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Amato v the Queen
All common law defences are kept
Enactment of Code did not stop courts from developing new common law defences
The common law would be allowed to develop defences not inconsistent with the provisions of the Code if the construction
adopted was perspective
No crimes not specified in the Code are punishable; caused by creation of Criminal Code in 1953
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Frey v Fedoruk
Crimes cannot be left to the whims of an official
There must be an explicit provision in the Code that was violated to constitute an offense
Acts that up to the present have not been held as criminal in any reported case, should not be declared as criminal
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R v Jobidin
Consensual fist fight occurs; one person dies; can we convict for manslaughter? Yes!
S.265(1)a in the Criminal Code defines assault as the intentional application of force to another person without the consent of the
other person
S.8 of the Code states that common law rules and principles apply to the extent that they are not inconsistent with the Code
Court is allowed to use common law principles to explain the outlines and boundaries of defence outlined in the Code IF there is
no clear language in the Code which indicates that the common law is displaced
There is none here.
The limitation demanded by s.265 as it applies to the circumstances of this appeal is one 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
policy consideration: fist fights/ brawls unlike sporting events where force is applied within the customary norms and rules of the
game, have an insignificant social value; they are not worthwhile
Dissent
The court moulded the common law to accord with its own view of what was in the public interest
Discarded the requirement of consent as an element in assaults in which actual bodily harm was either caused or intended;
exception were created for assaults that have some social value
United Nurses of Alberta v AG Alberta
Union fined $$$ for contempt of court; appeals on basis of s.7 in that criminal contempt is not codified
Criminal contempt although mentioned in s.9 of the Code is not codified; both its actus reus and mens rea are defined at common
law
No authority in support of the proposition that fundamental justice requires codification of all crimes
Definition of elements of codified crimes not infrequently requires recourse to common law concepts
The fact that according to Frey v Fedour the courts should not create new offences does not mean that the courts should refuse to
recognize the common law crime contempt of court which predated codification an which is preserved by s.9 of the Criminal code
Criminal contempt does not violate the Charter. It is neither vague nor arbitrary. A person can predict in advance whether his or
her conduct will constitute a crime
Common Law principle of contempt of court is valid despite not being codified.
Text
Codification is thought to advance some of the most fundamental values of the criminal law.
Values are captured in the maxim nullum crimen sine lege, nulla poena sine lege: There must be no crime or punishment except
in accordance with fixed, predetermined law
S. 11 (g) (i) codify related principles that crimes cannot be created nor punished on a retroactive basis
R v Nova Scotia Pharmaceutical Society
Issue: is s.32(1)(c ) of the Combines Investigation act which makes it an offence to “lessen, unduly, competition” unduly vague?
Vagueness can be raised under s.7 of the Charter, it is a principle of fundamental justice that laws may not be too vague
It can also be raised under s.1 of the Charter if the enactment is so vague that it does not satisfy the requirement that a limitation a
Charter rights be prescribed by law
Fair notice may not been given when enactments are in somewhat general terms in a way that does not readily permit citizens to
be aware of their substance, when they do not relate to any element of the substratum of values held by society
A law cannot be so devoid of precision in its content that a conviction will automatically flow from the decision to
prosecute
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When the power to decide whether a charge will lead to conviction becomes fused with the power to prosecute because of the
wording of the law, then a law will be unconstitutionally vague
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Note: S.7 Charter challenges to offences on the basis of vagueness almost always fail with the courts often stressing that a
limiting interpretation on expansively worded statutes is still possible
R. v. Heywood, 1994, SCC, p. 28-29 – VAGUENESS; OVERBREADTH
Facts: S.179(1)(b) of the Criminal Code: offence for a person with a past sexual violence conviction to be “found loitering in or
near a school ground, playground, public park or bathing area”
 A man with two prior convictions of sexual assault was found loitering in or near a playground Issue: Is the s. 179 overbroad or
vague and therefore a violation of s. 7 fundamental principles of justice[yes]?
Holding Maj (J. Cory): Vagueness and overbreadth are related in that both are the result of a lack of sufficient precision by the
legislature.
 Vagueness – the means of the law are not clearly defined.
 Overbreadth – the means of the law are too sweeping in relation to the objective.
o Overbreadth Test: Are these means necessary to achieve the state objective?
o If too broad, POFJ will be violated because the individual’s rights will have been limited for no reason
o The effect of over breadth is that in some applications the law is arbitrary or disproportionate
o S.179 is overbroad because: geographical scope (affects all public parks); temporal aspect (life with no process for
review); too broad in people it encompasses; prohibitions may be enforced against the knowledge of the accused.
Dissent (J. Gonthier): Not overbroad, law is designed to prevent re-offending.
 Majority would require ‘notice’ as a required principle of fundamental justice.
 Basic tenet of our legal system that ignorance of the law is not an excuse
Ratio: Law was held to be invalid on account that it was overbroad.
Cdn Foundation for Children, Youth and the Law v. Canada A.G., 2004, SCC, p. 29-37 – VAGUENESS; OVERBREADTH
Issue: Does CCC s. 43 authorizing the use of force “by way of correction towards a pupil or child if it does not exceed what is
reasonable under the circumstances” constitute a violation of the Constitution for being vague or overbroad?
Holding Maj (J. McLaughlin): significantly curtailed the defence offered under s. 43.
 A law is unconstitutionally (and therefore void) vague if:
o Does not provide an adequate basis for legal debate and analysis;
o Does not sufficiently delineate any area of risk; or
o Is not intelligible.
 Certainty is not required: Conduct can be guided by approximation which sometimes yields a narrow or broad set of options
 A law must set an intelligible standard both for the citizen it governs and the officials who must enforce it
 Concerns of giving too much discretion to law enforcement; violates the precept that individuals are governed by law, not
people
 The words of a statute must be considered in context, in their grammatical and ordinary sense, and with a view to the legislative
scheme’s purpose and intent
 Reasonableness can be determined by international treaty obligations, social consensus, expert evidence
 The fact that a particular legislative term is open to varying interpretations by the courts is not fatal
 When these considerations are taken together, a solid care of meaning emerges sufficient to establish a zone in which discipline
risks criminal sanction
 The determination must be objective, not subject, while still allowing context and circumstances
 Vagueness is not argued in the basis of a law being interpreted inconsistently in the past, but whether it is capable of providing
guidance in the future.
 S. 43 is not overbroad b/c it does not permit force that cannot correct or is unreasonable.
 Who may access the sphere is well identified : school teacher, parent; but what conduct falls within the sphere is not clear given
that conduct is defined as 1) by way of correction; 2) reasonable under the circumstances
 (1) is an exemption to the simple non consensual application of force
 (2) reasonableness can be determined by looking at Canada’s international treaty obligations, contemporary social consensus,
experts, judicial interpretation; the test is objective, it is wrong for judges to apply their own subjective views of what is
reasonable under the circumstances.
 (1) and (2) provide a consistent picture of the area covered by s.43: applies only to corrective force used against children older
than 2 but not teenagers and it cannot involve the use of objects and should not consist of blows to the head and it should not
relate to the gravity of the conduct attracting correction
 If it is the function of the appellate courts to rein in overly elastic interpretations, it is equally their function to define the scope
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of criminal defenses
Dissent (J.Arbour):
s. 43 is unconstitutionally vague.
Absent a constitutional violation, the reading down of a statutory defense as is done by the CJ amounts to judicial activism
The concept of reasonableness is widely used in the law is not in and of itself unconstitutionally vague. It functions as an intelligible
standard in many cases
The restrictions found by the CJ are far from self-evident and would not have been anticipated by parents or law enforcement
This has been a continual social debate, and the CJ thinks he is able to simply dismiss different conclusions because they do not
conform with a norm that was never apparent to anyone until now
S.43 is not in accordance with POFJ as it is unconstitutionally vague
Ratio: Test of unconstitutional vagueness and overbreadth.
R. v. Pare, 1987, SCC, p. 37-42 – CCC Interpretation; Rejects Strict Construction interpretation
Facts: Pare sexually assaults a boy, puts his pants on, waits two minutes and then strangles the boy to death. Pare was charged with
first degree murder, contrary to s. 214(5) – Murder is first degree when it takes place while committing indecent assault.
Issue: What is the interpretation of “while committing” Is this first degree murder, even though it happened 2 minutes after
the indecent assault[YES]?
Holding Maj (J. Wilson): An interpretation that runs contrary to common sense is not to be adopted if a reasonable
alternative exists.
 Rejects doctrine of “strict construction”
 Strict construction: criminal law is the most dramatic and important incursion that the state makes into individual liberty; the
seriousness of imposing criminal penalties of any sort demands that reasonable doubts be resolved in favour of the accused
 Applying the strict construction of “while committing” would lead to the strange result of the 2 minute pause in the assault
while the accused contemplated his next move resulting in a reduction in the offence to second degree murder.
 Important issues of criminal law should not hinge upon these kinds of arbitrary distinctions
 Where the act causing the death and the assault all form part of one continuous sequence of events, the death was caused “while
committing the assault”.
 This interpretation eliminates the need to draw artificial lines to separate the commission and the aftermath of indecent assault
 Single transaction approach: the continuing illegal domination of the victim which gives continuity to the sequence of events
culminating in the murder
 In this case, the murder was temporally and causally connected to the underlying offence. It formed part of one continuous
sequence of events, it was part of the same transaction à first degree murder
Ratio: Doctrine of strict construction rejected, law must follow common sense; use of single transaction approach
Bell Expressview v. Rex, 2002, SCC, p. 43-44 – Statutory Interpretation
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Holding (J. Iacobucci): The principle of statutory interpretation is that provided by Driedger: “Words are to be read in the
entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and in
intention of Parliament”.
The principle of interpretation that presumes a harmony, coherence and consistency between statutes dealing with the same subject
matter
Other interpretation principles only used where there is an ambiguity; it exists where the words are reasonably capable of more than
one meaning.
Woolmington v. D.P.P., H.O.L. 1935, p. 279 Burden of Proof cannot be reversed to defendant; Presumption of Intent rejected
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Facts: Woolmington accused of killing his wife with shotgun, he claims it went off accidentally. TJ gave jury instructions:
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“If you come to the conclusion that she died in consequence of injuries from the gun which he was carrying, you are put by the
law of this country into this position: The killing of a human being is homicide, however he may be killed, and all homicide is
presumed to be malicious and murder, unless the contrary appears from circumstances of alleviation, excuse, or justification”
The judge shifts BoP to defendant. Death was the sentence for conviction of first degree murder.
Issue: Can the BoP shift to the defendant to determine his innocence in criminal cases? [NO]
(Lord Sankey, NO): There is no situation that will arise in a criminal trial a situation where it is upon the accused to prove his
innocence. Prosecution must prove his guilt
It is simply sufficient for the accused to raise a doubt of guilt; he is not bound to satisfy the jury of his innocence.
It is not for the prisoner to establish his innocence but for the prosecution to establish his guilt
If there is a reasonable doubt in the minds of the jury created by evidence given by prosecution or defendant, then the
prosecution has not made out the case and the prisoner is entitled to an acquittal.
Ratio: The accused is entitled to the benefit of the presumption of innocence.
 Famous Quote: “Throughout the web of the English Law…. It is the duty of the prosecution to prove the
defendant’s guilt. (p. 283)”.
 First time the highest court in the British Court took a position on the “Presumption of Innocence”
Comments:
 1982 – Presumption of Innocence in s. 11(d) of Charter
R. v. Oakes., S.C.C. 1986, p. 284 BoP cannot be reversed upon defendant in crim cases.
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Facts:
S.8 of the Narcotic Control Act provides that if the court finds the accused in possession of a narcotic, he is presumed to be in
possession of the purpose of trafficking.
Unless the accused can establish the contrary, he must be convicted of trafficking
Issue: s.8 contains a reverse onus provision imposing a legal burden on an accused to prove on the balance of probabilities that he
or she was not in possession of a narcotic for the purpose of trafficking,
Does this offend the right to be “presumed innocent until proven guilty” guaranteed by s.11(d) of the Charter? ·
Reasoning
S.11(d) of the Charter constitutionally entrenches the presumption of innocence as part of the supreme law of Canada
The presumption of innocence is referable and integral to the general protection of life liberty and security of the person under s.7 of
the Charter; essential in a society committed to fairness and social justice
Accused faces graver social and personal consequence; loss of physical liberty; subjection to social stigma; ostracism from the
community
Reverse onus creating a burden of proof on a balance of probabilities the existence of a presumed, which is an important element of
the offence in question, violates the presumption of innocence in s.11(d)
S.1 reasonable limit: we are creating the Oakes test, bitch please!
The Court must be guided by the values and principles essential to a free and democratic society, respect for the inherent dignity of
the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, etc, etc
Is the reverse onus provision in s.8 a reasonable limit on the right to be presumed innocent until proven guilty beyond a reasonable
doubt as can be demonstrably justified in a free and democratic society?
Objective of curbing drug trafficking by facilitating the conviction of drug traffickers is a substantial and pressing concern
S.8 of the Act does not survive the rational connection test! Possession of a small or negligible quantity of narcotics does not
support the inference of trafficking
Presumption required by s.8 of the Act is over inclusive and could lead to results which would defeat rationality and fairness
Quote from R v Whyte: If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the
provision violates the presumption of innocence
R. v. Keegstra., S.C.C. 1990, p. 290 – Can infringe Presumption of Innocence, but held Reasonable limit; reversal of BoP
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Context: hate speech against Jews, in the classroom
Issue: Does the reverse onus on the truth defence under s.319 (3) of the Criminal code violate s.11(d)? If so, is this justified under
s.1?
Reasoning
The reverse onus in the truth defence operates to make it more difficult to avoid conviction where the wilful promotion of hatred
has been proven beyond a reasonable doubt
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the wilful promotion of hatred is hostile to Parliament’s aims
Placing the burden of proof on the accused is rationally connected to a valid s.1 objective
Requiring a more convincing demonstration that a hate-monger’s statements may be true is justified by the fact that a successful
defence provides an excuse despite the presence of the harm sought to be eradicated
The reverse onus is minimally impairing: having to prove truthfulness on the balance of probabilities is an understandable and
valued precaution against too easily justifying the harm
The reverse onus is justified under s.1 of the Charter
Dissent
The burden should be on the state because it has superior resources
The presumption of innocence should not depend on the percentage of cases in which the defence in question may arise
Only a countervailing state interest of the most compelling kind could justify the infringement
Difficult to see what benefits s.319(2) produces in terms of stemming hate propaganda, promoting social harmony and individual
dignity.
R. v. Downey., S.C.C. 1992, p. 291 Summary of s. 11(d) principles for BoP – Innocent until proven guilty
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The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable
doubt
If by the provisions of a statutory presumption, an accused is required to establish on a balance of probabilities either an element of
an offence or an excuse then it contravenes s.11(d). Such a provision would permit a conviction in spite of a reasonable doubt
Even if a rational connection exists between the established fact and the fact to be presumed, this would be insufficient to make
valid a presumption requiring the accused to disprove an element of the offence
Legislation which substitutes proof of one element for proof of an essential element will not infringe the presumption of innocence
if as a result of the proof of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond a
reasonable doubt of the existence of the other element. To put it another way, the statutory presumption will be valid if the proof of
the substituted fact leads inexorably to the proof of the other, However, the statutory presumption will infringe s.11(d) if it requires
the trier of fact to convict in spite of a reasonable doubt
A permissive assumption from which a trier of fact may but not must draw an inference of guilt will not infringe s.11(d)
A provision that might have been intended to play a minor role in providing relief form conviction will nonetheless contravene the
Charter if the provision must be proved by the accused
Statutory presumptions which infringe s.11(d) may still be justified pursuant to s.1 of the Charter
R. v. Lifchus., S.C.C. 1997, p. 292 Reas. Doubt in “ordinary, natural, everyday sense” is a mistake. BRD explained; sample
jury instruction
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Facts: The trial judge told the jury to use the phrase reasonable doubt in its ordinary, natural everyday sense. The Supreme Court
held this was an error.
Issue: A brief summary of what the definition should and should not contain. It should be explained that:
Reasoning: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all
criminal trials, the presumption of innocence;
the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;
a reasonable doubt is not a doubt based upon sympathy or prejudice;
rather, it is based upon reason and common sense;
it is logically connected to the evidence or absence of evidence;
it does not involve proof to an absolute certainty;
it is not proof beyond any doubt nor is it an imaginary or frivolous doubt;
more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty
must acquit.
On the other hand, certain references to the required standard of proof should be avoided. For example:
describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context;
inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important,
decisions in their own lives;
equating proof "beyond a reasonable doubt" to proof "to a moral certainty";
qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may
mislead the jury; and
instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition
as to the meaning of the words "beyond a reasonable doubt"
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on
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reason and common sense. It is logically derived from the evidence or absence of evidence
R. v. Starr., S.C.C. 2000, p. 294 Trial judge mistakenly described “real doubt.”
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Facts: The trial judge told the jury that the phrase" reasonable doubt” had no special connotation and it did not require proof of an
absolute certainty
Reasoning
It was not made clear to the jury that the Crown was required to do more than prove the appellant’s guilt on a balance of
probabilities
The trial judge did not give instructions that could be construed as having located the reasonable doubt standard above the
probability standard
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
Nearly all of the instructions given to the jury weakened the content of the reasonable doubt standard in such a manner as to suggest
that probability was the requisite standard of proof.
An effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to
proof on a balance of probabilities. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard
appropriately between these two standards
There was not substantial compliance with Lifchus principles
Dissent:
Lifchus mandates that a charge be examined in its entirety to determine whether the jury properly understood the concept of proof
beyond a reasonable doubt
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 while the judge told the jury that the words reasonable doubt had no special meaning
This was harmless error because he proceeded to give them all the legal information they required
Lifchus suggestions should not be used as a checklist, but rather a template
Conduct – Actus Reus(p. 301)
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Criminal liability can only exist when there is a valid definition in law of criminal wrong-doing
Principle of legality: excludes retroactive application; excludes impermissibly vague or overly broad legislation
Actus non facit reum nisi mens sit rea : an act is not guilty unless there is also a guilty mind
No criminally culpable act unless it is performed with a culpable mental state
Requirement for criminal conduct: no bar to the imposition of criminal liability for prohibited thoughts
Actus reus requires a (1) physically voluntary (2) act or omission, (3) sometimes in certain prescribed circumstances, and (4)
sometimes causing certain consequences
Contemporaneity/coincidence: principle governing the relationship between mens rea and actus reus
Contemporaneity
The offence cannot be proved unless the element of fault, the mens rea, and the actus reus coincide
The intent and the act must concur to constitute the crime
A temporal overlap between the mental fault and the prohibited conduct
The courts have resiled from an overly strict application of the contemporaneity requirement, preferring a more flexible
application of the doctrine
CML - Fagan v. Commissioner of Police [1969] UK (CB p. 302) – Contemporaneity; MR formed after AR started
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Facts: Appellant was convicted for assaulting a police constable.
The appellant drove forward toward the constable and stopped the car with the offside wheel on the constable’s foot. The engine of
the car stopped running. The appellant slowly turned on the ignition of the vehicle and reversed it off the officer’s foot. The
appellant had either turned the ignition off to stop the engine or turned it off after the engine had stopped running.
Issue: Whether the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest
on the foot OR whether his act is to be regarded as a continuing act operating until the wheel was removed
Reasoning:
An assault is any act which intentionally-or possibly recklessly- causes another person to apprehend immediate and unlawful
personal violence.
Assault is generally synonymous with battery: the actual intended use of unlawful force to another person without his consent
Where assault involves battery, it does not matter if it is inflicted directly by the body of the offender or through a medium
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controlled by the offender
Some intentional act must have been performed; a mere omission to act cannot amount to an assault
Once the act is complete it cannot be said to be a threat to inflict unlawful force upon the victim. If the act is continuing, there is a
continuing threat to inflict unlawful force.
For an assault to be committed both actus reus and mens rea must be present at the same time
Actus reus: action causing the effect on the victim’s mind
Mens rea: intention to cause the effect
It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed upon an existing act
But the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault
There was an act constituting a battery which at its inception was not criminal because there was no element of intention
It became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing
act
Dissent
The appellant’s fault was that he omitted to manipulate the car’s controls to set it in motion again
Not a legitimate use of language to speak of the appellant “maintaining” the car wheel on the constable’s foot ; rather he allowed the
wheel to remain he did nothing no proof that Fagan ever intended to hurt the officer
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CML - R. v. Miller [1982] UK CoA - (CB p. 305)
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Contemporaneity; reckless omission
Facts: Miller, a squatter, fell asleep onto a mattress after having lit a cigarette. He awoke to find the mattress smouldering, at which
point he just moved to another room. The house caught fire. Miller was charged with arson
Reasoning:
Just because the last thing that happened was an omission by Miller, it does not mean that he is not liable
An unintentional act followed by an intentional omission to rectify that act or its consequences, or reckless omission to do so when
recklessness is a sufficient mens rea for the particular case, can be regarded as an intentional act when reality and common sense so
require
Whether on the facts there is an element of adoption on the part of the offender of what he has done earlier by what he deliberately
or recklessly fails to do later is an important consideration
Miller’s conduct in relation to the mattress from the moment he lay on it with a lit cigarette until the time he left it smouldering and
moved to another room is one act
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Reasoning at Court of Appeal
In terms of criminal liability , it does not matter at what point of time before the resultant damage is complete a person becomes
aware that he has done a physical act which creates a risk that another’s property will be damaged
This is provided that at the moment of awareness he can either by himself or by calling assistance minimise the damage to the
property at risk
When instructing jury, use the word responsibility over duty
Duty suggests an obligation owed to another person whereas a criminal statute defines combinations of conduct and state of mind
which renders a person liable to punishment by the state itself
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CML - R. v. Cooper [1993] SCC (CB p. 307) – Contemporaneity – Not necessarily completely concurrent
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Facts: Accused charged with murder by manual strangulation, but he had no recollection of causing the victim’s death
Context: Trial judge directed to the jury that once the accused had formed the intent to cause the deceased bodily harm,
which he knew was likely to cause her death, he need not be aware of what he was doing at the moment she actually died.
Issue: Was this a correct instruction for the jury? [It was fine.]
Reasoning:
It is not always necessary for the guilty act and the intent to be completely concurrent
It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing
act
An act which may be innocent or no more than careless at the outset can become criminal at a later stage when the accused
acquires knowledge of the nature of the act and still refuses to change his course of action
The determination of whether the guilty mind or mens rea coincides with the wrongful act will depend to a large extent
upon the nature of the act
It is reasonable for the jury to infer that when the accused grabbed the victim by the neck and shook her, there was at that
moment, the necessary coincidence of the wrongful act of strangulation and the requisite intent to do bodily harm; the
accused knew he was likely to cause her death
It is sufficient that the intent and the act of strangulation coincided at some point. It was not necessary that the requisite
intent continue throughout the entire two minutes required to cause the death of the victim
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Dissent
The intention to cause bodily harm does not lead inexorably to the conclusion that the accused knew that the bodily harm
was likely to cause death
There comes a point in time at which the wrongful conduct becomes likely to cause death. It is at this point or thereafter
that the accused must have a conscious awareness of the likelihood of death.
This awareness however need not continue until death ensures
CML - R. v. Williams [2003] SCC (CB p. 309) – Contemporaneity – Not necessarily completely concurrent
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Facts: Williams had unprotected sex with his partner before becoming aware of the fact that he was HIV positive.
On nov. 15 ’91, he learned that he was HIV positive. However, he continued to have unprotected sex with his partner.
Williams knew about the risks of transmission.
He was charged with aggravated assault. Court found that the accused was guilty of criminal assault and attempted
aggravated assault
Although sex was consensual, the law says that failure to disclose info that changes the nature and quality of an act vitiates
consent
Reasoning
Before nov. 15 ’91 there was endangerment but no intent
After Nov 15 ’91 there was intent, but there was also a reasonable doubt about the existence of the endangerment
This because it is not beyond a reasonable doubt that the partner was not already infected
If she was infect before Nov 15, there was no endangerment with intent after Nov 15 because someone cannot become
infected twice!
Note: A strong argument can be advanced for contemporaneity being a principle of fundamental justice
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Voluntariness (310-316)
Actus Reus is the requirement for voluntary conduct; a demand that the prohibited conduct be a product of the will of the accused
Physical involuntariness can cover a wide range of conduct, including reflexive action, sleepwalking, or accident
The element of control is necessary in order to attribute responsibility for conduct
One finds a theory of human agency at play in criminal law, a conception of agency that relies on a close relationship between
moral blame and free choice
But the choice must be made with a chance of contemplating the consequence complained of, or else it has no bearing on
responsibility for that consequence
R. v. Larsonneur [1933] UK Crim CoA (p. 311-312) – VOLUNTARINESS IGNORED
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Lasonneur granted a visa to UK. Her visa was revoked so she went to Ireland.
In Ireland the authorities ordered her deportation, and brought her to the UK, causing her to act against the terms of her visa.
The court held that she violated the condition of her visa by re-entering the UK
This case is now viewed as one which improperly ignored the voluntariness component of the actus reus; Lassoneur did not
decide to re-enter the UK, she was forcefully brought there)
Kilbride v. Lake [1962] N.Z. SC (p. 312-314) – VOLUNTARINESS APPLIED; DISTINCTION WITH MENS REA
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Facts: Appellant parked car and was given a ticket for his car not displaying a warrant of fitness. The warrant of fitness was
present on the car prior to its being parked.
Issue: Can something done lawfully by the appellant become an offence by reason of an intervening cause beyond his
influence and control, and which produced an effect entirely outside his means of knowledge?
Reasoning
If there is an absolute prohibition and the prohibited act is done by the defendant then the absence of mens rea affords no
defence. This principle derives its justification from the general public interest, and any consequential injustice which
might seem to follow in individual cases has necessarily been accepted
It is a cardinal principle that a person cannot be made criminally responsible for an act or omission unless it was done or
omitted in circumstances where there was other course open to him
The act or omission making up the actus reus must be voluntary
Voluntariness involves the free and conscious exercise of will in the case of an act, or the opportunity to choose to behave
differently in the case of omissions
Voluntariness is the mental stimulus required to promote acts, and it is entirely distinct from the mental element contained in
the concept of mens rea
Mens rea: intention or knowledge behind or accompanying the exercise of will
8
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Voluntariness: spark without which the actus reus cannot be produced at all
In this case there was no opportunity to take a different course and any inactivity on the part of the appellant after the
warrant was removed was involuntary and unrelated to the offence
The actus reus was not a result of the appellants conduct
R.v. King [1962] SCC (p. 314-315) – VOLUNTARINESS APPLIED
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Accused drove into a parked vehicle while he was under the influence of anaesthetics, he had not heard the warning from the
nurse instructing him not to drive
There is no actus reus unless it is the result of a wiling mind at liberty to make a definite choice or decision, there must be a
willpower to do an act whether the accused knew or not that it was prohibited by law
The concept of free will and meaningful choice is central to the idea of voluntariness
The SCC has built upon the concept of physical voluntariness to develop a broader conception of ‘moral’ involuntariees
applicable to defences such as the defence of duress
R. v. Ruzic [2001] SCC (p. 315-316) VOLUNTARINESS EXPLAINED
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Only those persons acting in the knowledge of what they were doing, with the freedom to choose would bear the burden and
stigma of criminal responsibility
Criminal liability is founded on the premise that it will be borne only by those persons who knew what they were doing and
willed it
A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal
It would infringe s.7 of the charter to convict an accused who was not acting voluntarily as a fundamental aspect of the actus
reus would be missing
What underpins the conception of voluntariness is the critical importance of autonomy in the attribution of criminal liability;
treat offenders as rational, autonomous and choosing agents
Punishing a person whose actions are involuntary is unjust because it conflicts with the assumption that individuals are
autonomous and freely choosing agents
(6) Acts, Omissions and Status (316-333)
The principle of contemporaneity and the requirement for physical voluntariness apply irrespective of the offence charged
Omissions or failures to act may be punishable in the criminal law
Action
Positive action is thus the ‘verb’ in the definition of criminal liability
Any complications related to the ‘act’ tend to be definitional in nature
Terms in the Criminal Code are often given a limited meaning in relation to specific offences. This means that words can mean
different by express definition
In instances in which Parliament has offered no guidance or definition specifying what is contemplated by a particular act, one
must look to the common law to find judicial interpretation of the term
Inaction (Omissions)
Punishing a person for ‘doing nothing’ raises far-reaching policy problems and, accordingly, the criminal law has been slow to
impose criminal liability for omissions
The starting point is that the criminal law will not punish for a mere failure to act
“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
The Criminal Code includes certain offences that explicitly punish the failure to act in a certain fashion. These are called specific
omission offences. Examples are found in s. 50(b), s.129(b,d,e), s.252(1)(a,b,c,)
These offences are based on omissions and are “self-contained” in that they imply a legal duty and then punish for failure to
discharge it.
The source of the greatest scope for the criminalization of omissions is in what we might call general omission offences. The
most notable is the crime of common nuisance and the definitions of criminal negligence
Neither specifies what legal duties might ‘plug in’, referring instead generally to a “duty imposed by law” or a “legal duty”
S. 215-217 set out a number of legal duties that can serve to ground liability for a general omission offence
A person who fails to perform one of these federally legislated duties might be liable for common nuisance or for criminal
negligence causing bodily harm or death if the other elements of those offences are satisfied
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CCC – ss. 180, 217 & 219
Common nuisance
180. (1) Everyone who commits a common nuisance and thereby
(a) endangers the lives, safety or health of the public, or
(b) causes physical injury to any person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a
legal duty and thereby
(a) endangers the lives, safety, health, property or comfort of the public; or
(b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada
Duty of persons undertaking acts
217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to
life.
Duty of persons directing work
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a
legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task
Criminal negligence
219. (1) Everyone is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.
CMN – R. v. Browne, 1997, (p.319-323), ON CoA – OMISSION FAILED – “UNDERTAKING” EXPLAINED & FAILED – S.217
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Facts: Grenier had swallowed a plastic bag containing cocaine to avoid detection by the police. Browne brought Grenier to his
house and found her shaking and sweating at 2 am. Browne told Grenier that he would take her to the hospital. Browne called a taxi
which arrived at the hospital at 2:45 am. Grenier was pronounced dead at 3:10 am
Browne charged with criminal negligence causing the death of Grenier by failing to render assistance to her by failing to take her
immediately to the hospital after undertaking to render such assistance
Issue: Only if the appellant can be found to have given an undertaking giving rise to a legal duty under s.217 can he be found
criminally negligent for omitting to do anything that is his duty to do within the meaning of s.219 of the Code
Reasoning
Under s.217 there is no pre-existing relationship or situation that creates a legal duty; there must be an undertaking before a legal
duty is introduced into the relationship.
The ordinary dictionary definition of ‘undertaking’ is of little assistance. When we are deciding whether conduct is caught by the
web of criminal liability, the threshold definition we apply must justify penal sanctions. The threshold must be sufficiently high to
justify such serious penal consequences
Before someone is convicted of recklessly breaching a legal duty generated by his undertaking, that undertaking must have been
clearly made, and with binding intent
Error made by trial judge was in reversing the analytical steps under s.217 by starting the analysis with whether a duty of care
existed, finding that it did, and then basing her finding of an undertaking on the existence of a legal duty. The inquiry should have
begun with whether there was an undertaking
The mere expression of words indicating a willingness to do an act cannot trigger the legal duty ; there must be something in the
nature of a commitment, upon which reliance can reasonably be said to have been placed
The evidence does not disclose any undertaking of a binding nature. “I’ll take you to the hospital” does not constitute an
undertaking under s.217.
Without an undertaking within the meaning of s.217, there can be no finding of a legal duty; there being no duty, there can be no
breach contrary to s.219.
R v Thornton
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 Use common law to define legal duty
Ontario Court of Appeal
 Thorton was charged with an offence contrary to s.176(a) of the Criminal Code of Canada, now s.180
180. (1) Every one who commits a common nuisance and thereby
(a) endangers the lives, safety or health of the public, or
(b) causes physical injury to any person,
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is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Definition
(2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to
discharge a legal duty and thereby
(a) endangers the lives, safety, health, property or comfort of the public; or
(b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in
Canada.
Facts
 Thornton knew that he was a member of a group which was highly at risk of contracting AIDS; that he had twice tested
positive for HIV, and that he was therefore infected. He knew that the Canadian Red Cross collected blood for transfusion,
and that AIDS is transmitted by blood. He also knew that the Red Cross would not knowingly accept donation of blood from
persons who had tested positive to HIV or who were members of his high-risk group.
 Thornton donated blood to the red cross
Issue
 Can 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?
 Is there a legal duty arising at common law the breach of which, assuming the other essential element of the offence were
proved, could be the basis of an offence under s.180?
Reasoning
 S.180(2) (a) provides that a common nuisance is committed by either:
o Unlawful act
 Means conduct which is specifically proscribed by legislation
o Failure to discharge a legal duty which endangers the lives or health of the public
 The Code does not make it an offence to donate contaminated blood
o Appellant’s conduct cannot constitute an unlawful act
 No cases deciding whether the legal duty in s.180(2) must be a duty imposed by statute or whether it can be a duty according
to common law
 Duty imposed by law which forms part of the definition of criminal negligence set out in s.219 of the Code has been held to
be either
o Duty imposed by statute
o Duty arising at common law
 Meaning given to duty imposed by law in s.219 should also be given to the legal duty contained in s.180(2)
o Legal duty referred to in s.180(2) is a duty which is imposed by statute or which arises a common law
 In civil matters there is a duty that requires everyone to refrain from conduct which it is reasonably foreseeable could cause
serious harm to other persons.
o This is a legal duty within the meaning of that term in s.180(2)
 Donating blood which one knows to be HIV contaminated, to an organization whose purpose is to make the blood available
for transfusion to other persons constitutes a breach of the common law duty to refrain from conduct which one foresees
could cause serious harm to another person
o This is a failure to discharge a legal duty within the contemplation of s.180(2); it is an offence known to law
 The statutory definition of a common nuisance contained in the Code ‘does not differ from a criminal common nuisance at
common law’
 Thornton introduced a risk of infection by recipients of the blood and by healthcare workers who handle contaminated blood
 S.180 requires that the conduct of a person “endanger” the lives or health of the public
o It does not require actual injury or damage
 Endanger means exposing someone to danger, harm or risk, or putting someone in danger of something untoward occurring
 When the gravity of the potential harm is great the public is endangered even where the risk of harm actually occurring is
slight, even if it is minimal. In the case at hand, the public was in danger from the moment the appellant donated his blood
 From the findings of the trial judge it is clear that the appellant had personal knowledge that he should not donate his blood,
that it was possible for it to get through the testing screen, and that it could cause serious damage to the life and health of
members of the public
 The appellant knew personally the danger to which the public was subjected by his donation of blood
o He had mens rea
Ratio
 Legal duty referred to in s.180(2) is a duty which is imposed by statute or which arises a common law
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Supreme Court
216. Every one 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
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knowledge, skill and care in so doing.
 S.216 imposed upon the appellant a duty of care in giving his blood to the Red Cross.
 This duty was breached by not disclosing that his blood contained HIV antibodies
***In R v Cuerrier the Court created and imposed a duty of disclosure in a manner that resembles the creation of a common law
duty; non-disclosure by the accused of his HIV-positive status foreclosed any possibility of valid consent, enforcing the duty of
disclosure in some circumstances. But I thought we weren’t allowed common law offences? We should defer action to the
legislator.
*** Criminal law is unsettled on duties that might be invoked to establish liability for omissions; it seems like such liability
should be limited to instances where Parliament, acting under its authority to enact criminal law, has created a statutory duty
*** Criminal liability for non-compliance with legal duties should be restricted to statutory duites enacted by Parliament in
reliance on s.91(27) of the Constitution
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Status
Some criminal offences punish when there is neither an act or omission; these are status offences
In the absence of an act or omission, status offences would effectively punish a state of being rather than what an individual
did or did not do
o Punish an individual for who he or she is rather than how he or she chose to act
o Lack of voluntary action
Concerns raised by pure status offences: criminal liability for a mere status offence offends s.7 of the Charter
Circumstances
Actus reus of an offence involves voluntariness and either an act or omission
It is common for the legislature to specific circumstances among the elements of an offence
Where there are such elements there as much a part of the actus reus as the element of voluntary conduct, and failure by the
Crown to prove such circumstances will lead to the acquittal on the charge
Statutory definitions are sometimes provided to assist in clarifying relevant circumstances that might otherwise be ambiguous
in large or small measure
Some circumstantial aspects of the actus reus might be clarified only through judicial interpretation
Go through page 333-336 for examples of finding the elements for an offence
Consequences and Causation
offences may be defined are defined in terms oof
o the existence of a voluntary act or omission completes the actus reus
o The outcome or consequence, such as causing death or bodily harm
When an offence specifies certain outcomes, the specified consequence itself generally poses little interpretive difficulty
o Sometimes the result that is prohibited is not a concrete event; the consequence might be a risk, as in fraud, where
the actions of the accused jeopardize the pecuniary interests of the victim
o Key issue tends to be whether the prescribed consequence was caused by the accused’s conduct
Where an offence prohibits a specified result, proof of causation is an essential element without which the prosecution must
fail
Causation in the criminal law is comprised of two elements:
o factual cause
 asks merely whether some logical link can be drawn between the accused’s conduct and the prohibited
consequence
o legal cause
 the more difficult question is deciding whether this causal connection is sufficiently strong to support
criminal liability
 one must turn to the common law to find the test and rules for legal causation
R v Winnipeg
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Example of failure to demonstrate a factual cause: no link can be drawn between the accused’s conduct and
the prohibited consequence
Charge
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 Appellant was convicted of obtaining credit from Eaton’s by false pretences
Facts
 Appellant applied for credit at Eaton’s filled out an application in which she made at least two false statements
Reasoning
 Had Eaton’s relied upon that application form, then she would have been guilty of the offence charged
 Eaton’s did not rely upon the information contained in the application
 The appellant did not obtain credit by false pretence because the credit was given not in reliance on her application, but rather
in reliance of Eaton’s investigation of her
Ratio
 Where no link can be drawn between the accused’s conduct and the prohibited consequence, the accused cannot be held
liable for the prohibited consequence. The conviction should not stand
Smithers v the Queen
 Causal connection must be sufficiently strong to support a finding of criminal liability
 Smithers establishes a very low threshold for causation in the criminal law
Charge
 Manslaughter for the death of Cobby
Facts
 Hockey, appellant who is black was subject to racial insults by Cobby and other members of the Applewood team (defence of
provocation is only applicable to a murder charge)
 The appellant made repeated threats that he was going to “get” Cobby
 Cobby’s teammates grabbed the appellant and held him. Appellant delivered a fast, hard kick to Cobby’s stomach area.
Within 5 minutes Cobby appeared to stop breathing
 Doctor who performed the autopsy testified that the death was due to the aspiration of foreign materials present from
vomiting
 Consensus amongst doctors that spontaneous aspiration was a rare an unusual cause of death in the case of a healthy teenager
such as Cobby.
Issue
 What is the threshold for causation in the charge of manslaughter?
Reasoning
 Factual determination of cause:
o Whether A caused B.
o The answer to the factual question can only come from evidence of witnesses
o It has nothing to do with intention, foresight or risk
 Expert evidence is admissible to establish factual cause
 The work of expert witnesses does not require them to distinguish between what is a cause, ie a real and contributing cause of
death, and what is merely a condition, ie part of the background of death.
 Crown had the burden of showing factual causation: that beyond a reasonable doubt the kick caused the death
 The issues of causation is for the jury and not the experst; the weight to be given to the evidence of the experts was entirely
for the jury
 Lay evidence in this case tended to show that all circumstances preceding the kick were such as to create in Cobby a highly
emotional state which might well have given rise to spontaneous vomiting, unassociated with the kick
 Must determine whether there was evidence on the basis of which the jury was entitled to find that it had been established
beyond a reasonable doubt that the kick caused the death
o Here there is a substantial body of evidence indicating that the kick was at least a contributing cause of death,
outside the de minimis range, and that is all the Crown is required to establish
o It is immaterial that the death was in part caused by a malfunctioning epiglottis
o Rex v Larkin: the act of the accused fell within the class of intentional crimes because he was engaged committing
an assault upon Nielsen, and the fact that he caused a different type of harm to that which he intended did not free
him from criminal responsibility
o The Crown was under no burden of proving intention to cause death or injury. The only intention necessary was that
of delivering the kick to Cobby. Nor was foreseeability in issue. It is no defence to a manslaughter charge that the
fatality was not anticipated or that death ordinarily would not result from the unlawful act
 Must determine whether there was evidence from which the jury was entitled to find that it had been established beyond a
reasonable doubt that the kick caused the aspiration
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o
A person commits homicide according to s.205 (1) when directly or indirectly by any means he causes the death of a
human being
o Once the relationship between the kick and the vomiting, leading to aspiration is established, the contributing
condition of a malfunctioning epiglottis would not prevent conviction for manslaughter
o One who assaults another must take his victim as he finds him; thin-skull rule applies to civil and criminal law
 Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some
way to the death
Ratio
 In the case of manslaughter the Crown must establish that the prohibited act was a contributing cause beyond the de minimis
range to the death of the victim
 For manslaughter, crown must not show intention to cause death, but only intention to commit the prohibited act
 It is no defence to a manslaughter charge that the fatality was not anticipated or that death ordinarily would not result from
the unlawful act
 One who assaults another must take his victim as he finds him
 Smithers establishes a very low threshold for causation in the criminal law
Holding
 The conviction stands
R v Cribbin
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Constitutionality of the test of causation
Charge
 Manslaughter
Facts
 The accused was involved in a beating that resulted in non-life threatening injuries and the victim’s unconsciousness
 The victim was left to the side of the road and he drowned in his own blood
Issue
 Is the objective standard of fault found in Smithers too low as to be contrary to the principles of fundamental justice
Reasoning
 In Smithers, Dickson held that on a charge of manslaughter, all the Crown has to establish is that the assault inflicted upon
the victim “was at least a contributing cause of death, outside the de minimis range”
o The fault element in the crime of manslaughter has now been authoritatively stated to require objective
foreseeability of bodily harm which is neither trivial nor transitory, in the context of a dangerous act, such that the
most trivial assault, not dangerous in itself and not likely to cause injury would not give rise to a conviction for
manslaughter if it did somehow cause the death
o The test articulated in Smithers must be understood in combination with the degree of fault expressed in the
requirement of objective foreseeability of death
 The appellants argument is that the de minimis test is said to be too remote to satisfy s.7 requirements
 Is the de minimis test too vague?
o Vagueness point can be dismissed because the appellant has not demonstrated in what way a different causation test
would add any precision to the rule; causation in criminal cannot be articulated with mathematical precision
o The constitutional standard of precision defeats the doctrine of vagueness
 Is the de minimis test too remote?
o The de minimis test must be taken to apply to murder as it does to manslaughter
 the actus reus of murder is indistinguishable from that of manslaughter
 what distinguishes the two is the different degree of fault required
 Murder: constitutional requirement of subjective foresight
 Manslaughter: the objective foreseeability of serious bodily harm
o Causation is a legal concept that addresses an aspect of the prohibited conduct and, as such, has significance only in
crimes where consequences must flow from acts or omissions
o Rare for causation to arise in murder cases
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if the jury is satisfied that the accused, in assaulting the deceased, intended to kill or intended to cause
bodily harm that he knew was likely to cause death, and was reckless as to the consequence, it will be rare
for the jury to have a doubt as to whether the accused actually caused the death that he intended
o Causation is essential to the law of manslaughter : it is the vehicle by which the same act or omission of the accused
will be defined as an assault or as homicide
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o
In light of the thin skull rule the distinction between foreseeability of death and foreseeability of bodily harm in
manslaughter largely disappears
o Smithers: the thin skull rule requires aggressors, once embarked on their dangerous course of conduct which may
foreseeably injure others, to take responsibility for all the consequences that ensue, even to death
 The idea of taking responsibility for the consequences of one’s actions expresses a link between causation
and fault
 The law of causation must be considered to be a principle of fundamental justice akin to the doctrine of mens rea
o It requires that the law should refrain from holding a person criminally responsible for consequences that should not
be attributed to him (Creighton)
o Criminal causation as a legal rule is based on concepts of moral responsibility
o Moral judgment is engaged when causation is used not merely as an expiation for the unfolding of events, but as a
way of making people account for their contribution to a result
Ratio
 Both causation and the fault element must be proved beyond a reasonable doubt before the prosecution can succeed
 Both requirements satisfy s.7 in that any risk that the de minimis test could engage the criminal responsibility of the morally
innocent is removed by the additional requirement of objective foresight
 The law of manslaughter stands if a person commits an unlawful dangerous act, in circumstances where a reasonable person
would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful act is at least a
contributing cause of the victim’s death, outside the de minims range, the person is guilty of manslaughter
Holding
 Conviction quashed
Pagett v. The Queen
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 Death of a victim as an immediate result of the act of a third party who was acting in self-defence
Charge
 Appellant was convicted of manslaughter
Facts
 Appellant shot at police officers who were attempting to arrest him
 Appellant had with him a 16-year-old girl who was pregnant by him, and against her will used her body to shield him from
any retaliation by the officers
 The officers returned the appellant’s fire and as a result the girl was killed
Issue
 Whether an accused person can be held guilty of homicide, either murder or manslaughter, of a victim the immediate cause of
whose death is the act of another person
Reasoning
 Circumstances in which the intervention of a third person, not acting in concert with the accused, may have the effect of
relieving the accused of criminal responsibility
 A reasonable act performed for the purpose of self-preservation being itself an act caused by the accused’s own act, does not
operate as a novus actus interveniens
 If the victim acted in a reasonable attempt to escape the violence of the accused, the death of the victim was caused by the act
of the accused
 One form of self-preservation is self defence; No distinction between an attempt to escape and a response of self-defence
 If a reasonable act of self-defence against the act of the accused causes the death of a third party, there is no reason in
principle why the act of self-defence, being an involuntary act caused by the act of the accused, should relieve the accused
from criminal responsibility for the death of the third party
 Note: An act done in the execution of a legal duty, an act caused by the act of the accused, it does not operate as a novus
actus interveniens
o The act is not a voluntary act independent of the wrongful act of the accused
Holding
 Conviction upheld
Ratio
 A reasonable act performed for the purpose of self-preservation being itself an act caused by the accused’s own act, does not
operate as a novus actus interveniens
 If a reasonable act of self-defence against the act of the accused causes the death of a third party, there is no reason in
principle why the act of self-defence, being an involuntary act caused by the act of the accused, should relieve the accused
from criminal responsibility for the death of the third party
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R v S.R.(J)
Acts contributing to but not causing the immediate death of the victim
Facts
 While participating in a gunfight the accused and one of his adversaries, B, exchanged gunfire
 B missed the accused but hit Jane Creba
Issue
 Is the accused guilty for the victim’s death?
Reasoning
 Each shooter induced the other to engage in a gun fight on a crowded street
 But for the decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms. Creba would not
have been killed
Ratio
 If one is engages in conduct which as a whole is dangerous, then even if he is not the immediate cause of a third party’s
death, he is still criminally liable, having created the factual situation giving rise to the death
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R v Menezes and R v Bhalru
If A and B are drag racing and B crashes, killing or injuring himself or another, A is a joint cause of the injury or death
If A withdraws from or abandons the race before the crash and B is aware of this abandonment and does not slow down, A is
not liable
R v Blaue
Charge
 Murder
Facts
 Defendant stabbed a woman with a knife
 Blood transfusion and surgery were necessary to save her life
 Woman refused to have blood transfusion on the ground that it was contrary to her beliefs as a Jehovah’s witness
 Woman died, cause of death: bleeding which would not have been fatal if she had accepted medical treatment when advised
to do so
Reasoning
 Those who use violence on other people must take their victims as they find them
o This means the whole man, not just the physical man. Therefore includes religious beliefs
 The question for decision is what caused her death. The answer is the stab wound
 The fact that the victim refused to stop this end coming about did not break the causal connection between the act and the
death
 If there is no conflict of evidence and all the jury has to do is apply the law to the admitted facts, the judge is entitled to
tell the jury what the result of that application will be
 A policy of tort law may not be appropriate for criminal law; We do not incorporate the principle that the wrongdoer is
entitled to expect his victim to mitigate his damage by accepting treatment of a normal kind
Holding
 Defendant convicted of manslaughter
Ratio
 Those who use violence on other people must take their victims as they find them, religious beliefs included
 The fact that the victim refused to stop their death from occurring did not break the causal connection between the act of
the accused and the death
R v Reid and Stratton
 Instructing the jury on contributing causes
Charge
 Manslaughter
16
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Facts
 Stratton and MacKay exchanged punches; Stratton grabbed MacKay in headlock, Reid administered some kicks
 After noticing that MacKay was no longer struggling Stratton let go; MacKay was unconscious
 Some in the group attempted resuscitation to no avail
 Some drove MacKay to hospital while continuing CPR; Reid and Stratton remained at the scene
 Uncontroverted evidence at trial that MacKay`s death was due to asphyxia after he aspirated on his stomach contents
 The botched attempts to resuscitate him brought on his death, when the pressure of physical resuscitation efforts forced large
quantities of vomit into his lungs
Issue
 How is the judge to instruct the jury in the case of intervening events?
Reasoning
 The trial judge did not provide any instructions to the jury on the intervening act and intervening cause as it related to CPR
 It is critical that the jury understands their obligation to consider whether or not any independent, intervening and exculpatory
factors occurred after the two accused’s acts, thereby severing the link in the chain which tied them to MacKay’s death
 It is inaccurate to tell a jury that the ‘independent’ intervening cause has to be such that it ‘overwhelms’ the original unlawful
act as a cause
 In order for culpable homicide to have been committed, the person accused of the crime must be shown to have caused the
death of a human being
 According to the uncontroverted medical evidence, the botched and lethal attempt to resuscitate him was the sole cause of
MacKay`s death
 It was open to the jury to conclude that if MacKay had simply been left unattended he may well have come to and returned to
consciousness on his own
 The intervening acts break the chain of causation. They interrupt the original infliction of injury. Some other act or event has
intervened before the death.
 The question for the jury is whether the initial injury can still be viewed as a significant contributing cause of the victim’s
death
 See page 357 for how the trial judge should have instructed the jury
1. Did the act amount to a significant contributing cause of Mackay’s death
2. Was the act so connected to the death that they can be said to have had a significant causal effect which continued
up to the time of death, without having been interrupted by some other act or event
Ratio
 Crown does not have to show that either Reid’s kicking or Stratton’s headlock was the sole cause of MacKay’s death. It is
enough for the Crown to prove to the jury’s satisfaction that it was a significant contributing cause of MacKay’s death
 If chain of causation is unbroken, or if no reasonable doubt about it, then the offence of manslaughter is made out
Holding
 New trial ordered
R v Harbottle


Is the very low threshold established by Smithers causation the only causation test in criminal law
distinctions in the degree of causation required for the different homicide offences
o s.231(5) first degree murder: different test than Smithers , substantial cause test higher threshold
of legal causation linked to particular words in the provision
Charge
 Guilty under s.214(5), now s.231(5)
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree
murder in respect of a person when the death is caused by that person while committing or attempting to
commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
Facts
17
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
Appellant held the victim’s legs to prevent her from continuing to kick and struggle while his companion strangled her; her
hands were tied
Issue
 Whether the appellant’s participation was such that he can be found guilty of first degree murder pursuant to s.214(5)
Reasoning
 Ample evidence upon which the jury could have found that the murder was planned and premeditated by both Harbottle and
Ross; the two went out of the room and discussed the murder of the victim
 What must be determined is the meaning of the words “when the death is caused by that person” as it appears in s.214(5)
o “caused” is broad enough to include both perpetrators and those who assist in the murder and come within the
purview of the substantial cause test
o What causal effect is required by “death… caused by that person”
 Physically caused test is too restrictive
 Paré: no sensible distinction existed between an accused who strangled his or her victim during the act of sexual assault and
an accused who sexually assaulted and then shortly thereafter strangled the victim
 It would be unreasonable to suggest that in order to be liable under s.214(5) Harbottle must have pathologically caused the
death of the victim by pulling one end of the bra strap while the co-accused pulled the other her (to strangle her)
o Impossible to distinguish between the blameworthiness of an accused who holds the victim’s legs thus allowing
the co-accused to strangle her and the accused who performs the act of strangulation
 First degree murder is an aggravated form of murder
o The gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of
blameworthiness, above and beyond that of murder, must be established in order to convict an accused of 1 st degree
murder
 At this point the requirement of causation set out in s.214(5) comes into play
 A restrictive test of substantial cause should be applied under s.214(5)
o Test will take into account the consequences of a conviction, the present wording of the section, its history and its
aim to protect society from the most heinous murderers
o Accused may only be convicted under the subsection if the Crown establishes that the accused has committed an act
or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of death
o R v Hallett: whether an act or series of acts consciously performed by the accused is or are so connected with the
event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the
happening of the event without being spent or without being sufficiently interrupted by some other act or event
 The substantial causation test requires that the accused play a very active role, usually a physical role in the killing
o This requirement is much higher than that described in Smithers , which dealt with the office of manslaughter
 An accused may be found guilty of first degree murder pursuant to s.214(5) if the Crown has established beyond a reasonable
doubt that
o The accused was guilty of the underlying crime of domination or of attempting to commit that crime
o The accused was guilty of the murder of the victim
o The accuse participated in the murder in such a manner that he was a substantial cause of the death of the victim
o There was no intervening act of another which resulted in the accused no longer being substantially connected to the
death of the victim
o The crimes of domination and murder were part of the same transaction; that is to say, the death was caused while
committing the offence of domination as part of the same series of events
 The evidence adduced clearly established all the elements of the test
Ratio
 higher threshold of legal causation linked to particular words “death… caused by that person” in the provision
Holding
 Appeal dismissed, the accused is guilty of first degree murder
18
R v Nette

The division in the court raises the question of whether the Smithers test remains intact or whether the
threshold for causation has been subtly changed by changing the wording of the test to positive terms
Charge
 Second degree murder
Facts
 Victim found dead in her bedroom
 Accused hog tied her; A garment was tied around her head and neck and entrapped her chin; the garment did not obstruct her
nose and mouth
 Nette’s neighbours saw two youths leaving through victim’s gate and run down the alley
 Victim died 24-48 hrs after being robbed and hog-tied; Cause of death was asphyxiation due to upper airway obstruction
 Nette told undercover RCMP about his involvement in the robbery and the death of the victim
 Appellant testified in his own defence
o Stated that he went to the house with the intention of breaking and entering, but it looked like someone had already
been there, and he found the victim already dead, so he left the home
o He said he made up the story to impress the undercover officer
 Medical expert was not able to isolate one factor that from among the circumstances of the victim’s death and that that it
alone caused her death by asphyxiation
Issue
 What is the standard of causation in second degree murder? Should we still use the Smithers formulation
Reasoning
Dissent
 Does not agree with suggestion to rephrase the standard of causation for culpable homicide set out in Smithers
o Smithers Test: contributing cause of death beyond the de minimis range
 The English version, and not the latin term, adequately reflects Smithers’ beyond the de minimis standard: a trivial cause that
is not trivial or insignificant
 Smithers standard is valid and applicable to all forms of homicide
 The removal of the double negative formulation from Smithers causation test would raise the standard without any reasons;
Using the words “significant and contributing cause” calls for a more direct causal relationship than the existing “not
insignificant” or “non trivial” test,
Majority
 Must determine the threshold test of causation that must be met before an accused may be held legally responsible for
causing a victim’s death in a charge of second degree murder
 To determine whether a person can be held responsible for causing a particular result, in this case death, it must be
determined whether the person caused that result both in fact and in law
o Factual causation: inquiry about how the victim came to his or her death, in a medical, mechanical, or physical
sense, and with the contribution of the accused to that result
o Legal causation: concerned with the question of whether the accused person should be responsible in law for the
death that occurred
 Informed by legal considerations such as the wording of the section creating the offence and the principles
of interpretation
 Reflects the principles of criminal justice such as the principle that the morally innocent should
not be punished
 The jury does not engage in a two-part analysis of whether both factual and legal causation have been established
o In the charge to the jury, the judge seeks to convey the requisite degree of factual and legal causation that must be
found before the accused can be held criminally responsible for the victim’s death
 The starting point in the chain of causation is usually an unlawful act in itself; when that unlawful act is combined with the
requisite mental element for the offence charged, causation is generally not an issue
 The mens rea requirement generally resolves any concerns about causation
o Where it is established that the accused had the subjective foresight of death or serious bodily harm likely to cause
death required to sustain a murder conviction, as opposed to the lower manslaughter requirement of objective
foreseeability of serious bodily harm, it would be unusual for an issue of causation to arise
 Statutory provisions, i.e. ss.222(5)(c) of the Code, pre-empt any speculation as to whether the act of the accused would be
seen as too remote to have caused the result alleged, or whether the triggering of a chain of events was then interrupted by an
intervening cause which serves to distance and exonerate the accused from any responsibility for the consequences
 Where factual causation does not fall within the Code, the common law general principles of criminal law apply to resolve
any causation issues that may arise
19

Civil law of causation does not help; criminal law does not recognize contributory negligence, nor does it have any
mechanism to apportion responsibility for the harm occasioned by criminal conduct
 To determine whether an accused is guilty of first or second degree murder, the first step for the trier of fact is to determine
whether murder has been committed pursuant to ss.229 230 of the Criminal Code
o Once this is established must determine whether the offence should be classified as first or second degree murder in
accordance to s.231 of the Code
 What Harbottle really stresses is not a higher causation requirement to raise murder to first degree murder under s.231(5) of
the Code, but rather the increased degree of participation required before the accused may be convicted of first degree murder
under s.231(5)
o The term substantial cause should not be used to describe the requisite degree of causation for all homicide offences
 The substantial cause test in Harbottle expresses the increased degree of moral culpability, as evidenced by the accused
person’s degree of participation in the killing, that is required before an accused can be found guilty under s.231(5) of first
degree murder
 The causation standard expressed in Smithers is still valid and applicable to all forms of homicide
o In the case of first degree murder under s.231(5), Harbottle requires additional instructions
 There is only one standard of causation for all homicide offences, whether manslaughter or murder
 Only potential shortcoming with Smither is in its articulation to the jury, not its substance
 To explain the standard as clearly as possible to the jury it may be preferable to phrase the standard of causation in positive
terms using a phrase such as “significant contributing cause” rather than using expressions phrased in the negative
 In deciding how causation is articulated to the jury, judges have discretion in choosing the terminology they wish to use to
explain the standard. Causation issues are case-specific and fact-driven. It is important to afford a trial judge with the
flexibility to put issues of causation to the jury in an intelligible fashion that is relevant to the circumstances of the case.
 In light of Harbottle, where the jury must be instructed on first degree murder under s.231(5) of the code, in addition to
manslaughter or second degree murder, the terminology of “substantial cause” should be used to describe the applicable
standard for first degree murder so that the jury understands that something different is being conveyed by the instructions
concerning s.231(5) of the Code with respect to the requisite degree of participation of the accused in the offence
Holding
 Uphold charge of second degree murder, the jury was entitled to have a doubt as to whether the degree of participation of
the accused in the underlying offence of unlawful confinement, combined with the need for substantial contribution to
the death of the victim, was sufficient to elevate the murder to first degree
Ratio
 There is only one standard of causation for homicide offences, including second degree murder. The standard may be
expressed using different terminology, but it remains the standard expressed in Smithers.
 The terminology of substantial cause in Harbottle is used to indicate the increased degree of participation in the killing
that is required to raise the accused’s culpability to first degree murder under s.231(5) of the Code
 Harbottle did not raise the standard of causation that applies to all homicide offences from the standard expressed in
Smithers
Note
 Any causation test must comply with the Charter, s.7, which ensures that the principles of fundamental justice will be
observed when a person’s life, liberty or security of the person is infringed
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20
Absolute and Strict Responsibility
Is it justifiable for the state to impose punishment on someone who was morally blameless (at least in the sense of the
person having committed the guilty act, but without any intention, knowledge, foresight, or carelessness in having done
so?
There must usually be proof of some guilty state of mind for ‘true criminal offences’
For regulatory or public welfare offences, the state is not held to such a high standard. Subject to certain restraints
imposed by the Charter, liability for regulatory or public welfare offences may be satisfied by proof of the act
requirement, accompanied by no further fault requirement (absolute liability) or a much reduced fault requirement (strict
liability)
Sault Ste Marie created a presumption that all public welfare or regulatory offences would require the prosecution to
prove the prohibited act, but would then allow the accused to prove a defence of due diligence or a reasonable mistake of
fact on a balance of probabilities
It constitutes a reduced fault requirement from the fault required for criminal offences as well as a reversal of the burden
of proof that is placed on the state to establish fault
Beaver v the Queen

Charge
 Under s.4(1) of the Opium and Narcotic Drug Act
o Unlawful sale of drug
o Unlawful possession of drug
Facts
 Evidence on which it was open to the jury to find:
o Max Beaver sold to a police officer, who was working under cover, a package which in fact contained
diacetylmorphine
o That the appellant was a party to the sale of the package
o That while the appellant did not have the package on his person or in his physical possession, he and Max Beaver
were acting jointly in such circumstances that the possession which the latter had of the package was the possession
of both of the accused
o That the appellant had no knowledge that the substance contained in the package was diacetylmorphine and believed
it to be sugar of milk
 Trial judge charged the jury that if they were satisfied that the appellant had in his possession a package and sold it, then, if in
fact the substance contained in the package was diacetylmorphine, the appellant was guilty on both counts, and that the
questions (i) whether he had any knowledge of what the substance was or (ii) whether he entertained the honest but mistaken
belief that it was a harmless substance were irrelevant and must not be considered
Issue
 If the accused is honestly mistaken of the nature of the substance whose possession he has, can he be found guilty of drug
possession?
Reasoning
 When decision as to the construction of the act are examined, it appears that two main reasons are assigned for holding that
mens rea is not an essential ingredient of the offence created by s.4(1)
o Assumption that the subject-matter with which the Act deals is of the kind dealt with in “public-welfare offence
cases”
 Typical case is Hobbs v Winchester, which dealt with the sale of unsound meat
 The judge found little similarity between a statute designed to ensure that the supply available to
the public shall be wholesome and a stature making it a serious crime to possess or deal in
narcotics. The former is to ensure that a trade is carried out in a way that does not harm public
health, the latter forbids conduct that is harmful in itself
o Implication from the wording of s.17 of the Act
 The words of s.17 require that the accused in possession, despite his belief as to the nature of the substance,
be prima facie presumed to be guilty but can exculpate himself by proving lack of knowledge, and that
since no such exculpating words are found in s.4(1) (d), it must be held that Parliament intended that lack
of knowledge be no defence
 The judge held that the wording of s.17 does not compel the Court to construe s.4 as not requiring mens rea
 From Fowler v Padget: I would adopt any construction of the statute that the words will bear, in order to avoid such
monstrous consequences as would manifestly ensue from the construction contented by the defendant
o Quash conviction on the charge of possession
 Charge of selling is upheld: since the accused and his brother jointly sold a substance represented or held out by them as to be
heroin
Dissent
 The plain and apparent object of the Act is to prevent by a rigid control of the possession of drugs, the danger to public
health, and to guard society against the social evils which an uncontrolled traffic in drugs is bound to generate
 On the plain literal and grammatical meaning of the words of the section, there is an absolute prohibition to be in possession
of drugs, whatever be the various meanings of which the word possession may be susceptible, unless the possession is under
the authority of a licence from the Minister, or under other lawful authority; absolute liability
 The duty of the Courts is to give effect to the language of Parliament
 Cannot accede to the proposition that knowledge of the nature of the substance is of the essence of the offence of unlawful
possession under the Act
 The enforcement of the provisions of the Act may in exceptional cases lead to some injustice, but to forestall this result, there
are remedies under the law such as a stay of proceedings or free pardon
Ratio
 Will not put strict liability into a criminal offence without clear wording and intent from Parliament
Holding
 Accused is guilty of the sale of narcotics but not possession
21

R v Pierce Fisheries
Standards of mens rea required in regulatory offences vs criminal law offences; establish mens rea
according to the requirement of the regulation
Charge
 Having undersized lobsters contrary to Lobster Fishery Regulations made pursuant to the Fisheries Act
Facts
 On the day in question, the company would have bought or brought to its plant by truck and by oat 50 000 to 60 000 lbs of
lobsters, and among these a fishery officer found 26 undersized lobsters
Issue
 Does the offence created by the regulation demand proof of mens rea?
Reasoning
 Lobster Fishery regulations are intended for the purpose of protecting lobster beds from depletion and thus conserving the
source of supply for an important fishing industry which is of the general public interest
 A new crime was not added to our criminal law by making regulations which prohibit persons from having undersized
lobsters in their possession
 The stigma of having been convicted of a criminal offence would not attach to a person found to have been in breach of the
regulations
 The offence created by the regulation should be construed in accordance with the language in which it was enacted, free form
any presumption as to the requirement of mens rea
 In considering the language of s.3(1)(b) of the regulation it is significant to note that it contains no words such as
“knowingly”, “wilfully”, “with intent” or “without lawful excuse” whereas such words occur in other section which create
offences for which mens rea is made an essential ingredient
Dissent
 Beaver: the essence of the crime is the possession of the forbidden substance, and in a criminal case there is in law no
possession without knowledge of the character of the forbidden substance
 Express finding of fact that the responded had no knowledge, factually or inferentially, that any of the lobsters on its premises
and under its control were undersized necessarily leads to a finding of not guilty
Ratio
 The standard of mens rea in regulatory offences must be determined in accordance with the wording of the regulation
Justice Cory on Regulatory offences and strict liability
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22
There is no doubt that regulatory offences were originally and still are designed to protect those who are unable to protect
themselves
While the mens rea presumption applied to true crimes because of the fault and moral culpability which they imply, that
same presumption did not apply to offences “which…are not criminal in any real sense, but are acts which in the public
interest are prohibited under a penalty.”
In Saulte Ste Marie, public welfare offences are recognized as a distinct class
Such offences, although enforced as penal law through the machinery of the criminal law, “are in substance of a civil nature
and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited
application
Saulte Ste Marie allowed strict liability; a conviction may follow merely upon proof beyond a reasonable doubt of the
proscribed act. However, it is open to the defendant to avoid liability by proving on a balance of probabilities that all due care
was taken.
This is the hallmark of the strict liability offence: the defence of due diligence
Absolute liability was found to violate fundamental POFJ
Rationale for the distinction: Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the
basic values of human society that it ought to be prohibited completely.
The objective of regulatory legislation is to protect the public or broad segments of the public from the potentially adverse
effects of otherwise lawful activity
While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures
are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care
Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a
regulatory offence may be thought to import a significantly lesser degree of culpability than conviction a true crime
A reasonable care standard does not imply moral blameworthiness in the same manner as criminal fault


Regulatory offence really gives expression to the view that it is expedient for the protection of society and for the orderly use
and sharing of society’s resources that people act in a prescribed manner in prescribed situations, or that people take
prescribed standards of care to avoid risks of injury
In short, regulation is absolutely essential for our protection and well being as individuals, and for the effective functioning of
society. The more complex the activity, the greater the need for and the greater our reliance upon regulation and its
enforcement
R v Sault St Marie
Facts
 The City was charged that it did discharge, or cause to be discharge, materials into Cannon Creek and Root River
Issue
 What is the mental element required for proof of regulatory offences?
Reasoning
 In this case the court is concerned with offences referred to as statutory, public welfare, regulatory, absolute liability or strict
responsibility which are not criminal in the real sense, but are prohibited in the public sense
 The offences are in substance of a civil nature , and are a branch of administrative law to which traditional principles of
criminal law have but limited application
 The distinction between true criminal offence and public welfare offence
o Criminal: crown must establish a mental element
 Intention or Recklessness
 With knowledge of the facts constituting an offence or Wilful blindness
 Negligence is excluded: person who fails to make such enquiries as a reasonable and prudent person would
make, or fails to know facts he should have known, is innocent in the eyes of the law
o Absolute liability
 Conviction on proof that the defendant committed the prohibited act constituting the actus reus of the
offence
 No relevant mental element
 Public welfare offences lie in a field of conflicting values: essential for society to maintain high standards of public health
and safety, on the other hand there is a revulsion against punishment of the morally innocent
 Absolute liability is contended to be the most efficient and effective way of ensuring compliance with minor regulatory
legislation and the social ends to be achieved are of such importance as to override the unfortunate by-product of punishing
those who may be free of moral turpitude
 Stronger arguments can be made against absolute liability
o It violates fundamental principles of penal liability
o There is no evidence that a higher standard of care results from absolute liability
o If a person is already taking every reasonable precautionary measure, is he likely to take additional measures,
knowing that however much care he takes, it will not serve as a defence in the event of breach?
 Public welfare offences involve a shift in emphasis from the protection of individual interest to the protection of public and
social interest
 In public welfare offences where full mens rea is not required, absolute liability has often been imposed
 Three categories of offences should be created to allow for a “half-way house” between mens rea and absolute liability
o Mens rea offences: Offences in which mens rea, consisting of some positive state of mind, such as intent, knowledge
or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed or by
additional evidence
 Criminal offence
o Offences of strict liability: Offences in which there is no necessity for the prosecution to prove the existence of mens
rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability
by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done
in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts
which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular
event.
 Public welfare offences prima facie fall in this category
 Relieving the Crown of the burden of proving mens rea is due to the virtual impossibility in most
regulatory cases of proving wrongful intention
 There is a reverse onus onto the defendant as he is the only one who will generally have the means of
proof. This would not seem unfair as the alternative is absolute liability which denies an accused any
defence whatsoever
23
o
Offences of absolute liability: where it is not open to the accused to exculpate himself by showing that he was free
of fault
 Offences in respect of which the legislature has made it clear that guilt would follow proof merely of the
proscribed act
 There is nothing in Woolmington’s case which stands in the way of adoption, in respect of regulatory offences, of a defence
of due care, with burden of proof resting on the accused to establish the defence on the balance of probabilities
 Pierce Fisheries cannot be seen as denying the accused all defences, in particular the defence that the company had done
everything possible to acquire knowledge of the lobsters.
 A public welfare offence would only fall into the first category if such words as” wilfully, with intent, knowingly,
intentionally” are contained in the statutory provision creating the offence
 Pollution offences are undoubtedly public welfare offences enacted in the interests of public health.
o No presumption of mens rea
 Presumption applies only to offences which are “criminal in the true sense”
 If it is valid provincial legislation, then it cannot possibly create an offence which is criminal in the true sense
 Since s.32(1) creates a public welfare offence, without a clear indication that liability is absolute, and without any words such
as “knowingly” or “willfully” expressly to import mens rea, the offence is one of strict liability
Ratio
 Regulatory offences are prima facie offences of strict liability

*** Distinction between criminal and regulatory offences
o Actions are criminal when they constitute conduct that is so abhorrent to the basic values of human society that it
ought to be prohibited completely
 Offences are designed to condemn and punish past inherently wrongful conduct
o Regulatory: conduct that is prohibited not because it is inherently wrongful but because unregulated activity would
result in dangerous conditions being imposed upon members of society
 Offences are directed to the prevention of future harm through the enforcement of the minimum standards
of conduct and care
 Concept of fault is based upon reasonable care standard, and as such does not imply moral blameworthiness
in the same manner as criminal fault
 Conviction means nothing more than the defendant has failed to meet a prescribed standard of care
Reference re Section 94(2) of the BC Motor Vehicle Act
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Absolute liability offences
Mandatory imprisonment
Constitutional considerations S.7 violation
Facts
 S.94(1) provides that a person who drives a motor vehicle while he /she is prohibited from driving or his/her license is
suspended commits an offence and is liable on first conviction to a fine and to imprisonment
 S.94(2) provides that the offence created by s.94(1) creates an absolute liability offence in which guilt is established by proof
of driving, whether or not the defendant knew of the prohibition or suspension`
Issue
 Is s.94 (2) of the Act consistent with s.7 of the Charter?
Reasoning
 A law that has the potential to convict a person who has not really done anything wrong offends the principles of
fundamental justice, and if imprisonment is available as a penalty, such a law the violates a person’s right to liberty under s.7
of the Canadian Charter of Rights and Freedoms
 Absolute liability and imprisonment cannot be combined
 POFJ are not a protected interest, but rather a qualifier of the right not to be deprived of life, liberty and security of the person
 For the narrower the meaning given to “principles of fundamental justice” the greater will be the possibility that individuals
may be deprived of these most basic rights
 S.8-14 are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in
s.7 It would be incongruous to interpret s. 7 more narrowly than the rights in s.8-14
 Ss.8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of
fundamental justice
24
o
o
Ss.8 to 14 proved a key to the meaning of principles of fundamental justice
Founded upon the administration of justice which is founded upon a belief in the dignity and worth of the human
person
 Principles of fundamental justice are to be found in the basic tenets of our legal system, they do not lie in the realm of general
public policy but in the inherent domain of the judiciary as a guardian of the justice system
 “principles of fundamental justice” is a qualifier of the right not to be deprived of life, liberty and security of the
person; its function is to set the parameters of the right
 Absolute liability per se does not offend s.7 of the Charter
 A law enacting an absolute liability offence will violate s.7 only if and to the extent that it has the potential of depriving of
life, liberty or security of the person
 Imprisonment deprives persons of their liberty; There is no need that imprisonment as in s.94(2) be made mandatory
 The combination of imprisonment and absolute liability violates s.7 of the Charter and can only be salvaged if the authorities
demonstrate under s.1
 There are certain public welfare offences like air and water pollution offences, where the public interest requires that the
offences be absolute liability offences
 S.1 may for reasons of administrative expediency successfully come to the rescue of an otherwise violation of s.7, but only in
cases arising out of exceptional conditions, such as natural disaster, the outbreak of war, epidemics and the like
 Corporations do not hold s.7 rights  absolute liability offence that applies only to a corporation (not to natural persons)
does not violate s.7 ; even if it did, s.1 could be employed much more successfully
 S.94 enacts an absolute liability offence, the conviction for which a person will be deprived of his/her liberty
o will impact upon the right to liberty of a limited number of morally innocent persons
 BC fails the minimum impairment test
Holding
 S.94(2) violates s.7 of the Charter
Ratio
 Absolute liability per se does not offend s.7 of the charter
 Absolute liability + mandatory imprisonment = violation
R v Transport Robert Ltee
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Constitutional considerations: s.11(d) , s.(7)
Corporations
Mandatory fine, absolute liability
Government regulation
Security of the person  psychological stress must be serious for it to be breached
Facts
 S.84.1(1) Highway traffic act: owner and operator of a commercial motor vehicle are guilty of an offence where a wheel
becomes detached from the vehicle while it is on a highway
 S.5 provides that it is no defence to the charge that the defendant exercised due diligence to avoid the or prevent the
detaching of the wheel
o No mandatory imprisonment or probation; penalty is just a fine
 Ltee charged with being the owner of commercial motor vehicles from which a wheel separated while on a public highway
contrary to s.84(1)
Issue
 Whether it is open to the legislature to create an absolute liability offence where there is no possibility of imprisonment or
probation if the defendant is convicted
Reasoning
 S.11(d) prohibits the reversal of the burden of proof of a fact that is an element of the offence, it says nothing about
elimination of an element
 There is no violation of s.11(d) because the legislature has defined an offence so as to eliminate an element, or a possible
common law defence
 Although s.7 can only be enjoyed by human beings, a corporation has standing to challenge the constitutionality of a penal
provision that violates s.7 rights of a human being
 A defendant alleging a violation of s.7 must establish both a violation of the right to life, liberty or security of the person, and
that the deprivation of that right does not accord with the principles of fundamental justice
25
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The defendants submit that the provision infringes s.7 because it allows for the conviction of a person who is without fault,
infringement of security of the person is based on the effect of the stigma attached to a conviction attached to a high
monetary penalty
 R v Pontes: if the offence is one of absolute liability, but there is no risk of imprisonment, then the provision will not offend
s.7
 Courts have not fully defined the limits of security of the person under s.7, but there are propositions established by cases
o Blencoe: where the psychological integrity of a person is at issue, security of the person is restricted to serious stateimposed psychological stress
 There is no generalized right to dignity or a right to free from stigma
 Dignity and reputation are not self-standing right, neither is freedom from stigma
 Prosecution for the s.84.1 offence does not engage the kind of exceptional state-induced psychological stress, even for an
individual, that would trigger the security of the person guarantee in s.7, even when coupled with the possibility of a
significant fine
o The offence does not create a true crime and like most regulatory offences, it focuses on the harmful consequences
of otherwise lawful conduct rather than moral turpitude
o Conviction for the offence at most implies negligence, any stigma is very considerably diminished
 the right to security of the person does not protect the individual operating in the highly regulated context of commercial
trucking for profit from the ordinary stress and anxieties that a reasonable person would suffer as a result of government
regulation of that industry
 “If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that
they infringe the right to security of the person, massively expanding the scope of judicial review, and in the process
trivializing what it means for a right to be constitutionally protected”
Holding
 S.84.1 does not violate s.7
Ratio
 For the standard of security of the person to be breached there must be serious psychological stress which is not met by
the ordinary stresses and anxieties suffered when regulated by a government regulation
 Dignity and stigma are not self-standing rights
R v Whole Sale Travel Group
 Regulation
 S.7, s.11(d)
Facts
 The accused corporation was charged with counts of false or misleading advertising contrary to s.36(1)(a) of the Competition
Act
 The offences could be punished by up to one year imprisonment as they were prosecuted
 S.37.(3) of the Act creates a statutory due diligence defence
Issue
 Do s.36 and s.37 violate ss.7 and 11(d) of the Charter?
Reasoning
Lamer +6
 Although corporations have no s.7 rights, they can benefit from a finding that provision violates a human being’s
constitutional rights
 Combo of absolute liability and possible imprisonment violates s.7. This is because an absolute liability offence ahs the
potential of convicting a person who really has done nothing wrong
 Vaillancourt: when the state resorts to the restriction of liberty, such as imprisonment to assist in the enforcement of a law,
even a mere provincial regulatory offence, there is as a principle of fundamental justice a minimum mental state which is an
essential element of the offence
 BC Motor vehicle: inferentially decided that even for a mere provincial regulatory offence at least negligence is required in
that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction
o Rationale for elevating the mens rea from a presumed element in Sault St. Marie to a constitutionally
required element, was that it is a principle of fundamental justice that the penalty imposed on an accused and
the stigma which attaches to the penalty/conviction necessitates a level of fault which reflects the particular
nature of the crime
 Para (c) and (d) of s.37.3(d) could have the effect of depriving an accused of the defence of due diligence and could therefore
require the conviction of an accused who was not negligent
26
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Paragraphs c and d of s.37.3 make the failure to undertake corrective advertising an “offence” of absolute liability.
Consequently the constitutionally required fault level is not present in false/misleading advertising provisions
o The presence of paras c and d alone offends s.7 of the charter.
 Oakes times. Fails at minimal impairment
 It is not necessary to convict of false/misleading advertising those who did not undertake corrective advertising because they
did not realize ( and ought not to have realized) that the advertisement was false/misleading, in order to achieve its objectives
of protecting consumers from the effects of false advertising and of preventing advertisers from benefiting from
false/misleading representations  the court suggests two other options
 Para c and d are found to be unnecessarily intrusive on s.7; DON’T COMBINE ABSOLUTE LIABILITY AND THE
POSSIBILITY OF IMPRISONMENT
 It is not an infringement of s.7 to create an offence for which the mental element is negligence
Lamer + 6 , including La Forest Majorityy
 Vaillancourt: principles of fundamental justice dictate that negligence is the minimum fault requirement where an accused
faces possible imprisonment upon conviction except for certain offences such as murder
 Therefore s.7 does not require a higher fault requirement (more than negligence)
 Whether a higher fault requirement should be adopted is a question of public policy which must be determined by Parliament
o Not the role of Courts to second guess the policy decisions made by elected officials
La Forest
 Requirement of due diligence is a sufficient for charter purposes in the case of regulatory offences and some criminal
offenses having a significant regulatory base
 For most criminal offences, reluctant to accept a lower level of mens rea
Cory + L’Hereux Dube Concurring
 Those persons who enter a regulated field are in the best position to control the harm which may result, and should therefore
be responsible for it
 S.7 requires some degree of fault which may be demonstrated by poof of intent (subjective or objective) or by proof of
negligent conduct, depending on the nature of the offence
 With respect to regulatory offences, proof of negligence satisfies the requirement of fault demanded by s.7
 The demands of s.7 will be met in the regulatory context where liability is imposed for conduct which breaches the standard
of reasonable care required of those operating in the regulated field
 Although it is rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the
regulatory measure. Regulatory schemes can only be effective if they provided for significant penalties in the event of their
breach
Lamer +3 Dissent
 The concern in the s.11(d) inquiry is not whether the accused must disprove of an element or prove an excuse, but that an
accused may be convicted while a reasonable doubt exists
 A person whose liberty interest is imperilled is entitled to have the same standard of POFJ, no matter which type of offence
 The words “he establishes that” place a burden on an accuses to prove the two elements delineated thereafter on a balance of
probabilities
 Under s.37(2) an accused could be convicted of false/misleading advertising despite the existence of a reasonable doubt as to
whether the accused was duly diligent and, therefore, despite the existence of a reasonable doubt as to guilt
 Reverse burden is not justified under s.1 because of the existence of less restrictive measures
o the mandatory presumption whereby the accused will merely have an evidentiary burden, where evidence of
reasonable care would rebut the presumption
o maintain persuasive burden on the accused but remove the possibility of imprisonment
 Confirms justification of reverse onus: public welfare offences leave accuses in best spot to garner evidence of due diligence;
the State would have to rely on intrusions of other Charter rights to garner evidence, i.e. unreasonable search and seizure
 Sending the innocent to jail is too high a price
Iacobucci Majority
 agreed that the section violated s.11(d) but held that it was valid under s.1
 the special nature of the legislation and offence must be kept in mind when applying s.1 of the Charter
o public welfare legislation
 the offence of false or misleading advertisement may properly be characterized as a public welfare offence and the
prohibition of such offences is of fundamental importance in Canadian Society
 disagree with Lamer that the use of a mandatory presumption of negligence would achieve the state objective
27
o
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would shift to the accused the burden of simply raising a reasonable doubt as to due diligence and would not allow
the effective pursuit of the regulatory objective
o would leave to the Crown the legal burden of proving facts largely within the peculiar knowledge of the accused
Cory + L’Hereux Dube
 mens rea issue: if regulatory mechanisms are to operate effectively, the Crown cannot be required to disprove due diligence
beyond reasonable doubt. Such a requirement would make it virtually impossible for the Crown to prove regulatory offences
and would effectively prevent governments from seeking to implement public policy through regulatory means
o the means of proof of reasonable care will be peculiarly within the knowledge and ability of the regulated accused
o only the accused will be in a position to bring forward evidence relevant to the question of due diligence
 strict liability does not violate either s.7 or s.11(d) of the Charter
Holding
 Para c and d infringe s.7 of the Charter and they are of no force or effect pursuant to s.52(1) of the Constitution Act
 Para a and b does not infringe s.11(d) of the Charter
Ratio
 Under s.7 even for a mere provincial regulatory offence at least negligence is required in that at least a defence of due
diligence must always be open to an accused who risks imprisonment upon conviction
 Reverse onus provision was upheld
Final thoughts on this section:
 It is now settled that s.11(d) of the Charter implies proof of guilt beyond reasonable doubt.
 To prove the defence of due diligence on the balance of probabilities means that a court is required to convict an accused
if it is not satisfied on the balance of probabilities that the accused has exercise due diligence even though it may have a
reasonable doubt on the issue
 “All rights and freedoms, once declared, tend to appear absolute. Section 1 provides a means of restraint and balance
against that extreme to meet society’s greater needs.
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Fault or Mens Rea
In Canada, there has long been a presumption of statutory interpretation that mens rea forms a part of all criminal offences
The full definition of every crime contains expressly or by implication a proposition as to a state mind
There is no single type of fault applicable to crimes in general
To determine the fault requirement for a particular offence, the wording of the relevant enactment be consulted along with
principles of interpretation relating to fault developed by our courts over time
True criminal offices are presumed to have a mens rea requirement
In Canada, there is no uniform definition of the fault requirements that apply to offences.
Subjective states of fault
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Just because subjective fault is a formal requirement for an offences, this does not mean that objective considerations are
irrelevant
 What a reasonable person would have realized or known may be of some value in the determination of what the accused
person actually thought
R v Buzzanga
 People are usually able to foresee the consequences of their acts, if a person does an act likely to produce certain
consequences it is, in general, reasonable to assume that the accused also foresaw the probable consequences of his act and if
he, nevertheless, acted so as to produce those consequences, that he intended them
 The purpose of this process is to determine what the particular accused intended, not to fix him with the intention that a
reasonable person might be assumed to have in the circumstances
 If the accused gives evidence as to what was in his mind, then it must be weighed with the other evidence in determining
whether the necessary intent has been established
R v Tennent and Naccarato
 Where liability is imposed on a subjective basis, what a reasonable man ought to have anticipated is merely evidence from
which a conclusion may be drawn that the accused anticipated the same consequences
 Where the test is objective, what a reasonable man should have anticipated constitutes the basis of liability
Jury instructions
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This is called the ‘common sense inference’. In Short a sane and sober person can usually be taken to intend the natural and
probable consequences of his or her actions.
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R v Lewis
Difference between motive and intention
The mental element, the mens rea relates to intent
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
o Ulterior intention
The mental element of a crime usually does not refer to motive
(1)Evidence of motive is always relevant and therefore admissible
(2) Motive is no part of the crime and is legally irrelevant to criminal responsibility. It is not an essential element of the
prosecution’s case as a matter of law
R v Imrich:
o Motive relates to a consequence ulterior to the mens rea and the actus reus and, adopting this criterion, motive is
irrelevant to criminal responsibility
o Motive is relevant evidence for if the prosecution can prove that the defendant had a motive for committing the
crime it may do so, since the existence of motive makes it more likely that the defendant did in fact commit it
o All matters of motive are for the jury and are not to be dealt with as matters of law
(3) proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of note in a charge
to the jury
(4) proved presence of motive may be an important factual ingredient in the Crown’s case, notably on the issues of identity
and intention, when the evidence is purely circumstantial
(5) motive is always a question of fact and evidence and the necessity of referring to motive in the charge to the jury falls
within the general duty of the trial Judge “to not only outline the theories of the prosecution and defence but to give the jury
matters of evidence essential in arriving at a just conclusion”
A good deal of latitude should be allowed to the judgement of the trial judge as to which matters of evidence are essential or
not
(6) Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree
R v Steane
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Intention
jury directive
duress
Facts
 Steane, British subject who had been employed in Germany prior to WW2
 Gave a statement to a British intelligence officer in which he admitted to working for the German broadcasting service during
the war
 charged with doing acts likely to assist the enemy with the intent to assist the enemy, contrary to regulation 2A of the
Defence General Regulations which stated “ if with intent to assist the enemy, any person does any act which is likely to
assist the enemy, then without prejudice to the law relating to treason, he shall be guilty of an offence against this regulation
and shall on conviction on indictment by liable to penal servitude for life”
 Steane testified that he originally refused the position and only accepted in fear for his families
 He never had the slightest idea or intention of assisting the enemy
Issue
 How to instruct the jury with respect to the intentionality of these acts?
Reasoning
 The general principle is that a man is taken to intend the natural consequences of his acts
 If, therefore, he does an act which is likely to assist the enemy, it must be assumed that did it with the intention of assisting
the enemy
 Where the essence of an offence or a necessary constituent of an offence is a particular intent, that intent must be proved by
the Crown just as much as any other fact necessary to constitute the offence
 Duress is a matter of defence where a prisoner is forced by fear of violence or imprisonment to do an act which in itself is
criminal
o If the act is a criminal act, the prisoner may be able to show that he was forced into doing it by violence, actual or
threatened and to save himself from the consequences of that violence
29
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Before any question of duress arises a jury must be satisfied that the prisoner had the intention which is laid in the indictment
Duress is a matter of defence and the onus of proving it is on the accused
It is impossible to say that where an act was done by one person in subjection to the power of others, especially if that other
be a brutal element, an inference that he intended the natural consequences of his act must be drawn merely from the fact that
he did it
 The guilty intent cannot be presumed and must be proved
 The proper direction to the jury in this case: for the prosecution to prove the criminal intent, and that while the jury would be
entitled to presume intent if they thought that the act was done as a result of the free uncontrolled action of the accused they
would not be entitled to presume it, if the circumstances showed that the act was done in subjection to the power of the
enemy or was as consistent with an innocent intent as with a criminal intent
Holding
 Conviction quashed; no mens rea
R v Hibbert
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Intent
The meaning of “purpose” in criminal statutes
Duress
Party offences
Facts
 The accused testified that he was forced by the principal offender to accompany him to the victim’s apartment building and to
lure the Victim down to the lobby. The accused stood by while the principle offender shot the victim
 Convicted of aggravated assault
Issue
 What is the meaning of the word purpose in s.21(1)(b)?
Reasoning
 That threats of death or serious bodily harm can have an effect on a person’s state of mind is indisputable
 A person who carries out the actus reus of a criminal offence in response to threats will not necessarily lack the mens rea for
that offence
o Whether he does will depend on:
 The mental element of the offence
 The facts of the particular case
 In general a person who performs an action in response to a threat will know what he is doing, and will be aware of the
probable consequences of his actions
o Whether he desires the occurrence of the consequences will depend on the particular circumstances
 S.21(1)(b): creates liability for a person who “does or omits to do anything for the purpose of aiding any person to commit”
an offence
 Impossible to ascribe a single fixed meaning to the word “purpose”
o Two common meanings:
 Doing something “on purpose”: equates purpose with immediate intention
 Used to indicate the ultimate ends an actor seeks to achieve: “desire”
 A person would not be guilty of aiding in the commission of an offence if he was genuinely
indifferent to it; the reason for the indifference would be immaterial
 Conclusions in the present case about the meaning of the word “purpose” are restricted to S.21(1)(b)
 The problems associated with the “purpose equals desire” interpretations are several
o Incorporating the accused’s feelings about the desirability of the commission of an offence by the principal into the
definition of the mens rea for “aiding” can result in arbitrary and unreasonable distinctions
 Duress is a defence of its own and does not negative either the doing of the act charged or the mens rea
 The position at common law provides useful guidance in choosing between the interpretations  assume that Parliament did
not want to alter the common law , choose the definition that best accords with this idea
o “”purpose” should not be seen as incorporating the notion of “desire” into the mental state of party liability, and that
the words should be understood as essentially synonymous with “intention”
 “for the purpose of aiding” does not require that the accused actively view the commission of the offence he is aiding
as desirable in and of itself
o Mens rea in this offence cannot be negated by duress
 “intention in common” in s.21(2) can be understood in more than one way
o The two persons must have in mind the same unlawful purpose
o Motives or subjective views as to the desirability of the commission of the unlawful purpose match up
30
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 In the context of s.21(2) the first interpretation is more consistent with Parliament’s intention and the interpretation of s.21(b)
Holding
 New trial ordered
Ratio
 Whether someone possesses mental will depend on whether the mental state specified by Parliament in its definition of the
offence is such that the presence of coercion can have a bearing on the existence of mens rea
 A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse-based
defence
 The mental states of S.21(1)(b) cannot be negated by duress. Such persons may, however, seek to have their conduct excused
through the operation of the common law defence of duress
R v Buzzanga and Durocher
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Intent
Wrongful consequences of one’s act
Facts
 Accused were charged with wilfully promoting hatred against Francophones
 They were both sympathetic with the French community in which they lived
 Published pamphlet against Francophones
 The accused said they did this to combat apathy in the French-speaking community in relation to the building of a French
language school
 A fair reading of Durocher’s evidence is that he did not want to promote hatred against the French People, for to do so would
be to promote hatred against himself
 Buzzanga said it was not his intention to raise hatred towards anyone
Issue
 What does “wilfully” in the expression s.281.2(2) “wilfully promotes hatred” mean ?
Reasoning
 The meaning of the term wilfully depends on the context in which it is used
o Primary meaning is “intentionally”
 An intention to bring about a proscribed consequence
o Can also mean recklessly
 denotes the subjective state of mind of a person who foresees that his conduct may cause the prohibited
result but takes a deliberate and unjustifiable risk of bringing it about
o accused did the thing intentionally and not accidentally
 in s.281.2(2) it means with the intention of promoting hatred, and does not include recklessness
 although no mental element is expressly mentioned in s.281.2(1) where the communication poses an immediate threat to
public order, mens rea is required since the inclusion of an offence in the Criminal Code must be taken to import mens rea in
the absence of a clear intention to dispense with it
 the general mens rea which is required and which suffices for most crimes where no mental element is mentioned in
the definition of the crime is either the intentional or reckless bringing about of the result which the law, in creating
the offence seeks to prevent
o in the case of s.281.2(2) it is either the intentional or reckless infliction of hatred in the specified circumstances
 the use of “wilfully” in s.281.2(2) was not necessary to import mens rea since that requirement would be implied in any event
because of the serious nature of the offence
o Parliament intended to limit the offence under s.281.2(2) to the intentional promotion of hatred
o The use of “wilfully” reflects Parliament’s policy to strike a balance in protecting the competing social interests of
freedom of expression on one hand, and public order and group representation on the other
 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. The actor’s foresight of the certainty or moral certainty of the
consequence resulting from his conduct compels a conclusion that if he, nonetheless, acted so as to produce it, then he
decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose.
 His intention encompasses the mens rea as well as to his ultimate objective
 the appellants wilfully (intentionally) promoted hatred against the French community only if:
o their conscious purpose in distributing the document was to promote hatred against that group
o OR they foresaw that the promotion of hatred against that group was substantially certain or morally certain to result
from the distribution of the pamphlet, but distributed it as a means of achieving the purpose of obtaining the Frenchlanguage high school
31
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Where the prosecution in order to establish the accused’s guilt of the offence charged must prove that he intended to bring
about a particular consequence or foresaw a particular consequence, the question to be determined is what was in the mind of
this particular accused and the necessary intent or foresight must be brought home to him subjectively
Holding
 New trial ordered: the trial judge’s view of “wilfully” caused him to focus attention on the intentional nature of the conduct,
rather than whether they actually intended to produce the consequences of promoting hatred
Ratio
 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. The actor’s foresight of the certainty or moral certainty of the
consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he
decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the mens rea
as well as to his ultimate objective
R v Theroux, 1993
 Actual knowledge: a slightly lesser form of subjective fault than intentional or wilful conduct
Facts
 The accused was convicted of fraud for accepting deposits from investors in a building project having told them that he had
purchased deposit insurance when in fact he had not
Issue
 Whether the test for mens rea is objective or subjective
Reasoning
 Mens rea: does not encompass all of the mental elements of a crime
o Guilty mind, wrongful intention of the accused
o Function: prevent the conviction of the morally innocent
o Concerned with the consequences of the prohibited actus reus, ie: in homicide intention to cause death
 Actus reus has its own mental element
o Voluntary act of the accused
 Leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens
rea is subjective
o The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether
the accused subjectively appreciated those consequences as a possibility
o The court looks to the accused’s intention and the facts as the accused believed them to be, but this inquiry has
nothing to do with the accused’ system of values
o The question is whether the accused subjectively appreciated that certain consequences would follow from his
or her acts, not whether the accused believe the acts or their consequences to be moral
 The Crown need not show precisely what thought was in the accused’s mind at the time of the criminal act
o Sometimes subjective awareness of the consequences can be inferred from the act itself
o Subjective knowledge of the risk may be drawn from the facts as the accused believed them to be
 Accused may introduce evidence negating the inference
 Offence of fraud:
o prohibited act is deceit, falsehood or some other dishonest act
o prohibited consequence: depriving another of what is or should be his
 merely placing another’s property at risk is enough
o mens rea: subjective awareness that one was undertaking a prohibited act which could cause deprivation in the sense
of depriving another of property or putting that property at risk
 The proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited
acts knowing or desiring the consequences of the proscribed effect
o Focus is knowledge of the consequences
o It need only be determined that an accused cowling undertook the acts in question, aware that deprivation, or risk of
deprivation, could follow as a likely consequence
 No reason why recklessness as to consequences might not also attract criminal responsibility
o Recklessness: presupposes knowledge of the likelihood of the prohibited consequences
 Established when it is shown that the accused with such knowledge commits acts which may ring about
these prohibited consequences while being reckless as to whether or not they ensue
 Actus reus of the offence of fraud
o The prohibited act: deceit, falsehood, some other fraudulent means
o Deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary
interests at risk
32

Mens rea of fraud
o Subjective knowledge of the prohibited act
o Subjective knowledge that the prohibited act could have as consequence the deprivation of another
 Where the conduct and knowledge required by these definitions are established, the accused is guilty regardless of whether he
actually intended the prohibited consequence or was reckless as to whether it would occur
 The requirement of intentional fraudulent action excludes mere negligent misrepresentation
o Neither negligent misstatement nor a sharp business practice will suffice because in neither case will the required
intent to deprive by fraudulent means be present
Ratio
 Leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens
rea is subjective
o The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether
the accused subjectively appreciated those consequences as a possibility
o The court looks to the accused’s intention and the facts as the accused believed them to be
o Has nothing to do with the accused morals
 To establish the actus reus of fraud, the Crown must establish beyond a reasonable doubt that the accused committed a
fraudulent act
 To establish mens rea, the Crown must prove that the accused knowingly undertook the acts which constitute the fraudulent
act, and that the accused was aware that deprivation could result from such conduct
R v Sansregret


Recklessness is often seen as an extension of intention, whereas wilful blindness is seen as an extension of
knowledge
Example of wilful blindness  subjective
Facts
 Appellant was charged with several offences, including rape with the complainant’s consent extorted by threats or fear of
bodily harm under s.143(b)(i) of the Code
 Complainant consented to intercourse solely because of fear engendered by the appellant’s threats
 Appellant honestly believed that the consent was freely and genuinely given
Reasoning
 Negligence:
o Objective standard of the reasonable man
o Departure from the standard by act or omission which reveals less than reasonable care will result in civil liability
 Recklessness:
o Has an element of the subjective
o Found in the attitude of one who, aware that there is a danger that his conduct could bring about the result prohibited
by criminal law, nevertheless persists despite the risk
o Conduct of one who sees the risk and who takes the chance
 Wilful blindness is distinct from recklessness: Pose two different mental states
o Recklessness: knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the
prohibited result will occur
 Culpability justified by consciousness of the risks, and proceeding in the face of it
o Wilful blindness: person who has become aware of the need for some inquiry declines to make the inquiry because
he does not wish to know the truth
 Culpability justified by the accused’s fault in deliberately failing to inquire when he knows there is reason
for inquiry
 A finding of wilful blindness as to the very facts about which the honest belief is now asserted would leave no room for the
application of the defence because, where wilful blindness is shown, the law presumes knowledge on the part of the accused.
 This case calls for the application of wilful blindness: the appellant blinded himself to the obvious and made no inquiry as to
the nature of consent which was given
 The appellant was aware of the likelihood of the complainant’s reaction to his threats
o To proceed with intercourse in such circumstances constitutes self-deception to the point of wilful blindness
R v Briscoe
 Wilful blindness = knowledge
Facts
33


Accused was charged with first-degree murder, kidnapping and sexual assault
Crown’s theory is that the accused assisted in the crimes by driving a group to the crime scene, providing a weapon, and
holding the victim and telling her to shut up
 Briscoe chose not to inquire about what the other members of the group were doing because he did not want to know
 Briscoe had a “strong well founded suspicion that someone would be killed”
Reasoning
 Wilful blindness does not define the mens rea required for particular offences
 It can substitute for actual knowledge whenever knowledge is a component of the mens rea
 The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she
sees the need for further inquiries but deliberately chooses not to make those inquiries
 Wilful blindness can be called “deliberate ignorance”: it connotes an actual process of suppression a suspicion
 Failure to inquire may be evidence of recklessness or criminal negligence
 The difference with wilful blindness is not only failure to inquire but there is also deliberate ignorance!
 The evidence cries out for wilful blindness. The accused chose not to inquire because he did not want to know!
Holding
 New trial ordered
Ratio
 The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she
sees the need for further inquiries but deliberately chooses not to make those inquiries
Note: An inquiry into objective standards of fault is often preoccupied with criminal negligence. Negligence as a standard for
criminal liability is controversial. The courts have gone to great lengths to distinguish criminal negligence from civil negligence
R v Tutton


Criminal negligence
Objective vs subjective test
Facts
 Accused were convicted of manslaughter under s.205 (now s.222) of the Code through criminal negligence (s.202, now
s.219) causing the death of their five year old son by omitting to provide the necessities of life (s.197 now s.215)
 Because of their belief in faith-healing they refused to administer insulin injections to their diabetic son
Issue
 Is the test for criminal negligence objective or subjective?
Reasoning
McIntyre + L’Heureux Dube
 S.202 is clear when it says that one is criminally negligent who in doing anything or omitting to do anything that is his duty
to do, shows wanton or reckless disregard for the lives or safety of other persons
 The objective test must be employed where criminal negligence is considered for it is the conduct of the accused, as opposed
to his intention or mental state, which is examined in this inquiry
 Negligence connotes the opposite of thought-directed action
o Its existence precludes the element of positive intent to achieve a given result
 What is sought to be restrained under s.202 of the Code is conduct and its results ; aimed at mindless but
socially dangerous conduct
 What is punished is not the state of mind, but the consequence of the mindless action
 s.202 does not use ‘reckless’ as an extended definition of intention or malice, but rather employs the term as part of a
definition of conduct which amounts to “negligence” in a criminal context
 In criminal cases what is punished is act+mental state/intent
 In criminal negligence, the act which exhibits the requisite degree of negligence is punished
o The test that justifies conviction of criminal negligence: 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
 Sansregret: recklessness to form a part of the criminal mens rea must have an element of the subjective ; charged with rape
which involves positive mind directed conduct which aims at the accomplishment of a result
o That concept of recklessness does not apply under s.202 of the Code
 S.202 creates a separate offence which makes the exhibition of wanton or reckless behaviour a crime in itself and therefore
defined on its own terms
34

S.202 still cannot be applied in a vacuum; the decision must be made on a consideration of the facts existing at the time and
in relation to the accused’s perception of facts
o Test is objective so the accused’s perception of facts is not to be considered for the purpose of assessing malice or
intention on the accused’s part, but to form a basis for a conclusion as to whether or not the accused’s conduct, in
view of his perception of the facts, was reasonable
Lamer, concurring
 When applying the objective norm set out in s.202 of the Criminal Code, a “generous allowance” must be made for factors
which are particular to the accused, such as youth, mental development, education
Wilson + Dickson + La Forest
 Do not agree that criminal negligence under s.202 consists only of conduct in breach of an objective standard and does not
require the Crown to prove that the accused had any degree of guilty knowledge
 S.202 is extremely ambiguous:
o When faced with such fundamental ambiguity, the court should give the provision the interpretation most consonant
with the broader concepts and principles of the law
 “Reckless disregard for the lives or safety of the person” requires the Crown to prove advertence or awareness of the risk that
the prohibited consequences will come to pass
 Sansregret:
o confirmed subjective approach to recklessness
o implicitly rejected the view that failure to give any thought to whether or not there is a risk can be substituted for the
mental state of recklessness
 Should social protection require the adoption of an objective standard, it is open to Parliament to enact a law that clearly
adopts such a standard; the court should not do it for them. Courts cannot make this policy and balancing of interests
judgment call
 the offence of manslaughter by criminal negligence does not consist of conduct in breach of an objective standard
Ratio
 Split court criminal negligence
o Objective standard injected with subjective elements to evaluate reasonableness of the conduct
o Subjective standard like Sansregret
Some more thoughts from the case book


In R v Waite, the judge instructed the jury with subject elements: “assumption and deliberate assumption of the risk”
Gets given a no-no by the SCC: “Although I believe there is a subjective element to criminal negligence, the judge in this
case placed much to high an onus on the Crown to prove elements of deliberation and wilfulness



In R v Hundal, the accused was charged with dangerous driving causing death. The SCC had the following to say:
The objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident
The mens rea for the offence of dangerous driving should be assessed objectively but in the context of all the events
surrounding the incident
35
R v Creighton

Objective test manslaughter
Facts
 Creighton convicted of manslaughter after administering cocaine to his girlfriend causing her to go into overdose
Issue
 Is s.222(5)(a) , unlawful act manslaughter, constitutionally valid?
Reasoning
Lamer + Sopinka+Iacobucci+Major
Constitutionality of s.222(5)(a) of the criminal code
 Guiding principle underlying the constitutional analysis of fault in criminal law is that the state cannot punish a person as
morally blameworthy unless such blameworthiness has been established
 Vaillancourt:
o the hallmark of murder is that there must be some special mental element with respect to death which gives rise to
the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction
o A conviction of murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight
o The POFJ require a mens rea reflecting the particular nature of that crime
 There is no general constitutional principle requiring subjective foresight for criminal offences
o An objective fault requirement is constitutionally sufficient for a broad range of offences (Hundal) other than those
falling within the relatively small group of offences alluded in Vaillancourt
o Vaillancourt exception: “because of the special nature of the stigma attached to a conviction therefor or the available
penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime”
 The stigma which attaches to a conviction for unlawful act manslaughter is significant but does not approach the opprobrium
reserved in our society for those who knowingly or intentionally take the life of another
 While there is a general constitutional requirement that a mental element must relate to the consequences of an
underlying act where an offence is structured in that fashion, the existence of that mental element may be established
in one of two ways:
o offences where a consequence forms the essence of an offence (ie: unlawful act manslaughter): a fault element must
be demonstrated beyond a reasonable doubt in relation to that consequence
o Offences where a consequence forms part of the actus reus of the offence, but the essence of the offence is conduct
which is inherently risky to life or limb: proof that the accused having engaged in prohibited conduct which is such
that any reasonable person would inevitably have foreseen the risk involved will serve as a substitute for objective
foresight, relieving the prosecution from having to introduce additional evidence to prove the existence of such
foresight
 Ie: impaired driving causing bodily harm, dangerous operation causing death
 Moral blameworthiness of the offence stems from the conduct of driving a car in a fashion which creates
high risk of injury
 Unlawful act manslaughter falls into the class of offences where a mental element in relation to the consequence must be
established
 The stigma attached to a conviction of culpable homicide is however significant enough to require, at minimum, objective
foresight of the risk of death in order for the offence to comply with s.7 of the Charter
The objective test
 An accused can only be held to the standard of a reasonable person if the accused was capable in the circumstances of the
offence of attaining that standard
o Must pay attention to any human frailties which might have rendered the accused incapable of having foreseen what
the reasonable person would have foreseen
 Encompass personal characteristics habitually affecting an accused’s awareness of the circumstances which
create risk
 Relevant characteristics must
 Consider frailties not because they result in the accused believing an incorrect set of facts, but rather
because they render the accused incapable of perceiving the correct set of facts
 The reasonable person is expected to compensate for his frailties to the extent he is conscious of them and
able to do so
o The reasonable person will be invested with any enhanced foresight the accused might have enjoyed by virtue of his
or her membership in a group with special experience or knowledge related to the conduct giving rise to the offence
 Here, the reasonable person should be deemed to possess Mr. Creighton’s considerable experience in drug use
36

If a reasonable person with the frailties of the accused would nevertheless have appreciated the risk, and the accused did not
in fact appreciate the risk, the accused must be convicted. The relevant characteristics must be traits which the accused could
not control or otherwise manage in the circumstances
 Intoxication or impairment through drug use which occurs as a result of voluntary consumption cannot serve to vitiate
liability for the risks created by the negligent conduct of an accused
 Human frailties encompass personal characteristics habitually affecting an accused’s awareness of the circumstances which
create risk. Such characteristics must be relevant to the ability to perceive the particular risk
Application of the objective test
 Ask whether the reasonable individual in the circumstances of the offence and with Mr. Creighton’s experience in drug use
would have been aware of the risk of death arising from the injection of the deceased with the cocaine
 Appellant appreciated the risk of death resulting from his injection of the cocaine in the deceased
McLachlin, L’Hereux-Dube, Gonthier, Cory, LaForest

Disagree with the fact that manslaughter is unconstitutional because it does not require foreseeability of death.
o Manslaughter must not be read up to include this requirement in order to bring it in line with POFJ under s.7
o Moral fault required for condition need not be commensurate with the gravity and the stigma of the offence
 Disagree with the statement that the standard of care on the objective test in manslaughter and in crimes of negligence varies
with the degree of experience, education, and other personal characteristics of the accused
o The appropriate standard of care is that of the reasonable person
 The criminal law is concerned with setting minimum standards of conduct; the standards are not to be
altered because the accused possesses more or less experience than the hypothetic average reasonable
person
Mens Rea

Manslaughter, two requirements
o Conduct causing the death of another person
o Fault short of intention to kill
 May consist either in committing another unlawful act which causes death or in criminal negligence
 Test for mens rea: mens rea of the underlying offence + objective foreseeability of the risk of bodily harm which is neither
trivial or transitory in the context of a dangerous act
Constitutionality of “Foresight of Bodily harm” test for manslaughter
 The most important feature of the stigma of manslaughter is stigma which is not attached to it
o A person convicted of manslaughter is not a murderer
o The very act of calling the killing manslaughter indicated that the killing is less blameworthy than murder
 The standard of mens rea required for manslaughter is appropriately tailored to the seriousness of the offence
 Lamer states that since manslaughter is an offence involving the prohibited act of killing another, a mens rea of
foreseeability of harm is insufficient; what is required is foreseeability of death
o McLachlin disagrees
 Wherever there is a risk of harm, there is also a practical risk that some victims may die as a result of the harm  test of
harm and death merge
 This aligns well with the principle of the thin-skill rule!
 Symmetry between mens rea and each consequence of the offence is not a principle of fundamental justice, this is
emphasized by the fact that the criminal law contains exception to the ideal of perfect symmetry
 Provided an element of mental fault or moral culpability is present, and provided that it is proportionate to the seriousness
and consequences of the offence charged, the principles of fundamental justice are satisfied.
 The need to deter dangerous conduct which may injure others and in fact may kill the peculiarly vulnerable supports the view
that death need not be objectively foreseeable, only bodily injury
 The fact that the mens rea of manslaughter requires foreseeable risk of harm rather than foreseeable risk of death does not
violate the POFJ
 The moral fault required for manslaughter is commensurate with the gravity of the offence and the penalties which it entails
and offends no principle of fundamental justice
The nature of the objective test
 The approach advocated by Lamer personalizes the objective test to the point where it devolves into a subjective test, eroding
the minimum standard of care which Parliament has laid down by enactment of offences of manslaughter and penal
negligence
 The mens rea of a criminal offence may be either subjective or objective, subject to the POFJ that the moral fault of the
offence must be proportionate to its gravity and penalty
37



Subjective mens rea requires that the accused have intended the consequences of his or her acts or that knowing of the
probable consequences of those acts, the accused have proceeded recklessly in the face of the risk
o The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her
mental state, or indirectly from the act and its circumstances
Objective mens rea: not concerned with what the accused intended or knew; the mental fault lies in the failure to
direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned
with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded
reasonably
The negligence must constitute a ‘marked departure’ from the standard of the reasonable person
Underlying principles
 The debate about the degree to which personal characteristic should be reflected in the objective test for fault in offences of
penal negligence engages two fundamental concepts in criminal law
o Criminal law may properly hold people who engage in risky activities to a minimum standard of care, judged by
what a reasonable person in all the circumstances would have done  uniform standard for all persons engaging in
the activity
o The morally innocent should not be punishedfoundation of the requirement of criminal law that the accused must
have a guilty mid or mens rea
 McLachlin agrees with Lamer that the rule that the morally innocent not be punished in the context of the objective test
requires that the law refrain from holding a person criminally responsible if he or she is not capable of appreciating the risk ;
differs on the issue that the sort of “habitual” factors personal to the accused should be taken into account
 Considerations of principle and policy dictate 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 question entails
o The criminal law has steadfastly rejected the idea that a person’s characteristics can excuse the person from meeting
the standard of conduct imposed by law
 The fundamental premises upon which our criminal law rests mandate that personal characteristics not directly relevant to an
element of the offence serve as excuses only at the point where they establish incapacity, whether the incapacity be the ability
to appreciate the nature and quality of one’s conduct in the context of intentional crimes, or the incapacity to appreciate the
risk involved in one’s conduct in the context of crimes of manslaughter or penal negligence.
o The only actor-oriented question apposite to mens rea in these cases is whether the accused was capable of
appreciating the risk, had he or she put her mind to it
 In unregulated activities, ordinary common sense is usually sufficient to permit anyone who directs his mind to the risk of the
danger inherent in an activity to appreciate that risk and act accordingly
 In licensed activities, there must be a basic amount of knowledge and experience before permission to engage in that activity
will be granted
 Where individuals engage in activities for which they lack sufficient knowledge, experience, or physical ability, they may be
properly found to be at fault, not so much for their inability to properly carry out the activity, but for their decision to attempt
the activity without having accounted for their deficiencies
 Without a constant minimum standard, the duty imposed by the law would be eroded and the criminal sanction
trivialized
 To permit such a subjective test would be co-extensive with the judgment of each individual leaving so vague a line of
reasonable conduct as to afford no rule at all: it would fail at being vague
 Proper line of inquiry for foresight of harm
o Is actus reus established?  negligence must constitute a marked departure from the standards of the reasonable
person  carrying out of the activity in a dangerous fashion, embarking on the activity in circumstances where it
was dangerous to do so
o Is mens rea established? Mens rea of objective foresight of risking harm is normally inferred from the facts
standard is of the reasonable person in the circumstances of the accused
 If a person has committed a manifestly dangerous act, it is reasonable to infer that the he failed to direct his
mind to the risk and the need to take care; the inference may be negated by evidence raising a reasonable
doubt as to lack of capacity to appreciate the risk
 If the accused possesses the requisite capacity to appreciate the risk flowing from his conduct then the necessary fault is
established and the accused must be convicted. otherwise the requisite capacity is not made out and the accused must be
acquitted
Ratio
 objective foresight of the likelihood of death is not required
38

need the requisite mens rea for the underlying unlawful act, which because of Motor Vehicle cannot be an absolute liability
offence, + objective reasonable foreseeability of the risk of bodily harm that is neither trivial nor transitory
R v Beatty

Difference between McLachlin and Charron: Charron marked departure = mens rea only; McLachlin marked departure
factors into actus reus and mens rea
Facts
 The accused was charged with 3 counts of dangerous driving causing death
 Accused’s pick up truck for no apparent reason, suddenly crossed the solid centre line into the path of an oncoming vehicle
killing all 3 occupants
 Accused stated that he was unsure as to what happened but that he must have lost consciousness or fallen asleep and collided
with the other vehicle
Issue
 Whether a momentary act of negligence is sufficient to constitute dangerous operation of a motor vehicle causing death
within the meaning of s.249(4)
Reasoning
Charron + Bastarache + Deschamps+ Abella + Rothstein
 It is important not to conflate the civil standard of negligence with the test for penal engligence
 Civil negligence = concerned with the apportionment of loss
 Penal negligence is aimed at the punishing blameworthy conduct
o Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with actus
reus = conduct that deviates from the norm, but also with mens rea= the offender’s mental state
 Burden lies on the Crown to prove both
 Where liability for penal negligence includes the potential of the imprisonment, distinction between penal and civil
negligence acquires a constitutional dimension
 The modified objective test is the appropriate test to determine the requisite mens rea for negligence based criminal offences
 Test for penal negligence modifies the purely objective norm for determining civil negligence
o There must be a marked departure from the civil norm in the circumstances of the case
 Distinction between a mere departure and a marked departure from the norm is a question of degree. It is
only when the conduct meets the higher threshold that the court may find, on the basis of conduct alone, a
blameworthy state of mind
o Cannot ignore the actual mental state of the accused
 Objective mens rea is based on the premise that a reasonable person in the accused’s position would have
been aware of the risks arising from the conduct the fault lies in the absence of the requisite mental state
of care
 Where the accused raises a reasonable doubt whether a reasonable person in his position would have been
aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and
there must be an acquittal  the analysis is contextualized and allowances are made for defences such as
incapacity and mistake of fact
 Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience and
education are not relevant to vitiate intent where it can be reasonably foreseen by the average person
 The reasonable person must be put in the circumstances the accused found himself in when the events occurred in order to
assess the reasonableness of the conduct
 Some difficulties with this analysis/test: 1) difference between objectively dangerous driving and marked departed from the
standard of care, 2) how much emphasis can we put on the accused’s mental state
 The test is found on pg 474 for greater clarification
 Determining the actus reus
o The offence is defined by the words of the legislative provision, not by the common law standard of civil negligence
 In the case of dangerous driving conduct must be measured against the wording of s.249
 The wording of the legislation condemns the manner in which the motor vehicle was operated, not
the consequence of the driving
o The consequence may assist in assessing the risk involved but does not answer the
question whether or not the vehicle was operated in a manner dangerous to the public
 Determining the mens rea
o The mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective
test
39


Not necessary for the Crown to prove that the accused had a positive state of mind, such as intent,
recklessness or wilful blindness
o While proof of subjective mens rea will suffice (subjective mens rea of intentionally creating a danger for other
users of the highway constitutes a marked departure from the standard expected of a reasonably prudent driver) it is
not essential
 In the case of negligence-based offences doing the proscribed act with the absence of the appropriate
mental state of care may suffice to constitute the requisite fault
 The objective mens rea is determined by assessing the dangerous conduct as against the standard expected
of a reasonably prudent driver
 If the dangerous conduct constitutes a marked departure from the norm, the offence will be made
out  matter of degree
o Test: Part 1) If the conduct does not constitute a marked departure from the standard expected of a reasonably
prudent driver, there is no need to pursue the analysis  offence not made out
o Test: Part 2) If the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct
constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind
of the accused to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s
position would have been aware of the risk created by the conduct
Application to the case at bar
o Actus reus: Beatty’s failure to confine his vehicle to his own lane was dangerous to other users of the highway 
actus reus satisfied
o Mens rea:
 No deliberate intention to create a danger for the users of the highway
 No evidence of improper driving before the truck momentarily crossed the centre line
 Beatty experienced a loss of awareness
 Momentary lapse of attention is insufficient to find criminal culpability  no marked departure from the
standard of care of a prudent driver
McLachlin + Binnie + LeBel
 Marked departure as stated in Hundal applies to both the actus reus and the mens rea of the offence
 Dangerousness in 249(1)(a) is understood as requiring a marked departure from the conduct of a reasonable person in the
circumstances
 Statement of the law is:
o Actus reus requires a marked departure from the normal manner of driving
o The mens rea is generally inferred from the marked departure in the nature of the driving. Based on the finding of
the marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person
o While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the
evidence in a particular case may negate or cast a reasonable doubt on this inference
 A momentary lapse of attention without more cannot establish the actus reus or mens rea of the offence of dangerous driving
 The offence of dangerous driving requires a higher degree of negligence than careless driving
 If the only evidence against the accused is evidence of a momentary lapse of attention, the offence of dangerous driving is not
established. The heavy sanction and stigma that follow from a criminal offence should not be visited upon a person for a
momentary lapse of attention.
o Does not establish the marked departure from the standard of care of a reasonably prudent driver required from the
actus reus of the offence
 If the actus reus fails no need to pursue further inquiry. However if the accused is driving in a manner that constitutes a
marked departure from the norm, the inference will be that he lacked the requisite mental state of care of a reasonable person,
unless he had a good excuse such as the sudden and unexpected onset of illness
 The crown did not succeed in proving that the accused’s manner of driving viewed as a whole constitutes a marked departure
from the standard of care of a reasonably prudent driver
 Additional inquiry into the accused’s actual state of mind
Fish
 Actus reus must be determined in accordance with the wording of the legislation
 Anyone who commits the actus reus with the requisite mens rea is guilty of dangerous driving
 The fault element is not the marked departure from the norm of a reasonably prudent driver but the fact that a reasonably
prudent driver in the circumstances of the accused would have been aware of the risk of conduct and if able to do so would
have averted it
40

The requisite mental element may only be inferred where the impugned conduct represents a marked departure from the
norm; cannot be inferred from the mere fact that the vehicle was operated dangerously
Ratio
 Actus reus has to be determined in accordance with the legislation
 Mens rea must constitute a marked departure
Holding
 Beatty is acquitted
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Casebook comments on Constitutional Considerations
BC Motor Vehicles establishes the proposition that some level of fault is required prior to the loss of liberty by an accused
person
Vaillancourt held that nothing less than subjective foresight of death is required before an accused person can be convicted
of murder
Short of murder, something less than subjective fault will suffice for most criminal offences
In R v Durham, it was held that Parliament could use the civil standard of negligence for the offence of using a firearm in a
careless manner
“Yet not all criminal offences carry the same amount of stigma. The stigma is proportional not only to the gravity of conduct
and of its consequences, but to the level of fault, represented by the mental element, with which the act or omission was
performed.
In R v DeSousa: “There is no constitutional requirement that intention, either on an objective or a subjective basis, extend to
the consequences of unlawful acts in general.
There are many provisions where one need not intend all of the consequences of an action. Where actus reus is many
elements, may only need intent on one!
In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through
avoidable unlawful act
Creighton: the majority of the Court held that the section required only the requisite mens rea for the underlying unlawful
act.
R v Finta
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Constitutionalization of fault in the context of crimes against humanity
Facts
 Accused was charged under s.7(3.71) of the Criminal Code with committing unlawful confinement, robbery, kidnapping, and
manslaughter that constitutes a war crime or a crime against humanity as a result of his activities as a senior officer at a
concentration camp
Issue
Reasoning
Cory+Lamer+ Gonthier+Major
 What distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the
cruel and terrible actions were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group
or race.
 While the underlying offences may constitute a base level of moral culpability Parliament has added a further measure of
blameworthiness by requiring that the act or omission constitute a crime against humanity or a war crime
o If the jury is not satisfied that this additional element of culpability has been established beyond a reasonable doubt,
then the accused cannot be found guilty of a war crime or a crime against humanity
 Vaillancourt: there are certain crimes where, because of the special nature of the unavoidable penalties or of the stigma
attached to a conviction, the principles of fundamental justice require a mental blameworthiness or a mens rea reflecting the
particular nature of that crime
 Following the reasoning in Vaillancourt: the question which must be answered is not simply whether the accused is morally
innocent, but rather, whether the conduct is sufficiently blameworthy to merit the punishment and stigma that will ensue upon
conviction for that particular offence
o must look at stigma and punishment that will result upon the conviction for the domestic offence + stigma that will
be suffered by an individual whose conduct has been held to constitute crimes against humanity or war crimes
 It is against the principles of fundamental justice to convict someone of an offence where it has not been established beyond a
reasonable doubt that he was aware of conditions that would bring to his actions the requisite added dimension of cruelty and
barbarism
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Martineau: in order to secure a conviction of murder, the principles of fundamental justice require subjective foresight of the
consequences of death
R v DeSousa: not a principle of fundamental justice that the fault or mens rea must be proved as to each separate element of
the offence, there must be a meaningful mental element demonstrated relating to a culpable aspect of the actus reus
The mental element of a crime against humanity must involve subjective knowledge on the part of the accused of the factual
conditions which render the actions a crime against humanity
Here the accused would have to be aware that the facts or circumstances of his actions were such that, viewed objectively,
they would shock the conscience of all right thinking people
The mens rea requirement of both crimes against humanity and war crimes would be met if it were established that the
accused was wilfully blind to the facts or circumstances
LaForest + L`Hereux-Dube + McLachlin
 A mens rea need only be found in relation to the individually blameworthy elements of a war crime or crime against
humanity, not every single circumstance surrounding it
 Any stigma attached to being convicted under war crime legislation does not come from the nature of the offence, but more
from the surrounding circumstances of most war crimes
 The jurisprudence does not allow for stigma that may also result from being convicted of an offence in which the surrounding
circumstances are legally irrelevant but public disapproval strong
Ratio
 The mental element of a crime against humanity must involve subjective knowledge on the part of the accused of the factual
conditions which render the actions a crime against humanity
 The mens rea requirement of both crimes against humanity and war crimes would be met if it were established that the
accused was wilfully blind to the facts or circumstances
Holding
 Appeal dismissed
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Kent Roach “Mind the Gap: Canada’s Different Criminal and Constitutional Standards of Fault”
There has been significant slippage between criminal law standards of fault articulated pre- and post-Charter
Pre-Charter: subjective fault
Post-Charter: only murder, attempted murder and war crimes have enough stigma to constitutionally require proof of
subjective fault in relation to all aspects of the prohibited act.
The Court has rejected the idea that fault should be established to all aspects of the prohibited ac
Serious concerns have been raised that principles of subjective fault are inappropriate means to deal with pressing problems
and Parliament has experimented with mixed subjective and objective forms of fault
Court’s cautious approach reveals a faint-hearted commitment to subjective principles of fault that were recognized before
the Charter as a critical component of a just criminal justice system that held culpable individuals to account on the basis of
their own perceptions and abilities
Perhaps because SCC has found that s.7 freedom’s is absolute; will never be justified under s.1; therefore, only the up-most
important elements are constitutionalized; otherwise a whole lot of legislation would be invalidated
Mistake of Fact
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Successfully raising the defence of mistake of fact involves a negation of mens rea
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Mistake of fact = defence which involves the negation of mens rea
Possession requires subjective mens rea; knowledge as to the illicit nature of the thing possessed
Beaver v the Queen
Facts
 Accused was convicted for possession of morphine and trafficking of morphine. Thought he had sugar of milk
Issue
 Whether mistake of fact is a valid defense in possession cases
Reasoning
 Unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should
not find a man guilty of an offence against the criminal law unless he has a guilty mind
42
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The essential question is whether the belief entertained by the accused is an honest one and that the existence or nonexistence of reasonable grounds for such belief is merely relevant evidence to be weighed by the tribunal of fact in
determining that essential question
 The essence of the crime is possession of the forbidden substance and in a criminal case there is in law no possession without
the character of the forbidden substance
 X did not have possession of heroin so long as he honestly believed the package to contain something else, like baking soda
Hodling
 Quash the conviction of having possession of a drug
Mistakes of fact: Pappajohn v The Queen, Dickson dissent
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Mistake is a defence where it prevents an accused from having the mens rea which the law requires for the very crime with
which he is charged
Mistake of fact is a negation of guilty intention rather than the affirmation of a positive defence
Mistake is a defense in the sense that it is raised as an issue by the accused
The defense should avail when there is an honest belief in consent, or an absence of knowledge that consent has been
withheld
Whether the mistake is rooted in accused’s mistaken perception or is based upon objective but incorrect facts confided to
him by another should be of no consequence
The defence is only available where there is sufficient evidence presented by the accused, by his testimony or by the
circumstances in which the act occurred to found the plea
If the claim of mistake does not raise a reasonable doubt as to guilt, and all other elements of the crime have been proved,
then the trier of fact will not give effect to the defence
If there is any evidence that there was such an honest belief, regardless of whether it is reasonable, the jury must be entrusted
with the task of assessing the credibility of the plea
If the accused is to be punished because his mistake is one which an average man would not make, punishment will
sometimes be inflicted when the criminal mind does not exist
In Canada, the honest belief standard is sued
The essential question is whether the belief entertained by the accused is an honest one and that the existence or nonexistence of reasonable grounds for such belief is merely relevant evidence to be weighed by the tribunal of fact in
determining that essential question
To crimes of mens rea, mistake of fact is a defence; to crimes of negligence, mistake of fact is a defence only if the mistake
was in all the circumstances a reasonable one to make
Although reasonable grounds is not a precondition to the availability of a plea of honest belief in consent, those grounds
determine the weight to be given the defence. The reasonableness of the accused’s belief is only evidence for, or against, the
view that the belief was actually held and the intent was, therefore, lacking
“That if they think that the alleged belief was unreasonable, that may be one factor leading them to conclude that it was not
really held; but they must look at the facts as a whole.”
Vaillancourt v The Queen
Facts
 Charged with second degree murder
 Vaillancourt and his accomplice committed an armed robbery
 During the robbery the appellant was armed with a knife and his accomplice with a gun; the accomplice shot someone and
managed to escape
 Vaillancourt said that he and his accomplice had agreed to not use guns, and that when he found out his accomplice had one
he asked for it to be unloaded. Vaillancourt took 3 bullets from the gun, thought that it was unloaded
Issue
 Is s.213 (d) constitutionally valid? Claim is that POFJ require that before Parliament can impose any criminal liability for
causing a particular result, there must be some degree of subjective mens rea in respect of that result
Reasoning
Lamer+ Dickson + Estey +Wilson
 S.212(a) requires subjective foresight, s.212(c) replaces it with objective foreseeability or negligence
43

Under s.7 if a conviction, given either the stigma attached to the offence or the available penalties will result in a deprivation
of the life liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice
 Motor Vehicle: Parliament retains the power to define the elements of a crime, but the courts have the jurisdiction and the
duty to review that definition to ensure that it is in accordance with the principles of fundamental justice
 Something less than subjective foresight of the result may sometimes suffice for the imposition of criminal liability for
causing that result through intentional criminal conduct
 There are certain crimes where because of the special nature of the stigma attached to a conviction therefor or the available
penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of the crime
o Theft  dishonesty
o Murder
 The punishment for murder is the most severe in our society and the stigma that attaches to a conviction for murder is also
extreme
 Murder is distinguished from manslaughter only by the mental element with respect to the death
o There must be some special mental element with respect to the death before a culpable homicide can be treated as
murder
 The special element gives rise to the moral blameworthiness which justifies the stigma and sentence
attached to a murder conviction
 Lamer believes that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than
proof beyond a reasonable doubt of subjective foresight; but for the sole purpose of the appeal go no further than say that it is
a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there
cannot be a murder conviction
 What offends the presumption of innocence is the fact that the accused may be convicted despite the existence of a
reasonable doubt on an essential element of the offence
 The mens rea required for s.213 consists of the mens rea for the underlying offence and the intent to commit one of the acts
set forth in para a-d
o S.213 has substituted for proof beyond a reasonable doubt of objective foreseeability proof beyond reasonable doubt
of certain forms of intentional dangerous conduct causing death
 Proper test for constitutionality: would it be possible for a conviction for murder to occur under s.213 despite the jury
having a reasonable doubt as to whether the accused ought to have known that the death was likely to ensue? If yes, then
prima facie violation of s.7 and 11(d); if no then assess whether objective foreseeability is sufficient for a murder conviction
 S.213 will catch an accused who performs one of the acts in para a-d and thereby causes a death but who otherwise would
have been acquitted of murder because he did not foresee and could not reasonably have foreseen that death would be likely
to result
o S.213 prima facie violates ss.7 and 11(d)
 Does not pass s.1 inquiry
o Valid objective of deterring the use or carrying of weapons in the commission of certain offences because of the
increased risk of death
o Not necessary however to convict of murder persons who did not intend or foresee the death and who could not have
foreseen the death in order to deter others from using or carrying weapons
 Stigmatizing the crime as a murder unnecessarily impairs the Charter right
La Forest
 Because of the stigma attached to a conviction for murder, the principles of fundamental justice require a mens rea reflecting
the particular nature of that crime, namely one referable to causing death
 The mental element required by s.213(d) is so remote from the intention specific to murder that a conviction under that
paragraph violates fundamental justice
o All the provision requires is an intention to commit another crime and to possess a weapon while carrying out this
intention or fleeing afterwards
 The objective of discouraging the use of weapons in the commission of crimes can be achieved by means other than attaching
the stigma of a conviction for murder to a person who has caused death in the circumstances described by the section
McIntyre
 Parliament has decided that the possession and use of weapons, particularly firearms in the course of the commission of
offences is a gravely aggravating factor
 Parliament has chosen to term a killing arising in the circumstances described here as “murder”
 The principal complaint in this case is not that the accused should not have been convicted but simply that Parliament should
not have chosen to call that crime murder
 While it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended
only because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human
being, is classified as murder and not in some other manner
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 Would not interfere with the Parliamentary decision
Holding
 S.213(d) is unconstitutional
Ratio
 it is a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there
cannot be a murder conviction
R v Martineau
 Subjective foresight, murder
Facts
 Martineau charged with second degree murder under s.213(a) and (d)
 Martineau knew he and his accomplice were going to commit a crime but he thought it was only going to be a break and
enter
 Martineau and his accomplice robbed a trailer, but his accomplice proceeded to kill the victims because he said “ they saw
our faces
Issue
 Is s.213(a) constitutionally valid?
Reasoning
Lamer+ Dickson+ Wilson +Gonthier+Cory
 With the advent of the Charter in 1982, Parliament has directed the courts to review those definitions to ensure that they are
in accordance with the POFJ
 s.213(a) of the Code defines culpable homicide as murder where a person causes death of a human being while committing or
attempting to commit a range of listed offences, whether or not the person means to cause death or whether or not he or she
knows that death is likely to ensue if that person means to cause bodily harm for the purpose of facilitating the commission of
the offence or flight after committing or attempting to commit the offence
o expressly removes from the Crown the burden of proving beyond a reasonable doubt that the accused had subjective
foresight of death
 a conviction for murder carries with it the most sever stigma and punishment of any crime in our society
 the principles of fundamental justice require because of the special nature of the stigma attached to a conviction for murder,
and the available penalties, a mens rea reflecting the particular nature of that crime
 the effect of s.213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the
offender; more severe punishment for those who intended their actions!
 the rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as
a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the
actor possesses a culpable mental state in respect of that result
 the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to
intentionally cause death or who choose to inflict bodily harm that they know will cause death
 This maintain proportionality between the stigma and punishment attached to a murder conviction and the moral
blameworthiness of the offender
 objective of deterring the infliction of bodily harm during the commission of certain offences because of the increased risk of
death is important, but it is not necessary in order to achieve the objective to convict of murder persons who do not intend or
foresee the death  Fails Oakes test
 to label and punish a person as a murderer who did not intend or foresee death unnecessarily stigmatizes and punishes those
whose moral blameworthiness is not that of a murdered and thereby unnecessarily impairs the rights guaranteed by s.7 and
11(d) of the Charter
L’Heureux-Dubé Dissent
 Lamer, Vaillancourt: if the crime is tantamount to one which has objective foreseeability as an essential element, and if
objective foreseeability is sufficient, then it would not be in violation of s.7 or s.11(d) to use the objective foreseeability test
 The concentration on social stigma is over-emphasized and in the majority of cases inapplicable.
 If the apprehension is that the offenders will suffer from their murder label, LHD says they will fare little better tagged as
manslaughterers
 After Vaillancourt only killings resulting from circumstances in which death is at a minimum objectively foreseeable will be
prosecuted under s.213 (a); accidental killings will not result in murder prosecutions
 S.213 deals with killings that are objectively foreseeable as a result of the abominable nature of the predicate crimes,
committed with specific intent, coupled with the intentional infliction of bodily harm
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o Given the dual subjective requirement already in place, the deterrence factor is most cogent in these circumstances
The objective foreseeability of death test for the crime of murder is constitutionally valid
Striking down legislation simply because some other scheme may be preferable would be an unwarranted intrusion into
Parliament’s prerogative, and would undermine the means it has chosen to protect its citizens.
Holding
 s.213(a) is unconstitutional and cannot be saved under s.1
Ratio
 nothing less than subjective foresight of death is required before an accused person can be convicted of murder
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Note:
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In R v Sitt: “Our finding in Martineau that proof of subjective foresight of death is necessary in order to sustain a
conviction for murder and that s.213(a) of the Criminal Code violated the Charter since it did not embrace this
requirement was the ratio.
Parliament has responded by using mandatory-minimum sentences. So far, they have held up to constitutional
challenges
Intoxication!
DPP v Beard
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Common law defence of intoxication
** this case has been interpreted as restricting the intoxication defence to “specific intent” offences
Reasoning
 Except in cases where insanity is pleaded, where a specific intent is an essential element of the offence, evidence of a state of
drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to
determine whether he had in fact formed the intent necessary to constitute the particular crime
o If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which
requires proof of intention
o The state of drunkenness may negative the commission of the crime
 In cases falling short of insanity a condition of drunkenness at the time of committing an offence causing death can only have
the effect of reducing the crime from murder to manslaughter
 Insanity whether produced by drunkenness or otherwise is a defence to the crime charged; if actual insanity is caused as the
result of alcoholic excess it furnishes as a complete an answer to a criminal charge as insanity induced by any other cause
 Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the
crime should be taken into consideration with the other facts proved in order to determine whether or not he had this
intent
 The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the
crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion,
does not rebut the presumption that a man intends the natural consequences of his acts
MacAskill charge: Look at the capacity to create intent; then look at if there is actually intent
R v Daley
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Intoxication: capacity is not relevant, only intent
Facts
 The accused was charged with the murder of his common law wife
 He called expert evidence about his blood alcohol level and its effects on him
Issue
 In the case of intoxication, is the Mackinlay type charge for intent + capacity more appropriate than Canute which is just
intent?
Reasoning
 Difference between Canute and Mackinlay type charge: MacKinlay makes an explicit distinction between findings on
capacity and findings of actual intent
 MacKinlay: the jury is told that if it entertains a reasonable doubt whether the accused by reason of intoxication had the
capacity to form the necessary intent, then the necessary intent has not been proven. the trial judge must then go on to say
that even if they are satisfied beyond a reasonable doubt that the accused had the capacity to form the necessary intent, they
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must then go on to consider whether, taking into account the consumption of liquor and other facts, the prosecution has
satisfied them beyond a reasonable doubt that the accused in fact had the requisite intent
 Canute: focuses only on the issue of whether the accused possessed an actual intent and omits any reference to capacity
o Revised in Seymour: where there is evidence of intoxication, there must be a direct link drawn between the effect of
intoxication and the common sense inference
 If a person acts in a manner which is likely to produce a certain result it generally will be reasonable to
infer that the person foresaw the probable consequences of the act
 The jury must be instructed to take into account the evidence of the accused’s consumption of
alcohol/drugs along with all other evidence which is relevant to the accused’s intent, in determining
whether, in all the circumstances, it would be appropriate to draw the permissible inference that the accused
intended the natural consequences of his actions
 This is necessary such that the jury is specifically instructed that evidence of intoxication may
rebut the inference
 Problem with MacKinlay type charge: the issue of actual intent necessarily renders the question of capacity to form that
intent redundant. It seems that the only likely result of retaining the two step approach in Mackinlay with its reference to
“capacity” would be to confuse the jury into considering something other than the actual intent of the accused
 Retaining the Mackinlay type charge is a sacrifice of simplicity and clarity
 Canute type charge should be used in all future cases of intoxication
Dissent
 The decisive question was whether the jury was satisfied beyond a reasonable doubt that the appellant drunk as he was either
meant to cause the victim’s death or meant to cause her bodily harm that he knew was likely to cause her death and was
reckless whether death ensued or not
 The judge’s charge must include mention of the appellant’s position of lacking the requisite mens rea to commit murder
because his extreme intoxication rendered him incapable of foreseeing the consequences of his actions
 There is a point where extreme intoxication renders a person incapable of contemplating the consequences of his or her
action, and therefore unable to foresee that stabbing someone in the side would likely cause that person’s death
Ratio
 If a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person
foresaw the probable consequences of the act
 The jury must be instructed to take into account the evidence of the accused’s consumption of alcohol/drugs along with all
other evidence which is relevant to the accused’s intent, in determining whether, in all the circumstances, it would be
appropriate to draw the permissible inference that the accused intended the natural consequences of his actions
Hodling
 Conviction of second degree murder upheld
R v George
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Intoxication and specific intent
Facts
 Accused was charged with unlawfully and by violence stealing 22 dollars
 While drunk, in the process of stealing the 22 dollars the accused violently handled an 84 year old man; he knew he was
violently handling someone
 Trial judge acquitted the accused saying “ there is no doubt in my mind that you did it, you are being acquitted because I
have found that you were so drunk…that you were unable to form an intent to do it
Issue
 Whether a distinction should be drawn “between the degree of drunkenness required to negative the existence of” that intent
which is an essential ingredient of the crime of robber and the degree of drunkenness which is necessary to negative shuch
intent as in an ingredient of common assult
Reasoning
Ritchie + Martland
 In considering the question of mens rea, a distinction is to be drawn between
o “intention” as applied to acts done to achieve an immediate end
 “intentionally” in the sense that they are not done by accident or through honest mistake
 May be purely physical products of momentary passion
o acts done with the specific and ulterior motive and intention of furthering or achieving an illegal object on the other
hand
 product of preconception and are deliberate steps taken towards an illegal goal
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 involve mental process of formulating a specific intent
the word “intentionally” in defining common assault in s.230 (a) , now s.265(1)(a) is exclusively referable to the physical act
of applying force to another person
 Director of Public Prosecutions v Beard: evidence of such drunkenness as “renders the accused incapable of forming the
specific intent essential to constitute the crime, should be taken into consideration, with the other facts proved, in order to
determine whether or not he had this intent
o In such a case the drunkenness if it negatives the existence of the indispensable mental element of the crime,
negatives the commission of that crime
 Here the evidence that the accused was in a state of voluntary drunkenness cannot be treated as a defence to a charge of
common assault because there is no suggestion that the drink which had been consumed had produced permanent or
temporary insanity and the respondent’s own statement indicates that he knew that he was applying force to the person
of another
Fauteux + Tascherau
 In considering the question of mens rea, a distinction is to be made between
o Intention as applied to acts considered in relation to their purposes
o Intention as applied to acts considered apart from their purposes
 A general intent attending the commission of an act is sometimes the only intent required to constitute the crime while, in
others, there must be in addition to that general intent, a specific intent attending the purpose for the commission of the act
 There is no specific intent necessary to constitute the offence of common assault
 There is no pretence here that the manner in which force was applied by the accused to the victim was accidental or
unintentional
 The accused was guilty of common assault unless there was evidence indicating a degree of drunkenness, affording under the
law, a valid defence
 Must ask whether there is a reasonable doubt that owing to drunkenness the accused had the capacity to apply force
intentionally
o Short of drunkenness creating a condition tantamount to insanity such a situation could not be metaphysically
conceived in an assault of the kind involved here
Holding
 Accused is guilty of common assault
Ratio
 In order for intoxication to be a defence in common assault it must interfere with the accused’s ability to intentionally apply
force
o If the accused knowingly applied force intention is not negated by the intoxication
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Bernard v the Queen
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General vs specific intent
Facts
 Charge: sexual assault causing bodily harm contrary to s.246.2 (c) now 272(c) of the Criminal code
272. (1) Every person commits an offence who, in committing a sexual assault,
 (a) carries, uses or threatens to use a weapon or an imitation of a weapon;
 (b) threatens to cause bodily harm to a person other than the complainant;
 (c) causes bodily harm to the complainant; or
 (d) is a party to the offence with any other person.
 Accused stated that he forced the complainant to have intercourse with him but he did it because he was drunk and when he
realized what he was doing he got off the complainant
Issue
 Is the defence of intoxication applicable to sexual assault causing bodily harm?
Reasoning
McIntyre + Beetz
 A distinction exists between offences which require proof of specific intent and those which require only the proof of a
general intent
o The distinction forms the basis of the defence of drunkenness
 general intent: one in which the only intent involved relates solely to the performance the act in question with no further
ulterior intent or purpose
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
Specific intent: one which involves the performance of the actus reus coupled with an intent or purpose going beyond the
mere performance of the questioned act
 Drunkenness is not a true defence to a criminal act
o Where in a case which involves a crime of specific intent the accused is so affected by intoxication that he lacks the
capacity to form the specific intent required to commit the crime charged, it may apply
o The defence has no application in crimes of general intent
 Dickson says that evidence of self-induced intoxication should be a relevant consideration in determining whether the mens
rea of any particular offence has been proved by the Crown
o Disagree: the effect would be that the more drunk a person becomes by his own voluntary consumption of alcohol or
drugs, the more extended will be his opportunity for a successful defence against conviction for the offences caused
by such drinking regardless of the nature of the intent required for those offences
 Mens rea can be proved in 2 ways:
o From the actus reus: a person is presumed to have intended the natural and probable consequences of his actions
o In cases where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown
may meet its evidentiary obligation respecting the necessary blameworthy mental state of the accused by proving the
fact of voluntary self-induced intoxication by drugs or alcohol
 Evidence of self-intoxication is evidence of the guilty mind, the blameworthy mental state
 Result: accused persons cannot hold up voluntary drunkenness as a defence
 If they managed to get themselves so drunk that they did not know what they were doing, the
reckless behaviour in attaining that level of intoxication affords the necessary evidence of culpable
mental condition  logically impossible for an accused person to use drunkenness as a defence to
a charge of general intent
 You’re not morally innocent if you do drugs!
 Sexual assault causing bodily harm is an offence of general intent  defence of intoxication does not apply
Wilson + L’ Hereux Dube
 Sexual assault is a crime of violence there is no requirement beyond the intentional application of force
o Evidence that the appellant punched the complainant twice and threatened to kill her; clear from this that there was
intentional and voluntary as opposed to accidental or involuntary application of force
 No evidence that dealing here with extreme intoxication verging on insanity or automatism which would negate the inference
that minimal intent to apply force was present
 The evidence of intoxication was not capable of raising a reasonable doubt as to the existence of the minimal intent required
 Not confident that self-induced intoxication may substitute for the mental element required to be present at the time the
offence was committed
 Allow evidence of intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication
involving an absence of awareness akin to a state of insanity or automatism
 A person should not be exposed to a deprivation of liberty unless the Crown proves the existence of a blameworthy or
culpable state of mind
o Does not follow that those who through the voluntary consumption of alcohol or drugs incapacitate themselves from
knowing what they are doing, fall within the category of the morally innocent deserving protection
o Concern arises under s.11(d) of the Charter
 Court has recognized that in some cases proof of an essential element of a criminal offence can be replaced
by proof of a different element, but it has placed limitations on when this can happen
 Lamer in Vaillancourt: this will only be constitutionally valid if upon proof beyond reasonable
doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied
beyond reasonable doubt of the existence of the essential element
o Leave question open but it is unlikely that those cases in which it is necessary to resort to self-induced intoxication
as the substituted element for the minimal intent, proof of the substituted element will inexorably lead to the
conclusion that the essential element of the minimal intent existed at the time the criminal act was committed
Dickson + Lamer + La Forest
 Evidence of self-induced intoxication should be considered by the trier of fact in determining whether the prosecution has
proved beyond a reasonable doubt the mens rea required to constitute the offence
 The categories of specific and general intent have evolved as an artificial device whereby evidence, otherwise relevant is
excluded from the jury’s consideration
 Because this categorical approach is based on policy rather than principle, classification of offences as falling within or
without the specific intent category is an ad hoc, unpredictable exercise
 Finds that Leary is unconstitutional; wrongful intent is irrebuttably presumed upon the showing of intoxication; a general
intent offence is converted into one of absolute liability in which proof of the commission of the actus reus by itself mandates
conviction
49

Leary treats the deliberate act of becoming intoxicated as culpable in itself, but inflicts punishment measured by the
unintended consequences of becoming intoxicated.
 Trial judge should have instructed the jury that the Crown must prove that the accused acted with the requisite intent  new
trial needed
Ratio
 Sexual assault causing bodily harm is an offence of general intent requiring only the minimal intent to apply force
 In most cases involving general intent the Crown will be able to establish the accused’s blameworthy mental state by
inference from his acts
Holding
 Conviction upheld
** the distinction between specific and general intent exists solely for the purpose of determining whether there is or is not a
defence of intoxication at common law; intuitively specific intent connotes a more focused or concentrated form of mens rea but
this idea has never been coherently developed
R v Daviault


Extreme intoxication and general intent
R v Penno: intoxication cannot be a defence to an offence in which it is an element
Facts
 Charge: sexual assault
 Accused was a chronic alcoholic
 At the time of the assault the blood alcohol level in the accused was high enough ot cause death or coma in an ordinary
person
o Expert testified that this level f alcohol might cause one to blackout and lose contract with reality; brain would
temporarily dissociate from normal functioning
Issue
 Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a
disease of the mind as defined in s.16 of the Criminal code constitute a basis for defending a crime which requires not a
specific but only a general intent?
Reasoning
 Current position :
o sexual assault = general intent
o drunkenness is not a defence in general intent offences
o 1) intention to do what you did generally presumed OR 2) if you got yourself drunk then you are at fault
o result: absolute liability in the case of general intent offences committed while drunk
 voluntary intoxication is not yet a crime  comment with respect to 2
 Self-induced intoxication cannot supply the necessary link between the minimal mental element or mens rea required for the
offence and the actus reus
o The mental element must be one of intention with respect to the actus reus of the crime charged
 Creighton: minimum mens rea of an offence should reflect the particular nature of the crime
 Self-induced intoxication cannot in all circumstances meet this requirement of minimal intent for all crimes of general intent
 To deny that even a minimal mental element is required for sexual assault offends the Charter and is contrary to the
principles of fundamental justice (this is mostly a beef with 2)
 Adopt the position of Wilson in Bernard
o Those who can demonstrate that they were is such extreme degree of intoxication that they were in a state akin to
automatism or insanity might be able to raise a reasonable doubt as to their ability to form the minimal mental
element required for a general intent offence
o The substituted mens rea of an intention to become drunk cannot establish the mens rea to commit the assault
o Drunkenness akin to insanity or automatism = person so severely intoxicated that he is incapable of forming even
the minimal intent required of a general intent offence
 Drunkenness is not a defence to crimes of general intent except in the rare situations where the degree of intoxication is so
severe that it is akin to automatism
o Neither an insane person nor one in a state of automatism is capable of forming the minimum intent required for a
general intent offence
o Accused should be called upon to establish the state of intoxication that is akin to automatism on the balance of
probabilities
 Chaulk: making the accused prove something on the balance of probabilities is contrary to s.11(d) but could
be justified under s.1
50

Here the burden is justifiable: it is only the accused who can give evidence as to the amount of alcohol
consume and its effect upon him
Dissent (Sopinka)
 Sexual assault is a crime of general intent
 Drunkenness is not a defence to a crime of general intent  Leary
 The fact that an accused has voluntarily consumed intoxicating amount of drugs or alcohol cannot excuse the commission of
a criminal offence unless it give rise to a mental disorder within the terms of s.16
o S.16 not invoked here so the circumstances in which alcohol or its effects may engage the provisions of that section
are not at issue here
 None of the principles of fundamental justice require that the intent to perform the actus reus of an offence of general intent
be an element of the offence
o The requirements of the principles of fundamental justice are satisfied by proof that the accused became voluntarily
intoxicated
 The premise upon which the alleged breach of fundamental justice is based is that
o symmetry between the actus reus or some aspect of it and the mens rea is constitutionally required
 Creighton: court divided on the issue
 Dissent: mental element required was foreseeability of death on a modified objective standard
 Majority: objective standard limited to bodily harm
o Punishment must be proportionate to the moral blameworthiness of the offender
 There are a few crimes in respect of which a special level of mens rea is constitutionally required by reason
of the stigma attaching to a conviction and by reason of the severity of the penalty imposed by law
 Murder and attempted murder require a mens rea based on a subjective standard  specific intent
offences  drunkenness is a defence
 Sexual assault does not fall into the category of offences for which either the stigma or the
available penalties demand as a constitutional requirement subjective intent to commit the actus
reus
 Here the stigma and punishment attached with the offence of sexual assault are proportionate to the moral blameworthiness
of a person who commits the offence after voluntarily becoming so intoxicated as to be incapable of knowing what he was
doing
 Voluntary intoxication does not constitute a defence to an offence of general intent
 If a different approach is desirable, Parliament should intervene
Ratio
 Drunkenness is not a defence to crimes of general intent except in the rare situations where the degree of intoxication is so
severe that it is akin to automatism
o Accused should be called upon to establish the state of intoxication that is akin to automatism on the balance of
probabilities
**Three variations on the defence of intoxication:
 The common law rule in cases such as Bernard: restrict the defence to offences of specific intent
o Need to classify an offence as one of general or specific intent
 The expanded defence of extreme intoxication, as stated in Daviault
o Application requires expert evidence concerning the nature and effect of the intoxication; defence cannot succeed
unless it is proved on a balance of probabilities
 S.33.1 of the Code denies the defence of extreme intoxication to any offence of general intent that involves interference or
threatened interference with the bodily integrity of another person provided that at the relevant time the act was performed in
a state of intoxication that shows a marked departure from the standard of reasonable care
 Vaillancourt: A substitution of one standard of fault for another that is constitutionally required for the offence would be
valid only if the substituted element was functionally equivalent to the required element. This may violate POFJ if proof of
the substituted element does not lead inexorably or beyond a reasonable doubt
R v Chaulk
 The limited defence of intoxication in s.33.1 applies only where the consumption of intoxicants is self induced or voluntary
 Test for voluntary intoxication
 Defence of extreme intoxication does not apply to general intent crimes involving assaultive behaviour
Facts
 Charged: assault, threatening to cause bodily harm, committing assault and damage, and mischief by wilfully damaging
property
51
 Chaulk got drunk at a party where he may or may not have voluntarily taken a mixture of acid ecstasy and marijuana
Issue
 Was Chaulk’s intoxication self-induced? Does s.33.1 therefore preclude his reliance on the defence of intoxication with
respect to the offences of assault, threatening to cause bodily harm and committing assault?
Reasoning
 The defence or extreme intoxication for general intent crimes in Daviault provoked legislative response in the form of s.33.1
of the Criminal code which precludes that defence in the case of self-induced intoxication where the offence charged includes
as an element, assaultive behaviour
 Once it was accepted by the trial judge that Chaulk was acting in a state akin to automatism the remaining issue was whether
s.33.1 precluded him from arguing that he did not have the requisite mental element for the assault or that his conduct was
not voluntary due to his automatic state
 Voluntary intoxication: consuming of a substance where the person knew or had reasonable grounds for believing that the
consumption would cause him to be impaired
o The accused need not contemplate the extent of the intoxication or intend a certain level of intoxication
 Test for voluntary intoxication with an objective element:
o The accused voluntarily consumed a substance which
o She knew or ought to have known was an intoxicant and
o The risk of becoming intoxicated was or should have been within his/her contemplation
Morgentaler v The Queen
 Necessity
Facts
 Morgentaler performed an abortion on a 26 year old single woman in his clinic in contravention of the Criminal Code which
allowed abortions to be committed only in a hospital if approved by a hospital committee
 Morgentaler testified that he was afraid that the woman might do something foolish if he did not perform the abortion
Issue
 Can Morgentaler use the defence of necessity to excuse his acts?
Reasoning
Dickson
 Courts have been reluctant to give recognition to the doctrine of necessity because it would open a door which no man could
shut
o The plea would be an excuse for all sort of wrong doing; can easily become simply a mask for anarchy
 If the defence of necessity does exist it can go no further than to justify noncompliance in urgent situations of clear and
imminent peril when compliance with the law is demonstrably impossible
 No system of positive law can recognize any principle which would entitle a person to violate the law because on his view
the law conflicted with some higher social value
 The defence of necessity, whatever the vague phrase may import does not entitle a medical practitioner in circumstances of
time and place such as those under consideration, to procure an abortions on his own opinion of the danger to life and health
 A defence of necessity at the very least must rest upon evidence from which a jury could find
o That the accused in good faith considered the situation so emergent that failure to terminate the pregnancy
immediately could endanger life or health
o That upon any reasonable view of the facts compliance with the law was impossible  was there a legal way
out?
 There was on record little evidence of real and urgent medical need
 Was there a legal way out?
o Morgentaler made no attempt to bring himself within the bounds of legality in deciding to perform the abortion
 The defence of necessity was not open to Morgentaler
Laskin, dissent
 Portrays the facts to convey that the woman really needed an abortion for personal reasons
 Necessity must arise out of danger of life or health and not merely out of economic circumstances, although the latter may
have an effect in producing a danger to life or health
 It was for the jury to say whether in such circumstances the harm sought to be avoided by performing the abortion was an
immediate and physical one, and whether there was enough of an emergency in this respect facing the accused as to make it
certain that there could be no effective resort to the machinery of the abortion laws to cope with the emergency
Ratio
 Requirements for necessity:
52
o
o
Immediate danger
No legal way out
R v Morgentaler
 Defining necessity
Facts
 Accused charged with conspiracy to procure a miscarriage contrary to the Criminal code
Issue
 Can the defence of necessity be applied in this case?
Reasoning
 Before a defence of necessity is available the conduct of the accused must be truly involuntary
o Planning, deliberating, relying on legal precedents are all incompatible with the uncalculatingly response essential to
involuntary conduct
 There must be evidence that compliance with the law was impossible and that there was no legal way out
 The defendants failed to make every reasonable effort to comply with the law and they agreed to violate it
 The defence of necessity is not premised on dissatisfaction with the law
o It recognizes that the law must be followed but there are certain factual situations which arise and which may excuse
a person for failure to comply with the law
o It is not the law which can create an emergency giving rise to a defence of necessity but it is the facts of a given
situation which may do so
 The defence of necessity cannot be resorted to as an excuse for medical practitioners in Canada to agree in the circumstances
of this case to procure abortions on their own opinion of the danger to life or health and at a place of their own choosing in
disregard of the Criminal Code
Holding
 The defence of necessity is not available in this case
Ratio
 Before a defence of necessity is available the conduct of the accused must be truly involuntary
o Planning, deliberating, relying on legal precedents are all incompatible with the uncalculatingly response essential to
involuntary conduct
 There must be evidence that compliance with the law was impossible and that there was no legal way out
Perka v The Queen
 The conceptualization of necessity as an excuse or justification
Facts
 Charged with importing narcotic and possession of a narcotic for the purpose of trafficking contrary to the Narcotic Control
Act
 Ship carrying $7 million dollars worth of marijuana from Colombia to Alaska broke down in the water near BC
 The accused sought refuge on the West Coast of Vancouver Island
Issue
 Is the defence of necessity available here as an excuse?
Reasoning
Dickson
 Subsequent to Morgentaler the courts seem to have accepted that a defence of necessity exists in Canada
 Criminal theory recognizes a distinction between justifications and excuses
o Justification: challenges the wrongfulness of an action which technically constitutes a crime
 For such actions people are praised as motivated by some great or noble object
 The concept of punishment seems incompatible with the social approval bestowed on the doer
 As a justification necessity would exculpate those whose conduct could reasonably have been viewed as
necessary in order to prevent a greater evil than that resulting from the violation of the law
 In some circumstances the values of society and of the criminal law itself are better promoted by
disobeying a given statute than by observing it
 Criticism: this would invite the courts to second-guess legislatures and to assess the relative merits of social
policies underlying criminal prohibitions
o Excuse: concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such
that it ought not to be attributed to the actor
53

Actors whose criminal action we disapprove intensely but whom in appropriate circumstances our law will
not punish
 Less open to criticism than justification: rests on realistic assessment of human weakness recognizing that a
liberal and humane law cannot hold people to the strict obedience of laws in emergency situations where
normal human instincts of self preservation or altruism impel disobedience
 Objectivity of the criminal law is preserved: the acts are wrongful but in the circumstances they are
excusable
 Praise is not bestowed but pardon is
 The requirement that the situation be urgent and the peril be imminent, tests whether it was indeed unavoidable for the actor
to act at all…At a minimum the situation must be so emergent and the peril must be so pressing that the normal human
instincts cry out for action and make a counsel of patience unreasonable.
 Necessity should be recognized as an excuse
 As an excuse it implies no vindication of the deeds of the actor
o Necessity goes to excuse conduct, not to justify it
 The criterion is the moral involuntariness of the wrongful action
o The question is never whether what the accused has done is wrongful; it is always by definition wrongful. The
question is whether what he has done is voluntary
 This involuntariness is measured on the basis of society’s expectations of appropriate and normal resistance to pressure
 Negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity
 Actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle
o If the actor was making a choice then the wrongful act cannot have been involuntary
 The existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable
and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law
o If there is a legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one impelled
by some consideration beyond the dictates of necessity and human instinct
o Even if there is no legal way out, it must be considered whether the response was proportional : no rational criminal
justice system no matter how humane or liberal could excuse the infliction of a greater harm to allow the actor to
avert a lesser evil
 The defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril
o At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry
out for action and make a counsel of patience unreasonable
 Where the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a
reasonable doubt
 The trial judge was correct in addressing the jury with respect to necessity
 The address could say “an urgent situation of clear and imminent peril when compliance with the law is demonstrably
impossible in order for the appellants’ non-compliance with the law against importation and possession of cannabis to be
excused.
Wilson
 Concerned that Dickson appears to be closing the door on justification as an appropriate jurisprudential basis in some cases;
Wilson is of the opinion that the door should be left open
 The act is justified on the grounds of necessity if the court can say that not only was the act a necessary one but it was rightful
rather than wrongful
 The fact that one act is done out of a sense of immediacy or urgency and another after some contemplation cannot serve to
distinguish the quality of the act in terms of right or wrong
o Justification must be premised on the need to fulfil a duty conflicting with the one which the accused is charged with
having breached
 Where necessity is invoked as a justification for violation of the law, the justification must be restricted to situations where
the accused’s act constitutes the discharge of a duty recognized by law
o Justification is not established simply by showing a conflict of legal duties
o The rule of proportionality is central to the evaluation of a justification premised on two conflicting duties since the
defence rests on the rightfulness of the accused’s choice of one over the other
o Assessment cannot entail a mere utilitarian calculation but must somehow attempt to come to grips with the nature
of the rights and duties being assessed
 The crucial question for the justification defence is whether the accused’s act can be said to represent a furtherance of or a
detraction from the principle of universality of rights
Holding
 The defence of necessity is an excuse
 Appeal dismissed – charges stay
54
Ratio
 For necessity to apply there must be:
o Imminent danger or peril
o Accused must have had no reasonable legal alternative to the course of action he undertook
o There must be proportionality between the harm inflicted and the harm avoided
Note: If the necessitous situation was clearly foreseeable, then I doubt whether what was confronted the accused was in the relevant
sense an emergency. His response was in that sense not “involuntary”
Latimer v the Queen
Facts
 Father killed his daughter with a severe form of cerebral palsy given that she had a lifetime of suffering ahead
 Charge: second degree murder
Issue
 Should the jury have been left to consider the defence of necessity?
Reasoning
 The defence of necessity is of limited application and must be restricted to those rare cases in which true involuntariness is
present
 From Perka, for necessity to apply there must be:
o 1) Imminent danger or peril
 Not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain
to occur.
 Where the situation of peril clearly should have been foreseen and avoided, the accused person cannot
reasonably claim an immediate peril
o 2) Accused must have had no reasonable legal alternative to the course of action he undertook
 The accused need not be placed in the last resort imaginable but he must have no reasonable legal
alternative
o 3) There must be proportionality between the harm inflicted and the harm avoided
 The harm avoided must at minimum be comparable to or clearly greater than the harm inflicted
 What test should be used to evaluate necessity? Options
o Objective: does not assess what the accused actually believed but rather whether the person was in peril
o Subjective: met if the person believe he was in imminent peril with no reasonable legal alternative to committing the
offence
o Modified objective test: objective evaluation of the situation taking into account the situation and characteristic of
the accused person
 The first and second requirements should be evaluated on the modified objective standard
o While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct
should be excused, those perceptions remain relevant only if reasonable
 The third requirement:
o Must be measured on an objective standard as it would violate fundamental principles of the criminal law to do
otherwise: evaluating the nature of an act is fundamentally a determination reflecting society’s values as to what is
appropriate and what represents a transgression
 Evaluating the gravity of the act is a matter of community standards infused with constitutional
considerations
 The correct test as to whether the jury should have been entitled to consider the defence of necessity is whether there was an
air of reality to the defence
 In this case there was no air of reality to the defence
o No imminent peril
 Latimer was no himself in peril, instead he identifies a peril to his daughter
 Ongoing pain does not constitute an emergency in this case; here not dealing with an emergency
but with an obstinate and long state of affairs
o Latimer can be reasonably expected to have understood that his daughter’s situation was
not an emergency
o There was a legal alternative: could have struggled on with his daughter’s condition
o Proportionality
 Leave open the question of whether the proportionality requirement could be met in a homicide situation
55

There would have to be harm that was seriously comparable in gravity to death
 Here there was no risk of such harm

the harm avoided in comparison to death was completely disproportionate
o Killing a person in order to relieve the suffering produced by a medically manageable
physical or mental condition is not a proportionate response to the harm represented by
the non-life-threatening suffering resulting from that condition
 If the trial judge concludes that even one of the requirements had no air of reality, the defence should not be left to the jury
o Here the trial judge was correct in removing the defence form the jury
Holding
 The defence of necessity does not apply to this case
Ratio
 Perka applies!
Notes: Claims of necessity in such situations ultimately call upon courts to make judgments about what we are willing to demand
from individuals faced with seemingly impossible situations. Such judgments are ultimately very value-laded.
Rabey v the Queen

Automatism vs insanity
Facts
 Accused charged with assault causing bodily harm
 Accused violently assaulted a female student with a rock after she had informed him that he was “just a friend”
 The accused argued that he was in a state of automatism when he committed the assault
Issue
 Can the accused resort to the non-mental disorder automatism defense?
Reasoning
 The central question in deciding any case involving the defence of automatism is whether or not the accused was suffering
from a disease of the mind
 The general rule is that it is for the judge as a question of law to decide what constitutes a disease of the mind
 Court of Appeal, Martin :
o any malfunctioning of the mind or mental disorder having it source primarily in some subjective condition or
weakness internal to the accused may be a disease of the mind if it prevents the accused from knowing what he is
doing
o transient disturbances of consciousness due to certain specific external factors do not fall within the concept of
disease of the mind  must be evaluated on case by case basis
o ordinary stresses and disappointments of life do not constitute an external cause constituting an explanation for a
malfunctioning of the mind which takes it out of the category of a disease of the mind
o the emotional stress suffered by Rabey due to his disappointment with the girl is not an external factor producing
automatism
o the dissociative state had its source in Rabey’s emotional makeup
o Rabey had a disease of the mind
 Rabey’s infatuation with the girl caused an abnormal condition in his mind under the influence of which he acted unnaturally
and violently to an imagined slight to which a normal person would not have reacted in the same manner
Dissent
 Rabey did not exhibit any psychological symptoms indicative of a previously existing or ongoing psychiatric disorder
 Policy considerations in assessing automatism
o Automatism is easily faked: the credibility of the criminal justice system will be strained if a person who has
committed a violent act is allowed an absolute acquittal on a plea of automatism arising from a psychological blow
o Floodgates will be raised if psychological blow automatism is recognized in law
o Where the condition is transient rather than persistent, unlikely to recur, not in need of treatment and not the result
of self-induced intoxication, the policy objectives in finding such a person insane are not served
 This person is not a danger to himself or society generally
 No evidence to support that Rabey’s dissociative state is due to his psychological or emotional makeup
 Disagrees with the statement that emotional stress can never constitute an external factor
o Cannot accept the fact that an extraordinary external event like an intense emotional shock can cause a state of
dissociation or automatism if and only if all normal persons subjected to that sort of shock would react in that way
 A person’s subjective reaction, in the absence of any other medical or factual evidence supportive of insanity should not put
him into the category of the legally insane
56

The defense of automatism should be available whenever there is evidence of unconsciousness throughout the commission of
the crime that cannot be attributed to fault or negligence on his part
 Side note: the court will establish the meaning of disease of the mind on the basis of scientific evidence as it unfolds from
day to day
o The court will find as a matter of fact in each case whether a disease of the mind is present
 The accused should be acquitted
Holding
 The majority concurred with the court of appeal which found that a psychological blow like that received by the accused
cannot ground a defence of non-mental disorder automatism
Ratio
 Disease of the mind: any malfunctioning of the mind or mental disorder having it source primarily in some subjective
condition or weakness internal to the accused which prevents the accused from knowing what he is doing
 transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the
mind  must be evaluated on case by case basis
R v Parks
 Non-mental disorder automatism
Facts
 Accused charged with first degree murder of his mother in law and attempted murder of his father in law
 The murder and attempted murder were committed while he was “sleep walking”
 Trial judge put only the defense of automatism to the jury
 Parks was acquitted on both charges
Issue
 Should Parks have been acquitted on the defence of automatism?
Reasoning
Lamer
 1) respondent was sleepwalking at the time of the incident
 2) sleepwalking is not a neurological, psychiatric or other illness;
 4)there is no medical treatment
 Expert evidence was uncontradicted
 The trial judge did not err in leaving the jury with non-mental disorder automatism
La Forest concurring
 Only those who act voluntarily with the requisite intent to commit an offence should be punished by criminal sanction
 There are no compelling policy factors that preclude a finding that the accused’s condition was one of non-insane automatism
Holding
 Appeal from the acquittal dismissed
R v Stone



Psychological blow automatism
Non mental disorder vs mental disorder automatism
Disagreement between dissent and majority: unlike the majority, the dissent thinks that non-mental disorder
automatism should be submitted to the jury
Facts
 Charge: murder; conviction: manslaughter
 Stone convicted for stabbing his wife after she had made various insulting comments to him
 Stone raised both the defence of mental disorder and non mental disorder automatism
 The judge only left the defence of mental disorder automatism to the jury
 appellant argues that he was entitled to the jury’s verdict on whether or not his conduct though sane was involuntary
Issue
 Was the judge wrong in leaving only the defence of mental disorder automatism to the jury?
Reasoning
 Automatism is a state of impaired consciousness in which an individual though capable of action has no voluntary control
over that action
 Two forms of automatism are recognized a law
57
o
Insane automatism
 Involuntary action which is found at law to result from a disease of the mind
 Falls within the scope of mental disorder as set out in s.16 of the Code
 Accused entitled to a verdict of insanity rather than acquittal  qualified acquittal: may be discharged
absolutely, conditionally or detained in a hospital
o Non insane automatism
 Involuntary action which does not stem from a disease of the mind
 entitles the accused to an acquittal
 the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on the balance of
probabilities to the trier of fact
o Chaulk + Daviault: although placing a balance of probabilities burden on the defence with respect to an element of
the offence constitutes a limitation of an accused person’s right under s.11(d) of the Charter it can be justified under
s.1
o Because automatism is easily faked and all knowledge of its occurrence resets with the accused, putting a legal
burden on the accused to prove involuntariness on a balance of probabilities is necessary to further the objective
behind the presumption of voluntariness
 Rabey: it is for the judge to determine whether there is any evidence that the accused suffered from an abnormal mental
condition  medical evidence is informative but not determinative
 Only mental disorder automatism must be put to the jury
 Two approaches to the disease of the mind inquiry – can use one or both
o Internal cause theory
 Undertake comparison to determine whether a normal person might have reacted to the alleged trigger by
entering an automatistic state as the accused claims to have done
 The comparison involved in the disease of the mind inquiry is a contextual objective test
 The accused’s automatistic reaction to the alleged trigger must be assessed from the perspective of
a similarly situated individual
 The objective standard affects only the classification of the defence rather than the assessment of whether
the actus reus of the offence has been established
 This is an analytical tool
 In each case the trial judge must determine whether and to what extent the theory is useful given
the facts of the case
 The judge has the discretion to disregard the theory if its application would not accord with the
policy concerns which underlie the disease of the mind inquiry
 Strike a balance between the objectives of providing an exemption from criminal liability for
morally innocent offenders and protecting the public
 Balance of probabilities does not violate the Charter: This is on the defence part; actus reus and mens rea had already been
proven beyond a reasonable doubt
o Continuing danger theory
 Central policy consideration is the need to ensure public safety
 Any condition which is likely to present a recurring danger to the public should be treated as a disease of
the mind
 Continuing danger suggests disease of the mind but a finding of non continuing danger does not preclude a
finding of disease of the mind
 Holistic approach to disease of the mind must permit trial judges to consider other policy factors especially where
o the internal cause factor is not helpful where it is impossible to classify the cause of automatism as internal or
external
o the continuing danger classification is not useful because there is no danger of continuing violence
o policy concerns are not closed categories
 here the trial judge concluded that Stone had established a proper foundation for a defence of automatism but that only
mental disorder automatism should be left with the jury
 determine whether there was evidence that Stone experience a state of impaired consciousness in which he had no voluntary
control over his actions
o the internal cause factor danger factor and other policy factors support the trial judge’s finding that the condition the
appellant alleges to have suffered is a disease of the mind in a legal sense
 the trigger in this case was not an extraordinary external event that would amount to an extreme shock or
psychological blow that would cause a normal person in the circumstances of the accused to suffer of a
dissociation in the absence of a disease of the mind
Dissent
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a fundamental principle of criminal law is that no act can be a criminal offence unless it is performed or omitted voluntarily
the trial judge ruled that the evidence of involuntariness was only relevant to a defence of not criminally responsible by
reason of mental disorder (NCRMD)
 appellant argues that he was entitled to the jury’s verdict on whether or not his conduct though sane was involuntary
 the accused should not be made to establish automatism on the balance of probabilities
o the court should not take it upon itself to reverse the persuasive burden to the disadvantage of the accused simply
because the Court may find an unenacted policy initiative more attractive than the established law
o Parliament made a choice to impose a persuasive burden on the balance of probabilities in the case of mental
disorder, which includes mental disorder automatism; it did not in the case of non mental disorder automatism
o Reversal would create a potential for injustice where a jury is obliged to convict an accused who properly raised the
issue of automatism even though the jury entertains a reasonable doubt about the voluntariness of the accused’s
conduct
 Crown must prove all the elements of the offence including voluntariness
 Problems with Rabey
o A rigid application of the internal cause theory produces anomalous distinctions artificial analysis
o The elastic notion of mental disorder can be expanded to the point where it ceases to have any utility for
classification
 from a legal perspective classification of a problem as mental disorder has to be given some substantive
content
o the jurisprudential root of the internal cause theory is suspect
 Quick: to say that the presence of an external cause of mental trouble saves a man from the imputation of
madness does not imply that the absence of an external cause necessarily means that he is mad
o Rabey contemplated that some psychological blows could be classified as internal causes and others as external
causes
 The conceptual problems associated with the internal cause theory justify it being simply an analytical tool
o This judicially created construct does not justify taking away from the jury any case of lack of consciousness
throughout the commission of the offence just because the accused is unable to identify a specific external cause 
risks violation of s.11(f)
 An accused who has met the evidential burden of showing that his or her conduct was unconscious and involuntary should
not be absorbed into what would in his case be an artificial debate developed in the context of conscious conduct about
whether the accused lacked the capacity to appreciate the nature and quality of the act or omission or of knowing that it was
wrong
 Where, as here, the trial judge concludes that there was evidence reasonably capable of belief that the accused was
unconscious throughout the commission of the offence, it is not fatal if the accused fails to go on to establish a cause
(mechanism of the brain) of that state of alleged unconsciousness which the courts describe as external
 Once the trial judge exercised his gatekeeper function to screen frivolous or feigned claims it was for the jury to make up its
mind on the credibility of the plea of automatism
o The accused was either unconscious at the time of killing or he was not telling the truth at the time of trial; this is a
determination for the jury
 the concept of disease of the mind is and should continue to be controlled by legal considerations rather than purely medical
considerations
o however, where medical experts for the prosecution and the defence agree that there is no disease of the mind
known to medicine and the only justification offered in support of attributing the conduct to mental disorder is the
inability of an accused to identify an external cause, there is an insufficient basis for
 shifting the persuasive burden of proof from the Crown to the defense under s.16
 taking the issue of non-mental disorder automatism away from the jury
 if the jury rejects NCRMD it should be left with the elementary instruction that the accused is entitled to an acquittal if the
Crown fails to establish beyond a reasonable doubt all of the elements of the offence, including voluntariness
Holding
 The trial judge was correct in only supplying the jury with mental disorder automatism
Ratio
 See Luedecke
R v Luedecke
Reasoning – Stone ratio
 Trial judge must begin from the premise that the automatism is caused by a disease of the mind and look to the evidence to
determine whether it convinces him that the condition is not a disease of the mind
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Multifactored approach to the policy component of the characterization of automatism
o In evaluating the risk of repetition and hence danger to the public, trial judges must not limit their inquiry only to the
risk of further violence while in an automatistic state
o Paciocco comments that if Parks had been tried using the Stone test, the only defence that would have left to the jury
would be “mental disorder automatism”
The majority in Stone signals a strong preference for a finding of NCRMD in cases where an accused establishes that he was
in a dissociative state and acted involuntarily
o This preference may be justified by the fact that following Winko, the leading case about detaining people at the
pleasure of the Lietenant Governor in Council by reason of insanity, absolute discharge of those found NCRMD is
required unless the Review Board determines that the individual poses a significant threat to the public
 The risk must be a real risk of criminal conduct involving physical or psychological harm to individuals in
the community
A combined reading of Stone and Winko yields a comprehensive response to automatism claims
o Pre- verdict stage: social defence concerns dominate  danger factor  focus on the risk posed by the potential
recurrence of the conduct at issue
o Post-verdict stage: individualized assessment if the actual dangerousness of the person found NCRMD
 Even where a significant risk exists, the disposition order must be tailored to the specific circumstances of
the individual and must, to the extent possible, minimize the interference with the individual’s liberty