Criminal Law SUMMARY
February 2003
````````````````````````````CRIMINAL LAW – MIDTERM SUMMARY
Sarah Huggins
PART I: THE AIMS AND PURPOSES OF PUNISHMENT .................................................. 2
PART II: SOURCES OF THE CRIMINAL LAW: CODIFICATION VS. COMMON
LAW CRIMES .............................................................................................................................. 6
CASE: R. V. Sedley ........................................................................................................................................................... 6
CASE: Commonwealth v. Mochan .................................................................................................................................... 6
CASE: Frey v. Fedoruk ...................................................................................................................................................... 6
S. 177 Criminal Code – Peeping Toms ............................................................................................................................... 7
Procedural Classification of Offences, page 161-163.......................................................................................................... 8
A - STATUTORY INTERPRETATION; RULE OF “STRICT CONSTRUCTION” OF PENAL PROVISIONS ................................ 9
Using the Rule of Strict Construction.................................................................................................................................. 9
CASE: R v. Goulis ............................................................................................................................................................. 9
CASE: R. v. Paré ...............................................................................................................................................................10
Applying Rule from Paré ...................................................................................................................................................11
CASE: R. v. Muchikekwanape ..........................................................................................................................................13
CASE: R v. Mac ................................................................................................................................................................14
PART III: CORNERSTONE PRECEPTS: THE PRESUMPTION OF INNOCENCE
AND THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT .............. 15
CASE: Woolmington v. D.P.P. .........................................................................................................................................15
Golden Thread Quote .........................................................................................................................................................16
CASE: R v. Osolin ............................................................................................................................................................16
PART IV: THE ACTUS REUS (PHYSICAL) REQUIREMENT FOR CRIMINAL
LIABILITY.................................................................................................................................. 21
A - THE UNLAWFUL ACT – INTERPRETATION PRINCIPLES ....................................................................................... 21
[1] Prostitution, etc. ........................................................................................................................................... 21
CASE: Hutt v. R. ...............................................................................................................................................................21
Notes on the Crime of Prostitution (page 192-196) ............................................................................................................22
Criminal Code: ss. 197, 210-213 .......................................................................................................................................23
Case: R v. DiGuiseppe ......................................................................................................................................................24
[2] The Unlawful Act for the Crime of Assault and Sexual Assault ................................................................... 25
S. 265 Criminal Code .........................................................................................................................................................26
CASE: R v. Jobidon ..........................................................................................................................................................26
CASE: Bolduc and Bird v. R. ............................................................................................................................................28
CASE: R v. Cuerrier..........................................................................................................................................................29
[3] The Proper Scope of the Criminal Law........................................................................................................ 31
Notes on the Proper Scope of the Criminal Law (page 167-173) .......................................................................................31
[4] The Unlawful Act in Breaking and Entering ................................................................................................ 34
Case: Johnson v. R ............................................................................................................................................................34
[5] The Unlawful Act of Causing a Public Disturbance .................................................................................... 35
CASE: R. v. Lohnes ..........................................................................................................................................................35
Interpreting a Statute ..........................................................................................................................................................36
B – OMISSIONS ........................................................................................................................................................ 37
CASE: Fagan v. Commissioner of Metropolitan Police ....................................................................................................37
CASE: R. v. Miller ............................................................................................................................................................38
CASE: Moore v. R. ...........................................................................................................................................................39
C – CAUSATION ....................................................................................................................................................... 40
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PART I: THE AIMS AND PURPOSES OF PUNISHMENT
What does each author see as the function of the criminal law, the function of punishment
(which is basically the criminal law “in action”)? On what basis is the criminal law (i.e.
punishment of criminals usually by imprisonment) justified?
Goldstein and Goldstein: criminal law as a last resort process
H.L.A. Hart: aim of the criminal law (i.e. criminal legislation) is denunciation of conduct. This
is to be distinguished from justifications for punishment when those laws are violated 
deterrence, retribution, vengeance, reformation. [note that Hart also believes that in favouring a
modern, forward-looking, utilitarian justification for punishment over a back-ward looking,
moral culpability justification for punishment, society has tended towards the “elimination of
responsibility”]
Sweeny case (drunk driving): aim of punishment is NOT retribution (though court here
misunderstands retribution as vengeance). Fundamental purpose of criminal sentencing is to
enhance protection of society. In order to accomplish this purpose, punishment must be
acceptable to society  in order to achieve societal acceptance  (1) fulfillment of the various
utilitarian goals, i.e. deterrence, isolation, rehabilitation and denunciation, is critical for societal
acceptance ; (2) punishment should be proportionate to gravity of offence (moral culpability).
Stephen: Main aim of the criminal law and punishment is the expression and gratification of
society’s hatred towards the criminal and his conduct. (i.e. vengeance, revenge).
Morton: Criminal law as a contemporary morality play. The main aim of the criminal law is to
demonstrate fundamental values to citizens. It’s object is to instill “abiding by the rules” values
in ordinary citizens. Thus the raison d’etre of the criminal law is the ordinary citizen, not the
criminal. Criminal law is only one of the institutions by which values are demonstrated.
H.R.S. Ryan: suggests that one aim of the criminal law should be to give citizens confidence in
the legal order (this echoes Sweeny). This suggests that if we didn’t balance interests (e.g. allow
punishments to reflect the seriousness of the harm and the anger of the community), society
would not have confidence in the system and might not abide by it.
-
-
Note that there is no general agreement as to the function of the criminal law/the aims and
justifications of punishment. Society has not come to any general consensus. Philosophers
disagreed. Contemporary analysts disagree. (Talk about this disagreement. Who believes
what?) (May also talk about discrepancies in understanding issues – e.g. retribution). Will
we ever agree? NO. Part of the reason  no conclusive research as to which of the aims of
the system are actually being fulfilled AND so much variation across different kinds of
crimes.
Do we want to agree? Maybe not. Maybe the interests of society and the criminal are best
served if we seek to balance the various justifications and aims. Perhaps general societal
acceptance of the system will be greatest if each person sees his/her values included as part
of the balancing act. NO JUSTIFICATION IS APPROPRIATE ON ITS OWN. For
example, Lewis points out that if deterrence were the only justification, we could justify
punishing an innocent man so long as society thought he was guilty. In CAM case, court
speaks to importance of BALANCE – sees retribution as a restraint on the utilitarian
justifications. And it is evident that if we did not meet society’s demand to see punishment
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accord somewhat with the harm done, society might not accept the criminal law system at all.
(e.g. parliament has decided that impaired driving causing bodily harm deserves lesser
sentence than that causing death).
Also some disagreement as to who the law speaks to? Does it speak to all citizens (as
Morton suggests) or only to some?
Significance of what view you take – what institutions are engaged? Institutional actors
themselves may have incentive to promote the justification that engages their institution.
Hart: when use utilitarian justifications, need reason, experience and science; Lewis: this
necessarily creates role for experts and precludes ordinary citizen participation. When use
more traditional justification (retribution) – engage jurists and citizens (they are capable of
making the determination). Devlin (sort of suggests): when use rehab as justification –
engage social workers and psychologists. When use moral retribution as a justification –
engage courts and lawyers. When use isolation/deterrence as a justification – may engage
prison system. When use denunciation as a justification (a la Hart) – engage legislators…
Arguments for/against various justifications of punishment:
UTILITARIAN JUSTIFICATIONS:
Hart sees these as the modern conception of punishment  goal of the criminal law is to reduce
crime and protect society from the criminal…thus punishment is justified on the basis that it
deters/reforms a criminal, deters potential criminals, isolates criminals from society. According
to this utilitarian view, the older conception of punishment, under which the justification for
punishment is in the moral responsibility of the criminal, is irrational. He believes that in this
way, the criminal law has tended toward the elimination of responsibility.
C.S. Lewis refers to these utilitarian justifications as the “humanitarian theory of punishment”
which he believes is only disguised as being humane. In fact, b/c it has no place for the moral
culpability of the wrongdoer, it is unjust and cruel: “mercy detached from justice grows
unmerciful”. [see below for his specific criticisms]
Michael and Wexler:
Deterrence
Def’n (Sweeny)  General Deterrence: legal sanction imposed on actual offenders will
discourage potential offenders. Specific Deterrence: legal sanction imposed on an offender will
discourage that individual from re-offending.
Pros: supports the notion that the goal of the criminal law is the protection of society
(Sweeney)
Cons:
- Empirical Research: Little empirical research to support deterrence claims (mostly based on
common sense). Success of deterrence varies widely depending on the crime (murder vs. tax
evasion); this holds true for specific deterrence also (rates of recidivism vary from crime to
crime) No evidence that more severe sanctions have a greater deterrent effect (esp for crimes
of passion). (cite editors of S&D)
- Lewis: Exemplary punishments (using criminal as an example or a means to someone else’s
end) are wicked; deterrence justification alone could support punishing an innocent man (so
long as society thinks him guilty).
- There are some acts that just cannot be deterred – negligence is one of them; crimes of
passion are another
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Lack of intention = difficult if not impossible to deter.
Rehabilitation
Def’n: idea that we can cure the offender and thus permanently ensure that he does not reoffend. Sweeny case: rehabilitation is not accomplished by custodial sentences.
For: Devlin  social workers, medical people like this argument.
Against:
- Research: little evidence as to the effectiveness of various punishments. Grave
methodological problems associated with conducting this research. Also,
experts/psychiatrists have little ability to predict dangerousness…and yet such
predictions/determinations are necessary if offenders are to be released once they have been
fully “treated” or “cured”.
- Lewis:
- “Cures” sounds more just and merciful than “punishments” but (1) “cures” are just as
compulsory and (2) a “cure” includes most of the elements for which punishment is feared
(loss of liberty, normality, property, etc.).
- Problem of fixing the right sentence requires reliance on expert opinion; no longer a role for
the ordinary man; thus considerations of justice and rights may not be employed.
- If crime is a disease, how can it be pardoned?
Vengeance
Def’n: Reprisal for harm that is motivated by emotion and anger
C.A.M.: has no role to play in a civilized system of sentencing.
J.F. Stephen: vengeance is a valid aim of punishment. Hatred and vengeance are deeply rooted
in human nature; and criminal punishment is a necessary and desirable means by which this
hatred can be expressed. Punishments should reflect the degree of hatred towards the criminal.
Expression of hatred is the primary aim of criminal justice; direct prevention of crime is the
secondary aim.
Sweeney case – Judge Wood confuses retribution and vengeance.
**THIS IS A VALID JUSTIFICATION – see s. 80 of the criminal law – long sentence for
negligent conduct. Doesn’t serve a highly deterrent function or retributive function….so maybe
it is vengeance. Maybe parl wanted society’s anger to be able to be expressed (when someone
died as result of negligent use of explosives).
Denunciation
Def’n (C.A.M. Case): symbolic, collective statement that offender has encroached on societal
values. A statement that these types of conduct are not acceptable in this society b/c they offend
shared values.
C.A.M. case says that denunciation is a justification for punishment
Hart emphasizes that denunciation is the aim not of punishment but of the criminal law (i.e.
legislation) more generally.
Morton: criminal law is a contemporary morality play. The purpose of the criminal trial is to
demonstrate society’s values to its citizens (instill in them “rule-abiding” values).
NON-UTILITARIAN JUSTIFICATION:
Retribution/Just Deserts(?):
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Def’n (CAM case): determination of a punishment which reflects the moral culpability of an
offender. Takes account of intentional risk-taking of offender, consequential harm caused,
normative character of conduct.
Example:
Pros:
- Balances utilitarian justifications; may act as a restraint on them and thus result in more just
sanctions (i.e. where utilitarian justifications alone might lead to harsh/severe/unfair
sanctions) (Sweeny case)
- Lewis: leads to justice.
Who supports which justifications? May depend on the extent to which it engages certain
institutional actors. If you are a social worker, you would likely support a rehabilitation
function.
Ultimately, in order for any theory of punishment or system of sentencing to be successful, it
must be acceptable to the public (CAM case and Ryan make this point). This suggests a need to
balance all the competing considerations and justifications.
ALSO…ask, are there institutions that would better serve these goals wrt this
act/conduct/criminal?
Cetkovic case:
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PART II: SOURCES OF THE CRIMINAL LAW: CODIFICATION VS.
COMMON LAW CRIMES
CASE: R. V. Sedley
R. v. Sedley (1663), page 1
Sedley was indicted at common law for several misdemeanors against the King’s peace. Crime against the king’s
peace or a misdemeanor.
Threw piss down off a balcony. Very similar to Mochan.
CASE: Commonwealth v. Mochan
Commonwealth v. Mochan (1955)
Facts:
- Dft, over 1 month period, on numerous occasions, telephoned a woman. His language on calls was obscene,
lude and filthy.
- No statute in Penn. that punished such conduct. No case that had been decided in the state that made such
conduct criminal. [Note that while Canada has a federal criminal law, crim law in USA is regulated by the
individual states]
Judgement:
- Not impt that there is no precedent which decides this Q.
- Test is not whether there is precedent in the books but rather whether offence can be punished under common
law. Any act which tends to injure the public, to such an extent to require state to interfere and punish
wrongdoer, as in the case of acts which injure public morality or obstruct governance.
- Whatever openly outrages decency and injures public morals is a crime.
Commentary:
- Note…there is a control here  must be something that society agrees would outrage decency. Can’t just
punish any old conduct. (Control is on judge, police and prosecutor).
- Concern that a judge might have too much power to decide what public morals are.
- Concern  uncertainty wrt what actions are allowed or not allowed. (Rights of the offender/individual) – at the
time when the guy made the call, he didn’t know it would be a crime. But what’s the philosophy behind
protecting this kind of guy? The idea that we want to protect rights that he had before he became a lude caller.
- This decision puts the society over the individual rights. Protects society at the expense of an individual.
- Argument for “flexible” criminal law (giving judge’s power)  impossible to make an exhaustive list of all
behaviours that might engage criminal liability  Willis article: he wants flexibility; no constraint of code and
statutes
- [an aside  statutes are not retroactive; case law is retroactive (but in many cases…only when court says it was
retroactive)  once crime is declared, it was always a crime]
CASE: Frey v. Fedoruk
Frey v. Fedoruk, [1950] S.C.C. page 3
Facts:
- Frey was seen on Fedoruk’s property peeping into a window of the house. Fedoruk chased him with a butcher’s
knife, caught him and detained him. A police officer arrived and arrested him w/o warrant.
- Frey sued for malicious prosecution and false imprisonment. The trial judge and court of Appeal dismissed the
case, saying that a common law crime was justification for arrest w/o warrant.
Issue:
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Is the commission of a common-law crime a justification for arrest/imprisonment without warrant? Is the act
committed by Frey a crime at common law?
Held:
No.
Ratio:
- Criminal offences are found only in the Criminal Code and established Common law. No person can be
convicted of a crime that is not found in one of these two places. Since being a “peeping tom” was not an
offence known to the law, there was no justification in law for Fedoruk and Stone to have imprisoned Frey.
- It cannot be held as a matter of law that conduct not otherwise criminal becomes criminal because a natural and
probable result thereof will be to provoke others to violent retributive action. This would result in great
uncertainty.
- Judicial officers do NOT have the power to declare anything to be an offence which is injurious to the public
although it may not have been previously regarded as such.
Commentary:
[J. Willis, 1950, page 5]
- Where do we now stand w/ peeping toms?  not prohibited by any section in the code and is not a criminal
offence at common law
- Where do we stand w/ common law offences?  fear that if crimes are confined to those established in statutes,
lose advantage of common law; its advantage of being capable of application to new combinations of
circumstances that recur. When Criminal Code was first introduced into H of C, common law was
preserved…in order to give the code “elasticity”.
- In this case, the Supreme Court rejected this notion of elasticity in favour of certainty in administration  no
one shall be punished for anything that is not expressly prohibited by law. S.C. chose to place the protection of
the individual from oppression above the protection of the state from disorder.
- Note: 1955 Revision of the Criminal Code abolished Common-law offences (s. 9) but preserved common law
defences. It also made it a crime to be a peeping tom.
- Q: Have Professor Willis’s fears been satisfied by legislative action?
[Sklar]:
- Rule from this case puts burden on legislature (to declare acts that are injurious to society criminal)
- S. 9 eliminates common law offences – goes beyond F v. F which held that crimes had to be written (in Code
OR in Common [case] law)
- Response to F v. F  S. 177 Criminal Code
RULE: Law must be written down before person can be convicted of a crime. (Not equivalent to S. 9 of Code
which eliminates ALL common law offences). Note that this is the PRINCIPLE OF LEGALITY – citizens should
know beforehand what is punishable.
S. 177 Criminal Code – Peeping Toms
Everyone who, without lawful excuse, the proof of which lies on him, loiters or prowls at night
on the property of another person near a dwelling house situated on that property is guilty of an
offence punishable on summary conviction.
The criminal law is the most severe infringement on individual liberty. It should be used
sparingly and as a last resort. This is why the statute is read so narrowly.
Comments:
- Crown must prove: loitering, at night, on property of another, near dwelling house on that
property
- Accused can: prove lawful excuse. (This is a statutory exception to burden on the crown as
envisioned by Woolmington)
- See how narrowly it is drafted  only dwelling houses, only at night.
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Why did Parliament draft it so narrowly?  to avoid frivolous charges, to prevent the most
frightening behaviour (night, near your house, etc.).
ALWAYS ASK: What is purpose of statute? What kind of conduct is it designed to cover?
Why is it as narrow or as wide as it is? (Goldstein – crim law is last resort. There are other
institutions out there)
How to read a CC statute:
-what are the elements
-what are the policy implications
-what other potential crimes can fall under a statute.
Procedural Classification of Offences, page 161-163
-
Criminal Code distinguishes between (1) indictable offences; (2) offences triable only by way of summary
conviction proceedings; (3) offences triable on indictment OR by way of summary conviction proceedings.
This designation affects trial and appeal procedures but also many pre-trial rights and responsibilities.
The section which creates the offence and specifies its punishment also states the manner in which it is to be
tried.
Offences triable only on indictment
- Indictable offences divided into three categories
- [1] Most serious offences – given into exclusive jurisdiction of the superior Court of criminal jurisdiction.
[Exclusive jurisdiction = no other court can try these offences]
- [2] Least serious offences – absolutely w/in the jurisdiction of a Magistrate [Absolute = entitled to try these
offences; not dependent on accused’s electing to be so tried].
- [3] Remaining Offences – accused is allowed to choose his mode of trial – elect provincial Court judge with
no jury, a Judge w/o a jury, or a Court composed of a judge and jury. If he doesn’t choose, gets judge and jury.
Recently enacted provisions allow the accused to change his mind and re-elect his mode of trial.
Summary Conviction Offences
- Trial before a provincial judge w/o a jury and w/o a preliminary inquiry
- Maximum penalty for a summary conviction offence (unless otherwise provided) = $2000 fine or six months’
imprisonment or both.
Hybrid Offences
- Instances in which legislation makes the offence punishable on indictment or on summary conviction at the
option of the Crown.
Comments by Sklar:
- Get some feeling as to different types of offences – 3 types
- Indictable offences – analogous to the common law “felony” (used in USA), summary conviction offences –
analogous to “misdemeanor” - general maximum imprisonment is 6 months but for some crimes maximum is 2
years (are these hybrids?)
- Procedures are different for indictable and summary conviction offences
- Hybrid: indictable offence with max 4 years imprisonment OR punishable on summary conviction - this gives
power to the prosecutor b/c he/she can choose – can use this in a plea bargaining situation. Prosecutor will
choose depending on the facts of the case (i.e. severity of the crime committed).
Law Reform Commission of Canada, “The Jury in Criminal Trials”, page 162
-
Questions of law decided by judge. Questions of fact decided by jury. So who applies law to facts?
Judge instructs jury on the law  jury then applies the law.
THUS, jury instructions must satisfy two requirements: (1) must be accurate; (2) must be easy to understand.
These two requirements may conflict  to make instructions accurate, may need to make them long repetitious
and disjointed; this may sacrifice comprehensibility.
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Often alleged that one of the most serious deficiencies of trial by jury is the jury’s inability to follow and
comprehend the instructions given by the judge. Confusion about the law = jurors cannot perform their
function.
Sklar:
- Judge vs. Jury (function) – in Woolmington, judge screwed up when instructing the jury (misstated the law); Qs
of law for judge, Qs of fact for jury. Judge must instruct jury wrt what the law is. Jury must apply the law to
the facts.
- Example of instruction that a judge gives: Woolmington v. D.P.P (man kills estranged wife and says it was an
accident): 3 verdicts possible  guilty of murder, guilty of manslaughter, aquittal
-
A - Statutory Interpretation; Rule of “Strict Construction” of Penal Provisions
ALWAYS ASK: What is the purpose of the statute? What kind of conduct is it designed to
cover.
Sklar: There are policies behind all criminal statutes. Language must be interpreted in light of
these policies/reasons for enactment  S. 177, Pare, Woolmington all show examples of this.
Using the Rule of Strict Construction
Provision with possibility of multiple interpretations based on literal reading of the text.  may
use dictionary to illuminate def’n.

Need to determine if there is one “right” one  Look to context/parliament’s intent.

Determining Parliament’s intent/purpose: (1) Context - look at surrounding provisions and
section heading (is there a uniting feature that can be said to be underlying policy
consideration?); (2) Common sense and rationality (Parliament’s intent would not be reflected
by an interpretation that is contrary to common sense – Paré); (3) French text – look at French
version of text – R v. Mac. IS THERE ONE INTERPRETATION THAT COINCIDES WITH
PARLIAMENT’S INTENT?

If more than one possible interpretation  GENUINE ambiguity  use rule of strict
construction  choose interpretation that favours accused.
SH: When doing statutory interpretation, also look to authorities (i.e. precedent) AND to policy
considerations.
CASE: R v. Goulis
R. v. Goulis, [1981] Ont. C.A., page 52
Doctrine of Strict Construction
- Well known rule of statutory construction  if a penal provision is reasonably capable of two interpretations,
that interpretation which is the more favourable to the accused must be adopted.
- This does NOT mean that a word which has two accepted meanings must always be given the more restrictive
meaning.
- To determine the correct meaning, Court must first endeavour to determine the sense in which Parliament used
the word from the context in which it appears.
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Only in the case of an ambiguity which still exists after the full context is considered should the above rule of
construction be used. This is another way of stating the principle that the conduct alleged against the accused
must be clearly brought within the proscription.
Sklar’s Comments (January 16, 2003):
- We see the principle laid out here applied in Pare
- Look to see if provision is genuinely ambiguous (2 equal meanings)  interpret in favour of accused (doctrine
of strict construction).
- Deciding if there is genuine ambiguity – usually must look to intention of parliament. If still ambiguous – use
strict construction. Paré shows that the rule of strict construction doesn’t always apply.
Rule
If a penal provision is reasonably capable of two interpretations, must adopt the interp which is more favourable to
the accused. This rule should only be used when provision is still ambiguous after the full context is considered
(parliament’s intent, etc.).
CASE: R. v. Paré
R. v. Paré, [1987] S.C.C., page 53
Facts:
- Accused indecently assaulted a 7-year old boy. The accused said that if the kid told his mom, he would kill
him. He held the boy down for 2 minutes and when the kid threatened to tell his mother, the accused killed him
through strangulation and hitting him with an oil filter.
- The accused was charged with and convicted of first-degree murder on the basis of what is now 231(5) of the
Code. He is appealing the verdict on the basis that the death was not caused “while committing” an in indecent
assault.
Issue:
Should the accused have been convicted of 1st degree murder given that it requires that the death is caused “while
committing” the assault?
Held:
Yes. Appeal allowed, conviction restored.
Ratio:
- Respondent argues that “while committing” must be narrowly construed so as to elevate murder to first degree
only when the death and underlying offence occur simultaneously. (“simultaneous approach”…coincides w/
literal reading). [There are thus two possible interpretations of this provision  simultaneous and continuous]
- The seriousness of imposing criminal penalties of any sort demands that the doctrine of strict construction be
used and thus that reasonable doubts be resolved in favour of the accused.
- In order to interpret the statute in this way, court must look at the text AND at the scheme and purpose of the
legislation (legislator’s intent?).
- Common sense and rationality: Here, the narrow construction forwarded by the respondent cannot be
reasonably attributed to parliament because (1) it would be difficult to define the beginning and end of an
indecent assault and (2) the simultaneous approach leads to distinctions that are arbitrary and irrational. (3)
Isn’t the crime just as serious if committed simultaneous with assault as if committed after it? [Sklar: maybe
more serious]. An interpretation that runs contrary to common sense should not be adopted if a reasonable
alternative is available.
- Parliament’s underlying policy: The policy considerations underlying the provision (i.e. imposition of
exceptional penalties [Murder 1] on offences involving the unlawful domination of people) suggest that the
“single transaction analysis” approach be used. In the case at bar, the murder was temporally and causally
connected to the underlying offence. It formed part of one continuous sequence of events; part of the same
transaction.
Commentary (Sklar):
- Rationale for using doctrine of strict construction  seriousness of imposing criminal penalties; liberty is at
stake. History: draconian penal provisions.
- Law Reform Commission said that there was no organizing principle uniting all these crimes elevate murder to
Murder 1. Court says there IS an organizing principle  unlawful domination of one person by another. This
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unlawful domination singles out these cases for the more harsh punishment associated with Murder 1 (25 years
w/o a possibility of parole).
- Paré is a lesson wrt how courts approach interpretation of language in the criminal code (see it in Hutt, Mac
also). We don’t have the same rules of interpretation in the civil and criminal law…WHY? b/c liberty is at
stake in the criminal law.
Rule:
Single Transaction Rule: “While committing” means that the murder and assault was part of one continuous
sequence of events, part of the same transaction.
Strict Construction: Only interpret in favour of the accused if there is genuine ambiguity. (See rule from R. v.
Goulis being applied here…where there is no GENUINE ambiguity).
Applying Rule from Paré
-
-
-
-
Two considerations to be made  (1) Is it a single, continuous transaction?; (2) Is there a
situation of unlawful domination of one person by another?
At what point does the transaction and the domination end? At the point at which they end
 murder is no longer done “while committing” the assault and the accused would only be
guilty of first degree murder.
Example: Paré case but after sexual assault, kid goes to pee. Yells for his Mommy and guy
kills him. Sklar: No longer a single transaction. There is a break in the sequence of events.
BUT…consider policy underling the single transaction approach  unlawful domination.
While victim is still in sight of accused, he is under his domination. Thus, this IS a single
transaction and the murder occurred while the accused was committing the assault.
Example: After sexual assault, they go to MacDonald’s. Kid threatens to tell Mommy so
accused takes him into parking lot and kills him. No longer a single transaction b/c break in
the sequence of events (definite break…drive to MacDonalds…time for accused to think).
Domination  no longer under his unlawful domination (why?…boy has chance to run, not
being held down, not in constant sight of the accused, accused is buying him food). This
might not be murder 1 under 231(5) but it may be murder 1 under 231(2) b/c here the murder
might be planned and deliberate.
Wrt point at which domination ends  does age, sex, mental state of victim matter?
Problem with this  where do you draw the line (6, 7, 10 years old??).
R. v Russell 2001, 157 SCC.
An elaboration of Pare rule.
Facts: Russell sexually assault X. After sexually assaulting her and tying her up and gagging
her, he retied her. Russell then went downstairs and killed Whitaker.
Issue: Interpretation problem: Does ss. 231/5 require that the crimes be committed to the same
victim for the single transaction rule to be applied.
NB* In this case, the victim of the forcible confinement is not the same as the victim of the
person that is killed.
“While committing problem”: Not an issue, X is still tied up.
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Ratio:
Parliament’s intent SH analytical MAP:
context
P 15 of judgement: When parliament wanted to add 231.6. Criminal harassment.
Look at other provisions: in the context of other provisions:
The using of explosives… ss. 81
If Parliament had intended to restrict the scope of s. 231(5), it could have done so explicitly, as it
did in s. 231(6). That Parliament did not incorporate such a restriction suggests that it intended
"while committing or attempting to commit" to apply even where the victim of the murder and
the victim of the enumerated offence are not the same.
Common Sense:
Thus an organizing principle for s. 214(5) can be found. This principle is that where a murder is
committed by someone already abusing his power by illegally dominating another, the murder
should be treated as an exceptionally serious crime.
What policy considerations also exist?
What sort of message does this send to the population. IE purpose of the criminal law. Here
parliament wants to punish exeptionaly serious/blameworthy crimes.
Distinction: OBITER: In a number of precedents, citing Pare ect….HOWEVER, in those case
this issue was not in front of the court. The ratio was specific to the facts of those particular
cases.
RULE: The expression "while committing or attempting to commit" requires the killing to be
closely connected, temporally and causally, with an enumerated offence. As long as that
connection exists, it is immaterial that the victim of the killing and the victim of the enumerated
offence are not the same.
Holding: Doesn’t have to be the same victim.
The preliminary inquiry judge did not err in finding that s. 231(5) may apply even where the victim of the
murder and the victim of the enumerated offence are not the same. If the ordinary meaning of the words
is consistent with the context in which the words are used and with the object of the Act, then that is the
interpretation that should govern. The language of s. 231(5) is clear. The provision does not state that the
victim of the murder and the victim of the enumerated offence must be one and the same. It requires only
that the accused have killed while committing or attempting to commit one of the enumerated offences. If
Parliament had intended to restrict the scope of s. 231(5), it could have done so explicitly. Judgments
from this Court dealing with s. 231(5) never intended to foreclose its application to multiple-victim
scenarios. None of those previous cases involved multiple-victim scenarios, and the issue was simply not
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addressed by the Court. Section 231(5) reflects Parliament's determination that murders committed in
connection with crimes of domination are particularly blameworthy and deserving of more severe
punishment. The expression "while committing or attempting to commit" requires the killing to be closely
connected, temporally and causally, with an enumerated offence. As long as that connection exists, it is
immaterial that the victim of the killing and the victim of the enumerated offence are not the same.
In this case, there was sufficient evidence to warrant committing the accused to trial for first degree
murder. The existence of a temporal link was conceded, and the preliminary inquiry judge found that the
Crown had adduced sufficient evidence to allow a jury to find the requisite causal connection. A
preliminary inquiry judge's determination of sufficiency is entitled to the greatest deference; only if there is
no evidence on an element of the offence, or on an essential condition of s. 231(5), can a reviewing court
vacate the committal. While the jury would be entitled to find that the accused's intention in confronting
the tenant was entirely independent of the forcible confinement of S, it would also be entitled to conclude
that the accused murdered the tenant to facilitate his forcible confinement of S, or that he forcibly
confined S to facilitate his murder of the tenant.
We need to link the killing of Whitaker to the domination of X, s.231 applies. If the reason is
independent, “because he is racist” then 231.5 does not apply.
CASE: R. v. Muchikekwanape
R. v Muchikekwanape (2002) 166 C.C.C. (Manitoba C.A.)
Facts:
- Woman is killed; man is seen walking w/ her twds a bridge; she is heard screaming. Police find her body in the
river.
- Evidence of sexual intercourse. Laceration in the genital area. Expert evidence shows that laceration occurred
at or after the point of death.
- Cannot be proved beyond RD that sexual assault took place before she died.
- Accused denied that he killed the woman. Alternative argument: if jury finds that beyond RD, the accused
killed her, there is reasonable doubt as to when the assault was committed (before or after death)…thus should
not be murder 1.
- Trial Judge instructed jury: If you are satisfied beyond RD that accused murdered deceased, he would be
guilty of 1st dgr murder if the murder occurred while committing the assault. While committing would be
satisfied if the sexual assault and killing were part of the same transaction, even if the heartbeat of the deceased
had in fact ceased by the time the sexual assault took place.
Issue:
Was the trial judge in error? Must jury find that deceased was alive when assault took place OR is it sufficient that
assault and murder are INTERTWINED in order for 1 st degree murder to be made out?
Holding/Ratio:
- Court finds instructions to be correct. What constitutes single transaction must be tailored carefully in each
case. Leg intended that where accused exploits power and commits murder in process, murder in 1st dgr is
established.
- So when assault and murder are so inextricably linked as to constitute a transaction, 231(5) is satisfied. To say
otherwise would be deciding the issue on the matter of minutes and seconds.
[Dissent]:
- Points to a different part of 231(5)  “while committing or attempting to commit”. If she is already dead, this
is no longer a commission of a sexual assault…cannot commit a sexual assault on a dead body.
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[Note: act says “attempting to commit” a sexual assault  what if he didn’t know that she was dead? If he
didn’t know that, he would be “attempting to commit” sexual assault. If he did know that she was dead, this is a
violation of 182 (b) – indecent violation of a dead body. This crime is not enough to elevate murder 2 to
murder 1].
Sklar:
If he knew she was dead  the dissent would be correct (he was committing necrophilia). If he thought she was
alive  he would be guilty of attempting a sexual assault (recall what attempt is  if you stab a dead body…can be
guilty of attempted murder). To have the mens rea for necrophilia  you must believe that the person is dead. If
you think the person is alive  could never be guilty of necrophilia. If you have the mens rea for a particular crime,
even if it was not possible to commit it, you will be guilty of attempting to commit that crime…b/c you are morally
blameworthy for that crime. The actus reus would be the attempt to commit it.
RULE:
Murder and a sexual assault (or attempted sexual assault) form a single transaction so long as they are inextricably
linked. It doesn’t matter if the victim is dead or alive when the murder is committed (unless the accused knows that
she is dead). This supports Parliament’s intention to impose exceptional punishment when murder occurs in the
process of exploitation of power/domination.
-
CASE: R v. Mac
R. v. Mac
Facts:
- Accused was charged with possession of tool for purpose of forgery pursuant to s. 369(b) of
the Criminal Code.
- The language of this section says that the tools must be “adapted for the purpose of forgery”.
- Trial judge convicted accused. C.A. overturned conviction by using strict construction rule.
That is, “adapted” can have two meanings – suitable for that purpose OR modified or altered
for that purpose. C.A. said word was ambiguous and thus interpreted it as “modified or
altered for that purpose” in favour of the accused.
Issue:
What is the meaning of “adapted” in s. 369(b) of the Criminal Law?
Held:
Adapted means “suitable for”. Appeal allowed. Conviction restored.
Ratio:
- French and English versions of the Code are equally authoritative. When words of one
version raise ambiguity, courts should first look to the other official language version.
- S. 369(b) and 342(1) [forging and falsifying credit cards] are related provisions and should
be read together. 342(1) uses “adapted” in the English version and “modifié” in the French
version. 369(b) uses “adapted” in the English and “adapté” in the French. Given that
“modifié” was used in 342(1) and “adapté” in 369(b), the correct interpretation of “adapted”
in 369(b) is “suitable for”.
- The meaning of 369(b) is thus not ambiguous and the rule of strict construction should not be
applied.
Rule:
If language is ambiguous, look at the translation to help clarify ambiguity. Sklar adds: The
reasoning used in this case requires that Parliament intended to use different words in the French
and English versions.
Sklar:
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This rule makes sense…but perhaps not in this case. Problem in this case is that it may not have
been Parliament’s intention to use different words in the French and English versions. This case
is being decided on the basis of actions taken by the translation office.
PART III: CORNERSTONE PRECEPTS: THE PRESUMPTION OF
INNOCENCE AND THE REQUIREMENT OF PROOF BEYOND A
REASONABLE DOUBT
Woolmington: Presumption of Innocence. Crown has burden of proof and must prove guilt
beyond reasonable doubt. Doubt can be raised by accused or by Crown.
Osolin:
Lichfus and Star: give meaning to “proof beyond reasonable doubt” (while Woolmington
establishes it as the standard of proof).
CASE: Woolmington v. D.P.P.
Woolmington v. D.P.P., [1935] H.L., page 76-82
This case articulates the cornerstone precepts of presumption of innocence and that the Crown must normally prove
to a standard of proof beyond a reasonable doubt. Note that these precepts were asserted by the H of L relatively
recently.
Facts:
- Woolmington shot and killed his estranged wife. He was convicted of willful murder and sentenced to death.
- He is appealing the conviction on the basis that he shot her accidentally. He claims that he bought the gun and
took it to where she was living so that he could scare her into thinking he was going to commit suicide. He
claims that while drawing the gun, it went off accidentally and killed her.
- After the shooting, he ran off on a bicycle. The aunt saw him run off. The aunt heard him say: “Are you going
to come back home?” [note…this is evidence that shows intent]
- At trial, the judge instructed the jury that “once it is shown to a jury that somebody has died through the act of
another, that is presumed to be murder, unless the person who has been guilty of the act…can satisfy a jury that
what happened was something less [accidental, manslaughter, justifiable, etc.].” That is, once the killing is
established, the burden of proof is on the prisoner to prove any circumstances of accident, necessity or infirmity.
Issue:
Did the judge mis-instruct the jury wrt the presumption of innocence and burden of proof? (i.e by instructing the
jury that it is incumbent on the accused to prove his innocence?). Did the man intend to kill his wife or was it
accidental?
Held:
Yes – jury was misinstructed.
Ratio:
- In some exceptional cases only, the onus is placed upon the accused to establish a defence (insanity, statutory
exceptions).
- The accused is entitled to the benefit of any doubt brought out in evidence.
- The prosecution must prove the guilt of the prisoner and there is no burden laid on the prisoner to prove his
innocence. It is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his
innocence.
- In order for accused to be convicted, the prosecution must prove the case beyond reasonable doubt.
- Where intent is an ingredient of a crime, there is no onus on the dft to prove that the act alleged was accidental.
If, at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given by either
the prosecution or the prisoner, as to whether the prisoner killed the deceased w/ a malicious intention, the
prosecution has not made out the case and the prisoner is entitled to an acquittal.
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Prosecution must show malice – accused can rebut but doesn’t have to prove no malice in order to be acquitted.
[So…2 ways to be acquitted  jury accepts accused’s explanation as to why death was unintentional/accidental
OR jury is left with reasonable doubt whether (even if his explanation is not accepted), the act was intentional
or provoked]
Commentary: (Sklar)
How do you prove intent to kill? 
- By a person’s conduct. You prove what one intends by what he does. Look at the circumstances of the event.
[In this case…sawed-off shot gun supports accident BUT riding off and staring down aunt supports intent]
- By a confession (as in Paré)
- By showing motive (e.g. if no evidence of animosity, evidence of accident is stronger) [In this case, use of word
jealousy in a statement shows motive]
-
Where does the judge get this crazy principle? (i.e. that prisoner has burden of proving accident)  one of the
most renowned criminal law writers (Foster) stated it…and then other writers and judges followed it.
- Most Criminal Code provisions that shift burden to accused are the subject of a charter challenge (violation of
presumption of innocence guaranteed by s. 11d)
RULE:
All the elements of proof must be established by the Crown. No shift of burden of proof (except for defence of
insanity and statutory exceptions). It is not for the accused to establish his innocence but for the prosecution to
establish his guilt. In order for accused to be convicted, Crown must prove the case beyond reasonable doubt. The
prosecution OR the accused may be the source of reasonable doubt.
-
Presumed Innocence


Accused raises doubt as to guilt and jury accepts it.
Accused raises doubt as to guilt but
not accepted
OR
AND
Crown unable to prove BRD that he is guilty
Crown proves guilt BRD.


ACQUITTAL
CONVICTION
Golden Thread Quote
Famous quote from Woolmington: Throughout the web of the English Criminal Law one golden
thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt
subject to the defence of insanity and subject also to any statutory exceptions. If, at the end of
and on the whole of the case, there is a reasonable doubt, created by the evidence given by either
the prosecution or the prisoner as to whether the prisoner killed the deceased with malicious
intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
CASE: R v. Osolin
Prosecution has onus of negativing all possible defences BUT a defence is not in the case unless there is evidence
capable of supporting it. Whether or not such evidence exists is to be decided by the JUDGE
R. v. Osolin, [1993] S.C.C. page 82
Facts:
- Accused charged with sexual assault. At trial, he testified that the complainant was an eager participant in all
the acts leading up to and including sexual intercourse.
- The judge did not charge the jury wrt the defence of honest but mistaken belief in consent b/c he ruled that there
was no “air of reality” to the defence.
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- Accused was found guilty.
Issue:
Did judge mischarge the jury wrt the defence of honest but mistaken belief in consent? [What is the meaning of the
words “sufficient evidence” in s. 265(4)?]
Held:
NO.
Ratio:
- A basic rule applicable to all defences [s. 265(4)]: A trial judge must instruct the jury only upon those defences
for which there is a real factual basis. A defence should not be put to the jury if a reasonable jury properly
instructed would have been unable to acquit on the basis of the evidence tendered in support of that defence. It
is for the trial judge to decide whether the evidence is sufficient to warrant putting a defence to a jury as this is a
question of law alone.
- If judge decides that evidence is sufficient, he will put the defence to the jury; the jury will then weigh it and
decide whether it raises a reasonable doubt.
-
This is an example of the division of tasks between judge and jury: it is the judge who
determines if there is sufficient evidence adduced to give rise to the defence.
Commentary:
- This case does NOT contradict general principle that burden of proof is on the prosecution.
Osolin does NOT put putting a burden of proof on the accused. It is putting an
EVIDENTIARY BURDEN on the accused to raise the issues.
- It is up to the accused to make a defence a “live issue” in the case. Accused provides some
evidence  judge decides if there is “air of reality” to it (if there is possibility that reasonable
jury could acquit based on evidence)  If yes, charges jury of this defence  prosecution
then has job of negativing it  jury will weigh it and determine if it raises reasonable doubt.
- Distinction btwn Qs of law and Qs of fact is artificial. Wrt sufficiency of evidence, appears
to be a Q of fact but is NOT…is a Q of law.
Rule:
A trial judge must instruct the jury only upon those defences for which there is a real factual
basis. Trial judge must decide if there is sufficient evidence that a reasonable jury could acquit
on basis of it. Sufficiency of evidence to support a defence is a question of law, for the judge to
answer.
Supreme Court may decide that a defence is such that burden should be shifted:
- Example  Davio case  new defence created: person is SO drunk that he doesn’t know
what he is doing.
- In the Davio case, trial judge used this defence  Trial judge didn’t believe Davio’s claim
that he “didn’t know what he was doing” but acquitted him b/c there was reasonable doubt
that he knew what he was doing.
- S.C.C. said that for future cases  burden of proof for this defence should be shifted to the
accused  accused must prove beyond a balance of probabilities that he didn’t know what he
was doing.
- Had burden been shifted to Davio in this case, would have been convicted.
- **Accused never has to prove anything beyond reasonable doubt. Only has to prove beyond
the balance of probabilities. (SH: in all cases where the burden lies on the accused…s.
177?)
C.K. Allen, Legal Duties and Other Essays in Jurisprudence (1931)
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‘It is better that ten guilty persons should be acquitted than that one innocent person should be convicted.’
Allen challenges this statement: “It all depends on what the guilty persons have been doing and the general
social conditions in which they have been doing it”.
BUT if ratio is extended indefinitely – system of justice breaks down and society is in chaos. We can permit a
“humane level of doubt” to prevail over security while remembering that the acquittal of ten guilty persons is
ten times as great a failure of justice as the conviction of one innocent person.
Allen compares the burden of proof in the civil and criminal trial: Balance of probabilities (civil) vs. proof
beyond reasonable doubt (criminal). He argues that although “reasonable doubt” is not uttered in civil cases,
the required degree of certainty is the same.
Principle of ‘reasonable doubt’  little more than a counsel of prudence; the degree of certainty that one would
act upon in one’s own grave and important concerns. Such a degree of certainty should exist wrt all legal
matters.
Allen’s point: Why should liberty be protected more than property?
He suggests that: it’s not as if the jury has to be more careful in a criminal case (than a civil case), it just has to
be more persuaded. Liberty does require that there be a stronger overall case on the part of the prosecution
before we send a person to jail.
Law Reform Commission of Canada, Burdens of Proof and Presumptions (1973)
Discusses two central concepts: high standard of proof, presumption of innocence (judge must direct jury as to
both). Guilt beyond a reasonable doubt is inextricably linked to presumption of innocence.
Justification for high standard of proof in criminal cases: purposes for which criminal sanction is used,
seriousness of deprivation of liberty, stigmatization of accused that results from conviction; other social, econ
consequences that a criminal conviction entails.
This high standard of proof is expressed by “proof beyond a reasonable doubt”
- Civil cases – “preponderance of evidence” (focus on amt of evidence that prosecution must produce);
Criminal cases – focus on degree of belief of evidence brought by prosecution
- Crown satisfies its burden of proof if it convinces the jury beyond a reasonable doubt of the existence of all
the facts the Crown must prove
- “Proof beyond reasonable doubt” is a good formulation b/c can be understood by laymen; its meaning is
perfectly intelligible (note this is countered in the Lichfus case)
Judge must also instruct jury that accused is innocent until proven guilty
“Presume” vs. “Assume”: preferable to use the latter – suggests that as a matter of social policy, a person’s
innocence is “assumed” from the outset of the case. “Presume” – a fact that is inferred from certain basic facts
proved at trial.
Justification for presumption of innocence: so that jury will ignore all suspicions arising from the arrest,
indictment and arraignment and reach a conclusion solely from the legal evidence adduced.
Case: R. v. Lifchus
R v. Lifchus, [1997] S.C.C., page 87-90
Facts:
- Accused charged and convicted of fraud.
- Accused appealed judgement on basis that trial judge had mis-insturcted the jury on the meaning of the
expression “proof beyond reasonable doubt”. Judge had instructed jury that the words in the expression were to
be understood in their ordinary, natural, everyday sense.
Issue:
Did the judge mis-instruct the jury wrt the meaning of “proof beyond reasonable doubt”?
Held:
C.A.: Yes, Appeal allowed. New trial ordered.
S.C.C.: Yes, denied Crown’s appeal.
Ratio:
- The expression “proof beyond reasonable doubt” is composed of words used in everyday speech, but that have a
specific and special meaning when used in criminal proceedings.
- B/c a person’s liberty is at stake, it is crucial that jury be correctly instructed as to its meaning.
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-
A good definition should explain that: (1) standard of proof beyond a reasonable doubt is inextricably linked to
presumption of innocence principle; (2) burden of proof always rests on the prosecution, never shifts to
accused; (3) reasonable doubt is not doubt based on sympathy or prejudice but reason and common sense; (4) it
is logically connected to the evidence or absence of evidence; (5) it does not involve proof to an absolute
certainty; (6) more is required than proof that the accused is probably guilty.
- A good def’n should not include: describing the term as having an ordinary meaning (i.e. it has a special
meaning in the criminal context) – contrast to article above; telling jury to apply same standard as they would
apply in their own impt matters (contrast to Allen article), etc. (page 88)
- If the charge set out by the trial judge gives rise to the reasonable likelihood that the jury misapprehended the
standard of proof, then as a general rule the verdict will have to be set aside and a new trial directed.
Commentary:
Elaboration on model charge elements:
Doubt based on reason: must have reason for the doubt (e.g. you think that prosecution’s
evidence was not convincing)
- Proof beyond reasonable doubt does not have to be proof to an absolute certainty: Certainty
runs from 0% - 100%. Beyond reasonable doubt = about 95% (sure that he is guilty…so
that <95%  you have reasonable doubt). Balance of probabilities = about 50.1% (sure
that he is responsible).
RULE:
Establishes model charge for instructing jury as to meaning of “proof beyond reasonable doubt”.
Includes 6 important instructions and some instructions that should NOT be included. Most
importantly, must be doubt based on reason, must not be certainty of guilt. Should NOT
describe term as having its ordinary meaning.
If judge’s charge gives rise to reasonable likelihood that jury misapprehended the standard of
proof, new trial must be ordered.
-
R v Starr (2001)
Issues of inadequacy of the decription of reasonable doubt charge by judge to jury in this case.
-Judge has to tell the jury that absolute certainity and probability, reasonable doubt is closer to
absolute certainty.
Ratio:
Maj.The reasonable doubt instruction given in this case falls prey to many of the same
difficulties outlined in Lifchus, and likely misled the jury as to the content of the criminal
standard of proof. The key difficulty with this instruction is that it was not made clear to
the jury that the Crown was required to do more than prove the accused's guilt on a
balance of probabilities. The trial judge told the jury that they could convict on the basis
of something less than absolute certainty of guilt, but did not explain, in essence, how
much less. In addition, rather than telling the jury that the words "reasonable doubt"
have a specific meaning in the legal context, the trial judge expressly instructed the jury
that the words have no "special connotation" and "no magic meaning that is peculiar to
the law". By asserting that absolute certainty was not required, and then linking the
standard of proof to the "ordinary everyday" meaning of the words "reasonable doubt",
the trial judge could easily have been understood by the jury as asserting a probability
standard as the applicable standard of proof. The trial judge did refer to the Crown's
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onus and to the presumption of innocence, and he stated that the accused should
receive the benefit of any reasonable doubt. The error in the charge is that the jury was
not told how a reasonable doubt is to be defined. As was emphasized repeatedly in
Lifchus and again in Bisson, a jury must be instructed that the standard of proof in a
criminal trial is higher than the probability standard used in making everyday decisions
and in civil trials. In this case the jury was not told that something more than probability
was required in order to convict, and nearly all of the instructions they were given
weakened the content of the reasonable doubt standard in such a manner as to suggest
that probability was indeed the requisite standard of proof. The reasonable likelihood
that the jury applied the wrong standard of proof raises a realistic possibility that the
accused's convictions constitute a miscarriage of justice.
Dissent:
While trial judges are now expected to follow the Lifchus model charge, failure to do so
in cases tried before Lifchus does not constitute reversible error if the charge conveys to
the jury the special meaning attached to reasonable doubt. Despite not having the
benefit of this Court's decision in Lifchus, the trial judge included most of the suggested
elements in his charge to the jury. The charge instructed the jurors that a reasonable
doubt must not be an imaginary or frivolous doubt; that it is a doubt based upon reason
and common sense; that it must be based on the evidence that the jurors heard in the
courtroom; and that the Crown is not required to prove its case to absolute certainty.
The trial judge's charge was not flawless, in that the trial judge erroneously stated that
the words "reasonable doubt" are used in their everyday, ordinary sense and have no
special legal meaning. The verdict ought not to be disturbed, however, because the
charge, when read as a whole, makes it clear that the jury could not have been under
any misapprehension as to the correct burden and standard of proof to apply. The
charge communicated clearly to the jury that they could not find the accused guilty on a
balance of probabilities. Moreover, the charge made it clear to them that the standard of
proof beyond a reasonable doubt is inextricably linked to the presumption of innocence
and that this burden never shifts to the accused. In light of the trial judge's compliance
with the bulk of the principles enunciated in Lifchus, the charge was not automatically
vitiated by the failure to include a specific item mentioned in Lifchus or by the inclusion
of an improper item.
Straying from Lifchus. I
Ratio:
n addition, rather than telling the jury that the words "reasonable doubt" have a specific meaning
in the legal context, the trial judge expressly instructed the jury that the words have no "special
connotation" and "no magic meaning that is peculiar to the law". By asserting that absolute
certainty was not required, and then linking the standard of proof to the "ordinary everyday"
meaning of the words "reasonable doubt", the trial judge could easily have been understood by
the jury as asserting a probability standard as the applicable standard of proof. The trial judge did
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refer to the Crown's onus and to the presumption of innocence, and he stated that the accused
should receive the benefit of any reasonable doubt.
PART IV: THE ACTUS REUS (PHYSICAL) REQUIREMENT FOR
CRIMINAL LIABILITY
A - The Unlawful Act – Interpretation Principles
Traditional analysis of a crime at common law  divided into actus reus (the guilty act )and mens rea (the
guilty mind).
- These expressions are taken from the maxim: “there is no guilty act w/o a guilty mind”
- These expressions are the customary language of the Courts but author C. Howard says that at present day
(1977) they are responsible for much confusion of thought…and that there are good reasons to abandon them in
favour of other terminology.
WHY REQUIRE AN ACT?
- Reason for requirement of actus reus  impossibility of proving a purely mental state. This argument is false
(we can prove mental state says Sklar and Williams…by looking at conduct)
- Williams  2 reasons for the requirement of an act: (1) the difficulty of distinguishing btwn daydream and
intention in the absence of behaviour tending toward the act; (2) undesirability of spreading the crim law so
wide as to cover a mental state that the accused might be too irresolute even to begin to translate into action.
- There MUST be some act by which the acccused’s guilty mind is put into action (fully or partly – attempt).
- J.F. Stephen (1883): if we did not have an act requirement, all mankind would be criminals (we all have bad
thoughts). Crim law must be confined w/in narrow limits; applied only to definite/overt acts which can be
distinctly proved.
-
Identifying the A/R and M/R in a provision:
Sklar: Always separate a provision into A/R and M/R requirements  A/R = what the person did or didn’t do
AND the surrounding circumstances (e.g. “solicit in a public place”). M/R = the mental state, what is in the mind of
the accused (e.g. “for the purposes of obtaining sexual services”).
[1] Prostitution, etc.
CASE: Hutt v. R.
Intro Note (S & D): for most crimes, act requirement is self-evident. Some crimes, law’s description of the act
requires careful judicial analysis b/c it is vague or involves what appears to be a most minimal form of an act.
Hutt Case: def’n of act requirement is difficult/controversial. Sklar: LANGUAGE CAN HAVE MANY
MEANINGS – which do we adopt?
Hutt v. R, [1978] S.C.C. page 187
Facts:
- Detective in unmarked car drove along street and stopped when he saw accused.
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-
Accused smiled at him and he returned the smile. Accused approached the car and got in.
Detective and accused had conversation in which she revealed she was a prostitute.
Detective and accused drove to hotel and he arrested accused and charged her under s. 195.1 for “soliciting in a
public place for the purposes of prostitution.”
Issue:
Did Court of Appeal err in interpreting the word “solicit” in s. 195.1?
Held:
YES. Appeal allowed, conviction quashed.
Ratio:
- “Solicit” is not defined in the Criminal Code
- Dictionary def’n of solicit suggests it requires that the qualifying action be “pressing” or “persistent” and not
merely “a demonstration of an intention to make one available for prostitution.”
- This interpretation is supported by (1) legislative history – Parliament wished to condemn acts that contributed
to public inconvenience; (2) surrounding provisions – S. 195.1 is part of Part V (“Disorderly Houses, Gaming
and Betting”) which has a unifying factor, i.e. prohibiting contributions to public inconvenience or unrest.
- In this case, accused’s conduct was neither pressing nor persistent and it did not contribute to public
inconvenience or unrest. Accused did not enter the officer’s car uninvited (if anything, he encouraged her by
smiling). Accused was merely making herself available for prostitution.
Obiter:
- Issue of officer’s car being a “public place” was not raised by counsel.
- Criminal code defines “public place” as including any place to which the public have access as of right or by
invitation.
- Officer’s car was not a public place, but rather a private place of which he had sole control. This would have
been sufficient to dispose of the appeal if raised.
Commentary:
Approach to interpreting the statute:
- [1] Dictionary def’n  2 possible def’ns  2 possible meanings therefore look at Parliament’s intent.
- [2] Parliament’s intent  Legislative history: pre-1972, was offence to be a prostitute  provision was
replaced with s. 195 which added the word “solicit”  wasn’t enough to just stand there…so if Parliament
added “solicit”, it must have had “something else in mind” 
- [3] Parliament’s intent  Surrounding Provisions: deal with gambling, betting, bawdy houses; unifying
theme is public inconvenience involved. (see this reasoning in Paré also)
- So, that “something else” must be  pressing and persistent; contributing to public inconvenience and unrest.
Scope of the Criminal Law
- Policy behind this case  we don’t want to make all acts criminal. How far do we want to extend the reach of
the criminal law? Note disagreement btwn C.A. and S.C. w/ respect to this.
Discourse btwn the courts and the legislature
- Court repealed s. 175 and added 195. Court interpreted 195 narrowly. Parliament replaced it with a new 195
(now s. 213)  notice how change reflects public dissatisfaction w/ result of Hutt case  213 goes back to
courts b/c litigants initiate charter challenge (freedom of expression)
Rule:
Meaning of solicit includes an element of pressing and persistence.
Notes on the Crime of Prostitution (page 192-196)
Article: “Public Opinion, Aggressive Soliciting force Crackdown on B.C. Prostitutes” (1979)
- Result of Hutt decision: “has left prostitutes virtually free to ply their trade for more than a year”
- After Hutt decision, police and prosecutors stopped going after soliciting convictions. The Vancouver street
scene flourished.
- “Police and prosecutors say public pressure and more aggressive soliciting forced them to come up with a new
strategy…arguing in court that a prostitute is just as pressing and persistent in approaching ten men as
approaching one man ten times.
- B.C. will continue to press for Criminal Code amendments
Amendment to Criminal code  December 1985 (see page 194)
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See section 213.(1)  Has Parliament solved the problem of Hutt? Has it created new problems?
Article: “Soliciting Law a Bust in Most Cities” (1989)
- New tough anti-soliciting law  has not been effective in most cities (except Ottawa)
- Report shows that main effect of new law was to move street prostitutes from one area of downtown to another
(just displacing the problem)
- There are Charter challenges to the new legislation (violation of guarantee of freedom of expression?)
- Even though lots of charges have been laid, study shows that there are no fewer prostitutes working the streets
in most cities.
Most “sex for sale” still takes place in cars, even though the leg includes the insides of a car
within its def’n of a “public place”.
Criminal Code: ss. 197, 210-213
Part VII/ DISORDERLY HOUSES, GAMING AND BETTING
Interpretation
S. 197 (1)  definitions of “common bawdy-house”, “place”, “prostitute”, “public place” etc.
Bawdy Houses
S. 210 (1)  Keeping Common Bawdy-House
S. 210 (2)  Landlord, inmate, etc. of Common Bawdy House
S. 211  Transporting Person to Bawdy House
Procuring
S. 212 (1)  Procuring
S. 212 (2)  Aggravated offence in relation to living on the avails of prostitution of a person under the age
of 18 years
S. 212 (3)  Presumption
S. 212 (4)  Offence – prostitution of person under 18
Offence in Relation to Prostitution
S. 213 (1)  Offence in Relation to Prostitution
S. 213 (2)  Def’n of “public place” (note diff from def’n at beginning of Part VII)
213 (1) Every person who in a public place or in any place open to public view
(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that
place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any
person
for the purposes of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence
punishable on summary conviction.
213 (2) In this section, “public place” includes any place to which the public have access as of right or by invitation,
express or implied, and any motor vehicle located in a public place or in any place open to public view.
S. 213  What did Parliament say about the Hutt decision?
[1] Widens a public place – overrules court in Hutt (i.e. that private car cannot be public place)
[2] Widens people who can be convicted – s. 213 explicitly covers the prostitute and the john
[3] Widens actus reus element of “solicit” to “communication” or “attempted communication”. This is very
wide…can include a wink, nod, smile, etc. (note Charter challenge based on violation of freedom of expression).
Note: M/R in S.213  for the purposes of engaging in prostitution  how do we prove this intent?  show
purpose by SURROUNDING CONTEXT: words that accompany communication, time of day, testimony from
those who know accused, past behaviour, what she’s wearing.
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R. v. Malmo Lavigne
Case: R v. DiGuiseppe
Facts:
- Accused operated an adult entertainment parlour and was charged with keeping a common-bawdy house
contrary to s. 210 of the Criminal Code.
- Trial judge stayed proceedings against accused on grounds that the expressions “acts of indecency” and
“prostitution” in s. 197 (which are elements of the offence) were vague and ill-defined, so as to constitute an
infringement of S. 7 of the Charter. Judge held that there must be certainty and predictability of the alleged
criminal conduct, and that such was lacking as a result of the vagueness of the expressions used in s. 210.
Issue:
Are “acts of indecency” and “prostitution” unconstitutionally vague as defining elements of the offence of keeping a
common bawdy-house contrary to s. 210?
Held:
NO. Crown’s appeal allowed. Matters remitted to ON Court of Justice for Trial
Ratio:
- The void for vagueness doctrine is not to be applied to the bare words of a statutory provision but, rather, to the
provision as applied to judicial decisions. It must be considered whether the impugned sections of the Criminal
Code have been or can be given sensible meanings by the courts.
- Expressions are not impermissibly vague merely because they escape precise technical or mathematical
definition. The very nature of language will always mean that there will be a certain area of flexibility open to
interpretation and judicial appreciation. This does not equate with impermissible vagueness.
- “Acts of indecency” are to be interpreted according to the community standard of tolerance. There was binding
authority from the S.C.C. that the impugned expressions at issue were not unconstitutionally vague. The
community standard of tolerance test has been a feature of this area of the law for over 40 years and has been
applied refined and adapted by the courts.
- “Prostitution” has also been held by the S.C.C. not to be impermissibly vague.
- Rule of stare decisis prohibited court from revisiting the constitutionality of the expressions.
Commentary:
- Why would vague language be challengable under s. 7 (fundamental justice)?  b/c
undermines certainty of criminal law. People need to know in advance what actions are
punishable (F v. F – the principle of legality)
- How would one prove what the “community standard of tolerance” is?  Experts (e.g.
sociology professors), Opinion Polls. Based on evidence, it is up to court to decide what the
standard is.
- “Community Standard of Tolerance” – not highly uncertain wrt what sort of conduct
allowed. WHY? B/c when one acts, must “ascertain an area of risk”. Accused in this case
should have known he was walking into controversial waters. His activities could reasonably
come w/in the scope of “indecency” and he should know it.
- FLEXIBILITY: Recall Willis’ support for the flexibility of the common law. This case
supports giving the court some flexibility to interpret language and allow interpretations to
change over time (as society’s values change).
Rule:
Language is not vague if it has been given meaning by the courts. There is binding authority
from S.C.C. that “acts of indecency” are to be interpreted according to a community standard of
tolerance).
The very nature of language is that it is open to interpretation. The fact that interpretation is
required does not make the language impermissibly vague.
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[2] The Unlawful Act for the Crime of Assault and Sexual Assault
Criminal Code: ss. 264-273.2
PART VIII/ OFFENCES AGAINST THE PERSON
Assaults
S. 264.1 (1)  Uttering Threats
S. 265 (1)  Assault
S. 265 (2)  Application
S. 265 (3)  Consent
S. 265 (4)  Accused’s belief as to consent
S. 266 (6)  ASSAULT CONVICTION – maximum penalty = 5 years
S. 267  Assault with a Weapon or Causing Bodily Harm (max 10 years)
S. 268  Aggravated Assault (max 14 years)
S. 269  Unlawfully Causing Bodily Harm (max 18 months)
S. 269.1  Torture (max 14 years)
S. 270  Assaulting A Peace Officer (max 5 years)
S. 271  Sexual Assault (max 10 years)
S. 272  Sexual Assault with a weapon, threats to a third party causing bodily harm (max 14 years; min 4
years where a firearm is used)
S. 273  Aggravated Sexual Assault (max life; min 4 years where firearm is used)
S. 273.1 (1)  Meaning of “consent” (for the purposes of 271, 272, 273)
S. 273.1 (2)  Where no consent obtained
S. 273.2  Where belief in consent not a defence
Organization of the crime of assault:
There is a hierarchy (cluster) in the Code’s organization
s. 271-273 sexual assault: mini-cluster 1
s. 270 assaulting a peace officer,
maximum 5 years
s. 268 aggravated assault:
wounds, maims, disfigures or
endangers the life of the
max.
14 years.
s. 266complainant
simple assault
which
carries 5 year maximum
conviction.
s. 271 combined indecent assault and rape
(10 years).
s. 272 assault w/weapon (4 years min, 14
years max).
s. 269 torture: inflicts severe pain or
s. 273 aggravated
4 yrs. minimum).
suffering.(life,
Maximum
14 years.
s. 267 adds a weapon or bodily harm (s.2
defines weapon as a gun), maximum 10
years.
s. 265 defines assault broadly: intentional or
unintentional application of force without the
consent of another person
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- In Jobidon, the ass
R. v. Lamy  sexual assault case; prosecution wanted to charge accused under s. 272 (sexual assault with a
weapon) rather than s. 271 which carries a lesser sentence.
- Issue: Is a Dildo a weapon?
- Trial judge said NO. C.A. said YES.
- S.C.C.  Look to def’n of weapon in S. 2: “means anything used, designed to be used or intended for use (a)
in causing death or injury to any person…” S.C.C. interpreted this disjunctively. The dildo was used to cause
harm and thus was a weapon. Accused guilty of offence pursuant to s. 272.
S. 265 Criminal Code
265 (1) A person commits assault when
[a] without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
[b] he attempts, or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other
person to believe upon reasonable grounds that he has, present ability to effect his purpose.
[c] while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs
[2] This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a
third party or causing bodily harm and aggravated sexual assault.
[3] For the purposes of this section, no consent is obtained where the complainant submits or does not resist by
reason of
[a] the application of force to the complainant or to a person other than the complainant;
[b] threats or fear of the application of force to the complainant or to a person other than the complainant;
[c] fraud; or
[d] the exercise of authority.
CASE: R v. Jobidon
R v. Jobidon, [1991] S.C.C., page 219
Facts:
- Fight in a bar between accused and another man. Bar owner stopped it and men agreed to take it outside.
Accused struck victim with his fist. Victim became unconscious and accused continued to strike. Victim later
died of contusions to the head.
- Trial judge acquitted accused on the basis that the men consented to a fair fist fight. S. 222 of the Criminal
Code provides that a person commits culpable homicide when he causes the death of a human being by means
of an unlawful act. S. 265 defines the unlawful act of assault, and includes a requirement of lack of consent.
Since there was consent, there was no assault and thus no unlawful act.
- C.A. overturned the judgement and convicted accused on basis that “consent” should be construed subject to
common law limits.
Issue:
Must Crown prove absence of consent in all cases or are there common law limitations which restrict or negate the
legal effectiveness of consent in all cases? [Is consent always consent?]
Held:
Common law limitations to consent. Appeal dismissed. Conviction upheld.
Ratio:
Step 1: Court justifies using the common law to give meaning to and determine the limits of consent:
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S. 8(3) allows for common-law defences. Thus, common law can be used to define the scope of legally
effective consent. While consent is, in reality, a formal requirement of the actus reus of the assault OFFENCE,
it functions as a defence because the accused often leans on it as a defence to liability.
- Parliament’s intention was that the offence of assault would be explained and interpreted by the courts
incrementally over the course of time. If this was not its intention, it would not have defined assault so widely
as to possibly include many forms of non-criminal conduct (scarf example). [Sklar disagrees with this
justification. It is not for courts to find that very insignificant applications of force are not assault. Rather, is
up to court to give light sentence OR up to prosecutor not to press charges].
- The fact that Parliament failed to enact a list of conduct to which one could not consent does not suggest that it
intended to eliminate them from the offence of assault and rely only on the four factors specified in 265(3).
Such list would have been difficult and impractical to prescribe and was unnecessary given the existence of the
common law.
Step 2: Court summarizes the Common law position
- England: AG’s Reference  conviction of assault will not be barred if “bodily harm is intended and/or
caused”. Gonthier emphasizes that Cdn position would require that bodily harm be both intentional and caused.
- Canada: Division in Canadian jurisprudence BUT Gonthier emphasizes that general common law position (as
articulated in AG’s Reference) is strongly in favour of limiting consent in fist-fights.
Step 3: Gonthier canvasses policy considerations supporting nullified consent
- Social uselessness of fist fights (not in public interest that adults should cause harm w/o reason)
- Consensual fights may lead to larger brawls and to serious breaches of the public peace (which we do not wish
to encourage)
- Deterrence: Common law limits on consent might deter these activities (but judge doesn’t want to push this
too far…b/c of the spontaneous, often drunken nature of many fistfights)
- Morality: sanctity of human body should militate against validity of consent to bodily harm
- Paternalism: some argue that limiting ability of adult to consent freely is paternalistic. All criminal law is
paternalistic to some degree.
Step 4: Holding
- Common law cases and relevant policy considerations restrict the extent to which consent may be nullified.
- The limitation demanded by s. 265 as it applies to the circumstances of this appeal…vitiates consent between
adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a
fist-fight or brawl. (test entails that minor’s consent to adult’s intentional application of force would also be
negated).
Step 5: Limitations to holding
- Sports: some forms of intentionally applied force clearly fall w/in scope of the rules of the game (= implied
consent)
- Medical Treatments, Stuntmen (these three activities are socially useful)
- Intentional applications of force which cause minor hurt or trivial bodily harm. (use def’n of bodily harm found
in 267(2) of Code).
- Schoolyard scuffles – although he leaves open the question as to whether kids under 18 could use consent of
defence if they really mean to hurt the other kid.
[Sopinka, Dissenting]:
- The absence of consent is an essential ingredient of the actus reus and the requirement of absence of consent is
a fundamental principle of the common law.
- Parliament’s intention is very clear in S. 265 (i.e. that absence of consent is required). Job of judge is not to
evaluate the social utility of the activity but to scrutinize the consent to determine if it applied to the very
activity which is the subject of the charge.
- Absence of consent cannot be swept away by a robust application of judge-made policy.
- The effect of Gonthier’s approach is to create an offence where one does not exist (i.e. intentional application of
force w/ the consent of the victim). This undermines the letter and spirit of s. 9(a) which is in place to ensure
certainty in the criminal law. Social utility test creates problem of uncertainty.
- In the case at bar, the extent of consent given did not extend to being struck once knocked unconscious and the
accused knew that the consent did not extend beyond consciousness. There was thus no consent to the “blows”
that killed him.
- Policy: wants parliament to decide crimes not CODES.
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Commentary:
- S. 265  Absence of consent is part of actus reus. S. 265(3) specifies specific instances in which consent might
not be valid. These do not include “fist fight”. S. 265(3)(a) might have come into play if the accused knew that
the victim was unconscious and yet kept pummeling him. [this is the crux of Sopinka’s judgement  S. 265 (3)
(a) suggests that consent can never extend past a point at which victim is physically able to consent]
- Role of common law in the criminal law  to what extent can common law be used to define and give
meaning to crimes? Sopinka and Gonthier disagree. Gonthier  can use common law to illuminate and give
content to Criminal Code. Sopinka  (1) by doing this, create a new offence; (2) not just using common law to
illuminate Criminal code…is using it to insert new policy considerations into the criminal law; (3) if Parliament
doesn’t like acquittal, can amend the Code. Note that one may agree that the Common law can be used…and
yet not agree with how Gonthier applied it (use of policy considerations).
- Sklar agrees with Gonthier  big difference btwn creating new crime (as in Frey v. Fedoruk) and using
common law to decide what legal limitations to consent are.
- Knife fights  Cdn authorities say that consent is vitiated in knife fights  If Sopinka is right, would have to
find that knife fights were consented to.
- Elements of case: Common law issue, Canadian authorities, Policy Considerations, Holding, Limitation on
holding
- Sopinka overturning Qs of fact – S.C.C. has no jurisdiction to do this.
- Case of S&M sex: (1) intentional ap of force – yes; (2) causes non-trivial bodily harm – yes; (3) intends to
cause non-trivial bodily harm – yes. BUT…policy – bigger brawls, deterrence, morality, social utility,
paternalism
Rule:
Limitation on Consent: There is a limitation in s. 265 which vitiates consent between adults intentionally to apply
force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.
In order for consent to be vitiated, serious/non-trivial bodily harm (defined in s. 2) must be intended AND caused.
Elements of a Jobidon vitiated consent: (1) fist-fight or brawl; (2) intention to apply force; (3) intention to cause
serious hurt or non-trivial bodily harm; (4) causing of non-trivial bodily harm or serious hurt; (4) 2 adults or adult
and minor; (5) not a schoolyard scuffle, sporting activity or socially useful activity.
Common Law may be used to give meaning to provisions in the Criminal Code.
CASE: Bolduc and Bird v. R.
Bolduc and Bird v. R, [1967] S.C.C., page 236
Facts:
- Bolduc was a doctor in B.C. He was treating the complainant, Mrs. Osborne. Bird was a professional musician
who was planning on attending medical school.
- On one of Mrs. Osborne’s visits; Bolduc gave Bird a labcoat and stethoscope and told patient that Bird was a
medical intern. Bolduc asked if patient would mind if Bird observed and patient responded that it was fine.
- Bolduc examined patient’s private parts and Bird watched but did not touch.
- Trial judge convicted both accused of indecent assault under s. 141. C.A. dismissed the appeal
Issue:
Did the conduct of Bolduc (and Bird?) in the circumstances constitute the offence of indecent assault contrary to S.
141 of the Criminal Code?
Held:
[Majority]: No. Appeal allowed.
Ratio:
- S. 141(2) provides that an accused may be convicted of indecently assaulting a female if he does anything to her
with her consent, where that consent was obtained by false and fraudulent representations as to the nature and
quality of the act.
- The examination and treatment were consented to by the complainant.
- The fraud that was practised on her was not as to the nature and quality of what was to be done but was as to
Bird’s identity as a medical intern. It was not represented that he would do anything but observe. Act would
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have been no different if Bird wasn’t there. His presence as distinct from some overt act by him was not an
assault.
- Distinguish from R. v. Harmes – represented act as medical treatment when act was sexual intercourse (not
medical treatment at all) – this is fraud as to nature and quality of act.
[Dissent]:
- Court doesn’t need to be concerned with provisions of s. 141(2). [Thus there is no need to consider the
authorities on the “nature and quality of the act.”]
- S. 230 defines assault and does not refer to the “nature and quality of the act” but merely to “fraud”.
- The “force” applied may be of very slight degree and may be mere touching.
- The consent obtained from Mrs. Osborne was a consent to the examination by Bolduc of her private parts and
the touching them in the course of treatment in the presence of a doctor, and not a mere medical student or
layman. She only gave her consent on the basis that Bird was a doctor.
- Thus, the indecent assault (the mere touching) upon her was not the act to which she consented.
Commentary:
Spence’s dissent – awful – he did not apply the code as written. He ignored the provision
under which the two were charged and looked at a more general assault provision which only
mentioned “fraud”. (not “nature and quality of act”). Of course they were guilty of fraud…
Rule of stat construction: specific always prevails over the general
- Could have found them guilty by playing around with the word “quality”. Bolduc’s
representation of the quality of the act – a gyne exam. The quality of the act performed – an
exhibition, a show.
- SCOPE OF THE CRIMINAL LAW: (see this in Jobidon and Cuerrier also) – underlying
judgement is knowledge that there are other mechanisms which will effectively serve
functions of deterrence, rehabilitation, isolation, vengeance, retribution, etc. Bolduc will
likely lose his license and be sued civilly. Criminal law is for last resort (Goldstein). There
are other institutions (Hart).
Rule:
In order for a misrepresentation (fraud) to vitiate consent on these facts, the fraud must be as to
the nature and quality of the act. Here it was fraud as to the surrounding circumstances.
Representation of act and act were, in nature and quality, identical.
-
CASE: R v. Cuerrier
R. v. Cuerrier, [1998] S.C.C., page 241
Facts:
- Accused tested positive for HIV; public health nurse instructed him to use condoms and
inform all prospective sexual partners that he was HIV. He rejected this advice b/c it
wouldn’t allow him to have a sex life.
- Accused had unprotected sex with complainants without informing them he was HIV
positive.
- They testified that if they had known he was HIV positive, they would not have had
unprotected sex. [Not that they wouldn’t have had sex at all].
- Accused was charged with two counts of aggravated assault pursuant to s. 268 and acquitted
at trial and in the C of A [probably didn’t go for aggravated sexual assault b/c women would
have consented to protected sex].
Issue:
Does the Accused’s conduct constitute fraud which would vitiate consent for the purposes of
aggravated assault?
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Held:
Yes. Appeal Allowed. New trial ordered.
Ratio:
[Cory, Major, Bastarache]:
- Terms of 265(3)(c) – no longer necessary when examining whether consent in assault or
sexual assault cases was vitiated by fraud to consider whether the fraud related to the “nature
and quality of the act”.
- The essential elements of fraud are dishonesty, which can include non-disclosure of
important facts, and deprivation or risk of deprivation.
- A consent that is not based upon knowledge of the significant relevant factors is not a valid
consent. In this case, the consent cannot simply be to have sexual intercourse. Rather it must
be consent to have intercourse with a partner who is HIV positive.
- The extent of the duty to disclose will increase with the risks attendant upon the act of
intercourse. If one partner has HIV, the risks attendant upon intercourse are greater, thus
there is a greater duty to disclose.
- However, this must be limited. To say that any fraud which induces consent will vitiate
consent would bring within the sexual assault provisions of the Code behaviour which lacks
the reprehensible character of criminal acts. Thus, the existence of fraud should not vitiate
consent unless there is a significant risk of serious harm.
[L’Hereux Dube]:
- Amendment to Criminal Code shows Parliament’s intention to move away from the
unreasonably strict common law approach to the vitiation of consent by fraud.
- Fraud is simply about whether the dishonest act in question induced another to consent to the
ensuing physical act, whether or not that act was particularly risky and dangerous.
- Limiting fraud to situations where a “significant risk of bodily harm” is evident is
unjustifiably restrictive.
[McLachlin, Gonthier]:
- Law is settled – fraud does not vitiate consent unless the mistake goes to the nature and
quality of the act or the identity of the partner. Fraud as to collateral aspects (like venereal
disease) did not vitiate consent. Parliament did not intend to remove the common law
limitations on fraud for assault by amending S. 265 (3). Amendments did not oust the
common law governing fraud in relation to assault.
- It is up the courts however to update the common law from time to time to bring it into
harmony with needs of society.
- BUT…if we leave certainty of dual criteria (i.e. nature of act – sexual vs. non-sexual AND
identity of perpetrator), could open door too wide (e.g. promising fur coat for sex could
vitiate consent). “The courts should not broaden the criminal law to catch conduct that
society generally views as non-criminal. If that is to be done, Parliament must do it.”
- Need to broaden common law by a narrow increment that only catches harm of the sort here
at issue. Thus fraud should vitiate consent to contact where there was (a) deception as to the
sexual character of the act; (b) deception as to the identity of the perpetrator; (c) deception as
to the presence of a sexually transmitted disease giving rise to serious risk or probability of
infecting the complainant.
- Whether or not a sexual partner is infected with a sexually transmitted disease goes to the
nature of the act of intercourse itself. Deception as to this aspect of the act changes the
nature of the act (from something pleasurable to something deadly). Compare this to
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deception as to other inducements to have sex (promises of fur coats) which do not go to the
nature of the act.
Commentary:
- Use of common law to “inform” the meaning of fraud: in Jobidon, common law is used to
inform meaning of consent. Opposite results  Jobidon – widen criminal liability, narrow
consent; Cuerrier – narrow criminal liability (widen consent).
- SCOPE OF THE CRIMINAL LAW: Do not want to catch “non-criminal” conduct. Parl’s
intention could not have been to allow all forms of dishonesty to vitiate consent to sex.
Judges limit instances in which fraud can vitiate consent. Cory – must be significant risk of
serious bodily harm. McLachlin – limited by nature and quality of act (promising fur coat
for sex doesn’t go to nature and quality of the sex)
- IN order to be guilty, women didn’t actually have to get HIV – s. 268 “endangering life”, not
just committing harm.
- If women had died of HIV – unlawful act manslaughter OR murder (depending on if he
wanted to give them HIV…if infection was intentional). Problem of causation would exist
(did they get HIV from him?).
Rule:
Consent not based on knowledge of significant relevant factors is not valid consent.
Fraud = dishonesty (which includes non-disclosure) + deprivation or risk of deprivation
(significant risk of serious bodily harm). [note that in order to be non-disclosure – person must
know…e.g. knowledge of infection]
[3] The Proper Scope of the Criminal Law
Notes on the Proper Scope of the Criminal Law (page 167-173)
Canadian Committee on Corrections: Towards Unity: Criminal Justice and Corrections (Ouimet Report) (1969)
- [1] No act should be criminally proscribed unless its incidence, actual or potential is substantially damaging to
society.
- [2] No act should be criminally punished where its incidence may adequately be controlled by social forces
other than the criminal process (e.g. public opinion, leg relating to mental health, social/economic condition,
etc.)
- [3] No law should give rise to social or personal damage greater than it was designed to prevent.
- Making conduct criminal  should be the stop of last resort. Criminal sanctions should be employed only as an
unavoidable necessity (b/c are damaging to the individual and his family and expensive for the state).
- When should something be included in the catalogue of crimes?
- Where manifest evil would result from failure to interfere
- Where no other social or other legislative forces are not likely to be effective
- When the damage to the individual or his family, or the expense to the state is not justified by the damage
being prevented.
SKLAR: Language a bit strong here “manifest evil”; less strong language in law reform commission is more
appropriate (“act is wrongful…most people in society see it as such”).
Law Reform Commission of Canada, Report: Our Criminal Law (1976)
- Criminal law is not the best nor only means of bolstering values
- Criminal law is a blunt (insensitive relative to other social institutions) and costly ($ and human liberty)
instrument.
- So  criminal law should be an instrument of last resort.
- Watchword is restraint: wrt the scope of criminal law, the meaning of criminal guilt, the use of the criminal
trial and criminal sentence.
- Scope of Criminal Law: 4 conditions for something to be classified as a crime
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- [1] Act is wrongful (most people in society must see it as wrong)
- [2] must cause harm to other people, to society, or to people needing protection from themselves
- [3] Must cause harm that is serious in nature and degree
- [4] Must cause harm that is best dealt with through the criminal law.
These conditions confine criminal law to crimes of violence, dishonesty and other offences traditionally in the
centre of the stage.
“Any other offences, not really wrong but penally prohibited b/c this is the most convenient way of dealing with
them, must stay outside the Criminal Code and qualify merely as quasi-crimes or violations” (S&D: Are there
dangers in this last recommendation?)
N.D. Walker, “Crime and Punishment in Britain”
- Walker discusses what he calls “borderline offences”. Such offences are on one of two borders: (1) border
btwn criminal and civil law; (2) border btwn criminal law and mere discouragement by social disapproval. The
location of these boundaries varies depending on the jurisdiction in question (i.e. most Codes prohibit murder,
theft, violence, rape, etc…but other offences are prohibited in some places and not others).
- Most “borderline offences” involve sexual conduct: Extra-marital intercourse, homosexual acts, Abortion,
Prostitution (distinguish between selling sex and soliciting in the streets)
- Other non-sexual “borderline offences”: Attempted suicide, Negligent Injury
- Offences that appear in most codes but have been criticized as unnecessary: Incest, Euthanasia, Bigamy
- Some prohibitions have been criticized for being too wide in scope: Use of narcotics and other addictive drugs
w/o prescription. Drug-use may be more effectively curbed with other non-penal sanctions.
- Some argue for the creation of new offences: Artificial Insemination (?)
S&D: Which of these crimes meet the Commission’s 4 criteria (listed above)?
SKLAR: Most of what Walker is referring to  Victimless crimes (e.g. prostitution). Many
argue that victimless crimes should not be crimes at all  we don’t want police seeking out
prostitutes when they could be stopping murderers. Also b/c no harm was done.
Authors:
- Goldstein and Goldstein: criminal law as a last-resort process. It is only one part in the
“mosaic” of public and private, external and internal controls over human behaviour.
- H.L.A. Hart: It is up to legislators to decide what forms of conduct should be inhibited
(denounced) by the use of the criminal law. Some forms of conduct are better left to other
societal institutions (such as church, the family, trade unions, educators, etc.)  see this
behind judgement in Bolduc v. Bird.
- Morton: aim of the criminal law is to demonstrate society’s values to its citizens. Criminal
trial as a contemporary morality play. But, criminal law is only one institution by which
morality is created or supported. Many other institutions operate to instill law-abiding values
in citizens.
Why should criminal law be of last resort?
-
Cost to society (expensive to keep people in prison)
Human liberty is at stake.
Because there are other institutions out there that might be more effective, more accessible,
etc. Criminal law is blunt, less sensitive than other societal institutions.
Cases that address Scope implicitly or explicitly:
- Jobidon: makes a rule…but we don’t want this rule to extend to all “assault situations”.
Don’t want consent to be vitiated in socially useful situations such as medical procedures and
sports and stunts in movies. ALSO, at basis of using common law to illuminate consent –
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notion that Parliament couldn’t possibly have intended all intentional applications of force to
come w/in the ambit of “assault”.
Lohnes: not appropriate for criminal law to extend to acts that society has traditionally
accepted (e.g. singing in public so long as it doesn’t cause an externally manifested public
disturbance). Requirement of certainty and fact that crim law impinges on liberty = limit
scope of law, interpret narrowly.
Hutt: implicit in narrowing def’n of solicit  desire not to extend the criminal law to
women merely standing on the street. They thought this reflected Parliament’s intention (i.e.
when it added “solicit” into the Criminal Code)
Bolduc and Bird: underlying court’s judgement is an the recognition that the reprehensible
conduct of Bolduc will be dealt with by other societal institutions. If crim law is to be the
institution of last resort and given that these societies will effectively act as a deterrent to this
conduct and provide a punishment that matches his moral culpability, it is best to leave
Bolduc to these other institutions.
Cuerrier: court explicitly expresses concern that criminal law not extend to acts that are not
criminal (e.g. don’t want to create a precedent that would allow promising fur for sex to
constitute fraud for purposes of vitiating consent).
S. 177 (Peeping toms)  Parliament made this pretty narrow in order to encompass only
some types of conduct. Didn’t want the criminal law to reach too far.
Who decides what the proper scope is? By what mechanisms is it expanded or contracted?
-
-
-
-
Requirement of the act – actus reus requirement ensures that crim law is not extended so as
to punish those who are too irresolute to put their mental state into action. If we punished
guilty minds, all men would be criminals (J.F. Stephen)
Parliament - Elimination of common law offences – only Parliament can expand the scope
of the criminal law by making new offences or making existing offences broader. They are
assumed to articulate the values of society insofar as they are a democratically elected body.
Related – limits within statutes themselves - Parliament itself recognizes the importance of
limiting the scope of the criminal law to include only some acts that are very evil frightening,
etc.  for example, draft s. 177 (see above) quite narrowly.
Courts – implicitly and explicitly – we see courts using mechanisms of interpretation to limit
or expand the scope of the criminal law. They may do this implicitly as in Bolduc and Bird,
in which it is evident that the court recognizes that the two men will be disciplined in another
institution (i.e. professional ethics) and thus that a resort to the criminal law is perhaps not
nearly as justified. Explicitly as in Jobidon in which the court explictly limits the scope to
the situations in which consent in fights can be vitiated so as not to allow the criminal law to
extend to socially useful activities such as medical procedures, sports and movie stunts.
Court does this also in Hutt…gives a restrictive reading to the meaning of
solicit…underlying this is the court’s value about how far the criminal law should reach,
what it should encompass and what the purpose of it is [notice that there is no general
agreement wrt this issue…C.A. thought otherwise—that the criminal law SHOULD extend
to punish acts such as Hutt’s]
Discourse btwn the courts and Parliament – court says one thing; parliament responds.
Parliament says something; court interprets. (see this in Hutt and F v. F)
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Prosecution, police and citizens – based on what they report, seek out and press charges for.
They implicitly articulate their values about how far the criminal law should extend. 2
people in a domestic dispute may not report it to the police until it is at a sufficiently
dangerous level of violence. This suggests that most domestic disputes are best left to
resolution w/in the family institution.
Reports – Ouimet – manifest evil. Law commission report – very wrongful acts.
Note: connection between SCOPE and AIMS OF CRIMINAL LAW – should only make
conduct criminal if aims of criminal law can only be met by doing so. If some other institution
can better serve the aims of deterrence, rehab, isolation, denunciation, retribution and vengeance,
then let it. Also, shouldn’t make conduct criminal if the act doesn’t suggest that these aims are
necessary (e.g. non-intentional act – is deterrence appropriate?).
[4] The Unlawful Act in Breaking and Entering
Case: Johnson v. R
Johnson v. R, [1977] S.C.C., page 248
Facts:
- Accused entered a partly constructed unoccupied dwelling house through an open doorway
leading into house from carport. The door hadn’t been installed and the boards that the
owner had nailed to the opening temporarily had been removed.
- At trial, accused was convicted of breaking and entering pursuant to s. 308 (b) [now 350 (b)]
of the Criminal Code.
Issue:
Does entry through an open door constitute a “breaking”? What is the scope of s. 308 (b)?
Held:
Appeal dismissed. Entry through open door does constitute a “breaking”.
Ratio:
- S. 308 has extended constructive breaking to include entry by any temporary opening. This
is an extension of the previous provision, which required that such openings be “left open for
any necessary purpose.”
- The result in Regina v. Jewell suggests that a partly opened door would be an opening but a
fully open door would not be so regarded. It would restrict “breaking” to those situations in
which the intruder found a door or window partly ajar and opened it further in order to gain
entry. This would distinguish between fat burglars and thin ones (would be easier to be
acquitted if thin). The Court disagrees with this ratio; it is an interpretation of S. 308 which
reflects the earlier state of the law.
- Parliament has extended the limits of constructive breaking. Parliament, for the purpose of
the Criminal Code, has given the word “break” an artificial construction that would not
otherwise prevail.
- The words used in s. 308 (b) must be given effect according to their ordinary meaning.
- Always start with the Code and not the previous state of the law.
- Entry through an open door constitutes breaking and thus the accused is guilty of breaking
and entering pursuant to S. 308 (b)
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Commentary:
- Role of the Common law: Common law is at the basis/foundation of our Criminal Code.
Distinction between actual and constructive existed at Common law and subsequently found
its way into the first Canadian Criminal code. “Everyone who obtains entrance into any
building by any threat or artifice used for that purpose, or by collusion with any person in the
building, or who enters any chimney or other aperture of the building, permanently left open
for any necessary purpose, shall be deemed to have broken and entered that building.”
- Common law is at basis of criminal law – Parl can do whatever it likes to change it. The
only limit is the Charter
- Legal language: Difference between legal and ordinary meanings. Ordinary meaning of
break is much different than legal meaning (“constructive breaking”) which includes (1)
obtaining entrance by threat or artifice or collusion w a person and (2) entering through a
permanent or temporary opening. Neither of these involve “breaking” per se. “Entering” 
putting any part of body into building…Words in law don’t always means the same as words
on the street.
- See also  Lichfus (reasonable doubt is not to be understood according to its ordinary
meaning)
- See also???
Rule:
The words “by a permanent and temporary opening” in S. 350 (b) embrace an entry not only
through the further opening of a temporary opening, but any entry through any temporary
opening.
[5] The Unlawful Act of Causing a Public Disturbance
CASE: R. v. Lohnes
R. v. Lohnes, [1992] S.C.C., page 253
Facts:
- Mr. Porter and Mr. Lohnes were neighbours. Loud noises produced by Mr. Porter’s
equipment disturbed Lohnes.
- Lohnes went out on veranda and shouted obscenties at Mr. Porter. Mr. Porter filed a
complaint.
- Trial judge convicted Lohnes on basis that his conduct “disturbed Mr. Porter” and thus
constituted a disturbance w/in s. 175(1)(a)
Issue:
What constitutes a disturbance under s. 175(1)(a) of the Criminal Code? Does foreseeable
emotional upset suffice, or must there be an externally manifested disturbance of a public nature?
Held:
Appeal allowed. Conviction quashed.
Ratio:
- Underlying issue here is that there are two competing values: individual right of expression
and the collective right to peace and tranquility. Issue is where the line is to be drawn.
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Authority – supports disturbance as interference with ordinary and customary use by public of the place
-
-
Weight of authority suggests that the conduct must cause an overtly manifested disturbance
which constitutes an interference with the ordinary and customary use by the public of the
place in question. The disturbance may be the act itself or a secondary disturbance.
Principle of legality suggests that only conduct which may reasonably be expected to cause
such a disturbance in the particular circumstances of the case falls w/in s. 175(1)(a).
Statutory Construction – supports disturbance as being more than mere mental or emotional annoyance
“Disturbance” is capable of many meanings. Must choose the one that accords with intention
of Parliament.
- Ordinary usage: “disturbance” suggests interference with an ordinary and customary
conduct or use
- Context: Parliament’s requirement that the disturbance be in a public place indicates that its
object was not to protect individuals from emotional disturbance but to protect society from
disruptions of normal activities.
- Headings and Preambles: provision is in the section “Disorderly Conduct”. This supports
view that Parl had in mind public disorder, not emotional disturbance.
- French text: word used for disorder in French version is “tapage” which connotes an
externally manifested disturbance.
- S. 175(2) suggests that Parliament was concerned with how members of the public other than
the accused may have been affected by the impugned act.
Policy – supports narrower “public disturbance” interpretation over broader “emotional
disturbance” standard
- Principle of Legality: everyone should know what conduct is prohibited.
- Balance of interests: Narrower interp permits a more sensitive balancing btwn
countervailing interests at stake
-
-
Proper Goals and limits of the Criminal Law: not appropriate for criminal law to extend to minor
disturbances that society has historically tolerated. Given possibility of intrusion on liberty and uncertainty of
criminal law – favour narrow interp  Must be some external manifestation of disorder in the sense of
interference with the normal use of the affected place.
Holding
- Disturbance in s. 175(1)(a) is more than emotional upset. Must be an externally manifested disturbance of the
public peace, in the sense of interference with the ordinary and customary usage of the place by the public.
Disturbance may consist of the act itself or may flow as a consequence of the act.
Commentary:
- Principle of legality used as justification here. Things that fall under 175, i.e. qualify as a “public disturbance”
must be acts which people would reasonably expect to fall under it.
- Underlying concern is balance btwn free speech and right to live in peace. Concern with this balance is reflected
in Parl’s requirement that disturbance be in a public place. Court favours narrow interpretation b/c is consistent
with this balance.
- “Public place” – Court’s def’n of public place may be different for different statutes.
Rule:
S. 175(1)(a) requires an externally manifested disturbance in or near a public place, consisting
either in the act itself or in a secondary disturbance. Externally manifested disturbance is an
interference w/ the ordinary and customary usage of the place by the public, however small an
interference.
Interpreting a Statute
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[1] Look at Dictionary def’n of word/expression – if clear – done – if not clear (more than one
possible meaning)  go to #2.
[2] What was parliament’s intent?
- Ordinary usage of the word
- Practical context of the provision – e.g. in Lohnes  b/c of requirement of public place in
statute, suggests requirement of publicly manifested disturbance
- Textual context – surrounding provisions (unifying theme as in Hutt and Paré); Headings
and Preambles
- French text – French word may have clear, unambiguous meaning which will illuminate
meaning of English
- Rationality and Common sense – e.g in Paré, would not be rational to make murder 1 hinge
on a difference of minutes and seconds. Parliament will not have an irrational
[3] Authority
- How have courts interpreted this provision (e.g. Mac  “acts of indecency” was not vague
b/c has been interpreted by courts)?
[4] Policy Considerations
- Slippery Slope
- Principle of Legality – people should be able to know what conduct is prohibited.
- Balancing interests
- Proper scope of the criminal law – is this an act to which the criminal law should extend?
(Lohnes: society has typically tolerated outward expressions that have caused mere
emotional upset or disturbance).
B – Omissions
CASE: Fagan v. Commissioner of Metropolitan Police
Fagan v. Commissioner of Metropolitan Police, [1968] C.A., page 269
Facts:
- Officer directed accused to park next to curb. He parked too far and officer asked him to
park closer.
- Accused drove towards officer and stopped with the wheel on his foot.
- Officer said “get off my foot.” Accused said “fuck you, you can wait.” Ignition went off
- Trial judge found that mounting of wheel on officer’s foot was accidental (or at least had
reasonable doubt as to whether it was deliberate). They found that failure to get off foot was
deliberate.
Issue:
Do accused’s actions amount to an assault?
Held:
Yes. Appeal dismissed.
Ratio:
- An assault requires the performance of an intentional act.
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Here, mounting wheel on officer’s foot could not be assault because it was accidental and
thus the mens rea (intent) was not present. Neither could the refusal to dismount the officer’s
foot be an assault because a mere omission to act cannot amount to assault.
- An assault requires both the elements of actus reus and mens rea. Mens rea need not be
present at the inception of the actus reus; it cannot be superimposed upon an existing act.
- The omission of the accused to get off the officer’s foot forms part of a continuous act that
began when the accused mounted the wheel onto his foot. The mens rea (intent) was not
present at the start of the act but was superimposed upon it when he held the wheel on the
foot and refused to remove it.
- This is to be distinguished from a case in which the act and the omission are distinct (e.g. hit
someone unintentionally with car; intentionally fail to rescue them).
[Dissent]:
- No mere omission to act can amount to an assault.
- Both the elements of actus reus and mens rea must be present at the same time, but one may
be superimposed on the other.
- Application of these principles to this case suggests that accused merely omitted to take the
wheel off the foot. This cannot be an assault.
Commentary:
-
CASE: R. v. Miller
R. v. Miller, [1983] House of Lords, page 272 – accidental fire and failure to put it one when
become aware
Facts:
- Accused accidentally set fire when he fell asleep while smoking a cigarette.
- He woke up to find the mattress on fire. He got up and went into the next room and went
back to sleep. He claims that he “hadn’t got anything to put the fire out so he just left it”.
- He was charged with arson contrary to the Criminal Damage Act.
- He was found guilty at trial and the C of A.
Issue:
Is the actus reus of the offence of arson present when one accidentally starts a fire and then fails
to take steps to extinguish it or prevent property damage?
Held:
Yes. Appeal dismissed.
Ratio:
- Judge doesn’t like the term actus reus because it suggets that a positive act is needed to make
a person guilty of a crime and that a failure or omission is insufficient. He prefers the
expression “conduct of the accused”.
- Trial court  “Duty Theory”: when accused became aware of the fire that he started by his
own act, he became under a duty to take some action to put it out.
- C of A  “Continuous Act Theory”: Accused’s whole course of conduct, from moment of
dropping cigarette until time when damage by fire was complete, was a CONTINUOUS
ACT of the accused. This act is sufficient to constitute arson if at any stage in that conduct,
the state of mind of the accused, when he fails to prevent or minimise the damage which will
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result from his initial act, although it lies within his power to do so, is that of being reckless
whether property belonging to another would be damaged.
- H of L favours the duty theory (but prefer “responsibility theory”) b/c it is easy to explain to
a jury.
- Where accused accidentally does act that sets in train events which, by the time the accused
becomes aware, would make it obvious that property belong to another would be damaged,
he is guilty of arson IF, when he does become aware that the events are a result of his act, he
doesn’t try to prevent or reduce risk or damage because either he has not given thought to the
possibility of such risk OR having recognized the risk, he decided not to prevent it.
Commentary:
SH: Only applies to damage to property? What about injuries to persons?
CASE: Moore v. R.
Moore v. R., [1979] S.C.C., page 274
Facts:
- Accused went through a red light on his bike.
- Constable Sutherland set about to “ticket” Moore and chased him on his motorcycle
requesting him to “pull over and stop”. Moore flatly refused to stop.
- Moore was charged with obstructing a peace officer in the performance of his duty on the
basis that he failed to give his name when requested to do so by the constable.
- S. 58 of the Motor Vehicle Act provides that persons in a motor vehicle will be guilty of an
offence if they fail to stop or correctly state their name and address when requested by a
peace officer. The def’n of “motor vehicle” includes only “self-propelled” vehicles.
- Accused was acquitted at trial but convicted by the Court of Appeal.
Issue:
Does accused have duty to give name to constable when requested?
Held:
Yes. Appeal dismissed. Conviction upheld.
Ratio:
- Respondent was not in breach of S. 58 of the Motor Vehicle Act.
- The constable on duty observed the appellant in the act of committing an infraction of the
statute and that constable had no power to arrest the accused for such offence unless and until
he had attempted to identify the accused so that he might be the subject of summary
conviction proceedings.
- The officer was under a duty to attempt to identify the wrongdoer and the failure to identify
himself by the wrongdoer did constitute an obstruction of the police officer in the
performance of his duties. [reciprocal duty??] [sh: note page 277 – limits the holding to
responding to Qs about your identity]
[Dissent]:
- Court is being basked to impose a duty upon a person to identify himself to police in the
absence of explicit statutory provisions that impose such a duty.
- A duty to identify oneself must be found in either common law or statute, quite apart from
the duties of police. Omission to act in a particular way will give rise to criminal liability
only where a duty to act arises at common law or is imposed by statute.
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-
There is no statutory duty on a cyclist caught riding through a red light to identify himself (s.
58 excludes cyclists)
- There is no duty at common law to identify oneself to police. (note that there is a difference
btwn deliberately telling a false story and refusing to answer)
- Reciprocal Duty?:
- Has been contended that there was duty on police officer to enquire and thus reciprocal duty
upon alleged culprit to respond.
- A limited obligation to respond (i.e. only when officer is an eyewitness) is a qualification that
is unsound in principle and unworkable in practice. Each duty is entirely independent.
- The legislature must be taken to have intended to relieve bicycle riders of the duty to state
their names. To require the riders to do so would be tantamount to amending the Motor
Vehicle Act.
- The criminal law is no place w/in which to introduce implied duties, unknown to statute and
common law, breach of which subjects a person to arrest and imprisonment.
- (Note Glanville article  if failure to give name and address was an obstruction…all statutes
making it an offence to refuse to give name and address in specific situations would have
been unnecessary).
Commentary:
C – Causation
CRIMINAL LAW - FINAL SUMMARY
Sarah Huggins
PART IV - THE ACTUS REUS REQUIREMENT FOR CRIM L IABILITY .................... 41
B - OMISSIONS ......................................................................................................................................................... 41
The Law .............................................................................................................................................................................42
CASE: Fagan v. Commissioner of Metropolitan Police ....................................................................................................43
CASE: R. v. Miller ............................................................................................................................................................44
CASE: Moore v. R. ...........................................................................................................................................................45
CASE: R. v. Thornton .......................................................................................................................................................47
CASE: R v. Browne ..........................................................................................................................................................49
CASE: People v. Beardsley ...............................................................................................................................................50
C - CAUSATION ........................................................................................................................................................ 51
Introductory Note ...............................................................................................................................................................51
Overview ............................................................................................................................................................................52
The Law .............................................................................................................................................................................52
CASE: Smithers v. R. ........................................................................................................................................................54
CASE: R. v. Blaue.............................................................................................................................................................55
CASE: R. v. Nette .............................................................................................................................................................57
R. v. Shanks........................................................................................................................................................................59
PART V - THE MENS REA (MENTAL STATE) REQUIREMENT FOR CRIM
LIABILITY.................................................................................................................................. 59
A - INTRODUCTION .................................................................................................................................................. 59
B - THE BASIC SUBJECTIVE/OBJECTIVE DISTINCTION ............................................................................................. 60
The Law .............................................................................................................................................................................60
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The Cases ...........................................................................................................................................................................61
C - MENS REA OFFENSES VERSUS PUBLIC WELFARE/REGULATORY OFFENCES ...................................................... 63
The Law .............................................................................................................................................................................63
The Cases ...........................................................................................................................................................................63
CASE: Beaver v. R............................................................................................................................................................64
CASE: R. v. Pierce Fisheries .............................................................................................................................................65
CASE: R. v. City of Sault Ste. Marie ................................................................................................................................65
CASE: R. v. Chapin ..........................................................................................................................................................66
Charter Limitations ............................................................................................................................................. 67
D - INTENTION (KNOWLEDGE AND DESIRE) ............................................................................................................. 68
CASE: R v. Steane ............................................................................................................................................................68
CASE: R. v. Hibbert ..........................................................................................................................................................74
E - THE MENS REA FOR THE SEVERAL FORMS OF MURDER ..................................................................................... 75
CASE: Simpson v. R. ........................................................................................................................................................76
CASE: Vaillancourt v. R. ..................................................................................................................................................76
CASE: R. v. Martineau......................................................................................................................................................78
First Degree Murder ........................................................................................................................................... 79
CASE: R v. Smith .............................................................................................................................................................80
CASE: R. v. Nygaard ........................................................................................................................................................81
F - RECKLESSNESS AND WILFUL BLINDNESS ........................................................................................................... 81
CASE: Sansregret v. R .......................................................................................................................................................81
CASE: R. v. Jorgensen ......................................................................................................................................................83
CASE: R. v. Currie ............................................................................................................................................................83
CASE: R. v. Blondin .........................................................................................................................................................84
CASE: R. v. Sandhu ..........................................................................................................................................................85
CASE: R. v. Vinokurov .....................................................................................................................................................86
CASE: R. v. Harding .........................................................................................................................................................86
CASE: R v. Duong ............................................................................................................................................................87
G - THE CHARTER IMPACT ON SUBSTANTIVE CRIMINAL LAW ................................................................................. 88
Murder ................................................................................................................................................................ 88
Introduction: The M/R for Predicate Offences .................................................................................................. 88
Unlawfully Causing Bodily Harm ....................................................................................................................... 88
CASE: R. v. Desousa ........................................................................................................................................................88
Unlawful Act Manslaughter ................................................................................................................................ 89
Aggravated Assault ............................................................................................................................................. 91
H - CRIMINAL NEGLIGENCE ..................................................................................................................................... 92
PART VI - THE OFFENCE OF SEXUAL ASSAULT ............... Error! Bookmark not defined.
PART IV - THE ACTUS REUS REQUIREMENT FOR CRIM L IABILITY
B - Omissions
General common law principle: Criminal responsibility for omissions is limited to cases
where there is a legal and not merely moral duty to act. A person is not punished for omissions
unless he had a legal duty to act.
Hard question is  in a particular situation  IS THERE A LEGAL DUTY TO ACT?
CRIMINAL RESPONSIBILITY FOR OMISSIONS:
When see facts where one omits to do something OR statute which creates crim responsibility
for omission to fulfill a duty "imposed by law" (s. 219) or a "legal duty" (s. 180)  Must find a
duty:
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[1] A contract (an undertaking in S. 217? - because a binding committment)
[2] S. 215 - duty to provide necessaries of life (based on relationship) [Coyne, Poppim (page
283), Beardsley?]
- [3] S. 216 - duty of persons undertaking acts dangerous to life [Thornton]
- [4] S. 217 - undertaking [Browne]
- [4] Common Law - tort principles [Thornton (C.A.)
- [5] Reciprocal duty - (limited to duty to reveal your identity to a police officer who
witnesses you commit a crime - [Moore])
- [6] Other statute (e.g. occupier's liability act)
If there is no duty, may try to characterize the omission as an ACT.
- [1] Continuous Act Theory [Fagan]
- [2] Accused set acts in motion and recognizes that they will do damage to PROPERTY =
duty to take steps to prevent or minimize the damage
The Law
Criminal Code:
S. 215. Legal duty to provide necessaries of life to child under 16, spouse or common law
partner, person under his charge.
**
Note that the courts have been liberal in interpreting the "necessaries of life"
S. 216. Every person who undertakes to administer surgical or medical treatment to another
person or to do any other lawful act that may endanger the life of another person is, except in
cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in
so doing.
S. 217. Every one who undertakes to do an act is under a legal duty to do it if the omission to do
the act is or may be dangerous to life.
**
**
**
S. 216 and S. 217 are not offences on their own. They are just duty definitions and must
be combined with some other offence in the code - e.g. S. 219 or S. 180 (common
nuisance)
S. 216 generally limited to doctors but extended in Thornton case
NECESSITY: S. 216 includes "except in cases of necessity" - you don't have to continue
the act if it may cause harm to you. Assume reference to necessity in S. 216 to apply to
S. 217.
There are also some other criminal offences based on duty  S. 263 (safeguarding opening on
ice) and S. 79 (duty to take reasonable care when dealing with explosives)
Cases:
Fagan
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Miller
Moore
Thornton
Brown
Beardsley
SKLAR: How do duties arise?
We know that our courts cannot create crimes (only Parliament can) but it seems that they can
create crimes under the guise of creating a legal duty (see Thornton)
CASE: Fagan v. Commissioner of Metropolitan Police
Fagan v. Commissioner of Metropolitan Police, [1968] C.A., page 269
Facts:
- Officer directed accused to park next to curb. He parked too far and officer asked him to
park closer.
- Accused drove towards officer and stopped with the wheel on his foot.
- Officer said “get off my foot.” Accused said “fuck you, you can wait.” Ignition went off
- Trial judge found that mounting of wheel on officer’s foot was accidental (or at least had
reasonable doubt as to whether it was deliberate). They found that failure to get off foot was
deliberate.
Issue:
Do accused’s actions amount to an assault?
Held:
Yes. Appeal dismissed.
Ratio:
- An assault requires the performance of an intentional act.
- Here, mounting wheel on officer’s foot could not be assault because it was accidental and
thus the mens rea (intent) was not present. Neither could the refusal to dismount the officer’s
foot be an assault because a mere omission to act cannot amount to assault.
- An assault requires both the elements of actus reus and mens rea. Mens rea need not be
present at the inception of the actus reus; it can be superimposed upon an existing act.
- The omission of the accused to get off the officer’s foot forms part of a continuous act that
began when the accused mounted the wheel onto his foot. The mens rea (intent) was not
present at the start of the act but was superimposed upon it when he held the wheel on the
foot and refused to remove it.
- This is to be distinguished from a case in which the act and the omission are distinct (e.g. hit
someone unintentionally with car; intentionally fail to rescue them).
[Dissent]:
- No mere omission to act can amount to an assault.
- Both the elements of actus reus and mens rea must be present at the same time, but one may
be superimposed on the other.
- Application of these principles to this case suggests that accused merely omitted to take the
wheel off the foot. This cannot be an assault.
Rule:
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A/R and M/R must exist at the same time (principle of concurrency) BUT M/R does not have to
be present at the start of the act - it can be superimposed (continuous act theory). What looks
like an omission can give rise to criminal liability if can be characterized as part of a continuous
act.
Commentary:
- Problem only arises b/c trial judge found as fact that mounting foot was accidental and not
deliberate. Had it been an intentional application of force, it would have been ASSAULT.
- If act was completed, subsequent arising M/R would not make this an assault (example of
guy hitting someone unintentionally and then intentionally failing to rescue him). Seems that
to use continuous act theory, need to find some physical continuity in the act.
- Would Miller rule apply here? Not likely b/c holding in Miller is limited to damage to
PROPERTY!
CASE: R. v. Miller
R. v. Miller, [1983] House of Lords, page 272 – accidental fire and failure to put it one when
become aware
Facts:
- Accused accidentally set fire when he fell asleep while smoking a cigarette.
- He woke up to find the mattress on fire. He got up and went into the next room and went
back to sleep. He claims that he “hadn’t got anything to put the fire out so he just left it”.
- He was charged with arson contrary to the Criminal Damage Act.
- He was found guilty at trial and the C of A.
Issue:
Is the actus reus of the offence of arson present when one accidentally starts a fire and then fails
to take steps to extinguish it or prevent property damage?
Held:
Yes. Appeal dismissed.
Ratio:
- Judge doesn’t like the term actus reus because it suggets that a positive act is needed to make
a person guilty of a crime and that a failure or omission is insufficient. He prefers the
expression “conduct of the accused”.
- Trial court  “Duty Theory”: when accused became aware of the fire that he started by his
own act, he became under a duty to take some action to put it out.
- C of A  “Continuous Act Theory”: Accused’s whole course of conduct, from moment of
dropping cigarette until time when damage by fire was complete, was a CONTINUOUS
ACT of the accused. This act is sufficient to constitute arson if at any stage in that conduct,
the state of mind of the accused, when he fails to prevent or minimise the damage which will
result from his initial act, although it lies within his power to do so, is that of being reckless
whether property belonging to another would be damaged.
- H of L favours the duty theory (but prefer “responsibility theory”) b/c it is easy to explain to
a jury.
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Where accused accidentally does act that sets in train events which, by the time the accused
becomes aware, would make it obvious that property belong to another would be damaged,
he is guilty of arson IF, when he does become aware that the events are a result of his act, he
doesn’t try to prevent or reduce risk or damage because either he has not given thought to the
possibility of such risk OR having recognized the risk, he decided not to prevent it.
Rule:
When accused accidentally sets in train events which, when accused becomes aware of them,
will obviously cause property damage, he has a duty to try to prevent or reduce risk or damage.
(even if he personally has not given thought to the possibility of such a risk). [Elements: must
be obvious that there is risk of damage to property, he must know that the events are result of his
act, he must either have recognized the risk and failed to prevent it OR have not given thought to
the possibility of the risk, he must try to prevent or reduce risk or damage]
Commentary:
- Fagan created a stir - should it have been solved using duty theory (as this case was) or
continuous act theory? H of L got into the stir in Miller - chose duty theory b/c easier to
explain to the jury.
- Note the limitations on the holding: (1) don't have to eliminate the risk - but must do
something (e.g. call the fire dep't); (2) limited to PROPERTY DAMAGE, doesn't include
PERSONAL INJURY (thus could not apply to hypothetical at end of Fagan)
- Is Miller good law in Canada? We're not sure. England doesn't have a code so courts can
create common law crimes. In Canada, it is not as clear that the courts are empowered to
create a legal duty; such creation may be tantamount to creating a criminal offence - S. 9(a)
prohibits this (see Thornton for further discussion)
- Recklessness: court provides def'n of recklessness  "he doesn't take steps to prevent the
risk b/c either he has not given thought to the possibility of such risk OR having recognized
the risk, he decided not to prevent it" - this is the def'n in England. In Canada, only the part
after the "OR" is legit - the accused must himself (subjectively) have recognized the risk.
CASE: Moore v. R.
Moore v. R., [1979] S.C.C., page 274
Facts:
- Accused went through a red light on his bike.
- Constable Sutherland set about to “ticket” Moore and chased him on his motorcycle
requesting him to “pull over and stop”. Moore flatly refused to stop.
- Moore was charged with obstructing a peace officer in the performance of his duty on the
basis that he failed to give his name when requested to do so by the constable.
- S. 58 of the Motor Vehicle Act provides that persons in a motor vehicle will be guilty of an
offence if they fail to stop or correctly state their name and address when requested by a
peace officer. The def’n of “motor vehicle” includes only “self-propelled” vehicles.
- Accused was acquitted at trial but convicted by the Court of Appeal.
Issue:
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Does accused have duty to give name to constable when requested?
Held:
Yes. Appeal dismissed. Conviction upheld.
Ratio:
- Respondent was not in breach of S. 58 of the Motor Vehicle Act.
- The constable on duty observed the appellant in the act of committing an infraction of the
statute and that constable had no power to arrest the accused for such offence unless and until
he had attempted to identify the accused so that he might be the subject of summary
conviction proceedings.
- The officer was under a duty to attempt to identify the wrongdoer and the failure to identify
himself by the wrongdoer did constitute an obstruction of the police officer in the
performance of his duties. [reciprocal duty??] [sh: note page 277 – limits the holding to
responding to Qs about your identity]
[Dissent]:
- Court is being basked to impose a duty upon a person to identify himself to police in the
absence of explicit statutory provisions that impose such a duty.
- A duty to identify oneself must be found in either common law or statute, quite apart from
the duties of police. Omission to act in a particular way will give rise to criminal liability
only where a duty to act arises at common law or is imposed by statute.
- There is no statutory duty on a cyclist caught riding through a red light to identify himself (s.
58 excludes cyclists)
- There is no duty at common law to identify oneself to police. (note that there is a difference
btwn deliberately telling a false story and refusing to answer)
- Reciprocal Duty?:
- Has been contended that there was duty on police officer to enquire and thus reciprocal duty
upon alleged culprit to respond.
- A limited obligation to respond (i.e. only when officer is an eyewitness) is a qualification that
is unsound in principle and unworkable in practice. Each duty is entirely independent.
- The legislature must be taken to have intended to relieve bicycle riders of the duty to state
their names. To require the riders to do so would be tantamount to amending the Motor
Vehicle Act.
- The criminal law is no place w/in which to introduce implied duties, unknown to statute and
common law, breach of which subjects a person to arrest and imprisonment.
- (Note Glanville article  if failure to give name and address was an obstruction…all statutes
making it an offence to refuse to give name and address in specific situations would have
been unnecessary).
Rule:
There is a duty to answer a police officer's questions as to your identity. This duty to answer
questions does not extend to questions which may be incriminating. [Violation of this duty =
conviction under S. 129 Criminal Code]
- [Note that this rule was later circumscribed to keep it onder control: Guthrie - this duty only
exists where the officer had evidence that the person committed an offence. Laven - failure
to hand over radar gun doesn't violate duty b/c would be incriminating/admission of fault].
Commentary:
- SEE SECTION 129 OF THE CRMINAL CODE FOR THE CRIME.
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Sopinka's decision is not based on any principles; it is merely based on policy - this decision
is based on his feeling that the duty constitutes a minimal invasion on the rights of the citizen
while refusal to answer constitutes a major obstruction to police. Decision is supported by
the public interest
Two major problems with the majority's holding: (1) Is there anything in S. 129 that
suggests a person could be convicted based on a failure to fulfill a legal duty?; (2) Sopinka
pulls this "duty" out of thin air; it may be based on the notion of a "reciprocal duty" BUT
Dixon states clearly that there must be either a statutory duty or a common law duty.
Rice v. Connelly, a leading case in Britain, held that a person has a right to remain silent
when Qs are put to him by a police officer. Sopinka distinguishes Rice on the basis that the
peace officer in that case did not see the person in the act of committing the offence. [This
is pretty crazy. Dixon says Rice v. Connelly articulates a fundamental common law
principle].
CASE: R. v. Thornton
R v. Thornton, [1991] Ont. C.A., page 282
Facts:
- Accused donated blood to the Red Cross when he KNEW he was infected with HIV.
- The Red Cross screening detected the blood and he was charged with committing a common
nuisance contrary to s. 180 of the Criminal Code
- S. 180 provides common nuisance committed when one does an unlawful act or fails to
discharge a legal duty and thereby endangers the lives , safety, or health of the public.
- [Trial judge convicted on basis of duty in s. 216  by donating blood, the accused was
involved in a medical procedure]
Issue:
Can a legal duty within the meaning of S. 180(2) be one which arises at common law, or must it
be one found in a statute?
Held:
Yes. Appeal dismissed.
Ratio:
- Unlawful act = conduct specifically proscribed by legislation (criminal code or other statute).
There is no unlawful act which could be the basis for the common nuisance (Code doesn't
make it an offence to donate contaminated blood). Thus, must find LEGAL DUTY.
- "Duty imposed by law" in S. 219 (criminal negligence) has been interpreted as either a duty
imposed by statute or a duty arising at common law. [court cites Coyne and Popen in support
of this conclusion - but these cases create VERY SPECIFIC DUTIES - nothing as sweeping
as what he proposes later!]
- "Legal duty" has the same meaning as "duty imposed by law". Thus, the duty referred to in
s. 180(2) is a duty which is imposed by statute or which arises at common law.
Is there a duty at KL which would prohibit donation of blood known to be HIV contaminated?
- There is the fundamental duty articulated in Donoghue v. Stevenson - neighbour principle.
- The common law duty to refrain from conduct which it is reasonably foreseeable could cause
serious harm to other persons is a "legal duty" within the meaning of that term in s. 180(2)
[SH: note "serious harm" and limits to the words "legal duty"].
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Donating blood which one knows to be HIV-contaminated to an organization whose purpose
is to give blood to others, clearly constitutes a breach of this common law duty.
The appellant had personal knowledge that he should not donate his blood, that it was
possible for it to get through the screening, and that it could cause serious damage to the life
and health of members of the public. He CLEARLY HAD MENS REA.
Rule:
The common law duty to refrain from conduct which it is reasonably foreseeable could cause
serious harm to other persons is a "legal duty" w/in the meaning of that term in S. 180(2). [and
elsewhere in the code?]
Note that the case went to S.C.C. and it decided that the appellant breached the duty imposed by
Section 216 [Sklar - must have based it on the words "any other lawful act…"]. The court
unfortunately DID NOT address the issue of whether a criminal omission can be based on a
common-law duty (in apparent violation of s. 9(a) of the Code).
Commentary on Thornton:
- S. 180 Criminal code - COMMON NUISANCE  Elements to keep in mind
- 180(1) has two alternative requirements - endanger life, injure - in this case, no one had to
be infected with HIV in order for him to be charged. Endanger life = at the time of the
conduct in Q, was there an endangerment?
- Must endanger the life of the PUBLIC - cannot be just one person (or even three)
- What if someone was infected with HIV and died? Common nuisance would be unlawful
act and Thornton could be convicted of murder.
- The line between acts and omissions: conduct in Thornton could be characterized as act
(donation of contaminated blood) or omission (failure to inform Red Cross that he has HIV).
BUT…much easier to convict if characterize as omission b/c an act is only unlawful if a
statute says so - no statute prohibits the donation of contaminated blood.
CHARACTERIZE AS OMMISSION = FLEXIBILITY B/C CAN PULL DUTIES FROM
COMMON LAW.
What is problematic about this case?
- Creation of broad duty = uncertainty. Court justifies creating common law duty using
Coyne and Poppim - but the KL duties spelled out in those cases were VERY SPECIFIC!
(embrace very specific types of conduct). The duty articulated by the C.A. in Thornton is
VERY BROAD - almost impossible to determine what conduct it might embrace PROBLEM OF UNCERTAINTY.
- Using tort principles to solve criminal case. The duty articulated has a source (unlike in
Moore) BUT the source is tort. Tort law is about compensating for harm. Criminal law
sends people to jail. Seems problematic to use compensatory principles when liberty is at
stake.
- Was S. 9(a) violated by the reasoning of the court?
- YES: articulated duty is so broad as to make a bunch of new offences.
- NO: When S. 180 was enacted, it was enacted against the background of the common law
(which included D v. S). The court is just using the common law to "illuminate" (as in
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Jobidon), to "give meaning" to "legal duty" in S. 180. (Recall the debate btwn Gonthier and
Sopinka in Jobidon)
SKLAR: It's really borderline. Not clear whether court is illuminating or making new
crimes.
Three Courts, Three Approaches - Which is preferable? Which best carries out the policy under
S. 180?
- Trial - duty under S. 216 - accused was involved in medical procedure
- C.A. - duty arises from KL (D v. S)
- S.C.C. - duty under S. 216 - perhaps the words "any other lawful act"  Is this just as broad
as the C.A. holding?
The C.A. decision in Thornton is not GOOD LAW but it is definitely AVAILABLE LAW b/c it
has never been disapproved or overturned.
CASE: R v. Browne
R. v. Browne, [1997] Ont. C.A., page 286 - def'n of undertaking in S. 217
Facts:
- Accused and deceased were drug dealers. Deceased swallowed some crack cocaine to avoid
detection by police.
- She tried to vomit it up and couldn't.
- Later that night, accused found her shaking and sweating. He said "I'm going to take you to
the hospital".
- He called a cab which took ten minutes to arrive and 15 minutes to get to the hospital. She
was dead on arrival.
- Accused was charged with violating s. 219 (causing death by criminal negligence) which can
be based on a "duty imposed by law"
Issue:
Did accused breach a "duty imposed by law"?
Held:
Yes.
Ratio:
- Trial judge concluded that the statement "I'm going to take you to the hospital" was an
"undertaking" within the meaning of s. 217 of the Criminal Code. That undertaking required
taking her to the hospital immediately. Using a taxi instead of calling 911 showed a "wanton
and reckless disregard" for her life (contrary to s. 219).
-
-
S. 217 requires that there be an "undertaking" in order to find a legal duty. The nature of the
relationship or context is not relevant to determine whether there was an undertaking.
What constitutes an undertaking? Def'n of undertaking ranges continuum from assertion to
promise. BUT…def'n of undertaking must be interpreted in the context of the punishment
(in this case, conviction for criminal negligence causing death carries max penalty of life in
jail). [SH: does this limit her def'n to crimes w/ serious penalties?]
Mere expression of words indicating a willingness to do an act doesn't trigger the duty.
There must be something in the nature of a commitment, generally though not necessarily
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upon which reliance can reasonably be said to have been placed. The undertaking must have
been clearly made and with binding intent. Nothing short of a binding commitment can give
rise to the legal duty in s. 217.
- In this case, there was not undertaking of a binding nature.
- [Second issue  causation (must be criminal negligence CAUSING death): even if his
words were interpreted as an undertaking and thus that he had a responsibility to call 911 
no evidence that a 911 call would have resulted in earlier arrival at hospital OR that earlier
arrival would have saved her life] - note this is factual causation issue.
Rule:
Def'n of "undertaking" in S. 217 (as it applies to criminal negligence causing death): Mere
expression of words indicating a willingness to do an act doesn't trigger the duty. There must be
something in the nature of a commitment, generally though not necessarily, upon which reliance
can reasonably be said to have been placed. The undertaking must have been clearly made and
with binding intent. Nothing short of a binding commitment can give rise to the legal duty in s.
217.
Commentary:
- Is judge's def'n of "undertaking" limited to manslaughter? Judge in this case justifies a
strict interp of "undertaking" based on gravity of punishment. (possibility of life
imprisonment). SO…Is judge's def'n of "undertaking" limited to manslaughter? A court
might define "undertaking" less strictly in the context of another less serious offence.
CASE: People v. Beardsley
People v. Beardslery [1907], Michigan Court, p. 245 – man with morphine mistress
Facts:
- Beardsley invited a woman back to his place where he spent a lot of time drinking with her.
- The woman took some morphine. She basically overdosed and Beardsley was too drunk to take
sufficient care of her, so asked one of the guys there to do so.
- She ended up dying.
Issue:
Did Beardsley breach a legal duty to take care of her? Should he be charged with manslaughter?
Held:
S.C.: yes, charged with manslaughter.
C.A.: decision is overturned – no legal duty.
Ratio:
-Relational proximity: Ipsen Case refered to.
- Notes that the duty neglected must be a legal duty not a moral duty. The duty must be imposed
by law or contract, and the omission to perform the duty must be the immediate and direct
cause of the death.
- If a personal has a legal relation of protector and fails to take the reasonable and proper efforts
to rescue him he is at least guilty of manslaughter.
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- No legal duty existed, just because she was in the house, in addition, there seemed to be no
implication of care or control over her.
- [analogy: 2 men under like circumstances, one committed suicide, would the other male be
responsible? The fact that she is a woman should not change anything].
POINT: There must be a legal duty that exists for you to be guilty for this type of omission.
In addition, note that a moral duty is not necessarily a legal one.
G. Hughes, Criminal Omissions
Says that this judgment ignores any impulse of charity and compassion. “In civilized society a
man who finds himself with a helplessly ill person who has no other source of aid should be
under a duty to summon help, whether the person is his wife, his mistress, a prostitute or a Chief
Justice.”
How would Beardsley be decided under current Canadian Law?
- Maybe under s. 217 everyone who undertakes to do an act is under a legal duty to do it if an
omission to do the act is or may be dangerous to life.
- Maybe under S. 255(1)(c)(i) - person under his charge
- Maybe based on civil law duty - duty to take care of guests who you invite into your house.
C - Causation
Introductory Note
-
For some but not all offences – the actus reus requires the causing of certain consequences (a "prohibited
result") - BURDEN ON CROWN TO PROVE CAUSE BRD.
These include all homicides (s. 222), wilful damage to property (s. 430), arson (s. 433), and causing bodily
harm (s. 221) or death (s. 220) by criminal negligence.
Code contains no general principles concerning causation, but only a number of special rules concerning
homicide – see ss. 222 and 224-228.
THERE IS A CAUSATION ISSUE WHENEVER A STATUTE REQUIRES THAT AN EVENT BE
CAUSED
Proximate and Remote Cause
- Every event has a SET of antecedents. The TRUE cause is the whole set of antecedents taken together.
- BUT…when a cause is to be investigated for any practical purpose  single out the antecedent that is w/in the
scope of that purpose  this is the CAUSE  the other antecedents in the set are CONDITIONS.
- Which antecedent we single out depends on the purpose – e.g. man drowns – doctor might say that cause of
death was suffocation; comparative anatomist might say that cause was lack of gills. From every point of view
from which we look at the facts, a new cause appears.
- Sklar: there can be, for any event, a whole bunch of contributing causes. There are many adjectives used for
the Q of causation (immediate, direct, etc.). Michael case is a good example of what this article is talking about
- there are a bunch of contributing causes (Mrs. Stevens leaving the house; elder daughter went away for a few
minutes; small child gave baby the bottle of laudanum) in this case BUT the legal (or "efficient") case is the
mother giving the poison to the babysitter. Even the druggist who supplied the poison could be a contributing
cause. If we change the person who is being prosecuted, the "legal" or "efficient" cause may change. (E.G.
Mrs. Stevens being tried for criminal negligence). "Remote" cause is another way to label a "contributing"
cause.
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Overview
CAUSATION - require factual and legal causation (Smithers); Crown must prove both BRD
(Nette?)
Step 1: Factual Causation
-
See def'n in Nette: inquiry about how the victim came to his or her death in a medical, mechanical or physical
sense.
-
BUT-FOR the actions of the accused, would the prohibited consequence have occurred?
Yes/Reasonable Doubt  automatic acquittal. NO (brd)  Move to step 2.
- The question is a matter of EVIDENCE - expert medical evidence and eye-witness evidence.
- Look at temporal connection (did prohibited consequence follow right after act or was there a
gap?), scientific possibility of link, other possible (not merely contributing) causes (Smithers
- did stress/fear lead to vomiting?) (Cuerrier - did death-causing HIV come from other
source such as drugs or another partner?)
- ALSO, look at statutory causation [e.g. 222(5)(c) or (d)] - may be an issue
Step 2: Legal Causation
- If the cause is a contributing cause - is its contribution significant enough? (Smithers,
Harbottle, Nette)
- Even if the cause was sufficiently contributory, was there an intervening cause such as
negligent medical treatment that might break the chain of causation? (s. 225, Smith)
- Was there an innocent or guilty agent? (Michael)
- Thin Skull Rule (Blaue, Smithers)
- THE UNDERLYING Q: Is it fair to hold this person responsible for the outcome? (This is
why legal causation is an issue in the first place). Courts don't use this language but it is
behind talk of reasonableness, foreseeability, extent of contribution, etc.
The Law
Criminal Code: (Statutory Causation Rules)
S. 222(5). A person commits culpable homicide when he causes the death of a human being,
[c] by causing that human being, by threats or fear of violence or by deception, to do anything
that causes his death
[d] by wilfully frightening that human being, in the case of a child or sick person.
DEATH THAT MIGHT HAVE BEEN PREVENTED
S. 224. Where a person, by an act or omission, does any thing that results in the death of a
human being, he causes the death of that human being notwithstanding that death from that cause
might have been prevented by resorting to proper means.
DEATH FROM TREATMENT OF INJURY
S. 225. Where a person causes to a human being a bodily injury that is of itself of a dangerous
nature and from which death results, he causes the death of that human being notwithstanding
that the immediate cause of death is proper or improper treatment that is applied in good faith.
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ACCELERATION OF DEATH
S. 226. Where a person causes to a human being a bodily injury that results in death, he causes
the death of that human being notwithstanding that effect of the bodily injury is only to acelerate
his death from a disease or disorder arising from some other cause.
YEAR AND A DAY RULE
S. 227 (Repealed). Year and a day rule.
Legal Causation Principles
CASE: R v. Michael
R v. Michael, [1840] CB page 308
Facts:
- Prisoner was single mother of a 9 month old baby.
- The baby was taken care of by a woman named Stevens
- Prisoner gave Stevens a bottle of poison and told her that it was medicine to be given to the baby (one
teaspoonful every night). Mrs. Stevens didn’t give it to the baby; she left the bottle on the mantel-piece.
- One day, while Mrs. Stevens was out, her 5-year old child gave the baby about half the contents of the bottle.
- The baby died w/in a few hours.
Issue:
Was the prisoner’s action the cause of the baby’s death?
Held:
Yes. Murder conviction upheld.
Ratio:
- If the prisoner delivered the poison to Mrs. Stevens with the intention that it should be administered to the child
and kill it, and the quantity directed to be administered was sufficient to cause death, and while the prisoner’s
original intention continued, the poison was administered by an unconscious agent, the death of the child would
sustain the charge of murder against the prisoner.
- Administering of the poison by the child of Mrs. Stevens, was, under the circumstances of the case, as much, in
point of law, an administering by the prisoner as if the prisoner had actually administered it with her own hand.
Rule:
Chain of causation is not broken by the intervening actions of an innocent agent even though these actions might be
the immediate cause of the prohibited result.
Commentary:
-
Editors Q: Would it have made any difference if the poison had been administered by a
conscious agent who acted for his own purposes?
SKLAR: Probably. Where the agent is guilty, the causation issue might be decided
differently (though the original wrongdoer would still be guilty of something - attempted
murder perhaps). Illustrated with example of party host slipping arsenic into a person's glass.
LEGAL CAUSATION ALL COMES DOWN TO A QUESTION OF
RESPONSIBILITY/FAIRNESS (Glanville Williams makes this point). Ask: is it fair to hold
this person responsible for what has happened?
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CASE: Smithers v. R.
Smithers v. R, [1978] S.C.C., CB page 310
Facts:
- Accused and deceased were leading players on opposing rival hockey teams
- The accused was subjected to racial insults by the deceased and other members of the team.
- Both players were ejected from the game. The accused repeatedly threatened the accused.
- Following the game, the accused punched the deceased. Seconds later, he delivered a hard, fast kick to the
deceased’s stomach area. Within five minutes, the deceased had ceased breathing. He was dead upon arrival at
hospital.
- The death was due to the aspiration of foreign materials present from vomiting. Deceased had faulty epiglottis
which failed to prevent vomit from getting into lungs.
- Appellant is appealing on two grounds: (1) trial judge did not make it clear to the jury that the act of assault
must cause the death; (2) the jury was never instructed that as a matter of law one of the issues on which they
had to be satisfied beyond a reasonable doubt was that the kick caused the vomiting.
Issue:
Did the kick cause vomiting which caused the death?
Held:
Conviction upheld. Appeal dismissed.
Ratio:
- Must distinguish between causation as a Q of fact and causation as a question of law. The answer to the factual
Q has nothing to do with intention, foresight or risk.
- The issue of causation is for the jury and not the experts. In the search for truth, the jury was entitled to
consider all of the evidence, expert and lay (i.e. doctors and eye-witnesses) and accept or reject any part of it.
[Trier of fact DOES NOT have to consider the medical evidence!]
Was there evidence on the basis of which the jury was entitled to find that it had been established BRD that
the kick caused the death? - issue of degree/extent of contributing cause
- Crown need only establish that the kick was at least a contributing cause of death, outside the de minimis range.
- It is immaterial that the death was in part caused by the malfunctioning epiglottis to which malfunction the
appellant may or may not have contributed. No Q of remoteness or of incorrect treatment arises in this case.
(see comment page320)
- The Crown was under no burden of proving intention to cause death or injury (just intention to deliver the kick).
- In this case, there was substantial evidence, both lay and expert, to show that kick was a contributing cause of
death outside the de minimis range
Was there evidence from which the jury was entitled to find that it had been established BRD that the kick
caused both the vomiting and the aspiration? - thin skull rule
- Crown does not have burden of proving that the kick caused both the vomiting and the aggravated condition of
aspiration.
- So long as there is a relationship between the kick and the vomiting, the contributing condition of a
malfunctioning epiglottis would not prevent the manslaughter conviction. The fact that death may have been
unexpected and the physical reactions of the victim does not relieve the appellant.
- It is a well-recognized principle that one who assaults another must take his victim as he finds him.
Rule:
Sufficient causation exists (for manslaughter) where the actions of the accused were a contributing cause of death,
outside the de minimis range or (in other words) "more than a trivial cause". Also, thin skull rule  must take
victim as he finds him. BUT…chain of causation MAY be broken where there is a question of incorrect treatment
or remoteness. [note that the trial judge in Nette said "more than insignificant" = "more than trivial"]
Commentary:
-
Lack of Causation DOES NOT MEAN that accused will not be guilty of SOMETHING - in this case, even if no
causal link btwn kick and death, Smithers would still be guilty of assault.
Why did the defense emphasize the taunting and fear and stress induced by that?  on issue of factual
causation  2 possibilities: (1) wanted to show that it was the stress and emotional state that caused the
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vomiting (not the kick - or at least RD whether it was the kick); (2) wanted to take advantage of 222(5)(c)
[which could only be used if the vomiting could be characterized as something that Cobby "did"] - if show
either of these things, RD that Smithers is the guilty party. Cobby was taunted and ridiculed by several players
AND had self-induced stress and rage.
Could Smithers have been guilty of manslaughter based on S. 265(b) - (attempt by act or gesture to apply
force)? NO. S. 222(5)(d) provides that fear causing death is only = murder when the victim is a small child or
sick person. In light of this ambiguity, use rule of strict construction  thus no manslaughter can be found on
basis of S. 265(b) - Smithers sort of stands for this.
Remoteness and Incorrect Treatment
- Editors: though Smithers is a wide-reaching ruling on causation, it expressly leaves open Qs of “remoteness or
of incorrect treatment”. What happens when accused was a contributing cause outside the de minimis range but
where the consequence seems more attributable to a later intervening cause?
- Sklar: decision suggests that remoteness or incorrect treatment COULD break the chain of causation on the
facts of Smithers (i.e. where thin skull rule is applied).
- Example: same facts as Smithers BUT Cobby didn't die at scene; taken to hospital and administered
treatment for shock. Cobby died. Medical evidence showed that had doctor directly diagnosed the
problem, would have been a simple treatment to save his life.
- Could use the "no question of incorrect treatment or remoteness" line to acquit Smithers
- BUT…wrt INCORRECT TREATMENT, did Dickson ignore S. 225? (causation is not broken if immediate
cause of death is proper or improper treatment applied in good faith)
- Possible that (1) kick in the stomach is not "of itself of a dangerous nature"; or (2) incorrect treatment might
break the chain of causation on the exact facts of Smithers. [this is weak…clearly would have to be a
harshness/fairness/responsibility argument]
- [SH: If S. 225 is a codification of Smith as Sklar suggests  then perhaps S. 225 doesn't apply where thin
skull rule is applied.]
Is the thin skull rule harsh?
- Criminal law is supposed to be predictable and certain. Thin-skull rule leads to much uncertainty - it seems
unjust to convict a guy of manslaughter when he kicked a guy in the stomach. The fact that the guy died
doesn’t increase the moral culpability of the accused (a RETRIBUTIVE ARGUMENT).
- But…DETERRENCE ARGUMENT - Recall Jobidon - social inutility of fighting. In order to deter fighting,
make people aware that there could be very serious consequences if the opponent has a "thin skull". Counter to
this: the accused would be convicted of assault anyway. Doesn't possibility of assault conviction deter
fighting?
CASE: R. v. Blaue
R. v. Blaue, [1975] C.A. (Britain), page 317
Facts:
- Dft is appealing a conviction of manslaughter (w/ diminished responsibility)
- Victim was 18-year old Jehovah’s Witness. Dft attacked victim with knife and ran away. Victim was taken to
the hospital; she needed surgery and a blood transfusion and was told that if she did not have the transfusion she
would die. She refused the blood transfusion and died the next day.
- The prosecution admitted at trial that had she had a blood transfusion when advised to she would not have died.
(i.e. that refusal to have a transfusion was a cause of death)
- Dft argued that refusal to have a transfusion had broken the chain of causation btwn the stabbing and her death.
He also argued that judge instructed jury that causation had been proved, when he should have left the issue
open for the jury to decide.
Issue:
[1] Is there a casual link btwn the stabbing and the death?
[2] Did the judge mis-instruct the jury?
Held:
[1] YES. [2] NO. Appeal dismissed.
Ratio:
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[1]:
- Common law of the 1800s: He who inflicted an injury which resulted in death could not excuse himself by
pleading that his victim could have avoided death by taking greater care of himself. A man who did a wrongful
act was deemed morally responsible for the natural and probable consequences of that act. Though the rigour of
the law relating to homicide has been eased in favour of the accused, this has come about through the dvlpt of
the concept of intent, not by reason of a different view of causation.
- A chain of causation cannot be broken on the basis that a certain decision (e.g. the refusal to have a blood
transfusion) was “unreasonable”. It is difficult to make sense of the notion of “reasonableness” in the context of
religious beliefs.
- Those who use violence on other people must take their victims as they find them. This means the whole man,
not just the physical man.
- In this case, the question is what caused her death. The answer is the stab wound. The fact that the victim
refused to stop this death from coming didn’t break the causal connection, even if some would regard such a
refusal as “unreasonable”
- In tort law, wrongdoer is entitled to expect victim to mitigate his damages. Criminal law is concerned with
maintenance of law and order and the protection of the public. A principle of tortious liability may not be
appropriate for the criminal law.
RULE:
Thin skull rule applies to physical AND non-physical conditions (e.g. religious beliefs). Those who use violence on
other people must take their victims as they find them. This means the whole man, not just the physical man.
Commentary:
-
Obvious application of the thin-skull rule. NO Q of incorrect treatment (same as in
Smithers).
Would the same situation be decided this way in Canada? Possibly not. In Smithers,
Dickson refers to the Blaue as an "extreme example" of the application of the thin skull rule.
One could make the argument that since it is an "extreme example", we should not follow it.
"Extreme" has negative connotations.
CASE: R. v. Harbottle
R. v. Harbottle, [1993] S.C.C., CB page 324 - test of causation for aggravated offence of murder one
Facts:
- Accused and his companion forcibly confined a woman; accused watched while companion sexually abused
her.
- Accused and companion discussed ways to kill her. Accused held her legs while companion strangled her to
death.
- Convicted of first-degree murder at trial. Conviction upheld at C.A.
Issue:
Was accused’s participation such that he could be found guilty of 1 st degree murder pursuant to S. 231(5)? (at time
of case was S. 214(5)).
Held:
Trial: convicted
C.A. conviction upheld
S.C.C.: Appeal dismissed. Conviction upheld.
Ratio:
- First degree murder is an aggravated form of murder and not a distinct substantive offence.
- Gravity of crime and severity of sentence indicate that a substantial and high degree of blameworthiness must
be established to convict someone of first-degree murder.
- Given the gravity of crime and severity of sentence, the test of causation for first degree murder must be strict
(causation as tool to ensure substantial and high degree of blameworthiness)  “Substantial Causation test”
- “Substantial causation test” for s. 231(5): actions of accused must form an essential, substantial and integral
part of the killing of the victim. Test requires that accused play a very active role – usually a physical role – in
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the killing. Usually, act of accused must physically result in death BUT there will be instances (such as this
case) where accused could well be the substantial cause of the death w/o physically causing it.
Therefore, accused may be found guilty of first-degree murder pursuant to s. 231(5) if the Crown has established
BRD that:
- [1] accused was guilty of underlying crime of domination
- [2] accused was guilty of the murder of the victim
- [3] accused participated in the murder in such a manner that he was a substantial cause of death
- [4] was no intervening act which resulted in accused no longer being substantially connected to death
- [5] crimes of domination and murder were part of same transaction (“while committing”)
Rule:
Degree/extent of contributing cause required for first degree murder is determined according to the "Substantial
Causation Test": actions of accused must form an essential, substantial and integral part of the killing of the
victim. Usually, but not always, accused must play active physical role. (Physical role not always required)
[note that even if contribution is substantial, causation may be broken if there was an intervening act]
Commentary:
- Note that this test is much stricter than the test in Smithers  demonstrates the distinctions in
the degree of causation required for the different homicide offences.
- While rule requires that accused play essential, substantial and integral part in the killing, he
or she need not make a physical contribution to the death (as in this case). However, there
must be mens rea for murder, i.e. in this case Harbottle had to have himself known that his
companion was going to kill the woman. If he thought that he was going to rape her, there
would be NO murder, no matter how substantially his actions contributed to her death.
CASE: R. v. Nette
R. v. Nette, [2001] S.C.C. (from E-reserves)
Facts:
- Accused and companion entered the house of a 95 year-old woman, tied her up on her bed and stole her money.
- After they left, the woman fell off her bed. Her dentures became loose and the clothing tied around her
tightened.
- She died of asphyxiation 24-48 hours later.
- Accused was charged with first degree murder and convicted of second degree murder.
- At trial, judge charged jury that standard of causation for 2 nd dgr murder and manslaughter was one of
contributing to the causes of death in a manner that was more than merely trivial or insignificant, but that
conviction for first degree murder required Crown to establish that accused's actions were a substantial and
integral cause of death.
Issue:
Did the trial judge err in his instructions on causation?
Held:
No. Appeal dismissed.
Ratio:
- Causation has a factual and legal component.
- Factual causation: inquiry about how the victim came to his or her death in a medical, mechanical or physical
sense.
- Legal causation: concerned with whether person should be held responsible in law for the death; informed by
legal considerations such as the wording of the section and principles of interpretation. Legal considerations
reflect principles of criminal responsibility such as the principle that the morally innocent should not be
punished [FAIRNESS/RESPONSIBILITY]
- Manslaughter: applicable standard of causation is a contributing cause outside the de minimis range or "more
than a trivial cause". (Smithers)
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First degree murder: standard  accused must be a "substantial and integral part of the killing"; stresses
increased degree of participation - higher std refers to legal causation and reflects the increased degree of moral
culpability that is required.
- "Substantial cause" should not be used to describe the requisite dgr of causation for all homicide offences.
There is one standard of causation for all homicide offences.
- Terminology that should be used when charging jury wrt relevant standard of causation: remove Latin
expressions and formulations that are negative (i.e. "not a trivial cause").
- This case: There was no evidence that the accused would have died without the actions of the accused and his
accomplice. Advising the jury of a different std of causation would not have altered the result.
[Concurrence in the result]:
- Removing the double negative formulation from the classic test would effect a radical change in the law and
raise the threshold of causation for culpable homicide for no good reason. (i.e. changing from "a contributing
cause that is not trivial or insignificant" to "a significant contributing cause"
-
Rule:
Degree/Extent of contributing case required for second degree murder is the same as that for manslaughter. The test
should not be articulated in Latin or double negatives ("not insignificant", "outside de minimis range", "not trivial"
or "more than trivial"). The contributing cause must be a significant contributing cause. The judge however is not
bound to use this language to charge the jury.
Commentary:
- See that the court talks of fairness and morality. Most of the tests don't use the language of
"fairness" but theorists rationalize the tests of legal causation under the rubric of causation.
The underlying question is: Can the result fairly be imputed to the defendant? - Judge not bound to charge "significant contributing cause" - this is just the preferable term.
BUT…this could cause a lot of problems. The test should be the same for all manslaughter
trials.
A stricter test for manslaughter?
- Test for manslaughter is NOW "significant". This is arguably stricter than "more than
trivial", "not insignificant" or "outside the de minimis range" and will make it more difficult
to get a manslaughter conviction.
- Many theorists are happy about this b/c it is a counter-balance to the fact that manslaughter
requires no subjective intent - it requires only objective foreseeability of bodily harm.
Unanticipated outcome in subsequent cases?
- Could argue that "significant" is stricter than "substantial" - this could result in unanticipated
outcomes in future cases - the court in Nette clearly wanted the standard for murder 1 to be
higher than the one for murder 2 and manslaughter! [watch for other cases as they come
along]
Would Shanks have been decided differently under rule in Nette?
- Contributing Cause: push and shove. Result: heart attack and death. Other contributing
causes?: fear, stress?
- Push and shove definitely "more than trivial" but likely not "significant".
CASE: R. v. Smith
R v. Smith, [1959] English C.A., page 333
Facts:
- Aplt was a soldier sharing barracks with some other soldiers
- One night, a fight broke out in the barracks. As a result of the fight, 3 soldiers were stabbed with a bayonet; 1
of the 3 died. The appellant was convicted of his murder.
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-
Deceased received two bayonet wounds, one in the arm and one in the back
His fellow soldiers tried to carry him to get help and dropped him twice
Upon arrival at the hospital, he was given inappropriate and harmful treatment. If he had been given the correct
treatment, his chances of recovery were as high as 75%.
Issue:
Was the original wound inflicted by the appellant the cause of the deceased’s death?
Held:
YES. Conviction upheld.
Ratio:
- If at the time of death the original wound is still an operating cause and a substantial cause, then the death can
properly be said to be the result of the wound, albeit that some other cause of death is also operating.
- Only if it can be said that the original wound is merely the setting in which another cause operates can it be said
that the death does not result from the wound. That is, only if the second cause is so overwhelming as to make
the original wound merely part of the history can it be said that the death does not flow from the wound.
- In this case, no reasonable jury or Court could, properly directed, possibly come to any other conclusion than
that the death resulted from the original wound.
Rule:
An intervening cause that is reasonably foreseeable will not break the chain of causation. Bad medical treatment is
not out of the ordinary (Canada  see s. 225 for bad medical treatment)
Ask - at the time of death, was the original harm cased "an operating and substantial cause"? Is the second cause "so
overwhelming" as to make the original wound merely part of the history?
Commentary:
- Recall Smithers - Dickson said an intervening cause might have changed the outcome - such
causes "stretch out the chain"
- S. 225 would have been used to resolve this case in Canada  see the language "from which
death results"  this addresses the issue of remoteness - e.g. Jordan case - guy is in hospital
b/c of wound inflicted (= factual causation); when almost better, receives abnormal treatment
which kills him (=absence of legal causation - original wound merely the setting).
- Another example of case where chain of causation broken - guy in hospital b/c of wound dies
from scarlet fever contracted there. Court held that the scarlet fever overwhelmed the
original cause thus no legal causation.
- Python case - reasonably foreseeable that python would come and bite = chain of causation
not broken.
R. v. Shanks
PART V - THE MENS REA (MENTAL STATE) REQUIREMENT FOR
CRIM LIABILITY
A - Introduction
Notes, page 345-349
J.F. Stephen (1883)
- Actus non facit reum nisi mens sit rea  fundamental maxim of the whole criminal law - suggests fallacies
which it doesn't precisely state:
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-
-
[1] Doesn't mean that "there is no legal guilt without moral guilt" - always a possibility of conflict btwn
law and morals
- [2] There is no one state of mind called "mens rea"  different crimes have different states of mind.
Truth about the maxim: the def'n of most crimes contains not only an outward and visible element but a mental
element which varies according to the different nature of different crimes. Expression itself is given meaning
by the def'n of a particular crime. Itself it has no meaning.
G. Muller, (1957-1958)
- False to conclude that there is no singular or unifying concept of mens rea.
- All crimes have a different mens rea BUT the concept of mens rea is a unifying concept of various possible
frames of mind.
- Mens rea: not the mere psychic relation btwn. the act and actor; the ethico-legal negative value of the deed; i.e.
the community value of which the perpetrator at the time of the deed knows the existence and that it will
materialize when the deed becomes known.
Williams, (1961)
- Any theory of criminal punishment leads to a requirement of some kinds of mens rea (deterrent theory,
retributive theory, incapacitation, reformative aim)
- But, the requirement of mens rea as it is in law does not harmonise perfectly with any of these theories.
- Legal mens rea  refers to the mental element necessary for the crime:
- Intention to do the immediate act or bring about the consequence OR
- Recklessness as to such act or consequence
- Some crimes do not require a particular state of mind but require NEGLIGENCE
- Regard these crimes as not requiring mens rea though since negligence is a kind of legal fault, these crimes
are akin to crimes requiring mens rea.
- Crimes of strict or vicarious responsibility - no mens rea or negligence required.
Gordon (1978)
- Mens rea is the basic common law principle. Serves as a reminder of the moral nature of the criminal law.
- Presumption that criminal guilt involves moral blame.
- Statutory offences: consist of multiple elements; mens rea must be considered wrt each element separately.
Often said that a particular offence does require mens rea and that the requirement is satisfied by "an intention
to do the act prohibited". What is meant  there is a mens rea requirement wrt what is taken to be the central
element of the offence.
- Not enough for offender to act intentionally (e.g. sell stockings); must have intention wrt the particular element
which rendered the act illegal (sell silk stockings)
People v. Gorshen, 1959
- Free will vs. determinism: criminal law would not exist if not for the posit that each normal person intends to
do the act which he does do and that such intention is based upon the exercise of free will. Free will is at basis
of criminal law.
- BUT…we don't have a sufficient basis of scientific knowledge to verify that people do act from standpoint of
free will.
B - The Basic Subjective/Objective Distinction
The Law
Theroux: Test for M/R is subjective
Mulligan: Can prove intention by drawing inferences from actions, utterances, testimony and other circumstances
(anything relevant to the state of mind)
Hundal: Subjective test - vital that the accused actually intended, knew or foresaw the consequence and/or
circumstance. Crown must prove BRD that accused "must have thought" in the penalized way.
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Ortt: Reasonable to infer that a man intends or is aware of the natural consequences of his act. Draw inference as a
matter of common sense. It is an inference and NOT a presumption.
The Cases
Editors Note:
- Canada - constitutional requirement of FAULT for any offence threatening liberty interest (Motor Vehicle
Reference)
- Big Q is: what does the requirement of fault entail?
- Central issue  Is the approach to fault subjective or objective?
-
S.C.C. accepts that there must be clear distinction btwn subjective and objective standard.
Subjective standard: whether the accused was actually aware of the risk; all individual factors taken into acct
Objective standard: whether accused failed to measure up to external standard of reasonable person,
irrespective of his own awareness
R. v Creighton makes objective std TOUGH: no personal factors (age, race, gender, poverty, experience) can
be taken into acct except where they relate to incapacity.
R. v Hundal, [1993] S.C.C. page 350
- Court determining fault requirement for crime of dangerous driving.
Truly Subjective test:
- Determine what was actually in mind of particular accused at time offence committed.
- Vital that the accused, given his personality, situation, circumstances actually intended, knew or foresaw the
consequence and/or circumstance.
- In order to ascertain what was on his mind  draw reasonable inferences from accused's actions or words at
time of his act or in the witness box. Crown must prove BRD that accused "must have thought" in the penalized
way.
Objective test  test for negligence
- Requires a marked departure from the std of care of a reasonable person.
- Central Q  what the accused should have known
- Harshness of test can be mitigated by considering some personal factors.
Main distinction  one who was aware (pure subjective intent) and one who should have taken care
irrespective of awareness (pure objective intent)
RULE:
- Subjective test - vital that the accused actually intended, knew or foresaw the consequence and/or circumstance.
- To determine state of mind, can draw inferences from accused's actions, words or testimony. Crown must
prove BRD that accused "must have thought" in the penalized way.
- Objective vs. Subjective: one who was aware VS one who should have taken care irrespective of awareness
-
R. v. Théroux, [1993] S.C.C. page 351
-
-
Court discussing fault requirement for crime of fraud.
Mental elements of a crime vs. mens rea: mens rea doesn't encompass all mental elements of a crime - actus
reus has its own mental element (i.e. that act must be voluntary)
Mens rea: refers to guilty mind, wrongful intention of the accused. Function - prevent conviction of morally
innocent. Typically concerned with consequences of the prohibited act. (e.g. intention that act will result in
consequence OR reckless and willful blind persistence that one knows will result in the consequence)
Test for mens rea  Subjective. Exceptions to this  offences where actus reus is negligence or inadvertence,
offences of absolute liability.
Subjective test: whether the accused subjectively appreciated the consequences of the prohibited act at least as
a possibility.
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-
Applying the test: look to accused's intention and the facts as accused believed them to be
Two collateral points:
[1] Inquiry has nothing to do w/ the accused's systems of values - doesn't matter if he/she thought there was
nothing wrong with what he was doing
- [2] Crown can infer subjective awareness of consequences from the act itself. (don't actually have to go into
mind of accused)
RULE:
- The test for mens rea is SUBJECTIVE. It is typically concerned with the consequences of the prohibited act
(i.e. intention that act will result in the consequence OR reckless or wilfull blind persistence that one knows will
result in the consequence).
- The function of M/R is to prevent conviction of the morally innocent.
R. v. Mulligan, [1976] Ont. C.A. page 352
- Intention of accused is a FACT in issue
To prove existence of this fact:
- Consider his acts, utterances, and other circumstances - may infer intent from these
- Consider his testimony - jury doesn't have to believe it.
- Action is often the best evidence of purpose BUT actions are no more than EVIDENCE of intent. Thus it is
misleading to speak of a man being presumed always to intend the natural and probable consequences of his
acts. [speak instead of inferences]
- A man's intention is for him a subjective state. But the state of another man's mind is an objective fact
- Test is always a subjective test (what did THE ACCUSED know, foresee, expect, intend) BUT this doesn't
mean that the accused's testimony as to intent is more credible than evidence of other matters.
RULE:
- Intention is a fact that must be proved by the Crown BRD (If accused raises reasonable doubt with his rebuttal =
jury might acquit him).
- Can prove intention by drawing inferences from actions, utterances, testimony and other circumstances
(anything relevant to the state of mind)
R v. Ortt, [1969] S.C.C. page 359
-
Appeal of murder conviction on ground that trial judge mischarged jury. Judge suggested that there was an
onus on the accused to prove his incapacity to have the specific intent necessary: "In our law a person is
presumed to have intended the natural consequences of his act"
- C.A. dismissed appeal on basis that charge made it clear that Crown had onus of proof on issue of intent. But
court noted:
- It is an error in law to tell a jury that it is a presumption of law that a person intends the natural consequences of
his acts. "Presumption" suggests onus on accused.
- Presumption vs. Inference: Presumption requires that certain conclusion MUST be drawn; Inference indicates
that a certain conclusion MAY be drawn.
- "As a man is usually able to foresee what are the natural consequences of his acts, it is, as a rule reasonable to
infer that he did foresee them and intend them."
- Judges should avoid using the word "presumption" when charging juries  jury should be told that it is a
reasonable inference that a man intends the natural consequences of his acts.
RULE:
As a man is usually able to foresee what are the natural consequences of his act, it is, as a rule reasonable to infer
that he did foresee them and intend them. It is incorrect to "presume" intent from the acts of the accused. (Sklar 
drawing an inference is a matter of common sense).
Sklar on Subjective/Objective Distinction and drawing inferences:
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Draw inference as a matter of common sense - the accused "must have known"; anyone in such a situation
would have been aware of the risk. Note: saying "he must have been aware" (subjective) is much different than
saying that "he must have been aware if he thought about it". (objective)
The more obvious a risk is (the higher a risk) - the obvious it is to infer that he was aware of it.
The technique of drawing inferences looks a bit objective but is not - Crown just must be careful not to use
objective language (e.g. he ought to have known). Judge cannot charge jury in such a way that opens it to jury
to consider the std of the reasonable person.
Accused can REBUT THE INFERENCES - i.e. introduce reasonable doubt
Examples Driver driving quickly down a crowded street. Inference - common sense tells us that driving down a crowded
street creates a risk that people will be harmed  Accused could rebut - "I wasn't aware b/c was distracted by
baseball game on radio".
Woolmington - cannot get into his mind BUT his actions are evidence of intent (he gave aunt a hard stare; he
left; where bullet entered the head; the utterances; the act itself)
C - Mens Rea Offenses versus Public Welfare/Regulatory Offences
The Law
If statute is silent or ambiguous as to M/R requirement:
[1] Determine if public welfare offence OR true crime
- Categories of public welfare offences: Traffic infractions, highway regulations, sales of
impure foods, violations of liquor laws, public health (includes pollution), conservation,
labour statutes, safety (Sault Ste. Marie; Pierce Fisheries) - look at pre-amble.
- Comprehensive regulatory structure
- Provincial? (if provincial, cannot be a true crime)
[2] If public welfare offence  Presumption of strict liability (Sault Ste. Marie)
- Must show that NOT absolute liability (i.e. mere commission of A/R is sufficient)  cannot
be ab liability if possibility of imprisonment as punishment (Motor Vehicle Reference).
Language must be clear and explicit in order to exclude fault (Sault Ste. Marie)
- Must show that NOT M/R offence (no M/R words; may be M/R words in other part of the
statute but not here)
- Strict liability = DEFENSE OF DUE DILIGENCE (Sault Ste. Marie) 
- Took reasonable steps to avoid the the offence OR honest but mistaken belief in state of facts
which if true would render the act or omission innocent.
- Accused must prove this on BALANCE OF PROBABILITIES.
[3] If true crime  Presumption of full subjective M/R (Sault Ste. Marie)  NOTE (SH):
some crimes may be require only objective awareness ("objective mens rea" - an oxymoron)
- M/R = Crown must establish mental element  accused who committed the act did so
intentionally, recklessly or with wilfull blindness. Prove by inference or other evidence.
- Crown can displace M/R requirement in statute (explicitly)
The Cases
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Editor's note: consideration of law on fault will show  low level objective std for public
welfare offences; subjective approach still required for many crimes BUT for a significant
number of crimes there are now less demanding standards of fault.
-
Editor's note: Before pivotal decision in Sault Ste. Marie  offences that were not truly criminal - choice for
courts was btwn requiring Crown to est full subjective mens rea OR absolute liability (merely proof of act, no
requirement of fault)
CASE: Beaver v. R
Beaver v. R., [1957] S.C.C. page 360
Facts:
- Accused appealing convictions on counts of selling and possessing diacetylmorphine.
- Trial judge charged jury that if the accused had a package and sold it and that that package contained the drug,
accused was guilty; irrelevant whether he knew what the substance was or whether he honestly but mistakenly
believed it was a harmless substance.
Issue:
Is a person guilty of drug possession when he does not know that what he is possessing is a drug?
Held:
No. Appeal from conviction of possession allowed.
Ratio:
- Problem is one of construction of the Opium and Narcotic Drug Act, which prohibits the possession and sale of
any drug w/o a license. Punishment is mandatory imprisonment.
- Common law - mens rea is an essential element in commission of any criminal offence. Staute may exclude a
requirement of mens rea, though there is presumption that it requires it.
- General Rule (for mens rea?): the essential question is whether the belief entertained by the accused is an
honest one. The existence or non-existence of reasonable grounds for such belief is merely relevant evidence to
be weighed in determining this. (Subjective test?). Wrt drugs, in law there is no possession of the forbidden
substance without knowledge of the character of that substance.
- To ascertain whether mens rea is a requirement, must look at the language of the statute and its subject matter.
- Subject Matter: Public welfare statute - no mens rea requirement - but Act here in Q is not such a statute.
Court shows difference between health regulation (unsound meat) and this Act.
- Language: In order to exclude mens rea requirement, words of the statue must be clear and admit of no other
interpretation.
- Wrt this act, there is other support for the conclusion that Parliament did not intend to exclude a mens rea
requirement - the punishment (mandatory imprisonment). No other statutory provision which excludes mens
rea has a mandatory sentence.
[Dissent]:
- There is a presumption that mens rea is an ingredient to an offence (and that there is a defence flowing from an
honest belief as to the existence of a state of facts). This presumption may be overridden by reason of the
subject matter or language of the Act.
- Object of this Act is to prevent danger to public health and the social evils generated by drugs. Principle
underlying the Act is that possession of all drugs covered by it is unlawful. (Public Welfare Statute)
- Plain, literal and grammatical meaning of the words - absolute prohibition to be in possession of drugs
RULE:
There is a presumption for all criminal offences that they require mens rea. (Theroux  test for m/r is subjective).
This presumption can be displaced by the words of the statute or the subject matter with which it deals.
Opium and Narcotic Drug Act is not a public welfare statute.
M/R for drug trafficking/possession is KNOWLEDGE - there is no possession of the forbidden substance w/o
subjective knowledge of the character of that substance (Note Duong - knowledge doesn't include recklessness)
Commentary:
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Note: must prove that accused has subjective knowledge that he is possessing a drug existence or non-existence of reasonable grounds for such a belief is not sufficient to
convict…but it is relevant evidence to be weighed.
Silent Statutes - we get to this interpretation problem only when the statute is silent - statute
could have said KNOWLEDGE or INTENT…but it didn't; thus, we must interpret based on
the subject matter of statute.
Note majority's justification for interpreting it as M/R offence - serious penalty
(imprisonment). This shows that moral culpability and M/R go hand in hand. (M/R
ensures that only those who are morally culpable are convicted).
Why was conviction for selling upheld? (i.e. when conviction for trafficking was not).
STATUTE: "manufactures, sells, or makes any offer in respect of any drug, or any substance
represented or held out by such person to be a drug"  accused can be convicted if he
represents something as a drug (even if he knows or believes that it is not a drug). Rationale
for this  eases burden on the Crown  often drug is destroyed by trial; would be difficult
for Crown to prove BRD that what accused was selling was in fact a drug.
CASE: R. v. Pierce Fisheries
see p. 61 of the SUMMARY.
CASE: R. v. City of Sault Ste. Marie
R. v. City of Sault Ste. Marie, [1978] S.C.C., page 380
Facts:
- City entered into K with disposal co to dispose of all City refuse. The disposal co chose a site that bordered a
creek. The high mound of garbage deposited on the site sloped towards the creek and resulted in pollution of
the creek.
- City was charged under S. 32(1) of the Ontario Water Resources Act, which makes it an offence to discharge
any materials into the creek that might impair the water quality.
Issue:
Is the City guilty of an offence under S. 32(1)? Does s. 32(1) have a mens rea requirement?
Held:
No.
Ratio:
- There are true crimes and "public welfare" or regulatory crimes.
- True crimes - presumption that a person shouldn't be held liable for wrongfulness of act if that act is w/o mens
rea. Crown must establish mental element - accused who committed act did so intentionally or recklessly or
with willful blindness. (Mere negligence is excluded).
- Contrast to absolute liability - conviction on proof of actus reus.
Wrt public welfare offences, there are arguments against and in favour of absolute liability:
- In favour: (1) incentive for precautionary measures (protects public) - will result in higher std of care; (2)
admin inefficiency would result if courts had to deal with mental element - would be difficult for gov't to
enforce impt public welfare laws; (3) slight penalties = no stigma (or less) attached to conviction.
- Against: (1) violates fundamental principles of penal liability; (2) no evidence that higher std of care will
result; (3) stigma DOES attach; (4) admin argument has little force b/c evidence of due diligence is admissible
in sentencing.
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Unfortunate tendency to force choice btwn full mens rea and ab liability - many courts and commentators
favour a "middle position" or "halfway house" for public welfare offences.
- Dixon reviews authority form Australia, New Zealand and provincial Cs of A - many cases have allowed
defences of reasonable mistake of fact and due diligence.
- Dixon also referred to the Law Reform Commission, which recommended that negligence should be the min std
of liability in reg offences.
- Element of control is vital (page 389)
- Decision in Pierce Fisheries not inconsistent with the concept of a "halfway house" as it did not foreclose the
possibility of a defence of reasonable care.
- Summary of authorities: many Cdn courts dealing with public welfare offences favour (1) not requiring Crown
to prove mens rea; (2) rejecting absolute liability, excluding any possible defence.
- Correct approach to public welfare offences: relieve Crown of burden of proving mens rea; admit defence of
reasonable care; put burden on dft (accused) to prove that due care has been taken (justified b/c he has the
means of proof)
Three Categories of Offences:
- [1] FULL MENS REA: Offences in which Crown must prove mens rea (by inference or other evidence)
- [2] STRICT LIABILITY: Presumption of liability; accused can avoid liability by proving that he took
reasonable care. Defence available if (1) accused reasonably believed in a mistaken set of fact which, if true,
would render the act or omission innocent; (2) he took all reasonable steps to avoid the particular offence. [SH:
Defence of due diligence?]
- [3] ABSOLUTE LIABILITY: accused cannot exculpate himself by showing he was not at fault.
- True criminal offences fall into [1]. Public welfare offences: prima facie fall into [2], fall into [1] if mens rea
language is used ("wilfully, knowingly" etc.), fall into [3] if statute makes it clear - consider regulatory pattern,
subject matter of the leg, importance of the penalty, precision of the language used.
S. 32(1) of the Water Resources Act
- Is a public welfare offence  Why? B/c deals with pollution offence (in the interest of public health). Also,
cannot be truly criminal b/c it is provincial leg.
- Since s. 32(1) creates a public welfare offence without a clear indication that liability is absolute and without
mens rea language, application of the above criteria = the offence is in category [2].
- The Present Case - new trial ordered b/c no evidence wrt due diligence of city was raised.
RULE:
- Three categories of offences - full mens rea, strict liability, absolute liability. True crimes - M/R presumption.
Public Welfare offences - presumption of Strict liability unless clear that absolute liability (look at seriousness
of penalty, language, regulatory pattern, etc.) or M/R (words such as intentionally or wilfully).
- "Cause" is not M/R language. "Permits" is not M/R language.
Commentary:
- What would Crown have to prove if statute required M/R?  That the city knew that
the actions of the K-or would cause waste to seep into the water [SH: would City have to
know that substance was a polluting substance? What if it thought that it was a harmless
substance?]
- SH: look at the language of the statute  cause what? Cause the outcome. M/R = must
intend or be aware of the risk of the outcome occurring.
- How would City prove due diligence? Show that it took reasonable steps to ensure that the
K-or was not causing waste to seep into the water. (?)
- Dickson holds that there is a PRESUMPTION OF STRICT LIABILITY for public
welfare offences. Unless it is clear that it is absolute liability or full M/R, it is presumed to
be strict liability. Any time there is a presumption, the other side can rebut (and try to show
that it is absolute or mens rea).
CASE: R. v. Chapin
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R. v. Chapin, [1979] S.C.C., page 403
Facts:
- Chapin was duck-hunting. She was arrested by a conservation officer for hunting w/in 1/4 mile of any place
where bait has been deposited in contravention of S. 14(1) of the Migratory Birds Regulations.
- She was hunting w/in 1/4 mile of a pile of grain. She was unaware of the presence of this grain until the officer
pointed it out.
- Persons in violation of S. 14 may be fined and/or imprisoned.
Issue:
Is Chapin guilty of the offence in S. 14(1) of the Act? What type of offence is it?
Held:
Not guilty. Offence is strict liability public welfare offence.
Ratio:
Not a Mens Rea offence ("true crime")
- Punishable on summary conviction (not indictment); no mens rea language ("willfully", "intentionally"); other
ss of the Act DO use such language; act has comprehensive regulatory structure. S. 14 creates a PUBLIC
WELFARE OFFENCE.
Not an Absolute Liability Offence
- Sault Ste. Marie - look at overall regulatory pattern, subject matter of leg, importance of penalty, precision of
language.
- Crown argues that is AL b/c of "summary conviction" nature of the penalty.
- The penalties, however, are not minimal - relative seriousness of the penalties supports prima facie
classification of strict liability.
- Circumstance supports a defence of reasonable measures taken - b/c of difficulty of searching a 1/2 mile area
for bait.
- The Regulations do not seek to impose an absolute ob upon a hunter who innocently hunts in an unposted area
w/in 1/4 mile of bait which has been placed illegally by a person unknown.
Strict Liability Offence
- Offence created by s. 14(1) is one of strict liability.
- Accused may absolve himself by showing he took all reasonable steps in the circumstances (i.e. show that he
was not negligent)
Conclusion:
- Examine circumstances to see if reasonable measures were taken.
- Here it was not unreasonable that accused didn't see the bait - windy day, small pile of bait, hard to see, no
signs, private hunting club which had never baited the ponds. It would unreasonable to expect a person to scour
a 1/2 mile area to look for bait.
Commentary:
- The Due Diligence defense  did the accused take reasonable steps in the circumstances?
Was her conduct unreasonable?
- Note that S.C. acquits accused - this is unusual  usually will send back to trial to prove due
diligence.
Charter Limitations
CASE: Reference re Motor Vehicle Act
Compromise articulated in Sault Ste. Marie (allowing due diligence defence for regulatory offences with a reverse
onus) became a min constitutional std of fault for any offence which threatens the liberty interest.
Reference Re S. 94(2) of the Motor Vehicle Act (B.C.), [1986] S.C.C., page 409
Facts:
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S. 94(1) of the Motor Vehicle Act makes it an offence to drive when license has been revoked or suspended punishment is imprisonment and /or fines on a first conviction and mandatory imprisonment for a subsequent
conviction
- S. 94(2) of the Act makes the offence in (1) an absolute liability offence - guilt is established by proof of
driving, whether or not the dft knew of the prohibition or suspension. [this is response to Sault Ste. Marie absolute liability nature is spelled out to avoid presumption of strict liability]
- S. 7 of the Charter: Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
Issue:
Is S. 94(2) of the Motor Vehicle Act consistent with the Charter?
Held:
NO.
Ratio:
- Some people interpret "principles of fundamental justice" as referring only to procedural (and not substantive)
requirements of fairness
- "Fundamental justice" is not simply synonymous with natural justice. That is, principles of fundamental justice
are not limited solely to procedural guarantees.
- To determine of a given principle is one of "fundamental justice" w/in the meaning of S. 7  analysis of the
nature, sources, rationale and essential role of the principle w/in our legal system.
-
-
-
Impt principle in our legal system  the innocent must not be punished. Requirement of guilty mind protects
liberty
Absolute liability in penal law offends the principles of fundamental justice. This is not to say that absolute
liability per-se offends S. 7…BUT
A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has
the potential of depriving of life, liberty or security of the person. Such potential arises when it is open to the
judge to impose imprisonment (need not be mandatory imprisonment.
No imprisonment may be imposed for an absolute liability offence. An offence punishable by imprisonment
cannot be an absolute liability offence.
Admin expediency may be invoked under s. 1 but should only succeed in exceptional cases.
Concern with corporate offences: court leaves it open to subsequent cases to decide that S. 7 extends only to
human (and not corporate) persons.
Has B.C. gov't demonstrated as justifiable that the risk of imprisonment of a few innocent is a reasonable limit
given the objective of ridding the roads of bad drivers? No. Gov't has not justified infringement of S. 7.
RULE:
Charter S. 7 requires that offence cannot be absolute liability where imprisonment is a possible punishment. Need
not be mandatory, merely possible. Minimum standard for offences which threaten liberty interest is strict liability
(i.e. with due diligence defense)
Commentary:
- Most impt constitutional criminal law case that court has ever decided - first time that a criminal statute was
subject to constitutional review.
- Impt b/c court held that S. 7 doesn't only give power to courts to consider procedural justice - can also consider
substantive justice.
- Case represents huge shift of power from legislature to courts b/c gives power to courts to review the substance
of criminal legislation; power to strike down the Act of the legislature.
D - Intention (Knowledge and Desire)
CASE: R v. Steane
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R. v. Steane [1947], U.K. p. 419
Facts:
- Steane is charged with doing acts likely to assist the enemy with the intent to assist the
enemy.
- He was broadcasting propaganda to English speaking soldiers in Germany, under the threat
that they would send his wife and children to concentration camps if he did not comply.
- This crime (treason) does not allow the defence of duress.
Issue:
Did the trial judge err in the direction given to the jury with regards to intention to assist the
enemy. The trial judge said that where there was proof of conduct there was intent.
Held:
No intent proven because he tried to save his life.
Ratio:
A. Intention is limited to conscious purpose. Steane knew his acts would bring about the
prohibited result, but he did not desire it, so he did not have intention (motive)
B. NOTE: this interpretation of M/R is not consistent with criminal law. As long as he knew
that his actions would bring about the prohibited result, he has the necessary M/R.
POINT:
Court applies wrong principle that a person has to want the result in order to for there to be subjective intent. NOTE
THAT HE CONFUSES MOTIVE WITH INTENT! (Intent to do acts that he knew assisted the enemy VS motive to
save his family)
Commentary:
A. The crime: Doing acts likely to assist the enemy w/ intent to assist the enemy. A/R = acts
likely to assist the enemy. M/R = subjective intent to assist the enemy.
B. Court held that knowing that you will assist the enemy does not establish intent - must desire
to help the enemy. INTENTION REQUIRES DESIRE. This is wrong! It is the wrong def'n
of intention  see B v D.
C. Decision was based on duress  he did not desire b/c he was under duress  thus, he
decided to go on the air b/c he desired to save his family. BUT…duress is a MOTIVE that
comes in at the defense stage (it is considered a morally acceptable reason to commit certain
crimes). Why didn't judge consider duress?  B/c duress is not a defence to the crime of
treason!
D. Many of the defences in S. 16 of the Code are motives which are justifications for the
commission of an offence. (i.e. M/R and A/R)
E. Correct resolution of this case  prove that Steane did the act with the knowledge that he
was going to assist the enemy as a result. Can infer knowledge from acts  in particular, he
initially refused to go on the air. This is evidence that he knew that by going on the air, he
would be assisting the enemy. [If he knew that the enemy would be assisted  he intended
to assist the enemy]
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F. Glanville Williams: if reasoning in Steane is correct, shouldn't matter if Steane had intent to
aid family or intent to get a pack of cigarettes  he would get off in both situations b/c of the
lack of "intent".
G. Sklar: Maybe Steane is a case that only applies to the crime of treason (for which defense of
duress is not available). Goddard didn't limit the holding in this way…but possible that it
could still be used to acquit someone of a treason charge.
Lewis v. R., [1979] S.C.C., p. 479
Facts:
- Accused and Tatlay were charged with murder of Tatlay's daughter and son-in-law
- Accused mailed package to the victims on behalf of Tatlay but denied any knowledge that the package
contained a bomb
- [Kettle bomb - goes off when it is plugged into the wall. When you send a kettle bomb - you know (pretty close
to certainty) that a person is likely to die (229 says "bodily injury that is likely to cause death"]
Issue:
At time Lewis mailed pkg, did he know it contained a bomb?
Held:
Appeal dismissed.
Ratio:
- In the criminal law, the words "intent" and "motive" are distinct.
- Intent: exercise of free will to use particular means to produce a particular result. Motive: that which precedes
and induces the exercise of the will (ulterior intention).
- In most crimes the mens rea relates to the "intent" rather than the "motive"
- Accused would be guilty if he made and mailed the bomb or if he mailed a package which he knew to contain a
bomb (and knew how the bomb worked…and thus that it is likely to cause death). [SH: M/R wrt the act AND
M/R wrt the result).
- Necessary mental element - knowledge that the package contained a bomb. From such knowledge, the requisite
specific intent follows as a matter of inference. [b/c death is a very likely consequence of a bomb?]
Commentary:
Judge makes propositions about "motive" in the criminal law sense:
- [1] As evidence, motive is relevant and admissible.
- [2] Motive is no part of the crime and is legally irrelevant to criminal responsibility
- [3] Proved absence of motive is always an impt fact in favour of the accused (and ordinarily worthy of note in a
charge to the jury)
- [4] Conversely, proved presence of motive may be an impt factual ingredient in the Crown's case, notably on
issues of identity and intention, when the evidence is purely circumstantial.
- [5] Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of
degree.
Rule:
Motive is not a part of mens rea. (though it may be part of EVIDENCE employed by Crown to prove intent).
Commentary (SKLAR):
- Two things the court doesn't tell us: (1) Tatlay owned a mine and Lewis worked in it - he was head of
explosives  circumstantial evidence that Lewis knew how bombs function; (2) Lewis was in need of money
(this goes to motive).
-
Motive isn't part of mens rea but the presence of motive is circumstantial evidence that the
accused committed the act and with the requisite intent (or did not have the requisite intent).
NOTE: Why must motive be excluded from the element of M/R?
- In order to make the criminal law "morally neutral"
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The criminal law must stay out of moral judgements - the issue of motive could give rise to
some really difficult judgements  e.g. should euthanasia excuse the crime of murder?
SO…if you intend to kill someone, it's going to be murder…unless you fall into a certain
excuse category (a defence). We leave it up to the legislature to decide what excuses will be
valid (i.e. let them make the moral judgements).
R. v. Buzzanga and Durocher, [1979] Ont. C.A., page 493
Facts:
- Accused were active in promoting construction of a French language high school in Essex County (ON)
- Durocher felt that franco community was getting apathetic with respect to the building of the school. He
claimed that the reason it wasn't being built was prejudice.
- Accused printed and circulated pamphlet which described the Francophone minority as "subversive", etc.
[appeared to incite hatred]
- Accused testified that they thought the pamphlet would get the attention of the gov't and thus put pressure on
the school board to build the school.
- The pair was charged for "willfully promoting hatred" pursuant to s. 281.2(2) [now s. 319(2)] of the Criminal
Code. They were convicted at trial.
Issue:
What is the meaning of "willfully" in the context of s. 281.2(2) ["willfully promote hatred]?
Held:
Appeal allowed. New trial ordered.
Ratio:
- Meaning of "willfully" has not been interpreted uniformly; depends to some extent on context
- Meanings proposed: "intentionally"; "recklessly" (person who foresees that conduct may cause prohibited risk
but takes a delib and unjustifiable risk of bringing it about); "act done intentionally and not accidentally";
"intention to bring about a proscribed consequence"; "intention to do a particular act"
- Counsel for dfts argued that in some cases "willfulness" may include "recklessness" but that in s. 281.2(2) it
means with the intention of promoting hatred. Argue that where Parliament intends to extend the meaning of
wilfully to include "recklessness", it does so expressly.
- In the context of s. 281.2(2), willfully means with the intention of promoting hatred, and does not include
recklessness. This is supported by the arrangement of leg proscribing the incitement of hatred.
- General mens rea required for crimes where no mental element is mentioned (i.e. such as "willfully") is either
the intentional or reckless bringing about of the result that law seeks to prevent. S. 281.2(1) deals with
expressions of hatred that breach public peace and the general mens rea is required - s. doesn't include
"willfully". Offence in sub (2) doesn't pose threat to public order thus reasonable to assume that Parliament
intended to require INTENTION.
-
-
-
Having shown that proof of intention to promote hatred is essential  What is the mental attitude which
constitutes an intention to promote hatred? (What is "intention"?)
[judge reviews authorities on meaning of "intention"]
General rule: a person who foresees that a consequence is certain or substantially certain to result from an act
which he does in order to achieve some other purpose, intends that consequence. [note imptce of "certain" or
"substantially certain" - fact that a consequence is "probable" is not enough for intention] An actor's intention
encompasses the means as well as his ultimate objective. [sh: what does the last line mean?]
[Intent = either (1) actor has conscious purpose to bring about consequences of act, or (2) actor foresees that a
consequence is certain or substantially certain to result from the act]
Thus, aplts "willfully" (intentionally) promoted hatred against the Fr. Cdn community only if (a) their conscious
purpose was to promote hatred against that group, or (b) they foresaw that the promotion of hatred was certain
or morally certain to result from the distribution of the pamphlet, but distributed it as a means of achieving their
purpose of obtaining the high-school.
TEST IS SUBJECTIVE - must look at what was in mind of the particular accused.
BUT…can draw inference - People are usually able to foresee the consequences of their acts  so if person
does an act LIKELY to produce certain consequences - reasonable to assume that the accused foresaw those
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consequences, and if he, nevertheless, acted so as to produce those consequences, that he intended them.
GREATER THE LIKELIHOOD OF THE CONSEQUENCES = EASIER TO DRAW INFERENCE. Do not
use objective test - i.e. reasonable person should have foreseen consequences.
Accused's testimony is the best evidence - all that matters - does jury think he is telling the truth? (Judge in this
appeal said that there seemed to be no good reason not to believe the accused in this case. R. v. Buzzanga and
Durocher, [1979] Ont. C.A., page 493
Facts:
- Accused were active in promoting construction of a French language high school in Essex County (ON)
- Durocher felt that franco community was getting apathetic with respect to the building of the school. He
claimed that the reason it wasn't being built was prejudice.
- Accused printed and circulated pamphlet which described the Francophone minority as "subversive", etc.
[appeared to incite hatred]
- Accused testified that they thought the pamphlet would get the attention of the gov't and thus put pressure on
the school board to build the school.
- The pair was charged for "willfully promoting hatred" pursuant to s. 281.2(2) [now s. 319(2)] of the Criminal
Code. They were convicted at trial.
Issue:
What is the meaning of "willfully" in the context of s. 281.2(2) ["willfully promote hatred]?
Held:
Appeal allowed. New trial ordered.
Ratio:
- Meaning of "willfully" has not been interpreted uniformly; depends to some extent on context
- Meanings proposed: "intentionally"; "recklessly" (person who foresees that conduct may cause prohibited risk
but takes a delib and unjustifiable risk of bringing it about); "act done intentionally and not accidentally";
"intention to bring about a proscribed consequence"; "intention to do a particular act"
- Counsel for dfts argued that in some cases "willfulness" may include "recklessness" but that in s. 281.2(2) it
means with the intention of promoting hatred. Argue that where Parliament intends to extend the meaning of
wilfully to include "recklessness", it does so expressly.
- In the context of s. 281.2(2), willfully means with the intention of promoting hatred, and does not include
recklessness. This is supported by the arrangement of leg proscribing the incitement of hatred.
- General mens rea required for crimes where no mental element is mentioned (i.e. such as "willfully") is either
the intentional or reckless bringing about of the result that law seeks to prevent. S. 281.2(1) deals with
expressions of hatred that breach public peace and the general mens rea is required - s. doesn't include
"willfully". Offence in sub (2) doesn't pose threat to public order thus reasonable to assume that Parliament
intended to require INTENTION.
-
-
-
Having shown that proof of intention to promote hatred is essential  What is the mental attitude which
constitutes an intention to promote hatred? (What is "intention"?)
[judge reviews authorities on meaning of "intention"]
General rule: a person who foresees that a consequence is certain or substantially certain to result from an act
which he does in order to achieve some other purpose, intends that consequence. [note imptce of "certain" or
"substantially certain" - fact that a consequence is "probable" is not enough for intention] An actor's intention
encompasses the means as well as his ultimate objective. [sh: what does the last line mean?]
[Intent = either (1) actor has conscious purpose to bring about consequences of act, or (2) actor foresees that a
consequence is certain or substantially certain to result from the act]
Thus, aplts "willfully" (intentionally) promoted hatred against the Fr. Cdn community only if (a) their conscious
purpose was to promote hatred against that group, or (b) they foresaw that the promotion of hatred was certain
or morally certain to result from the distribution of the pamphlet, but distributed it as a means of achieving their
purpose of obtaining the high-school.
TEST IS SUBJECTIVE - must look at what was in mind of the particular accused.
BUT…can draw inference - People are usually able to foresee the consequences of their acts  so if person
does an act LIKELY to produce certain consequences - reasonable to assume that the accused foresaw those
consequences, and if he, nevertheless, acted so as to produce those consequences, that he intended them.
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GREATER THE LIKELIHOOD OF THE CONSEQUENCES = EASIER TO DRAW INFERENCE. Do not
use objective test - i.e. reasonable person should have foreseen consequences.
Accused's testimony is the best evidence - all that matters - does jury think he is telling the truth? (Judge in this
appeal said that there seemed to be no good reason not to believe the accused in this case.
RULES:
- Def'n of wilfull: Wilfully means "intentionally". In some contents, it may include "recklessly" but this is not
the normal definition.
- Def'n of intention: Either (1) actor has conscious purpose to bring about the consequences of the act, OR (2)
the actor foresees that a consequence is certain or substantially certain to result from the act. I.E. Intent requires
DESIRE or KNOWLEDGE (dgr of knowledge = certainty or substantial certainty). [SH: the "consequence"
to be considered is the one prohibited by the act, e.g. death]. [Note Harding  WB = knowledge]
- To determine if he desired or knew  draw inferences from actions. If person does an act likely to produce
certain consequences - reasonable to assume that the accused foresaw the consequences. Greater the likelihood
of the consequences = easier to draw inference. Best evidence is accused's testimony - are they telling truth?
- General rule is that the mental element applies to all aspects of the A/R - the act and the causing of the result.
[Note that there are exceptions - see DeSousa]
Commentary:
- What is "substantial certainty"?  accused was 95% - 100% certain that the prohibited
result would occur. This must be SUBJECTIVE CERTAINTY…but if can show that it is
obvious to anyone that probability that act = result is at least 95%, can draw inference.
Sklar: Probable consequences = something that would be obvious to anyone! Everything
btwn 0.1 and 95% = recklessness. DO NOT USE OBJECTIVE LANGUAGE (i.e. A
reasonable person would have known; he should have known)
- M/R issue in this case is the same as in Steane.
- Trial judge in this case made error by equating intentionally promoting controversy with
intentionally promoting hatred. Accused would NOT be guilty if they only intended to
promote controversy. BUT…if they intended to promote hatred as a psychological means of
getting the school built - they are guilty.
- Evidence that can be used to establish intent  the accused actions; the accused's
testimony (is he telling the truth?). What is relevant to determining credibility - the
background of the accused - in this case, they had a commitment to the French language and
culture - this supported their denial of intent to promote hatred. Sometimes, the inference
drawn will be so strong as to compel rejection of the accused's testimony. (case states this).
- Recklessness: defined in case as "person who foresees that conduct may cause the
prohibited result but nevertheless takes a deliberate and unjustifiable risk of bringing it
about." Contrast recklessness to second form of intent (knowledge) - it does not require
certainty or substantial certainty. It merely requires that the accused foresaw the risk.
Proceed even though foresaw risk (0.1-95%) that something will occur vs. Proceed even
though foresaw certainty (95-100%) that something would occur. Higher the risk =
easier to infer that accused foresaw it.
Hypothetical:
A disgruntled Air Canada employee plays with the landing gear on one of the planes because he
wants to give the company a bad reputation. As the plane lands, they crash and one of the
passengers die. He had no intention of killing anyone. For the Crown to convict this guy, they
need to prove that when landing gear is played with, someone will die (with greater than 95
percent certainty).
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- The difference b/w intention and recklessness is the degree of probability of harm occurring.
- Any foresight less than 95% is recklessness.
JUST LOOK AT THE PROBABILITY OF THE HARM OCCURRING!! (Objective
probability can be used to infer subjective foresight). (B v. D)
General note about "wilfull"
- Case held that wilful = intentional (in most cases)
- There is a distinction btwn intention to bring about the act and intention to achieve the result.
Judge in B v. D. says that wilfull = must be intent to perform the act (i.e. deliberate, not
accidental) AND intent to achieve the result.
- The general rule is that MENTAL ELEMENT APPLIES TO ALL ASPECTS OF THE A/R
UNLESS STATUTE EXPLICITLY MAKES IT ONLY APPLY TO THE ACT.
- How would Parliament exclude the consequences?  "wilfully commit an act which causes"
- accused need only wilfully commit the act; need not wilfully cause it.
CASE: R. v. Hibbert
R. v. Hibbert, [1995] S.C.C., CB page 489 - dude was coerced into calling guy down to lobby so another guy could
kill him; def'n of "with the purpose"
Facts:
- Hibbert was coerced into calling a guy down to the lobby so another guy could kill him.
- The guy came down and the other guy shot him (but didn't kill him - attempted murder).
- Hibbert was charged with aiding and abetting (being an accomplice to) the man who wanted the kill the guy.
- S. 21(1)(b) imposes criminal liability on someone who does or omits to do something "with the purpose" of
aiding any person to commit it (i.e. the offence).
Issue:
What is the meaning of "purpose" in s. 21(1)(b) of the Criminal Code?
Holding/Ratio:
- Purpose has two plain meanings (dictionary): Purpose as desire (desiring something), Purpose as intention
(desiring to do something to achieve some other purpose).
- [defence wants purpose to be defined as the conscious goal of the individual - the guy didn't want to help out
cause he acted under duress. If we define intention in the second way above (knowledge)  he would be guilty
 he knew this would be the consequence of aiding the accused]
- Wrt its def'n in the criminal context - commentators have come to different conclusions [limit purpose to
conscious desire of the individual - sklar agrees with this; he thinks that purpose is different than intent. This is
not what the court decides].
- Purpose as desire: an actor's purpose was to accomplish something if the prospect of its occurrence played a
causal role in his decision to do what he did; actor's knowledge that his actions will result in the occurrence is
not determinative
- Purpose as intention [includes knowledge and desire]: person who consciously performs an act KNOWING
the consequences that will (w/ some dgr of certainty) flow from it "intends" these consequences or causes them
"on purpose" regardless of whether he or she desired them.
- Since purpose is capable of bearing 2 distinct meanings - must determine which best accords with Parliament's
intention.
- Purpose used throughout Code but in many different contexts (=different meanings)
- Purpose as intention best reflects the leg intent underlying the section at issue. WHY?…
- Equating Purpose with desire would have absurd consequences - example: robber offers friend $100 to drive a
getaway car; friend could argue that it was not his purpose to aid in robbery but to make $100…and he would
be acquitted.
- Absurdity that would result cannot be legitimately ascribed to Parliament's intention.
- This interpretation will not result in unjust convictions in cases involving coercion or threats b/c the common
law defence of duress will remain available to the accused.
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SH: judge describes why "purpose as desire" and the defence of duress are so incompatible (wrt instructing jury
esp)  I don’t understand.
RULE:
Meaning of "with the purpose of xyz" is intention. Intention includes knowledge and desire. Thus, accused must
desire to bring about xyz or be intentionally perform the act with the knowledge that xyz will (w/ some degree of
certainty) result. Merely equating purpose with desire would have absurd consequences (getaway car example)
Commentary (Sklar):
-
The example of get-away car and $100 - reminds us of Williams' example wrt Steane (aiding
the enemy in order to get cigarettes). Williams' said that if Steane was correctly decided, it
wouldn't matter if his desire was to save his family or to get a pack of cigarettes - he would
be acquitted either way.
E - The Mens Rea for the Several Forms of Murder
S. 222, 229, 230, 231, 235
HOMICIDE (S. 222)
Sec 222
[1] A person commits homicide when, directly or indirectly, by any means, he causes the death of
a human being.
[2] Homicide is culpable or not culpable
[3] Homicide that is not culpable is not an offence
[4] Culpable homicide is murder or manslaughter or infanticide.
[5] A person commits culpable homicide when he causes the death of a human being,
[a] by means of an unlawful act,
[b] by criminal negligence,
[c] by causing that human being, by threats or fear of violence or by deception, to do
anything that causes his death, or
[d] by wilfully frightening that human being, in the case of a child or sick person.
**Section 222 requires that the accused CAUSE the death of a human being.
MURDER (S. 229 - S. 240)
Sec 229
Section
S. 229(a)(i)
Culpable homicide is murder
[a] where the person who causes the death of a human being
[i] means to cause his death, or
[ii] means to cause him bodily harm that he knows is likely to cause his death, and is
reckless whether death ensues or not;
[b] where a person, meaning to cause death to a human being or meaning to cause him bodily
harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by
accident or mistake causes death to another human being, notwithstanding that he does not mean
to cause death or bodily harm to that human being; or
[c] where a person, for an unlawful object, does anything that he knows or ought to know is
likely to cause death, and thereby causes death to a human being, notwithstanding that he
desires to effect his object w/o causing death or bodily harm to any human being.
Mens Rea Required (Vaillancourt)
Accused must have actual subjective foresight of the likelihood of causing death AND the
intention to cause that death.
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S. 229(a)(ii)
S. 229 (c)
S. 230
S. 222(5)(a)
February 2003
Accused must again have actual subjective foresight of likelihood of causing death BUT no
longer require intent - only that he was reckeless whether death ensued or not. Must have
intent to cause bodily harm.
No requirement of subjective foreseeability of death - only objective foresight. Must do an
unlawful act.
Mere proof that accused performed one of the acts in ss. (a) to (d) - need no proof of
objective or subjective foreseeability of death.
Creighton: Objective foreseeability of bodily harm that is not trivial or transient coupled
with M/R for underlying offence (underlying offence must be federal or provincial offence
and cannot be absolute liability). NO FORESIGHT OF DEATH!
Murder in Commission of Offences (S. 230)
Court in Vaillancourt struck down S. 230(d), but holding in that case renders the whole section unconstitutional.
Classification of Murder (S. 231)
EDITOR'S NOTE (page 435): S.C. decided in Motor Vehicle Ref that due diligence defence was min required std
of fault required by the Charter for any type of offence threatening the liberty interest. In Vaillancourt case - S.C.
had to decide whether that std. or another was sufficient for Criminal Code offences.
SKLAR: once the Courts gave the power to themselves to review stattues under s. 7, we knew that def'ns of crimes
would be challenged under s. 7. The first challenged def'n was that of MURDER (in Vaillancourt)
CASE: Simpson v. R.
Simpson v. R., [1981] S.C.C., p. 435
-
Case dealt with attempted murder pursuant to s. 212 of the Criminal Code (now S. 229)
S. 229(a)(ii) requires an intention to cause bodily harm that the offender KNOWS is likely to cause death. It is
incorrect to say "ought to know".
- Liability under this section is SUBJECTIVE. Requisite knowledge that intended injury is likely to cause death
must be brought home to the accused subjectively.
- An intention to cause harm that the offender OUGHT TO HAVE KNOWN was likely to cause death is merely
evidence from which, along with the other circumstances, the jury may infer that the accused actually had the
requisite intention and knowledge.
- It is also incorrect to replace "knows is likely to cause death" with "knowing that it might result in death".
Commentary:
SKLAR: The should have or "ought to know" language is objective and thus use of it is in error - murder requires
subjective intent.
RULE:
The words "should have known" or "ought to have known" are objective and should not be used wrt S. 229(a)(I) and
(ii). That the offender "ought to have known" is merely evidence from which, along with other circumstances jury
may infer that accused had requisite intent and knowledge.
CASE: Vaillancourt v. R.
Vaillancourt v. R., [1987] S.C.C., p. 437
Facts:
- Aplt and his accomplice committed armed robbery in pool hall. Aplt had knife; accomplice had gun
- Accomplice had struggle with one of the clients and shot and killed him.
- Aplt said that he and the accomplice had agreed to commit the robbery only with knives. Accomplice had
arrived with a gun which aplt had insisted be unloaded. Accomplice unloaded 3 bullets and gave them to aplt.
At time of robbery, aplt was certain that gun was unloaded.
- Aplt was convicted of second dgr murder
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- He challenged the conviction on the basis that S. 230(d) of the Code was unconstitutional.
Issue:
Is s. 230(d) inconsistent with ss. 7 and/or 11(d) of the Charter?
Held:
Yes. Appeal allowed. (6:1)
Ratio:
[Lamer]:
- Aplt argued that to impose criminal liability, must always be some degree of subjective mens rea
- Lamer limits his analysis to S. 213(d) - does not consider s. 229(c) for example
- Describes progression of murder in the Code (gradual relaxation of M/R): 229(a)(i) requires that the accused
have actual subjective foresight of the likelihood of causing death AND the intention to cause that death;
229(a)(ii) requires recklessness rather than intention (but intent to cause bodily harm); 229(a)(iii) requires that
person does some act for an unlawful object - that he KNOWS OR OUGHT TO KNOW is likely to cause death
(objective foreseeability); S. 230 requires merely that accused cause victim's death while committing or
attempting to commit some act - no requirement of subjective or objective foreseeability of death.
- Historical development of S. 230 indicates that its legitimacy is Q-able - origin is common law felony murder
rule which is subject of much criticism. (illogical that unintentional killing is characterized as murder). Similar
rules have been abolished in other jurisdictions.
Section 7 - Fundamental Justice
- S. 230 - no requirement of M/R wrt foreseeability of death.
- Motor Vehicle Reference raised mens rea from a presumed element (Sault Ste. Marie) to a constitutionally
required element where the liberty interest is threatened. (at least negligence)
- Certain crimes, b/c of stigma and punishment attached require M/R that reflects the nature of the crime. Murder
is one of these - must be some special mental element.
- It is a principles of fund justice that a conviction for murder requires nothing less than proof BRD of subjective
foresight. BUT…[Lamer restricts his holding so as not to strike down other provisions] it requires at least proof
BRD of objective foreseeability.
- S. 230 does not require even objective foreseeability and thus is unconstitutional.
S. 11(d) and the Burden of Persuasion
- S. 11(d) requires proof BRD of all elements of the offence  those in the provision AND those required by
Charter S.7.
- S. 230(d) infringes S. 11(d) b/c does not require proof BRD of objective foreseeability of death (which is an
essential element of the murder offence pursuant to s. 7)
Application of the Principles to S. 230
- S. 230 has substituted for proof BRD of objective foreseeability prof BRD doubt of certain forms of intentional
dangerous conduct causing death.
- In most situations, proof BRD of this intentional dangerous conduct will satisfy a jury BRD that the accused
ought to have known that death was likely to be caused (BUT…not in all situations - drunkenness, accidental
death). Thus, would be possible to get conviction where death not objectively foreseeable.
- S. 230 doesn't meet minimum requirement of objective foreseeability of death and is thus unconstitutional.
S. 1 Analysis:
- Objective is sufficiently important
- Measures adopted unduly impair the right -possible to accomplish objective w/ lesser infringement
- Stigmatizing the crime as murder unnecessarily impairs the Charter right (could just make very stiff sentence
for manslaughter w/ weapon)
[Dissent - McIntyre J]:
- He does not agree that s. 230(d) admits of murder conviction w/o proof of objective foreseeability of death or
likelihood of death.
- Principal complaint is not that accused should not have been convicted of a serious crime but that it should not
have been called "murder". While it might be illogical to characterize unintentional killing as "murder", no
principles of fundamental justice are violated by calling it "murder" and not something else. (matter for
Parliament)
RULE:
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The minimum constitutional standard for murder is objective foreseeability of death. S. 230(d) doesn't meet this
minimum standard and thus is unconstitutional. The reasons for this minimum standard: murder has high stigma;
murder has high penalty; murder has highest degree of moral blameworthiness.
Commentary:
- Sault Ste. Marie - court held that M/R was required for "true crimes" but that leg could displace this
presumption using clear language. S. 230 uses clear language and obliterates the need for M/R (no requirement
of objective or subjective foreseeability of death). BUT…court in this case held that objective foreseeability of
death is minimum constitutional std for murder
- Lamer thinks that subjective foreseeability of death should be required but doesn't go that far. Note that counsel
for the aplt said that there should be subjective M/R requirement for all criminal liability  this would be a
VERY substantial change in the criminal law - would eliminate manslaughter!
- This case was an EARTHQUAKE. WHY?  b/c eliminated a very impt type of murder with long history
- FELONY MURDER (in the USA); traced back to Coke in 1800s
- Two types of unlawful act killings  murder ("felonies dangerous to life") and M/S (all other unlawful acts).
- Policy behind S. 230(d)  (1) ease burden on Crown (difficult to prove intent) - widens grounds on which a
person who kills with a weapon can be found guilty (229(a)(I) and (ii) AND 230(d); (2) deterrence of crimes
committed with guns. Note that these policy reasons catch Vaillancourt in this case - there was absolutely NO
evidence of intent on his part, thus he could not be caught by s. 229
- Problem with S. 230  can catch accidental deaths (e.g. R v. Rowe [1951]  dude who slipped while carrying
gun, guy died. Court held that he was guilty of murder b/c the killing occurred while he was "in flight" from
committing armed robbery). This was one reason the court struck the section down.
- Court holds S. 230(d) to be unconstitutional even though there could be convictions under S. 230(d) which
would have at least objective foreseeability of death.
CASE: R. v. Martineau
R. v. Martineau, [1990] S.C.C. p. 453
Facts:
- Accused and companion set out with guns to commit a crime. Accused thought it would only be a break and
enter.
- After they robbed a couple's home, the companion shot and killed them.
- Companion told accused that he shot them b/c they saw their faces. Accused responded that "they couldn't see
me cause I had a mask on"
- Accused was convicted of 2nd degree murder.
- Challenged conviction on basis that S. 230(a) contravenes S. 7 and S. 11(d) of Charter.
Issue:
Is S. 230(a) unconstitutional? What is the minimum mens rea requirement for murder?
Held:
Unconstitutional. Min mens rea requirement for murder is subjective foreseeability of death or likelihood of death
Ratio:
- A special mental element wrt death is necessary before a culpable homicide can be treated as murder. That
special mental element gives rise to the moral blameworthiness that justifies the stigma and punishment
attaching to murder.
- It is thus a principle of fundamental justice that subjective foresight of death is required before a conviction for
murder can be sustained.
- If subjective foresight of death is required - casts doubt on constitutional validity of S. 229(c)
[Dissent - L'HD]:
- Subjective foresight is not the only appropriate standard that can be applied to conform with s. 7 and 11(d) of
the charter. Reasons: (1) test of obj foreseeability of death for murder does not offend the principles of
fundamental justice; (2) exclusive std of subjective foresight of death for the crime of murder has no parallel in
other KL jurisdictions; (3) significant policy considerations in favour of upholding existing legislation.
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Tests of subjective foresight and objective foreseeability cannot be seen as static or distinct concepts. In most
circumstances delineated by s. 213(a), death will be both objectively and subjectively foreseeabl.e They are not
mutually exclusive. L'HD rejects a "fastidious adherence" to prescribed labels.
- S. 213(a) has an amalgamation of prerequisites (see p. 458) which establish that the crime is tantamount to one
which has ob foreseeability as an essential element (proof of all elements leads to inexorable conclusion that
resulting death is objectively foreseeable)
- Comparative - sudden introduction of a subjective foresight std for crime of murder is NOVEL (not observed in
other KL jurisdictions)
- Policy considerations: MANY homicide offences occurred during the commission of another criminal act - it is
a matter of critical public concern
- Principles in the s. have existed for over 300 years
Parl's legislative objective - to deter those who commit crime from intentionally inflicting harm. Parl felt that
this was the right way to ensure law was in accordance with social values as to the gravity of such killings.
Person has already acted with intent to commit two serious crimes.
- Lamer's concentration on SOCIAL STIGMA is overemphasized. Egregious example of misplaced compassion.
Manslaughterer is no better than murderer!
- Objective foreseeability of death test for crime of murder is constitutionally valid.
- The Charter does not give courts the power to declare leg invalid on the basis that they believe it is undesirable
as criminal law policy.
RULE:
Minimum constitutional standard for murder is now subjective foreseeability of death. It is not sufficient that
accused "ought to know" that death is likely result of his actions. Main reasons for this requirement - stigma, moral
blameworthiness, high punishment demand special mental element.
Commentary:
- Why didn't L'HD like this standard?  (1) no parallel in any KL jurisdiction; (2) time-tested principles; (3)
many elements in s. 230(a) = tantamount to objective or subjective foreseeability of death; (4) Qed social stigma
argument (does public know difference btwn murder and manslaughter?) (5) issue of how active courts should
be wrt overriding the policy wisdom of the legislator.
- After this case  can only find murder based on S. 229 (no longer S. 230)
NOTE (page 462-463)  S.
- R. v. Sit [1991] - court made it clear that S. 230(c) was also unconstitutional since it has a test of objective
foresight of death and thus does not involve proof BRD that the accused had subjective foresight of the death of
the victim (as required by Martineau)
- What about S. 229(c)?
- Meiler [1999] ON C.A. held that jury could convict on the basis of s. 229(c) if it found that the accused for an
unlawful object did anything knowing it was likely to cause SOMEONE'S death. Editor - can criticize this
decision for not adopting a narrower interpretation limiting s. 229(c) to a person who had a subjective
awareness of the likelihood of the actual victim's death. Case appears to resurrect a type of constructive murder
that the S.C. had declared unconstitutional.
First Degree Murder
-
-
Note that S. 231 doesn't create a separate substantive offence of first degree murder. Rather,
it constitutes a characterization, for sentencing purposes, of the substantive offence of murder
in ss. 229 and 230. (thus must find all elements for murder in S. 229)
R. v. Nygaard: court held that the mental state described in s. 229(a)(ii) is NOT incompatible
with planned and deliberate in S. 231(2). [Accused must plan and deliberate to cause terrible
bodily harm that he knows is likely to result in death].
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Re. S. 231(5)  "while committing or attempting to commit"  Recall Pare: Need not be
an exact coincidence btwn the act causing the death and the acts constituting the underlying
offence. It is sufficient that they form part of one continuous sequence of events forming a
single transaction.
CASE: R v. Smith
R. v. Smith, [1979] Sask. C.A., page 463
Facts:
- Smith, Swarchuk and Massier were friends. (they were weirdos who engaged in a lot of drugs and destruction)
- One day the three of them went into a rural area to do some hunting. They took some guns.
- While driving there, Smith and Swarchuk were taking valium pills and Smith consumed almost an entire
mickey of rye.
- Swarchuk and Smith got into an argument. They were pointing guns at each other. Smith shot Swarchuk in the
arm and Swarchuk started running. Massier began asking Smith questions. 1-3 minutes later, Smith reloaded
the shot-gun. Swarchuk turned and ran. Smith shot at him from long range and Swarchuk fell to the ground.
- Smith then walked up to Swarchuk and shot him in the back of the head. Swarchuk fell back (dead).
- At trial, Smith was charged and convicted of first-degree murder under s. 231.
Issue:
Was there evidence of planning and deliberation upon which jury could possibly find accused guilty of 1 st degree
murder?
Held:
No. Conviction reduced to 2nd degree murder.
Ratio:
- Must be proved BRD that the murder was planned and deliberate.
- Planned means "arranged beforehand". Means a calculated scheme or design which has been carefully though
out; nature and consequences have been considered and weighed. The killing must be an implementation of
that plan. Planning cannot be confused with intention - the planning would only occur after the intent to murder
had been formed.
- Deliberate means "considered, not impulsive". It does not just mean "intentional".
- In deciding if planned and deliberate, jury should consider: evidence of accused's actions, evidence of accused's
condition (i.e. his state of mind as affected by either real or imagined insults, provoking actions and
consumption of alcohol)
- It is possible to imagine a murder to some degree planned and yet not deliberate.
- In this case, judge erred in deciding that there was sufficient evidence that the murder was planned. There was
no evidence that actions of Smith were the implementation of a previously determined design. His actions were
a result of a sudden impulse. "It would be pure speculation to try and determine what triggered that impulse".
"It may well be that the killing was deliberate".
RULE:
Planned means "arranged beforehand" - there must be a calculated scheme or design which has been carefully
thought out; the killing must be an implementation of that plan. Deliberate means "considered, not impulsive".
Both planned and deliberate must mean something more than intentional (b/c already have intent wrt S. 229).
Commentary:
- Must consider the TIME factor - in this case, the time btwn shots shows deliberateness but
not a PLAN. How long does it take to plan? Annotations: Consequences must be weighed
and considered but plan need not be complicated. Time involved in developing the plan is an
impt element (but not time btwn development of plan and carrying out of plan).
- Considered and not impulsive  Annotations: "slow in deciding", "cautious", accused
must take time to weight the advantages and disadvantages of the intended action.
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-
February 2003
SH (Sklar): You can be deliberate in a matter of mins/seconds BUT cannot plan in such a
short time. There was a conscious decision when he went to shoot him in the head…but no
plan.
Line btwn 1st and 2nd degree murder would be very thin if this was considered 1st degree
murder. Smith was clearly violent - but the murder was definitely not planned. Would not
be appropriate to have such a thin line  WHY? B/c the penalty for 1st degree murder is
very HIGH (higher than in most jurisdictions); moral culpability is stressed in many cases;
Murder 1 is a very heinous crime.
CASE: R. v. Nygaard
R. v. Nygaard & Schimmens, [1989] S.C.C., page 468
Facts:
- M bought car stereo from N. Cheque (signed by T and H) bounced.
- N told M that if matter not cleared up that day, could expect trouble. Later that day N, S and another went to
M's apartment. S struck M on forehead w/ baseball bat. Also attacked H with the bat. S died.
- S and N were charged with 1st degree murder and convicted at trial
Issue:
Can charge of first degree murder be based ss. 229(a)(ii) and 231(2)?
Held:
Yes. Appeal dismissed.
Ratio:
- Element of planning and deliberation makes 1st degree murder more culpable and justifies the harsher sentence.
- Mens rea required by s. 229(a)(ii)? Intent to cause bodily harm which he knows is likely to cause death
combined with recklessness (persists in conduct despite the knowledge of risk of death). (no need to intend to
cause death?)
- Vital element of the requisite intent: causing such bodily harm that the perpetrator knows is likely to cause
death and yet persists in the assault.
- It is possible to couple "planning and deliberation" in S. 231(2) with this mens rea. The accused must plan and
deliberate to cause the bodily harm which is likely to be fatal. This necessarily includes the planning and
deliberating to persist in that conduct despite the knowledge of the risk. [SH: this is crazy…cause if you are
planning and deliberating to persist in something you know will cause death….it doesn't suggest that you plan
to cause the death?]. [SH: how would this requirement differ wrt 229(a)(i)
- The murder in 229(a)(i) varies little in degree of culpability than the murder in S. 229(a)(ii). (judge cites
Vaillancourt for this - talking about degrees of relaxation in the murder statutes)
- [SH: difference btwn recklessness and murder with intent type 2 (where knowledge=intent)]
RULE:
It is possible to couple "planning and deliberation" in S. 231(2) with the mens rea in S. 229(a)(ii) [i.e. causing bodily
harm that he knows is likely to cause death and yet persisting]. The accused must plan and deliberate to cause the
bodily harm which is likely to be fatal. This necessarily includes the planning and deliberating to persist in that
conduct despite the knowledge of the risk.
F - Recklessness and Wilful Blindness
CASE: Sansregret v. R
Sansregret v. R, [1985] S.C.C., page 508
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-
Recklessness and negligence are two distinct concepts.
Negligence - tested by objective std of the reasonable man; departure from std of care of ordinary reasonable
person. [regular negligence is not the basis for criminal penalties]
- Recklessness - must have an element of the subjective  the attitude of one who, aware that there is a danger
that his conduct could bring about the result prohibited by the criminal law, nevertheless persists despite the
risk. One who SEES THE RISK AND TAKES THE CHANCE. [Martin in B v. D  risk must be
"unjustifiable"]
- Willful blindness is an aspect of recklessness but the two must be kept separate b/c they result from different
mental attitudes and lead to different legal results.
- Recklessness v. Willful blindness: while R involves knowledge of a danger or risk and persistence in a course
of conduct which creates a risk that the prohibited result will occur, WB arises where a person who has become
aware of the need for some inquiry declines to make the inquiry b/c he does not wish to know truth. He would
prefer to remain ignorant.
- Culpability in R justified by consciousness of risk and proceeding in face of it.
- Culpability in WB justified by accused's fault in deliberately failing to inquire when he knows there is a reason
for inquiry (i.e. his suspicions are aroused).
- When party is willfully blind, he is deemed to have KNOWLEDGE. [SH: compare to recklessness]. WILFUL
BLINDNESS IS EQUIVALENT TO KNOWLEDGE.
- Glanville Williams - WB = knowledge is an unstable rule. Only find WB where it can almost be said that the
dft ACTUALLY KNEW. Requires a finding that the dft intended to cheat the administration of justice.
Rule
WB = Knowledge. Def'n: person who has become aware of need for inquiry (suspicious) deliberately declines to
make inquiry b/c does not wish to know the truth. Williams: Accused must suspect the fact; realize its probability;
but refrain from obtaining final confirmation b/c he wanted to deny knowledge. Requires that accused intended to
cheat the administration of justice.
Recklessness: person is aware that there is a risk that his conduct could bring about the prohibited result…but
persists in his risky conduct. [B v. D  accused must take the risk unjustifiably]
Commentary (Sklar):
- Knowledge of a risk that something will happen and knowledge that something WILL happen - there are
different. The former is recklessness. The latter is intention. [differing degrees of certainty]
- What is an "unjustifiable risk"  There is a risk to everything. Proceeding in the face of a risk may be
justifiable in some instances (e.g. man in speeding car rushing baby to the hospital).
- Contrast to def'n in R. v. Miller (page 274):
-
Guilty of offence when sets in train events which, when accused becomes aware of them,
would make it obvious to anyone who troubled to give his mind to them that they present a
risk that property belonging to another would be damaged (and he takes no steps to prevent
or reduce that risk).
Compare Negligence, Recklessness, and WB
- Negligence - no thoughts going through his head - "a reasonable person would have been
aware of the risk"
- Recklessness - subjectively aware of the RISK but proceeds anyway (and risk is
unjustifiable)
- Wilful Blindness - subjectively aware of the need for inquiry (the risk?) but
DELIBERATELY FAILS to make the inquiry b/c of fear of consequences (must
consequences be penal? Williams thinks so - must intend to cheat the admin of justice)
- Recklessness stops with awareness. WB goes one step further than awareness - requires
deliberate failure to make inquiry b/c of fear of consequences.
- Example: woman who realizes that someone may have slipped drugs into her suitcase 
but she fails to ask for her suitcase back b/c she is worried that she will be "sick with
nervousness" on the way home  Wilful blindness? Maybe - seems to fit into the def'n.
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BUT…doesn't appear that she has the intention to cheat the administration of justice. [SH:
perhaps recklessness  she is aware of a risk that she is possessing drugs but proceeds
anyway]
May want to argue that intention to cheat admin of justice is a required element b/c WB is a
higher state of mind and thus ought to require a greater degree of moral culpability.
CASE: R. v. Jorgensen
R. v. Jorgensen, [1996] S.C.C., page 183
Facts:
J owned and operated an adult video store.
Undercover police officers bought 8 of his videos and charged him with 8 counts of knowingly selling obscene
material w/o lawful justification or excuse [contrary to s. 163(2)(a)].
Convicted at trial; conviction upheld at C.A.
Issue:
What is the mens rea required by s. 163(2)(a) (the word "knowingly")?
Held:
Appeal allowed - substituted acquittal.
Ratio:
- What does proof of knowledge entail?  retailer actually watched video OR evidence of warnings, directions
from external sources etc.
- In appropriate circumstances, the Crown may rely on proof of willful blindness where the Q to be determined
from all the circumstances is "Did the accused shut his eyes because he knew or strongly suspected that looking
would fix him with knowledge?"
Rule:
Proof of WB = proof of knowledge (where mens rea requirement is "knowingly"). To prove WB, ask "Did the
accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"
CASE: R. v. Currie
R. v. Currie, [1975] ON C.A., page 510
Facts:
- A dude approached Currie and offered him $5 to cash a cheque for him. The cheque had a signature of
endorsement on the back [it was forged by the dude who gave him the cheque].
- Currie took it to the bank, cashed it and gave the cash to the dude.
- Trial judge accepted as evidence the accused's testimony that he had no suspicion that the cheque did not belong
to the dude.
- He was charged and convicted with unlawfully and knowingly uttering a forged document on the basis that he
was willfully blind as to the forged nature of the endorsement.
Issue:
Did accused know that the endorsement on the cheque was forged?
Held:
No. Appeal allowed.
Ratio:
[Martin]:
- It is not enough that the accused should have been suspicious. Willful blindness requires that the accused has a
suspicion which he deliberately omits to turn into certain knowledge [SH: b/c he thinks it is bad]
- The fact that a person ought to have known that certain facts existed does NOT constitute knowledge for the
purpose of criminal liability, and does not by itself form a basis for the application of the doctrine of WB.
[Dissent]:
C. The aplt is guilty on the ground of willful blindness b/c (as trial judge found) he "deliberately or knowingly"
neglected to make the inquiries which he ought to have made. This finding suggests that he was in fact
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suspicious of the authenticity of the cheque, for otherwise he couldn't have "deliberately" failed to make the
necessary inquiries.
RULE:
Wilful blindness requires that accused himself deliberately failed to inquire into his suspicions. The fact that a
person OUGHT to have or SHOULD have inquired does not constitute knowledge or wilful blindness.
CASE: R. v. Blondin
R. v. Blondin, [1971] B.C. C.A., page 513
Facts:
- Blondin arrived at Vancouver Airport on flight from Japan. He went to the airline desk to collect the scuba
outfit he had shipped.
- The weight of the scuba tank aroused suspicion in the customs official and a R.C.M.P. constable. Blondin thus
accompanied them to an Aquatic shop to have the tank checked out.
- The tank was found to contain 23 lbs of hashish. Blondin explained that someone had paid him to bring the
tank over and that he knew it contained something illegal. Blondin did not know that it contained hashish nor
did he even know what hashish was.
- Blondin was charged with importing a narcotic into Canada. He was acquitted at trial.
Issue:
Did the trial judge err when he instructed the jury that it must find BRD that Blondin knew that the substance in the
tank was hashish?
Held:
Yes. Appeal allowed
Ratio:
[Robertson]:
- An essential ingredient of the offence is the importation of a narcotic - would thus not be sufficient to find that
Blondin knew that the substance in the tank was illegal and did not know it was a narcotic. [Must show
knowledge that substance is a narcotic]
- BUT…mens rea requirement (knowledge) would be satisfied by finding that Blondin knew that it was an illegal
substance AND either (1) knew that it was a narcotic; (2) was reckless about its nature; (3) willfully shut his
eyes to what it was (= infer that he suspected that it might be a narcotic).
[McFarlane]:
- Jury should have been instructed that onus on the Crown was to prove BRD that Blondin knew the substance
was a narcotic, although not necessarily hashish.
- Proof of knowledge: the existence of knowledge may be inferred as a fact, w/ due regard to all the
circumstances, if the jury finds that the accused has recklessly or wilfully shut his eyes or refrained from inquiry
as to the nature of the substance he imports.
[SH: if he knows it is an illegal substance - pretty easy to infer that he knew that it was a narcotic?…do you need to
show anything else?]
Rule:
Where a crime requires KNOWLEDGE, actual knowledge, R and WB is each sufficient. In the case of drug
trafficking or possession, the Crown must prove BRD that accused knew it was a drug, was aware that there was a
risk it was a drug but proceeded anyway OR was suspicious that it might be a drug but deliberately failed to make
further inquiry.
Commentary (SKLAR):
- Blondin was upheld in the S.C. but court did not discuss the issue of whether recklessness suffices for
knowledge.
- Sandhu overturned this holding; Sandhu was upheld in Vinokurov (AB C.A.)
- Note that Blondin gave his awareness away  "I guess I'm in for it". Would have been much more difficult to
prove R if he had said nothing  BUT…could have inferred awareness if "anyone was aware that there was
risk of substance in tank being a narcotic".
- Argument FOR the approach in Blondin: Eases burden on Crown; much easier to show BRD that accused was
aware of risk. Showing that he deliberately failed to make inquiry requires another step.
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CASE: R. v. Sandhu
R. v. Sandhu, [1989] ON C.A., page 516
Facts:
- Aplt returned to Pearson Int'l Airport from trip to India.
- Customs officials searched his bags and found 1lb of heroin sewn into the lining of two jackets and 2 g of
heroin in his wallet.
- At trial he testified that while in India he had an affair with a widow and that he agreed to be a courier for some
gifts she wanted to give her relatives. He also said that he was totally ignorant of the heroin he was carrying.
- He was convicted for importing heroin into Canada and for possession of heroin for purposes of trafficking.
Issue:
Did the trial judge err by instructing the jury that it had three bases on which to convict (i.e. to find that accused had
KNOWLEDGE): Actual knowledge OR wilful blindness OR recklessness?
Held:
Yes. Appeal allowed; new trial ordered.
Ratio:
- Jury was told that there were three bases on which to convict (actual knowledge, WB, R)
- Jury was not told that WB is the equivalent of actual knowledge, but different than R. WB is imputed
knowledge while recklessness is quite another thing.
- Where an offence requires KNOWLEDGE on the part of the accused, it is improper to instruct the jury that a
finding of recklessness satisfies that requirement.
- When statute says "knowingly", R is insufficient; WB is equivalent to actual knowledge.
- RECKLESSNESS IS LESS THAN KNOWLEDGE (it has an element of negligence)
Rule:
Where a crime requires knowledge, recklessness is not enough. WB will suffice because it is equivalent to
knowledge. But recklessness is NOT knowledge - it is less than knowledge.
[SH: Knowledge? Intent? Must provision say "knowingly"? Is WB enough for intent?
Willfull?)
Commentary (Editors):
- Was the court wise to exclude R as a satisfactory fault requirement for importing narcotics? In Blondin, R was
sufficient….and the decision was upheld by the S.C.C.!
- 1996 B.C. C.A. case (R. v. Oluwa)  dude on plane from Tokyo to Mexico City had swallowed drugs in order
to smuggle them into Mexico. There was a scheduled but announced stopover in Vancouver; the drugs were
discovered. He was convicted of importing narcotics into Canada
- The judges were divided: one said that "the accused was, at the very least, reckless, in that he was aware of
a risk that the plane would land in a place other than his final destination. The other said that "actual
knowledge of a constituent fact of the offence must be shown or it can be imputed from WB. R has no
application."
Commentary (SKLAR):
- Sandhu relied on the Zundel case  statute was "knowingly disseminating false information"
 Court had said that R would not be enough.
- We shouldn't criticize Blondin too much  R is a form of M/R (i.e. it is subjective) - along
with knowledge, desire [intent], and WB.
- Sandhu has a better legal argument  the court in Beaver held that this offence requires
KNOWLEDGE. Recklessness is NOT knowledge. Stuart (in the text) disagrees with the
Sandhu decision on policy grounds - seem to be no policy reasons to restrict M/R for
possession to WB and actual knowledge and exclude recklessness.
- Sklar is not happy with the decision, but for different reasons. Issue of law enforcement the Crown is entitled to a fair trial…but much more difficult to prove WB than R. Yet,
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degree of moral culpability is roughly the same. Thus, ease of enforcement outweighs a
moral culpability argument.
CASE: R. v. Vinokurov
R. v. Vinokurov, [2001] AB C.A., e-reserves
Facts:
Dude was in possession of stolen goods and denied knowing they were stolen.
Issue:
Does recklessness suffice for knowledge?
Held:
No.
Ratio:
- The offence in question requires proof that the accused "knows" that property had been
obtained from the commission of an indictable offence.
- It is well established in criminal law that wilful blindness will fulfill the mens rea
requirement. Wilful blindness is imputed knowledge, whereas recklessness is something less.
- Where a statute requires actual knowledge, wilful blindness will suffice because it is the
equivalent of actual knowledge, whereas recklessness is not and is insufficient.
RULE:
Affirmed Sandhu. Where knowledge is required, recklessness is insufficient.
Commentary:
Note that the issue in the vast majority of these cases is possession of something contraband.
WB not however limited to such cases - see Duong (accessory), Harding (wilful promotion of
hatred)
CASE: R. v. Harding
R. v. Harding, [2001] S.C.C., on e-reserves
Facts:
- Accused published pamphlets that said that Muslim religion is full of violence and poses
threat to our children.
- He was charged with the wilful promotion of hatred
- He argued, in his defence, that he didn't intend to include all Muslims; that he was only
talking about Muslim terrorists and radical fundamentalists. He said that his purpose was the
"wake up Christians to the need to Evangelize".
- Trial judge didn't believe him and found that he INTENDED to promote hatred.
Issue:
Does the mens rea requirement for wilful promotion of hatred include wilful blindness?
Held:
Yes.
Ratio:
- Meaning of wilfully in the context of this statute was interpreted in B v. D as requiring that
the accused subjectively desires the promotion of hatred or foresees such a consequence as
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certain or substantially certain to result from an act done in order to achieve some other
purpose.
- Wilful blindness is just short of actual knowledge. Actual knowledge includes personal
knowledge and imputed knowledge
- If a party has suspicion aroused but deliberately omits to make further inquiries, b/c he
wishes to remain in ignorance, he is deemed to have knowledge.
- To satisfy the mens rea requirement for wilful blindness as defined by McIntyre J. in
Sansregret, the actor must first have 1) a subjective realization 2) of the likely result of his
actions and 3) deliberately avoid actual knowledge while engaging in or pursuing the activity
- Wilful blindness is more than mere recklessness. Criminal law treats wilful blindness as
equivalent to actual knowledge because the accused "knew or strongly suspected" that
inquiry on his part respecting the consequences of his acts would fix him with the actual
knowledge he wished to avoid.
RULE:
Wilful blindness must be seen in the context of the appropriate M/R; it must be consistent with
the level of knowledge for that M/R. Where the offence requires a M/R of "wilfully", the
accused was "wilful" if he was wilfully blind to the fact that the prohibited consequence was
certain or substantially certain to result. I.E. He suspected that it was a certain result, but
deliberately failed to make inquiry that would fix him with ACTUAL knowledge that he wished
to avoid.
CASE: R v. Duong
R. v. Duong, [1998] ON C.A., page 521
Facts:
- L committed murder. He called up accused, indicated that he was in trouble for murder, and asked the accused
if he could stay in his apt.
- The accused allowed L to hide in his apt for about two weeks; the police raided it and found L hiding in the
bedroom.
The accused told police that L had told him that he was in trouble but that the accused didn't want to know
anything more b/c he knew he would be in trouble for helping him hide.
- The accused was convicted of being an accessory after the fact to the murder committed by L, pursuant to S.
23(1) of the Criminal Code.
Issue:
Held:
Appeal dismissed?
Ratio:
- S. 23(1) provides that an "accessory" after the fact to an offence is one who, knowing that a person has been a
party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
- Wrt knowledge requirement, the Crown must prove that the accessory after the fact knew of the specific offence
committed by the person assisted. The Crown will meet its burden if it proves that the accused had actual
knowledge of the offence committed.
- In the criminal law, WB is equated with actual knowledge. Where the Crown proves the existence of a fact
AND knowledge of that fact is a component of the fault requirement of the crime, WB as to the existence of that
fact is sufficient to establish a culpable state of mind. Liability based on WB is subjective.
-
Aplt argues that WB can only be relied on if the accused whose suspicions were aroused actually had thee
means to verify the accuracy of those suspicions - aplt speculated that L would likely not have told him he had
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committed murder. [court rejects this: Liability turns on the decision not to inquire once real suspicions arise
and not on the hypothetical result of inquires which were never made].
Aplt also argues that even if WB blindness applies in this case, the judge erred in finding that the aplt was
wilfully blind to the fact that Lam was a party to murder. Aplt says his suspicions did not extend to murder
(rather merely to some possible involvement - e.g. witness to murder) [court rejects this also: fact that the aplt
may have contemplated other possible connections btwn L and the murders afforded no bar to finding that he
was WB to the fact that Lam was a party to murder].
Rule:
Where Crown proves existence of a fact and knowledge of that fact is a component of the fault requirement of a
crime, WB as to the existence of that fact is sufficient to establish a culpable state of mind.
Commentary:
See the words spoken to the police - this is classic WB!
G - The Charter Impact on Substantive Criminal Law
Murder
-
See Vaillancourt and Martineau above
Martineau: minimum constitutional standard for murder is subjective foreseeability of death.
Following Martineau, the profession waited with bated breath  What was to be the fate of
S. 222(5)(a)? (unlawful act manslaughter) which has an objective test - mere objective
foreseeability of bodily harm (recall Smithers and Jobidon).
Introduction: The M/R for Predicate Offences
Predicate offences involve an underlying offence with its own M/R requirement and a RESULT
(usually bodily harm or death). Desousa and Creighton dealt with the same issue: what should
the M/R be for the RESULT?
After Martineau and Vaillancourt, the profession thought that S. 7 might require subjective
foresight for all predicate offences - but the S.C. retreated a bit after these cases.
Unlawfully Causing Bodily Harm
CASE: R. v. Desousa
R. v Desousa, [1992] S.C.C., page 571
Facts:
- Accused involved in fight on New Year's Eve
- He threw a bottle against a wall and a glass fragment struck a bystander and injured his arm (eye?).
- Accused was charged with unlawfully causing bodily harm contrary to s. 269.
- Accused challenged s. 269 on the grounds that it contravened S. 7 of the Charter.
Issue:
How should s. 269 be interpreted (wrt its required mental element)? Does such an interpretation violate Charter s.
7?
Held:
No violation of s. 7.
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Ratio:
- There should be no responsibility without personal fault (unless statutory language mandates such absence in
clear and unambiguous terms). [SH: unless statute says no fault = must be subjective M/R for at least one
element of the A/R?]
- Mental element in s. 269 is composed of two elements: (1) mental element of underlying offence; (2)
additional fault requirement supplied by the word "unlawfully".
[1] Mental Element of underlying offence:
- The underlying "unlawful" offence must be a federal or provincial offence and cannot be one of absolute
liability (i.e. must HAVE a mental element); the mental element of the underlying offence must be
constitutional.
[2] The meaning of "unlawful" in s. 269
- The word "unlawful" imports an additional mental element into s. 269. The test: objective foreseeability of
harm for all underlying offences; that is the "unlawful" act must be one that is likely to subject another person to
DANGER or harm or injury. This bodily harm must be more than merely trivial or transitory and will in most
cases involve an act of violence done deliberately to another person. The act must be OBJECTIVELY
DANGEROUS (= objective foreseeability of harm). [Would a reasonable person inevitably realize that the
underlying act would subject another person to risk of bodily harm?]
Constitutional Sufficiency:
- Fundamental justice only requires objective fault requirement (at minimum). Stigma and high penalty would be
reason to require a subjective standard; S. 269 has neither the stigma nor criminal sanction to require a more
demanding mental element.
Subjective Foresight?
- Accused argued that Charter s. 7 requires subjective foresight of all the consequences which comprise the A/R
(and thus s. 269 requires intention to cause bodily harm).
- Court: requirement of subjective foreseeability was not meant to be set out as an overriding principle of
criminal law.
- S. 7 of the Charter does not mandate intention in regard to all of the consequences required by the offence.
- There must be an element of personal fault in regard to a culpable aspect of the A/R but not necessarily in
regard to each and every element of the A/R. No principle of fundamental justice prevents Parliament form
treating crimes w/ certain consequences as more serious than crimes which lack those consequences.
- It is acceptable to distinguish btwn criminal responsibility for equally reprehensible acts on the basis of the
harm that is actually caused.
Rule:
Required M/R for predicate offences (unlawfully causing bodily harm specifically): UNDERLYING OFFENCE:
(1) federal or provincial offence; (2) cannot be absolute liability; (3) dangerous act (?). RESULT: Must be
objective foreseeability of bodily harm that is not trivial or transient. In most cases it will be an act of violence BUT
in all cases must answer the Q  Would a reasonable person inevitably realize that the underlying act would subject
another person to risk of bodily harm? (Higher risk = more likely that reasonable person would foresee).
No constitutional requirement that intention be extended to all elements of the A/R (i.e. S. 7 does not require that
accused must intend all the consequences) - it is enough that there is an element of personal fault in regard to ONE
culpable aspect of the A/R.
Commentary:
Unlawful Act Manslaughter
CASE: R. v. Creighton
R v. Creighton, [1993] S.C.C., page 579
Facts:
Accused injected cocaine into his friend's vein. She died.
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Note that "drug trafficking" includes drug "use". Thus, the unlawful act in Q here is drug trafficking (M/R =
knowledge [Beaver], thus must show BRD that accused knew that he was injecting a drug (and not something else)
into her veins).
Issue:
Does a constitutionally valid test for unlawful act M/S require reasonable foresight of death or merely reasonable
foresight of bodily harm?
Held (5:4):
Requires reasonable foresight of bodily harm
Ratio:
- s. 222(5)(a) does not expressly require foreseeability of bodily harm. Since Desousa it must be interpreted as
requiring such foreseeability. The test of mens rea for unlawful act manslaughter: mens rea of underlying
offence PLUS objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the
context of a dangerous act. Foreseeability of risk of death is not required.
- Lamer (writing for minority) found the test to be unconstitutional for two primary reasons: (1) gravity of the
offence and stigma that attaches; (2) considerations of symmetry btwn the element of fault and the
consequences of the offence. Majority challenges both of these.
Gravity of the Offence
- Stigma - the stigma attached to M/S is an appropriate one. Stigma is not one of intentional killer. "The most
impt feature of the stigma of manslaughter is the stigma which is not attached to it"
- Punishment - No minimum sentence for M/S therefore punishment can be tailored to the degree of fault.
(flexibility of punishment)
Symmetry btwn fault and consequences of offence
- Criminal law has traditionally aimed at symmetry btwn the mens rea and the prohibited consequences of the
offence.
- The majority argues that the M/S offence cannot be deemed unconstitutional on this basis. Give two reasons for
this:
- [1] Rests on the proposition that the risk of bodily harm is appreciably different from the risk of death in the
context of M/S - To say that they are different is tantamount to abrogating the thin skull rule. Requiring only
foreseeability of bodily harm is consistent w/ this rule - take your victim as you find him. Wherever there is a
risk of harm, there is also a practical risk that some victims may die as a result of the harm. This suggests that
the mens rea and the consequence are not very disparate.
- [2] Rests on the proposition that the principle of absolute symmetry is not just a general rule but a principle of
fundamental justice. BUT criminal law has exceptions to the ideal of perfect symmetry. Impt to distinguish
btwn criminal law theory, which seeks the ideal of absolute symmetry, and the constitutional requirements of
the Charter - "the Constitution does not always guarantee the ideal". To satisfy the principles of fundamental
justice requires only that an element of moral culpability is present AND that it is proportionate to the
seriousness and consequences of the offence charged.
RULE:
The test of mens rea for unlawful act manslaughter: mens rea of underlying offence PLUS objective foreseeability
of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of
risk of death is not required. Objective foreseeability of bodily harm = Would a reasonable person in the position of
the accused have been aware of the risk of bodily harm? (Creighton #2: don't tailor the reasonable person standard)
Commentary:
- Note that Creighton involves a non-violent act - that passes muster under DeSousa b/c court
says that will in "most cases" involve an act of violence…but not in all.
- Note that Dickson in Smithers held that need no objective foreseeability of bodily harm (that
mere trivial harm would be enough). Trivial harm is no longer enough! Shanks would
probably be decided differently today - b/c no objective foreseeability of non-trivial harm.
- Many people thought that offences without requirement of subjective foreseeability of harm
would be held to be unconstitutional - nope!
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Note the general rule (it was in B v. D)  normally, the M/R of the offence should relate to
the consequence of the prohibited A/R (death in this case). M/S was seen to be an exception
to this general rule.
CASE: R v. Krushel
R. v. Krushel, [2000] Ont. C.A., page 586
Facts:
- Krushel convicted of criminal harassment under s. 264.
- He challenged the conviction on the grounds that s. 264 infringed S. 7 of the Charter. He
argued that it failed to require that the accused have the intention to cause the victim to fear
for their safety or the safety of anyone known to them. (i.e. that section lacked a mens rea
requirement attaching to the consequence of reasonable fear)
Issue:
Does s. 264 infringe S. 7 of the Charter?
Held:
No.
Ratio:
- McLachlin in Creighton explicitly rejected that s. 7 requires that there be symmetry btwn
mens rea and each consequence of an offence. DeSousa: There need only be a sufficiently
blameworthy element in the A/R to which the culpable mental state attaches.
- There is in s. 264 a sufficiently blameworthy element in the A/R to which the culpable
mental state attaches, thus foresight of the prohibited consequence of causing actual fear is
not required in order to hold the accused responsible for the results of his or her unlawful
activity.
- [There must be knowledge or recklessness as to whether the person is harassed. But no M/R
wrt causing the fear. Must merely be objective foreseeability that actions will cause fear.]
Commentary:
- Holding is consistent with DeSousa - objective foreseeability that actions will cause fear.
Must be at least objective foreseeability with respect to prohibited consequence. (so long as
there is M/R for underlying offence)
Aggravated Assault
R. v. Godin [1993], S.C.C. p. 504
Issue:
- What state of mind is needed under s. 268(1) for the maiming, wounding, disfiguring…?
- The S.C.C stood by DeSousa and Creighton and chose intent to apply force with objective
foreseeability of the risk of bodily harm for s. 268(1).
- Need subjective M/R for the dangerous act, and objective foresight that bodily harm will result.
S. 268
Everyone commits an aggravated assault who wounds, maims, disfigures or
endangers the life of the complainant.
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- SKLAR: this requires objective foreseeability of risk bodily harm and intention to apply force
(underlying offence is assault - requires intention to apply force). This follows Desousa and
Creighton.
- Note that nowhere does it say “knowingly causes” – which would be subjective.
- Note that the debate was what the M/R needed to be for the maiming, wounding, disfiguring
should be. They came up with that the there must be objective foreseeability for the risk of
bodily harm. Others wanted a higher standard and pushed for an objective foreseeability test
for the risk of wounding, maiming, disfiguring…
H - Criminal Negligence
Objective Crimes: Note p. 454
- There are many crimes in the code that have objective standards “ought to” “reasonable care”
language used.
- The list includes common intent for accessories s. 21(2), dangerous driving 249(1)(a), treason
46(2)(b)…..
- Manslaughter and criminal negligence fall into this field.
H.L.A. Hart, Subjective and Objective p. 505
- We all think that it is crucial that whom we punish should have had, when they acted, the
normal capacities, physical and mental, for doing what the law require and abstaining form
what it forbids, and a fair opportunity to exercise these capacities  for this reason we hate
strict liability offences.
- When these things are not present (maybe because of mistake, accident, involuntariness…) we
say that it is morally wrong to punish because “he could not have helped it.”
- Notes that there is no reason always to protest when someone “just didn’t think” is punished
for carelessness (he says this is O.K.).
- When negligence becomes punishable, this leaves open the question whether, before we
punish, both or only the first of the following 2 questions must be answered affirmatively:
(a) Did the accused fail to take those precautions which any reasonable man with
normal capacities would in the circumstances have taken?
(b) Could the accused, given his mental and physical capacities, have taken those
precautions?
- Note that if our conditions of liability are not flexible i.e. not adjusted to the capacities of the
accused, then some individuals will be held liable for negligence though they could not have
helped their failure to comply with the standard.
- It is possible to argue that no legal system could afford to individualize the conditions of
liability to excuse all those who could not attain the reasonable man standard.
- “If every characteristic of the individual is taken into account, including his heredity the
conclusion is that he could not help doing as he did.”
- Suggests this test:
(a) What would the reasonable man with ordinary capacities have done in these
circumstances?
(b) Could the accused with his capacities have done that? (reference to factors like
lunacy should be made in answering this question).
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POINT: wants to show that the belief that criminal responsibility for negligence is a form
of strict or absolute liability, rests on a confused conception of the “subjective element” and
its relation to responsibility.
SKLAR  The Objectivist-Subjectivist Debate
- Subjectivists argue that deterrence and blameworthiness require subjective awareness (at
least a recklessness test for criminal negligence). E.g. Williams argues that you cannot deter
people from being careless and not thinking; can only deter people from taking known risks.
- Objectivists (like Hart) disagree. An objective test would supply an additional motive to take
care before acting.
- The debate in all these cases (and amongst commentators)  Should negligence by an
objective standard ever be a crime? Creighton settles it in Canada - objective test.
s. 219
(1) Criminal Negligence – 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 purpose of this section, “duty” means a duty imposed by law.
**Note that S. 219 is NOT a crime! It is merely a def'n (or a "state of mind") upon which some
crimes are based (S. 222 death caused by criminal negligence; criminal negligence causing
bodily harm, etc.)
Example:
- A person is driving, approaches a curve, he is in a rush so he passes the car on the curve
(across a double line) and has a head on collision, killing the other driver.
- Charged with criminal negligence or manslaughter (same thing).
- A/R  killed someone.
- M/R  what is it? Assume it occurs to him that he was passing on a blind curve and that
another car may be coming (i.e. turned his mind to the risk of the accident, but did it anyways)
= subjective and reckless.
Example:
- Listening to radio, gets excited, listening to baseball he is concentrating on the game, not
thinking of the possibility that another car may be coming – if we punish him for this then it
would be an objective standard  McIntyre J. agrees with this approach.
- He is not reckless here, and that is why to get him, we’d need an objective standard.
- Creighton ends up establishing that it is the objective standard that we follow.
Example:
- Driver has mental disorder called impulsivity which does not allow him to think like a
reasonable person.
- H.L.A. Hart says that on an objective test, always take capacity into account.
- Don’t take all factors into account but physical and mental capacity are there.
- Should an illiterate person be held to regular standard? Probably this goes to education.
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- If he has medicine and takes it – he is not negligent, if he has medicine and doesn’t take it, he
is criminally negligent.
R. v. Tutton and Tutton [1998], S.C.C. p. 462
Facts:
- Child is diabetic and needs insulin.
- Parents are members of a religious sect, and they believe that g-d gas the power to cure
things that are beyond modern medicine.
- The mother prays, and believes the child is cured, stops the insulin.
- Then the child is taken to the hospital, and saved, and the doctor tells her she must give the
child insulin.
- She gets another vision from g-d, and thinks that the child is cured. Stops insulin, and the
child dies.
- Accused of causing the death (222) by criminal negligence (219) by failing to provide the
necessaries of life. (216)
Issue:
Is the test for criminal negligence objective or subjective? That is, can she be let off if she
honestly but unreasonably believed that g-d cured her child (subjective), or does that belief have
to be reasonable (objective)?
Held: 3-3 split
[McIntyre J (L’H-D concurring): Objective approach]:
- “Negligence connoted the opposite of thought-directed action”
- “The test is that of reasonableness, and proof of conduct which reveals a “marked and
significant departure” from the standard which could be expected of a reasonably
prudent person in the circumstances will justify a conviction of criminal negligence.”
- Circumstances will be taken into account in determining what reasonable is.
- The word “reckless” here is not used in the same sense as reckless in Sansregret, meaning
subjective.
[Lamer J.]:
- Concurs with McIntyre, but adds that “when applying the objective norm set out by
Parliament in s. 219 of the criminal code, there must be made ‘a generous allowance’ for
factors which are particular to the accused, such as youth, mental development, and
education.”
[Wilson J (Dickson and Laforest concurring) subjective test]:
- “I do not…agree with my colleagues that criminal negligence under [s. 219] consists only of
a breach of an objective standard and does not require the crown to prove that the accused
had any degree of guilty knowledge.”
- “By concluding that [s.219] prohibits conduct and the consequences of mindless action
absent any blameworthy state of mind, they have, in effect, held that the crime of criminal
negligence is an absolute liability offence. Conviction follows upon proof of conduct which
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reveals a marked and substantial departure from the standard expected of a reasonably
prudent person in the circumstances regardless of what was actually in the accused’s mind at
the time the act was committed.
Sault Ste Marie said there cannot be a criminal sanction for an absolute liability offence.
“The words ‘wanton or reckless disregard for the lives and safety of other people’ signifies
more than gross negligence in the objective sense. It requires some degree of awareness or
advertence to the threat to the lives or safety of others or alternatively a wilful blindness to
that threat which is culpable in light of the gravity of the risk that is prohibited.
“it is my view that the jurisprudence of this Court to date establishes that the criminal
negligence under [s. 219] is advertent negligence.”
“Adoption of an objective standard creates…the possibility of a Charter violation”
“To require, as my colleague does, that all misperceptions be reasonable will, in my view,
not excuse many of those who, through no fault of their own cannot be fairly expected to live
up to the standard of the reasonable person.
Re: Lamer’s approach “I am cautiously sympathetic to attempts to integrate elements of
subjective perception into criminal law standards that are clearly objective…It tells the jury
simply to lower the standard of conduct expected from such people regardless of whether in
the particular case the accused attained the degree of knowledge that I have set out above.
Also, these subjective elements “may be under inclusive for those who have idiosyncrasies
that cannot be articulated ex ante into the necessarily limited list of personal characteristics
that can be grafted on to an objective standard”
POINT: Look at objective or subjective test, split 3:3 so don’t know answer – Creighton
settles it.
Commentary:
- Wilson J. looks for recklessness – an objective state of mind.
- McIntyre p. 465 uses the welder example to show that the objective test cannot be made in a
vacuum. She says that if you look at a welder who has been told by the owner that there is no
flammable material around him and a spark hits something and causes an explosion – look at
the reasonable person guarded with this information.
- If std. for crim neg was objective  Crown would have to prove BRD that the parents were
aware (or knew) of a RISK that death would be caused (leave out "risk" = murder). Much
easier to prove objectively that they should have been aware of the risk.
Marked Departure Test p. 478
- Creighton provides a new approach to the interpretation of objective crimes.
- The court here is unanimous in requiring a marked departure from the standard of care of
the reasonable person.
- Note the court is divided 5:4 on if personal factors could be considered in applying these
objective standards. McLachlin J. for the majority decided that no individual factors short of
incapacity could be considered.
R. v. Creighton [1993], S.C.C. p. 478
Issue:
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Looked at the meaning of negligence in the criminal law.
Ratio:
[McLachlin J.]:
- Objective mens rea is not concerned with what the accused intended or knew. The fault lies in
failure to direct the mind to a risk which the reasonable person would have appreciated.
- A predicate offence involving carelessness or negligence must be read as requiring a "marked
departure" from the standard of the reasonable person.
- There is some debate about the degree to which personal characteristics should be reflected in
the objective test for fault in criminal negligence. BUT, policy dictates the maintenance of a
single, uniform legal standard of care for such offences, subject to one exception: incapacity to
appreciate the nature of the risk which the activity in Q entails  Does the person lack the
capacity to appreciate the consequences of their conduct?
- This is not to say that the Q of guilt is determined in a factual vacuum - must take in to account
all the circumstances - What would a reasonable person, in the circumstances, knowing what
the accused knew, have done?
[Lamer J.]:
- Agrees, it is the objective standard of the reasonable person that is to be used here.
- “The prosecution must demonstrate a marked departure from the standard of a reasonable
person…(up to here, same as McLachlin J.)…rather, it is in determination of what is
reasonable that the skill and expertise of the accused may be considered.”
- It should be emphasized that the relevant characteristics must be traits which the accused could
not control or otherwise manage (i.e. weak vision not intoxication).
- The reasonable person is expected to compensate for his or her frailties, to the extent he or she
is conscious of them and able to do so.
[LaForest J.]:
Still prefers subjective M/R
RULE:
Objective test for criminal negligence. Standard is marked departure from the standard of
reasonable person. Accused must be physically or mentally capable of attaining that standard.
Do not consider personal characteristics such as experience and inexperience BUT…do consider
what reasonable person IN THE CIRCUMSTANCES (knowing what accused knows) would
have done.
POINT: unanimous that it is objective, but 5:4 split on the idea of it personal
characteristics should be included in the reasonableness test – Majority says noting short of
capacity should be considered.
Commentary:
-
E.g. of incapacity  person with epilepsy has seizure while driving and kills someone. If
she doesn't KNOW that she has epilepsy, is incapable of appreciating the risk of driving.
Sklar doesn't agree with the majority's standard - it is unrealistic. He believes that experience
should be considered - e.g. standard of the reasonable doctor, police officer, etc. In a medical
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negligence case, doesn't make sense to ask what a reasonable person would have done reasonable people are not doctors and know nothing about medical care. It will be very
difficult for juries to ignore experience and training.
Three Types of Crimes since Creighton
FAULT FOR CRIMES
Subjective mens rea
-
Objective Negligence
offenses
Offences based on predicate
Subjective mens rea: aware of risk; all individual factors - e.g. murder, assault, break and
enter, theft, possession offences.
Objective Negligence: marked departure from objective norm, no individual factors short of
incapacity
Offences based on predicate offences: objective foresight of harm, no individual factors,
no marked limit (except for predicate offences of negligence) - e.g. unlawful act
manslaughter, unlawfully causing bodily harm, aggravated assault
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