the Smithers test the same)
I do not agree with Arbour’s suggestion to rephrase the standard of causation for culpable homicide set out by this Court in R v Smithers.
There is a meaningful difference between expressing the standard as “a contributing cause that is not trivial or insignificant” and expressing it as a “significant contributing cause”. Changing the terminology of the Smithers test in this manner would drastically change its substance.
· “I reiterate that the causation test in Smithers remains the law and to rephrase it in the language of a “significant contributing cause”, as my colleague suggests, would draw the line at a different place, thus drastically changing the law ... As a result, I consider the current language of “a contributing cause [of death] that is not trivial or insignificant” to be the correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences”.
R v Menezes (2002) O.J. No.551 (Ont.Ct. of J.)
PRINICPLE: In a joint venture (car racing) an intervening event will break the chain of causation if communicated to the other involved.
FACTS: Trial of Menezes on a charge of criminal negligence causing death. Menezes incited Meuszynski into a car race. They raced in a residential area, and then further on a highway. Several witnesses testified to the cars' excessive speeds, unsafe lane changes and tailgating. Meuszynski came to a curve in the road, lost control, and was killed when his vehicle went into a lamppost. Whether Menezes slowed down and thus "withdrew" from the race before the crash was not clear from the witnesses' testimony. There was evidence that Menezes's arrived at the site of the crash 10 seconds after the crash. Menezes admitted to dangerous driving, but denied that he was racing and that he caused Meuszynski's death. The Crown argued that because Menezes was a co-participant in a dangerous activity that could foreseeably result in death, Menezes was criminally responsible for the death.
HELD: Menezes was found not guilty of criminal negligence causing death, but guilty of dangerous driving. Contributory negligence was not a defence to a criminal charge. Menezes incited and participated in a dangerous race with Meuszynski. However, the driving conditions were good on a relatively unpopulated straight road, and no other motorists or pedestrians were forced to take evasive action. There was no proof beyond a reasonable doubt that the conduct amounted to wanton and reckless disregard for the safety of others. While Menezes's conduct did show a marked departure from the standard expected of a reasonably prudent driver, the driving was dangerous, but not criminally negligent. The judge concluded that about half a mile before the crash site, Menezes slowed down for an underpass and a curve in the road. He found that given the race situation, Meuszynski would have been aware that Menezes had slowed down. This amounted to an intervening event in which Menezes withdrew from the race, and was no longer liable for the consequences if Meuszynski chose to continue with the dangerous activity for his own purposes, which he did. Meuszynski kept racing, lost control on the curve and caused his own death.
Causation
· As there can be more than one cause of death, the causation test is not restricted to a search for the most proximate, the primary, or the only cause of death. Regardless of whether the accused’s conduct is the sole cause, was it a material cause?
· If the act of the accused is too remote to have caused the result alleged, causation is not established. If the accused’s actions are fairy viewed as only part of the history of the setting in which the prohibited result unfolded, without more, causation is not proven.
· Intervening Act/cause – if the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused from any responsibility for the consequence.
o “An intervening act terminating the causal chain of events may be the withdrawal or abandonment by the accused of involvement in the dangerous enterprise. Ordinarily, as a matter of law, abandonment requires communication or timely notice of intention to abandon the common pursuit: In other words, as a general rule, "in the absence of exceptional circumstances", something more is necessary than a mere mental change of intention and physical change of place by the person wishing to disassociate from the joint venture and the consequences attendant upon participation up to the point of the crime. The standard of positive action required of the accused for legal abandonment will often depend on the nature of the offence and his or her degree of participation in the unlawful enterprise”.
Joint venture/Blame
· Where two motorists knowingly undertake the dangerous course of racing on a public thoroughfare, and driver A’s car strikes the auto of C, an innocent motorist, resulting in C’s death, driver B’s participation in the unlawful venture can be a cause of C’s death (Regina v Rotundo).
· By their actions, those who race at excessive speeds on a public roadway assist one another in creating a dangerous risk. Each encourages and incites the other. It is the mutuality of their contribution toward the rivalry of speed which creates a singular hazardous situation.
· In my view, there is no reason rooted in law or policy not to identity the same degree of moral blameworthiness in the surviving racer when it is the driver of the second vehicle, and not the passenger therein, who loses his or her life or is injured.
· Each driver bears equal responsibility for its continued lifespan subject to withdrawal or intervening event. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created.
· With his friend, the accused deliberately embarked on a hazardous joint venture.
(f) Omissions – Some offences do not require a positive act by the accused. Rather, they can be committed by a showing that the accused failed to act, or omitted to act. Whether an offence can occur by “omission” is a question of construction. To be guilty by omission (1) the offence must contemplate guilt for omissions, (2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and (3) the omission in question must be a failure to fulfill that legal duty.
· The general common-law principle is that criminal responsibility for omissions is limited to cases where there is a legal and not merely a moral duty to act.
· Although a man has a perfect right to stand by and see his neighbour’s property destroyed, or, to watch his neighbour perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will (O.W. Holmes, The Common Law).
· CC ss. 215, 216, 217
· Can the Courts create legal duties? Is this desirable? Remember s.9 CC.
R v Thornton (1991) 3 C.R. (4th) 381
PRINCIPLE: donating blood known to be HIV-contaminated (a common nuisance) is a failure to discharge a legal duty under s.180.
FACTS: Appeal from a conviction and sentence of common nuisance thereby endangering the lives of others by knowingly donating AIDS infected blood. Appellant withheld information from the Red Cross that he had tested HIV positive. The Red Cross's screening process detected the contamination and the blood was not used.
Appellant’s arguement: donating contaminated blood was not an offence known to law and that it was not proved that his conduct endangered anybody.
HELD: Appeal from sentence and conviction dismissed. Although donating contaminated blood is not an offence under the Criminal Code, the appellant's conduct amounted to a failure to discharge the common law duty to refrain from conduct which could cause injury to another person. The "legal duty" in section 180(2) of the Criminal Code includes a duty arising at common law. By donating infected blood, the appellant endangered the lives of the public, as the screening devices are not 100% accurate, as well as the lives of those handling the blood. Section 180 does not require actual injury or damage. Appellant knew he was infected and that his blood must not be transferred to any person and that he should not donate his blood. Appellant had requisite mens rea.
· The CC does not make it an offence to donate contaminated blood, however, it amounted to a failure to discharge a “legal duty”.
Statutory sections
CC s.180(1) Common nuisance – Every one who commits a common nuisance and thereby
(a) Endangers the lives, safety of health of the public, or
(b) Causes physical injury to any person,
Is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Definition – For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty (omission) and thereby
(a) endangers the lives, safety, health, property or comfort of the public; or
(b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.
Commentary: The section defines and punishes the offence of common nuisance. In general, a common or public nuisance is one which materially affects the public by substantially annoying fellow citizens.
“The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour” (Donoghue v Stevenson).
· This jurisprudence in civil matters shows that there is deeply embedded in the common law a broad fundamental duty which requires everyone to refrain from conduct which could injure another. At the very least, it requires everyone to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons.
· “Donating blood which one knows to be HIV-contaminated to an organization whose purpose is to make the blood available for transfusion to other persons, clearly constitutes a breach of the common law duty to refrain from conduct which one foresees could cause serious harm to another person. It is thus a failure to discharge a “legal duty” within the contemplation of s.180(2). It is therefore my conclusion that the indictment which alleges the commission of a nuisance by the donation of blood which the appellant knew to be HIV-contaminated does allege an offence known to law”.
Thornton v R (1993) 2 S.C.R. 445
PRINCIPLE: s.216 imposed upon the accused a duty of care in giving his blood to the Red Cross. This duty of care was breached by not disclosing that this blood contained HIV antibodies. This common nuisance obviously endangered the life, safety and health of the publice.
· This seems to establish a new wide measure of criminal responsibility for omissions.
· The Court appears to read s.216 literally to impose a duty of care on those doing lawful acts which endanger others’ lives.
CC s.216 Duty of persons undertaking acts dangerous to life – Everyone who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in doing so.
R v Moore (1979) 1 S.C.R. 195
PRINCIPLE: When a police officer witnesses a person actually committing an offence, the officer is under a duty to attempt to identify the wrongdoer. Failure to do so constitutes obstruction of the police officer in the performance of his duties.
FACTS: At an intersection, the accused proceeded through a red light on his ten-speed bicycle. A police officer, in uniform on a motorcycle, saw this infraction and set about to ticket him. The accused refused to come to stop saying he was in a hurry. Upon an indictment, he was not charged with failing to stop at a stop light, but only with obstructing a peace officer in the performance of his duty. The obstruction which the Crown put forward was constituting the offence was failure to give his name when requested.
HELD: The officer was under a duty to attempt to identify the wrongdoer, and the failure to identify himself by the wrongdoer did constitute an obstruction of the police officer in the performance of his duties. A bicycle was neither a "motor vehicle" nor a "vehicle" within the Motor-vehicle Act, R.S.B.C. 1960, c. 253 and the Court of Appeal was quite correct in holding that the accused was not in breach of s. 58 of that Act when he refused to give his name to the constable. The Court of Appeal was correct in finding that when the accused refused to accede to the constable's request for his identification he was obstructing the constable in the performance of his duties.
R v Peterson (2005) O.J. No. 4450 (Ont. C.A.)
PRINCIPLE: A son is under a duty to provide for his father if the father is ‘under his charge’ under s.215.
FACTS: The accused (Dennis, the son) failed to properly tend to his elderly father (Arnold). The father’s living conditions were atrocious, he hadn’t been bathed, and did not eat properly which was evidenced as his clothes did not fit and used rope for a belt.
ISSUE: when a parent is under the charge of a child thereby requiring the child to provide necessaries of life to that parent pursuant to s.215.
HELD: the trial judge’s reasons were sufficient to place Arnold under the charge of Dennis. He was guilty under s.215.
Statutory Sections
CC s.215(1) Duty of persons to provide necessaries – Every one is under a legal duty
(a) 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;
(b) To provide necessaries of life to their spouse or common-law partner; and
(c) To provide necessaries of life to a person under his charge if that person
(i) Is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) Is unable to provide himself with necessaries of life.
s.215(2) – D must fail to perform a legal duty imposed by s.215(1) without lawful excuse. The proof of lawful excuse if statutorily shifted to D, thereby attracting Charter ss.7 and 11(d) scrutiny.
· s.215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other.
s.32 Family law Act – imposes a duty on a child to support a parent. The mere breach of this (provincial statute) does not constitute a crime.
‘Under the Charge of Another’
· The relationship of the parties to each other is among the factors to consider in determining whether a person is in the charge of another. The dependency of the parent under a disability on an independent adult child is justified not only by their past course of dealing in which the parent supported the child, but also by their relationship to one another in which an element of trust will usually be present.
· If the parent is otherwise in the child’s charge and the child cannot care for the parent due to the parent’s refusal to accept care, the child is obliged to seek the help of a community agency.
· A further consideration in determining whether a person is in the charge of another is whether one person has explicitly assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly acknowledging to others in the community by words or conduct an assumption of responsibility.
· Insofar as the legal test for determining when a person is under the charge of another is concerned, the evidence that Arnold did not wish to bathe or change his clothes does not negate the appellant’s having charge of him. The evidence simply supports the conclusion that Arnold had a mental disability that prevented him from exercising sound judgment to provide himself with the necessaries of life. This disability cannot be used by Dennis as a defence for failing to provide the necessaries of life. Dennis could have called a community agency for help and did not.
R v Browne (1997) 116 C.C.C. (3d) 183 (Ont. C.A.)
PRINCIPLE: “I’ll take you to the hospital” is NOT an undertaking under s.217.
FACTS: This was an appeal from conviction for criminal negligence causing death. The victim swallowed a bag of crack cocaine to avoid detection by police. The appellant, Browne, was another drug dealer and a partner of the victim. The victim was unable to vomit the bag. Three hours later, the victim showed symptoms of narcotic poisoning. Browne told the victim that he would take her to the hospital. He called a taxi. Browne and the victim had to wait 15 minutes for the taxi to arrive. The victim died on the way to the hospital. The trial judge found that Browne undertook to care for the victim. He found that the duty of care included taking her to the hospital immediately by ambulance. He found that Browne breached the duty owed to the victim and was guilty of criminal negligence causing death. Browne argued on appeal that he did not undertake to care for the victim.
ISSUE: whether an undertaking existed which would place the appellant under a legal duty under to s.217.
HELD: The appeal was allowed. The conviction was overturned and an acquittal was entered. The trial judge erred in finding that the relationship between the victim and Browne gave rise to an implicit undertaking that Browne was obliged to care for the victim. The trial judge erred in finding that Browne's agreement to take the victim to the hospital constituted a legal undertaking. There was no evidence that an emergency call for an ambulance would have saved the victim's life.
· “In my view, the evidence does not disclose any undertaking of a binding nature. These were two drug dealers who were used to swallowing bags of drugs to avoid detection by the police. There was no evidence that the appellant knew that Audrey Greiner was in a life-threatening situation until 2:00 a.m., when he immediately phoned a taxi. His words to her at that time – “I’ll take you to the hospital” – hardly constitute an undertaking creating a legal duty under s.217. He said he would take her to the hospital when he saw the severity of her symptoms, and she did”.
· “There being no undertaking within the meaning of s.217 of the CC, there can be no finding of a legal duty. There being no duty there can be no breach contrary to s.219”.
CC s.217 Duty of persons undertaking acts – Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.
· THUS, the issue becomes whether an undertaking existed which would impose a legal duty to act.
· “To find a legal duty, there had first to be a finding of an undertaking. The legal duty does not flow from their relationship between the parties, as it does in s.215 (which creates legal duties between spouses, parents and children, etc.). Under s.217, there is no pre-existing relationship or situation that creates a legal duty; there must be an undertaking before a legal duty is introduced into the relationship. The relationship or context is relevant only to the determination of whether the breach reflected a “wanton or reckless disregard” under s.219(1), not to whether there was an undertaking under s.217”.
s.219(1) Criminal negligence – Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
Shows wanton or reckless disregard for the lives or safety of other persons.
Error by Trial Judge
The fundamental error made by the trial judge was in reversing the analytical steps under s.217 by starting her analysis with whether a duty of care existed, finding that it did, and then basing her finding of an undertaking on the existence of a legal duty. The inquiry should have begun with whether there was an undertaking. Only if there was an undertaking in the nature of a binding commitment could a legal duty have arisen under s.217, regardless of the nature of the relationship between the appellant and the victim.
6. Subjective Mens Rea
As indicated, subjective mens rea focuses on the actual state of mind of the subject of the prosecution, namely, the accused. Since what someone thinks or wants or knows is personal to him unless communicated, subjective mens rea ordinarily must be gleaned circumstantially, including by using the common sense inference that persons usually tend to intend the natural consequences of their acts. Since the state of “knowledge” is not often manifested circumstantially the way apparent intent is, the law will assume that the accused knew of the elements of the offence unless the so-called “defence of mistake of fact”, below, is made out. The close link between knowledge and mistake of fact makes it sensible to discuss the “defence” together with this mens rea concept.
There are many states of mind described by the various CC provision. For example, one form of first degree murder requires proof of planning and deliberation (premeditation), while second degree murder requires only that the accused intend to cause death, or intend to cause bodily harm he knows is likely to cause death.
Most offences require more than one mental state to exist. For example, to be guilty of murder, the accused must know that the living thing he is killing is a human being and intend to cause death to that human being. A sexual assailant must intend to touch the complainant, and know that she is not consenting (although as indicated, that knowledge will be assumed absent a mistake of fact defence being raised successfully).
It is a close exercise of construction to see what mental states are required by a particular offence. If an offence is explicit and specifies the relevant state of mind, then only that state of mind will suffice. This is why “assault” contrary to s.265 requires “intentional” touching, and not simply reckless touching. Many offences do not specify the relevant mental state. If a true crime is silent as to the mental state and the offence requires a consequence, it is implied that intention or “recklessness” in bringing out the consequence will suffice (that presumption was rebutted for the offence charged in R v Buzanga and Durocher below, requiring the Crown to prove actual intention to bring about the consequence).
Again, subject to exception (see for example s.150.1) where an offence sets out conditions or circumstances that have to exist, the accused must, as a general rule, know tthat those conditions or circumstances exist before the offence can be committed, although the mens rea known as “wilful blindness” can substitute for full knowledge. Use the mens rea provided for in the relevant provision, as construed according to relevant criminal law principles. In the cases included below, the most common mental states are identified and illustrated:
(a) Intention, and Ulterior Mens Rea – Intention is a complex idea. The accused must have the very intention required by the relevant provision. For example, Vandergraff intended to throw the object, but not to make contact with the victim. His “assault” was not intended and he was not guilty. He could have been charged with criminal negligence causing injury, but the wrong charge was laid. For his part Murray intended to hold the Bernardo tapes, but not for the purposes of obstructing justice. He was therefore not guilty. R.(J.S.) intended to shoot into a crowd, with intent to kill a human being (albeit not the one killed), opening the door to his possible murder conviction during his upcoming trial, depending on how the evidence comes out.
R v Vandergraff (1994) M.J. No. 503 (Man. C.A.)
PRINCIPLE: The accused must have intended to injure the victim for a charge of assault.
FACTS: Appeal by the accused from conviction for assault with a weapon. The accused had thrown a jar of peanut butter toward the ice surface of a hockey rink in frustration at the outcome of a game, but it had struck the complainant and caused her injury. The trial judge had found intent to apply force in a general sense, which happened to be to the complainant, and convicted.
HELD: Appeal allowed and acquittal entered. There was no proof of intention to apply force to a person. Imputed intent to wound, maim, disfigure or endanger life, in the case of aggravated assault where intent to apply force was already established, did not apply here. The accused's conduct was foolish, negligent and may have been criminal, but did not constitute assault.
R v Murray (2000) O.J. No. 2182 (Ont. S.C.J.)
PRINCIPLE: The accused’s intention must be proven.
FACTS: Trial of the accused, Murray, on a charge of attempted obstruction of justice. Murray was a lawyer retained by Bernardo, who was charged with the murders of French and Mahaffy. Murray removed videotapes from Bernardo's home which depicted gross sexual abuse of French and Mahaffy by Bernardo and his wife, Homolka. Murray retained the tapes for 17 months without disclosing their existence to the authorities. Murray withdrew from the case prior to trial and was replaced by Rosen, who disclosed the tapes to the Crown. Murray charged with attempting to obstruct justice by concealing the tapes. He claimed that he never intended to permanently conceal the tapes and that he would have used them to undermine Homolka, who was the Crown's key witness.
HELD: Murray was acquitted. His concealment of the tapes had the tendency to obstruct justice. The tapes were not privileged. Solicitor-client privilege protected communications between a solicitor and client. The tapes were not communications, but rather evidence of crime which pre-existed the solicitor-client relationship. Once Murray had discovered the overwhelming significance of the tapes, he was left with only three legally justifiable options: Immediately turn them over to the prosecution, deposit them with the trial judge or disclose their existence to the prosecution and attempt to retain them. However, Murray's testimony raised a reasonable doubt as to his intention to obstruct justice. While he made only a token effort to determine his disclosure obligations, even if he had done careful research he might have remained confused. The Rules of Professional Conduct provided no guidance as to the nature of evidence that had to be disclosed. A defence strategy to use the tapes at trial was reasonably feasible. Therefore, Murray may not have intended to permanently suppress the tapes and he may have believed that he was not obligated to disclose them before trial.
R v J.S.R [2008] O.N.C.A 544
PRINCIPLE:
FACTS: Appeal by the Crown from an order of the Superior Court of Justice quashing the respondent's committal for trial on a charge of second degree murder and remitting the matter to the preliminary inquiry judge for reconsideration.
The respondent young person was charged with second degree murder, six counts of attempted murder and several gun charges. Following a lengthy preliminary inquiry, the judge committed the respondent for trial on all counts. The respondent moved to quash only the committal on the murder charge. The motion judge granted the motion. He held that there was no evidence upon which a jury, properly instructed, could convict the respondent of murder. The motion judge was satisfied that there was evidence upon which a jury could convict on the charge of manslaughter. The respondent also appealed the order of the motion judge. He contended that that motion judge erred in holding that the preliminary inquiry judge correctly concluded that there was evidence upon which a jury, properly instructed, could conclude that the respondent caused the victim's death. The respondent submitted that absent a proper evidentiary basis for a finding of causation, the respondent could not be ordered to stand trial on either a murder or manslaughter charge. The circumstances giving rise to the proceedings involved the death of Jane Creba, a 15 year-old girl, on Yonge Street in Toronto. A gun battle had broken out, and at least three, and as many as five, shooters exchanged multiple shots over the course of several seconds. Three innocent bystanders were shot and wounded. Jane Creba was killed by a single gunshot wound.
HELD: Crown appeal allowed. The committal for trial on the charge of second degree murder was restored. The respondent's appeal was dismissed. There was evidence at the preliminary inquiry upon which a reasonable trier of fact could make certain findings. The respondent's conduct, if proved, would meet the high degree of moral blameworthiness required to justify the stigma of a murder conviction and the consequences flowing from it.
(b) Subjective Mens Rea with Objective Features – Some criminal offences use standards to define criminal conduct. For example, some assaults are sexual in their nature, and others are not. Some acts are dishonest, and others are not. It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow since that would permit the content of offences to vary from offender to offender. For example, the accused can commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction of that nature is “dishonest”. If it were otherwise objective dishonest people would be held to lower standards than the rest of us. Or an accused can commit sexual assault if he intends to touch another, even if he does not believe that the contact is sexual in nature, so long as it is.
R v Theroux (1993) 2 S.C.R. 5
PRINCIPLE: If the accused was subjectively aware that his conduct would put the property or economic expectations at risk, fraud is established. It is no defence if the accused believed (subjectively) that his conduct was not wrong or that no one would be hurt.
FACTS: The appellant was involved in building houses and sold several residences before their completion. The appellant represented to the purchasers that their deposits were insured, although no such insurance existed. When the corporation went bankrupt, many purchasers lost their deposits. The appellant claimed that he believed that the residences would be completed and that the purchasers would not be harmed.
ISSUE: whether the fact that he honestly believed that the projects would be completed negates the guilty mind or mens rea of the offence.
HELD: Appeal dismissed. The mens rea of fraud was established by proof of the subjective knowledge of the prohibited act and the subjective knowledge that the prohibited act could have as a consequence the deprivation of another. The accused must have subjective awareness that his or her conduct would put the property or economic expectations of others at risk. The accused's belief that the conduct was not wrong or that no one would be hurt was no defence to a charge of fraud. The appellant deliberately lied to his customers by representing to them that their deposits were insured. The appellant committed deliberate falsehoods which caused or gave rise to deprivation. Although the appellant believed that the houses would be completed, he knew that his misrepresentations deprived the purchasers of the insurance protection they believed they had. He knew that he was placing the purchasers' deposits at risk, even though he believed that this risk would not materialize.
Is the test for mens rea subjective or objective?
Most scholars and jurists agree that, leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens rea is subjective.
Actus reus – has its own mental element; the act must be the voluntary act of the accused.
Mens rea – refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent – those who do not understand or intend the consequences of their acts.
Subjective mens rea test – the test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the Court looks to the accused’s intention and the facts as the accused believed them to be.
· The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral.
o i.e. Just as the pathological killer would not be acquitted on the mere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that what he was doing was honest.
Fraud
Actus reus of fraud:
1. the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and
2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.
Mens rea of fraud:
1. subjective knowledge of the prohibited act; and
2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).
Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.
· “... The accused may introduce evidence negating that inference, such as evidence that his deceit was part of an innocent prank, or evidence of circumstances which led him to believe that no one would act on his lie or deceitful or dishonest act ...”.
R v Chase (1987) 2 S.C.R. 293
PRINCIPLE: A sexual assault is determined according to an objective test in light of all the circumstances (i.e. part of body touched, circumstance, intent, etc.) AND the offence is one of general intent only.
FACTS: The accused was a neighbour of the complainant, a 15-year-old girl. He entered her home without invitation while no other adults were immediately present and seized the fifteen-year-old complainant and grabbed her breasts. He was convicted of sexual assault, but on appeal, a verdict of guilty of the included offence of common assault was substituted. The appeal court held that the assault was not sexual, since the girl's genitalia were not involved.
ISSUE: concerns the meaning of the term ‘sexual assault’ in s.244 and 246.1 (now ss.265 and 271).
HELD: The appeal was allowed. Under s. 244(2) of the Criminal Code, sexual assaults were included in the types of assaults listed in s. 244(1). For an assault to become a sexual assault, particular areas of the body did not have to be involved. Sexual assault was not limited to the scope of the former sexual offences in the Criminal Code. A sexual assault occurred when, by an objective test, an assault was made in circumstances of a sexual nature. The general intent of the attacker would be a factor in determining the nature of the assault. The attack in this case constituted an assault of a sexual nature.
Assault and Sexual Assault Provisions
CC s.265 – creates the offence of sexual assault, an expression nowhere defined in the CC.
s.265CC
(1) Assault – A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) Application – This section applies to all forms of assault, including sexual assault, ...
s.271
(1) Sexual assault – Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Commentary: Sexual assault is not defined. In general, it is an assault under s.265(1) committed in circumstances of a sexual nature such as to violate the sexual integrity of V. The mental element requires proof of a general intent only.
‘Sexual Assault’ in s.244 and 246.1 NOW ss.265 and 271 is a New Offence
McIntyre J.:
I agree as well with those who say that the new offence is truly new and does not merely duplicate the offences it replaces. Accordingly, the definition of the term “sexual assault” and the reach of the offence it describes is not necessarily limited to the scope of its predecessors.
Objective TEST for Sexual Assault
The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer”.
Factors to be considered when determining whether the conduct is sexual:
· The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force will be relevant.
· The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
· I agree that the test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy.
· I am also of the view that sexual assault need not involved an attack by a member of one sex upon a member of the other; it could be perpetrated upon one of the same sex.
Mens Rea – General Intent
The offence of sexual assault is one requiring a general intent only.
· The factors which could motivate sexual assault are said to be many and varied. To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment. Moreover, there are strong reasons in social policy which would support this view. To import an added element of specific intent in such offences, would be to hamper unreasonably the enforcement process.
(b) Recklessness – Recklessness is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act, the prohibited consequence will be brought about. It therefore differs from negligence which can apply even if the actor does not personally see the risk, provided a reasonable person would have. Still, recklessness is a subjective men rea with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking. The fact that the accused may have felt the risk to be justifiable would be no answer. Recklessness will apply where the provision creates a consequence, but does not, as a matter of construction, require some more limited kind of mens rea.
· THUS, recklessness requires that the accused have actual awareness of the risk of a consequence even though the accused may not intend the consequence to occur. Recklessness does not imply that the accused had actual knowledge that the consequence would occur, only that a risk or a possibility of a certain prohibited criminal consequence could occur.
o “It is the conduct of one who sees the risk and who takes the chance” (Sansregret v R).
Recklessness VS Wilful blindness
The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
R v Theroux (1993) 2 S.C.R. 5 (For facts see above)
Fraud
Actus reus of fraud:
1. the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and
2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.
Mens rea of fraud:
3. subjective knowledge of the prohibited act; and
4. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).
Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.
Sansregret v R (1985) 1 S.C.R. 570
PRINCIPLE: Definition of Negligence / Recklessness / Wilful Blindness / Knowledge
Sansregret is a leading decision on the crime of rape. Mr Justice McIntyre authoritatively defined and distinguished the concepts of recklessness and wilful blindness as follows:
Negligence – the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveal less than reasonable care will involve liability in civil law but forms no basis for the imposition of criminal penalties.
Recklessness – to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.
A finding of recklessness [in this case] could not override the defence of mistake of fact. It could be used as a defence.
Wilful blindness – is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.
Recklessness VS Wilful blindness
The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
Glanville Williams:
Knowledge – “... the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.
R v Buzzanga and Durocher (1979) 25 O.R. (2d) 705
PRINCIPLE: the term “wilfully” in s.319(2) does NOT include “recklessly” AND defines INTENT.
FACTS: These were appeals from convictions of wilfully promoting hatred against the French Canadian public in Essex County. Both the accused were involved in a movement for the construction of a French-language high school in Essex County. The Board of Education decided not to build the school despite a grant being obtained from the Ministry. The accused distributed pamphlets showing the prejudice directed towards French Canadians and exposing the truth about the real problem with respect to the French-language school. They said that they thought the pamphlet would bring a quick solution to the problem of French-language school by provoking a Government reaction and thereby put pressure on the school board. It was not their intention to raise hatred towards anyone. One of the grounds of appeal was that the trial judge misdirected himself with respect to the meaning of the word "wilfully".
ISSUE: the meaning of “wilfully” in the term “wilfully promotes hatred” in s.281.2(2) [now s.319(2)].
HELD: The appeal was allowed and a new trial was ordered. As a general rule, a person who foresaw that a consequence was certain or substantially certain to result from an act which he did in order to achieve some other purpose, intended that consequence. What the accused intended or foresaw must be determined from a consideration of all the circumstances and his own evidence as to what his state of mind or intention was. The accused's background and their commitment to preserving the French Canadian culture was relevant to the credibility of their denial of an intention to promote hatred. Their evidence as to their state of mind or intention was not conclusive. The trial judge, not having disbelieved the accused's evidence, failed to give appropriate consideration to their evidence on the issue of intent and thereby misdirected himself. He also misdirected himself in his definition of “wilfully”.
Relevant Provision
s.319(2) – Wilful promotion of hatred – Every one who, by communicating statements, other than in private conversation wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence ...
(b) an offence punishable on summary conviction.
What is meant by “wilfully”?
The word “wilfully” has not been uniformly interpreted and its meaning to some extent depends upon the context in which it is used. Its primary meaning is “intentionally”, but it is also sued to mean “recklessly”.
· Recklessly – is here used to denote the subjective state of mind of a person who foresees that this conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about.
BUT I am satisfied that in the context of s.281.2(2) it means with the intention of promoting hatred, and does NOT include recklessness. ... It is reasonable to assume that Parliament intended to limit the offence under s.281.2(2) to the intentional promotion of hatred. ... Proof of an intention to promote hatred is essential ...
I conclude, therefore, that the appellants “wilfully” (intentionally) promoted hatred against the French Canadian community of Essex County only if:
(a) Their conscious purpose in distributing the document was to promote hatred against that group, or (DIRECT INTENT IN ENGLAND).
(b) They foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet, but distributed it as means of achieving their purpose of obtaining the French-language high school (INDIRECT OR OBLIQUE INTENT IN ENGLAND).
Intent: conscious purpose of foresight of a certainty.
(d) Knowledge – As indicated, bearing in mind what is said above about standards of criminality, the accused must generally know that the conditions of the actus reus exist. For example, an accused cannot be convicted of assaulting a police officer, if she does not know the victim is a police officer. Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume the accused knows of the relevant conditions, unless the accused presents a “mistake of fact defence”. In the sexual offence context, the mistake of fact defence is heavily limited for policy reasons.
R v Ewanchuk (1999) 1 S.C.R. 330
PRINCIPLE: the defence of implied consent does not apply to sexual assault. There is consent or there is no consent. However, the defence of ‘mistake of fact’ could be a defence to sexual assault.
FACTS: The 17-year-old female complainant met Ewanchuk at his trailer to discuss a job offer. Ewanchuk closed the door of the trailer which was located in a mall parking lot. The complainant believed the door was locked and was frightened. Ewanchuk made increasingly serious sexual advances toward the complainant but stopped each time the complainant said no. Any compliance by the complainant was out of fear and she did not reciprocate the sexual contact. Ewanchuk relied on the defence of implied consent and was acquitted of sexual assault at trial. His acquittal was confirmed on appeal. The Crown appealed to the Supreme Court of Canada.
ISSUE: In issue was whether the defence of implied consent existed in Canadian law.
HELD: Appeal allowed and a conviction entered. The defence of implied consent did not exist in the context of sexual assault. The complainant either consented or she did not. Ewanchuk's perception of the complainant's state of mind was irrelevant in absence of a defence of honest but mistaken belief in consent. The trial judge's conclusion that the complainant's conduct raised a reasonable doubt constituting implied consent was a reviewable mistake in law. Once the trial judge was satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault was established and the inquiry shifted to Ewanchuk's state of mind. That he stopped touching the complainant each time she said no demonstrated that he understood that she meant no. There was nothing to support his claim that he continued to believe her to be consenting. The evidence did not disclose a defence of honest but mistaken belief in consent. His persistent and increasingly serious advances constituted a sexual assault for which he had no defence. A new trial was not in the interests of justice.
The Components of Sexual Assault
A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea.
Actus reus – unwanted sexual touching.
The actus reus of sexual assault is established by the proof of three elements:
(i) Touching (objective test)
(ii) The sexual nature of the contact (objective test)
(iii) The absence of consent (subjective test; determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred)
· “Implied Consent” – “... the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law”.
· “The court’s concern is whether she freely made up her mind about the conduct in question. The relevant section of the Code is s.265(3)(b), which states that there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force. ... The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated ... the approach is subjective.
Mens rea – the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
Honest but Mistaken Belief in Consent
· Since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent.
· The defence of mistake is simply a denial of mens rea.
Limits on Honest but Mistaken Belief in Consent
· “Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable”.
· R v Esau (1997) – “An accused who, due to wilful blindness or recklessness, believes that a complainant ... in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: s.273.2(a)(ii).
· “... unless and until an accused first takes reasonable steps to ensure that there is consent, the defence of honest but mistaken belief does not arise”.
Sansregret v R (1985) 1 S.C.R. 570
PRINCIPLE: Definition of Knowledge
Glanville Williams:
Knowledge – “... the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge (applies to ‘wilful blindness).
(e) Wilful Blindness – Wilful blindness is related to but distinct from recklessness. It is a subjective state of mind, requiring that the accused personally sees the risk of a fact, but then wilfully avoids confirmation so as to be able to deny knowledge. This concept fits best when used as a substitute for knowledge, although courts (and Parliament in CC s.273.2) have an unfortunate habit of using “wilful blindness” terminology as interchangeable with recklessness. This leads to confusion. If the two concepts were indeed interchangeable wilful blindness would disappear because everyone who is wilfully blind is necessarily reckless – if you suspect that a fact exists but wilfully avoid confirmation so as to be able to deny knowledge (and are wilfully blind) then you must necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are reckless). The two concepts are not the same and should not be equated.
R v Currie (1975) 24 C.C.C. (2d) 292 (Ont. C.A.)
PRINCIPLE: the doctrine of ‘constructive knowledge’ has no application in the criminal law.
FACTS: The accused cashed a cheque payable to B, on the back of which was a signature purporting to be that of B. In fact, the cheque had been stolen from B's mailbox. The cheque was cashed in a bank where the accused was known and where he had a deposit. He had written his name, address and phone number at the back of the cheque. He testified that a stranger asked him to cash the cheque and paid him $5 to do so. He claimed that nothing in the stranger or in the cheque aroused his suspicion. The trial Judge convicted him, applying the doctrine of wilful blindness, stating that accused should have made further inquiries. The accused appealed. HELD: The appeal was allowed. The trial Judge did not reject accused's evidence that nothing in the transaction nor in the person who gave him the cheque aroused his suspicion. Generally speaking, the doctrine of constructive knowledge had no application in criminal law. The fact that a person ought to have known that certain facts existed may in civil proceedings, be equivalent to actual knowledge, but did not constitute knowledge for the purpose of criminal liability.
R v Duong (1998) 15 C.R. (5th) 209
PRINCIPLE: Example of wilful blindness.
FACTS: Lam was publicly connected to two murders. He approached Duong for help. Duong told police that he knew Lam was in trouble when he let him stay at his apartment. Lam was convicted of two counts of second degree murder and two counts of attempted murder. Duong was convicted of being an accessory to murder after the fact. Duong claimed the trial judge erred in finding that he knew or was wilfully blind to the possibility that Lam committed murder. HELD: The trial judge did not err in assessing the issue of wilful blindness. There was evidence to indicate that Duong decided not to inquire further once he developed a real suspicion that Lam was a party to murder.
· Liability based on wilful blindness is subjective. Wilful blindness refers to a state of mind which is aptly described as “deliberate ignorance”. Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability.
· The fact that the appellant may have contemplated other possible connections between Lam and the murders afforded no bar to a finding that he was wilfully blind to the fact that Lam was a party to murder.
R v Hawkins (1995) 4 S.C.R. 55 – “... It is well established in criminal law that wilful blindness will also fulfil a mens rea requirement. If the retailer becomes aware of the need to make further inquiries about the nature of the videos he was selling yet deliberately chooses to ignore these indications and does not make any further inquiries, then the retailer can be nonetheless charged under s.163(2) for “knowingly” selling obscene materials. Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element of the offence ...”.
Sansregret v R (1985) 1 S.C.R. 570 (see above)
PRINCIPLE: Definition of Wilful Blindness
Recklessness – to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.
A finding of recklessness [in this case] could not override the defence of mistake of fact. It could be used as a defence.
Wilful blindness – is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.
Recklessness VS Wilful blindness
The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
R v Vinokurov (2001) A.J. No. 612 (Alta C.A.)
PRINCIPLE: Recklessness was NOT sufficient to satisfy the knowledge requirement of a charge of possession of stolen property (it appears that wilful blindness would have been sufficient).
FACTS: This was an appeal by the accused Vinokurov from his conviction on a charge of possession of stolen property. At trial the Crown established beyond a reasonable doubt that Vinokurov, who was the manager of a pawnshop, received stolen property from a customer. The stolen property represented the proceeds of a series of break and entries committed by the individual who pawned the merchandise. Vinokurov testified and denied knowing that the items were stolen. The uncontradicted evidence was that he completed all of the required paperwork and made inquiries of his mother who was the owner of the store to determine whether he ought to purchase certain of the merchandise. The judge found that the Crown had failed to prove that Vinokurov was wilfully blind. He concluded, however, that Vinokurov was reckless.
HELD: Appeal allowed. Recklessness did not satisfy the knowledge requirement on a charge of possession of stolen property.
R v Briscoe [2010] SCC 13
PRINCIPLE:
FACTS: Appeal by Briscoe from a decision of the Court of Appeal of Alberta overturning his acquittal on charges of kidnapping, rape and murder.
Three young persons and two adults were charged for their participation in the kidnapping, rape, and brutal murder of a 13-year-old girl. The two adults in the group, Briscoe and Laboucan, were charged jointly with kidnapping, aggravated sexual assault and first degree murder. Briscoe, Laboucan and the others lured two young victims into their car. Laboucan had said earlier in the day that he would like to find someone to kill. Briscoe drove the group to a secluded golf course. He then stood by and watched as the victim was raped and murdered. The trial judge concluded that Briscoe did not know of Laboucan's intention to commit each of the crimes and acquitted Briscoe. The Crown appealed Briscoe's acquittals to the Court of Appeal of Alberta. The Court of Appeal held that the trial judge erred in law by failing to consider whether Briscoe was wilfully blind to the harm his cohorts intended to cause the victim and set aside the acquittals.
HELD: Appeal dismissed. The mens rea requirement had two components: intent and knowledge. The Crown had to prove that the accused intended to assist the principal in the commission of the offence. It was not required that the accused desired that the offence be successfully committed. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider had to know that the perpetrator intended to commit the crime, although he or she did not need to know precisely how it would be committed. The aider and abettor of a murder did not need to have the same mens rea as the actual killer. It was sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acted with the intention of assisting the perpetrator in its commission. Wilful blindness did not define the mens rea required for particular offences. Rather, it could substitute for actual knowledge whenever knowledge was a component of the mens rea. The doctrine of wilful blindness imputed knowledge to an accused whose suspicion was aroused to the point where he or she saw the need for further inquiries, but deliberately chose not to make those inquiries. Briscoe's own statements to the police suggested that he had a strong, well-founded suspicion that someone would be killed that night and that he might have been wilfully blind to the kidnapping and prospect of sexual assault. The Court of Appeal rightly concluded that the trial judge's failure to consider Briscoe's knowledge from that perspective constituted a legal error which necessitated a new trial on all charges.
Court Summary:
C, a 13-year-old girl, and a young friend were lured into a car on the false promise of being taken to a party. B drove the group, which included L and three youths, to a secluded golf course. Unbeknownst to C or her friend, L had said earlier in the day that he would like to find someone to kill. It would appear that the idea had been generally well received and C was chosen by L and some of the others as the victim. On their arrival, B opened the trunk and, at L's request, handed him some pliers. B stayed behind at the car as the others went onto the golf course under the guise of seeking the party. B rejoined the group around the time that one of the youths hit C from behind with a wrench. For a moment, B held on to C and angrily told her to be quiet or shut up. B then stood by and watched as C was brutally raped and murdered. All five persons involved were charged with kidnapping, aggravated assault and first degree murder and the two adults, B and L, were jointly tried by a judge alone. B was acquitted. The trial judge found that the actus reus for being a party to the offences was proven, but not the mens rea because B did not have the requisite knowledge that L's intended to commit the crimes. The Court of Appeal overturned the acquittals and ordered a new trial, holding that the trial judge erred in law by failing to consider wilful blindness.
Held: The appeal should be dismissed.
àThe mens rea requirement reflected in the word "purpose" under s. 21(1)(b) of the Criminal Code has two components: intent and knowledge. For the intent component, the Crown must prove that the accused intended to assist the principal in the commission of the offence. It is not required that the accused desired that the offence be successfully committed. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the principal intends to commit the crime, although he or she need not know precisely how it will be committed. Even in the case of murder, the principal's intention to commit the crime must be known to the aider or abettor, but it need not be shared. It is sufficient that he or she, armed with knowledge of the principal's intention to commit the crime, acts with the intention of assisting the principal in its commission.
àThe doctrine of wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused's state of mind which must be undertaken to establish an aider or abettor's knowledge. Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. Wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.
àIn this case, the evidence cried out for an analysis on wilful blindness. Even B's own statements to the police, on which the trial judge relied heavily, suggest that he had a strong, well-founded suspicion that someone would be killed at the golf course and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. The trial judge's failure to consider B's knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges.
7. Objective Mens Rea and True Crimes
Negligence is judged objectively, according to what a reasonable person would know or understand or how a reasonable person would act. The criminal law has long been uncomfortable with objective fault, as historically the criminal law responded to an “evil” mind, and careless people may be dangerous but they are not evil. Gradually the law has come to accept objective fault, although this has not happened for murder, where, as a matter of constitutional law, convictions must be based on subjective mens rea in the form of full scale intention. For crimes using objective fault as the mens rea, “penal-negligence” – a more restricted form of negligence – is generally required. The exception is with “predicate offences”, those aggravated forms of offence that apply when serious consequences result, and that include within their elements another complete but lesser offence, a “predicate” offence. For predicate offences the consequence need not be brought about by “penal negligence”. It is enough if the accused commits the underlying or predicate offence, and that the aggravated consequence that has been thereby caused was objectively foreseeable.
Constructive murder – ss.229(c) and 230:
Vaillancourt v R (1987) 2 S.C.R. 636
PRINCIPLE: s.213(d) [now s.230(d)] is unconstitutional.
FACTS: The appellant and another had intended to rob a pool hall armed with knives. However, the accomplice brought a gun with him which the appellant insisted was unloaded. The accomplice took out three bullets and gave them to the appellant. On the assumption that the gun was unloaded, the appellant proceeded with the robbery. When the accomplice struggled with a patron of the hall, he discharged the gun and the patron was killed. The appellant was charged and convicted of second degree murder.
ISSUE: whether s.213(d) [now s.230(d)] is inconsistent with ss.7 or 11(d).
HELD: The appellant's conviction for murder was set aside and a new trial was ordered. Section 213(d) violated both ss. 7 and 11(d) of the Charter and was of no force or effect. There must be some special mental element with respect to death before a culpable homicide can be treated as a murder. As a principle of fundamental justice, a conviction for murder cannot rest on less than proof beyond a reasonable doubt of subjective foresight.
Relevant Provisions
s.212 [now s.229]
Murder, Manslaughter and Infanticide
CC s.229 Murder – Culpable homicide is murder
(a) Where the person who causes the death of a human being
(i) means to cause his death, or (DIRECT INTENT IN ENGLAND)
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (INDIRECT/OBLIQUE INTENT IN ENGLAND)
(b) ...
(c) Where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
s.229(a)(i) – clearly requires that the accused have actual subjective foresight of the likelihood of causing the death, coupled with the intention to cause that death. This is the most morally blameworthy state of mind in our system.
s.229(a)(ii) – again, the accused must have actual subjective foresight of the likelihood of death. However, the Crown need no longer prove that he intended to cause the death, but only that he was reckless whether death ensued or not. It should also be noted that s.229(a)(ii) is limited to cases where the accused intended to cause bodily harm to the victim.
s.229(c) – in part, this is simply a more general form of recklessness, and thus the logical extension of s.212(a)(ii), in that it applies when the accused “does anything ... he knows ... is likely to cause death”. However, there is also a further relaxation of the mental element required for murder, in that it is also murder where the accused “does anything that he ... ought to know is likely to cause death”. This eliminates the requirement of actual subjective foresight and replaces it with objective foreseeability or negligence.
· The words “ought to know” are constitutionally deficient under s.7 (see Commentary).
The final relaxation in the definition of murder occurs at s.213 [now s.230]:
CC s.230 Murder in commission of offences – Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or an offence mentioned in s.52 (sabatoge), 75 (piratical acts), 76 (hijacking an aircraft), ... s.270 (assaulting a peace officer), s.271 (sexual assault), ... s.343 (robbery) ... whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if
(a) He means to cause bodily harm for the purpose of
(i) Facilitating the commission of the offence, or
(ii) Facilitating his flight after committing or attempting to commit the offence,,
And the death ensues from the bodily harm;
(b) He administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom; or
(c) He wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom,
(d) Repealed 1991 (he uses a weapon or has it upon his person)
Commentary: The section defines murder on a constructive basis. Culpable homicide is murder where V’s death is caused in defined circumstances arising out of the commission of a listed primary crime or predicate offence, and notwithstanding (despite of) the absence of an intention to cause death, as well as objective foresight of it likelihood.
Sections 230(a) and (c) have been declared constitutionally invalid by the SCC. There is substantial reason to doubt the validity of s.230(b).
· THUS, it is murder if the accused causes the victim’s death while committing or attempting to commit one of the enumerated/predicate offences if he performs one of the acts subsections (a) to (d). Proof that the accused performed one of the acts is subsections (a) to (d) is substituted for proof of any subjective foresight, or even objective foreseeability, of the likelihood of death.
Section 213(d) [now s.230(d)] and the Charter
Prior to the enactment of the Charter, Parliament had full legislative power with respect to “The Criminal Law” (s.91(27), Constitution Act 1867). It was always open to Parliament expressly to relieve the prosecution of its obligation to prove any part of the mens rea, as it is said to have done in s.213 with respect to the foreseeability of the death of the victim. It is thus clear that, prior to the enactment of the Charter, the validity of s.213 could not have been successfully challenged.
· Not only does s.213(d) violate the Charter, it does not even meet the lower threshold test of objective foresseability.
· Any provision creating an offence which allows for conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss.7 and 11(d) of the Charter.
· The acid test of the constitutionality of s.213 is this ultimate question: Would it be possible for a conviction for murder under s.213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? – If the answer is “Yes”, then the section is prima facie in violation of ss.7 and 11(d). ... in my view the answer is “Yes”. The section is not saved by s.1.
La Forest J.:
· “... because of the stigma attached to a conviction for murder the principles of fundamental justice require a mens rea reflecting the particular nature of the crime, namely, one referable to causing death”.
· “It is sufficient to say that the mental element required by s.213(d) is so remote from the intention specific to murder that a conviction under that paragraph violated fundamental justice. All the provision requires is an intention to commit another crime and to possess a weapon while carrying out this intention or in fleeing afterwards. The provision is so broad that under it a person may be found guilty of murder even though the death was the result of an accident.
· “... the objective of discouraging the use of weapons in the commission of crimes can be achieved by means other than attaching the stigma of a conviction for murder to a person who has caused death in the circumstances like those described in the provision.
R v Martineau (1990) 2 S.C.R. 633
PRINCIPLE: It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. Therefore, since s.213 expressly eliminates the requirement of proof of subjective foresight, it infringes ss.7 and 11(d) of the Charter. It cannot be saved by s.1. Those who cause harm intentionally should be punished more severely than those who cause harm inadvertently.
- As a constitutional requirement, no one can be convicted of murder unless the Crown proves beyond a reasonable doubt that the person had subjective foresight of the fact that the death of the victim was likely to ensure. Because of both the stigma and the severe penal consequences which result from a conviction for murder, the Constitution requires at least that degree of intent.
HELD: Appeal dismissed. Conviction for murder required proof beyond a reasonable doubt of subjective foresight of death. As conviction for murder carried with it the most severe stigma and punishment of any crime in our society, it was a requirement that the accused be shown to have guilty knowledge reflecting the particular nature of that crime. The effect of section 213 [s.230] was to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender. The stigma and punishment attached to murder should be reserved for those persons who intentionally caused death or who chose to inflict bodily harm knowing that it was likely to cause death. The impairment of the accused's sections 7 and 11(d) Charter rights was not rationally connected to the objective sought to be upheld by section 213 [230]. The impairment of rights was too broad in view of other offences which did or could address the issue of deterrence of the use of deadly force during the commission of another crime. In the result the offences created in section 213 and section 212(c) violated sections 7 and 11(d) of the Charter and could not be saved by section 1 of the Charter.
“... a conviction for murder requires proof beyond a reasonable doubt of subjective foresight of death”.
· s.213(a) [now s.230(a)] – defines culpable homicide as murder where a person causes the death of a human being while committing or attempting to commit a range of listed offences, whether or not the person means to cause death or whether or not he or she knows that death is likely to ensue if that person means to cause bodily harm for the purpose of facilitating the commission of the offence or flight after committing or attempting to commit the offence. The introductory paragraph of the section, therefore, expressly removes from the Crown the burden of proving beyond a reasonable doubt that the accused had subjective foresight of death.
· This section stands as an anomaly as regards the other murder provisions, especially in light of the common-law presumption against convicting a person of a true crime without proof of intent or recklessness (R v Sault Ste. Marie (City) (1978)).
· A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. The effect of s.213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender (Hart).
R v DeSousa (1992) 2 S.C.R. 944 (Unlawful act causing bodily harm – s.269)
PRINCIPLE: An offence could constitutionally depend upon a predicate offence (initial offence) provided that the predicate offence (i) is a federal or provincial offence, (ii) is not an absolute liability offence, (iii) is constitutional and (iv) is objectively dangerous (that is more than merely trivial or transitory in nature and in most cases, this will involve an act of violence done deliberately to another.
Basically, s.269 states: if the accused commits a crime (i.e. a fight and a bottle is thrown), and this crime causes harm to another, then the accused could be convicted of s.269 (Unlawful act causing bodily harm) as long as the four factors (i-iv) are satisfied.
FACTS: The accused was involved in a fight at a party. A bystander was injured when a bottle, allegedly thrown by the accused, broke against a wall and a glass fragment struck the bystander. The accused was charged with unlawfully causing bodily harm contrary to s.269.
ISSUE: whether s.269 violated ss.7 or 11(d) of the Charter.
HELD: s.269 complies with the requirements of ss.7 and 11(d). On a proper interpretation of s.269, the concept of an unlawful act as it is used in that section (i) includes only federal and provincial offences. (ii) Excluded from this general category of offences are any offences which are based on absolute liability and (iii) which have constitutionally insufficient mental elements on their own. (iv) Additionally, the term “unlawfully”, as it is used in this section requires an act which is at least objectively dangerous. Although there must be an element of personal fault respecting a culpable aspect of the actus reus, it was not necessary to establish fault with respect to each consequence of an action.
Relevant Provision
CC s.269 Unlawfully causing bodily harm – Every one who unlawfully causes bodily harm to any person is guility of
(a) An indictable offence ...
(b) An offence punishable of summary conviction ...
Commentary: The external circumstances of this offence require proof of an act that is unlawful as a federal or provincial offence, other than one of absolute liability. The act must also be likely to subject another to danger of bodily harm that is more than merely trivial or transitory in nature.
The mental element comprises the mental element required of the underlying unlawful act and objective foresight of bodily harm.
Components of the s.269 Offence and No Intent Requirement
To be brought within the ambit of s.269, an accused must have committed an underlying offence (predicate offence) and have caused bodily harm to another person as a result of committing that underlying offence.
The mental element requirement is composed of both the mental element of the underlying unlawful act (predicate offence) and the additional requirement of objective foresight of bodily harm.
There is, however, no constitutional requirement that “intention”, either on an objective or a subjective basis, extend to the consequences of unlawful acts in general.
· s.7 does not mandate intention in regard to all of the consequences required of the offence.
· Intention does not need to extend to all of the required consequences of an offence.
· Hess – there must be an element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in regard to each and every element of the actus reus.
· One is not morally innocent simply because a particular consequence of an unlawful act was unforeseen by that actor. In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful action.
Conditions of the ‘Unlawful’ Predicate Offence
(i) The predicate (or underlying) offence can only include federal and provincial offences.
(ii) The predicate (or underlying) offence cannot include an offence of absolute liability.
(iii) The predicate (or underlying) offence must be constitutionally sufficient in its own right.
(iv) The predicate (or underlying) offence must be at least objectively dangerous.
o Thus the test is one of objective foresight of bodily harm for all underlying offences.
o Requires objective foresight of the consequences of an accused’s unlawful act.
o The act must be both unlawful and one that is likely to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve an act of violence done deliberately to another person.
R v Creighton (1993) 3 S.C.R. 3(manslaughter category of unlawful act causing death-s.222)
PRINCIPLE: Unlawful act manslaughter, s.222 – the unlawful act requires objective foreseeability of the risk of bodily harm. No personal factors, for the exception of incapacity could be considered.
FACTS: Appeal by the accused from a conviction of manslaughter. With the deceased's consent, the accused injected cocaine into her forearm. She experienced a cardiac arrest and died. Creighton was charged under s. 222(5)(a) and (b) for manslaughter. The appellant argued that the common law definition of unlawful act manslaughter contravened s.7 of the Charter.
ISSUE: whether the common law use of manslaughter (s.222) violated s.7 of the Charter (whether the objective test for unlawful act manslaughter required reasonable foresight of death (minority) OR merely reasonable foresight of bodily harm (majority)).
HELD: Appeal dismissed. The test for the mens rea of unlawful act manslaughter did not violate s.7. The mens rea required objective foreseeability of the risk of bodily harm. The standard was that of the reasonable person in the circumstances of the accused and this standard did not vary with the background and pre-disposition of each accused, unless the accused did not have the capacity to appreciate the nature of the risk which the activity in question entailed. Under the circumstances of this case, a reasonable person would have foreseen that the cocaine injection could cause bodily harm. Thus, the accused was guilty.
· The Court found that the common law requirement for mens rea of manslaughter of "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act" to be constitutional. The unlawful act must be objectively dangerous and the unreasonableness must be a marked departure from the standard of care of a reasonable person.
Relevant Provisions
The Criminal Code, s.222(4), defines three general types of culpable homicide:
(i) Murder – the intentional killing of another human being.
(ii) Infanticide – the intentional killing of a child.
(iii) Manslaughter – all other culpable homicides.
CC s.222(5) Idem – A person commits culpable homicide when he causes the death of a human being,
(a) By means of an unlawful act,
(b) By criminal negligence,
(c) ...
(d) ...
Mens rea of unlawful act manslaughter = In addition to the mens rea of the underlying offence, objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required.
Structure of a Manslaughter Offence
The structure of the offence of manslaughter depends on a predicate offence of an unlawful act or criminal negligence, coupled with a homicide. It is now settled that the fact that an offence depends upon a predicate offence does not render it unconstitutional, provided that the predicate offence involves a dangerous act, is not an offence of absolute liability, and is not unconstitutional (R v DeSousa).
Subjective and Objective Distinction
The SCC in R v Creighton (1993) and R v Hundal (1993) accept that there should be a clear distinction between the subjective standard of whether the accused was actually aware of a risk and the objective standard of whether the accused failed to measure up to the external standard of the reasonable person, irrespective of awareness.
Subjective standard – all of the accused’s individual factors are taken into account.
Objective standard – no personal factors, such as age, race, gender, poverty and experience, can be taken into account except where they relate to incapacity.
· This standard became tougher given the ruling in Creighton.
· Incapacity – to appreciate the nature of the risk which the activity in question entails.
o This principle that the criminal law will not convict the morally innocent does not, in my view, require consideration of personal factors short of incapacity.
o This principle comes into play only at the point where the person is shown to lack the capacity to appreciate the nature and quality or the consequences of his or her acts. Apart from this, we are all, rich and poor, wise and naive, held to the minimum standards of conduct prescribed by the criminal law.
o Ubhi (1994) – severe mental retardation can be taken into account for criminal negligence.
What “human frailties” may not factor into the objective test
· Intoxication or impairment through drug use which occurs as a result of voluntary consumption cannot serve to vitiate liability for the risks created by the negligent conduct of an accused.
· A sudden and temporary incapacity to appreciate risk due to exigent circumstance (an emergency which diverts one’s attention from an activity, for example). However, this may still result in an acquittal if a reasonable person’s attention in the same circumstances of the accused have been diverted from that activity.
It should be emphasized that the relevant characteristics must be traits which the accused could not control or otherwise manage in the circumstances. For example, while a person with cataracts cannot be faulted for having reduced vision, he or she may be expected to avoid activity in which that limitation will either create risk or render him or her unable to manage risk which is inherent in an activity (driving, for example). The reasonable person is expected to compensate for his or her frailties, to the extent he or she is conscious of them and able to do so.
The Nature of the Objective Test
Objective mens rea is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably.
R v City of Sault Ste. Marie (1978) – acts of ordinary negligence may not suffice to justify imprisonment.
Hart – No one should be held blameworthy and punished for criminal conduct if he or she acted without free will.
Penalty/Sentence
Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. It follows that the sentence attached to manslaughter does not require elevation of the degree of mens rea for the offence.
· The majority dismissed Lamer's focus on "stigma" as indicator for the requirement of mens rea. The very fact that manslaughter is named differently from murder indicates that it is to be treated as less blameworthy. The punishment reflects this in that it has no minimum sentence. As well, this is in line with the principle that intentional crimes are to be punished more severely than unintentional crimes.
Symmetry
The majority further dismissed the proposition that there must be symmetry between all the external elements of the offence and the fault elements. Symmetry would require that there be a fault element for the consequences of the act, namely, that the accused could foresee death. This would require the courts to abandon the thin skull rule which has already been affirmed in cases of homicide (R v Smithers), thus it would not be reasonable to require symmetry in all cases. Rather symmetry remains a rule with clear exceptions and cannot be a principle of fundamental justice.
R v Hundal (1993) 1 S.C.R. 867
PRINCIPLE: the mens rea for the offence of dangerous driving should be assessed by a ‘modified objective’ test. The test is objective, but considers the context of all the events surrounding the incident.
FACTS: The accused killed a motorist by driving his truck through a red light at an intersection. The appellant argued that he could not stop the truck in time when the light turned amber. The trial judge held that the appellant's conduct was a gross departure from the standard of care of a prudent driver. The appellant argued that the Crown was required to prove a subjective mental element of his intention to drive dangerously.
ISSUE: whether there is a subjective element in the requisite mens rea which must be established by the Crown in order to prove the offence of dangerous driving described in s.233 [now s.249].
HELD: Appeal dismissed. Due to the nature of driving offences, a modified objective test should be applied to dangerous driving. The nature of driving was often routine and automatic, so that it was almost impossible to determine a particular state of mind of a driver at any given time. The basis of liability for dangerous driving was negligence and the question was not what the driver intended but whether, viewed objectively, he exercised the appropriate standard of care. The objective test should be applied in the context of the events surrounding the incident. The trial judge properly applied this test.
Relevant Provisions
CC s.249(1) Dangerous operation of motor vehicles, vessels and aircraft – Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
s.249(4) Dangerous operation causing death – Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
The Constitutional Requirement of Mens Rea
The appellant contends that the prison sentence which may be imposed for a breach of s.233 [now s.249] makes it evident that an accused cannot be convicted without proof beyond a reasonable doubt of a subjective mental element of an intention to drive dangerously.
s.7 prohibits the imposition of imprisonment in the absence of proof of that element of fault (Re B.C. Motor Vehicle Act (1985)).
What is the Mens Rea Required to Prove the Offence of Dangerous Driving?
The nature of driving offences suggests that an objective test, or more specifically a modified objective test, is particularly appropriate to apply to dangerous driving. I say that for a number of reasons:
(a) The Licensing Requirement – it serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. Licensed drivers place themselves in a position of responsibility to others.
(b) The Automatic and Reflexive Nature of Driving – the nature of driving itself is often so routine, so automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment. It is an activity that is primarily reactive and not contemplative. Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B.
(c) The Wording of s.233 [now s.249] – the wording of the section itself which refers to the operation of a motor vehicle “in a manner that is dangerous to the public, having regard to all the circumstances” suggests that an objective standard is required. The “manner of driving” can only be compared to a standard of reasonable conduct. That standard can be readily judged and assessed by all who would be members of juries.
· Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care.
(d) Statistics – the statistics which demonstrate that all too many tragic deaths and disabling injuries flow from the operation of motor vehicles indicate the need to control the conduct of drivers.
(e) Modified Objective Test – Although an objective test must be applied to the offence of dangerous driving it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct. The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.
There will be occasions when the manner of driving viewed objectively will clearly be dangerous yet the accused should not be convicted. i.e., a driver who, without prior warning, suffers a totally unexpected heart attack.
· McLachlin J.: “The better analysis is that the onset of a ‘disease or disability’ makes the act of losing control of the motor vehicle involuntary, with the result that there is no actus reus”.
Application of These Principles to the Facts
Did the trial judge apply the modified objective test correctly?:
· The trial judge carefully examine the circumstances of the accident.
· He took into account the busy downtown traffic, the weather conditions, and the mechanical conditions of the accused vehicle.
· He concluded, in my view very properly, that the appellant’s manner of driving represented a gross departure from the standard of a reasonably prudent driver. No explanation was offered by the accused that could excuse his conduct. There is no reason for interfering with the trial judge’s finding of fact and application of the law.
Applying the Hundal test:
R v Beatty (2008) S.C.J. No.5
PRINCIPLE: Pursuant to R. v. Hundal, the requisite mens rea could only be found when there was a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused.
FACTS: The accused was charged with three counts of dangerous operation of a motor vehicle causing death under s. 249(4). The accused's truck had suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all three occupants. Witnesses had observed the accused's vehicle being driven in a proper manner prior to the accident, and that the accident happened instantaneously. There was no evidence of speeding or vehicle failure, and intoxicants were not a factor. After the accident, the accused stated that he was not sure what happened but that he must have fallen asleep and collided with the other vehicle. The trial judge acquitted the accused on all three counts. She found that the test in R. v. Hundal required more than a few seconds of lapsed attention to establish objectively dangerous driving. She noted that, in the absence of something more, the accused's few seconds of negligent driving was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver. The Court of Appeal found that the accused's driving was a marked departure from the standard of care of a reasonable person. It found that the trial judge did not adequately engage the analysis required under the second step in R. v. Hundal.
HELD: Appeal allowed and acquittals restored. There was an important distinction between civil negligence and penal negligence. An act of negligent driving did not necessarily constitute the offence of dangerous driving. Pursuant to R. v. Hundal, the requisite mens rea could only be found when there was a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused. There was no evidence in this case of any deliberate intention to create a danger for other drivers. The limited evidence that was adduced about the accused's actual state of mind suggested that the dangerous conduct was due to a momentary lapse of attention. There was no reason to interfere with the trial judge's assessment of the accused's conduct in this case and her conclusion on his criminal liability. The accused's momentary act of negligence was insufficient to support a finding of a marked departure from the standard of care of a reasonably prudent driver, and was therefore insufficient to constitute dangerous operation of a motor vehicle causing death within the meaning of s. 249(4).
8. Regulatory Offences
Regulatory offences can be created by any level of government. Regulatory offences can be full mens rea offences just as true crimes are, but a clear indication that mens rea is required is needed before regulatory offences will be interpreted as having mens rea elements. They are presumed to be “strict liability” offences (offences that can be committed by simple, non-penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction). Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant actus reus is proved, provided this is clearly what the legislators intended when establishing the offence. Given the different modes of interpretation used, it is important to be able to distinguish true crimes from regulatory crimes.
R v City of Sault Ste. Marie (1978) 2 S.C.R. 1299
PRINCIPLE: Created three categories of offences: Absolute liability, Strict liability and Mens rea.
FACTS: The City contracted with a garbage disposal company. They were charged with polluting and, consequently, the City was also charged. The City appealed the charge.
HELD: Since s.32(1) of the Ontario Water Resources Act created a public welfare offence without a clear indication that liability was absolute and without any such words as "knowingly" or "wilfully" expressly to import mens rea, application of that criteria placed the offence in the category of strict liability. Proof of the prohibited act prima facie imported the offence, but the accused might avoid liability by proving that it took reasonable care. A new trial was ordered.
Dickson J. for the SCC divided offences into 3 categories:
(1) Absolute liability – the offence consists simply of doing the prohibited act.
- It is no defence that the accused was entirely without fault.
- cannot have absolute liability if imprisonment is a possible consequence.
- An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances, in other words, that he was in no way negligent.
- if offence is “regulatory” and maintains imprisonment as a consequence, law will be valid with a due diligence offence. If offence is a “true crime”, then mens rea is required.
True Crimes: In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea.
· In order to convict someone of a true crime, proof of intent or recklessness must be proven.
R v Chapin (1979) 2 S.C.R. 121
PRINCIPLE: Factors to consider when determining what category an offence is in.
FACTS: This was an appeal by the Crown from the judgment of the Ontario Court of Appeal allowing the accused's appeal against her conviction, after a trial de novo, on a charge of hunting migratory birds within one-quarter mile of a place where bait had been deposited, contrary to s. 14(1) of the Migratory Birds Regulations, thereby committing an offence, contrary to s. 12(1) of the Migratory Birds Convention Act. The Ontario Court of Appeal held that mens rea was an ingredient of the offence charged.
Crown’s argument: the offence is one of absolute liability or, in the alternative, strict liability.
Respondent’s argument: the offence is one requiring full mens rea or, if not, strict liability.
HELD: The appeal was dismissed. The offence created by s. 14(1) of the Migratory Birds Regulations was one of strict liability. An accused might absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances. On the evidence on the record it would have been unreasonable to convict the accused (there were no signs indicating that this was a baited area) in this case and the Court ought not to direct a new trial.
Relevant Provisions
The Migratory Birds Regulations
s.14(1) – ... no person shall hunt for migratory game birds within one-quarter mile of any place where bait has been deposited.
Migratory Birds Convention Act
s.12(1) – Every person who violates this Act or any regulation is, for each offence, liable upon summary conviction ...
Not a Mens Rea Offence
One would be hard pressed to characterize the offence created by s.14(1) as a “crime in the true sense”. Violation is punishable upon summary conviction, and not by indictment. One must note the absence of the usual signals connoting mens rea, such as “wilfully” or “with intent”. For example, s.10 Migratory Birds Convention states: “Any person who wilfully refuses ...”.
s.14(1) is not creating a new crime, but in the public interest is prohibiting an act under a penalty.
Not an Absolute Liability Offence
The language of the offence is straightforward: “No person shall ...”. Yet there is not a strict prohibition on hunting, rather a hunt controlled within certain limits as to season, methods, and types and numbers of species taken.
Hunting being a permitted sport, it would be a practical impossibility for a hunter to search a circular area having a diameter of ½ mile for the presence of illegally deposited bait before hunting. One must bear in mind the nature of the terrain over which hunting is done, as the evidence in this case discloses, and the fact that many hunters hope to get into position before first light. Is one first expected to search through swamp, bog, creeks, corn fields, over land and in water in search of illegal bait?
Strict Liability Offence
Is it one of strict liability. It is a classic example of an offence in the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances, in other words, that he was in no way negligent.
Absolute liability offence:
Reference re Section 94(2) of the Motor Vehicle Act (B.C.) (1985) 2 S.C.R. 486
PRINCIPLE: An offence punishable by imprisonment cannot be an absolute liability offence. Absolute liability offences must abide by the principles of fundamental justice (i.e. be given a trial) or else it violates s.7.
ISSUE: A section of the B.C. Motor Vehicle Act made it an offence to operate a motor vehicle while one was prohibited or suspended from driving. A subsection explicitly stated that the offence was to be interpreted as “an absolute liability offence, for which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension. It maintained the possibility of imprisonment.
HELD: The offence was a violation of s.7. Absolute liability was a denial of “the principles of fundamental justice” if one’s liberty is at risk (i.e. imprisonment). Since the offence carried a short term of imprisonment, a conviction would mean a deprivation of “liberty”.
- “A law enacting an absolute liability offence will violate s.7 of the Charter only if an to the extent that it has the potential of depriving of life, liberty, or security of the person”.
- “Obviously, imprisonment (including probation orders) deprives persons of their liberty”.
- “I am therefore of the view that the combination of imprisonment and of absolute liability violates s.7 of the Charter and can only be salvaged if the authorities demonstrate under s.1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one’s rights under s.7.”
- “s.1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s.7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like”.
R v Pontes (1995) 41 C.R. (4th) 201
PRINCIPLE: if no penalty of imprisonment exists, then an absolute liability offence need not comply with the principles of fundamental justice.
ISSUE: The SC reconsidered the constitutionality of the offence of driving while prohibited under s.94 of the B.C. Motor Vehicle Act.
HELD: The offence was constitutional and the court classified it as one of absolute liability, BUT held there was no violation of the right to life, liberty and security of the person as there was no longer any risk of imprisonment.
- The result was that there was no penalty of imprisonment for the offence of driving while prohibited, therefore, there was no breach of liberty under s.7 and no need for the law to comply with the principles of fundamental justice.
Rv Hess (1990)
PRINCIPLE: cannot have absolute liability if imprisonment is a possible consequence (breach of s.7).
Facts: A provision in the Criminal Code made it an offence for a male person to have intercourse with a female person under the age of 14 whether or not he believes that she is fourteen years of age or more. The offence carried a penalty of imprisonment.
SCC Held: an absolute liability offence that carried the penalty of imprisonment was a breach of fundamental justice in violation of s.7.
Absolute liability offence interpreted as strict liability offence:
R v Cancoil Thermal Corp. (1986) 52 C.R. (3d) 188
PRINCIPLE: An absolute liability offence cannot have imprisonment as a consequence.
FACTS: A supervisor/foreman of the factory took of a protective cover over a blade of a machine because he felt that it made it more difficult for workers to clear pieces of scrap metal, however, did not replace it with anything. The blade was left exposed. The blade operated once the foot pedal was pushed down. A worker injured himself when placing hand in while foot was on pedal. There was no doubt that the guard would have prevented this injury. They were charged under s.14(1)(a) and (c) of the Occupational Health and Safety Act.
HELD:
The Act provides a statutory equivalent of the defence of due diligence. However, this provision does not apply to the offence charged. This specific exclusion of this statutory defence would suggest that the Legislature, as a matter of policy, had determined that the subsection creates an offence of absolute liability. However, if s.14(1)(a) were treated as creating an absolute liability offence, it would offend s.7 and the right not to be deprived thereof except in accordance with the principle of fundamental justice. Under s.37(1), a violation of s.14(1)(a) may attract a term of imprisonment.
To avoid a violation of s.7, s.14(1)(a) must be treated as creating a strict liability offence. The defence of due diligence was available to the respondents.
NOTE: the trial judge believed that the removal of the original guard did not leave the blade unguarded (since the machine needed to be manually operated to propel the blade) and found the respondents not guilty on each account. HOWEVER, the meaning of a word in a statute is a question of law. There is no evidence upon which the Court could find that the foot pedal was a guard. The acquittal were therefore based on an error of law. A new trial was ordered. The onus then would be on the respondents to show, by a preponderance of evidence, that they acted with due diligence.
Levis v Tetreault (2006) S.C.J. No.12
PRINCIPLE: In order to succeed with a defence of due diligence in a strict liability offence, the accused must not simply remain passive, but attempt to discover the nature of their legal obligation.
FACTS: T and a company were charged with driving a motor vehicle without a valid driver’s licence contrary to s.93.1 of the Highway Safety Code. T raised the defence of due diligence, stating that the was unaware that the date appearing on his licence was the date the licence expired rather than a payment due date. The company raised the defence of due diligence and officially induced error, alleging that they did not receive a renewal (which they did not because it was mislabelled and never was delivered or received).
HELD: the offences were confirmed as strict liability. However, the defence of due diligence had not been established. Both accused had simply remained passive rather than attempting to discover the nature of their legal obligation to pay. They were convicted.
- “In my view, the respondent’s allegations of fact do not show conduct that meets the standard of due diligence”.
R v Wholesale Travel Group (1991) 3 S.C.R. 154
PRINCIPLE: A “regulatory offence” or a “public welfare offence” may impose a penalty of imprisonment considering a due diligence defence exists AND a ‘True crime’ which imposes a penalty of imprisonment requires proof of mens rea.
element of fault must be subjective mens rea if the offence is a true crime, but need only be negligence (departure from an objective standard or due diligence) if the offence is a regulatory offence (i.e. mislead advertising as in this case).
FACTS: the corporation was charged with the offence of false or misleading advertising under the Competition Act. The Act made clear that there was no requirement of mens rea: the only defence was one of due diligence (reasonable care), and the burden of proving due diligence rested with the accused. The penalty for the offence was a fine or imprisonment.
ISSUE: the accused argued that it was a violation of fundamental justice to place an individual in jeopardy of imprisonment for any lesser fault than mens rea.
HELD: The court classified the offence of false/misleading advertising as a “regulatory offence” and said it was sufficient that the offence was premised on negligence rather than mens rea. It did not have a stigma which would require it to have mens rea.
In the case of a “regulatory offence” or a “public welfare offence”, including those that carry the penalty of imprisonment, fundamental justice does not require that mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care (due diligence), and the burden of proving a reasonable care (to the civil standard) may be cast on the defendant. In the case of “true crimes”, however, fundamental justice requires mens rea be an element of the offence, and the burden of proving mens rea (to criminal standard) would have to be the Crown.
HOWEVER, the court seems to be abandoning its silly distinction between true crimes and regulatory crimes (Hogg).
Murder/mens rea:
R v Vaillancourt (1987)
PRINCIPLE: mens rea is required in relation to murder, if not, then violation of s.7.
Facts: the accused was charged with murder as the result of a poolroom robbery in which the accused’s accomplice shot and killed a customer of the poolroom. He was charged under the felony-murder branch;
SCC Held: the felony-murder rule was a violation of fundamental justice under s.7. Before an accused can be found guilty of murder, s.7 required that there be mens rea with respect to the death.
- It was the extreme stigma and severe punishment associated with murder that entailed the requirement that the accused have some level of mens rea with respect to the death.
R v Raham [2010] 253 C.C.C (34.) 188 (Ont. C.A); O.J. No. 1091
PRINCIPLE:
FACTS: Appeal by the Crown from Raham's successful appeal from conviction on a charge of stunt driving or racing under s. 172 of the Highway Traffic Act. Raham was clocked at 131 km per hour in an 80 km per hour zone.
The police officer could have charged Raham with speeding. Instead, based on the single radar reading of 131 km per hour, which was 51 km per hour over the speed limit, the officer elected to charge her with stunt driving. The offence of stunt driving or racing was punishable by a fine, a term of imprisonment or both. At trial, Raham argued that the offence was an absolute liability offence and that, as imprisonment was a possible punishment, s. 172 violated her rights under s. 7 of the Charter. The Justice of the Peace interpreted the offence as one of strict liability, rejected the constitutional argument and convicted Raham. In allowing Raham's appeal and entering an acquittal, the appeal judge held that the offence was an absolute liability offence punishable by imprisonment and therefore was contrary to s. 7 of the Charter and unconstitutional.
HELD: Appeal allowed, acquittal set aside and new trial ordered. The appeal judge erred in holding that stunt driving was an absolute liability offence and in finding that a due diligence offence was not available to a charge of stunt driving. The offence was properly regarded as a public welfare offence and was prima facie a strict liability offence. The availability of incarceration suggested strict liability. However, the potential for incarceration was more than one of the factors to be considered in categorizing an offence. An absolute liability offence that provided for incarceration as a potential penalty was unconstitutional and of no force and effect, subject to an argument based on s. 1 of the Charter. Because of the presumption of constitutionality, it would take very clear language to create an absolute liability offence that was potentially punishable by incarceration. The presumption in favour of a constitutional interpretation meant that if the offence charged against Raham reasonably could be interpreted as a strict liability offence, it had to be so interpreted even if it also could be reasonably interpreted as an absolute liability offence. The Legislature could not, absent reliance on s. 1 of the Charter, imprison without fault. Strict liability set the lowest standard of fault available. The Legislature chose, through s. 172, to up the penal stakes for speeding at 50 km per hour or more over the speed limit by including the risk of incarceration. In doing so, the Legislature had to be taken, in the absence of clear language excluding the defence, to have accepted the availability of the due diligence defence.
EXTENSIONS OF CRIMINAL LIABILITY
9. Aiding and Abetting
It is not only the person who actually performs the actus reus (the “principal offender”) who can be convicted of the offence. So too can those who aid (physically support) or abet (encourage) the accused to commit the offence. Indeed, persons who aid and abet one offence can, in some circumstances, be convicted of offences they did not intend to aid or abet, provided that offence is a foreseeable outcome of the offence they did intend to aid or abet.
CC s.21(1) Parties to offence – Everyone is a party to an offence who
(a) Actually commits it;
(b) Does or omits to do anything for the purpose of aiding any person to commit it; or
(c) Abets any person in committing it.
(2) Common intention – Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probably consequence of carrying out the common purpose is a party to that offence.
R v Dunlop and Sylvester (1979) 2 S.C.R. 881
PRINCIPLE: Mere presence (and doing nothing to prevent a crime) at the scene of a crime is not sufficient to ground culpability under s.21(1). Prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement will constitute aiding and abetting.
FACTS: The complainant had been raped by a group of about 18 members of a motorcycle gang. She identified Dunlop and Sylvester as two of the rapists. They both denied the assault, and testified that they only delivered beer to the location and observed the woman having intercourse, they stayed for only three minutes, did not have intercourse with the complainant and did not assist anyone else to do so.
Appellant’s argument: the trial judge had erred by leaving it open to the jury to convict on the basis of s.21(1), as having aided and abetted others to commit the rape. No evidence had been presented by the Crown at trial, they argued, to support a conviction on that basis.
HELD: The jury's task was to decide whether to believe the victim's identification of the accused as two of the rapists, or the accused's denial of their participation in the rape. It was not open to the jury to convict the accused of aiding and abetting the rape by their mere presence at the scene.
- “Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit”.
- “Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement ... One can infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that is not sufficient. A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended”.
- A person is not guilty merely because he is present at the scene of a crime and does nothing to prevent it. ... A person who, aware of the rape taking place in his presence, looks on and does nothing is not, as a matter of law, an accomplice.
BC CA Held: confirmed the convictions, being of the view that the spectators furnished encouragement to the perpetrators of the outrages and their mere presence in the circumstances of the case ensured against the escape of the victim. There was thus something more than “mere presence”
R v Clarkson (1971) 3 All E.R. 344 ENGLAND – victim was rape while soldiers stood by door doing nothing at all.
Appeal court Held: it was not enough that the presence of the accused, in fact, gave encouragement, “It must be proved that the accused intended to give encouragement; the he wilfully encouraged”. There must be an intention to encourage and encouragement in fact.
R v Logan (1990) 2 S.C.R. 731
PRINCIPLE: the words “or ought to have known” in s.21(2) are inoperative if the offence requires that foresight of the consequence be subjective. When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of men rea is constitutionally required to convict a party to the offence of attempted murder in order not to violate s.7.
FACTS: The accused were convicted of attempted. Accused and two others robbed a convenience store. Lone store clerk shot in neck resulting in severed spinal cord. Accused Johnson testified that he had no intention to shoot anyone and that there had been no discussion concerning the use of guns. Trial judge charged jury under s.21 stating that the jury must be satisfied beyond a reasonable doubt that the accuseds knew or ought to have known that someone would probably shoot with the intention to kill. Court of Appeal overturned the convictions for attempted murder on the grounds that the mens rea criteria of objective foreseeability in s.21 permitted the court to convict the accuseds of a crime which required proof of specific intent as against the principal actor. The Court of Appeal held that this offended the principles of fundamental justice.
ISSUE: the possibility that a party to an attempted murder could be convicted upon proof of objective intent, whereas a conviction of the principal would require proof of subjective intent.
HELD: Appeal dismissed. The fact that conviction of an accused as a party to an offence might entail applying a lesser standard of mens rea than the standard applied in convicting the actual perpetrator did not render section 21 fundamentally unjust in all cases. It was first necessary to determine whether the crime charged required a minimum degree of mens rea. If there was no minimum criteria of mens rea, the objective component of section 21(2) would not result in a restriction of the accused's constitutional rights. Where the principles of fundamental justice required that there be a minimum standard of mens rea with respect to the offence charged, then that minimum degree of mens rea must also be proved with respect to the accomplice charged as a party to that particular offence. Attempted murder was an offence which required proof of the specific intent to kill. This required proof that the accused had the subjective foresight that the death of the victim was likely to ensue. The continuing social stigma associated with a conviction of murder was the crucial factor in elevating the requirement of specific intent mens rea to the level of a constitutional requirement. As section 21(2) merely required objective foresight ("ought to have known") of the party to the possibility of death as a result of the action taken by the principal, s.7 was infringed. The legislative objective behind section 21 was to deter joint criminal enterprises. An accused's rights were unduly impaired where section 21(2) allowed for conviction on a test of objective foreseeability where the offence charged required that a constitutionally required minimum degree of mens rea be proved.
Requisite mens rea for conviction pursuant to s.21(2)
The question whether a party to an offence had the requisite mens rea to found a conviction pursuant to s.21(2) must be answered in two steps:
(1) Is there a minimum degree of mens rea which is required as a principle of fundamental justice before one can be convicted as a principal for this particular offence?
· This is an important initial step because if there is no such constitutional requirement for the offence, the objective component of s.21(2) can operate without restricting the constitutional rights of the party to the offence.
(2) If the principles of fundamental justice do require a certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is constitutionally required to convict a party to that offence as well.
Case Analysis – Step 1: s.7 and Attempted Murder
- Ancio – established that a specific intent to kill is the mens rea required for a principal on the charge of attempted murder.
- R v Martineau – as a constitutional requirement, no one can be convicted of murder unless the Crown proves beyond a reasonable doubt that the person had subjective foresight of the fact that the death of the victim was likely to ensure. Because of both the stigma and the severe penal consequences which result from a conviction for murder, the Constitution requires at least that degree of intent.
- Stigma – the stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that, although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky – the ambulance arrived early, or some other fortuitous circumstance – but he still has the same killer instinct.
- Penalty – while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.
Case Analysis – Step 2: Mens Rea for Attempted Murder Pursuant to s.21(2)
- When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of men rea is constitutionally required to convict a party to the offence of attempted murder.
- To the extent that s.21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foresight, its operation restricts s.7.
- Even though Parliament has sought to achieve an important legislative objective by enacting the restriction in issue in this appeal and even though such restriction is rationally connected to that objective, s.21(1) does not satisfy the proportionality test of s.1 because it unduly impairs an accused’s right under s.7.
- The words “ought to know” allow for the possibility that while a party may not have considered and accepted the risk that an accomplice may do something with the intent to kill in furtherance of the common purpose, the party, through his negligence, could still be found guilty of attempted murder.
- Because of the importance of the legislative purpose, the objective component of s.21(2) can be justified with respect to most offences. However, with respect to the few offences for which the Constitution requires subjective intent, the stigma renders the infringement too serious and outweighs the legislative objective, which therefore cannot be justified under s.1
- I would declare inoperative the words “or ought to have known” when considering under s.21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder.
R v Briscoe [2010] SCC 13 (See above)
PRINCIPLE:
FACTS: Appeal by Briscoe from a decision of the Court of Appeal of Alberta overturning his acquittal on charges of kidnapping, rape and murder.
Three young persons and two adults were charged for their participation in the kidnapping, rape, and brutal murder of a 13-year-old girl. The two adults in the group, Briscoe and Laboucan, were charged jointly with kidnapping, aggravated sexual assault and first degree murder. Briscoe, Laboucan and the others lured two young victims into their car. Laboucan had said earlier in the day that he would like to find someone to kill. Briscoe drove the group to a secluded golf course. He then stood by and watched as the victim was raped and murdered. The trial judge concluded that Briscoe did not know of Laboucan's intention to commit each of the crimes and acquitted Briscoe. The Crown appealed Briscoe's acquittals to the Court of Appeal of Alberta. The Court of Appeal held that the trial judge erred in law by failing to consider whether Briscoe was wilfully blind to the harm his cohorts intended to cause the victim and set aside the acquittals.
HELD: Appeal dismissed. The mens rea requirement had two components: intent and knowledge. The Crown had to prove that the accused intended to assist the principal in the commission of the offence. It was not required that the accused desired that the offence be successfully committed. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider had to know that the perpetrator intended to commit the crime, although he or she did not need to know precisely how it would be committed. The aider and abettor of a murder did not need to have the same mens rea as the actual killer. It was sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acted with the intention of assisting the perpetrator in its commission. Wilful blindness did not define the mens rea required for particular offences. Rather, it could substitute for actual knowledge whenever knowledge was a component of the mens rea. The doctrine of wilful blindness imputed knowledge to an accused whose suspicion was aroused to the point where he or she saw the need for further inquiries, but deliberately chose not to make those inquiries. Briscoe's own statements to the police suggested that he had a strong, well-founded suspicion that someone would be killed that night and that he might have been wilfully blind to the kidnapping and prospect of sexual assault. The Court of Appeal rightly concluded that the trial judge's failure to consider Briscoe's knowledge from that perspective constituted a legal error which necessitated a new trial on all charges.
10. Counselling
An accused can be convicted of counselling offences, whether or not the offences counselled are actually committed. If the offences counselled are committed, CC s.22 operates. If they are not committed, CC s.464 operates.
CC. s.22(1) Person counselling offence – Where a person counsels another person to be party to an offence and that other person is afterwards a arty to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
(2) Idem – Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
(3) Definition of “counsel” – For the purposes of this Act, “counsel” includes procure, solicit or incite.
CC s.464 Counselling offence that is not committed – Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,
(a) Every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) Every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.
R v Hamilton (2005) 2 S.C.R. 432
PRINCIPLE: Mens rea of counselling requires that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.
FACTS: Appeal by the Crown from an acquittal of Hamilton on four counts of counseling indictable offences that were not committed. Hamilton sent e-mails to more than 300 people marketing the sale of "Top Secret Files" and software that would enable the purchaser to generate "valid" credit card numbers. Hamilton made at least 20 sales. The trial judge and the CA acquitted Hamilton on the basis that the Crown failed to demonstrate Hamilton had the required mens rea.
HELD: The mens rea necessary for the offence of counselling is that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware that the offence was likely to be committed. The trial judge's conclusion that Hamilton did not intend to induce his customers to use the numbers is incompatible with her finding that Hamilton knew that the use of the generated numbers was illegal. The judge erred in finding that Hamilton lacked intent because his motive was simply to make money. The trial judge confounded "motive" and "intent".
Note: the counselling consisted of providing the software to generate credit card numbers – counselling of fraud. The actual offence would be committed by the purchaser of the software who used the numbers.
Actus reus for Counselling – the deliberate encouragement or active inducement of the commission of a criminal offence.
· Counselling will be established where the materials or statements made or transmitted by the accused actively induce or advocate and do not merely describe the commission of the offence (R v Sharpe).
Mens rea for Counselling – consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.
“Intent” VS “Motive”
“It does not matter to society, in its efforts to secure social peace and order, what an accused’s motive was, but only what the accused intended to do”.
· i.e. It is no consolation to one whose care has been stolen that the thief stole the car intending to sell it to purchase food for a food bank.
· Thus, motive aids the prosecution in their effort to prove the intent (mens rea), but is not necessary for the purpose of the charge.
Applying Intent/Motive to the case
The trial judge’s assertion that “his motivation was monetary” immediately after her reference to these facts demonstrates an error of law as to the mens rea for counselling the commission of a crime, and warrants a new trial.
“I would for these reasons allow the appeal on the count for counselling fraud and order a new trial on that count.
11. Attempts
As the counselling offence in CC s.464 illustrates, not all crimes need to be complete before an offence arises. There is (1) the discrete offence of counselling, (2) the offence of conspiracy in which the agreement to commit a crime is a crime, and (3) there is liability for attempting to commit an offence. Ancio shows the relevant mens rea for attempts (in attempted murder – s.239), and Deustch is instructive on when the attempt proceeds far enough to constitute a crime. The fact that an offence is legally impossible in the factual circumstances is no defence to an attempt charge, but it is not an offence to try to commit an act you believe is an offence, when it is not actually an offence. Dery exposes the limits of piggy-backing incomplete forms of liability.
CC s.24(1) Attempts – Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) Question of law – The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
CC s.463 Attempts, accessories – (a)-(d)(i)(ii)
Commentary: This section provides a general punishment scheme upon conviction of attempt and accessory after the fact to certain offences ... The punishments, which are identical, are determined by reference to what may be imposed for the substantive offence.
Under s.463(a), where the substantive offence attracts a penalty of imprisonment for life, an attempt or accessoryship after the fact is an indictable offence punishable by imprisonment for a term not exceeding 14 years.
CC s.465 Conspiracy – (1)-(7)
Commentary: This section describes and punishes various conspiracy offences, and determines trial jurisdiction.
CC s.660 Full offences charged, attempt proved – Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
R v Ancio (1984) 1 S.C.R. 225
PRINCIPLE: The mens rea for attempted murder is the specific intent to kill.
FACTS: The accused had broken into premises occupied by his estranged wife and another man. He had in his possession a sawed-off shotgun which he had taken from an acquaintance's home. The male occupant heard noises and came to investigate, carrying a chair. He threw the chair at the accused. The gun discharged. No injury resulted. The accused claimed that his intention was to compel his wife to come with him to assist their son, and that the weapon was fired accidentally.
ISSUE: whether ss. 24 and 213(d) [now s.230(d) which is repealed], in combination, could form the basis for a conviction for attempted murder or whether the mens rea for attempted murder was limited to an intention to cause death, as distinct from an intention to cause bodily harm, knowing it to be likely to cause death.
HELD: The mens rea for attempted murder is the specific intent to kill. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent.
R v Deustch (1986) 2 S.C.R. 2
PRINCIPLE: If the accused has the requisite mens rea and if there is little else for the accused to do before embarking on the crime (actus reus), then the accused’s actions will be more than merely preparatory and guilty of attempt.
FACTS: The appellant had advertised for the position of secretary/sales assistant and conducted three interviews with women applicants and another interview with a police officer who posed as an applicant. In the interviews the appellant told the applicants that they would be expected to have sexual intercourse with clients and also said that a successful secretary/sales assistant could earn as much as $100,000 a year through commission or bonuses. The appellant did not make an offer of employment to the applicants or the police officer. The appellant was indicted for attempting to procure female persons to become common prostitutes, and attempting to procure female persons to have illicit intercourse with another person.
ISSUE: whether if there was the necessary intent, the acts of the appellant were mere preparation to commit the offence of procuring or whether any of them was a step in the commission of the offence.
HELD: This is a question of law. The Court agreed with the Court of Appeal that if the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with clients then the holding out of the large financial rewards in the course of the interviews would constitute the actus reus of an attempt to procure. Such inducement would be the decisive act in the procuring; there was little else the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment.
R v Dery (2006) S.C.J. No.53
PRINCIPLE: An attempt to conspire to commit a substantive offence is NOT an offence under Canadian law.
FACTS: DÚry and Savard were charged with conspiring to commit theft and conspiring to possess stolen liquor. The trial judge found that no agreement had been established between the two men to steal or possess liquor and acquitted them of conspiracy. However, finding their actions more than merely preparatory to conspiracy, the judge convicted them of attempting to conspire. DÚry appealed, and a majority of the Court of Appeal affirmed his convictions.
HELD: Appeal allowed. DÚry's convictions should be set aside and acquittals entered. An attempt to conspire to commit a substantive offence is not an offence under Canadian law. Acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. Given that conspiracy is essentially a crime of intention, it is difficult to reach further than the law of conspiracy already allows. Only agreement exposes the otherwise hidden criminal intentions of the parties to it and demonstrates their commitment to a prohibited act. By contrast, overt steps are thought necessary to disclose and establish with sufficient certainty the criminal intention that is an essential element of the attempt to commit an offence when someone acts alone. By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission. Early intervention through the criminalization of conspiracy is therefore both principled and practical. Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm. However, when applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.
In order to establish the commission of the offence of attempted robbery charged, it was necessary for the Crown to prove that the respondents:
(i) Intended to do that which would in law amount to the robbery specified in the indictment (mens reas), and
(ii) Took steps in carrying out that intent which amounted to more than mere preparation (actus reus).
By virtue of s.24(2), the existence of element (i) is a question of fact, but whether the steps taken are sufficient to satisfy element (ii) is a question of law.
Lack of intent (mens rea) to commit robbery
· In the present case, there was no evidence of the intent to rob other than that furnished by the acts relied on as constituting the actus reus. There was no extrinsic evidence in the form of statement of intention, or admissions by the respondents showing what their intention was.
· The prosecution in this case was forced to rely exclusively upon the acts of the accused, not only to constitute the actus reus, but to supply the evidence of the necessary mens rea.
· In our view, the trial judge’s reasons are more consisted with a finding that the necessary intent to commit robbery was not proved beyond a reasonable doubt, than with a finding that such intent was established by the evidence. In any event, the Crown has not satisfied us that the trial judge found the existence of an intent to rob.
12. Corporate and Association Liability
Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the actus reus alone, there is no need to use any legal devices to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do not apply to regulatory offences. For true crimes the Criminal Code sets out standards for corporate and association liability. s.22.1 applies to objective fault or negligence offences where an association is charged, and s.22.2 applies to subjective mens rea offences charged against an association.
NOTE: THE FOLLOWING CASE AND EXPLAINATION WAS NOT IN THE SYLLIBUS, THUS, IT IS NOT NECESSARY TO KNOW
The massive width of these new provisions becomes clearer when one reads the definitions in s.2 CC of the terms “organization” and “senior officer”. The responsibility of the organization is no longer dependant on establishing fault in the “directing mind” (Canadian Dredge and Dock Co. v R below) but extends to a much lower level.
Canadian Dredge and Dock Co. v R (1985) 1 S.C.R. 662
PRINCIPLE: “Identification doctrine” – culpability for acts and mental states of a corporation can be represented by employees/officers on the basis that they are the “directing mind” of the corporate entity.
FACTS: Four corporations, including Canadian Dredge & Dock Company, were charged with conspiring to rig bids for government contracts under section 338(1) and 423(1)(d). The offences related to bid-rigging in the submission of tenders for dredging the St. Lawrence river.
Accused corporations’ arguments: criminal liability could not be imposed on them because the managers were either acting in fraud of their corporations for their own benefit, or were acting outside the scope of their employment. They also challenged the existence of any theory of corporate criminal liability for mens rea offences.
HELD: The appeals were dismissed. The accused corporations were criminally liable on the basis of the identification theory. The company was liable even in mens rea offences if the manager or other person who acted for the company was the directing mind of the company in the sphere of duty assigned to him so that his actions and intent were the action and intent of the company itself. The wrongful act of the agent was attributed to the principal, thus creating primary rather than vicarious liability. The fact that in this case the manager or agent acted in breach of instructions, or acted partly or wholly for his own benefit, or acted outside the scope of his duty, or defrauded the company did not remove the company's criminal liability. Liability could arise irrespective of express prohibition of the conduct in question. Identification of the directing mind with the corporation rendered the prohibition of no effect in law for determining the criminal liability of the directing mind or of the corporation. In this case the actions taken by the managers were within the scope of their duties, not totally in fraud of the companies, but resulting partly or wholly for the benefit of the companies. The conditions for the operation of the identification theory had thus been satisfied.
· The SCC adopted the English “identification doctrine” for liability, which states that culpability for acts and mental states of a corporation can be represented by employees and officers on the basis that they are the “directing mind” of the corporate entity. This principle was later elaborated on in The Rhone v The Peter A.B. Widener (1993).
· A corporation may, by this means, have more than one directing mind. This must be particularly so in a country such as Canada where corporate operations are frequently geographically widespread.
· However, the Court also noted that the identification doctrine could not be used where the criminal act of the directing mind had been totally in fraud of the corporation or where the act was intended to, or did result in, benefit exclusively to the directing mind.
Absolute Liability Offences
No particular state of mind is a prerequisite to guilt. Corporations and individual persons stand on the same footing in the face of such a statutory offence. The corporation is treated as a natural person.
Offences of Strict Liability
Subject to the defence of due diligence. It matters not whether the accused is corporate or unincorporated. The corporation and the natural defendant are in the same position.
Offences Requiring Mens Rea
There are certain crimes which cannot in any real sense be committed by a corporation as a principal, such as perjury and bigamy, whatever the doctrine of corporate criminal liability may be.
As a corporation may only act through agents, there are basically only three approaches whereby criminal intent could be said to reside or not reside in the corporate entity:
(i) “A total vicarious (taking the place of another) liability for the conduct of any of its agents whatever their level of employment or responsibility so long as they are acting within the scope of their employment”;
· Corporation is responsible due to act of employee if employee is simply doing what was required under their employment terms.
(ii) “No criminal liability unless the criminal acts in question have been committed on the direction or at last at the request, express or clearly implied of the corporation as expressed through its board of directors”;
· Corporation is responsible due to act of employee if employee simply does something implied by the corporation or requested by its board of directors.
(iii) The corporation will be “criminally liable so long as the employee or agent in question is of such a position in the organization and activity of the corporation that he or she represents its de facto directing mind, will, centre, brain area or ego so that the corporation is identified with the act of that individual”. There will be no responsibility through vicarious liability ... “but rather a liability arising in criminal law by reason of the single identity wherein is combined the legal entity and the natural person; in short, a primary liability.
· “Identification doctrine” – culpability for acts and mental states of a corporation can be represented by employees/officers on the basis that they are the “directing mind” of the corporate entity.
SELECT CRIMINAL DEFENCES
Not all criminal defences are listed below. For example, s.25 CC permits law enforcement personnel to use some force to carry out their duties, s.40 permits the defence of property, and there is a general de minimis non curat lex defence gaining recognition that can be used to resist prosecution for trivial legal violations (It has been restated as "the law does not concern itself with trifles". The defence of provocation is a partial defence to murder alone. There are also procedural defences such as entrapment, and double jeopardy. Charges can be “stayed” pursuant to ss.11(b) and 24 of the Charter because of unreasonable delay.
13. Mental Disorder (Defence)
s.16 of the CC modifies the common law defence of insanity. To have access to this defence the accused must establish that he has a “mental disorder” as defined by the case law and that it affected him in one or both of the ways described in s.16(1). R v Cooper provides a definition of mental disorder, although it has been modified by R v Park (discussed below). Cooper also stresses the significance of the concept of “appreciates” while R v Kjeldson describes how the defence works for sociopathic or psychopathic offenders. R v Oommen edifies us about the meaning of “wrong”.
CC s.16(1) Defence of mental disorder – No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Presumption – Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) Burden of Proof – The burden of proof that an accused was suffering from a mental disorder so as to exempt from criminal responsibility is on the party that raises the issue.
R v Cooper (1980) 1 S.C.R. 1149
PRINCIPLES:
“Disease of the mind” – “Disease of the mind” is a legal term embracing any illness, disorder or abnormal condition that impairs the human mind and its functioning. Excluded are self-induced states caused by alcohol or drugs, or transitory mental states such as hysteria or concussion. A personality disorder may be a disease of the mind if it meets either test of s.16(1).
· Once the evidence is sufficient to indicate that an accused suffers from a condition which could, in law, constitute disease of the mind, the Judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed.
AND
“appreciating the nature and quality of the act” TEST – was D, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the physical consequences of the act.
FACTS: The appellant, an out-patient at the Hamilton Psychiatric Hospital, was charged with the murder of an in-patient. There was evidence that the appellant had been drinking during the day. That evening he arrived at a dance held at a nearby church for patients of the hospital, and met an acquaintance, the victim. At his invitation, the two left to seek a bottle of pop and cigarettes. Ultimately, after an unsuccessful attempt at sexual intercourse the appellant chocked the deceased which caused the death.
ISSUE: whether there was evidence from which a properly charged jury could conclude, that the appellant had disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was charged or of knowing that it was wrong.
OR/AND
The question which arose for determination on this appeal related to the obligation of a trial judge to charge the jury on insanity in circumstances where an accused had a lengthy psychiatric history but the medical evidence was that he did not suffer from "disease of the mind".
HELD: The appeal was allowed and a new trial ordered. s.16 did not set out a test of insanity but rather set out the criteria to be taken into account in determining criminal responsibility. The term "disease of the mind" was a legal concept, although it included a medical component, and what was meant by that term was a question of law for the judge. It was within the province of the judge to determine what mental conditions were within the meaning of that phrase and whether there was any evidence that an accused suffered from an abnormal mental condition comprehended by that term. The trial judge in this case fell into error in that she confused the legal issue of whether the accused's disorder could constitute disease of the mind with the factual issue of whether the accused was suffering from a disease of the mind but whether he was capable of appreciating the nature and quality of the act. This question ought to have been left to the jury in clear terms. The trial judge erred in failing to review adequately the evidence bearing upon the insanity issue and in failing to relate the evidence of the accused's capacity to intend certain acts to the issue of insanity.
Disease of the Mind
· R v Kemp (England) – “Doctors’ personal views are not binding on me”.
· Bratty v A.G. for Northern Ireland (England) – the question of whether an accused suffers from a disease of the mind is properly resolved by the Judge.
· In summary, one might say that, in a legal sense, “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states (non-permanent) such as hysteria or concussion.
· In order to support a defence of insanity, the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.
· Once the evidence is sufficient to indicate that an accused suffers from a condition which could, in law, constitute disease of the mind, the Judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed.
R v Kjeldson (1981) 2 S.C.R. 617
PRINCIPLES:
“Appreciates” – The absence of appropriate feelings about conduct is not a lack of appreciation.
· to be capable of appreciating the nature and quality of his acts, the appellant had to not only have the capacity to know what he was doing (i.e. know that he was hitting the woman on the head with a rock), but also to have the capacity to estimate and understand the physical consequences of his act (i.e. that he was causing physical injury which would result in death).
AND
Psychopathy was a disease of the mind within the meaning of s.16
FACTS: The appellant had killed the victim after raping her, by delivering several blows to her head with a large rock, shattering her skull. The only defence at trial was insanity. Two defence psychiatrists and three Crown psychiatrists all were of the opinion that the appellant was a dangerous psychopath with sexually deviant tendencies. They differed, however, in their opinions as to whether the appellant was capable of appreciating the nature and quality of his acts.
ISSUE: whether appreciates includes the ability to comprehend appropriate feelings of the victim or whether it is limited to only understanding the physical consequences of the accused’s actions.
Defence psychiatrists: assumed that the word "appreciate" meant an ability to foresee not only the physical consequences of his acts but the emotional reactions of his victim as well. They were of the opinion that the appellant was incapable of "appreciating" when used in this sense. Trial Judge’s charge: The trial judge instructed the jury that the accused need only be capable of understanding the physical consequences of his acts.
The jury convicted the appellant of first degree murder. The Alberta CA substituted a verdict of second degree murder but held that the trial judge's charge on the insanity issue was proper.
HELD: The appeal was dismissed. The trial judge concluded, as a matter of law, that psychopathy could be a "disease of the mind" and he therefore made no error in leaving the issue as to whether the appellant, as a matter of fact, was a psychopath. The trial judge also made it clear to the jury that to be capable of appreciating the nature and quality of his acts, the appellant had to not only have the capacity to know what he was doing, in this case to know that he was hitting the woman on the head with a rock, but also to have the capacity to estimate and understand the physical consequences of his act, in this case that he was causing physical injury which would result in death. The trial judge was correct in limiting the scope of "appreciate" to physical consequences.
· “While I am of the view that s.16(2) exempts from liability an accused who by reason of disease of the mind has no real understanding of the nature, character and consequences of the act at the time of its commission, I do not think the exemption provided by the section extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim of lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from “disease of the mind”.
R v Oommen (1994) 2 S.C.R. 507
PRINCIPLE:
“Knowing that it was wrong” in s.16(1) – D is exempt from criminal responsibility where, at the time of the act, a mental disorder deprived D of the capacity for rational perception, hence rational choice about the rightness or wrongness of the act.
FACTS: The accused was suffering from a mental disorder causing paranoid delusion at the time of the killing. He believed that the victim was party to a conspiracy to kill him.
ISSUE: whether the disorder rendered the accused incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
HELD: Appeal dismissed. There was evidence to support the conclusion that the accused was deprived of the capacity to know his act was wrong. The accused believed that he was in imminent danger and that the killing was, therefore, justified. Also, s.16 is an independent condition of criminal responsibility, It was not necessary to show that the defence of self-defence would also apply.
· “The question is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. Does the accused possess the capacity present in the ordinary person to know that the act was wrong having regard to the everyday standards of the ordinary person?”
14. Voluntary Acts “Negativing” the Actus Reus and Automatism
As indicated above, the accused does not satisfy the actu reus requirement unless his act is willed. Some courts have acquitted individuals who reflexively strike out, using the specious (apparently good or right but lacking real merit) reasoning that their physical act was not willed, but the legitimacy of this reasoning is questionable. A more sophisticated application of the voluntariness concept was employed in R v Swaby.
It is the “voluntariness” concept that explains the defence of automatism, which operates on the theory that the accused’s physical motions were not culpable where they are not voluntary or thought-directed or conscious, as in the sleep-walking case of R v Parks. Please note that automatism will not realistically operate in any case where the accused appears conscious of his conduct – it is reserved to those unusual cases where there appears to be some disconnect between the actions of the accused and his conscious will. The result of the Parks decision was controversial enough that the SCC took procedural steps to cut the defence back in R v Stone, although in R v Fontaine some of the excessive language of Stone was qualified by the Court.
Note that “automatism” is divided into two categories, “insane (or mental disorder) automatism” and “non-insane (non-mental disorder) automatism”. Where a court finds “insane automatism” the real defence it is applying is “mental disorder”, since an accused person who is automatistic because of a disease of the mind cannot appreciate the nature and quality of his act or have the capacity to understand that the act is wrong. If the defence that applies is “non-insane automatism”, a complete acquittal is appropriate, although Stone has stacked the deck against this kind of defence succeeding.
R v Swaby (2001) O.J. No. 2390 (Ont. C.A.)
PRINCIPLE: The requirement for voluntary conduct applies even if the provision creating the offence does not expressly require one.
FACTS: Acting on a confidential tip, police officers followed a car driven by the accused in which Johnson (who had a long criminal record) was a passenger. The car stopped and Johnson ran into a nearby backyard. Swaby, the accused, drove off. Both me were arrested shortly after. The police found a loaded handgun in the backyard. Swaby was convicted of being an occupant in a vehicle knowing there was present an unlicensed, restricted weapon contrary to s.91(3) CC. According to J’s testimony the gun was the accused’s and he gave it to J to dispose of. According to the accused the gun was J’s and he only learned of it after the arrest.
HELD: The Crown had to prove occupancy of the vehicle and knowledge. It also had to prove that the occupancy and knowledge occurred because of Swaby's voluntary conduct. If Swaby learned about the weapon while the vehicle was in motion, he had to be given a reasonable opportunity to remove himself or the weapon from the vehicle. If he only learned about the weapon when Johnson left he would be acquitted.
· “To establish guilt on this count, the Crown had to prove the coincidence of the two essential elements of the offence as defined by s.91(3), namely occupancy of the vehicle and the appellant’s knowledge of the weapon. In my view, it is implicit as well that the Crown had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the appellant. Although the section under which the appellant was charged contained no explicit defence in the terms, it must be interpreted so as to exclude the possibility of conviction for what would amount to an involuntary act.
· Voluntary conduct is a necessary element for criminal liability. The requirement for voluntary conduct applies even if the provision creating the offence does not expressly require one. There is no general Code stipulation that the guilty act be voluntary. The requirement exists by virtue of judicial reasoning”.
R v Parks (below)
Although automatism is spoken of as a “defence”, it is conceptually a subset of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability.
R v Stone (1999) 2 S.C.R. 290 (below)
· “I prefer to define automatism as a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”
· “Voluntariness, rather than consciousness, is the key legal element of automatistic behaviour since a defence of automatism amounts to a denial of the voluntariness component of the actus reus”.
R v Rabey (1980) 2 S.C.R. 513 (disassociated state)
PRINCIPLES: Definition of “Automatism” AND absence of volition, as in automatism, is always a defence AND an involuntary defence, as automatism, entitles a complete and unqualified acquittal AND what constitutes a “disease of the mind” is a question of law, but the trier of fact will determine if it has occurred in a given case.
· “Automatism is a term used to describe unconscious, involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he is doing. It means an unconscious involuntary act, where the mind does not go with what is being done”.
· “...it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question”.
· “Although spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act”.
· The general rule is that it is for the judge as a question of law to decide what constitutes a “disease of the mind”, but that the question of whether or not the facts in a given case disclose the existence of such a disease is a question to be determined by the trier of fact.
R v Parks (1992) 2 S.C.R. 871 (Sleepwalking)
PRINCIPLE: sleepwalking is not a ‘disease of the mind’ AND the defence of insanity should only be put to the jury if disease of the mind is present AND recurrence is a factor to aid in determining disease of the mind.
FACTS: The respondent drove to the resident of his parents-in-law, killed one and seriously injured the other. He then notified the police. The respondent argued that he was sleepwalking throughout the incident and pleaded automatism. The jury acquitted him of first degree and then of second degree murder. The Crown argued that sleepwalking should be classified as a disease of the mind giving, rise to the verdict of not guilty by reason of insanity.
ISSUE: At issue here is a question of law: is sleepwalking properly classified as non-insane automatism, or does it stem from a disease of the mind, thereby leaving only the defence of insanity for the accused?
HELD: Appeal dismissed. Medical experts testified that sleepwalking was not an illness but a sleep disorder. In the present case, it was not sleepwalking that was the cause of the respondent's state of mind, but sleep, which was a natural condition. There was thus no basis on which the trial judge could have put the defence of insanity before the jury. The Crown failed to prove that somnambulism stemmed from a disease of the mind. There was no likelihood of recurrent violent somnambulism.
Sleepwalking
· This Court has only ruled on sleepwalking in an obiter dictum in R v Rabey. The Court found that sleep walking was not a “disease of the mind” in the legal sense of the term and gave rise to a defence of automatism.
· Bratty v AG for Northern Ireland (1963) (England) – sleepwalking gave rise to a defence of automatism.
· “... the expert witnesses unanimously stated that at the time of the incidents the respondent was not suffering from any mental illness and that, medically speaking, sleepwalking is not regarded as an illness, whether physical, mental or neurological. They also unanimously stated that a person who is sleepwalking cannot think, reflect or perform voluntary acts”.
· “Dr. Broughton indicated that he had never known of sleepwalkers who had acted violently and who had repeated this kind of behaviour.
THUS, the trial judge did not err in leaving the defence of automatism rather than that of insanity with the jury, and that the instant appeal should be dismissed. BUT, “This is not to say that sleepwalking could never be a disease of the mind, in another case on different evidence”.
Recurrence as a factor to consider to constitute disease of the mind
La Forest J. (five justices concurring): Recurrence is but one of a number of factors to be considered in the policy phase of the disease of the mind inquiry. Moreover, the absence of a danger of recurrence will not automatically exclude the possibility of a finding of insanity.
R v Stone (1999) 2 S.C.R. 290 (“psychological blow” automatism, i.e. provoking words)
PRINCIPLE: If the trial judge concludes that the condition is not a ‘disease of the mind’, ONLY the defence of non-insane automatism could be put to the jury AND Burden of proof for any defence of automatism is upon the defence AND Automatism types vs Insanity sentencing.
FACTS: Stone was charged with murder for the stabbing death of his wife. He admitted stabbing her but claimed it was involuntarily done while he was in an automatistic state brought on by his wife's insults. At trial, he testified that he felt a whooshing feeling go over him, and that when his eyes focused, he felt and saw a knife in his hand, and looked down and saw his wife slumped over. He disposed of the body in his truck, drove home, wrote a note, and left for Mexico, where he claimed that he dreamed and remembered stabbing his wife twice in the chest before the whooshing feeling. Stone's defences were insane and non-insane automatism, lack of intent, or provocation. The trial judge found that a proper foundation for an automatism defence was established; but, he refused to instruct the jury on non- insane automatism. Stone was convicted of manslaughter and sentenced to seven years imprisonment. The British Columbia Court of Appeal upheld the conviction and dismissed the Crown's sentence appeal.
ISSUE: whether non-insane automatism should have been left with the jury.
HELD: Appeals dismissed. There was no substantial wrong or miscarriage of justice when the trial judge did not put the non-insane automatism defence to the jury. Both non-insane and insane automatism were recognized at law. Stone had to establish a proper foundation for an automatism defence and then the trial judge had to determine whether Stone's condition was mental disorder or non-mental disorder automatism. Placing the burden on the defence did not violate the Canadian Charter of Rights and Freedoms. If the trial judge concluded that the condition was not a disease of the mind, only the defence of non-insane automatism would be put to the jury. However, if the trial judge found that there was a disease of the mind, only insane automatism was put to the jury. Here, the trial judge reached the correct result in finding there was a disease of the mind.
Burdens of Proof Applied in Automatism
· “The law presumes that people act voluntarily. Accordingly, since a defence of automatism amounts to a claim that one’s actions were not voluntary, the accused must rebut the presumption of voluntariness”.
· “... the legal burden in cases involving automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact”.
· The defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion.
Disease of the Mind
The question of whether the accused actually suffered from a disease of the mind is a question of fact to be determined by the trier of fact (Rabey).
The evidence in this case raised only one alleged causes of automatism, Mrs Stone’s words. Based on this evidence, the trial judge found that only mental disorder automatism should be left with the jury.
Insanity VS Automatism (Why argue one over the other?)
Insanity = Guilty by reason of insanity (since disease of the mind which requires special care since the accused is suffering, most likely, from a recurring problem and needs treatment)
VS
Automatism = complete and unqualified acquittal (since actions are involuntary). BUT:
· Mental disorder automatism – will result in a verdict of not criminally responsible on account of mental disorder as dictated by s.672.34. Under s.672.54, an accused who received this qualified acquittal may be discharged absolutely, discharged conditionally or detained in a hospital.
· Non-mental disorder automatism – will always result in an absolute acquittal.
Court qualified the approach in Stone:
R v Fontaine (2004) 1 S.C.R. 702
PRINCIPLE: The TEST whether to put a defence of mental disorder automatism (insane automatism) to the jury – whether there was any evidence in the record upon which the jury, properly instructed and acting judicially, could reasonably conclude that the defence of automatism by reason of mental disorder had been made out.
· NOTE – this modifies the approach in Stone which required there to be a ‘disease of the mind’ before the defence could be put before the jury.
FACTS: The accused worked as a garage mechanic. He received a call from R, a disgruntled former employee, who said, "We're coming to get you, pigs." The accused later heard from a co-worker that the victim had been offered a contract to kill both of them. Feeling that he was being watched and followed, the accused purchased a firearm. One evening, the accused thought he saw R lurking outside his home. The co-worker came by to check, but noticed nothing unusual. During the night, after smoking marijuana, the accused thought he heard someone breaking into his home. He fired the gun at doors and windows and into walls and concluded that he had shot the intruders. Seeing the victim at the garage the next day, the accused shot and killed him. Before a judge and jury, the accused pleaded mental disorder automatism. Several psychiatrists gave evidence. The judge, applying R v Stone, refused to put the mental disorder automatism defence to the jury on the ground that there was no evidence that would allow a properly instructed jury to conclude on a balance of probabilities that the accused had acted involuntarily.
The accused was convicted of first degree murder. The Court of Appeal quashed the conviction and ordered a new trial.
ISSUE: whether the accused was entitled to have his defence of mental disorder automatism put to the jury.
HELD: The accused’s defence of mental disorder automatism should have been put to the jury. If there is some evidence upon which a properly instructed jury could reasonably conclude that an accused probably perpetrated the alleged criminal act in a state of automatism, the evidential burden has been discharged and the defence is in play before the jury.
“Evidential” and “Persuasive” Burdens
Evidential burden – is not a burden of proof. It determines whether an issue should be left to the trier of fact.
- It is a matter of law. Accordingly, on a trial before judge and jury, the judge decides whether the evidential burden has been met. In answering that question, the judge does not evaluate the quality, weight or reliability of the evidence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue.
- It is a question of fact.
- In the case of "reverse onus" defences, such as mental disorder automatism, it is the accused who bears both the persuasive and the evidential burdens. In these defences, the persuasive burden is discharged by evidence on the balance of probabilities. As regards all affirmative defences, the evidential burden will be discharged where there is some evidence that puts the defence "in play"; the defence will be in play whenever a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused.
- Where mental disorder automatism is raised as a defence, an assertion of involuntariness on the part of the accused, supported by evidence from a qualified expert which, if accepted by the jury, would tend to support that defence, will normally provide a sufficient evidentiary foundation for putting the defence to the jury.
Applying the law to the facts, the Court of Appeal did not err as to the nature of the evidential burden on a defence of mental disorder automatism, nor did it err in concluding that the accused had discharged that burden and was entitled to have his defence considered and decided by the jury. The accused gave evidence tending to establish that he was acting involuntarily at the time of the offence. He also adduced expert evidence to support his own testimony. The evidence clearly went beyond a mere allegation of the existence of a defence. It included a relatively detailed description of the accused's perception of the facts at the moment of the criminal act. The main defence expert, a psychiatrist, concluded that the accused was suffering, at the time of the offence, from a psychotic episode induced by substance abuse. According to the expert, at the relevant times the accused was "seeing things" and making pathological connections between people, situations and events. Taken as a whole, this evidence was sufficient to discharge the accused's evidential burden on his defence of mental disorder automatism.
TEST whether to put a defence of mental disorder automatism (insane automatism) to the jury
whether there was any evidence in the record upon which the jury, properly instructed and acting judicially, could reasonably conclude that the defence of automatism by reason of mental disorder had been made out.
15. Simple Intoxication
Intoxication does not operate as a justification or excuse for criminal conduct. This so-called defence of intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in reasonable doubt over whether the accused formed the relevant mens rea. The law is hostile to this claim. It therefore limits the defence to “specific intent” offences. Thus, for “general intent” offences, the question of whether the accused had the relevant mens rea will be assessed on the assumption that the accused was not intoxicated – even if he was. In other words, the law of simple intoxication operates less as a defence than as a way of limiting cases where the judge or jury can factor intoxication into mens rea determinations. The concept of a “specific intent” and “general intent” offence is described in the extreme intoxication case of R v Daviault below. Please note that in Canada, the inquiry is no longer into “capacity to form the intent” as it was in common law England – the defence applies if intoxication prevents the formation of the specific intent required by the relevant section.
R v Bernard (1988) 2 S.C.R. 833
PRINCIPLE: sexual assault causing bodily harm, s.272(c), is a general offence crime AND the Leary Rule is upheld – drunkenness is no defence to general intent offences, only to specific intent offence.
FACTS: The accused was charged with sexual assault causing bodily harm contrary to s. 246.2(c) [now s.272(c)], tried by judge and jury and found guilty. He admitted forcing the complainant to have sexual intercourse with him and stated that his drunkenness caused the attack on her. The Ontario CA dismissed an appeal from conviction, holding that the offence of sexual assault causing bodily harm was an offence of general intent, to which the defence of drunkenness did not apply. The accused appealed.
ISSUE: whether sexual assault causing bodily harm, s.272(c), is an offence requiring proof of specific or of general intent.
HELD: sexual assault causing bodily harm, s.272(c), creates an offence of general rather than specific intent, requiring only the minimal intent to apply force. In most cases involving general intent offences and intoxication the Crown will be able to establish the accused’s blameworthy mental state by inference from his or her acts, which is the case here.
· By his own admission the accused had sufficient wits about him after the violent assault to hide a bloodied towel and pillowcase from the police. There is no evidence that we are dealing here with extreme intoxication, verging on insanity or automatism, and as such capable of negating the inference that the minimal intent to apply force was present.
Distinction between “General intent” and “Specific intent”
General intent – the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose.
· i.e. The minimal intent to apply force in the offence of common assault.
Specific intent – involves the performance of the actus reus, coupled with an intent or purpose
going beyond the mere performance of the questioned act.
· i.e. Striking a blow or administering poison with the intent to kill, or assault with intent to maim or would.
This difference is best illustrated by a consideration of the relationship between murder and manslaughter:
He who kills intending to kill or cause bodily harm is guilty of murder, whereas he who has killed by the same act without such intent is convicted of manslaughter.
· THUS, drunkenness is a defence to murder (specific intent), however, it will become manslaughter (general intent).
Applying Intoxication as a Defence to General and Specific Intent Offences
Specific intent – where the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged, drunkenness may be a defence to a criminal act.
General intent – drunkenness as a defence has no application.
Leary v The Queen (1978) 1 S.C.R. 29 – rape is a crime of general intention as distinguished from specific intention, a crime therefore “in which the defence of drunkenness can have no application”.
· Leary Rule – drunkenness is no defence to a general intent offence.
Justifying the Leary Rule
· The effect of excluding the drunkenness defence from such offences is merely to prevent the accused from relying on his self-imposed drunkenness as a factor showing an absence of any necessary intent.
· While this Court has consistently recognized the basic proposition that an accused person should not be subject to criminal sanction unless the Crown shows the existence of a blameworthy or criminal mental state associated with the actus reus of the crime, it does not follow that a person who so deprives himself by the voluntary consumption of alcohol or a drug of the normal power of self-restraint that a crime results, should be entitled to an acquittal.
· I must reemphasize that the Leary rule does not relieve the Crown from its obligation to prove the mens rea in a general intent offence.
· “They cannot be heard to say: ‘I was so drunk that I did not know what I was doing’. If they managed to get themselves so drunk that they did not know what they were doing, the reckless behaviour in attaining that level of intoxication affords the necessary evidence of the culpable mental condition. Hence, it is logically impossible for an accused person to throw up his voluntary drunkenness as a defence to a charge of general intent. Proof of his voluntary drunkenness can be proof of his guilty mind.
· When the Leary rule is applied in this case the Crown must still prove beyond a reasonable doubt the existence of the required mental element of the intentional application of force. The offence cannot be said to be one of absolute liability in the sense that no mental element has to be proved in order to obtain a conviction.
Wilson (concurring) – The “Wilson compromise”
“I view it as preferable to preserve the Leary rule in its more flexible form, so as to allow evidence of intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence”.
R v Robinson (1996) 1 S.C.R. 683
PRINCIPLE: Before a trial judge may charge the jury on intoxication, s/he must be satisfied that the effect of the intoxication effected the accused’s foresight of consequences sufficiently to raise a reasonable doubt.
FACTS: The accused was convicted of second degree murder. He had struck the victim with a rock after the victim said something to him. He then fatally stabbed him. He argued that he acted without intent because he was intoxicated. There was evidence that the accused had consumed a considerable amount of alcohol before the alleged killing. The accused appealed his conviction on the basis that the trial judge erred in his directions to the jury respecting how the jury could use the evidence of intoxication as it related to the requisite intent for murder.
ISSUE: whether the Court should overrule the Beard rules of intoxication.
HELD: The Beard rules that intoxication was not a relevant factor to consider except where the intoxicant removed the accused's capacity to form the requisite intent should be overruled. These rules violated ss.7 and 11(d) of the Charter because they created a form of constructive liability that had been outlawed. Once a trial judge was satisfied that intoxication might have impaired the accused's foresight of consequences sufficient to raise a reasonable doubt, the judge must instruct the jury to consider whether the Crown showed beyond a reasonable doubt that the accused had the requisite intent. The trial judge erred in failing to instruct the jury that they were entitled to consider whether, in light of the intoxication evidence, the accused had the requisite intent in fact. The trial judge made a reversible error in failing to link the intoxication evidence with the inference that a sane and sober person intends the natural consequences of his actions.
· “I am of the view that before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt. Once a judge is satisfied that this threshold is met, he or she must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent”.
o i.e. “In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death”.
16. Extreme Intoxication
This defence was created in R v Daviault under the influence of the Charter. Extreme intoxication is distinct from the simple intoxication defence. Where extreme intoxication applies, it can operate as a defence to any offence, whether specific intent or general intent. The theory behind the defence is that a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Scientifically, the premise that this can happen is controversial, although Daviault recognized that if this were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice. Daviault was so controversial that Parliament immediately enacted s.33.1 CC to eradicate the defence in sexual offence and violence cases. This means that, subject to Charter challenge [Canadian courts are split on whether s.33.1 is constitutionally valid] extreme intoxication can only be used for other kinds of offences. Be aware that nothing in s.33.1 abolishes the defence of simple intoxication – it limits only the defence of extreme intoxication.
Modified the decision in Bernard:
R v Daviault (1994) 3 S.C.R. 63
PRINCIPLE: SCC adopted the Wilson compromise that extreme intoxication akin to automatism or insanity had, under the Charter, to be a defence to general intent crimes such as sexual assault AND the accused bears the burden of proof of extreme intoxication which requires expert testimony.
FACTS: The appellant, a chronic alcoholic, allegedly grabbed the 65-year-old complainant, who was a friend of the appellant's wife, out of her wheel chair, threw her on her bed and sexually assaulted her. The appellant claimed he had been drinking heavily on the day in question and had no recollection of what had happened when he woke up in the complainant's bed. An expert hypothesized, based on the consumption of alcohol by the appellant that day, that his blood alcohol content would have been between .4 and .6 and that a blackout might be suffered by a person with this much alcohol in their system.
ISSUE: whether extreme drunkenness can be a defence to general intent offences.
HELD: Appeal allowed and a new trial ordered. The rule that the mens rea of a general intent offence could not be negated by drunkenness offended sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. An intention to become intoxicated was not an intention to commit a sexual assault and did not establish the requisite mens rea. However, the court commented that given the minimal nature of the mental element required for general intent offences, even significant intoxication would generally not prevent the formation of the required mens rea. Extreme intoxication comparable to automatism or insanity had to be proven by the accused on a balance of probabilities, which usually meant the testimony of an expert witness, as in this case. While such a burden infringed an accused's rights under section 11(d) of the Charter, it was justified under section 1.
How the Leary Rule Violates ss.7 and 11(d) of the Charter
The rule that self-induced automatism cannot be a defence has never been subjected to a Charter analysis.
· The result of the decision in Leary, applied to this case, is that the intentional act of the accused to voluntarily become intoxicated is substituted for the intention to commit the sexual assault or for the recklessness of the accused with regard to the assault. This is a true substitution of mens rea.
· The substituted mens rea of intention to become drunk cannot establish the mens rea to commit the assault.
· Mens rea for a crime is so well-recognized that to eliminate that mental element, an integral part of the crime, would be to deprive an accused of fundamental justice.
· The presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime. These elements include the mental element of voluntariness. That element cannot be eliminated without violating ss.11(d) and 7 of the Charter.
· Voluntary intoxication is not yet a crime. It is difficult to conclude that such behaviour should always constitute a fault to which criminal sanctions should apply.
· A person intending to drink cannot be said to be intending to commit a sexual assault.
· A person in a state of automatism cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such an act. It follows that someone in an extreme state of intoxication akin to automatism must also be deprived of that ability. Thus a fundamental aspect of the actus reus of the criminal act is absent. It would equally infringe s.7 if an accused who was not acting voluntarily could be convicted of a criminal offence. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault
Reverse Onus
· Since the defence will only be put forward in those rare circumstances of extreme intoxication, I would suggest that the accused should be called upon to establish it on the balance of probabilities. Although the reverse onus constitutes a violation of the accused’s s.11(d) rights, such a burden could be justified under s.1. It is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him. Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking.
Parliament’s response to Daviault
CC s.33.1 – Extreme intoxication is no defence to crimes where the accused interfered or threatened to interfere with the bodily integrity of another, i.e. sexual assault and violent offences.
17. Defence of the Person
Self-defence is a complex defence in Canada. There are four separate but potentially overlapping statutory defences. All of the defences apply where the accused is being unlawfully assaulted, or reasonably believes he is about to be unlawfully assaulted but each of the four separate offences has its own additional requirements that must be satisfied.
s.34(1) – applies where the accused does not provoke the assault being defended against, and defends against it without intending to cause death or grievous bodily harm, whether or not death of grievous bodily harm is caused.
s.34(2) – applies whether or not the accused provoked the assault being defended against and intends to cause death or grievous bodily harm.
s.35 – applies where the accused provoked the assault, but this defence has lost much of its relevance given that s.34(2), which is less restrictive than s.35, can be used where assaults are provoked. The concept of provocation is defined for the purposes of self-defence in s.36.
s.37 – operates as a general defence that is broad enough to subsume the other defences but courts tend not to use it if any of the other provisions apply.
Pintar explains the relationship between ss.34(1) and (2), and the general approach that should be taken to using the various defences. As Cinous shows, each of these defences has both subjective and objective components that have to be satisfied. Lavallee illustrates the defence applied in the battered women context.
R v Pintar (1996) O.J. No.3451 (Ont. C.A.)
PRINCIPLE: The trial judge must not put excess defences to the jury under ss.34-37 because it is confusing. Only the most relevant provisions should be given. A narrower provision must NOT be put where there is an air of reality in the evidence for a wider provision.
FACTS: The accused was charged with two counts of second degree murder. One of the deceased, R, blamed the accused for the break-up of his marriage, and threatened on many occasions to kill him. The appeal focussed on the appellant's claim of self-defence and the charge to the jury in this respect. The judge charged the jury on the defences available under ss.34-37 and 265(1)(a) and (b). He divided the events related to the shooting into three phases and charged the jury that they could not consider Ross's original unprovoked assault on Pintar in determining whether the killing was justified under ss.34(1) and (2).
HELD: The appeal was allowed and a new trial ordered. The self-defence provisions of the Criminal Code were complex and confusing. Judges were requried to be selective in which defences to put to the jury. The judge should not have left s.34(1) with the jury as s.34(2) was more applicable to this case. s.35 also did not apply as there was no evidence that the appellant attempted to retreat before it became necessary to fire the fatal shots. Despite this, the charge was not so unneccessarily complex and confusing that it constituted an error of law.
· “... the underlying purpose of this exercise is not to remove self-defence from the jury’s consideration. Rather it is designed to focus the jury’s attention on the essence of the claim to self-defence and the available Code provision(s) most relevant to it”.
· The major pronouncement of Justice Moldaver is that a narrower provision must not be put where there is an air of reality in the evidence for a wider provision.
· The particular message of Pintar is that s.34(2) and not s.34(1) should be put in all murder cases whether or not the accused intended to kill or cause grievous bodily harm. The Court relies on the analysis that s.34(2) is wider than s.34(1) as it applies on present interpretations even if the accused provoked the assault, even if the accused intended to kill or cause grievous bodily harm and the question is not whether more force was used than was necessary but whether the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm.
o THUS, in murder cases arising from self-defence, the trial judge should put s.34(2) to the jury since it applies “whether or not the accused provoked the assault”, thus allowing a wider category for the accused to fall in.
R v Cinous (2002) 2 S.C.R. 852
PRINCIPLE: Before the trial judge may put a defence to the jury, there must be an “air of reality” to that offence. The TEST is whether there is evidence (an evidential foundation) on the record upon which a properly instructed jury acting reasonably could acquit.
FACTS: Appeal by the Crown from a decision of the Quebec Court of Appeal overturning a conviction and ordering a new trial. The accused Cinous was charged with the first degree murder of Vancol. Cinous had collaborated with Vancol and Louis in the theft and resale of computers. He claimed that he began hearing rumours that Vancol and Louis intended to kill him. He decided to participate in another theft with them to determine if this was true. They met at his apartment and departed in his van. Cinous testified that he became convinced that Vancol and Louis wanted to kill him when he saw the type of gloves they were wearing, which he associated with situations where bloodshed was expected. He pulled into a populated and well-lit gas station and bought a bottle of windshield washer fluid. He claimed that it did not occur to him to run away or call the police. When he returned to the van, he pulled out his gun and shot Vancol in the back of the head. The trial judge allowed the defence of self-defence to be put to the jury, but Cinous was still found guilty of second degree murder. The Court of Appeal held that the defence wasn't properly explained to the jury.
HELD: Appeal allowed. Cinous's conviction was restored. A defence was to be put to the jury if and only if it had an evidential foundation. The judge had a positive duty to keep from the jury defences that lacked an air of reality. The question was whether there was evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The air of reality test had to be applied to each of the three elements of self-defence under s.34(2). With respect to the first element, it was possible for the jury to reasonably conclude that he was going to be attacked, and this belief was reasonable. There was also an air of reality to Cinous's perception that the attack would be deadly. However, it had to be established that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. In this case, there was absolutely no evidence from which a jury could reasonably infer the reasonableness of such a belief. As one of the conditions of self-defence was not met, the defence lacked the required air of reality and should never have been put to the jury.
Rationale Behind The Air of Reality Test
The principle that a defence should be put to a jury if an only if there is an evidential foundation has long been recognized by the common law. This reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict.
Two principles of the requirement of an evidential foundation for defences:
(1) A trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury.
(2) A trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence that lacks an air of reality should be kept from the jury.
Air of Reality test imposes a burden on the accused
It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.
· Persuasive burden – the burden of establishing a case also referred to as the “major burden”, the “primary burden” and the “legal burden”.
· Evidential burden – the burden of putting an issue in play also referred to as the “minor burden”, the “secondary burden”, the “burden of going forward” and the “burden of adducing evidence”.
o The air of reality test is concerned only with whether or not a putative defence should be “put in play”, that is, submitted to the jury for consideration.
Features of the Air of Reality Test
· The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence.
· The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.
· Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.
· Whether or not there is an air of reality to a defence is a question of law, subject to appellate review. It is an error of law to put to the jury a defence lacking an air of reality, just as it is an error of law to keep from the jury a defence that has an air of reality.
· This Court has held on many occasions that a single air of reality test applies to all defences.
R v Lavallee (1990) 1 S.C.R. 852 (Battered woman)
PRINCIPLE: Under s.34(2), self-defence, the jury must ask itself whether, given the history, circumstances and perception of the appellant, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable AND expert evidence is both relevant and necessary in assisting the jury in making that determination (in the case of battered women).
FACTS: The accused was a battered woman in a violent relationship with her common law partner. The deceased had loaded a gun. The deceased told the accused that when everyone left the house she would "get it". The deceased then gave the gun to the accused and she was going to commit suicide but then aimed at the deceased and shot him in the back of the head as he was exiting the room they were in. The accused pleaded not guilty and raised the defence of self-defence. At trial the accused did not testify but defence counsel presented expert psychiatric evidence as to the psychological make-up of women who were battered and felt trapped in the abusive relationship. The Crown sought to have the evidence excluded but the trial judge permitted the evidence to remain and dealt with the Crown's concerns in his charge to the jury. On appeal the Manitoba Court of Appeal found fault with the jury charge as it related to the expert evidence and ordered a new trial.
ISSUE: whether she acted in self-defence under s. 34(2).
· On the accused’s appeal the SCC was faced with the decision in R v Whynot. That Court followed what was then considered to be the law, that it was inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault was actually in progress.
HELD: Acquittal restored. The SCC announced a change in the law from R v Whynot.
Relevant Provision
s.34(2) Extent of justification – Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable (objective) apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursued his purposes; and
(b) he believes (subjective), on reasonable (objective) grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
There are two elements of the defence under s.34(2):
(i) The temporal connection in s.34(2)(a) between the apprehension of death or grievous bodily harm and the act allegedly taken in self-defence.
o Was the appellant “under reasonable apprehension of death or grievous bodily harm” from Rust as he was walking out of the room?
(ii) The assessment in s.34(2)(b) of the magnitude of the force used by the accused.
o Was the accused’s belief that she could not “otherwise preserve herself from death or grievous bodily harm” except by shooting the deceased based “on reasonable grounds”?
Question to the Jury and Expert Evidence
The situation of the battered woman as described by Dr. Shane strikes me as somewhat analogous to that of a hostage. If the captor tells her that he will kill her in three days time, is it potentially reasonable for her to seize an opportunity presented on the first day to kill the captor or must she wait until he makes the attempt on the third day? I think the question the jury must ask itself is whether, given the history, circumstances and perception of the appellant, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable. To the extent that expert evidence can assist the jury in making that determination, I would find such testimony to be both relevant and necessary.
Expert Evidence
The appeal was allowed. Expert evidence was properly admitted in any situation where the subject matter of the inquiry was such that ordinary people were unlikely to form a correct judgment about it if unassisted by persons with special knowledge. In the context of the facts in this case, expert evidence on the psychological effects of battering on wives and common law partners was both relevant and necessary for the jury to render a correct verdict. Without such evidence the jury would not be able to fully appreciate the mental state of the female accused.
Self-defence
The defence of self-defence was made out if it was shown by the imposition of an objective standard of reasonableness that the accused apprehended imminent death which required deadly force to repel the assault. The standard of reasonableness to be applied was a gender specific standard so that the question was what a reasonable woman in the accused's shoes would have felt and thought.
18. Necessity
The defence of necessity permits the conduct of the accused to be excused where its elements are met. The defence is heavily circumscribed.
R v Dudley and Stephens (1884) (England)
FACTS: shipwrecked, led to cannibalism
PRINCIPLE: No defence of necessity to cannibalism/kill.
Perka v R (1984) 2 S.C.R. 233
FACTS: marijuana of ship, forced to dock.
PRINCIPLE: Three elements that must be present for the defence of necessity –
(1) The requirement of imminent peril of danger.
(2) The accused must have had no reasonable legal alternative to the course of action he or she undertook.
o If there was a reasonable legal alternative, then the accused’s decision became a voluntary one.
(3) There must be proportionality between the harm inflicted and the harm avoided.
R v Latimer (2001) 1 S.C.R. 3
PRINCIPLE: All three-stages of the Perka test must be satisfied before a defence of necessity may be put to a jury.
FACTS: Latimer's 12-year-old daughter had been severely physically and mentally disabled. After learning that doctors wished to perform additional painful surgery on her, Latimer took his daughter's life via carbon monoxide poisoning. He was found guilty of second degree murder, but the Supreme Court of Canada ordered a new trial.
ISSUE: whether the jury should have been left to consider the defence of necessity. The correct test on that point is whether there is an air of reality to the defence.
HELD: The defence of necessity did not apply. Neither Latimer nor his daughter was in imminent peril, Latimer had a reasonable legal alternative in continuing to care for her, and the murder outweighed any harm avoided in the form of pain from the operation.
· Side note: The mandatory minimum sentence for second degree murder was not cruel and unusual punishment under s.12 of the Charter. Second degree murder was an act of the most serious and morally blameworthy intentionality. Although Latimer was of good character and standing in the community, was anxious about his daughter's well-being, and was a caring and involved parent, his case was aggravated by his initial attempts to conceal his actions, his lack of remorse, his position of trust, his planning and premeditation, and the daughter's extreme vulnerability. Since there was no violation of s.12, there was no basis for granting a constitutional exemption from receiving the mandatory minimum sentence.
Perka Three-stage TEST – “Modified Objective” and “Objective” Test
(1) The requirement of imminent peril of danger.
(2) The accused must have had no reasonable legal alternative to the course of action he or she undertook.
o Modified objective test – involves an objective evaluation, but one that take into account the situation and characteristics of the particular accused person. In evaluating the accused’s conduct, it is appropriate to take into account personal characteristics that legitimately affect what may be expected of that person.
(3) There must be proportionality between the harm inflicted and the harm avoided.
o Objective test – evaluating the nature of an act is fundamentally a determination reflecting society’s values as to what is appropriate and what represents a transgression.
Air of Reality to the Defence of Necessity
Air of Reality test – The question is whether there is sufficient evidence that, if believed, would allow a reasonable jury – properly charged and acting judicially – to conclude that the defence applied and acquit the accused.
Necessity Defence – the trial judge must be satisfied that there is evidence sufficient to give an air of reality to each of the three requirements. If the trial judge concludes that there is no air of reality to any one of the three requirements, the defence of necessity should not be left to the jury.
(1) Imminent peril – not met (he was not in peril, it was his daughter).
(2) No reasonable legal alternative – not met (prolonging life and continuing with care system)
(3) Proportionality – not met (death over life, albeit uncomfortable).
THUS, the defence of necessity was rightfully not put to the jury.
Compare Latimer and Morgentaler:
R v Morgentaler (1985) – the Court considered whether Dr. Henry Morgentaler could rely on the defence of necessity for having provided therapeutic abortions without complying with the law in force at the time concerning such abortions. ALTHOUGH the necessity defence was weak, it was nevertheless left with the jury.
19. Duress
The defence of duress is available under s.17 CC and at common law. s.17 identifies a limited defence, but the common law and Charter have been used to extend its application.
· If duress is accepted, the defence provides a complete bar to conviction.
R v Hibbert (1995) 2 S.C.R. 973
PRINCIPLE: Defence of duress does not negate mens rea, rather it justifies or excuses what would otherwise be criminal conduct AND the defence of duress is unavailable if a “safe avenue of escape” was open to the accused AND whether a “safe avenue of escape” exists is assessed on an objective basis taking into account the particular circumstances and human frailties of the accused AND if accepted, the defence of duress provided a complete bar to conviction.
FACTS: The appellant had been charged with the attempted murder of C. He had accompanied B to C's apartment building and had buzzed up to C's apartment for him to come down to the lobby even though he knew that B had a gun and was intending to shoot C. Indeed, upon C's appearance in the lobby B had shot him four times. The appellant testified that he had believed that B would shoot him if he refused to cooperate with B. He indicated that he believed that he had no opportunity to run. He turned himself in to the police on the following morning. He appealed from his conviction on the ground that the trial judge's charge to the jury contained errors on the mental element of party liability under s.21(1)(b) of the Criminal Code.
HELD: The appeal was allowed, the conviction set aside and a new trial ordered. The judge erred in his instructions to the jury in referring to the relevant mental state under s.21(1)(b) as being a common intention to carry out an unlawful purpose and by suggesting that duress might have negated the accused's mens rea under the offence. The most important error was the failure by the judge to instruct the jury that even if the appellant possessed the required mens rea, his conduct could be excused by operation of the common law defence of duress. It could not be said that the errors in the charge relating to the nature of the defence of duress necessarily had no effect on the verdict. The jurors did not have the opportunity to consider whether the appellant's conduct could be excused due to the threats made. There was no error in the portion of the charge instructing the jury that the appellant could not rely on the defence of duress if the Crown established that he had failed to avail himself of a safe avenue of escape.
Section 21(1)(b) imposed liability on a party to a crime who did anything for the purpose of aiding any person to commit an offence. The word "purpose" was interpreted meaning intention and not desire. Duress could not negate the mens rea for aiding under section 21(1)(b) of the Code. This analysis was extended to the mens rea required by an offender under section 21(2). While the mens rea of a crime could not be negated by threats of death or bodily harm, the common law defence of duress continued to apply to justify or excuse what would otherwise be criminal conduct in cases involving party liability under section 21 of the Code. If accepted, the defence of duress provided a complete bar to conviction. The common law defence of duress was based on the same juridical foundation as the defence of necessity. If the accused could have escaped without danger, the decision to commit the offence became a voluntary one. The issue as to whether there was a safe avenue of escape was to be considered objectively, having regard to the particular circumstances and human frailties of the accused.
Relevant Provision
s.21(1) Parties to offence – Every one is a party to an offence who
(b) does or omits to do anything for the purpose of aiding any person to commit it
Meaning of “Purpose” in s.21(1)(b)
· The term “purpose” is capable of two different meanings: purpose as “intention” or purpose as “desire”. Purpose as “intention” should be adopted: “a person who consciously performs an act knowing the consequences that will (with some degree of certainty) flow from it ‘intends’ these consequences or causes them ‘on purpose’, regardless of whether he or she desired them.
Mens rea for aiding under s.21(1)(b) is Not Negated by Duress
· DPP for Northern Ireland v Lynch (England) – HL – the common law defence of duress provided an excuse, rather than operating by negating mens rea.
· I conclude that the expression “for the purpose of aiding” in s.21(1)(b) does not require that the accused actively view the commission of the offence he or she is aiding as desirable in and of itself. As a result, the mens rea for aiding under s.21(1)(b) is not susceptible of being “negated” by duress.
· The common law defence of duress is not based on the idea that coercion negates mens rea. Rather, it operates by justifying or excusing what would otherwise be criminal conduct.
o Duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea.
The Safe Avenue of Escape Requirement
· The rule that the defence of duress is unavailable if a “safe avenue of escape” was open to the accused is simply a specific instance of this general requirement – if the accused could have escaped without undue danger, the decision to commit an offence becomes (as Dickson J observed in the context of necessity) “a voluntary one, impelled by some consideration beyond the dictates of ‘necessity’ and human instincts”.
· Compliance with the law must be “demonstrably impossible”.
Is the Existence of a Safe Avenue of Escape to Be Determined Subjectively or Objectively?
The question of whether a “safe avenue of escape” was open to an accused who pleads duress should be assessed on an objective basis. The appropriate objective standard to be employed is one that takes into account the particular circumstances and human frailties of the accused.
· Side note: Same basis as necessity.
R v Ruzic (2001) 1 S.C.R. 687
PRINCIPLE: The immediacy and presence requirements of s.17 make it unconstitutional in order to establish that defence AND s.17 includes threats against third parties AND the common law defence of duress is wider AND the burden of proof shifts from the accused to the prosecution after the defence of duress has been raised.
FACTS: Appeal by the Crown from the dismissal of its appeal from Ruzic's acquittal on charges of importing heroin and using a false passport. Ruzic claimed that she was acting under duress, as a man in Belgrade, where she lived with her mother, threatened to harm her mother unless she brought the heroin to Canada. She claimed that she could not seek police protection because the police in Belgrade were corrupt and would not assist her. Section 17 of the Criminal Code provided a defence for persons who committed an offence under compulsion by threats of immediate death or bodily harm from a person who was present when the offence was committed. Ruzic's claim of duress did not meet the immediacy and presence requirements of section 17. She successfully challenged its constitutionality under section 7 of the Charter, raised the common law defence of duress, and was acquitted by a judge and jury.
HELD: Appeal dismissed. Only morally voluntary conduct attracted criminal liability. Depriving Ruzic of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if she did not have any realistic choice. Section 17 breached section 7 of the Charter because it allowed individuals who acted involuntarily to be declared criminally liable. The immediacy and presence requirements precluded threats of future harm. They did not minimally impair Ruzic's section 7 rights, and so were not saved by section 1 of the Charter. The common law defence of duress was not restricted by requirements of immediacy and presence, and so was more consistent with Charter values. The trial judge was correct in allowing the common law defence of duress to go to the jury, and the trial judge adequately instructed the jury on the defence. Ruzic was not required to seek official police protection. Once she raised the defence of duress and introduced some evidence about it, the burden of proof shifted to the Crown to show beyond a reasonable doubt that Ruzic did not act under duress.
Relevant Provision
s.17 Compulsion by threats – A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out ...
Do the Immediacy and Presence Requirements in s.17 Infringe the Principle of Involuntariness in the Attribution of Criminal Responsibility?
· Neither the words of s.17 nor the Court’s reasons in Carker and Paquette dictate that the target of the threatened harm must be the accused. They simply require that the threat must be made to the accused.
o s.17 may thus include threats against third parties.
· The immediacy and presence requirements, taken together, clearly preclude threats of future harm.
· Thus, by the strictness of its conditions, s.17 breaches s.7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable.
· The underinclusiveness of s.17 infringes s.7 of the Charter because the immediacy and presence requirements exclude threats of future harm to the accused or to third parties. It has the potential of convicting persons who have not acted voluntarily. The immediacy and presence conditions cannot be saved by s.1.
Burden of Proof
The accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress.