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CRIM LIABILITY for an offence normally requires proof of 3 elements:
(1) actus reus – prohibited conduct
(2) mens rea – state of mind, culpability
(3) absence of any lawful defence
- Coke’s Institutes (1641): “ actus non facit reum, nisi mens sit rea
” [the act is not criminal unless the mind is also criminal] – CC does not say this though, this is CL.
PARTIES to offences (all guilty of the same offence) are specified in ss.21 & 22
1) actually commit it – perpetrator(s) (21(1)(a))
- doctrine of innocent agency (uses innocent to perform AR) treats them as principal perp even though could say that they’ve aided/counselled/procured the offence ( Toma )
2) aid it (21(1)(b))
3) abet it (21(1)(c))
4) counsel it (22(1))
5) form a common unlawful purpose w/ the parties of the offence (21(2))
6) corporate liability
7) vicarious liability
SEPARATE, but related, offences are
1) accessory after the fact – separate offence, not a party to orig offence (s.23)
2) counselling an offence which is not committed – separate offence on its own. (s.464)
Actus Reus : prohibited conduct, each offence will set this out.
- Preliminary Issues when dealing w/ prohibited conduct:
(1) is it properly matter w/in const authority of the feds/prov enacting the offence?
(2)
Is it “unduly vague” or “overly broad”, violates s.7 of
Charter ?
(3) Does it unreas infringe (will always a bit) on Charter right/freedom?
(4) Look for stat defns of words (CC: s. 2, beginning of each part where offence is located, right below section tells you x-references, go to index)
(5) Look for case law interpreting words (Crankshaw has list of rel cases)
(6) Apply rules of stat construction: Dreidger, historical analysis (what was intended when enacted? Is this still what’s intended?), strict construction of penal statutes
I.
ELEMENTS OF AR voluntary Act, or omission of a legal duty causes occurs in prescribed harm prohibited circs
-
These elements are PFJs, not specifically set out in CC (need ‘em or unconst!)
Offence can involve both act and omission (failing to remain at scene of accident), and may involve either prescribed harm, prohibited circs, or both.
Prescribed harm for murder and manslaughter is “death of a human being”

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Prohibited circs in offence of “impaired driving” is driving “while impaired” (no harm required)
II.
VOLUNTARINESS
2 Types of involuntariness: A) conscious; B) unconscious/impaired
*See Chart
-
DEFN: voluntary conduct is a “willed” physical act or omission; a situation where the person “chose” to act or not; where A had physical “control” over their conduct.
CC does not expressly state that A’s conduct must be voluntary, but is CL general principle of criminal law that no conduct be criminal unless it is done voluntarily (cited in Rabey,
Parks, Daviault, Stone )
-
RATIONALE: “voluntary” is “fundamental” b/c it would be unfair and unjust to condemn and punish persons for conduct they did not choose or could not physically control.
-
“Voluntariness requirement” wrt AR refers to “physical” voluntariness;
Ruzic refers to
“moral involuntariness” (threatened to bring drugs into Canada, morally not voluntary b/c had no choice), this is separate defence of duress/compulsion that exists notw/standing existence of AR & MR.
Ryan 1967 Aust (Robbing gas stn, sudden movement by V caused A to accidentally pull trigger): put himself in situation where was foreseeable consequence, convicted; McDowell
1980 ONCA (traumatic injury, medication, alcohol & distress over friend’s death then drove dangerously): convicted; Daviault : still involuntary even though was self-induced, contrib doesn’t matter.
A.
Conscious Involuntariness
-
Burden on Crown to establish BRD that A’s conduct was voluntary
physically involuntary (not willed) even though conscious
EXAMPLES
1.
spasm or twitch [ Bratty ]
2.
reflex action (stung by swarm of bees) [ Wolfe hit by V “reflexively” turned & hit V w/ phone (SD better?); but in Ryan wasn’t “reflex” b/c put himself in situation]
3.
unexpected mechanical failure of vehicle, or unexpected ice/oil slick [ Lucki ]
4.
trip and fall
5.
accidental movement (trip & fall down stairs)
6.
physical compulsion: take A’s hand and swing it into B; placed in driver’s seat while unconscious [ Butler ; what Larsonneur should have been]
7.
physically impossible to fulfill legal duty (pinned under car and can’t help child)
B.
Unconscious/Impaired Conscious Involuntariness
impaired consciousness such that there is no voluntary control over actions
Burden on A on bal of probs that they’re conduct wasn’t voluntary
INCLUDES
1.
Diseases of the Mind : severe mental disorders, such as psychomotor epilepsy [brain is convulsing] ( Bratty ), dealt w/ under Mental Disorder/Insanity defence.
2.
Extreme Intoxication: self-induced akin to automatism ( Daviault ), dealt w/ by
Intoxication defence
3.
Non-Insane Automatism :

4 a) sleepwalking ( Parks , but now in doubt due to Stone & Campbell ) b) concussion ( Bleta ) c) delirium d) epileptic seizure ( Quick; Sullivan ) e) involuntary intoxication ( King wasn’t told of dentist drugs’ effects) f) extraordinary psych-blow disassociation ( Rabey as limited by Stone )
III.
ACTS & OMMISSIONS
Prohibited conduct normally consist ofs: A) acts; B) omissions of legal duty; C) status (rare)
A.
Acts
since act is always set out in CC or statute, practical concern is definitional one
Matter of statutory interpretation: look to CC to see if it defines it, otherwise examine the case law to see how court has interpreted it
Look to 1) section itself; 2) adjacent sections 3) beginning of code ss.2 & 4; 4) beginning of section/part; 5) index.
B.
Status Offences
criminalizing a “state of being”, rather than some positive action (red flag = “being”)
Ferg thinks we have few, if any, status offences – strongly suggest that criminalizing pure status rather than action violates s.7’s PFJ – especially when statuses are
“involuntary” (gender, race, ethnicity)
-
“Keeping a bawdy-house”, “being nude in public place” – not real status offences, all involve some conduct as part of the offence
Vicariously liability as ex of status liability: master/E liable for acts/omissions of servant/e in course of employment just b/c of status (relnship btwn them, master/E doesn’t have to have done/omitted to do anything) – but this is tort, n/a to crim except maybe w/ abs liability (& might violate voluntariness requirement).
Larconner 1933 Eng
Eng revokes her visa, goes to Ireland, they arrest her & kicker her out to “whence she came”, charged in Eng w/ being non-UK cit with no permission to be there
Held: convicted
NB: not really status offence, has to do w/ crt forgetting to apply voluntary requirement!
Burt 1985 Sask QB – Vicarious Liability, No Voluntary = Unconst charged w/ allowing someone to operate his motor vehicle w/ excessive noise contrary to the MVA, MVA made auto vicariously liable unless prove no express/implied consent
Tjudge: s.7 PFJs include concept that person shouldn’t be punished w/out proof of wrongful act – no voluntary conduct;
CA: didn’t follow Tjudge but said no fault, & no fault was unconst (at the time)
NB: Ferg says Tjudge was better

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C.
Omission of Legal Duty
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Omission is failure to act, imposes crim liability only in circs “where the law imposes legal duty to act”
Canada followed CL position advocated by Macaulay and Stephen (too hard to determine limits – if 1 step, why not 50 – crim omissions should be left to legal duty, duty to rescue leave to public opinion, religion & morality), rather than the broader approach of Bentham (gen duty to save another from harm when can be done w/out prej to oneself)
1.
Source/Scope of Legal Duties
- General proposition in Anglo-Cdn law that no duty to be good Samaritan, even if could do so easily & w/out risk or disadvantage.
a) Common Law: recognized at least 3 broad categories of legal duties i.
relationships of dependency (parent/guardian to child; doctor/nurse to patient; jailor to inmate) ii.
undertaking to do something iii.
duty to use reas care in dealing with dangerous objects or performing dangerous tasks (engaged in conduct which could cause harm to others) b) Criminal Code: roughly codified CL i. s.215(1)
: duty to provide “necessaries of life” to certain dependents
(a): as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under 16
(b): to provide necessaries of life to their spouse or CL partner
(c): to provide necessaries of life to a person under his charge if that person
(i): is unable, by reason of detention, age, illness (dr/patient), mental disorder or other cause (very broad – hasn’t been interpreted), to withdraw himself from that charge, and
(ii): is unable to provide himself with the necessaries of life (broad - could encompass jailor/inmate) ii. s.217
: duty of persons undertaking an act to actually do the act, if omitting to do it may be dangerous to life
- Browne , 1997 ONCA (relnship as partners in drug dealing not suff to find implicit undertaking to take to H whenever swallowed drugs; expression of willingness not suff): “undertaking” needs binding commitment upon which reliance could reas be placed. iii. s.216
: duty to use reas care in undertaking acts that may endanger life (very much in mind medical profession when enacted) iv. s.217.1
: legal duty on persons who direct the work of others to take reas steps to prevent bodily harm to other persons arising from that work (2003 expanding crim liability of corporations)
2.
Specific Omission Offences
- CC contains some offences that are explicit about omissions… a) s.50(b): fails to report to police a high treason (s.46(1)) about to be committed b) s.80: breach of duty in regard to care of explosives (s.79) c) s.127: failing to obey a court order d) s.129(b): omitting to assist PO when requested e) s.252(1): failing to stop and render assistance after being involved in accident

6 f) s.254(5): failing to provide a breath sample
3.
General Omission Offences
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Some CC offences say can be committed by act or “by omission of legal duty”
Sources of Duties: 1) CC; 2) fed or prov statutes; 3) CL (appellate crts say can come from fed/prov statute or CL – SCC hasn’t ruled)
Ferg Comments:
relying on CL duties (instead of CC ones) might violate s.9 of CC (abolished all
CL offences), esp when relying on new/expanded CL duties.
Reliance on prov legis (or worse: sub prov legis) creates possibility that liability for crim offences will vary from prov to prov depending on diffs in prov legis.
Law Reform Commission (1987) & Parl Sub-Committee (1993) rec that should be restricted to legal duties in CC or other fed statutes – parl hasn’t acted on recs a) s.180(2): Common Nuisance
Everyone commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers lives, safety, health, property, or comfort of the public… b) s.220/221: Crim Neg Causing Death/Bodily Harm s.219: defines crim neg
(1) Everyone is criminally negligent who…
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
…shows wanton or reckless disregard for the lives or safety of other persons
(2) For the purposes of this section,
“duty” means a duty imposed by law c) s.21(b): Party Liability as an Aider
21: Everyone is a party to an offence who…
(b) does/omits to do anything for the purpose of aiding any person to commit it
R v Coyne , 1958 NBCA – Crim Neg: Statute or CL
Hunting accident - died
 duty in regard to Crim Neg Causing Death may arise by either statute or CL
 convicted based on CL duty to use reas care in dealing w/ dangerous objects (rifle)
Q: could court have relied upon s.216 for legal duty?
R v Popen , 1981 ONCA – Crim Neg: Statute or CL
Child Abuse case: failed to take action stopping others from harming your child
Justice Martin (big deal w/ crim)

Duty in regard to the offence of Crim Neg could arise by statute or CL

Court relied upon CL duty legal duty of a parent to take reas steps to protect child from illegal violence
Q: could court have relied upon s.215(1) for legal duty?
R v Nixon , 1990 BCCA – Prov Statute or CL
Inmate assaulted by other POs, Officer in Charge didn’t participate but didn’t stop it

Officer in Charge was party to and guilty of assault on basis of breach of legal duty to provide care and protection to inmates under his care

Legal duty can arise by either (1) prov Police Act or (2) CL

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Q: why not use s.215(1)(c)?
R v McEachen , 1988 BCSC – Prov Statute or CL
Pit Bulls attacked neighbour
 A (owner) had duty to ensure dogs didn’t cause harm to others

This duty imposed by 1) CL (citing Coyne ); 2) Animal Control By-Law
Q: why not use s.216?
R v Thornton , 1991 ONCA/SCC – Common Nuisance: CL Principles (!)
Knows he’s HIV+, donates blood anyway – charged w/ common nuisance
 Can’t find duty in statute, look to tort law (CL) principle to take reas steps to not injure one’s neighbour (?!)
 A’s failure/omission to disclose HIV+ when donating was breach of this legal duty
& suff to convict of common nuisance
SCC: doesn’t address CL issue, finds legal duty under 216 (yay!)
IV.
CAUSATION
Have A) general rules; B) special circs & rules (thin skull; intervening cause; death; multiple As)
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Need this, it’s a PFJ! (opens door to s.7 challenges)
determined by CL b/c no general provisions in CC (except wrt some parts of homicide)
Degrees: none<trivial/ de minimus/ insignificant<significant<substantial<main/primary<sole
Crown has burden BRD if offence has prescribed harm/consequences
Generally once we’ve found MR then causation follows easily (rarely an issue), becomes more problematic when MR std is low (ex manslaughter)
A.
General Rules for Causation
Need: 1) factual cause; 2) legal cause; and 3) can’t be too remote
*Special rules for homicide/death, esp 1 st
degree murder
1.
Factual Cause
Need at least some causal link btwn A’s criminal conduct & the criminal harm
EXAMPLES of no causation:
Winning 1973 ONCA (filed out credit application falsely except for name & address, stored didn’t rely on anything else – charged w/ obtaining credit by false pretences): No causation b/c lying didn’t result in the credit.
Impaired/Dangerous Driving cases:
Wilmot 1940; and Fisher 1992 BCCA (driving while impaired, was accident – determined would have occurred regardless, unavoidable accident [NB: really high std of proof here]): impairment must be a cause, not just a circumstance – BUT later cases said once impairment is proven it’s assumed to have contributed to accident unless there’s some other innocent explanation for it (
White 1994 NSCA; Deprez
1994 ManCA; Andrews 1994 BCCA)
Intervening Causes:
White 1910 Eng (tried to poison mom, but she died of totally indep/unrelated heart attack – intervening cause ex): not liable for her death (but is for attempted murder).
Uncertainty as to What in fact caused the Harm (scientific dispute):

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Johnson 1976 NBCA (A hit V in head, V was alcoholic & suffered subsequent head injuries from falling): not proven BRD that blow had any contribution.
Cyrenee 1981 OntHC (JW parents abducted their kid from H to stop blood transfusion – died): not proven BRD that was a cause of death (NB: if conduct had accelerated death then would have been liable under s.226)
2.
Legal Cause
Even if was factual cause, to hold someone morally responsible we need factual connection to be sig enough to justify liability (need suff legal cause)
TEST: can use either articulation, but Nette is preferred ( Pangowish , 2003 BCCA)
1) any contributory cause that is beyond de minimus range; no need for A’s conduct to be sole or main cause, or even substantial cause - can be more than 1 legal cause for harm, more than 1 person legally liable ( Smithers )
- Smithers test is not so low as to violate s.7’s PFJs (
Cribben )
- error to require conduct to be “substantial cause” ( Pinski , 1989 SCC)
2) must be a significant contributory cause ( Nette )
*Eng test: “substantial & operating” (
Smith; Blaue
), or “significant” (
Pagett; Mellor )
Smithers , 1978 SCC – Beyond de minimus (very low std!)
Hockey game, rival teams & racial slurs during the game, fight outside after. A punches him, kicks him in stomach, malfunctioning epiglottis – dies
Issue: sufficient causal connection for manslaughter? Yes.
 Legal causes is “any contributory causes that is beyond the de minimis range” – ie not insignificant, beyond trivial
 No need for A’s conduct to be the sole cause, the main cause, or even a substantial cause – there can be more than one legal cause for the harm and therefore more than one person held legally liable for causing it.
R v Cribben , 1994 ONCA – de minimus doesn’t violate Charter
A in beating, unconscious but not life-threatening
Left at side of road, drowned in own blood
Issue: Guilty of manslaughter? Yes

Smithers test does not violate principles of fundamental justice of s.7 of Charter
(at least in 2 nd
degree murder and manslaughter)

Both causation and MR have to be proven beyond reasonable doubt – does not
“cast net too broadly”
Nette , 2001 SCC – Re-articulation of Smithers
: “significant”
95 yr widow dead after robbery, bound and gagged, suffocated – Many factors contributed to her death. A was charged w/ 1 degree. Argued that 2 nd st
degree murder but convicted of 2 nd
degree murder is so serious that it also requires higher std test
Issue: does de minimis test apply to 2 nd
degree murder? Yes.

Denies changing substance of test, just its articulation
 Want to get rid of latin and put it into positive statement: “not insignificant” to
“significant contributing cause” – is this a change?
Dissent:

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
Not the same, we are changing the std – to remove the double negative would effect a radical change in the law – raising std.
NB: perhaps wanted to change level to be higher but pretend otherwise?
**re-articulation is not mandatory, but is preferred!
3.
Remoteness
Smithers leaves open the possibility that the original act may be so remote that the original act is in fact de minimis and therefore not a legal cause
first conduct is sometimes described as a background upon which something else occurs – initial act is merely setting (remote/trivial)
EXAMPLES of remoteness a)
Clifford Olson’s parents act of procreation b) Assault victim knocked down the hospital stairs while being discharged c) A stabs V, V dies as a result of injuries received in a collision of the ambulance, and not from original wound (the stabbing is merely the setting for a coincidental or ordinary hazard to arise) – could be analyzed as intervening cause if not reas foreseeable.
B.
Special Causation Rules
1.
Thin Skull
RULE: must take your victim as you find them, not treated as intervening cause
doesn’t matter if wasn’t foreseeable (ex
Smithers malfunctioning epi)
includes religious beliefs ( Blaue )
policy: risk on you if you engage in dangerous acts
Blaue , 1975 Eng CA – Take your victim as you find them
Stabbed, goes to hospital and refuses blood transfusion (JW)
Dies, would not have died if she accepted treatment
Issue: Did A cause her death? Yes.

Must take your victim as you find them – including religious beliefs

What caused her death? Stab wound, fact that V did not accept treatment that would have stopped this end coming about did not break causal connection btwn act and death.
NB: would refusal of treatment have to be reas? Also under special rules re homicide.
R v Shanks , 1996 ONCA – Entitled to find Causation, but not Bound
Very sick man with many problems, including clogged arteries (“heart attack waiting to happen”). A provoked him into fight, brief physical encounter, thrown to ground. 2 hrs later died of heart attack – could have been caused by both emotional and physical stress. Jury at trial convicted.
 Jury was entitled to find A’s assault on deceased was a contributory cause beyond de minimis range (not bound to this conclusion though).
2.
Intervening Causes
RULE: will not relieve from liability unless intervening was totally unrelated & unforeseeable – if A started causation train & beyond de minimus then still liable.

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- will not negate legal causation for original act if the intervening cause is a direct result of the original act (ie dependent on it, or is some act that accelerates it)
- to negate causation it must break causal chain, be completely independent
- people don’t often succeed here, often not independent.
EXAMPLES of IC cases
- White 1910 Eng (tried to poison mom, but she died of totally indep/unrelated heart attack): not liable, heart attack broke causal chain.
- Lewis 1899 USA (shot in stomach & waiting to die (would have been fatal), slits own throat b/c of pain): V’s act is a direct result of A’s original act of shooting, therefore A is still liable for V's death.
Blaue 1975 EngCA (V was JW, no blood transfusions – died): refusal is a direct result of A’s wounding her, therefore A is still liable for V's death.
S. 222(5)(c) CC: If V does anything which causes her death (e.g., jumps from a window or a moving car) in order to avoid threats of violence from A, A has, in law, caused V's injuries – i.e. V's conduct is not an intervening cause which relieves A from criminal liability.
Kitching and Adams 1976 ManCA (Bouncers at club threw V out – hit his head & brain dead, Drs turned off respirator): turning off of respirator is a direct result of wounds inflicted by A, therefore A is still liable for V's death.
Pagett 1983 EngCA (A used preggo gf V as human shield while shooting at POs, accidentally killed when POs returned fire): A’s conduct was a direct cause of police conduct that killed V, is a legal cause of V’s death.
Hallett 1969 Aust (A left V’s battered body on beach by sea, incoming tide drowned
V): drowning by act of nature was direct result of A’s actions, therefore A still liable
Reid 1993 NSCA: suggesting that neg application of CPR to an unconscious assault
V may have been an intervening cause (Ferg says wrong: s.225 & no IC)
3.
Multiple Accused a) If all A acted in concert (all participated – whether as co-perps, aider or abettor): no need to prove which A actually struck fatal blow ( Binarais 2000 SCC;
McMaster 1996 SCC) b) If didn’t act in concert & only 1 committed AR: must all be acquitted if ToF can’t decide BRD which was actual perp ( Schell 1977 ONCA; Lucas 2001 QcCA) c) Joint Drag Racing: if A & B are racing and B crashes (killing/injuring himself or other), then A is joint cause ( Menezes 2002 ONSC; Bhalru 2002 BCCA)
4.
Causation Rules for Death
- CC has express rules for causation of death (apply to more than just homicide)
GENERAL RULE: legal causation for causing death exists even if were other contributing factors leading to V’s death… a) s.222(1), 5(c) & (d): causation re the offence of homicide (222(4): murder, manslaughter, infanticide)
(1): homicide when “directly or indirectly, by any means”
5(c): culpable homicide when by threats or fear of violence or by deception, causes person to do anything that causes their death
5(d): culpable homicide when causes death of child/sick person by wilfully frightening them.

11 b) s.224: doesn’t matter that could have prevented death w/ proper treatment c) s.225: if orig injury was of dangerous nature then doesn’t matter that immediate cause of death is proper or improper treatment in GF d) s.226: causes death even though injury only accelerated what was inevitable. e) s.228: no person causes death of a human being solely by influence on the mind
(ie scaring someone to death) except where a person causes the death of a child or a sick person by willfully frightening him/her (s.222(5)(d)).
5.
Causation Test for s. 231(5) 1 st Degree Murder
s.231(5): murder is 1 st
degree when “death caused by A while committing one of listed offences (sexual assault, hijacking an airplane, kidnapping, hostage taking)
TEST: must be an “essential, substantial & integral part of the killing” (
Harbottle )
applies only to 231(5) & sim worded 231(6), not to other types of 1 st degree murder
(doesn’t have same language) nor to 2 nd
degree murder ( Cribben; Fatima; Nette ).
Harbottle , 1993 SCC – “Substantial and Integral”
A and Ross forcibly confined the V. Ross sex ass’d her, then both discussed ways of killing her, Ross strangled her while A held her legs to prevent struggling
Held: convicted – prevented her from resisting or escaping

Consequences of conviction of 1 st
degree murder and wording of section are such that test of causation must be a strict one
 actions must form an “essential, substantial and integral part of the killing”

Here conduct which prevents person from resisting, or escaping from, an attack constitutes “essential, substantial and integral cause”

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“ Actus non facit reum, nisi mens sit rea”: the act is not criminal (guilty) unless the mind is also criminal (guilty) – Lord Coke, 3 rd
Institute 1641
Mens rea has no one settled meaning, and the CC does not use the words MR nor does it state, as a matter of general principle, that MR is required
CC includes MR words for some offences and excludes them from others in an apparently random fashion (leave it for the judges to work out)
Some offences do not require MR in regard to one or more elements of offence
SCC has held that (1) penal law ought not to punish the morally innocent and (2) the level of moral fault for an offence ought to be proportionate to the seriousness and consequences of that offence ( Martineau; Creighton )
Subj MR : what was actually in the mind of the A, Obj MR : mind of a reas person
I.
LEVELS OF FAULT
Categories: A) full subj MR; B) crim neg; C) penal neg; D) strict liability; E) abs liability
A.
Full Subjective MR (Subjective Test)
Includes: 1) wilful; 2) intent; 3) recklessness; 4) wilful blindness; 5) knowledge, but does not include mere negligence ( SSM )
concerned w/ what was actually in the mind of the A (subj).
approach to proof will have some aspect of objectivity to it: in deciding whether to believe the A’s claim of no subj MR (credibility), the more unreas (obj std) that claim is the less likely it is to be believed.
1.
Wilfully
DEFN: means intentionally, as general rule recklessness won’t suffice (
Buzzanga; approved of in Keegstra 1990 SCC)
- Harding 2001 ONCA (wilful promotion of hatred): wilful blindness will suffice,
Ferg says should be interp as WB that amounts to oblique intent only.
EXCEPTION: offences in CC Part XI (relating to property), wilfully = intentionally
& recklessly (s.429)
R v Buzzanga and Durocher , 1979 ONCA
Sent out satirical pamphlets about French, wanted to combat apathy over new Frenchspeaking school, wanted to expose prejudice - catalyst s.319(2) of CC, “willfully promoting hatred” against Franophones
Held: did not do it “willfully” (Justice Martin)…

Willfully normally means intentionally

Willfully (intentionally) promoted hatred if (1) their conscious purpose in distributing document was to promote hatred or (2) they foresaw that the promotion of hatred was certain or morally certain to result from distribution of pamphlet but did it as a means of achieving objective of school

The evidence does not lead to conclusion that they foresaw that promotion of hatred was certain to result

If silent, MR for true crime is satisfied by any subj MR

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NB: “willfully” as intentionally was approved by SCC in
Keegstra
2.
Intentionally (“w/ intent to”, “means to”, “for the purposes of”)
DEFN: Includes both ( Buzzanga & Hibbert ) a) Direct Intent: desired or sought the proscribed harm b) Indirect/Oblique Intent: desired or sought some other end, but A foresees that proscribed harm is certain or virtually certain to occur.
- SCC in Chartrand & Hibbert have effectively overruled cases like Steane &
Paquette 1976 SCC, which restrict meaning to direct intent.
- to the extent that crts continue to apply on direct, Ferg says are wrongly decided
(such as Hawkins 2002 BCCA).
- Recklessness will not suffice ( Buzzanga ; Docherty 1989 SCC; Keegstra )
- Harding 2001 ONCA (wilful promotion of hatred): wilful blindness will suffice,
Ferg says wrong unless interp as WB that amounts to oblique intent only, as in WB was suspicion amounting to virtual certainty & not just of possibility/probability
(recklessness - contrary to Buzzanga ), but crts might follow anyway.
R v Steane , 1947 Eng – Confused Intent & Motive
Doing acts likely to assist enemy w/ intent to assist the enemy: Eng A living in
Germany, forced to broadcast on radio during WWII, threatened his family
Says he didn’t do it to help the enemy, did it to save his family
Issue: Did he have the intent? No (wrong – necessity/duress)

Intent is restricted to direct intent (needed to desire consequences)
R v Buzzanga and Durocher , 1979 ONCA
Sent out satirical pamphlets about French, wanted to combat apathy over new Frenchspeaking school, wanted to expose prejudice - catalyst s.319(2) of CC, “willfully promoting hatred” against Franophones
Held: did not do it “willfully” (Justice Martin)…

Willfully normally means intentionally

Willfully (intentionally) promoted hatred if (1) their conscious purpose in distributing document was to promote hatred or (2) they foresaw that the promotion of hatred was certain or morally certain to result from distribution of pamphlet but did it as a means of achieving objective of school

The evidence does not lead to conclusion that they foresaw that promotion of hatred was certain to result

If silent, MR for true crime is satisfied by any subj MR
Hibbert v The Queen , 1995 SCC – Intent includes both direct & oblique
Attempted murder – duress
Forced to lure V (his friend) to lobby and stood by while V was shot
Issue: Do threats negative intent? No.

Threats have bearing on motive but not on knowledge of consequences of actions
 Intent doesn’t include motive, person who performs action in response to threat knows what he/she is doing and will be aware of probable consequences.
 “For purpose of“ = “intent” in the sense of both direct and oblique intent.

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3.
Recklessly
DEFN: A knows/foresees that proscribed harm may “possibly” or “probably” occur
(but is not certain to occur – oblique intent), but goes ahead & unjustifiably takes the risk of causing the harm ( Sansregret , 1985 SCC)
- for s.429 (property offences in Part XI w/ “wilfully”) & s.229(a)(ii) (murder) reckless requires foresight as a probability (likely, or 50+%)
- for everything else the crts haven’t addressed whether has to be probable or possible: use the language loosely & in no case was this the issue that was litigated.
Best practice to err in favour of A?
- “probable” or “likely”: R v D (SD) 2002 Nfld CA; Brain 2003 BCCA; Theroux
1993 SCC; Hamilton 2003 ABCA; Creighton 1993 SCC.
- “possible”: Sansregret
1985 SCC (“could”);
Cooper 1993 SCC.
4.
Wilful Blindness
DEFN: where A has become aware of the need for some inquiry but declines to make that inquiry b/c doesn’t wish to know the truth ( Sansregret )
- deliberately failing to inquire when knows there is reason to do so
- it’s subj test: A must be suspicious, not “ought to be” or “should be” ( Currie ; repeated in Jorgensen 1995 SCC & Duong )
- WB is deemed knowledge, will suffice for knowledge ( Duong citing Sansregret )
- WB might suffice for intent ( Harding says yes), Ferg says ok if suspicion amounts to virtual certainty, wrongly decided otherwise as amts to recklessness (contrary to
Buzzanga ).
- what if A doesn’t “know” as virtual certainty, but only “suspects” that there is a possibility or even probability (“reckless” in not inquiring)? Not really addressed in
Legace 2003 ONCA: crt only says no need to quantify level of suspicion. Ferg says be cautious, should depend on level of MR that it’s substituting for.
Sansregret , 1985 SCC – defn of WB
Sexually assaulted V after breaking into her home and terrorizing her
V was compliant to ensure her safety
Held: he was willfully blind as to her consent

Willful blindness: preferring to remain ignorant

Can almost be said that A knew: he suspected, realized its probability, but refrained from confirmation b/c wanted to deny knowledge
 Must be subj test, can’t be that he ought to have known

Here it was willful blindness as to the question of consent
Duong , 1998 ONCA – WB subs for Knowledge
Allowed L to stay at his house, heard about killing through media and L told him he was “in trouble for murder”, charged with accessory after the fact to murder
Held: willful blindness

Proof of willful blindness can be substitute for proof of knowledge ( Sansregret )

A suspected L of being party to murder (admitted this), but deliberately chose not to inquire – constituted willful blindness here.

15
Currie , 1975 ONCA – WB is Subj Test
Cashes fraudulent cheques for stranger, wasn’t suspicious
Martin JA held:

Willful blindness is a subj test – the fact that A ”ought to have been suspicious” is an obj test and therefore not sufficient to prove “willful blindness”
 A was objectively stupid, but subjectively honestly didn’t suspect anything.
5.
Knowledge
DEFN: A has subj knowledge about some fact or state of affairs.
when crime is about facts, as opposed to actions – determine from inferences.
If A is WB to a possible fact, law deems A to have known it ( Sansregret , Duong )
Several cases have held that WB will suffice for knowledge, but NOT recklessness:
Vinokurov 2001 ABCA (knowingly possessing stolen property); Zundel 1987
ONCA (wilfully publishing stmt he knew to be false – recklessness as to truth/falsity not suff); Sandhu 1989 ONCA (possession of prohibited drugs – defn includes “knowingly”) [subsequent drug cases say MR ≠ knowingly, but no express
MR (full MR) so recklessness is ok: Oluwa 1996 BCCA).
B.
Criminal Negligence (Probably Objective Test)
DEFN: “marked & substantial” departure from the conduct of a reas person which shows
“wanton & reckless” disregard for the lives & safety of others (s. 219 as interp by
Tutton
1989 SCC & Waite 1989 SCC) – big bad neg, close to outrageous.
-
SCC split 3:3 on whether “wanton & reckless” was obj (issues – see below & penal neg) or subj (A being personally aware of, or WB to, risk to lives & safety of others)
Prov appellate crts apply obj std (ex: Gringrich 1991 ONCA; Ubhi 1994 BCCA)
-
Need “crim neg” in provision, exs: ss. 219, 220, 221, 222(5)(b).
Tutton and Waite , 1989 SCC
Convicted of manslaughter through crim neg – causing death of son
B/c of religious views and belief in faith-healing they refused to administer insulin to diabetic son; Driving at high speeds & while intox, killed 4 people running alongside road
Issue: Is test for Crim Neg subj or obj?
Objective: 3 (but introduces some subjectivity!)

Marked and sig departure from std of reasonably prudent person in circs
 Test of reas/unreas conduct must be made in context of “the facts existing at the time and in relation to the A’s perception of those facts”, not to be applied in a vacuum:
“factors such as youth, mental development & education” [introduces subj element!]

Obj std, conduct of A which is examined, not his intention or mental state
Subjective: 3

A must be personally aware of risk

Recklessness is subj std, so why should reckless disregard be obj?
R v Creighton 1993 SCC – Obj Test is Purely Obj
A (experienced drug-user) injected cocaine into V w/ her consent - died.
Considered the constitutionality of the offence of the unlawful act manslaughter & spoke about objective test for unlawful act manslaughter & crim neg
McLachlin (5:4): no individual factors short of incapacity to perceive the risk

16

Only one std of reasonableness for the fault element in offences involving criminal or penal negligence and therefore no individual factors of A (short of incapacity to perceive the risk) should be taken into account in determining the appropriate std of care to meet

Crim law may properly hold people who engage in risky activities to a min std of care of reas person

Legal std for all crimes of neg is reas person, personal chars are not relevant except as to whether A possessed necessary capacity to appreciate risk
 A’s experience as drug-user not taken into acct
C.
Penal Negligence (Objective Test)
DEFN: a “marked departure” from the conduct of a reas person (
Hundal )
bigger than civil neg, that’s any departure
s.86(1) “careless use or storage of a firearm” (
Findlay; Gosset
); s.249 “dangerous driving” (
Hundal
); s.436 “arson by negligence”
Controversy as to whether obj reas person std should be individualized w/ A’s chars
(contrast w/ tendency to individualize in SD, provocation, duress & necessity):
Yes - Tutton and Waite:
3 obj proponents said in context of “facts existing at time &
A’s perception of those facts”; “factors which are personal to the A, such as youth, mental development & education” should be taken into acct.
No - Naglik (mother charged w/ failing to provide necessaries to child): excluded consid of mom’s inexperience, lack of edu & youth;
Gosset (PO w/ experience & training in use of firearms charged w/ careless use of firearm): not a higher std of care for POs than non-trained inexperienced gun users; Creighton (A experienced drug user): A’s familiarity not taken into acct;
Hundal : at least for driving offences, personal factors not taken into acct.
R v Hundal , 1993 SCC – Test for Penal Neg
Dangerous driving causing death – penal neg: Driver overloaded dumptruck, went into intersection against red light (thought couldn’t stop) and killed driver of another car
Held: convicted

Obj test must be applied in the context of events surrounding the incident, but “as a general rule, personal factors need not be taken into account” such as age, experience, physical/mental health…
 Test for penal neg is whether A’s conduct “in all the circumstances” was “a marked departure from the std that a reas person would observe in the A’s situation”

Obj test does not violate the Charter.
D.
Strict Liability (Objective Test)
DEFN: basically civil liability w/ reverse onus… (created in Sault Ste Marie )
1) Crown proves AR BRD, then…
2) A found guilty unless A can prove (on bal of probs) that he/she acted w/ reas care or due diligence
- reversal of onus violates presumption of innocence of s.711(d) but is justified under s.1
( Wholesale Travel Group ; re-affirmed in Ellis-Don Ltd )

17
Sault St Marie , 1978 SCC – Creation of Strict Liability
City charged w/ allowing mats to be deposited in rivers under Ont Water Resources Act
Held: new trial with category of SL here

Emerging idea of middle ground btwn full MR and abs liability

Strict liability: Crown must prove beyond reas doubt that D committed prohibited act, then D must only establish on balance of probs that he has a defence of reas care

No MR words and regulatory offence? Strict liability is presumed.
R v Wholesale Travel Group , 1991 SCC – Shifting Onus is Ok
Charged with false/misleading ads, contrary to Competition Act

Found to be a reg offence, not a true crime even though liable for 5 yrs imprisonment (didn’t distinguish btwn proceeding summarily or by indictment – should have)

Not enough stigma for this crime, does not violate s.7 of Charter to have offence where mental element is negligence

Onus on accused to prove due diligence is not unreasonable violation of presumption of innocence under s.11(d) and s.1 of Charter , justified for reg offences
E.
Absolute Liability (No Mental Fault Liability)
DEFN: once Crown proves AR BRD, A is convicted even if took every precaution to avoid the harm or had no MR
only exists where Parl/Legis makes it clear that abs liability was intended (now rare)
arg that defences which don’t negate MR should still be valid (SD, necessity) but not much case law on one way or the other.
some regulatory offences so minor that abs liability inferred (parking tickets)
unconst to have imprisonment as possible sanction ( Ref re s.94(2) )
II.
DETERMINING THE MR
*See Charts
A.
Express MR
If explicit words then…
1. express language governs – ascertain meaning of terms (prev section), and…
2. Is express MR so “low or minimal” that it violates s.7’s PFJs? a) Stigma offence w/ obj MR ( Vaillancourt ) b) True crime w/ MR of SL or AL ( Hundal ) c) AL w/ penalty involving risk of loss of liberty ( Ref re s.94(2) )
*still be AL but no imprisonment ( BC Offence Act ) - this is const ( Pontes )
B.
No Express MR
If provision is silent, we presume there is some form of MR required ( SSM )
Level of MR will change depending on whether is 1) True Crime; or 2) Reg Offence
HOW TO DECIDE WHICH TYPE?
1.
In Criminal Code : presumption = true crime, unless there is clear intention to the contrary ( Prue & Baril , 1979 SCC)
2.
Not in Criminal Code : then look to…( SSM )

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- Prov statute? Reg offence; Drugs? True crime ( Beaver ) a) nature & seriousness of conduct
- “ mala in se” bad in itself, morally wrong = crime, “ mala in prohibita” bad b/c it’s prohibited, disregarding regs = reg offence (
Wholesale Travel )
- punishing a past action (crime) vs protection of society in future (reg)
- level of stigma attached: you did a really bad thing and society is condemning you vs you didn’t live up to std b) severity of penality – greater than 2 yrs prison? True Crime
1.
True Crime = MR presumptively full Subj MR ( Prue & Baril ; SSM )
*Presumption can be rebutted if words & context indicate otherwise
general MR is satisfied by proof of ANY of specific forms of subj MR ( Buzzanga )
does not include negligence ( SSM )
not unconst for parl to go below to obj MR, so long as ≥ penal neg ( Hundal )
2.
Reg/Public Welfare Offence = MR presumptively SL ( SSM; reaffirmed in Lévis )
*Presumption can be rebutted if words & context indicate otherwise
- Parl can’t override presumption & go lower if limitation on liberty ( Ref re s.94(2))
SSM: Classified as an AL only if legis makes it clear that guilt follows automatically upon proof of AR either a) expressly, or by b) implication: 1) subject matter; 2) rel unimportance of penalty (ex parking ticket)
If legislation provision effectively removes defence of due diligence, then legislation has thereby created an AL offence ( Pontes )
AL offences still exist, but are an exception (
Lévis
)
III.
CONSTITUTIONAL BARS
*See Berger’s Chart
-
Stigma offence? Can’t have anything less than subj (
Vaillancourt )
True Crime? Can’t go below penal neg ( Hundal )
Predicate? Only need MR for underlying offence ( De Sousa; Creighton; Godin )
-
Possibility of loss of imprisonment/probation? Can’t go below SL (
Ref re s.94(2) )
A.
Stigma Offences
RULE: some offences b/c of stigma/severity of penalty require full subj MR as minimum in order to not violate PFJs – need proportionality btwn moral blameworthiness & punishment ( Vaillancourt )
INCLUDES: arguably a closed category…
murder ( Martineau )
attempted murder (Logan)
theft (obiter in Vaillancourt & Martineau )
crimes against humanity/war crimes ( Finta )
accessory liability to these offences ( Logan ) but NOT manslaughter ( Creighton ) or sexual assault ( Darrach )

19
Vaillancourt , 1987 SCC
Constitutionality of felony murder rule [s.230(a-d)]
Causes death while committing or attempting to commit certain serious offences that person is guilty of murder notwithstanding the fact that this person did not know death was likely to be caused - MR is subj MR to commit underlying offence
Issue: offend PFJs to punish someone for murder w/out subj MR relating to death? Yes.

Few crimes where b/c of stigma attached to conviction or avail penalties, PFJs require
MR reflect particular nature of that crime - Must be some proportionality btwn moral blameworthiness and consequences of conviction
 Conviction for murder can’t be less than proof BRD of subj foresight

Theft in obiter
Martineau , 1990 SCC – Murder Requires Subj MR
Deceased deliberately shot by A’s accomplice during robbery s.213(a) [230(a)]: culpable homicide as murder when causes death of human being while committing or attempting to commit range of offences (no subj)

Conviction of murder carries most severe stigma and punishment of any crime – principles of fundamental justice require b/c of stigma that MR reflect particular nature of that crime

S.213 violates principle that punishment be proportional to moral blameworthiness

Stigma and punishment requires subjective foresight of death.
Finta , 1994 SCC – War Crimes are Stigma Offence
Crimes against humanity, Sr Officer at concentration camp in Hungary.

Crimes against humanity are very different that their underlying offences (unlawful confinement, robbery, kidnapping and manslaughter), extra stigma suffered by individual whose conduct has been held to constitute crimes against humanity.

Must be element of subjective knowledge on part of accused
B.
Non-Stigma True Crimes
RULE: obj MR for non-stigma true crimes is const valid, but cannot go below penal negligence, must be more than civil neg ( Creighton; Hundal )
[NB: just need this for part of the offence, doesn’t have to attach to whole thing]
Hundal , 1993 SCC – Non-Stigma True Crimes cannot go Below Penal Neg
Dangerous Driving (s.249)
Held: was penal neg - an obj test, not subj test

Objective test does not violate Charter

True crimes cannot have MR below penal neg
Gosset; Findlay, SCC – Obj test here not Unconst
Careless use of a weapon (s.86(1))
 MR in “careless” use of firearm is obj, not subj, but is “penal” negligence (not “civil”)

Obj is constitutionally sufficient, must be “marked departure” from reas std

20
C.
Predicate Offences
RULE: no need for obj or subj foresight of the actual harm, only need MR for underlying offence ( De Sousa; Creighton; Godin )
**doesn’t apply when results in stigma offence, need MR for whole thing then!
1.
s.269: Unlawfully Causing Bodily Harm
MR: obj foreseeability of risk of bodily harm + MR for underlying act ( De Sousa )
- no requirement A subj foresee bodily harm will result from unlawful act/omission
- obj foresight of harm + underlying MR satisfies s.7’s PFJs
2.
s.222(5): Unlawful Act Manslaughter
MR: obj foresight of risk of bodily harm which is neither trivial nor transient + MR for underlying unlawful act ( Creighton )
- doesn’t require subj foresight of death; or even obj foresight of death
- underlying unlawful act must be prov/fed offence which isn’t one of AL
- manslaughter is not stigma offence
3.
s.268(1): Aggravated Assault committed when “wounds, maims, disfigures, or endagers life of another”
MR: obj foresight of bodily harm ( Godin )
- does not require subj intent (or recklessness) to wound, main, disfigure or endanger
- consequences do not even have to be obj foreseen
Creighton , 1993 SCC – unlawful act Manslaughter: obj foresight of risk of bodily harm
A injected coke into himself, 3P and V without determining quality or potency. V began to convulse (cardiac arrest). Both A and 3P tried to resuscitate, A verbally intimidated 3P not to call 911. The accused put V, still convulsing, on bed, cleaned the apt of any possible fingerprints & left. 3P returned hrs later & called ambulance: too late.
Held: convicted, was obj foresight of bodily harm, doesn’t require subj foresight of death

Not enough stigma, manslaughter by defn has less stigma than murder
 Doesn’t even require obj foresight of death, only obj foresight of risk of bodily harm which is neither trivial nor transient, plus fault requirement for underlying act.

Tjudge had properly convicted - reas person would have foreseen risk of bodily harm: a person administering a dangerous drug to another has a duty to inform himself as to precise risk injection entails & to refrain unless reas satisfied no risk of harm.
Dissent (Lamer):
 obj foresight of death (not just bodily harm) as min MR const req’d for manslaughter
D.
Regulatory Offences
1.
Strict Liability Offences
There are no const bars ( Wholesale Travel ; Ellis-Don
)… a) doesn’t violate s.7 for reg offence to have mental element of civil neg b) reverse onus is not unreas violation of presumption of innocence

21
2.
Absolute Liability Offences
RULE: unjustifiably violates s.7’s PFJs if AL offence has potential deprivation of liberty (imprisonment, probation) ( Ref re s.94(2) )
if prov offence is AL, no possibility of imprisonment as punishment or for defaulting on fine ( BC Offence Act ss.6, 72) – stays AL but no prison.
With operation of Offence Act , still AL offence w/ no defence of due diligence but now constitutional b/c no risk of imprisonment ( Pontes ) [what about probation?]
Ref re s.94(2) Motor Vehicle Act (BC) 1985 SCC – AL w/ jail are Invalid s.94(2): offence of s.94(1) creates abs liability offence – guilt is established by proof of driving, whether or not D knew of prohibition or suspension s.94(1): drives vehicle while prohibited or licence suspended, liable to fine and imprisonment
Issue: is s.94(2) consistent with Charter? No, struck down.

Section 7 demands some form of MR (strict liability is lowest), therefore is unconstitutional if abs liability and limitation on liberty (jail or probation)

Unconst for abs liability offences to have jail or probation, not justified under s.1
 “Law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice…if imprisonment is available it violates s.7”
IV.
TO WHAT ELEMENTS OF AR DOES MR APPLY?
A.
General Principle
RULE: MR applies to all essential elements of the AR ( Pappajohn ; Rees ; Metro News )
- But this general rule has exceptions and therefore is not a s.7 PFJ ( Creighton )
- ex: murder – 1) unlawful act; 2) which causes; 3) death; 4) of human being
MR is intention, so need intention wrt all 4 of these elements (exs thought was dead already, thought was shooting deer…)
**See Mistake of Fact Defence section.
B.
Exceptions
Both 1) express legislative exceptions; and 2) judicial exceptions
1.
Express Legislative Exceptions : 2 Examples
Parl may expressly exclude MR (or insert lower MR) for one element of AR, while leaving the general MR std to apply to the other elements of AR
*Not necessarily constitutional! a) Statutory Rape: s.146(1) [since repealed] & s.150.1(4)
s.146(1) said statutory rape if have sex w/ female under 14, whether or not he believes her to be 14 or older (no MR wrt age!)
Hess 1990 SCC: eliminate mistake of fact as to age, even if was honest & reas – renders it AL offence. B/c has possibility of imprisonment for AL is unconst, struck out words “whether or not he believes she is 14 or more”, & A entitled to raise MoF defence.

22
-
1987 replaced w/ ss.151 & 152, for these 150.1(4) says “not a defence that A believed was 14 or more unless took all reas steps to ascertain age” – wrt age,
MR is obj std (due diligence?!) even though MR is otherwise full subj. b) Sexual Assault: s.273.2(b)
Pappajohn & Sansregret held that rape was true crime requiring full subj MR, must be proven wrt all elements of AR – including consent – thus if A was honestly mistaken about consent even if that was unreas, then no MR.
-
Parl overruled w/ s.273.2(b): A’s mistake must be both honest & reas – expressly ↓ MR for consent to obj std even though subj applies to rest of AR
2.
Judicial Exceptions : Predicate Offences (underlying offence + extra bad results)
- A few offences where crts not required that A have MR as to the specific harm, only need MR wrt underlying offence
- Most common are: 1) s.
267 assault (s.265) causing bodily harm/with a weapon; 2) s.
268 aggravated assault (s.265); 3) s.
269 unlawfully (unlawful act) causing bodily harm; 4) s.
222(5)(a) unlawful act causing death a) s.269: Unlawfully Causing Bodily Harm
MR: obj foreseeability of risk of bodily harm + MR for underlying act ( De Sousa )
- no requirement A subj foresee bodily harm will result from unlawful act/omission, refutes stmt of general principle above (boo).
- obj foresight of harm + underlying MR satisfies s.7’s PFJs b) s.222(5): Unlawful Act Manslaughter
MR: obj foresight of risk of bodily harm which is neither trivial nor transient +
MR for underlying unlawful act ( Creighton )
- doesn’t require subj foresight of death; or even obj foresight of death
- underlying unlawful act must be prov/fed offence which isn’t one of AL
- manslaughter is not stigma offence c) s.268(1): Aggravated Assault committed when “wounds, maims, disfigures, or endagers life of another”
MR: obj foresight of bodily harm ( Godin )
- doesn’t require subj intent/recklessness to wound, main, disfigure or endanger
- consequences do not even have to be obj foreseen, only need MR for assault

23
PARTIES to offences (all guilty of the same offence) are specified in ss.21 & 22
1) actually commit it – perpetrator(s) (21(1)(a))
- doctrine of innocent agency (uses innocent to perform AR) treats them as principal perp even though could say that they’ve aided/counselled/procured the offence ( Toma )
2) aid it (21(1)(b))
3) abet it (21(1)(c))
4) counsel it (22(1))
5) form a common unlawful purpose w/ the parties of the offence (21(2))
6) corporate liability
7) vicarious liability
SEPARATE, but related, offences are
1) accessory after the fact – separate offence, not a party to orig offence (s.23)
2) counselling an offence which is not committed – separate offence on its own. (s.464)
I.
PARTIES
Become party by: A) aiding & abetting; B) counselling; C) common unlawful purpose; D) corp liability; E) vicarious liability
A.
Aiding & Abetting (s.21(1)) s.21(1)
: Every one is a party to an offence who…
(b) does or omits to do anything for the purpose of aiding any person to commit it;
- DEFN: “to assist” ( Greyeyes 1997 SCC)
- Typical acts: 1) providing equip for offence; 2) acting as lookout; 3) helping to carry out/execute offence (driving principal offender to crime site)
(c) abets any person in committing it
- DEFN: includes “encouraging, instigating, promoting or procuring crime to be committed” (overlaps w/ counselling) (
Greyeyes )
COMMENTS:
Liability is derivative – assumes offence has been committed by someone else.
indictment doesn’t need to specify A’s mode of participation as either the principal or an aider, abettor or counsellor ( Harder 1956 SCC)
technically separate ideas & can be dealt w/ individually ( Greyeyes ), but as practical matter are really just rolled into same thing (“aid & abet…”)
jury do not have to be unan on the A’s mode of participation (ie as principal, aider, abettor or counsellor), so long as they are unan that A was party (one of these)
( Thatcher 1986 SCC)
s.23.1: aider/abettor/counsellor can be convicted even if principal can’t (dead, not found) – but have to prove principal committed offence.
1.
Aiding/Abetting By Omission
although not express in s.21(1)(c) for abetting as in 21(1)(b) for aiding, presumably can occur by both acts or omissions (like other types of AR)
doesn’t specify that must be an omission of a legal duty , but read in ( Dunlop )

24
RULE ( Dunlop ): mere presence at the scene of a crime w/ nothing more does not constitute aiding/abetting, unless the A has a legal duty to protect victim, but if mere bystander… a) blocks victim’s escape route b) offers words of encouragement to offender c) knows his/her mere presence will urge on/instigate the principal to continue w/ or commit the crime.
CASE EXAMPLES:
Dunlop & Sylvester (grp rape by motorcycle gang: said left & when came back were on top of hill & didn’t know rape was happening on bottom): mere presence wouldn’t have been enough, need ev of something more.
Kulbacki (dangerous driving: passenger in his own car, driver drove in dangerous fashion & he sat there mute): properly convicted on basis he allowed his car to be used for crim purpose.
Black (w/ ppl in room was laughing & shouting while woman was being sexually assaulted): properly convicted on basis there were + acts
Salajko (was at scene of rape & ev that had pants down): at a min was encouragement, should have been convicted – SCC in Dunlop & Kirkness say wrongly decided.
Cosgrove (was asleep in car when sexually assault occurred outside in field): properly acquitted, mere presence.
Nixon (officer in charge, was POs beating up arrestee & he knew it – didn’t do anything but omitted to make them stop): properly convicted on basis of legal duty to take action (officer/jailor).
Laurencelle (co-tenant used house to hold kidnapping V, A didn’t assist at all but once found out didn’t no anything): acquitted, crt says no legal duty to leave house nor to prevent co-tenant from using for crim purpose (contrast w/ Kulbacki b/c not sole right of ownership & control) – Ferg says close to the line, she was lucky.
2.
Mens Rea for Aiding & Abetting
MR: intent, includes both direct & indirect intent ( Hibbert )
express for aiding but silent wrt abetting ( Greyeyes says it’s intent too but wasn’t issue before the crt), could argue that should be any full subj MR according to SSM
recklessness will not suffice for aiding ( Roach ONCA), hasn’t been specifically addressed wrt abetting but for counselling (also silent wrt MR like abetting) has been found sufficient ( Hamilton SCC) – anomaly?
principal & aider/abettor can be convicted of different crimes if their MR was different ( Hartford; Kirkness ) [transferred intent? Maybe, but could argue that crimes weren’t similar enough & restrictions w/ using for murder]
Hartford , 1979 BCCA – principal & aider/abettor have different MRs
A agrees to assist P to assault V: drives P to V’s house. P intentionally kills V.
Held: V guilty of murder, A had no intent to assist murder but did have intent to commit assault so guilty of lesser included offence of assault causing bodily harm or unlawful act manslaughter.

25
Kirkness , 1990 SCC – principal & aider/abettor have different MRs
A & P agree to rob V. While in V’s house, P decides to kill V – A doesn’t assist.
Held: Both guilty of robbery, V also guilty of murder. A is not guilty of murder (no
MR) & not guilty of unlawful act manslaughter unless his robbery is somehow viewed as cause of V’s death.
3.
Application to Offences
Can aid/abet (or counsel) pretty much any offence, but crts might conclude in the circs that Parl didn’t intend aiders/abettors to be liable for that partic offence.
-
At least 2 examples… a)
Offences directed at “Protected Persons”
- prostitute won’t be convicted of aiding/abetting pimp in offence of living off the avails of prostitution ( Murphy )
- person <13 who encourages sexual contact w/ adult is not guilty of aiding/abetting the adult’s sexual offence (ss.150.1-152) b) Buyer & Sellor
although can’t be sale w/out both buyer & sellor, legis treats them as separate entities w/ separate crimes.
-
Buyer of illegal drugs is not guilty of aiding & abetting seller’s offence of trafficking ( Poitras, Greyeyes ).
4.
Causation ss.21(1)(b) & (c) do not specify that act/omission must actually assist principal a) Causation Requirement
- acts of aiding or abetting do not have to be indispensable (“but for”) cause of the offence ( Harrer 1998 BCCA) – could still have occurred w/out A’s assistance
- but there must be some connection to the offence by “facilitating or making it easier” to commit the offence (
State v Tally 1894 USA) → if no connection.
- no connection at all: is attempting to aid/abet an offence? b) Causation Proof w/ Multiple As i.
If all A acted in concert (all participated – whether as co-perps, aider or abettor): no need to prove which A actually struck fatal blow ( Binarais 2000
SCC; McMaster 1996 SCC) ii.
If didn’t act in concert & only 1 committed AR: must acquit all if ToF can’t decide BRD which was actual perp ( Schell 1977 ONCA; Lucas 2001 QcCA)
B.
Doctrine of Common Unlawful Purpose (s.21(2))
21(2) Where 2+ ppl form 1) an intention in common to carry out an unlawful purpose and any one of them, 2) in carrying out that common unlawful purpose, commits an offence, each of them 3) who knew/ought to know [obj] that the commission of the offence would be a probable consequence [50+%] of carrying out the common purpose… is a party to the offence
way of extending liability to all parties for one party’s further ancillary offences, need the ancillary offence to be a “probable” (> possible) consequence of carrying out the common unlawful purpose (eg see Zannini )
-
A liable for probable ancillary offences even though didn’t aid, abet or counsel.
-
MR: “intention” in common to carry out unlawful purpose [indirect + oblique
( Hibbert
)] + “ought to have known” [objective]

26
Zannini 1967 SCC
A, B & Z agree to commit B&E, Z drives them to house & waits in car. A & B force entry into the house w/ a screwdriver. All 3 arrested.
 Z can be convicted of A & B’s offence of possession of house breaking instruments under s.21(2) since Z had a common intent w/ them to commit the B&E & knew/should have known that PoHBI would be a probably consequence
NB: A & B were not actually convicted of PoHBI, they pled guilty to B&E: Crown dropped other charges. But the offence of possession still occurred →Z can still be convicted even though principals were not (23.1)
1.
Constitutional Restriction
s.21(2) allows person to be convicted of subj MR ancillary offence even if only had obj MR (“ought to have known”)
irrational that secondary parties can be convicted w/ obj MR while principals require subj MR, but it’s ok – doesn’t violate s.7, Parl can be irrational if it wants (
Logan ):
-
EXCEPTION: When it’s stigma crime (constitutionally requires subj MR), then cannot be convicted under s.21(2) w/ anything less than subj MR → only if he knew, not ought to have known.
2.
Withdrawal from Common Unlawful Purpose
RULE: can w/draw provided the w/drawal is 1) clear & unequivocal, and 2) is communicated, where possible, to other parties in a timely fashion ( Whitehouse;
Henderson )
might be ok if instead communicated to police like US Model Penal Code
Once effectively w/drawn not liable for any offences committed thereafter, still on the hook for anything that came before
C.
Counselling Offence that is Committed (s.22(1))
22.(1) Where a person counsels another person to be a party to an offence & that other person is afterwards a party to that offence, the person who counselled is a party, notw/standing that the offence was committed in a way different than what was counselled.
doesn’t have to counsel the principal, can be any party
Liability is derivative – offence must have been committed by someone else, but it’s ok if it was committed in way different than counselled (but see s.464 for the separate offence of counselling offence that is not committed)
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
extends liability for other ancillary offences which counsellor knew/ought to have known were likely to be committed in consequence of counselling
same constitutional limits as in s.21(2)→if stigma crime then only if they knew, no ought to have ( Logan )

27
(3) “counsel” includes procure, solicit or incite
means to advise/recommend; encouraging/actively inducing another
“procure”: to instigate, encourage or persuade (ie offering $ or some other benefit)
-
“solicits”: entreats or urges another to do something
-
“incite”: to urge, stir up or stimulate
COMMENTS:
indictment doesn’t need to specify A’s mode of participation as either the principal or an aider, abettor or counsellor ( Harder 1956 SCC)
jury do not have to be unan on the A’s mode of participation (ie as principal, aider, abettor or counsellor), so long as they are unan that A was party (one of these)
( Thatcher 1986 SCC)
s.23.1: aider/abettor/counsellor can be convicted even if principal can’t (dead, not found) – but have to prove principal committed offence (didn’t? see s.464)
1.
Causation
McNulty 1910 ONCA: no liability if shown had in fact no effect in inducing actual perpetration”→ really old case, will it be followed?
unclear whether needs to be some causal connection btwn acts of counselling & principal’s commission of the offence: doesn’t need to be indispensable “but for”, but seems like bare minimum would be receipt of words by principal offender (free speech considerations?)
run into problems w/ ppl who give info on how to commit crimes, so far crt has shown caution in holding these ppl liable → say “actively inducing”, generally do not prosecute w/out more than just providing info though words are broad enough
Words not received: attempting to counsel, is this an offence, even under 464?
2.
Mens Rea of Counselling
MR: intent or recklessness (high end: substantial risk) ( Hamilton )
- provision is silent (just like abetting)
3.
Withdrawal from Counselling
for policy reasons should be able to, but case law hasn’t been consistent
Walia 1975 BCCA: counselling is complete once counselling takes place → can’t w/draw from offence that’s already committed (draws analogy w/ conspiracy, but
Ferg says there are sig differences)
-
Lacoursière
2002 QCCA: crt accepted abandonment for both counselling & common unlawful purpose.
D.
Party Liability of Corporations/Organizations
-
Corps as SLE’s can be charged w/ criminal offences (“everyone” includes corps)
-
Problem: where to find the corp’s MR? → CL directing minds doctrine, supplanted by
Bill C-45 amendments to CC in 2004.
1.
CL Directing Minds/Identification Doctrine
- judicially created, pragmatic, fictional device used to attribute human element to an abstract legal entity, so that corps can be convicted of true crimes just like natural persons are ( Cdn Dredge & Dock )

28 a) The Rule: actions & mental state of corp are those of the es/Os who are its directing mind & will in a given sphere of its activities ( Cdn Dredge & Dock )
REQUIRES: Crown must demonstrate that DM’s action 1) was w/in field of operation assigned to him; 2) was not totally in fraud of the corp; 3) was by design or result partly for the company’s benefit.
identity of the DM and the Corp coincide/merge when DM acting w/in scope of express/implied authority → no defence to say Brd of Ds had no awareness or issued prohibitions b/c considered one & the same.
Corp may have more than 1 DM (geographically widespread & delegation)
Both DM & Corp can each be prosecuted, convicted & punished for offence. b) Application of the DM: state of flux re which es are in de facto control – does it incl Sr Mgrs ( Cdn Dredge & Dock ) or only Sr Corp Exec policy-makers ( Rhone )?
Cdn Dredge & Dock 1985 SCC (Hamilton harbour dredging scandal): suggested that senior managers = DMs, HL’s decision in
Tesco Supermarkets (mger of one of supermarkets owned by Tesco was not a DM in the context of selling goods at a higher price than advertised) was too narrow for Canada.
The Rhone v The Peter AB Widener 1993 SCC (civil tort case: Cptn of tugboat was negligent, was master of flotilla w/ little control by superiors): Sr Mgr ≠
DM, key factor is capacity to decide corporate policy, not just to give effect to it.
Safety-Kleen Canada Inc 1997 ONCA (Truck driver for Corp, extensive resp & discretion but no power to design & supervise policy): follows The Rhone
, ≠
DM (Corp not liable, but he is personally).
2.
Bill C-45
“Wesray amendments”, to expand criminal liability of Corps or other organizations
- broader defns & new provisions using party liability
- problem? Provisions cover penal/crim neg & subj MR crimes – what about SL? a) New Broader Definitions i.
“representative” = director, partner, e, member, agent, or Ktor of organization ii.
“senior officer” = representative who 1) plays imp role in establishment of policies (Sr Exec); OR 2) is resp for managing an important aspect of the org’s activities (Sr Mgr), and incl director, CEO & Chief Financial Officer
- sig broadened scope of corp criminal liability
- Ferg questions inclusion of 3 at end: by any defn these would be incl as 3 most senior posns - seems to narrow the defn. b) s.22.1: Penal & Criminal Negligence
22.1
When Crown has to prove neg, an org is a party to an offence if both…
(a) acting w/in the scope of their authority
(i) one of its reps is a party to the offence, OR
(ii) the aggregate conduct of 2+ of its reps would make them a party, AND
(b) the senior officer who is resp for the aspect of the org's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the std of care that, in the circ, could reas be expected to prevent a rep of the organization from being a party to the offence.

29
COMMENTS:
- expressly authorizes liability on the basis of aggregate conduct of more than one rep or Sr O for crimes of negligence
- creation of new legal duty on Sr Os to take reas steps to prevent reps in that Sr
O’s mgmt area from committing offences of neg → at a min, corps will have to create policies of managerial due diligence c) s.22.2: Subj MR Crimes
22.2
When Crown has to prove fault other than neg, an organization is a party to the offence if …1) one of its Sr officers; 2) w/ the intent at least in part to benefit the organization; 3) does one of 3 things:
(a) acting w/in the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting w/in the scope of their authority, directs the work of other reps of the organization so that they do the act/omission specified in the offence; or
(c) knowing that a representative of the organization is/about to be a party to the offence, does not take all reas measures to stop them from being a party.
COMMENTS:
- para (b) is redundant b/c para (a) would include as party a Sr officer who aids/abets/counsels or uses rep as innocent agent
- “w/ intent at least in part to benefit org” may be more limiting than CL: Cdn
Dredge & Dock said “by design or result partly for the benefit of the co.”
- unlike s.22.1, aggregate conduct doesn’t count here
- creation of legal duty in 22.2(c) on Sr Os to take all reas measures to stop commission of crime which Sr O knows is/about to be committed → org can be held criminally liable for their omission to act. d) s.217.1: New Legal Duty
217.1
Every one who undertakes, or has the auth, to direct how another person does work or performs a task is under a legal duty to take reas steps to prevent bodily harm to that person, or any other person, arising from that work or task.
- easier to prosecute re injuries/deaths as a result of neg to follow safety stds
- breach of legal duty can be basis of conduct for manslaughter, crim neg causing death/bodily harm, common nuisance. e) Sentencing Options
- s.718.21: additional factors, in addition to gen sentencing principles, to take into acct when sentencing corp i.
Fines
- s.735(1)(b) Summary Conviction: may be fined, to an amount ≤ $100K
- s.735(1)(a) Indictable: may be fined an amount in the discretion of the crt ii.
Probation
- s.731: person may be placed on probation (s.2 “person” incl org/corp)
- s.732.1(3.1): additional conditions of probation available to corps (ex
“shaming order” under 732.1(3.1)(f)).

30
E.
Vicarious Liability
GENERALE RULE: is a status offence, has no place in crim law, since should always be premised on a finding of personal fault ( SSM, Cdn Dredge & Dock )
NB: master may often be liable based on own conduct as aider/abettor/counsellor
1.
Exceptions : certain prov regulatory offences where VL may still be applied a) Delegation in Liquor Licensing Statutes
RULE: if statutory licensing provision only applies to license holder (only an offence if they contravene it) → VL applies to impose liability on holder for violations of his es; but if provides that license holder & any other person can be guilty → no VL (
Stevanovich 1984 ONCA)
- now most provide for liability beyond licence holder, rarely VL here b) Absolute Liability Offences
- has in the past been applied to AL offences on the theory that if there was no fault req’d, then holding them liable wasn’t a problem ( Levesque , Woolworth
Co ), but these were pre SSM & Cdn Dredge & Dock → unclear whether VL can be applied to AL today
- post SSM there are very few AL offences, presumption of SL. c) Express Legislative Examples i. s. 77 of BC Liquor Licensing Act
- expressly imposes VL on owner of bar etc for liquor licensing offences committed by es ( Capozzi Enterprises 1980 BCCA) → but remember w/ AL can’t go to jail (
BC Offence Act ) ii. s.76(1) of BC Motor Vehicle Act
- liability on owner for offences committed w/ that vehicle even if was not committed by owner or known to him/her → VL & AL.
- post Ref re s.94(2) added s.76(1.1): owner of vehicle not liable where 1) person in possession was not entrusted w/ that by owner; or 2) owner exercised reas care & diligence when entrusting to person → SL.
2.
Charter Considerations a) wrt AL & Imprisonment
- VL as amounting to the imposition of AL → violates s.7 when imprisonment is possible penalty ( Burt 1985 Sask; Pellerin 1989 ONCA; obiter in Bhatnager
SCC) [but has also been held to be reasonable under s.1 ( Gray 1988 ManCA)]
- but doesn’t matter, s.6 of BC Offence Act would save VL. b) Wrt Lack of AR
- VL even more unjust than AL b/c in addition to no MR, it doesn’t even require
AR (some judges in Burt
), SCC hasn’t addressed whether no AR ≠ s.7
- Ferg says maybe not: when defence of due diligence (such as s.76(1.1)) could say that AR is providing instrument for the crime & MR is SL.

31
II.
SEPARATE OFFENCES RELATED TO ORIGINAL OFFENCE
Includes: A) Counselling offence that’s not committed; B) Accessory after the fact
A.
Counselling an Offence that is Not Committed (s.464) s.464
: creates separate offence, when other party doesn’t follow through
is an inchoate crime: full offence was unfinished, incomplete
PENALTY: same as if attempted offence they unsuccessfully counselled - s.463…
1. Offence was an offence punishable by life = up to 14 yrs
2. Indictable Offence = up to ½ max punishment for full offence
3. Summary Conviction Offence = max of $2K and/or 6 mos (s.787; not ↓)
Georgia Straight Publishing Ltd 1970 BCCA – Illustration of s.464
Paper counselled readers to grow marijuana (tells you how & was very specific, also had words of encouragement – w/out this wouldn’t be guilty unless knew it was likely ppl would do it), there was no evidence that anyone followed the paper’s advice, so the offence of cultivation wasn’t committed.

Was guilty of counselling cultivation which offence did not occur, contrary to s.464, and punishable by half the penalty of full offence (person: 3.5yrs; Corp: fine).
B.
Accessory After the Fact (ss.23, 463)
463 creates the crime & sets out the punishment, s.23 has the elements… s.23
an AAF is a person who 1) knows that a person has been a party to the offence; 2) receives, comforts, or assists that person; 3) for the purpose of enabling them to escape
COMMENTS:
creates separate offence of being AAF to crime: eg AAF to robbery ≠ committed robbery, means committed crime of AAF to it (form of obstruction of justice)
s.23.1: AAF can be convicted even if other person can’t (see below)
AAF charges rarely used unless very serious crime (murder), often used as leverage for cooperation against principal (testify or AAF?)
1.
Actus Reus of AAF a)
“receives comforts or assists”: wide & ensnares anyone who helps in any way, no reason why wouldn’t also include omission of legal duty
- What if partnership relnship (feeding, clothing etc as existing relnship) [no obligation w/out legal duty to report crime & no duty to leave ( Laurencelle )]?
So long as doing what you always did then probably not AAF
- marital exemption abolished in 2000, but spouses probably ok if just allowing to remain in house w/out something more b)
“to escape”: to avoid detection or apprehension
Young : warning the offender the police were after him
French : lying to the police

32
2.
Mens Rea of AAF a) AAF must know that the person has been a party to the offence: knowledge/WB
Duong (A allowed murder suspect to hide in his apt for 2 weeks, had seen news reports linking him to 2 homicides & said “in trouble for murder”, A told PO he
“didn’t want to know anything b/c I knew I’d be in trouble for helping him to hide): convicted b/c of WB, A said to verify was to question his friend & he would have lied – doesn’t matter, where chooses to make no inquiries to verify suspicions, speculation as to what he would have found out is irrel
Recklessness? Probably not, since “know” expressly stated ( Zundel , Vinokurov ), but some cases (ie drug cases) have said yes – will it for AAF? Unsure.
What if person believed committed different crime from that they actually did?
Not sure – could accessory be convicted of attempting to be AAF to different crime (1/4 punishment)? Could you transfer intent ( Ladue )? b) Assistance must be for the purpose of enabling person to avoid apprehension
-
“purpose” = direct & indirect intent (
Hibbert for s.21(1)(b)) - Ferg says s.23 too
old cases for AAF said only direct intent: if were done not to hinder arrest of felon but for another motive like making $, then ≠ AAF ( Sykes 1962 Eng HL , cited /w apparent approval in Morris 1979 SCC) - Ferg says weak
3.
Significance of Charges against Principal
First step wrt AAF is to prove that principal committed offence… a) AAF can be convicted even if charges vs principal are stayed
under s.23.1
can be convicted of being AAF even if Crown has stayed charges against the principal ( R v Camponi BCCA) b) AAF can be convicted even if principal is acquitted
s.23.1
has changed CL and is broad enough to allow conviction even if principal was acquitted, so long as in AAF’s trial the Crown proves BRD that principal was guilty – the principal’s verdict is conclusive only btwn principal & Crown
( R v S(FJ) 1998 SCC affirming NSCA)
ie when certain evidence is inadmis in principal’s trial, but not AAF’s, b/c principal’s Charter rights are not at stake in AAFs’ trial.
-
Unless adduce sig ev that wasn’t avail at principal’s trial (Charter ex above) there is potential problem w/ inconsis verdicts here on same ev ( res judicata ) c)
Evidence of principal’s convicted is admissable
s. 657.2(2) : evidence of conviction of principal is admis against AAF & proof that offence was committed, unless there is evidence to the contrary (added in
1997, also Duong, & Vinette 1975 SCC)
4.
Penalty
Same as attempts… s.463
a) Offence was an offence punishable by life = up to 14 yrs b) Indictable Offence = up to ½ max punishment for full offence c) Summary Conviction Offence = max of $2K and/or 6 mos (s.787; not ↓)

33
*See Chart for time sequence
3 Types of inchoate crimes
1) Counselling offence that’s not committed s.464
2) Attempts
3) Conspiracy
I.
ATTEMPTS
Issues: A) rationale; B) elements; C) penalty; D) impossibility; E) w/drawal; F) application
LEGIS PROVISIONS
- s.24(1) Creates the offence of “attempted ____”: Every one who, having an intent to commit an offence, does/omits to do anything for the purposes of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circs
- s.24(2) Q of whether act/omission was attempt or mere preparation is a Q of law
- s.463
sets out punishments for attempt
- s.660 In a trial for a complete offence, proof only of an attempt can result in conviction for that attempt – is a lesser & included offence.
- s.661
Where the A has been charged w/ attempt but the full offence has been made out, the judge has 2 options: 1) convict of attempt (no full offence b/c lack of fair notice to A); 2) direct that there be new trial for full offence (hassle, & punishment for attempts still broad)
A.
Rationale
Why punish crimes that never occurred?
*has relevance to where we draw the line btwn mere prep & attempt
1.
Prevention : to wait would unnecessarily cause harm to crime victims (do wait w/ some crimes b/c full offence easier to prove – ie drugs)
2.
Moral Fault : ppl who attempt may be considered as morally blameworthy as person who are successful, demonstrating criminal disposition
3.
Deterrence : may be necessary to deter others who may be contemplating committing a similar crime
B.
Elements
1.
Mens Rea for Attempts
: “intention to commit the offence” & “for the purpose of carrying out that intent”
MR: definitely direct intent, possibly indirect if Hibbert applies, Ancio might say no:
- Attempted murder (separate offence, s.239 – doesn’t use s.24): nothing less than an intention to cause the death, an intent to cause bodily harm which A knows is likely to cause death won’t suffice (
Ancio )
2.
Actus Reus for Attempts
AR: acts which go beyond mere preparation – this is common sense judgement, taking into consid the relative proximity of the act in Q to the completed offence in terms of time, location & acts under A’s control remaining to be accomplished (
Deutsch )
-
“no satisfactory general criterion can been formulated”

34
distinction is “qualitative”: generally line is drawn earlier wrt crimes of violence than other offences, eg property offences such as fraud
Cdn crts have expressly rejected Eng’s “last step” test ( Cline, Henderson, Deutsch )
SUMMARY of Cdn cases
Deutsch 1986 SCC (during interviews for “sales asst job” A indicated job requirement to have sex w/ clients if needed to close the sales, hadn’t made any job offers yet): guilty of attempting to procure persons for prostitution, conduct was imp step in commission of full offence & suff to constitute attempt.
Cline 1956 ONCA (A stopped w/ disguise after having attempted to lure children behind a building): guilty, was well into attempt, no “last step” requirement.
Henderson 1948 SCC (plan to rob bank, on the way changed mind b/c police car was near it & kept driving): guilty of attempted robbery, even though not last step.
Olhauser 1970 ABCA: convicted of attempted fraud even though more steps to complete (rejection Eng case of Eagleton ).
Godfrey 1974 ABCA (possession of all needed mats & instructions on how to make
LSD, no ev that had begun to produce): guilty of attempting to traffic [whoa says
Ferg, could have said mere prep – moving the line back pretty far]
James 1971 ONCA (found inside car & confessed looking for key to steal it): guilty of attempted theft of car, even though hadn’t found keys or otherwise tried to start it
Coleville 1988 QCCA (ran when spotted trying to break into car, when caught had device to start cars): guilty of attempted theft of car (w/out car starter might have only been guilty of attempted theft of goods in the car, not car itself)
Lobreau 1988 ABCA (made plasticine image of key in ignition at used car lot): mere prep (close to the line, could have been attempt even though had to make key)
C.
Merger
- attempt as lesser & included offence of full offence
- once commit full offence then attempt merges w/ it → can’t be convicted of both
D.
Punishment
Set out in s.463, punish attempts more lightly (crim law we care about consequences!)
1. Offence was an offence punishable by life = up to 14 yrs
2. Indictable Offence = up to ½ max punishment for full offence
3. Summary Conviction Offence = max of $2K and/or 6 mos (s.787; not ↓)
E.
Impossible Attempts s. 24: “whether possible or not”
RULE: “whether possible or not” includes both legally & factually impossible, but it’s no crime to attempt an imaginary crime (you think it’s illegal but it’s not) ( Dynar 1997 SCC)
- factually impossible: unknown to the killer the gun’s unloaded – factually impossible to kill (most attempts that fail are b/c they’re factually impossible)
- legally impossible: ex can’t steal your own property, John shoots Sue w/ intent to kill her but unknown to him she’s dead already
- Dynar : A laundered $ which he thought was criminal but was actually part of police sting operation – legally impossible for him to actually commit crime of (lawful proceeds), no bar to conviction of attempting to launder proceeds of crime.

35
F.
Withdrawal/Voluntary Desistance
if passed beyond mere prep to attempt then logically can’t w/draw from crime that’s already completed, BUT there might be good policy reasons to encourage ppl to voluntarily desist from completing offence that they’ve started to attempt
cases have rejected w/drawal as defence for attempt ( Goodman ONCA for attempted arson; Kosh SaskCA for attempted burglary)
but some English cases use voluntary desistance as mechanism for indicating A’s conduct hasn’t passed over line from mere prep – will be a defence if use irrevocable intention to complete offence as test for attempts ( Lankford , Stonehouse )
G.
Applies to Which Offences?
- literally, s.24(1) could apply to any offence, but…
1.
Only subj MR Offences
since offence of attempt is itself an intentional offence, generally assumed that attempts only apply to MR offences
ie “attempted manslaughter” is not an offence known to our law ( Jack 1970 BCSC)
2.
No attempt to commit conspiracy
B/c of remoteness held no offence of attempted conspiracy of a substantive offence, would extend the law too far into mere prep stages of crime (an attempt to attempt to do an offence) ( Dungey 1980 ONCA; Dery 2006 SCC)
3.
Provisions where attempt & full offence are the same
- some CC offences include “attempt” in them (eg assault when applies force intentionally or attempts to apply force), Ferg says on policy grds should be no offence of “attempting to attempt” for these.
4.
Offences that are Similar to Attempt
- other substantive offences could be classified as similar to attempt: ex in addition to having offence of trafficking, law also creates offence of possession for the purposes of trafficking (PPT) – since PPT is separate offence it’s possible to have offence of attempted PPT – Chan 2003 ONCA held that PPT was not an attempted offence & therefore nothing precludes conviction for attempted PPT, distinguished Dungey .
5.
Specific attempt provisions
- CC has haphazardly created some specific attempt provisions: eg s.139 attempting to obstruct justice; s.239 attempted murder (justified b/c greater sentence than otherwise would be under s.463)
6. Provincial Offences
unclear whether can be convicted of offence of attempting to commit provincial offence: s.133 BC Offence Act states that CC provisions for summary conviction offences apply to prov offences except where express provision has been made.
Expressly incorps party liability, but no provisions dealing w/ attempts, conspiracy of AAF – but applying CC provisions would be creating whole new offences, so arguable they don’t exist in BC.

36
II.
CONSPIRACY
LEGIS PROVSIONS
s.465(1)(a) : conspiracy to murder
s.465(1)(b) : conspiracy to falsely prosecute
s.465(1)(c) : conspiracy to commit any other indictable offence
s.465(1)(d) : conspiracy to commit summary convicted offence
A.
Elements
Essence is “agreement btwn 2+ ppl to commit an offence” (AR & MR basically merge)
types: wheel from central hub; chain → might not all deal w/ each other!
-
But can’t “roll-up” several distinct conspiracies & treat as one (
MacDonald 1963
BCCA)
1.
Actus Reus of Conspiracy : actual agreement to commit the offence
necessary to show a meeting of the minds, a common agreement by all parties to work together to commit the offence(s)
if still negotiationg or discussing whether to agree then no agmt
need not be in writing, no need for consid, could be implied
as long as continuing, overall, dominant plan, there may be changes in the methods of operation, personnel or victims, w/out bringing conspiracy to an end.
once agmt is made the crime is complete → no requirement for them to take action
no requirement that all know or directly communicate w/ each other, so long as each knows & agrees to be part of common crim scheme.
2.
Mens Rea of Conspiracy : the intention to agree
essential that they have an intention to agree, where there is no true agmt (one never intended to agree) there is no agmt & neither can be convicted of conspiracy (but can be convicted of s.464 counselling offence not committed) (
O’Brien
1954 SCC)
B.
Penalties
- generally (except for murder & false prosecution) same as for completion of full offence
- anomaly: attempts are generally half, & conspiracy normally occurs way before any attempt is made yet is punished more severely.
C.
Attempted Conspiracy
B/c of remoteness held no offence of attempted conspiracy of a substantive offence, would extend the law too far into mere prep stages of crime (an attempt to attempt to do an offence) ( Dungey 1980 ONCA; Dery 2006 SCC) – left open whether offence of attempted conspiracy exists where substantive offence itself is conspiracy (conspiracy to commit treason, conspiracy in restraint of trade, seditious conspiracy)
But conspiracy to attempt to obstruct justice (conspiracy to commit s.139) is an offence recognized in law ( May 1984 ONCA)
D.
Voluntary Desistance
once all elements are present then crime has been committed, no case authority which recognizes voluntary w/drawal or desistance as defence

37
-
O’Brien
has obiter saying w/drawal is no defence
E.
Merger
anomaly: full offence & conspiracy do NOT merge → can be convicted of both
crts often impose concurrent sentences, Ferg says would be better if they’d find merger as in attempt.
F.
Impossibility
- legal or factual impossibility is no defence (except wrt imaginary crimes), criminalize conspiracy b/c we punish the intention, & intention of conspirators remains the same regardless of whether some circumstance in retrospect makes realization of that intention impossible ( USA v Dynar 1997 SCC)
G.
One Person Companies
- generally can’t conspire w/ own company, ≠ 2+ ppl ( Martin , McDonnell )
H.
Spouses & Conspiracy
GENERAL RULE: spouses (married & CL) cannot be convicted of conspiring w/ each other b/c in law they are the same person ( Kowbel 1954 SCC; Thompson v. Canada 1998
QCSC) – same-sex too? Probably ( M v H 1999 SCC)
EXCEPTION: limited to when they are sole conspirators
they can severally or jointly conspire w/ other persons, participate in conspiracy beyond just H & W ( Rowbotham 1988 ONCA; Barbeau 1996 QCCA) – ie not guilty if unaware plan involved others in addition to your spouse ( Kwan 1992 BCCA)
Salituro doesn’t alter the law (irreconcilably separated), need parl to do that ( Kwan )

38
#5
*See Chart on classification of defences
Defences can operate by 1) negating AR; 2) negating MR; 3) exculpatory defences which excuse/justify even in presence of AR/MR; 4) non-exculpatory defences grounded in policy/procedural rationales
NB: Sig overlap btwn categories
can be either codified in CC or CL (s.8(3) preserves CL defences)
evidentiary burden (before judge/jury must consider it) must be an “air of reality” to the existence of that defence in the evidence presented at trial: must be suff ev, which if it is believed, would constitute the defence in Q ( Cinous ) – no assessing of cred or weighing!
I.
DEFENCES THAT NEGATE AR ie things that show proscribed harm never happened; negating voluntariness; no causation
A.
Alibi
ELEMENTS ( Cleghorn ): to proper disclosure of alibi
1.
Adequacy
: 3 pieces of info required… a) stmt that A was not present at the scene of the crime at the time of the crime b) whereabouts of A at the time c) names of any wits to the alibi
2.
Timeliness
: doesn’t have to be the earliest opportunity, suff if disclosed to police/prosecutor in time to allow investigation before trial
if no proper disclosure then ToF may draw adverse inference as to alibi’s truth when weighing its evidence at trial
jury might not believe alibi, but not to infer that A is guilty just b/c alibi isn’t believed – however, external proof that the alibi is false, while not conclusive, is one factor that can be relied upon to infer guilt ( Tessier ; Bowers ; and Sidon 1997 BCCA)
B.
Lack of Consent
lack of consent of complainant is essential element of many offences: can be express
(theft, assault) or implied (break & enter)
where lack of consent is essential element, Crown must prove BRD – ie presence of consent is defence that AR doesn’t exist.
Generally can be express or implied (but special wrt sexual assault, see below)
Consent obtained by threats normally of no force or effect
1.
Context of Assault/Sexual Assault
Assault s.265(3) - no consent where complainant submits/doesn’t resist due to force, threats/fear of force, fraud, or exercise of authority
Sexual Assault s.273.1 - no consent when: a) expressed by someone other than the complainant; b) complainant is incapable of consenting; c) activity is induced by abuse of posn of trust, power or auth; d) where complainant expresses, by words or actions, a lack of agreement; e) complainant expresses, by words or conduct, revocation of agreement

39
There is no implied consent wrt sexual assault: re AR the C either did or did not subjectively consent; A’s perception is only relevant wrt MR & mistake of fact
( Ewanchuck ) a) Obtained by Fraud
- consent obtained by fraud will not in all cases make it invalid for criminal law purposes, special rules wrt sexual assault.
RULE ( Cuerrier
): 2 elements in the context of sexual assault… i.
dishonesty ii.
deprivation: must entail sig risk of serious bodily harm to C
- CL & pre-1982 the fraud had to relate to “the nature & quality of the act”,
Petrozzi 1987 BCCA held that shortening to “fraud” didn’t change anything, so obtaining services from prostitute by falsely promising to pay her wasn’t fraud as to nature & quality of the act of sex → still consent.
- Cuerrier 1998 SCC (2 Cs consented to unprotected sex w/ A, he was HIV+ but w/held info b/c knew they wouldn’t have consented): fraud = no consent, dishonesty was deliberate conceit; risk of contracting HIV was risk of serious bodily harm. Crt not in agreement re seriousness of risk reqired: less serious
STDs? Pregnancy? Protected sex? Any lie? → all obiter comments [dishonesty
MR? sex ass incl WB & recklessness, so technically would suffice, but tread cautiously b/c prosecutions have only been based on knowledge].
- Williams 2003 SCC (wilful non-disclosure of HIV-status): applied Cuerrier.
- arguably Cuerrier wouldn’t change result of Petrozzi , deprivation = not getting
$, no sig risk of bodily harm. b) Incapable of Consenting
ie drugs, alcohol, mental disorder, age…
Daigle 1998 QCCA (C given PCP w/out her knowledge, then had sex w/ both
As but felt “out of it”): guilty, no consent b/c of surreptitious admin of drugs.
Sex ass might not always appear hostile, but hostility arises from lack of consent.
2.
Not Legally Recognized on Policy Grds
- certain cases where legis/CL has said that consent by C/Vic will not be a defence a) s.14 Death
- no one may lawfully consent to his/her death, such consent won’t relieve others from causing, assisting in causing or attempting to cause that person’s death.
- ex: Rodriguez case w/ ALS & assisted suicide b) Jobidon Exception
RULE: will not allow consent as a defence when: 1) fist fights/brawls btwn consenting ppl; who 2) intend to apply force causing non-trivial bodily harm; and
3) causes non-trivial bodily harm ( Jobidon , modified by Paice )
consent continues as a defence wrt injuries received in rough sporting activities, medical treatment, or during performance of stunts (social utility?)

40
Jobidon exception applies to young ppl as well ( R v W(G) 1994 ONCA), but might be more inclined to find no intent to cause more than trivial harm ( R v
B(TB) 1995 PEI CA; R v M(S) 1995 ONCA).
In the context of domestic assault, also public policy limits on the extent to which a person can consent to their injuries ( Bruce 1994 BCSC)
Consent is no defence to the offence of sexual assault causing bodily harm – for public policy reasons cannot consent to infliction of bodily upon him/herself except in the course of a generally approved social activity – acts of sexual violence are not such an activity ( Welch 1995 ONCA); but like fist fights, consent is a defence if A didn’t intend to cause serious bodily harm to the victim
( McIlwaine 1996 QCCA).
C.
Automatism
DEFN: “unconscious, involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he/she is doing” (
Rabey
); “state of impaired consciousness in which an individual, though capable of action, has no voluntary control over the action” (
Stone )
-
CL defence: s.8(3), goes to voluntariness → negates AR.
Results in outright acquittal
1.
Classification of Defences for Unconscious Conduct
*See Chart a) If unconscious behaviour was caused by a “disease of the mind” → s.16 insanity/mental disorder defence ( Rabey ) b)
If caused by voluntary intoxication →
Bernard, Daviault & s.33.1 intoxication defence ( Hartridge ) c)
If caused by something else → non-insane automatism (automatism proper) as a defence ( Rabey, Parks, Stone )
EXAMPLES of non-insane auto
concussion from physical blow to the head ( Bleta 1964 SCC)
sleepwalking ( Parks 1992 SCC) but Stone said rare that auto not caused by mental disorder, sleepwalking subsequently held to be insanity ( Campbell 2000
ONSC), but “sexsomnia” auto proper (
Luedecke 2005 Ont CJ).
stroke ( Hill v Baxter 1958 Eng CA; Quick; Berger )
epileptic fit may be auto ( Hill v Baxter ), but psychomotor epilepsy is insanity
( Bratty, Sullivan 1983 Eng HL)
extraordinary blow ( Rabey; Stone )
2.
Burden Of Proof
Burden: A is presumed to act voluntarily, reverse onus on the A to rebut that presumption on a BoP, ( Stone, reversing Parks & Rabey )
A must make an assertion of involuntariness and must call expert psychiatric or psychological ev confirming his/her claim in all cases of auto, along with any other supporting ev
Psychiatric/psychological ev that A acted in state of auto will gen not meet necessary burden of proof if that expert opinion is based only on an assumption of truthfulness and accuracy of A’s acct of event, w/out other supporting ev of auto.

41
If A has laid proper foundation for the defence the Tjudge must then decide as a matter of law whether ev supports a defence of mental disorder auto or non-mental disorder auto
→ 2 discrete tasks for judge: (1) assess whether there is ev which could convince a jury on a BoP of auto, and if so then (2) was it insane or non-insane auto?
this is not new higher evidentiary burden, still “air of reality” ( Fontaine 2004 SCC)
-
Ferg says probably doesn’t apply to all forms of involuntariness, just auto
3.
Determining Automatism
TEST: non-insane auto vs. disease of the mind ( Stone building on Parks & Rabey ) a)
Starting proposition that it’s a DoM, only rare where will be non-insane auto b) Decide whether the evidence takes the condition out of DoM category, taking a new holistic approach which takes into account… i.
internal cause ( Rabey ): DoM is subj condition/weakness internal to the A
- auto caused by psych blow arising out of ordinary stresses & disappointments of life will normally be internal → DoM
- but extraordinary event that may cause avg, normal person to go into shock/dissociation → external, non-insane auto (obj test) ii.
continuing danger ( Parks ): if condition makes you a continuing danger, then classified as DoM. iii.
policy factors ( Rabey & Parks ):
1) fear of fabrication
2) public disillusionment by outright acquittal depending on severity of crime
3) verdict of acquittal doesn’t allow for subsequent monitoring/control like
NCRMD does iv.
Additional factors ( Stone ) to be considered for psych blow auto, which requires ev of “an extremely shocking trigger” as opposed to simply stressful situations:
1) the severity of the triggering stimulus
2) corroborating evidence of bystanders
3) corroborating medical history of automatistic-like dissociative states
4) the presence or absence of motive
5) the relationship btwn alleged trigger of the automatism and the victim of the automatistic violence
Rabey v The Queen , 1980 SCC – Psych Blow and Internal/External Distinction
A Has crush on victim, finds note of hers where she says he is a “nothing”, hits her on the head with a rock when she says he’s “just a friend”
A is honours student, pretty normal kid – truly exceptional conduct for him
Witnesses who saw him after said he appeared to be in a state of shock, sig disoriented – some evidence of auto
Defence: analogy with physical blow auto ( Bleta ) and says psych blow auto
(Rejection caused him to go into a dissociate state)

Held: this is not normal – you have a disease of the mind
NB: Most cases will be mental disorder
R v Parks , 1992 SCC – Sleepwalking & Continuing Danger Test
Sleepwalker, killed his mother-in-law and injured his father-in-law

42
Lots of evidence that he was sleepwalking (jury accepted that he was)
Family history of it, evidence indicated did not come from mental illness
Under a lot of stress and anxiety but got along well with in-laws
Held: You are not a continuing danger, so auto – acquittal.
 Sleepwalking is internal cause but we don’t treat it as disease of the mind – internal/external test does not work here – evidence did not indicate that A’s sleepwalking arose out of a mental illness (Lamer: if otherwise could be insanity)

Test : if condition makes you a continuing danger, classified as mental disorder

Here: not continuing danger, all psychs said so rare and just no evidence that it would occur again – automatism is proper defence for A, not insanity.
R v Stone , 1999 SCC – Takes Opportunity to Severely Limit Auto Defence
Violent stabbing of 2 nd
wife, long drive from Kelowna to Van
Lots of arguing and alleges she said very mean and cruel things
Stabs her 47 times, claims psych blow dissociation
Trial judge left insane auto, intention wrt murder and provocation with jury
Jury found no insanity – challenged that there was no non-insane auto
Held: Caused by D of M, should be mental disorder defence
Canada v Campbell , 2000 Ont SJC – Sleepwalking as Mental Disorder
A attacked girlfriend in middle of night during sleepwalking episode
Attack “came out of nowhere”: nothing to trigger and no violence in relationship
Psych assessment showed sleep disorder, psych said could be classified as mental disorder
Held: disease of the mind – NCRMD

Start by presuming mental disorder, then look to factors and holistic analysis
 given lack of external triggers (indicating was internal to A) and real risk of recurrence absent any treatment the verdict of NCRMD was appropriate
NB: PreStone would likely have been acquitted on basis of non-insane auto
D.
Accident
used in 2 ways: 1) A claiming conduct was involuntary b/c of accident (no AR); 2) A claiming he/she didn’t intend the consequences of his/her voluntary act (no MR), not really an “accident”
-
Burden of proof on Crown to establish A’s conduct was voluntary (ie w/in A’s ability to control)
Examples of involuntary “accidents”: hitting another as a reflex action; hitting another as a result of falling down stairs etc; hitting a person/damaging property as a result of defect in car or ice/oil slick making vehicle out of one’s control; accidentally dropping property & damaging it.
E.
Act of God
defence of act of god/nature is really one that A didn’t cause prohibited harm (no causation, often intervening cause cases)
may result in outright acquittal, burden on Crown to establish causation

43
However if SL offence then A may have to establish on BoP that he/she used due diligence to guard against any criminal harm arising from acts of nature/god.
F.
Physically Impossible to Comply w/ the Law
Omissions when under a legal duty
Omissions must be voluntary, if impossible to do it then was involuntary → no AR
II.
DEFENCES THAT NEGATE MR
A.
Mistake of Fact
Goes to negate MR (also fcns as an excuse)
- Depending on MR you need: 1) honest; 2) reasonable (maybe); 3) relating to essential element; 4) innocent?
1.
Type of MR Offence a)
Subjective MR: “honest”
does not have MR if he/she is honestly mistaken (but not WB) about essential element of offence
does not have to be objectively reasonable ( Pappajohn )
NB: but to assess “honesty” of mistake we infer from circs, the more unreasonable it is the greater chance it’ll be disbelieved (practically difficult to prove honest mistake if it’s obj unreas → affects cred consid, wasn’t believed in
Pappajohn ) b)
Objective MR (CN, PN, SL): “honest” & “reasonable”
doesn’t have MR if he/she is honestly mistaken about essential element of offence & that mistake is objectively reasonable.
-
Ferg says that though crts haven’t yet recognized the issue, which obj std it is should affect level of “reasonableness” required: “wanton & recklessly unreas”,
“markedly & substantially unreas”, “unreas” in civil law sense c) Partly Obj MR & Partly Subj MR
honest & reas should apply to those elements which are obj MR; and honest only apply to those elements which are subj MR
no case law on this point. d) Absolute Liability: no defence
- no MR required, all you need is AR to be guilty → MoF is irrel.
2.
Relates to an Essential Element of AR
only operate as a defence if your mistake relates to an essential element of AR
Ex: theft – taking property which is not your own w/out owner’s consent → if thought was your own, or you had owner’s consent, then MoF as defence.
Beaver 1957 SCC (thought he was selling baking soda & passing it off as heroin, was actually heroin): charged w/ possession of a narcotic – 1) knowledge of control;
2) knowledge of narcotic → MoF as to knowledge of narcotic.
Currie (meets stranger in bar & agrees to cash his cheque – charged w/ uttering stolen cheque): had AR, but didn’t know it was stolen → MoF as to stolen.

44
3.
Innocent Mistakes & Transferred Intent
-
Some cases say has to be innocent, but isn’t actually at issue (
Tolson, Pappajohn )
if we require innocent mistake, then we are transferring intent → transferring noninnocent you had to what you actually did, suff as bad MR for actual crime.
-
Doctrine of transferred intent is like AL → once you start to be guilty we’ll hold you liable for whatever consequences happen (**Ferg says charging w/ attempt is better route)
RULE: to the extent that transferred malice exists as a general principle, it should only be applied where the 2 offences are “the same type of offence” ( Blondin 1971 BCCA)
Ladue (drunk, thought he was raping her & she was sleeping, really she was dead): no MoF for you wrt offence of causing indignities to dead body, transfer intent to rape over.
McLeod 1954 BCCA (intended to assault citizen, didn’t know it was PO): allowed
A to rely on mistaken belief (not wasn’t PO), convicted of common assault but not assaulting PO. Followed in Shand & Collins where persons didn’t know murder vics were POs (convicted of 2 nd degree murder only, instead of 1 st ).
Martineau & Vaillancourt SCC: for murder you need the specific intent for murder, nothing else will suffice → const limits on substituting intent.
Daviault 1995 SCC: sexual assault requires intent/recklessness/WB to sexually assault, and that an intent to get really drunk (while bad & dangerous) ≠ adequate substitution for required MR.
Kundeus 1976 SCC (committing drug offence, thought he was trafficking in mescaline but was actually LSD): MoF was no defence, transferred intent (followed in Futa 1997 BCCA; Couture 1997 ONCA).
Blondin 1971 BCCA: MR to smuggle booze shouldn’t be transferred to AR of smuggling narcotic.
Deakin 1974 ManCA (A intended to assault B, swung at him, missed & smashed vase which injured C’s eye): transferred intent to assault B to AR of injuring C, convicted of assault causing bodily harm of C – but Irwin 1998 ONCA (sim facts) said potential Charter problems, avoided issue by using “unlawfully causing bodily harm” (269) instead of “assault causing bodily harm” (268) [268 assumes assault & harm are wrt same person].
4.
wrt Consent & Sexual Assault
s.
273.2
introduces requirements that A’s mistaken belief as to consent must be both honest & reasonable, in the sense of having taken “reasonable steps” to ascertain that the C was consenting
Ewanchuck SCC: belief that silence, passivity or ambig conduct constitutes consent is MoL & provides no defence; when C has expressed her unwillingness the A must receive a clear & unequivocal “yes” before he proceeds w/ any further sexual touching.
B.
Mistake of Law s.19
: Ignorance of the law is not an excuse for committing an offence
codified CL assumption that everyone knew or ought to know, what the criminal law forbids, at CL not unreasonable to think that everyone did know the law, not the huge amount of regulatory offences
Mistake of fact is a defence (how to classify?)

45
1. Strict Application (Harsh Examples)
- Bailey , 1800 Eng (At sea, could not know that a new law had been created): guilty, since ignorance of the law is no excuse
Esop , 1836 Eng (Foreign sailor, while his ship was docked in Eng allegedly engaged in consensual sexual act which was offence in Eng but not in his country): although A may believe his act is perfectly innocent, A is still guilty b/c ignorance of British law is no excuse (found not guilty on other grounds)
R v Dalley , 1957 Ont CA (A relied on advice of lawyer that his conduct was lawful, was wrong, A did not know he was trading in a “security” and therefore by law needed to be a “registered broker”, which he was not): ignorance of the law is no defence, convicted.
Brinkley , 1907 Ont CA (A relied on advice on lawyer that his 1 st marriage was dissolved, remarried and later charged with bigamy): ignorance of law is no excuse, guilty.
Campbell , 1972 Alta DC (A relied on Alta SC judgement ( R v Johnson ) that nude dancing in a bar was not an indecent performance as prohibited in the CC, was reversed at Alta CA Before reversal, A danced nude expressly relying upon trial decision that such conduct was not criminal): Guilty, reliance on an incorrect SC trial judgement is still an error of law - NB: “irony of ironies”: Johnson was overturned, SCC reinstated trial judge’s ruling.
Molis , 1980 SCC (When A first started manufacturing certain drug it was a legal drug, subsequently declared restricted by Regulation which was published in
Gazette. A argued that he did not know it was illegal and he had acted with due diligence in determining it was legal before starting): due diligence in ascertaining the law is no defence to ignorance of the law
R v Gunn , 1997 Alta CA (A was lawyer, interfered with police who were arresting his client b/c thought that arrest was illegal, mistaken. Charged with wilfully obstructing a PO): Mistake was mistake of law and so no defence, and mistake does not negate the MR of “wilfully” here.
2.
Exceptions and Limitations
Crts have created exceptions to get around harshness of rule, now anything but clear a) Mixed Fact & Law
mistake of mixed fact and law is also a defence b/c still mistake of fact
Some courts (unlike Brinkley ) have held in bigamy cases that the element of
“married to another person” is a question of mixed fact and law
Might be successful the more unfair a conviction would be b) Ignorance of Regulation that hasn’t been published in Official Gazette
Ross 1944: “hardly compatible w/ justice to convict for violation of Minister’s order [to close area from hunting] which he had no knowledge of”
Statutory Instruments Act, s.11(2): no person shall be convicted of an offence set out in a Regulation unless the Regulation was published in Canada Gazette
BC Regulation Act , s.3(2): similar to above
-
Highly unlikely that it wasn’t published but you should always check c) Mistake as to Civil Law treated as a Mistake of Fact for Criminal Offences

46
Prue & Baril , 1979 SCC (A convicted of CC driving offence, fine and licence suspension. Unknown to them, provincial Motor Vehicle Act says if convicted of
CC driving offence automatically subjected to 12 mos auto licence suspension
No notice given of this, drive, convicted of new CC offences.259(4): driving when licence is suspended): Mistake as to civil law (provincial) will be considered a MoF when it is an essential element of an offence under the CC
MacDougall , 1982 SCC (Similar facts, only difference is not charged with CC offence s.259(4) but provincial equivalent of driving while disqualified):
Mistake as to civil law is not a defence if the offence is an offence under provincial law, rather than CC
Hammerbeck , 1992 BCCA (CC offence of taking child contrary to custody order when parent mistakenly believed custody order was of no legal effect):
Applying Prue & Baril was defence since was mistake as to civil law
R v Pontes , 1995 SCC (More driving offences, here like MacDougall , Prue &
Baril exception thrown into doubt by obiter here): Prue & Baril and
MacDougall are irreconcilable, and suggested that Prue & Baril might be wrong in as classifying ignorance in that case as mistake of fact [ Obiter b/c A here was charged under BC Motor Vehicle Act and not CC so ignorance of automatic suspension under provincial law is a mistake of law which is no defence when charged under provincial Act. d) Colour of Right
theft (s.322) is “fraudulently taking… without colour of right”
colour of right is an honest but mistaken belief that you have a right in law to the property taken (mistake in law as to property rights)
Howson, 1966 Ont CA (e of towing service refused to give towed car back to owner until he paid expenses (thought he had right to do this – now he does, law has changed) Charged with theft): not guilty (colour of right example) e) Negate MR
Court will sometimes hold (wrongly says Ferguson) that a mistake of law negates some forms of MR such as “wilful”.
Docherty , 1989 SCC : held that A did not “wilfully” breach his probation order to “keep the peace” bc/ he did not know he was committing the offence of
“impaired care and control” of an automobile when he was in a parked vehicle in an impaired condition but believed the car was broken and could not be started.
Runs a Mack truck through s.19, not every court will follow it - Gunn , 1997
Alta CA: held that MoL does not negate MR of “wilfully” obstructing PO. f) Officially Induced Mistake of Law
Virtually always occurs in reg offences, no clear answer whether applies to CC i. Cancoil , 1986 Ont CA – Applies and Restricts Defence
Violation of worker safety regs: safety equip getting in the way, asked safety inspector if they could take it off, said yes – wrong, charged w/ violation
Held: You’re right, that’s unfair
Restricts Defence…
1) to regulatory statutes

47
2) the erroneous official advice must come from an official who is responsible for the admin or enforcement of that law
3) A’s reliance must be reasonable
4) A must prove defence on balance of probs ii. Jorgenson , 1995 SCC – Applies to CC Offences as well?
Charged with “knowingly” selling obscene material under CC - Ont film review board approved film (classified it as “R”, not rejected as obscene)
Majority:

Officially induced error not raised so choose not to consider it
Lamer (for himself only):
 A’s reliance on such approval does constitute a defence on officially induced error.

Defence is an excuse, not a justification. Appropriate remedy is a stay of proceedings, not an acquittal [Ferg says should be acquittal, under circs no moral fault attributed].

Applies not only to regulatory offences but true crimes as well

Must be established by A on balance of probs iii. Levis v Tetrault , 2006 SCC: SCC unan confirmed the existence of officially induced error, adopted framework set out by Lamer in Jorgenson . g) Mistake of Law while Enforcing the Law s.25: persons administering law are justified and legally protected for their actions in enforcing law if they act in good faith and on reasonable grounds.
- R v Devereaux , 1996 Nfld CA (A was correctional officer, used force to detain the C in circs where detention was no longer lawful – made an honest and reas mistake as to his legal authority to detain C): acquitted, MoL is no excuse under s.19, but s.19 does not prevent A from relying on defence in s.25.
*NB: could Gunn rely on s.25 as a defence?
C.
Voluntary Intoxication
*See handout for specific & general offences
CL defence (s.8(3)), partially codified/altered by s.31 of CC
Results in outright acquittal, but possible conviction of lesser included offence (murder to manslaughter, robbery to assault etc) w/ either obj MR or gen intent
Goes to negating subj MR (the obj reas person is never intoxicated), also fcns as an excuse (never justifies, still wrong)
-
Crts have struggled: don’t want to allow it to excuse (bad) but also can’t form specific subj MRs when intox – what to do?
1.
Summary of Current Intoxication Defence
RULE: Bernard & Daviault as modified by s.33.1 a) Subj MR Specific Intent: Voluntary intoxication is a defence if it negates the specific intent required for a crime ( Beard, Learson ) b) Subj MR General Intent: Voluntary intoxication is not a defence unless both… i. the intox is so extreme that it is akin to insanity or auto ( Daviault ), AND

48 ii. the general intent offence does not involve assault as an element (s.33.1) c) Obj MR Crimes: Voluntary intox is no defence to b/c reas person is never an intoxicated one.
- applies to drugs as well as alcohol ( Curtis 1972 ONCA)
- ≠ defence to driving while impaired on policy grds, doesn’t violate Charter ( Penno )
- MoF caused by self-induced intox not permitted on policy grds as defence to gen intent offence ( Moreau )
2.
Onus of Proof a) Specific intent: onus on Crown to prove BRD the specific intent in spite of some ev of intox b) General Intent: onus on A on BoPs to prove extreme intox akin to auto or insanity for general intent crimes not involving assault ( Daviault )
3.
Distinguishing Specific from General Intent
*See handout
RULE ( George
): distinction to be drawn btwn “intention” as applied to acts done to achieve an immediate end (general), and acts done w/ the specific & ulterior motive & intention of furthering/achieving illegal object (specific intent)
-
“for the purposes of”, “w/ intent to” signal specific intent offences
Ferg says lame: semantics only, could express almost any general intent as specific.
D.
Insanity/Mental Disorder
negates MR, also fcns as excuse (not justification – still wrongful conduct)
codified defence: s.16
1.
Elements s.16(1) & 16(2) create 2 separate branches:
1) disease of the mind that renders the A incapable of appreciating the nature & quality of his act/omission;
2) disease of the mind that renders the A incapable of knowing that his act/omission was wrong a)
The Meaning of “Disease of the Mind”
DEFN ( Cooper ): DoM embraces any illness, disorder or abnormal condition which impairs the human mind & its fcning, excluding self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion [excl for policy reasons → other defences]
DoM is a legal term & should be given a defn by the crts, not the medical profession (fact that med profession doesn’t classify it as DoM isn’t conclusive)
Expert med ev as to whether A was insane should not be treated as virtually determinative of the issue, it’s for judge & jury to decide. b) The Meaning of Appreciate
DEFN ( Abbey, endorsed in Landry ): appreciating the consequences restricted to appreciating only those physical consequences which are the AR
- a delusion which renders the A incapable of appreciating the penal consequences is not included w/in this branch.

49 c) The Meaning of Wrong
INCLUDES ( Chaulk & Morrissette ): both 1) legally wrong; and 2) morally wrong
-
“morally wrong” is not to be judged by the personal stds of the offender, but by his/her awareness that society regards the act as wrong
TEST ( Oommen ): whether A lacks capacity to rationally decide whether act is right or wrong, and hence to make a rational choice about whether to do it or not
real Q is whether mental disorder deprived him of the capacity for rational perception & rational choice about the rightness or wrongness of the act
2.
Presumption of Sanity/Burden of Proof
BURDEN: presumption of sanity w/ burden on A (at CL, codified by ss.16(2), (3))
- violates s.11(d) presumption of innocence, but justified as reas limit under s.1
( Chaulk )
3.
Raising the Defence
RULES ( Swain
): old CL rule violated s.7, new rule…insanity defence can be raised a) During the trial by the A; b)
During the trial by the prosecutor if in the Tjudge’s opinion the A has somehow put his/her mental capacity for criminal intent at issue; c) By either the A or Crown after the ToF has concluded that the A was guilty of the offence, but before a verdict of guilty is formally entered.
4.
Disposition a) pre-1992
A who was found either unfit to stand trial or NGRI was automatically confined indefinitely at the pleasure of the Lieutenant-Governor (pleasure of prov
Cabinet).
There were no rules of due process in regard to A’s detention or future release, although Cabinet sought advice from an advisory Patient’s Review Board
(advisory only)
NB: stats show would have gotten out of prison before released from institution, bad PR for gov to be responsible for releasing them b) Swain, 1991 SCC
SCC held that automatic indefinite confinement provisions of then s.542(2) of CC violated ss.7 and 9 of Charter and were not saved by s.1. c) 1992 Amendments
Response to Swain , introduced new provisions ss.672.45 and 672.54:
Court will hold a disposition hearing to make a decision, taking into consideration the need to protect the public from dangerous persons, that the “NCRMD” or
“unfit” person shall be i.
released unconditionally (very unlikely for violent crimes b/c already been found guilty) ii.
released upon conditions of supervision, or iii.
detained in custody in a hospital
- for (ii) and (iii), subsequent decisions about continuation of those dispositions are made by indep Review Board (s.672.47) which is bound to follow rules of due process (not advisory)

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5.
Criticism of Insanity Test
s.16 is based solely on cognitive impairment (ability to reason, understand) due to disease of the mind
does not include volitional impairment (ability to control behaviour) due to disease of the mind (irresistible impulse due to mental disorder is not included: Borg , 1969
SCC)
The moral foundation for imposing criminal responsibility and punishment is based upon our view of human beings as rational (ie the capacity to reason) and autonomous (ie the capacity to choose). The existence of these two capacities (the ability to reason right from wrong and the ability to choose one or the other) provides the moral justification for imposing criminal responsibility and punishment on persons who choose to do wrong
Current insanity test is inadequate (immoral) since it allows persons who lack the capacity to control their behaviour due to mental illness to be convicted and punished (ignores the choosing part?)
E.
Prank
in some cases A has raised defence of prank wrt theft cases (not always successful)
theory is that lack of fraudulent motive negates MR, but this confuses motive w/ intent
Ferg says maybe use de minimus when prank is not viewed as very serious.
F.
Mental Disorder Short of Insanity
Where evi of mental disorder falls short of proving the legal defn of insanity on a BoP, there are some cases that suggest this evidence should be considered in regard to whether the Crown has proven beyond a reas doubt that A did form the requisite intent.
-
If successful, this “new” defence will usually result in conviction for a lesser offence not requiring proof of intent (murder to manslaughter, attempted murder to assault..)
III.
EXCULPATORY DEFENCES
A.
Self-Defence
*See Chart
B.
Defence of Property
1.
Defence of Personal Property: ss.38-39
- rarely used, usually ends up being SD as primary defence a) s.38(1) : Quite restrictive
Person in 1) peaceable possession of personal property; 2) if he does not strike or cause bodily harm to the trespasser… is justified in
(a) preventing trespasser from taking it;
(b) taking from trespasser who has taken it b) s.38(2) : if 1) person in peaceable possession lays hands upon the property, then 2) trespasser who persists in attempting to take it… shall be deemed to commit assault w/out justification or provocation

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- presumably, since assault is now deemed to occur can use as much force as necessary to defend against the assault under SD. c) s.39
: person in peaceable possession under a “claim of right” is not criminally liable in using force to defend his/her possession so long as no more force than necessary
exception to s.19 MoL as no defence, so long as honest belief of lawful right to possession (could be wrong though)
2.
Defence of Real Property: ss.40-41 a) s.40 Defence of Dwelling : applies only to 1) dwelling-house; 2) only to prevent forcible breaking & entering s. 40 Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority. b) s.41 Defence of House or Real Property : applies to 1) house or real prop; 2) any trespasser
41.(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwellinghouse or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation [rely on SD]
ELEMENTS of s.41 ( Born Without a Tooth 1992 ABCA)
1) A must be in possession of land
2) his possession must be peaceable
3) Vic of assault must be a trespasser
4) the force used to eject the trespasser must be reas in the circs
- A’s honest MoF can apply to 1 st
3 but not 4 th
b/c must be obj reas
- A who has an honest but mistaken belief in a set of facts which would make that person a trespasser is entitled to rely upon defence in s.41(1)
- before using force to remove trespasser, must ask them to leave & give them reas amt of time to comply w/ request i.
Meaning of “peaceable possession”
- “peaceable” ≠ “peaceful”, not enough for A to show he kept the peace while in occupation – only avail to somebody whose possession has not been seriously challenged before incident in Q ( Born Without a Tooth )
- George 2000 ONCA: Abs who occupied prov park were not in peaceable possession when used force to repel POs → possession suff challenged by notices stating that park was closed & that if they stayed they were trespassing (also had stockpiled sticks & stones ≠ peaceable)

52 ii.
Meaning of “trespasser”
- party who’s originally invitee can become trespasser when auth to enter land for one purpose & acts to further unauth purpose ( Born w/out a Tooth )
- invitee may subsequently become a trespasser by exceeding the scope of his invitation or overstaying his welcome (youth bought jacket at mall, then skateboarded in parking lot w/ signs prohibiting it) ( Keating 1992 NSCA)
- guests of A’s daughter became trespassers once defied his order by their failure to leave ( Dixon 1994 NBCA) iii.
“No more force than necessary”: limitations
- does not apply where there has been a stabbing, not justified ( Figueira)
- does not apply when there is a killing, not entitled to kill trespasser absent some threat to his person ( Clark )
- BUT see McKay where the SCC said we should not be taken as endorsing the view that “defence of property alone will never justify the use of anything more than minor force being used against a trespasser”; or that in all cases “the defence of property alone won’t justify the intentional use of a weapon against a trespasser”
- Baxter : ordinary principles of SD apply to s.41(2)
- Alkadri : A cannot use the defence if he used unnecessary force which provoked the deceased trespasser
C.
Necessity
-
CL defence, s.8(3) → recognized (hesitantly, debate about whether should just go to sentencing) in Latimer, Perka & Morgentaler
Burden on Crown to prove BRD that offence wasn’t committed under necessity.
ELEMENTS ( Latimer, Perka & Morgentaler )
1. imminent harm
2. no reasonable “legal way out”
3. proportionality: harm from offence must be ≤ harm that would have occurred
- illegality or contributory fault at the time imminent peril arises doesn’t necessarily preclude necessity ( Perka
: illegal transportation of drugs, storm →had to come ashore)
D.
Duress
- dealt w/ by s.17, but partially held unconst by Ruzic ; CL defence still exists (s.8(3))
- doesn’t negate MR, but operates as distinct CL excuse → still intent to do it ( Hibbert )
- Onus: once issue of duress raised by the ev, Crown must prove BRD that no duress
1.
Combined Effect of Paquette & Ruzic a) s.17 does not apply to secondary parties; secondary parties may rely on CL defence of duress in respect of all offences b) principal offenders may rely on CL duress wrt all offences except 22 listed excluded ones in s.17 c) s.17 is still applicable to the list of excluded offences (unless and until successfully const challenged) – means that principal offender charged with

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“excluded offence” cannot rely on duress under s.17 nor on CL duress since applicability of s.17 to those offences precludes reliance on CL (s.8(3))
2.
Elements of CL Duress (Ruzic, Paquette, Mena) a) A must be subject to threat of death or serious injury to himself or to another person; although threat need not be immediate, there must be “a close temporal connection btwn the threat and the harm threatened” (
Ruzic ) b) A must be committing the offence (solely) as a result of the threat (must believe that the threat will be carried out if they don’t) c) Threat must be of such gravity that it may well cause a reasonable person placed in the same situation as A to respond by committing the offence in question d) A must not have a safe avenue of escape ( Ruzic and Hibbert emphasized that this was an objective-subjective assessment) e) A must not be a voluntary member of a criminal assn whereby he/she knew that he/she may be subject to compulsion by threats
E.
Provocation
- dealt w/ in s.232
- Onus: once issue is raised by the ev, burden on Crown to prove BRD that A wasn’t provoked when he/she killed the victim
- arises after Crown has established both the AR & MR of murder → A did in fact intend to kill the vic, but intended to do so while in a state of anger/rage from some provocative act/insult ( Cameron 1992 ONCA)
3.
Qualified Defence a) only a defence to murder, no other offence, not even attempted murder ( Campbell ) b) partial defence: A won’t be totally acquitted, charge will be ↓ to manslaughter instead (s.232(1))
- gives sentencing flexibility, not a lot w/ murder charge.
4.
Elements of s.232(2)
(a) A must be provoked by a wrongful act or insult
(b) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control [objective test]
(c) A must him/herself be acting in response to the wrongful act or insult on the sudden and before there is time for his/her passion to cool [subjective test]