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205 Boyle by Bernstein 2006 Fall

CRIMINAL LAW – FALL 2006, Boyle (Roach, Healy, Trotter, 2004)© 2006, Scott Bernstein
I. Sources of Criminal Law __________________________________________________________ 3
A. Charter _____________________________________________________________________________ 3
B. Criminal Code _______________________________________________________________________ 4
1. Background ________________________________________________________________________________ 4
2. Indictable v. Summary Conviction Offences ______________________________________________________ 4
C. Judge-made law______________________________________________________________________ 5
1. Background ________________________________________________________________________________
2. Limits on judicial law-making _________________________________________________________________
Frey v. Fedoruk (1950 SCC) – cannot create common law offence _____________________________
Amato v. The Queen (1982 SCC) – common law defences are okay _____________________________
3. What can judges do? _________________________________________________________________________
Jobidon v. The Queen (1991 SCC) – common law meaning of ‘consent’ _________________________
Canadian Foundation for Youth – does provision violate the charter for vagueness? _______________
R. v. Heywood (1994 SCC) – is law overly too vague or broad? _______________________________
R. v. Goulis (1981 Ont. CA) – interpretation of words _______________________________________
R. v. Pare (1987 SCC) – interpreting words _______________________________________________
II. Criminal law and indigenous peoples ________________________________________________ 7
A. The imposition of the law on indigenous peoples ___________________________________________ 7
R. v. Marshall [1999] 3 S.C.R. 456 – aboriginal treaty rights _________________________________
R. v. Powley [2003] S.C.J. No. 43 – recognition of aboriginal right ____________________________
R .v. Marshall: R. v. Bernard (2005) 336 N.R. 22 – generous views of aboriginal practice ___________
1. Background ________________________________________________________________________________
B. Criminalization of aboriginal practices___________________________________________________ 8
1. Protection _________________________________________________________________________________ 8
Royal Commission Report on Donald Marshall’s Prosecution – failure of criminal justice system _____ 8
III. Elements of Criminal Proceedings _________________________________________________ 9
A. Trials and Appeals ___________________________________________________________________ 9
B. Criminal pleadings ___________________________________________________________________ 9
C. Proof at trial ________________________________________________________________________ 9
1. Burden or Onus of Proof ______________________________________________________________________ 9
Woolmington v. D.P.P. (1935 House of Lords, AC) – “one golden thread is always to be seen” ______ 9
R. v. Whyte (1988 SCC) – occupying driver’s seat = care and control of motor vehicle ____________ 10
R. v. Downey (1992 SCC) – is reverse onus justified by s.1? _________________________________ 10
R. v. Oakes (1986 SCC) – leading case for justification under s.1 _____________________________ 10
2. Oakes Test _______________________________________________________________________________ 11
D. Presumptions _______________________________________________________________________ 11
Standard or Quantum of Proof __________________________________________________________________ 11
R. v. Lifchus (1997 SCC) – the meaning of “reasonable doubt” _______________________________ 11
R. v. Starr (2000 SCC) – applies Lifchus _________________________________________________ 11
E. Process at trial ______________________________________________________________________ 12
F. Appeals, etc. ________________________________________________________________________ 12
G. Judicial Interim Release (Bail) ________________________________________________________ 12
R. v. Bray (1983 Ont. CA) – reverse onus in denying bail in some cases ________________________ 12
R. v. Pugley (1982 NSCA) – example of reverse onus; was a just cause to deny bail _______________
R. v. Pearson (1992 SCC) – special cases justify reverse onus & are constitutional _______________
R. v. Morales (1992 SCC) – examination of “public interest” and “public safety” criterion _________
R. v. Hall (2002 SCC) – constitutionality of s.515(10)(c) – “on any other just cause”______________
1. Steps in determining bail issues _______________________________________________________________
IV. Elements of Offences ___________________________________________________________ 14
A. Components: _______________________________________________________________________ 14
B. Different types of offences: ____________________________________________________________ 14
C. Crimes of subjective fault _____________________________________________________________ 14
D. Causation __________________________________________________________________________ 15
Smithers v. The Queen (1978 SCC) – thin skull rule in causation ______________________________
R. v. Cribben (1994 Ont. CA) – accused’s act must be substantial and integral ___________________
R. v. Nette (2001, SCC) – test must be “significant contributing cause” ________________________
1. Factual and legal cause ______________________________________________________________________
2. What do we know about the test for legal cause? __________________________________________________
3. Examples_________________________________________________________________________________
4. When does an intervening cause break the chain of causation? _______________________________________
R. v. Menezes (2002 Ont. SC) – intervening cause breaks chain _______________________________
R. v. Reid & Stratton (2003 NSCA) – intervening cause breaks chain __________________________
E. Voluntariness _______________________________________________________________________ 17
R. v. Ruzic (2001 SCC) – can’t convince an accused who was not acting voluntarily ______________ 17
1. Concepts _________________________________________________________________________________ 18
2. What is the difference between an involuntariness defence and a mens rea argument? _____________________ 18
F. Contemporaneity ____________________________________________________________________ 18
Fagan v. Commissioner of Metropolitan Police (1969 Q.B. CA) – continuing act approach to continuity
_________________________________________________________________________________ 18
R. v. Miller (1982 UK CA) – does common sense make your omission wrong? ___________________ 18
R. v. Frizzell (1993 BCCA) – contemporaneous events ______________________________________ 19
G. Acts/Omissions/Status _______________________________________________________________ 19
Moore v. The Queen (1979 SCC) – duty to identify oneself ___________________________________
R. v. Thornton (1991 Ont. CA) – common law duties in criminal offences _______________________
1. Omissions ________________________________________________________________________________
2. Duty to act________________________________________________________________________________
3. Status ___________________________________________________________________________________
R. v. Terrence (1983 SCC) – possession means knowledge and consent _________________________
I. Sources of Criminal Law
A. Charter
a. Background
i. British North America Act wasn’t fundamental statement of rights
ii. Constitution was mostly about separation of powers between Federal and
Provincial Legislature
iii. ultra vires – “outside the powers”
1. e.g. Switzman v. Elbling (p.14) – communism and padlocked house
a. SCC says “pith and substance” is criminal law
2. e.g. R v. Morgentaler (p.15) – NS tried to ban abortion
a. Nova Scotia regulation is ultra vires because criminal law
3. Provinces can create “quasi-criminal” statutes, though, as long as they
don’t reflect regulating moral behavior.
iv. Bill of Rights (1960) = federal statute
1. Has protection for property (which Charter doesn’t)
2. Didn’t apply to provinces
3. Applied to legislation, not actions (like police searching)
b. Part of Constitution Act, 1982
i. Constitutional challenge doesn’t have to apply only to legislation
ii. It applies to both federal and provincial law
iii. It talks in terms of rights rather than laws and applies to state officials.
iv. Provides remedies for breach
v. Courts take a more active role in its application – clearer direction of judging
legislation (judicial activism debate?).
vi. S. 52 of constitution says Constitution is supreme law of Canada
c. Substance relevant to Criminal Law
i. S1 Rights and freedoms have reasonable limits prescribed by law
ii. S2 Fundamental freedoms (conscience and religion, etc.)
iii. Legal Rights (7-14)
1. S7 Life, liberty and security of person
2. S8 No unreasonable search and seizure
3. S9 No arbitrary detention or imprisonment
4. S10 Right to counsel
5. S11 Right to speedy trial, presumption of innocence, no double-jeopardy,
6. S15 Equality under the law
7. S24 Enforcement of guaranteed rights and freedoms
8. S33 Notwithstanding clause = Parliament can pass laws notwithstanding
rights in Charter for five years
d. Constitutional argument
i. Is there a violation of rights?
ii. Is it saved by S1 (i.e. are the limits reasonable and can be justified in a free and
democratic society)?
iii. If not, what remedy?
B. Criminal Code
1. Background
a. Not technically a real CODE (a comprehensive set of rules governing every
aspect of the law) it is just a vast collection of statutes with many gaps. One
must turn to case law when the Criminal Code falls short.
b. Table of concordance – translates statutes 1970 to 1985 system
c. Interpretation Act
i. p 995 Enactments should be deemed remedial
d. Some sections do not create an offence
i. S.217 = duty of persons undertaking acts
ii. S.219 = Criminal Negligence
iii. These clarify or define certain terms/circumstances which hold relevance
in other sections
e. Judges cannot create common law offences (see S. 9)
i. Exception is contempt of court
ii. In a way, this would create a new offense
iii. Common law defenses exist (S. 8(3))
iv. Rule of retroactivity
1. Can’t apply a law which hadn’t before existed after the offence
2. Indictable v. Summary Conviction Offences
a. Difference matters for all parts of process, from arrest to inquiry to mode of
trial, sentencing
1. Crown’s responsibility in making choice
a. Seriousness
b. Whether crown wants a jury
c. Length of trial
2. Defense counsel to ∆
a. Money (jury trials expensive)
b. Speed of trial
c. Preliminary inquiry only in jury trial
d. Concern about prejudicial evidence – juries won’t hear it
e. Complexity of case
f. Sympathetic jury
b. Type of offences
a. Indictable
v. Serious (compare to felony)
vi. More elaborate procedure
vii. Three types of indictable offence
1. Exclusive Jurisdiction (S. 469)
a. Supreme Court has jurisdiction (normally judge+jury)
b. Reserved for most serious crimes
c. Most elaborate procedure
2. Absolute Jurisdiction (S. 553)
a. Provincial Court has jurisdiction
b. Used for lesser, minor offences
3. Elective
a. Bulk of cases fall here, in the middle
b. Choices
i. S.C. Judge and Jury
ii. S.C. Judge
iii. Provincial Court Judge
b. Summary
viii. Minor offences (compare to misdemeanor)
ix. Shorter procedures
c. Hybrid
x. Can be prosecuted either indictable or summary
xi. Crown gets to decide which
C. Judge-made law
1. Background
A. Focus on judge made law/case law/common law (compare common law v. statute/civil
B. Even though there is a Criminal Code in Canada, there is still lots of room for judge-made law
dealing with such matters as:
e. Legislative gaps (e.g. causation)
f. common law defences, such as intoxication – example in Amato, p. 19 (RHT), re
g. sentencing in part
h. interpretation and application of statutes and Charter.
2. Limits on judicial law-making
Frey v. Fedoruk (1950 SCC) – cannot create common law offence
π was accused of being a peeping tom; was a common law offence, but was this criminal?
Cannot create a new offence that’s not in the criminal code – would be punished for something not
warned of in advance
This was decided even before s.9
Now, though, there’s the offence of voyeurism in s.162
Amato v. The Queen (1982 SCC) – common law defences are okay
Estey J. interpreted s. 8(3) to allow common law defence of entrapment. Also notes common law
defences of duress, due diligence, necessity
A. Legislative limits
1. Judges cannot create new offences – s.9.
2. But, judges can create common law defences - s.8(3).
B. Philosophical limits
i. More subtly, there are judicial limits on judicial law-making, although these are
more a matter of judicial philosophy and debate. There are differing views,
conservative/progressive, and activist/focus on precedent.
1. Two distinct views of judging underlying Amato and Frey v. Fedoruk.
ii. The limits placed on judicial law-making by judicial philosophy are relatively
iii. Not only does legal doctrine change through judicial decision-making - even
underlying views of the judicial role can change, and this can deeply affect the
criminal law. Even individual judges do not necessarily stick to a consistent
restrained or activist stance in their judicial careers. Decisions can be affected by
various values, e.g. personal autonomy in the Childs case discussed in
C. Constitutional limits
i. Many examples. It seems unlikely, for example, that judges would hold that the
defence of entrapment is not available to people of colour as this would be
inconsistent with s.15 of the Charter. Judges must respect constitutional values
in their decision-making.
3. What can judges do?
Jobidon v. The Queen (1991 SCC) – common law meaning of ‘consent’
Uses common law to interpret meaning of consent in assault (filling a legislative gap)
Dissent argued against using common law to negate element required by statute
Also example of contrasting judicial philosophies
Canadian Foundation for Youth – does provision violate the charter for vagueness?
Was s.43 vague? Authorized use of force against a child as correction.
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
Majority found it didn’t violate ss. 2,15 of the charter.
Dissent finds “reasonable under the circumstances” to be vague and in violation of charter
R. v. Heywood (1994 SCC) – is law overly too vague or broad?
Looked at s.179(1)(b), which prohibited someone convicted of sexual violence to be “found
loitering in or near a school ground, playground, public park or bathing area”
“If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to
accomplish that objective, the principles of fundamental justice will be violated…”
Even if law is clear and not vague, they could be overly broad.
Found to be overly broad and violates s.7 Charter rights.
R. v. Goulis (1981 Ont. CA) – interpretation of words
∆ had 1173 pairs of shoes. Didn’t disclose them to creditors. Was this “concealing”?
Court used ordinary dictionary meaning: Where a word in a statute has >1 meaning, could use either
or both meanings in interpretation.
Look at word in context of statute: “removes, conceals or disposes”  means a positive act
Finds this wasn’t concealment as per Criminal Code section.
R. v. Pare (1987 SCC) – interpreting words
∆ indecently assaulted and murdered a kid two minutes later
What is the meaning of “while committing”? Looked at literal meaning and then in context of CC
Both offences involve unlawful domination of others, and are a “single transaction”; temporally and
causally related events
A. Fill legislative gaps
B. Interpret legislative concepts – see Jobidon, Canadian Foundation for Youth
a. Does the majority judgment resembles legislating more than judging?
C. They decide whether legislation is consistent with the Charter.
ii. See Heywood
iii. In so doing they interpret constitutional concepts, e.g. S.7. Offences are
fundamentally unjust if they are too vague. Offences are fundamentally unjust if
they are overbroad. Offences (contempt of court) do not need to be codified to
be fundamentally just.)
D. Some conventional guides that influence decisions:
iv. legislative history, legislative context - surroundings might help, dictionaries,
case law, including cases from other jurisdictions, legislative purpose/policy
(sense of social problem), implications of arguments - sense of workability,
debates, text books, ordinary meaning, knowledge of the world (judicial notice
in evidence), others?
E. Strict construction  where there is confusion, should be interpreted in favour of
II. Criminal law and indigenous peoples
A. The imposition of the law on indigenous peoples
R. v. Marshall [1999] 3 S.C.R. 456 – aboriginal treaty rights
∆ and companion fishing for eels.
∆ argued treaty right to fish for eels based on 1760-61 treaties– was successful
R. v. Powley [2003] S.C.J. No. 43 – recognition of aboriginal right
∆ and son charged with unlawfully hunting moose without licence (under ON Game and Fish Act)
Claimed aboriginal right under s. 36 of Charter  infringed by Act
Acquital upheld by unanimous SCC; recognized Metis abor. rights to hunt. Powley is very narrow
decision though  need to prove a site-specific community that has existed since before the
imposition of European control
Court doesn’t speak of the legal basis for this control, but treats it as a factual reality
R .v. Marshall: R. v. Bernard (2005) 336 N.R. 22 – generous views of aboriginal practice
Mi’kmaq people charged with cutting lumber on Crown lands
∆ argued they didn’t need provincial authorization  had a treaty or aboriginal title to land
Defence was unsuccessful
Court said both aboriginal and European law perspectives must be considered in a defence
Court should take a generous view of aboriginal practice  does it translate into a legal right?
1. Background
a. Two historical streams as source of law
i. Common law of England
ii. Civil law of France
b. However, the criminal law, based on the common law of England, was applied to
c. In order to colonize what is now Canada, it was necessary to assert control over
indigenous peoples, and to construct what could otherwise be seen as armed resistance
to colonization as crimes. The criminal law was used as a part of this process.
d. While the basis for imposition of Canadian criminal law on aboriginal peoples is
relatively unexamined, issues of treaty rights and aboriginal rights more broadly often
arise in criminal and quasi-criminal prosecutions, (e.g. re criminal liability for hunting
and fishing).
e. Examples –
i. R. v .Marshall
ii. R.v.Powley, applying s.35 of the Constitution Act
1. quasi-criminal law, since it is case about provincial rule
a. The existing aboriginal and treaty rights of the aboriginal peoples
of Canada are hereby recognized and affirmed
iii. R .v. Marshall: R. v. Bernard
B. Criminalization of aboriginal practices
a. Does criminal law adequately protect indigenous people?
iv. The criminal law power was used to outlaw certain practices, such as the
potlatch and the sundance.
1. Protection
Royal Commission Report on Donald Marshall’s Prosecution – failure of criminal justice system
Donald Marshall found guilty of murder in 1971
Appealed  upheld in 1972; Conviction overturned by same Appellate Court in 1983
o Said it was ∆’s lying about the robbery that made the matter worse for him
Royal Commission ripped apart the Appellate Court and found that Marshall had been reamed by
the system
The criminal justice system failed Donald Marshall at virtually every turn: police investigation,
disclosure of Crown evidence, bail, quality of defence, application of legal rules at the trial, quality
of appeal process
Cultural artifacts – historically no protection, but now some
Didn’t apply offence of offering indignity to a dead body to aboriginals
Do environmental laws protect them?
Anti-aboriginal racism in the application of the criminal process to aboriginal people. See the
Royal Commission Report
Example of stages where the process can fail aboriginals:
i. Label as crimes; Unfounded reporting, investigation (search, arrest, counsel, interrogation, identification);
prosecution (bail, disclosure, venue, preliminary inquiry); Trial (proof, evidence, juries); sentencing,
corrections, appeals.
III. Elements of Criminal Proceedings
A. Trials and Appeals
a. Authority to prosecute (the Crown)
b. The Code confers broad powers on provincial Attorneys General and their agents - see
definition in s.2.
i. In general, they prosecute Code offences, but see details in s.2.
c. The federal Attorney General (the Minister of Justice) prosecutes non-Code offences,
e.g. drug offences under the Controlled Drugs and Substances Act
d. Crown = prosecutors hired by the provincial Attorney General. Private prosecutions are
possible but rare, although the Crown can step in and proceed or stay.
B. Criminal pleadings
a. Criminal pleadings = the documents on which a trial is based
b. The information or indictment are the basic pleadings in a criminal prosecution.
ii. Briefly states the offences the accused is charged with
iii. Roughly the equivalent of a statement of claim in a civil action.
iv. The accused can only be convicted of the offences charged or what are called
“included offences”. See s.662(1). See forms of charges in your Code.
v. Information - a formal charge in writing made under oath before a justice of the
peace in which the informant swears that the accused committed the offence.
See Form 2
vi. Indictment - also a formal charge in writing. See Form 4
c. The accused does not file a defence but rather pleads:
vii. guilty
viii. not guilty (puts in issue all legal and factual defences)
1. autrefois acquit (already acquitted)
2. autrefois convict (already convicted)
C. Proof at trial
1. Burden or Onus of Proof
Woolmington v. D.P.P. (1935 House of Lords, AC) – “one golden thread is always to be seen”
π convicted of murdering wife, sentenced to death
Appealed on ground that judge misdirected jury by telling them he was presumed to be guilty unless
he could satisfy them wife’s death was an accident (dismissed)
AG supported this appeal in public interest
“presumption of innocence in criminal case is strong”
Enabling the judge to shift the burden of proof would amount to him deciding the case
Appeal allowed, conviction quashed
R. v. Whyte (1988 SCC) – occupying driver’s seat = care and control of motor vehicle
∆ seated in driver’s seat and drunk. Engine warm, keys in ignition, etc.
Is the presumption that he had care and control in s. 237(1)(a) a valid reverse onus?
Requires driver to prove lack of intent on balance of probabilities – is a reverse onus
Seriousness of drinking and driving makes it valid under s. 1 of Charter – applied Oakes test
R. v. Downey (1992 SCC) – is reverse onus justified by s.1?
∆ accused of living off of avails of prostitution
Reverse onus  assumed to be associated with prostitution, need to prove otherwise
Application of Oakes:
o objective is sufficiently important  pimping is social evil; prostitutes fear testifying
o legislation is most effective way to deal with this
o nature of infringement to society is minimal
Dissent: this presumption leads to even more unfairness than Oakes case: at least he was already
guilty of possession
R. v. Oakes (1986 SCC) – leading case for justification under s.1
the leading case (both on when placing the burden of proof on the accused is justified and more
broadly on s.1 of the Charter) - in general a provision which requires the accused to disprove a
presumed fact violates the presumption of innocence in s.11(d) and must be saved by s.1
∆ charged with unlawful possession of narcotic for purpose of trafficking
Challenged constitutional validity (s. 11(d))– imposed burden of proof on accused that he was not in
possession for purpose of trafficking.
Court finds it is a reverse onus
Provision not saved by s. 1 (failed the “Oakes” test – no proportionality)
A. Common law develops the rules
a. Compare LEGAL or PERSUASIVE BURDEN – the party with legal burden
loses if in the end trier of fact is not persuaded - “risk of non-persuasion”
i. See Whyte – persuasive burden on accused
b. TO EVIDENTIAL or EVIDENTIARY BURDEN - the party with the
evidential burden has to point to or lead evidence to raise an issue for
determination - e.g. issue goes to jury - means survival of a motion for a directed
verdict of acquittal.
i. See Downey – evidential burden on accused (“evidence to contrary”)
c. A PRESUMPTION may place a legal or evidential burden on an accused.
d. Compare both to a tactical or strategic burden
e. There are statutory exceptions, e.g. mental disorder in s. 16 (plus can be
common law exceptions)
f. Charter constitutionalizes and changes common law rules. Section 11(d)
g. The “golden thread” of Woolmington has now been constitutionalized
h. Statutory exceptions to the common law rule (often called reverse onus clauses)
now subject to challenge under the Charter
2. Oakes Test
Primary test to determine if reverse onus is justifiable
Test applied once claimant has proven one of the provisions has violated the charter
Onus is on Crown to pass Oakes test
The two-step test:
i. Must be a pressing and substantial objective
ii. The means must be proportional
1. The means must be rationally connected to the objective
2. There must be minimal impairment of rights
3. There must be proportionality between the infringement and objective
D. Presumptions
a. A presumption (referred to in case law and legislation) is a shortcut to proof - how
much advantage it gives to the party in whose favour it operates depends on the sense in
which the word is used. Strip away any unnecessary use of the term presumption
b. Types:
ix. presumptions without basic facts, e.g. presumption of innocence - another way
of saying who has the burden of proof;
x. presumptions of fact - permissible inferences, such as intention in criminal
xi. conclusive presumptions of law - rules of substantive law, e.g. common
gaming houses;
xii. rebuttable presumptions of law - compelled fact determination - often called
reverse onus or mandatory presumption provisions. Since they put either a
legal (Oakes, Whyte) or an evidential (Downey) burden on the accused, they are
subject to challenge under s.11(d) as set out above.
Standard or Quantum of Proof
R. v. Lifchus (1997 SCC) – the meaning of “reasonable doubt”
Avoid using “reasonable doubt” as an ordinary expression without special meaning
Based on reason and common sense, but not a “moral certainty”
R. v. Starr (2000 SCC) – applies Lifchus
Trial judge said “reasonable doubt had no special meaning, and did not require proof of absolute
This made it seem as if the jury was to convict on balance of probabilities
“Reasonable doubt” falls much closer to absolute certainty than balance of probabilities
Dissent: Lifchus provides guidelines rather than “iron-clad roster” of proscriptions
a. From common law. Proof beyond a reasonable doubt (BARD)
b. See Lifchus, RHT, at 289, for guidelines from the SCC, and Starr, RHT, at 281 for an
application of Lifchus
E. Process at trial
a. The Crown has burden of proof so calls witnesses first (whether the Crown makes an
opening statement varies, but there is an opening statement in jury trials)
b. Direct examination (or examination in chief)
c. Cross-examination by defence
d. Re-examination
e. Same for defence case
f. Closing addresses by counsel
g. If jury, charge to jury, eg elements of offence, defence, care re identification evidence,
standard of proof
F. Appeals, etc.
A. How can errors in the criminal process be addressed?
a. rights of appeal
b. applications for ministerial review - see new s.696.1-6
c. pardons
d. civil remedies
G. Judicial Interim Release (Bail)
R. v. Bray (1983 Ont. CA) – reverse onus in denying bail in some cases
Onus is on prosecution to justify detention on s. 457(7)
In some cases (e.g. murder) reverse onus is in effect
Reverse onus does not violate Charter s. 11(e) if there is “just cause”
Test is balance of probabilities for accused
R. v. Pugley (1982 NSCA) – example of reverse onus; was a just cause to deny bail
Code is unconstitutional because of reverse onus, but there is just cause anyway in this case (?)
Constitutionality question overturned after Pearson
R. v. Pearson (1992 SCC) – special cases justify reverse onus & are constitutional
s. 515(6)(d) – narcotics trafficking – doesn’t violate s. 11(e) of Charter
Specific circumstances justify reverse onus; they’re constitutional
Dissent: doesn’t distinguish large-scale trafficker from small time one
Therefore, it will deny bail to some people without just cause
R. v. Morales (1992 SCC) – examination of “public interest” and “public safety” criterion
∆ alleged to participate in major cocaine trafficking network, denied bail under s. 515(10)(b)
Criterion of “public interest” to deny bail violates s. 11(e) because it is too vague
“Public safety” didn’t violate s.11(e) – sufficiently narrow in definition and scope
“Public safety” component necessary for proper functioning of bail system
Dissent: “public interest” is consistent with 11(e)
R. v. Hall (2002 SCC) – constitutionality of s.515(10)(c) – “on any other just cause”
s.515(1)(c) (amended after Morales) denies bail in three situations
1. necessary to ensure attendance in court
2. necessary for the protection or safety of public
3. “on any other just cause”… to maintain confidence in the admin. of justice
∆ accused of murder; lots of media attention; general sense of fear by public and family
No evidence to support #s 1 & 2, so deny bail on #3
“on any other just cause” is unconstitutional – too general, fails proportionality of Oakes
But, doesn’t mean the whole thing is unconstitutional; maintaining confidence is valid
Dissent: provision is ripe for misuse, allowing fears to overrule Charter rights
1. Steps in determining bail issues
1) Applicable legislation
A. Release by police
a. s.497 - where arrest for relatively minor offences, peace officer shall release as soon as
practicable (note classification of offences matters here – s.497(1) applies to s.553
offences, hybrid offences and summary conviction offences);
b. s. 498 - where detained officer in charge or another peace officer shall release as soon as
c. These provisions are not very clear. For instance, could an officer in charge release
Alan? Consider s. 503 and s.522(1).
B. Judicial release:
a. s 515. General rule is that accused must be released unless Crown “shows cause” that
(s)he should be detained or that conditions should be set on release.
b. note two exceptions to general preference for release:
i. some offences within exclusive jurisdiction of the superior court so have to go
there and show cause (note importance of classification);
ii. s.515(6) re some “reverse onus” offences where accused must show cause why
detention not justified - indictable offence while awaiting trial, some criminal
organization offences, terrorism offences, indictable offence where not
ordinarily resident, failure to appear, or breach of condition offences (common
re young offenders), trafficking in narcotics (note importance of charging and
C. Things to consider in legislation
a. What do the words mean? E.g. what does “another peace officer” mean in s. 498(1)? You would
then look for case law and academic comment to assist you with interpretation.
b. How do the sections relate to each other? An example is the issue relating to ss. 498, 503 and
522 above. You would then look for case law and academic comment to assist you with the task
of interpreting provisions in their legislative context.
c. Do you see any problems with the provisions? For example, do you think someone’s race might
make a difference? You would then look for case law and academic comment to assist you. See
RHT, pp. 230-232, and the reference to the findings of two major studies of the criminal process
- the Manitoba Aboriginal Justice Inquiry and the Report of the Commission on Systemic
Racism in the Ontario Justice System. Thinking about possible problems of this sort can give
you ideas both about interpretation and possible constitutional issues.
2) Applicable constitutional provisions.
What provisions in the Charter could be used to challenge bail legislation or bail decisions?
See sections 7, 9, most directly 11(e), 11(d) – (presumption of innocence), 12 and 15.
s. 11(e) – right not to be denied bail without just cause
3) Case law applying these constitutional provisions (see above cases).
4) Applying the law
IV. Elements of Offences
These are general principles of substantive criminal law
Logical first step in defending someone  identify elements: read section in code
A. Components:
Elements of offences
1. actus reus [external facts]
2. mens rea [fault]
B. Different types of offences:
absolute liability (actus reus only - no fault)
strict liability (Crown proves actus reus, then accused may prove that took reasonable care
on a balance of probabilities)
crimes of objective fault (negligence) - (Crown proves that accused did not take reasonable
crimes of subjective fault (Crown proves actus reus and mens rea, here meaning fault in a
subjective sense)
Most crimes in the Criminal Code are crimes of subjective fault, so they are the norm in a sense.
C. Crimes of subjective fault
Actus reus (roughly, the guilty act)
The Crown must prove that the accused actually did the act that is in the definition of
the crime.
 Means the external elements of the offence
Mens rea (the guilty mind).
 The Crown must prove that the accused meant to commit the actus reus - the required
state of mind of the accused.
A suggested method for listing the elements of the actus reus.
 Act or omission?
 Does any consequence have to flow from act or omission?
 This could lead to causation
 Is the act or omission always an offence or only in certain circumstances?
Add mens rea elements
 One can start by assuming that there is a mens rea element for each actus reus element
 But sometimes there are fewer and sometimes there are more.
 often, mens rea is not spelled out – need to look at case law
D. Causation
Smithers v. The Queen (1978 SCC) – thin skull rule in causation
∆ convicted of manslaughter for killing someone by kicking him; victim died from vomiting
Was there a causal connection between kick and death?
On the charge of manslaughter, all the Crown has to establish is that the assault inflicted upon the
victim “was at least a contributing cause of death, outside the de minimis range”
o de minimis non curat lex = “the law does not care for trifles”
o Any unlawful act that was a contributing cause of death beyond de minimus range was suff.
Thin skull rule  must take your victim as you find him
Appeal dismissed
R. v. Cribben (1994 Ont. CA) – accused’s act must be substantial and integral
∆ beat victim, then left him unconscious, drowning in own blood
What are the causation issues?
Cites Harbottle – accused’s act must be a substantial and integral part of death
o Requires accused play a very active role – usually a physical role – in the killing
o This is much higher than described in Smithers, but that case was manslaughter
Is Smithers test constitutional – does it create a causation threshold too low RE Charter s. 7?
o Fault element of manslaughter requires foreseeability of bodily harm, which would lead to nontrivial acts without foreseeability being acquitted of manslaughter (R. v. Creighton)
o De minimis isn’t any more vague than any alternative
o Actus reus of manslaughter is the same as for murder; different degree of fault (foresight)
distinguishes the two
o Causation determines whether it will be an assault or manslaughter, though
o Given thin-skull, and reasonable foresight, de minimis is constitutional
R. v. Nette (2001, SCC) – test must be “significant contributing cause”
Widow robbed and left hog-tied;
What is test for second-degree murder, Smithers (de minimis) or Harbottle (“significant and
contributing cause”)?
Harbottle stresses not only higher causation, but increased participation leading to 1st degree murder
Court limits Harbottle test to 1st degree murder
Smithers test is applicable for all homicide, but rephrase to be “significant contributing cause”
No real difference between “significant” and “not insignificant”
1. Factual and legal cause
a. First look for a factual cause, “but for”, causa sine qua non. This usually does not present difficulty
in criminal cases. There must be a factual connection between the act (e.g. the kick in Smithers) and
the death.
b. But this is not enough by itself - must also be a legal connection - imputable cause, proximate
cause, causa causans.
c. Legal causation problems often arise where another person has done something that arguably breaks
the chain of causation between the accused and the death – intervening cause, novus actus
interveniens, e.g. ambulance driver drives negligently on way to hospital.
2. What do we know about the test for legal cause?
a. The Code does not help us although it gives us some specialized rules about particular
problems, e.g. s. 225. Doctor does best to assist, but as long as applied in good faith, doesn’t
break chain of causation from someone causing bodily injury leading to death.
b. Some general observations
i. Law usually concentrates on human acts, rather than social conditions.
ii. Criminal law tends to focus on fairly close events.
iii. There are also certain policies that guide the law, the classic one being that you take
your victim as you find him, e.g. Blaue, at p.331. One could also say that you take the
available medical treatment as you find it - s.225, and you take the very existence of
medical treatment as you find it - s. 224.
c. What is the test for legal causation and is it constitutional?
i. See Smithers - contributing cause beyond the de minimis range.
ii. But see Harbottle, discussed in Cribbin and Nette, where the S.C.C. introduced a
substantial and integral cause test for at least one form of first degree murder.
iii. See also Cribbin, at p.332 - the Smithers test is not contrary to s.7.
iv. See also Nette, at p.343, confining Harbottle to sentencing re first degree murder and
preferring the terminology of significant contributing cause, though taking the position
that significant cause and not insignificant cause mean the same thing.
3. Examples
Example 1: s.362 (1) (b) obtains credit by a false pretence or by fraud;
 AR: False pretence or fraud  obtain credit (need to pay attention to causation – look at ‘by’)
o What happens if you don’t get the credit?
o Turn to law of attempts (don’t know this yet)
 Two element AR: act and causation
Example 2 (consequence example):
s. 242. A female person who, being pregnant and about to be delivered, with intent that the child shall not live
or with intent to conceal the birth of the child, fails to make provision for reasonable assistance in respect of her
delivery is, if the child is permanently injured as a result thereof or dies immediately before, during or in a short
time after birth, as a result thereof, guilty of an indictable offence and is liable to imprisonment for a term not
exceeding five years.
 AR: fails to make provision… 
 Consequence: child is permanently injured or death
 Circumstances: being pregnant; baby about to be delivered; before, during or shortly after; female
Example 2: resists or willfully obstructs a public officer or peace officer in the execution of his duty or any person
lawfully acting in aid of such an officer,
AR: resists or obstructs a public officer...; execution of his duty
4. When does an intervening cause break the chain of causation?
R. v. Menezes (2002 Ont. SC) – intervening cause breaks chain
2 guys racing cars, one dies
loss of control in a race is foreseeable
Something more than just mental change is necessary to break chain of causation
May be possible to break chain by abandonment
∆ Changed behavior (slowed down), which could have been seen by other person, deceased kept
going for unknown reasons. This was sufficient evidence of a break of chain. Not guilty
R. v. Reid & Stratton (2003 NSCA) – intervening cause breaks chain
Drunken brawl; after victim stopped struggling, ∆s stopped fighting. Some people attempted
resuscitation, which led to his death
Intervening cause could have broken chain of causation
New trial ordered because court gave inadequate jury instruction
a. Sections of the Code may provide a response to an argument that there was a break in the chain of causation,
e.g. 225 re improper medical treatment, but see Reid and Stratton
b. the thin skull rule may operate to prevent acts of the victim from breaking the chain of causation
c. there may be an intervening event by a non-human agent, such as lightening. See the examples suggested in
Reid and Stratton. (For instance, X assaults Y and leaves Y unconscious in the path of the incoming tide –
should X be found to have caused Y’s death by drowning?)
d. it may be possible for the accused to break the chain of causation, by abandonment. See Menezes
e. Might foreseeability provide a workable test of whether there is a break in the chain of causation?
E. Voluntariness
R. v. Ruzic (2001 SCC) – can’t convince an accused who was not acting voluntarily
Principle of volunatariness given constitutional (Charter s.7) status in Daviault
Can’t convict an accused who was not acting voluntarily, as fundamental aspect of actus reus would be
1. Concepts
The act (or omission) must be a voluntary one.
Essential element is conscious control of action
Element of actus reus.
i. Reflex action - driver attacked by swarm of bees re: driving offence;
ii. Involuntary omission - sticker removed from car, re parking offence;
iii. Physical compulsion - e.g. someone puts finger over yours on trigger and
compels you to pull the trigger;
iv. Blow to head;
v. Moral involuntariness – someone forces you to do something by threatening
vi. Dissociative state caused by shock - approaching mental disorder so cover under
automatism but still an involuntariness argument;
vii. Sleepwalking - ditto;
viii. Involuntary intoxication - e.g. drugs given by dentist;
ix. Now extreme intoxication - special rules about that so will discuss under
2. What is the difference between an involuntariness defence and a mens rea argument?
For crimes where there is no mens rea, the voluntariness argument would be important.
See Ruzic, for the importance of free will to the imposition of criminal liability, and the
extension of a requirement of physical voluntariness to moral voluntariness (important
to the defence of duress).
F. Contemporaneity
The actus reus and mens rea must coincide.
Fagan v. Commissioner of Metropolitan Police (1969 Q.B. CA) – continuing act approach to continuity
A was convicted of assault: left car on constable’s foot after accidentally backing onto it
Court reluctant to say the doing nothing was an assault
Instead, actus reus was a continuing act  so, that was the assault
Dissent: actus reus and mens rea weren’t present at the same time; A didn’t “hold” the car against
the officer’s foot, so no assault
R. v. Miller (1982 UK CA) – does common sense make your omission wrong?
∆ lit cigarette and accidentally started fire and then did nothing about it
Unintentional act and then intentional omission = intentional act IF common sense says you must do
If you create a risk, you are liable for the result of your act
R. v. Frizzell (1993 BCCA) – contemporaneous events
After consuming a lot of drugs and alcohol, ∆ thought K was dead. Dumped his body into the sea.
He might have died from drowning or drugs
∆ argued actus and mens didn’t coincide
Court found episode was one continuous transaction
G. Acts/Omissions/Status
Moore v. The Queen (1979 SCC) – duty to identify oneself
∆ was on a bicycle, committed a traffic infraction, and refused to give his info to the police
Court looks at Motor vehicle act and concludes that a bicycle must obey the same rules as a motor
vehicle (that is, give information when stopped)
Not even minimal interference of individual freedom to give name and address when seen by police
Dissent: Any duty to identify must be found in either common law or statute, quite apart from
duties of police
o A person is not guilty by doing nothing unless there is a duty to act
o No statutory duty: bicycle not a motor vehicle
o No common law duty, or implied “reciprocal” duty
(Majority decision has been applied very narrowly by courts)
R. v. Thornton (1991 Ont. CA) – common law duties in criminal offences
∆ donated blood at Red Cross, knowing that he was HIV+; convicted of common nuisance that
endangered the lives of the public
No statutory duty to refrain from donating contaminated blood
Duty can be imposed from common law.
Common law says that there is a fundamental duty to refrain from conduct which would injure
When the gravity of potential harm is great, endangerment happens even when risk is slight
Appeal for conviction and sentence failed
1. Omissions
a. Normally the actus reus of offence requires Crown to prove accused committed an act
such as “break and enter”
b. Sometimes, omission is the actus reus
i. Reluctance to impose criminal liability for omission. Why?
1. Difficulty in defining conditions of liability
2. Evidentiary problems re mental element – usually draw inferences from
3. Concerns about danger if imposition of duty to act, e.g. rescue
4. Moral distinction – greater intrusion into liberty
c. Where is there liability for omission?
i. Express statutory liability, e.g. failure to file tax return, where offence creates
duty to act.
1. There are offences which criminalize the failure to perform a specific
2. For Code example, see s.215 (duty to provide necessaries).
3. Clear here that liability, although problems of interpretation remain, as
with other actus reus elements, e.g. what does “under his charge” mean
in s.215(1)(c)?
ii. Express statutory liability in the sense that offences are clearly broad enough to
include omission, e.g. criminal negligence in s.219. But here one needs to find a
duty elsewhere.
iii. There are some offences where there is not express liability for omission, and so
there may be an arguable issue. For example, can the homicide offences be
committed by omission? See s.222(5) and s. 233.
d. Where the actus reus does include omission, then there is only liability where there is a
duty to act.
2. Duty to act
a. Statutory duties, e.g. s.216 (see Thornton), s.217 and s.217.1.
i. There may now be doubt about whether Moore would be followed.
1. In R.v. Greaves [2004] BCJ. No. 1953, the CA seemed more influenced
by the dissent in saying at para. 48, that although the police may have the
right to ask questions, citizens are under no duty to respond in the
absence of a statutory duty, and quoting R. v. Bonnycastle….:
a. “The duty of a peace officer to make enquiries must not be confused
with the right of a person to refuse to answer questions in
circumstances where the law does not require him to answer.”
b. Common law duties. See Thornton,
i. There is some concern about assigning common law duties to criminal offences
(S. 9, prohibiting common law offences).
ii. Example: criminal negligence elements: omission of duty (statute)  duty itself
(common law)  death (statute) = “partial common-law offence”
1. The issue of whether there is a duty or not may be a matter of argument,
e.g. do you have a common law duty to call for help if your room-mate is
seriously ill?
2. Speculative possibilities: community of shared risks, e.g. mountain
climbers; situation one has created, e.g. Miller (failure to do anything
about a fire); hazard under one’s control; duty to rescue.
3. Status
R. v. Terrence (1983 SCC) – possession means knowledge and consent
∆ was found in possession of a stolen automobile; drove around in “brother-in-law’s car”
Does “possession” in s.3(4)(b) import control as an essential element? Statute says possession by
one is possession by all
Possession means a measure of control, which means knowledge and consent
None presented by evidence, so Appeal dismissed.
a. Rare offences contain an actus reus based on a state of affairs, which can cause concern
about the possibility of punishment without voluntary behaviour on the part of the
b. E.g. consider the pros and cons of criminal liability for membership in an organization
(such as a terrorist group)
c. Possession offences come to being status offences (see Terrence).
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