Intro to Criminal Law
Scope & Purpose
Definition of Crime- an act that is forbidden by the law; must have prohibition,
penalty, purpose.
Scope/Purpose of Crime
 S.91 Federal Law power
o (27) Criminal Law power
o (28) Establish and Maintain Penitentiaries
 S. 92 Provincial Powers
o (6) Maintain Reformatories
o (14) Administration of justice in the provinces (set up provincial
court, procedures in civil matters
Substantive Law: Statutes
Common Law: Based on judicial decisions, Precedent  Lower courts have to
follow decisions of higher court
Procedural Law: Laws of procedure  How cases should be tried
Criminal Law Purpose
 To protect all members of society including the accused from dangerous
conduct, contribute to maintain of just, safe and peaceful society through
the establishment of sanctions and prohibitions
 Prevention/deterrence of crime and criminal acts
o Deterrence “focuses on the conduct of the accused, not the merits
of the victim”
o Imposition of a sanction is the main source of this
4 Pillars of Criminal Law
1. Presumption of innocence - innocent until proven guilty
2. Burden of proof - on the prosecution
3. Actus reas - act itself (criminal act)
4. Mens rea - intent, motivation of the crime (guilty mind)
The Adversary System

Used in common law countries

Crown & defence present their case infront of an impartial decision maker

Each party has something they are trying to prove
Search for the truth

Fundamental concept in criminal law

Lawyers are trained to seek success

Inequalities that might impede search for the truth
Is the adversarial system always adversarial ?

No it is not

Trial are the height of the adversary system

But there are non adversarial components
o Plea bargaining
o Mediations
o People plead guilty

Not everyone uses their right to a trial
Privileged

Solicitor – client privilege

Work – product privilege (work products)
Role of the Defence



Ensure the accused persons rights are protected
Ensuring the police have done their jobs correctly
Ensure accused had a fair trial and make crown prove beyond a reasonable
doubt of the client’s guilt
Judge’s Role

Make finding of the facts presented to the court but not to personally
investigate

Impartial trier of fact

Apply relevant law

Assess evidence

And administer justice within the framework of the law

Independent and impartial
2
Ethical Obligations of Prosecution &
Defence
Role of the Crown
 R v Boucher 1954 SCC - SCR 16 (1955)
o Role of the Crown is not to win or lose, not trying to secure a
conviction.
o Excludes any notion of winning or losing, simply present the
evidence in a fair, dispassionate and moderate manner
 R v Stinchcombe 1991 - Crown obligation to disclose
o Crown was withholding evidence
o Evidence is the property of the public to ensure justice. Crown
has a duty to disclose.
 Witness statements
 Police notes
 Security footage
 Information the police have actually gathered
 What if D notice certain evidence might be missing for example
surveillance tapes
 D can request that the crown gets the police to obtain
surveillance tapes
Obligation to Disclose (Stinchcombe)
This obligation is not absolute. The Crown can withhold information that:
 1. is clearly irrelevant.
 2. is privileged (solicitor-client privilege, personal notes)
o Solicitor-Client privilege; work-product privilege (my notes don't
need to be disclosed)
 The Crown can delay disclosure.
o The timing of disclosure/ when particular materials will be released
to defence is left to the discretion of the Crown.
o Sometimes not disclosed when ongoing investigation is going on.
 The Crown does not determine the credibility of evidence- the judge does.
 Don’t disclose just information you think it's credible, the Crown discloses an
entire piece of the fruits of police investigation and then each side decides
what is relevant to their side at the trial.
R v. Murray 2000- physical objects do not form part of solicitor-client privilege
because they are not “communication”
Sources of Criminal Law
o


The exception is that privilege evidence can be withheld by the
crown.
"Reasonable prospect of conviction." In Canada, the Crown will look to get a
conviction if it's MORE than reasonable to get a conviction but LESS than
probable guilt.
Proceed with conviction if it's in the public interest.
Role of the Defence
 Protect the client's rights - doesn't have a duty to assist the crown in their
trial, but they cannot do anything to deceive the court.
 No obligation to assist prosecution; roll is to protect client as far as possible
without being convicted; most put the accuser on trial to test validity of
action; must protect every accused persons charter right; keep private
opinion out of job.
 No obligation to disclose evidence  Why? Doesn’t have to prove
innocence
S. 8(3) - Preserves all common law DEFENCES. If common law has created some
type of defence or justification for criminal acts then the common law defence
is still applicable
 I.e. defense of intoxication, necessity, self defense, entrapment, duress.
S. 9(1) - Abolishes common law OFFENCES
 There shall be no offences at common law with the exception of contempt
of court (conduct likely to obstruct administration of justice).
SOURCES OF CRIMINAL LAW:
 Common law
 Divisions of powers under the Constitution
 Charter of Rights and Freedoms
 Statutes (i.e. Criminal Code)
3
Frey v. Fedoruk, 1950 SCC
F


I
Frey was a peeping Tom, Fedoruk chased him and the police
detained him
Frey claimed he was falsely imprisoned - this was dismissed not guilty
Was Fedoruk’s detention of Frey lawful?  Yes not an offence in the
code
R Individuals may only be charged w/ criminal charges that are
found in the Code
Reference re Firearms Act (Canada) 2000 SCC
Division of Powers
F The Federal government amended the Firearm Acts. Alberta challenged
the federal government's power to pass this law by holding a reference.
I
Did the Fed have the authority to enact the law?
R Test Classify Legislation as Criminal Law



A valid criminal law purpose
o Public peace, Order, Security , Health, Morality
Prohibition
Penalty
Charter of Rights and Freedoms (1982)
Section 52 (1): any law that is inconsistent with the provisions of the
Constitution is of no force or effect (parliamentary supremacy); they
do not become law.
Remedies
S. 24 when you argue that a provision violates the charter and you are
successful in doing so.
→ Ask for a stay, or exclusion of evidence
o Stay of proceedings is drastic - usually a severe case
o 3 part test of whether evidence will be excluded or not
S. 52 stating all law must be consistent, when there are challenges
made to the constitutionality, the law is struck down
o Parliament can respond by redrafting etc.
Two Types of Charter Challenges:
 Conduct
o Wrongful search and seizure example
o These challenge police usually as a violation to
someones charter rights
 Law
o This particular law violates Charter because it is for
example inconsistent with section 7 of Charter violating
principles of fundamental justice.
o One would challenge the law with a Charter
application: i.e. Challenging mandatory minimums
4
Principles of Fundamental Justice



Important Q when determining if law violates S. 7 the law
has to be consistent with the principles of fundamental justice
Has to be a legal principle
Must be identified with sufficient legal
1. Vagueness
o Any law should be declared unconstitutional if its too
vague
o How do you know
 Adequate amount of room for legal analysis
 Dealineate area or risk
 Vague law are problematic cause its difficult for
citizens to know when theyre breaking the law
for law enforcement to know if citizens are
breaking the law
2. Overbreadth
o Put limits that goes beyond what is necessary
3. Arbitrariness
o Absence of the link between the purpose of the law
and the effects it has on the person
4. Gross disproportionality
o When the effects of a law are so extreme that they
cant be justified
5
Interpretation of Criminal Statutes
Modern Approach



Words of legislation must be read in their entire context and in their
grammatical & ordinary sense harmoniously w/
o Scheme & object. of the act
o Intention of parliament
Read w/ legislative intent & established legal norm in mind
If two readings are equally plausible the interpretation that matches up w/
the charter should be adopted
R v. Clark

F

I
Appellant  Convicted for masturbating near the
uncovered window of his illuminated living room
Charged S.173(1)(A)  willfully performs indecent
act in a public place
Is the appellants living room a “public place”  No read in the
context of statute  Public place = a place where the public has
access
R v. Goulis 1981

Doctrine of Strict Construction
o If a criminal provision is reasonably ambiguous the one that
favours the accused should be adopted
o However this principle does not always require a word that has two
accepted meanings to be given the more restrictive meaning
o Where a word used in a statute has two accepted meanings then
either or both meaning may apply
o The court must first determine the sense in which Parliament used
the word from the context in which it appears

If ambiguity still exists Court should adopt interpretation
which is more favourable to the defendant
R v .Pare 1987

Application of the Doctrine of Strict Construction
o Strict construction of criminal statutes still exists adopt
interpretation most favorable to the accused but still have to
determine if interpretation is a reasonable on given the scheme
and purpose of the legislation. If parliamentary intent conflicts with
interpreting in favor of accused have to go with parliamentary intent
first
o An interpretation that runs contrary to common sense is not to be
adopted if a reasonable alternative is available

Eg act was finished but accused held hand on chest
almost immediately thereafter
R v. Mac

R Example of Modern Approach
Parliament is deemed to act deliberately, if it was their intention to include
something in the legislation, they have done it for a reason, if something has
been omitted, they intended to omit it
Bilingual Interpretation

Where Eng & French versions of a statute have discrepancies due to
translation
o Court must pick the more restrictive , limited meaning if the other
is ambiguous & broad

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 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
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Presumption of Innocence &
Standard of Proof
Section 11(d)

Right to be presumed innocent until proven guilty according to law in a fair
and public hearing by an independent and impartial tribunal
Burden of Proof  Crown must prove BARD

Why  better that a guilty person walks free than an innocent person serve
time in jail
Woolmington v. D.P.P 1935

Accused does not have to establish his innocence burden is on crown.
Crown must establish the accused’s guilt

Accused may raise a doubt to his guilt but he is not bound to satisfy the jury
of his innocence
R v. Lifchus

It does not involve proof to an absolute certainty it is not proof beyond any
doubt nor is it an imaginary or frivolous doubt

And more is required than proof that the accused is probably guilty
R v. Starr

the reasonable doubt standard falls much closer to absolute certainty than
proof on a balance of probabilities as stated in Lifchus a trial judge is
required to explain that something less than absolute certainty is required
and that something more than probable guilt is required in order for the jury
to convict
R v. S ( J.H )

The lack of credibility on the part of the accused does not equate to proof of
his guilt beyond a reasonable doubt as required
R v. Mullins Johnson

There are not in Canadian law two kinds of acquittals those based on the
Crown having failed to prove its case beyond a reasonable doubt and those
where the accused has been shown to be factually innocent

The criminal trial is to determine whether the crown has proven its case
beyond a reasonable doubt If so the accused is guilty if not the accused is
found not guilty. There is no finding of factually since it would not fall within
the ambit or purpose of criminal law

Judge cannot say accused is innocent just not guilty
o Not guilty

Trial judge is not satisfied beyond reasonable doubt
R v. Oakes 1986

The right to be presumed innocent until proven guilty requires that S11 d
have at a minimum the following content
o First an individual must be proven guilty beyond a reasonable
doubt
o Second it is the state which must hear the burden of proof
o Section 11 d imposes upon the crown the burden of proving the
accused’s guilt BARD as well as that of making out the case
against the accused before he or she need respond either by
testifying or calling other evidence
o Third criminal prosecutions must be carried out in accordance with
lawful procedures and fairness which requires the proof of guilt “
according to law in a
R.v Downey

The presumption of innocence is infringed whenever the accused is liable to
be convicted despite the existence of a reasonable doubt

If by the provisions of a statutory presumption an accused is required to
establish that is to say to prove or disprove on a balance of probabilities
either an element of an offense or an excuse then it contravenes section 11
d such a provision would permit a conviction in spite of a reasonable doubt

It must be remembered that statutory presumptions which infringe S
11 (d) may still be justified pursuant to section 1 of the charter

statute requiring accused to prove own innocence creates “ reverse onus “
and is unconstitutional
o
Q becomes can it be saved by S 1
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Classification of Offences

Criminal code outlines 3 types of offences
o Summary
o Indictable
o Hybrid
Summary Offences
 Less Serious
 Maximum penalties can vary
o Or for summary
 General penalty if not otherwise specified - s 87
o Unless otherwise provided by law every person who is
convicted of an offence punishable on summary
conviction is liable of a fine not more than $5000 or to
a term of imprisonment of not more than two years
less a day or to both
 Max imprisonment used to be 6 months
 Sentenced two years or more  Served in
penitentiary
 Limitation period 12 months
o Charges must be laid within 12 months
 Always tried in provincial court or by justice of the peace
 Tried before a judge w/o jury
 Accused need not to appear personally in court
o May be represented by lawyer or paralegal
Indictable offences
 More serious conduct
o Robbery, Murder, aggravated assault
 Max penalty range from 2 years to life
o Offence section sets out penalty if not S.743 of the
Code  sets max of 5 years
 Accused must be present at all stages of proceeding
 More serious offences  SCOJ
 Least serious  OCOJ
 Accused put to an election must choose to be tried bu
o Provincial court judge w/o jury
o Judge w/o jury
o Judge & Jury
 The accused can re-elect  s.561 of the code however based
on
o The original election
o The point in time in the process when the accused
wishes to re-elect
o Whether the crown consents
Hybrid Offences
 Can proceed summarily or by indictment
o Crown decides how to proceed based on a numb of
factors
 Prior criminal record by the accused
 Higher available penalty for I.O
 A desire to require the accused’s personal
presence
 Seriousness of an offence can vary greatly
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conduct complained of against the degree and nature of the
peace which can be expected to prevail in a given place at a given
time
The Act Requirement
Actus Reus (guilty act) contains 5 legal aspects
1. Commission of an unlawful act
2. Omission  Where there was a legal duty to act
3. Voluntariness
4. Acting through an innocent agent
5. If consequences are part of the offence charged that the act or omission
caused the consequence (Causation)
Vicarious Liability –
a person is automatically responsible for the wrongdoing of another
solely on the basis of a relationship between the parties. Does not
operate in Canadian criminal law.
R. v. Burt (CR 1985)
Vicarious Liability
Commission of an Unlawful Act
F
Causing a Disturbance in a Public Place
R v. Lohnes
I

Did s. 253 violate a person’s Charter right’s – create a position of
vicarious liability?
R Vicarious Liability does NOT operate in Canadian Criminal
Law.
F Lohnes swearing at neighbor charged with causing a
disturbance
I
What constitutes a public disturbance within the meaning of
section 175(1)(a)
R Requires an externally manifested disturbance in or near a
public place, consisting either in the act itself or in a secondary
disturbance
Test for disturbance – to weigh the degree and intensity of the
Possession Offences
Personal
 Easiest to prove
 When you currently have something on your possession
Constructive
 A person has something in the custody of another person or
any other place for the benefit of themselves
o The accused has knowledge of the character of the
object
9
o
o
Knowingly keeps or puts the object in a particular place
intention to have the object in that place for their use
F Marshall was 16 (adult at the time), charged jointly with 3 other ppl that they
were in possession of marijuana for the purpose of trafficking, contrary to the
provisions of the Narcotic Control Act; M decided to accompany his friend
to Vancouver for a weekend holiday; on the drive home, the appellant
noticed there was marijuana in the car; they got pulled over and the
marijuana was found. Marshall claims he didn't know about it and once he
did, he needed to get a ride back home as he had no money
Joint
Knowingly two or more persons have knowledge, control and consent
of the item
3 Elements of Possession
 Knowledge
 Consent
 Control
I
In order to prove knowledge
o Proven through direct or circumstantial evidence
 Direct - walk outside and see that it's raining,
therefore i know it's raining
Circumstantial - walk into class and i'm soaking wet but the person
didn't see it was raining but they can infer from the fact that you're wet
so it must be raining
All depends on case  circumstantial evidence
Doctrine of Innocent Possession
 Essentially arises when someone is in possession of
something that she shouldn't be but there's no moral
culpability of criminal culpability
 All of elements of possession are met however missing
criminal culpability
 Possession however for innocent purpose
 Only kicks in when there is actual possession
R v. Marshall
Whether D consented to the drugs being there? Is mere acquiescence
sufficient to establish “control” (think about this in the context of the
requirement)
R Mere acquiescence is not enough to establish control
R. v. Terrence
F
I

Friend stole vehicle asked Terrence if he wanted to go for a
ride in “ his brother in laws new car
Is “control” an element of possession  YES
R Control is a necessary component of possession
R v . Morelli
F

Possession of CP digital data files
I

Merely viewing an image of CP in a web browser does not
establish the level of “ control “ necessary to establish the
act of possession
If person views on website then they cannot have
possession

10

o Don’t have underlying file lacks the control
necessary to deem possession
Merely viewing an image of CP in a web browser does not
establish the level of “ control” necessary to establish the
act of possession
R Personal possession – Knowledge consent control. The mere fact
that an image has been accessed by or displayed in a Web
browser does not, without more, constitute possession of that
image.
R 
To be in possession of child pornography, it is not
necessary for the individual to have viewed the material.
It is the element of control, including deciding what will
be done with the material, that is essential to possession.
Consent
 Consent is often referred to as a defence
 However, there are times where consent can be
considered to be of no legal effect
o For ex. As a result of policy limits or b/c consent
was induced by fraud
R .V. Pham
F D charged with joint possession of cocaine for the purposes of
trafficking – charged against co-a withdrawn – Despite D not being
present during search convicted at trial – her house – D appealed
I
Did D have knowledge and control of the drugs in the bathroom
(common area)?
R Knowledge / consent/ control can be inferred from
circumstantial evidence
R. V. Chalk
F
I


Assault
 S 265 → Assault (definition) sets out actus reus req and
Mens rea requirement
o w/o consent applies force intentionally to other person
directly or indirectly
o (3) No consent is obtained where the complainant
submits or does not resists by reason of
 Fraud
 Application of force
 Threats of the application of force
 S 266 → Charge for assault
o Assault is a hybrid offence
Accused charged with possession of CP stored on the
hard drive on his computer
R v. Jobidon 1991 SCR
Outlines the legal limitations to forms of consent
Did the accused have control over the CP
F

Facts: consent fight; V falls unconscious and A continues
11
to hit him  V dies
I

Can one legally consent to non-trivial bodily harm?  No
R

Adults can consent to the intentional application of
force up to the point where serious hurt or non trivial
bodily harm is caused.
Cannot consent to bodily harm where  serious hurt or
non trivial bodily harm
person cannot consent to death, or to violent force in
activities that do not have enough social utility.


Consent Vitiated by Fraud
R v. Cuerrier 1998
F

I

R v. Moquin
Bodily harm test
F Victim suffered injuries which caused discomfort – definition of bodily
R

harm required whether the hurt or injury interfered with the victim’s
health or comfort and whether it was more than merely transient or
trifling in nature
I
R
S 2 of Criminal Code Bodily Harm → Any hurt or injury to a
person that interferes with the health or comfort of the person and
is more than merely transient or trifling in nature


A injury to a victim can be ‘bodily harm’ if there discomfort
or health interference and if it is more than trifling which
does not depend on the duration of the injury
Medical evidence is not required to prove bodily harm
A tested positive w/ HIV in 1992 → had unprotected
intercourse with 2 C however A didnt tell them he was
HIV+ → C stated that if they knew he was HIV + they
would have not had intercourse with A
when does the failure to disclose one’s HIV status be
regarded as a fraud vitiating consent within the meaning of
S 265(3)
No consent is obtained where a person submits or does
not resist by reason of Fraud
Cuerrier Test
o The act requirement the Crown has to prove
(where it is alleged that consent has been vitiated
by fraud) is that the dishonest act had the effect of
exposing the person consenting to a significant risk
of serious bodily harm
R v. Mobior
Current test HIV Consent
F


Accused charged w/ murder
On trial trial judge instructed the jury re. Fault
requirement of Murder → described as objective
12

I
1. Determine whether there was subjective voluntary
agreement to the specific physical sex act
 Deceptions about conditions or qualities of
the physical act may vitiate consent
 Voluntary agreement to the sexual activity
in Q encompasses
o Sexual nature of the activity
 Act was sexual in nature as
opposed to being for a
different purpose ie medical
o Identity of the partner
2.
Look to s 265(3)(c) & 273.1(1) and determine
whether there are any factors which would vitiate the
complainant’s consent
Appealed
Was there a significant risk of bodily harm ?  No
R

Where there is a realistic possibility of transmission of HIV
a significant risk of bodily harm is established
o If there is no realistic possibility that there would be
a transmission of HIV then there would be no fraud
found if not disclosed
o VERY SPECIFIC TO FAILING TO DISCLOSE HIV
Fraud:
1. Fraud pertaining to nature and quality of the act
a.
ex: if a woman goes to doctor and consent to doctor touching her but
moment it becomes more than medical in nature the consent is immediately
vitiated because nature and quality of act has changed).
2. Fraud pertaining to identity of a partner
.
If someone consents to sex with one person but hten another person
jumps into the mix, consent is automatically vitiated.

R v. Hutchinson
Facts



D had intercourse w/ wife however he poked holes
in the condom w/o her consent → Wife didn't want
to get pregnant
Wife got pregnant
Charged w/ aggravated sexual assault
Issue
Was consent vitiated when D poked holes in Condom ?
Held
Yes
Analysis Consent Analysis → Whether or not there is consent to
sexual activity

Ratio
Fraud vitiating consent has two elements
o Dishonesty, which can include the non
disclosure of important facts
o Deprivation or risk of deprivation in the form
of serious bodily harm which results from
dishonesty
Court deemed that becoming pregnant constitutes
serious bodily harm
o Due to the changes in a woman's body that
pregnancy causes which were not accepted
in this case
Consent Analysis → Whether or not there is consent
to sexual activity
1. Determine whether there was subjective
voluntary agreement to the specific physical
sex act
 Deceptions about conditions or qualities
of the physical act may vitiate consent
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
Voluntary agreement to the sexual
activity in Q encompasses
o Sexual nature of the activity
 Act was sexual in nature
as opposed to being for a
different purpose ie
medical
o Identity of the partner
2.
Look to s 265(3)(c) & 273.1(1) and determine
whether there are any factors which would vitiate the
complainant’s consent

Doctrine of De Minimus
 Operates at common law to reserve the application of criminal
law to serious conduct it protects the accused from the stigma
of a conviction for trivial conduct it does not mean the act is
justified it remains unlawful but an account of triviality it goes
unpunished. The law does not concern itself with trifles
R. v. Kubassek
Facts
Depriving a woman of the choice whether to
become pregnant or increasing the risk of
pregnancy is equally serious as a “significant
risk of serious bodily harm”, and therefore
suffices to establish fraud vitiating consent




Summary of Consent Vitiated by Fraud
1. Failure to disclose (dishonest act) = amounts to a fraud where
the complainant would not have consented had they known
the accused was HIV+ and the sexual contact poses a
significant risk of bodily harm (deprivation )
2. A significant risk of bodily harm is established by a realistic
possibility of transmission of HIV
3. A realistic possibility of transmission is negated by evidence of
a low viral load and a condom being used

Cannot consent while unconscious
o Consent must be able to be given and taken away at
will

D states heard message from god → goes to
church goes onto stage preaches anti same sex
marriage message
Pastor attempts to stop her D shoves pastor →
pastor trips nearly falls over object but didn't fall
and wasn't injured
D charged w/ assault
At Trial deemed to be trivial due to de minimis
and charges were dropped
Crown seeked leave to appeal
Issue
Was the Matter De minimis
Held
Appeal Allowed → D actions were not trifling
Analysis




Court looks at the series of events
o Intentionally went to church
o Intentionally delivered message that she
knew was unreceptive
o And knew the reaction she would receive
o Intentionally shoved pastor
The court deemed that the shove in this
circumstance cannot be seen as an irregularity
A mere trifle which if continued in practice would
weigh little or nothing on the public interest
Deeming D acts as trifling is ignoring the events
14
that took place
Ratio


De Minimis
o The law does not concern itself w/
trifles
However what is a trifle
o A mere trifle is an act in practice would
weigh little or nothing on the public
interest
Facts


Was there enough to prove assault?
Held
Appeal dismissed
In some cases omission of an act can be deemed to be a
criminal offence
Done on the basis that an accused had a duty to act
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
Buch v. Amory Mortgage Co.
 Ignoring a moral duty to act does not make you criminally
responsible
H.R.S. Ryan, Criminal Responsibility For Omissions
 Omission should be illegal if it had caused and had been
intended to cause harm or was known to be likely to cause
harm or was on other grounds illegal , that is, an offence in
itself or a breach of some direction of law, or such a wrong as
would be a good ground for a civil action
Fagan v. Commissioner of Metropolitan Police 1968


Omissions : Legal Duties to Act


Accused accidentally runs over police officers foot
while trying to park
Police officer tells him to move car off his foot
accused refuses
Accused is charged w/ assault
Issue
Analysis




A mere omission to act cannot amount to an
assault
Actus reus could be continuing
o Once act is complete → cannot
thereafter inflict unlawful force
o Continuing act → continuing threat to
inflict unlawful force
Actus Reus and Mens rea must be present at the
same time
Accused actions could not be seen as mere
omission → Knew car was on officers foot refused
to move switched off his car
Ratio

Actus reus can be a series of actions which
constitute a continuous act
15
R v. Miller
Facts


Accused lit a cigarette fell asleep woke up realized
mattress was on fire went to a different room to
sleep → did not put out the fire
Accused is charged w/ arson
Issue
Is the Actus reus present of the offence of arson ?
Held
Appeal Dismissed.
Analysis


Ratio


Facts
Actus reus doesnt always require a positive act on
the part of the accused to make him guilty of a
crime
Duty theory
o When someone has unknowingly done an
act which he laters realizes would be
dangerous he has a duty to take
reasonable steps to prevent danger
A person who creates a dangerous situation
may be under a duty to take reasonable steps
to avert that danger by himself or by sending
for or calling for help
An omission (failure to discharge a legal duty)
may be considered as part of actus reus but
mens rea has to occur at the same time



Accused runs red light on bicycle
Accused refused to stop for officer & did not
provide id
Charged with obstructing a peace officer in the
performance of his duty
Issue
Does a failure to identify yourself to a peace officer
constitute an offence?
Held
Appeal dismissed.
Analysis




Ratio

The constable was carrying out the duty of
enforcing the law of the province on the accused
by attempting the identify the accused
The accused had an obligation to identify himself
to a peace officer after he was seen committing an
offense.
The accused by failing to identify himself
obstructed the police officer in the performance of
his duties
Omission of information constituted a crime
An omission can constitute a crime in some
circumstances
R v. Thorton 1990
Moore v. R
Facts


Accused donated blood to The Red Cross
knowing that he was HIV+
Charged w/ committing a common nuisance
16


contrary to s.180
o Anyone who does an unlawful act or fails to
discharge a legal duty and thereby
endangers the lives, safety or health of the
public
Trial judge held that the accused had a duty by
donating blood knowing the purpose for which such
donations are collected and as a result was
involved in a medical procedure in accordance to
s.216
Accused Appeals → conduct isnt an offence known
to law

Ratio

A Legal duty can come from statute or common law
R. v. Browne 1997
Facts
Analysis



Issue
Held

Appeal Dismissed




Donating contaminated blood is not an offence of
the Code
Court determines that there is a Fundamental duty
recognized at common law
o Duty to refrain from conduct which could
cause injury to another person
Donating HIV contaminated blood is a breach of
that legal duty
Dismissed appeal


Was the accused’s statement an undertaking in
accordance to s.217
Held
No undertaking = No Legal duty = No breach Appeal
allowed . Acquittal
Analysis

Duty of care was imposed under s216 when
accused donated blood
Duty of care was breached by not disclosing that
the blood was contaminated
Deceased swallowed plastic bag of crack cocaine
unable to vomit it up
Deceased was overdosing accused said he would
take the deceased to the hospital
Instead he called her a taxi and deceased died
upon arrival
Accused charged under s 217
o “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 “
Trial judge found that saying that he was going to
take the deceased to the hospital was an
undertaking within the meaning of s 217 which
created a legal duty
Issue
Thornton v R 1993 SCR
Court
Omission can constitute a crime if it breaches a
legal duty, duty of care




A mere expression of words indicating willingness
to do an act cannot trigger a legal duty
Undertaking → Must have been clearly made and
w/ binding intent.
Nothing short of a binding commitment can give
rise to the legal duty contemplated by s 217
No undertaking of binding nature in this case
17
“ i'll take you to the hospital”
Accused did not know the deceased was in
a life threatening situation until moments
before call
o No evidence that calling 911 would have
resulted in quicker arrival at the hospital or
even that her life could have been saved
No undertaking = No Legal duty = No breach
o
o


Ratio

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
o Undertaking → Must have been clearly
made and w/ binding intent. Nothing
short of a binding commitment can give
rise to the legal duty
No Legal act imposed by statute or common law
R v. Peterson
Facts


Accused neglected father’s needs to the point
where father’s life had been endangered
Charged w/ failing w/o lawful excuse to provide
necessaries of life contrary to s 21 5
Issue
Did the accused breach his duty to provide the
necessaries of life
Held
Appeal dismissed
necessaries of life ( omission)
Ratio
Failure to provide necessities of life constituted omission
Voluntariness
R v. King
 No actus reus unless it is the result of a willing mind at liberty
to make a definite choice or decision
 Must be a willpower to do an act whether the accused knew or
not that it was prohibited by law
Rabey v. R
 No act can be a criminal offence unless it is done voluntarily
 Consciousness is an essential condition to criminal liability
 An act that is involuntary → complete unqualified acquittal
R. v. Parks
 Voluntariness is part of the actus reus requirement
 Voluntariness  must be done by conscious mind
R v. Lucki
Facts


Analysis


Arnold was under the charge of the accused and
as a result the accused had a duty to provide
necessaries of life
The accused breached this duty by not providing
Accused was driving car skidded over to the
opposit side of the road causing an accident
Charged for using highway contrary to S125(9)
Issue
Was there Actus reus? Was the action voluntary
Held
Accused not Guilty
Analysis

Car got on the wrong side of the road by an
18


Ratio
involuntary act caused by the condition of the road
Cant deduce from evidence that it was due to
faulty driving of the accused
“ a person who by an involuntary act for which he is
not to blame gets onto the wrong side of the road
is not guilty under the section in question”
Involuntary  Not found criminally liable
R v. Wolfe
Facts
Analysis
On Appeal
 Appellant found guilty of assault causing bodily
harm
 Complainant entered hotel ( previously had been
banned) had verbal exchange with accused
 Accused went to hotel phone to call the police
complainant hit the accused
 Accused turns quickly and hits complainant w/
phone



Ratio
R v. Swaby
Court determined that the accused reaction of
hitting the complainant w/ the phone was a reflex
reaction
Reflex action = no offence b/c some intent is a
necessary ingredient in an assault
Appeal allowed finding of guilt set aside
Reflex action = involuntary act



Voluntary conduct is a necessary element for criminal liability . that
requirement applies even if the provision creating the offence does
not expressly require one
There is no general criminal code stipulation that the guilty act be
voluntary the requirement exists by virtue of judicial reasoning
The act must be voluntary for the actus reus to exist
Summary of Voluntariness




Voluntary conduct is a necessary element for criminal liability.
Voluntariness is part of the actus reus requirement no act can be
criminal unless it is done voluntarily
No actus reus unless it is the result of a willing mind at liberty to
make a definite choice or decision. Inorder for an act to fulfill actus
reus, it has to be done purposefully at ones own voluntary/ free will. A
defence that the act is involuntary entitles the accused to a complete
and unqualified acquittal
Generally, where it can be shown that the conduct of the accused is
not of his conscious mind then there is no actus reus
The crown always bears the burden of proving a voluntary act
Causation




Causation generally is the casual relationship b/w conduct and
result
Causation provides a means of connecting conduct w/ a resulting
effect typically injury or death
Certain offences in the criminal code required not only that the
offender commit a prohibited act but also that the act caused a
particular result
Criminal responsibility for causation must be established in both fact
and law ( R v. Nette)
o Factual causation: requires an inquiry into how the victim
came to his or her death in a medical mechanical or physical
sense and the contribution of the accused to that result
 I.e but for the act would death have arose ?
o Legal causation : addresses the moral element of whether or
not the accused should be held responsible in law for the
death
19



Criminal standard of causation : the accused’s conduct must be
contributing cause of the result outside of the de minimus range
o W.e the accused did to cause the particular result has to be
a contributing cause that is beyond something that is trifling
in nature
o This is the Smithers test
Causation  judicially developed
Smithers SCC 197
 The smithers test for causation applied to all types of homicide
murder and manslaughter ( but there is a separate test for first
degree murder
 The test requires the accused’s act to be significant contributing
cause of death beyond something trifling or minor. Thus the unlawful
act remains the legal cause of death even where the act by itself
would not have caused death as long as it was beyond de minimus
 Issue : was the kick a significant contributing cause of death to attract
criminal liability ?
 Holding: causation was established in this case
 Thin- skull rule
o You take your victims how you find them
o Just b/c the action may not result to death if it performed on
anyone else doesnt matter
o The only Q is whether the actions contributed to death
outside of the de minimus
Harbottle 1993 SCC
 Standard of causation in the case of first degree murder
o Higher
 Test: substantial and integral cause of death
 Issue : was the accused’s participation such that he could be found
guilty of first degree murder? Did the crown prove that his conduct
was a substantial and integral cause of death
 5 part test
 The court found that the accused’s conduct in holding down the
victims legs was sufficient for the causation standard for first degree
murder
Nette 2001


Upholds the Smithers Test but re-words it to “ a significant
contributing cause” ( as opposed to a contributing cause outside of
the de minimus range )
Harbottle standard for first degree murder affirmed/upheld
But what about second degree murder? What causation standard
should apply ?
Talbot and F (D.L.)
 In Talbot, The issue was whether death was caused by the initial
blow or a subsequent kick
 Court reviews factual and legal causation
o Injury that ensued had to be related to the unlawful use of
motorcycle
 Crown has to prove causation beyond a reasonable doubt
o I.e that the kick was a contributing cause of death
 The court looked at the smithers standard the court ultimately found
→ they recognized that the causation issues can be tricky
Blaue 1975 CA
F



Manslaughter conviction ( knife attack )
The victim of the knife attack died after refusing to have a
blood transfusion ( religious grounds )
The crown conceded that a blood transfusion would have
likely saved her life in other words failure to have a blood
transfusion was a cause of death
I

The issue is whether or not the conduct of the accused is
a significant contributing cause ?
R

Ratio: if at the time of death the original wound is the
operating cause and a substantial cause then the
death can be reasonably said to be the result of the
wound although some other cause of death is also
20
operating
o There can be more than 1 cause of death



Maybin 2012 SCC

F



There were 3 accused charged 2 brothers and a bouncer
the 2 brothers were assaulted the victim in a bar over a
game of pool
Brother struck a blow that rendered the victim
unconscious
Bouncer came and hit the victim in the head and dragged
him out
Victim died
I

Issue : Was the bouncers action an intervening action that
broke the causation chain b/w the brothers and the victims
death  No
R

If there is a disruption or break in chain of causation then
the crown will be unable to prove causation BARD
Reasonably foreseeability approach
o Intervening act that is reasonably foreseen then
intervening act does not break the chain of
causation



There are 2 different analytical approaches to reconciling the
accused’s culpability and the connection b/w acts and death
Neither approach is determinative they are simply analytical
tools
The test is the same → smithers test
Intervening act
o Something that interrupts the chain of causation
If there is a disruption or break in chain of causation then
the crown will be unable to prove causation BARD
The Fault Requirement

Mens rea → Mental element of crime
o Varying according to the different nature of different
crimes
o Mens rea could be
 Intention to do the immediate act or bring about
the consequence
 Recklessness as to such act or consequence

Not all crimes require mens rea Mens rea exceptions
o Some crimes require negligence
 Negligence is not necessarily a state of mind
 Kind of legal fault
o Strict Liability or Vicarious responsibility
Objective/Subjective Distinction
(Canada)
Subjective Standard
 Whether the accused was actually aware of a risk
 All of the accused’s individual factors are taken into account
o Individual factors → age ,race gender ,poverty ,
experience
Objective Standard
21


R v. Hundal
 A truly subjective test seeks to determine what was actually
in the mind of the particular accused at the moment the
offence is alleged to have been committed
o The accused given his personality, situation and
circumstances actually intended, knew or foresaw the
consequence/circumstance as the case may be
o Whether he could/ought/should have foreseen or
whether a reasonable person would is not relevant
o Trier of fact may draw reasonable inferences from the
accused’s actions or words at the time of his act or in
the witness box
 Accused may or may not be believed
 Objective Test
o On the other hand an objective test is one requiring
a marked departure from the standard of care of a
reasonable person. There is no need to establish
the intention of the particular accused. The
question to be answered under the objective test
concerns what the accused should or ought to
have known.
 Marked departure → significant departure
R v. Theroux

looks to the accused’s intention and the facts as
the accused believed them
 Not whether the accused believed the acts or
their consequences to be moral or
 whether a reasonable person would have
foreseen the consequences of the prohibited
act
Whether the accused failed to measure up to the external
standard of the reasonable person , irrespective of awareness
No individual factors are taken into account
o Except when they relate to incapacity
Test for mens rea is subjective
o Except when actus reus is negligence or inadvertence
and offences of absolute liability
o Test : whether the accused believed that certain
consequences would follow his/her acts. → Court
R v. Mulligan




Facts : Accused caused the death of wife by repeatedly
stabbing her
The accused’s intention was a fact in issue
An accused’s actions can be evidence to mind or
intention of the accused
o The probability that harm will result from a man’s act
may be so great that it compels an inference that he
actually intended to do harm
Jury must weigh what the accused said his/her intentions were
w/ the inference that can be drawn from their conduct
R v. Ortt
 A person is not presumed to have intended the natural
consequences of his act
o Onus is not on the accused
 An Inference is no more than a matter of common sense and
merely indicates that a certain conclusion may be drawn if
warranted by the evidence
 It is a reasonable inference that a man intends the natural
consequences of his acts
o Man points gun and another and fires it
 Jury may reasonably infer that the accused
meant to cause his death or to cause him bodily
harm that he knew was likely to cause death
regardless of whether the death ensued or not
22
R v. Walle
 Must consider the whole of the evidence that could
realistically bear on the accused’s mental state at the time of
the alleged offence
Beaver v. R

Facts

Summary of Subjective/Objective Distinction:



Following are subjective states of mind ( the basis of most
criminal liability )
o Intention
o Wilful Blindness
o Recklessness
In trying to ascertain what was going on in the accused mind
as the subjective approach demands, the trier of fact may
draw reasonable inferences from the accused actions or
words at the time of his act or in the witness box ( or both ).
The accused may not be believed
Objective state of mind ( subjective awareness/intention are
irrelevant)
o Negligence ( different from the negligence in a civil
liability context)
Fault for Public Welfare (Regulatory)
Offences


A Low level objective standard is common for public welfare
offences
Traffic offences, sales of impure food, violation of liquor laws,
tobacco sales, pollution etc



Issue
Is mens rea required in drug possession

Importance

Accused appealing convictions on counts of
selling and possessing drug
Max Beaver sold drug to under cover cop →
Appellant was a party to the ale of the package
Appellant did not have the package
Appellant → had no knowledge that the
substance contained in the package was a drug
believed it to be sugar of milk
Trial judge
o If in possession of package and sold it →
and package contained drug → guilty
regardless of whether he had knowledge
or not
o No Mens Rea
Unless a statute either clearly or by necessary
implication rules out mens rea as a part of a
crime the court shall not find a man guilty of a
crime unless mens rea is satisfied
After case it has since been accepted that all drug offences
require subjective mens rea
Public Welfare Offences & Mens Rea
R. v. City of Sault Ste. Marie 1978
Facts

Sault Ste. Marie was responsible for the disposal of
garbage in their city. They entered into an agreement
with a third party to dispose of garbage in a particular
23



Issue
area.
This party created a landfill that leaked into the nearby
river causing pollution.
S. 32(1) of the Ontario Water Resources Act (now s.
30(1)) stated that every person or municipality that
discharged, deposits or causes or permits the
discharge or deposit of pollution into water is liable
under summary conviction at the first offence for a fine
of not more than $5000, and on subsequent offences
of a fine not more than $10,000 or to imprisonment for
less than a year.
The charge was dismissed at trial as the judge held
that the city was not itself responsible for the disposal
operations, but a conviction was entered at trial on the
basis of absolute liability under the Act.
R v. Wholesale Travel Group Inc.
Facts



Issue
Do regulatory schemes which impose strict liability
breach the Charter
Analysis
Cory J

Do Public Welfare offences require Mens Rea
Ratio Three Categories of offences



True Crimes → Offences in which mens rea
consisting of some positive state of mind such as
intent , knowledge or recklessness must be proved by
the prosecution
Strict Liability → No requirement to prove mens rea
however allows defendant to raise defence of due
diligence
 Involves consideration of what a reasonable
man would have done in the circumstances
Absolute liability → The Crown does not need to
prove mens rea, and the defendant has no chance to
exculpate himself by showing he was acting
reasonably.
Wholesale Travel was charged with false
advertising under s.36(1) (now s.60)(2)) of the
Competition Act.
The statutory punishments for the offence were
a fine of up to $25,000 and five years in prison.
Wholesale Travel appeals on an order for trial
from the Court of Appeal.



The objective of regulatory legislation is to
protect the public or broad segments of the
public from the potentially adverse effects of
otherwise lawful activity
o Criminal offences punish past inherently
wrong conduct where as regulatory
offences directed to the prevention of
future harm
The concept of fault in regulatory offences is
based upon a reasonable care standard does
not imply moral blameworthiness in the same
manner as criminal law
Examines Competition Act and deems it to be
regulatory in character
Reasons for differential treatment
o Licensing justification
 View that those who choose to
participate in regulated activities
have in doing so placed
themselves in a responsible
relationship to the public
24
o

Importance

generally and must accept the
consequences of that
responsibility
Vulnerability Justification
 Legislative protections enacted
on behalf of the vulnerable
 Regulatory offences protect all of
society and particularly its
vulnerable
driving
The concept of fault in regulatory offences is
based upon a reasonable care standard
Strict Liability in regulatory offences do not
breach Charter
Analysis
Reference Re Section 94(2) of the Motor Vehicle Act

Section 94(2) of the Motor Vehicle Act stated that a
person who drives a motor vehicle on a highway
while license is suspended is guilty of an offence,
and is liable to a fine between $300 and $2,000,
and imprisonment between a week and six months
(on the first offence).
o Absolute liability → guilt established proof of
The government is arguing that this does not violate
s.7 of the Charter.

The Court of Appeal ruled that this violated because
absolute liability offences cannot have mandatory
prison sentences. Having mandatory prison
sentences for crimes that have no defence violates
the principles of fundamental justice and the right to
be presumed innocent. However, they did not
answer whether or not merely having imprisonment
available as an option for an absolute offence was
contrary to s.7.

Issue
Facts

Is Absolute Liability offences w/ imprisonment penalties in
violation of the Charter


Ratio

A Law enacting an absolute liability offence will
violate S.7 of the charter only if anf to the extent
that it has the potential of depriving life, liberty, or
security of the person
o The legislation in question imposes
imprisonment as a penalty of its absolute
liability offence → Violation of charter
No absolute liability offence can be punishable by
imprisonment
Absolute liability offences cannot be punishable by
imprisonment
25
Fault For Crimes

I
Murder
Accused appealed
Did the judge err in providing the definition of Likely?
R
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause
his death, and is reckless whether death ensues or not;

Murder Fault Requirement
o Crown must establish BARD that accused
meant to cause the victim’s death or meant to
cause bodily harm that he/she knew was likely
to cause her death
 Likely → substantial degree of
probability not a mere possibility
o Subjective
o This case defines “ likely”
Simpson v. R 1981
F



I
R
Accused charged w/ murder
On trial trial judge instructed the jury re. Fault
requirement of Murder → described as objective
Appealed
Constructive Murder
Causing death in the course of committing another unlawful act
Is the fault requirement for Murder Objective ?

Fault requirement / Liability for Murder is subjective
o State of mind must be taken into account
Vaillancourt v. R 1987
Facts

R v. Edelenbos
F


Accused charged w/ murder
Trial judge provided jury w/ definition of “likely” in the
context of intent to murder

Issue
Ratio/
Vaillancourt convicted of second degree
murder → appealed → appeal dismissed
conviction affirmed
Appealed → challenged the constitutional
validity of S.213(D) alone & in combination w/
s21(2)
Is S. 213(d) valid

It is a principle of fundamental justice that,
26
absent proof beyond a reasonable doubt of at
least objective foreseeability, there surely
cannot be a murder conviction
Importance

R v. Martineau 1990
Facts



Issue
Ratio/
Importance
Accused and companion armed with pellet
pistol and a rifle → perform BnE tie up
occupants → companion shot and killed
occupants
Convicted of 2nd degree murder → 213(a) and
(d)
Court of Appeal → 213(a) was inconsistent w/
charter due to reasons given in Vaillancourt
Is S 213(a) unconstitutional ?

A conviction of Murder requires crown to
prove BARD subjective foresight of death
o Raises standard established in
vaillancourt
R v. Shand
Facts



Accused and two others went to home of drug
dealer planning to steal marijuana
Robbery gone wrong accused shot and killed
male in basement of home
Charged 2nd degree murder → Trial judge
instructed to jury 229(C) → defence argued
that liability under that section was
incompatible w/ an accidental discharge →
convicted
Accused on appeal challenged the
constitutionality of 229(c)
o S.7 charter demanded a min mens rea
of intent to cause serious bodily harm
Issue
Ratio/
Importance

S229 (C) satisfied where the following
elements are present
o The accused must pursue an unlawful
object other than to cause death of the
victim or bodily harm to the victim
knowing that death is likely
o The unlawful object itself must be an
indictable offence req mens rea
o The accused must intentionally commit
a dangerous act
o The dangerous act must be distinct
from the unlawful object → only in the
sense that the unlawful object must be
something other than the likelihood of
death
o Dangerous act must be a specific act or
a series of closely related acts that in
fact results in death ---> does not itself
have to constitute an offence
o When the dangerous act is committed
the accused must have subjective
knowledge that death is likely to result
27


Classification of Murder : First or Second

Ratio/
Importance

The punishment for both first and second degree murder
is fixed at life imprisonment
o Distinction → parole eligibility → how many years
until you can be eligible for parole
R v. Smith
Facts


Accused kills friend → charged w/ first degree
Appeals
Issue
Was there evidence to constitute first degree murder
Held
No. First degree murder conviction set aside →
convicted of 2nd degree
Analysis

In this case
o No evidence that killing was planned
o May have been deliberate
o However both elements are
REQUIRED
No 1st degree murder
Murder is first degree when it is planned and
deliberate
o Planned → Killing was a result of a
scheme or design previously formulated
or designed by the accused and the
killing was the implementation of that
scheme or design
o Deliberate→ Considered not
impulsive carefully thought out not hasty
or rash
o both elements are REQUIRED
R v. Nygaard and Schimmens
Murder is first degree when it is planned and
deliberate
o Planned → Killing was a result of a
scheme or design previously formulated
or designed by the accused and the
killing was the implementation of that
scheme or design
o Deliberate→ Considered not
impulsive carefully thought out not hasty
or rash
Facts
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Issue
Accused selling car stereo → victims check
bounced → accused told victim if matter wasnt
fixed that day to expect trouble
Accused and accomplice go to motel attack
victim w/ and friend w/ baseball bat → victim
dies
Charged 229 (a)(ii) bodily harm → death
Can Bodily harm  death be 1st degree murder? 
28
Yes
Ratio/
Importance
F
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229(a)(ii) can be first degree murder
229 (a) (ii) If the accused means to cause
someone bodily harm that he knows is likely to
cause that persons death, and is reckless
whether death ensues or not;
o If planned and Deliberate → first
degree murder
R v. Collins
Analysis
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Ratio/
Importance
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R v. temp
Classification of murder → to require a more
severe punishment for offences with an
added degree of moral culpability
S.214 (4)(a) → murder police officer→ first
degree
Crown must prove that the murderer had
knowledge of the identity of the victim as one
of the persons designated in the sub section
No planned and Deliberate requirement
necessary in these cases
Exception to First degree murder if
Planned and Deliberate
If murder is to a person designated in S
231(4) → First degree if individual had
knowledge of the identity of the victim
I
R
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