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Criminal II Outline
TABLE OF CONTENTS
ONUS AND PROOF .................................................................................................................................... 4
CROWN MUST PROVE:...............................................................................................................................................4
ACTUS REUS ............................................................................................................................................... 4
ELEMENTS OF ACTUS REUS .....................................................................................................................................4
VOLUNTARINESS .......................................................................................................................................................5
Procedure ..................................................................................................................................................................... 5
CONDUCT (ACTS/OMISSIONS) ...............................................................................................................................6
Status ............................................................................................................................................................................. 6
Act.................................................................................................................................................................................... 6
Omission of a Legal Duty ...................................................................................................................................... 6
CAUSATION.................................................................................................................................................................8
Factual Causation .................................................................................................................................................... 8
Legal Causation......................................................................................................................................................... 8
MENS REA ................................................................................................................................................ 12
FULL MENS REA (SUBJECTIVE)............................................................................................................................ 12
1 – Intent ....................................................................................................................................................................12
2 – Recklessness.......................................................................................................................................................12
3 – Willful Blindness..............................................................................................................................................13
4 – Knowledge..........................................................................................................................................................14
TO WHAT ELEMENTS OF THE AR DOES THE MR APPLY TO? ........................................................................ 14
CRIMINAL/PENAL NEGLIGENCE (OBJECTIVE SUFFICIENT) ............................................................................ 15
Criminal Negligence..............................................................................................................................................15
Penal Negligence ....................................................................................................................................................15
STRICT LIABILITY (OBJECTIVE – REGULATORY) ............................................................................................... 15
ABSOLUTE LIABILITY (NO MENTAL FAULT NECESSARY) ................................................................................. 15
DETERMINING MR ................................................................................................................................................. 16
Expressly States .......................................................................................................................................................16
Is Silent ........................................................................................................................................................................16
CONCURRENCE AND CONTEMPORANEITY .......................................................................................................... 17
MISTAKE OF FACT .................................................................................................................................................. 18
Innocent Mistakes and Transferred Malice ...............................................................................................18
PARTIES TO OFFENCES ....................................................................................................................... 20
AIDING AND ABETTING ......................................................................................................................................... 21
Aiding ...........................................................................................................................................................................21
Abetting ......................................................................................................................................................................21
Mens Rea of Aiding or Abetting .......................................................................................................................22
Causation of Aiding or Abetting ......................................................................................................................23
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COMMON UNLAWFUL PURPOSE S. 21(2) .......................................................................................................... 24
Constitutional Restriction on s. 21(2) ...........................................................................................................24
Withdrawal from Common Unlawful Purpose .........................................................................................24
COUNSELLING AN OFFENCE S. 2 .......................................................................................................................... 25
Counselling an Offence that is Committed ..................................................................................................25
Causation of Counselling.....................................................................................................................................25
Mens Rea of Counselling......................................................................................................................................26
Withdrawal from Counselling ..........................................................................................................................26
Counselling an Offence that is Not Committed .........................................................................................26
ACCESSORY AFTER THE FACT (NOT PARTY) ..................................................................................................... 26
Mens Rea for AAF (two components)............................................................................................................27
Other Rules for AAF ...............................................................................................................................................27
VICARIOUS LIABILITY ............................................................................................................................................ 28
INCHOATE CRIMES ............................................................................................................................... 29
ATTEMPTS ............................................................................................................................................................... 29
Rationale ....................................................................................................................................................................29
Mens Rea for Attempts .........................................................................................................................................30
Actus Reus for Attempts ......................................................................................................................................30
Impossible Attempts..............................................................................................................................................31
Withdrawal/Voluntary Desistence ................................................................................................................31
Attempting Any Offence? ....................................................................................................................................32
CONSPIRACY ............................................................................................................................................................ 32
Penalties .....................................................................................................................................................................32
Actus Reus of Conspiracy ....................................................................................................................................33
Mens Rea of Conspiracy .......................................................................................................................................34
Other Issues ...............................................................................................................................................................34
CORPORATE CRIMINAL LIABILITY ................................................................................................. 35
BASIS OF CORPORATE CRIMINAL LIABILITY...................................................................................................... 35
Directing Mind Test ...............................................................................................................................................35
The Identification Doctrine ...............................................................................................................................36
Application of the Identification Doctrine ..................................................................................................37
CRIMINAL CODE PROVISIONS (BILL C-45) ....................................................................................................... 38
“Senior Officer” ........................................................................................................................................................38
Corporate Negligence Crimes ...........................................................................................................................39
Corporate Subjective MR Crimes.....................................................................................................................39
Corporate Legal Duties........................................................................................................................................40
DEFENCES ................................................................................................................................................ 41
NEGATE ACTUS REUS ............................................................................................................................................ 41
Not My Act .................................................................................................................................................................41
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Criminal II Outline
No Causation (See Causation notes at Tab 4)...........................................................................................41
No Criminal Harm ..................................................................................................................................................42
Act or Omission was Involuntary ....................................................................................................................43
NEGATE MENS REA ............................................................................................................................................... 45
Due Diligence ...........................................................................................................................................................45
Voluntary Intoxication.........................................................................................................................................45
The Insanity/Mental Disorder Defence ........................................................................................................46
JUSTIFICATION (EXCULPATORY) ......................................................................................................................... 47
Self-Defence...............................................................................................................................................................47
EXCUSES (EXCULPATORY) .................................................................................................................................... 50
Necessity .....................................................................................................................................................................50
Duress ..........................................................................................................................................................................51
Provocation ...............................................................................................................................................................52
GENERAL
(ACTUS REUS + MENS REA) – DEFENCES
3 Elements to Criminal Liability:
1.
2.
3.
Actus Reus
 Speaks to prohibited “conduct” rather than just positive “actions.”
 Elements:
i. Conduct
ii. Voluntariness
iii. Causation
Mens Rea
 Mental requirement.
No Defense
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ONUS AND PROOF


Presumption of Innocence
Proof of Guilty BRD
o S. 11(d) of the Charter: any person charged with an offence has the right to be
presumed innocent until proven guilty according to the law in a fair and public
hearing by an independent and impartial tribunal.
CROWN MUST PROVE:
1.
2.
3.
Actus Reus BRD
a. Provisions may sometimes explicitly state that the AR has a reverse onus
component.
b. Leads to s. 11(d) Charter challenges which can be saved on a case-by-case basis by s.
1 of the Charter.
Mens Rea BRD
No Defences BRD
a. Crown must disprove the existence of a defence BRD iff there is an air of reality to
the defence (relatively low threshold; determined by evidence; defense need not
raise the defense, if it is evident on the facts, it is in play).
b. Reverse Onus (require A to prove on BoP):
i. S. 16 (insanity) – justified because everyone is presumed to be sane/too
difficult for Crown to disprove.
ii. Extreme Intoxication (Daviault).
iii. Psychological Blow Automatism (Stone).
iv. Strict Liability Regulatory Offences – Require Crown to prove offence BRD
and then defence can prove reasonable care/due diligence on BoP.
ACTUS REUS
ELEMENTS OF ACTUS REUS
Is the prohibited conduct…
1.
2.
3.
Voluntary
Act or Omission of a Legal Duty or Status that
Causes Prescribed Harm or Occurs in Prohibited Circumstances or both
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VOLUNTARINESS



Acts must be voluntary. This is a fundamental principle of fairness and natural justice but it’s
not in the CC.
o Most basic physical voluntariness.
o Even in cases of strict liability where no MR required.
To be voluntary, must be able to reason and choose (will physical act/omission) (Bratty).
Physical involuntariness can be
o Conscious: spasm, twitch, fall, mechanical vehicle failure, physical impossibility to
fulfill legal duty.
o Unconscious: involuntary intoxication (King), concussion (more on this in General
Principles handout in Tab 1).
o NOT moral involuntariness (Ruzic – defence of duress/compulsion)
PROCEDURE



Was the action involuntary?
If involuntary, were you conscious or unconscious?
o If conscious, see examples above negating voluntariness.
If unconscious, why were you unconscious?
o Disease of the mind: s. 16 mental disorder.
 Burden on the accused on a BoP.
 Verdict: NCRMD.
o Self-Induced/Extreme Intoxication.
 Burden on the accused on a BoP (Daviault).
 Verdict: Acquittal for subjective mens rea offences unless they are general
intent offences involving assault or violence. In which case, intoxication
akin to automatism is no defence (s. 33.1).
o Other Causes (listed above).
 Burden on the accused on a BoP (Stone).
 Verdict: Acquittal.
Note: For offences of dangerous driving or crim neg causing death/bodily harm, even if the person’s
conduct is involuntary when the harm actually occurred, they may still be convicted if their conduct
prior to becoming unconscious/involuntary was “dangerous” or “criminally negligent” (Hundal).
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CONDUCT (ACTS/OMISSIONS)
STATUS

Criminalizes a state of being, likely offends PFJs under s. 7 of the Charter.
ACT

One Continuous Act Theory:
o An unintentional act followed by an intentional omission to rectify that act or its
consequences can be regarded in toto (altogether) as an intentional act when reality
and common sense so require.
OMISSION OF A LEGAL DUTY




No general legal duty to be a Good Samaritan.
An omission is a failure to act where the law imposes a legal duty to act.
Specific Omission Offences:
o S. 50(b) fails to report to the police a high treason that is about to be committed
o S. 80 breach of a duty in regard to the care of explosives
o S. 127 failing to obey a court order
o S. 129(b) omitting to assist a police officer when requested
o S. 252(1) failing to stop and render assistance after being involved in an accident
o S. 254(5) failing to provide a breath sample
General Omission Offences:
o S. 180(2)(a) Common Nuisance: unlawful act or failure to discharge a legal duty
which endangers lives, safety, health, property or comfort of the public …
o S. 220/221: Criminal Negligence Causing Death/Bodily Harm
o S. 219: Criminal negligence: doing anything or omitting to discharge a legal duty that
shows wanton or reckless disregard for the lives and safety of others
 219(2): Duty is any duty imposed by law
 ISSUE: does this violate s. 9 of the CC? Diff provinces may have different
laws! Fergie says it doesn’t technically constitute “creating a common law
offence” but that it comes perilously close to doing so. SOLUTION: write
duties into the CC
 In Miller (England) the A accidently set a fire then did nothing to put it out
or get help. The accused was convicted of arson based on that willful
omission. The House of Lords held that there was a (new) common law duty
on persons who accidently create a danger to take action to stop or mitigate
the continuing harm flowing form their accidental conduct.
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Legal Duties
1.
2.
3.
Relationships of dependency (parent to child, doctor to patient).
o S. 215(1) – Every one is under a legal duty
a. As a parent, foster parent, guardian or head of a family, to provide
necessaries of life for a child under the age of 16;
b. To provide necessaries of life to their spouse or common law partners; and
c. To provide necessaries of life to a person under his charge if that person
 Is unable, by reason of detention, age, illness, mental disorder or
other cause, to withdraw himself from that charge; and
 Is unable to provide himself with necessaries of life.
o Necessaries of life: Necessaries tending to preserve life including food, clothing,
shelter and medical treatment.
Undertaking to do something
o S. 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.
o See Browne
Duty to take reasonable care when undertaking acts that may endanger life.
o S. 216 – Everyone who undertakes to administer surgical or medical
treatment to another person or to do any other lawful act that may
endanger the life of another person is, except in cases of necessity, under a
legal duty to have and to use reasonable knowledge, skill and care in so
doing.
BROWNE (1977 ONCA)
Facts: Accused (A) and deceased (D) were very close and likely dating. D swallowed bag of crack
cocaine and became very ill. A said “I’m going to take you to the hospital” and picked her up, carried
her upstairs and called a taxi. When the taxi came, D was no longer moving, her lips were purple and
her mouth was foaming. She was dead upon arrival.
Held: ONCA overturned the conviction (s. 217), finding that A had not made an undertaking.
Reasons: (1) There was no express or implicit undertaking when D swallowed the drugs that A would
take care of her if necessary, and (2) that A’s words do not constitute an undertaking.
Principle: They found that the word “undertaking” did not include a mere statement or assertion but
that it must be something in the nature of a commitment, generally, though not necessarily, upon
which reliance can be reasonably said to have been placed. They phrase it as a “binding
commitment.” Comments can be found in the “General Principles” handout (tab 1).
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CAUSATION



Some offences require causation to be proven as part of the offence. In these cases, Crown
must prove that the A caused the prescribed harm or consequence BRD.
Causation is governed by CL rules (except with some aspects of homicide).
Two components: (1) factual causation and (2) legal causation.
FACTUAL CAUSATION
Factual causation means that there must be at least some causal link between A’s conduct and the
criminal harm.
Examples of no factual causation:




Winning (1973 ONCA): Obtaining credit by false pretense; the store didn’t rely on the false
pretense in granting the credit.
Wilmot (1940): Impaired driving causing death; impairment must be a cause, not just a
circumstance. Accused acquitted of manslaughter where a cyclist suddenly and unexpectedly
swerved into his path.
White (1910): Tried to poison mom but she died of an independent heart attack.
Johnson (1976 NBCA): Is an example of where there was some uncertainty (i.e. a reasonable
doubt) as to whether the accused’s blow to the victim’s head caused the victim’s death or
whether the death was caused by other head injuries which were not caused by the accused.
Thus the accused was convicted of the lesser included-offence of unlawfully causing bodily
harm.
LEGAL CAUSATION
For criminal liability, the factual cause must rise to the level of legal causation.


Smithers (kick in the stomach resulting in death) said the test was, “any contributing cause
that is beyond the de minimus range.” A’s conduct doesn’t need to be the sole, main or
even “substantial” cause. There can be more than one legal cause for the harm and therefore
more than one person can be legally liable for causing the harm.
Then Nette (2001 SCC) came along and the said that the test should positive language. They
changed it to a “significant contributing cause.”
o Minority in Nette said they didn’t agree with changing it and Professor Yeo stated
that there is a material difference between the positive statement and the negative
statement and that it drastically changes the test.
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THIN SKULL RULE
The victim’s “thin skull” does not negate legal causation (even though it wasn’t foreseeable). It will
not be treated as an intervening cause.



Smithers – malfunctioning epiglottis.
Blaue – UK refusing blood transfusion after being stabbed - must take their victims as they
find them (including religious beliefs about accepting treatment).
Shanks (1996) – deceased was a sick man with high-grade calcium obstructions in three
coronary arteries. Some crazy fight about cats and then the deceased was thrown to the
ground by the accused. Within two hours, the deceased died of a heart attack. Both
emotional and physical stress may trigger a heart attack in someone with the deceased’s
condition. A medical expert commented that there was an 80-90% chance that the heart
attack would have occurred even without the physical assault. However, the TJ concluded
BRD that the assault was a contributing factor beyond de minimis to the victim’s death
(before Nette).
INTERVENING CAUSE


An intervening cause is some other act or event that causes the criminal harm in such a way
that the accused’s original act is no longer a factual cause at all or at most is an insignificant
factual cause.
An intervening event or act by the V or 3rd party will NOT normally negate legal causation for
the original act if:
o The intervening cause is a direct result of the original act (dependent); OR
o The intervening event or act is unforeseeable or extraordinary/unusual.
However, Maybin (2012 SCC) said the test is:
Is the subsequent act or event so strong (or overwhelming) that the accused’s contributing act is now
an insignificant contributing cause?
… and that the “reasonably foreseeable” test and the “intentional, independent act” test are simply
useful tools in its determination.




White (1910) is an example of an independent intervening cause. A tried to poison his
mother but she died of an independent heart attack. A was not held liable for causing the
harm.
Lewis – V’s slitting throat is a direct result of A’s original act of shooting, therefore A is still
liable for V’s death.
Blaue – V’s refusing blood transfusion is a direct result of A’s wounding her, therefore A is
still liable for V’s death.
S. 222(5)(c) of the CC: If V does anything which causes her death (jumps from a window) in
order to avoid threats of violence from A, A has in law caused V’s injuries Further, A is
causally liable if A, by deception, causes V to do something that causes V’s death.
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



Kitching and Adams – Dr’s turned off V’s respirator. Even if V was “alive” the Dr’s actions are
not in law an intervening cause.
Pagett – A used V as a human shield while shooting at police. Police returned fire in selfdefence and accidently shot V. It was held that A’s conduct was a direct cause of police
conduct and therefore the legal cause.
Hallet (Australia) – V’s drowning by the incoming tide was a direct result of the A having left
their battered body on the beach, therefore A is still liable for V’s death. This exemption is
equating causation with reasonably foreseeable events.
Sinclair; Pruden-Wilson (2009 Man. CA) – A beat the V unconscious and left him in the middle
of the road at night, he was run over and killed. The driver was chatting and lights/brakes
were faulty. Court acknowledged that unforeseeability of the second cause is sometimes the
test, which is used to decide whether it is an intervening event. But advocated for a test
which says that the subsequent act must be “extraordinary or unusual” to constitute an
intervening act.
REMOTENESS: A cause might be too remote to establish criminal liability (suggested in Smithers).
CAUSATION RULES FOR MURDER/MANSLAUGHTER
In general, these provisions make it clear that legal causation for homicide exists even if there are
other contributing factors leading to the V’s death.
s. 222(1) A person commits homicide when directly or indirectly, by any means, causes the death of a
human being. (5) A person commits culpable homicide when he causes the death of a human being
(a) by means of an unlawful act; (b) by criminal negligence; (c) by causing that human being, by
threats or fear of violence or by deception, to do anything that causes his death; (d) by willfully
frightening that human being, in the case of a child or sick person.
s. 224 Where a person, by act or omission, does anything that results in the death of a human being,
he causes the death of that human being notwithstanding that death from that cause might have been
prevented by resorting to proper means (codification of Blaue and Lewis).
s. 225 Where a person causes to a human being a bodily injury that is of itself a dangerous nature and
from which death results, he causes the death of that human being notwithstanding that the
immediate cause of death is proper or improper treatment that is applied in good faith.
s. 226 Where a person causes to a human being a bodily injury that results in death, he causes the
death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his
death from a disease or disorder arising form some other cause.
s. 228 No person commits culpable homicide where he causes the death of a human being (a) by
influence of the mind alone, or (b) by any disorder or disease resulting from influence on the mind
alone. This section does not apply when the V is a child or sick person whose death is caused by
willfully frightening them (s. 222(5)(d)).
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CAUSATION TEST FOR FIRST DEGREE MURDER (HARBOTTLE TEST)
There is a special and higher causation test for first-degree murder under s. 231(5) (where the death
is caused by the accused while committing one of the listed offences).



In Harbottle, the SCC held that the actions of the A must form an essential, substantial, and
integral part of the killing of the victim AND the A must play an active role in the killing. In
this case the act of holding the V’s legs while the co-accused sexually assaulted and strangled
the victim clearly met the higher test.
o Also where one accused with intent to kill locked the V in a cupboard while the
other set fire to the cupboard.
o Also an A who fought off rescuers in order to allow accomplice to complete
strangulation of the V.
Taillefer (1995 QCA) applied the Harbottle test but found that this degree of causation
applied only to s. 231(5) and s. 241(6), but not to s. 231(2) or 231(4) and does not apply to
second-degree murder (Cribben, Nette and Fatima).
Norouzali (2003 ONCA) in this case, the two accused forcibly escorted the V to an isolated
location where one of them shot and killed the V. Even if the accused was the non-shooter,
the Court held that by being present and preventing escape, their conduct was a substantial
and integral cause of death.
CAUSATION AND MULTIPLE ACCUSED
Where there is evidence that two or more persons were acting in concert, it is unnecessary for the
Crown to prove who struck the fatal blow (Biniaris [2000 SCC]).

If two or more persons are charged but there is no evidence that they were acting in concert,
then all must be acquitted if the Crown cannot prove BRD who was the perp.
o BUT, if one accused person’s actions weakened the victim such that they died more
readily due to the actions of the subsequent perp, both perps can be liable if both
actions are deemed significant contributing causes of death (Maybin).
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MENS REA
Criminal liability requires both a criminal act and a criminal mind (not explicitly stated in the CC)
PHILOSOPHICAL JUSTIFICATIONS




The SCC has held in cases such as Martineau; Reference re: s. 94(2); Motor Vehicle Act; and
Creighton that
i.
The penal law ought not to punish the morally innocent, and
ii.
That the level of moral fault for an offence ought to be proportionate to the
seriousness and consequences of that offence.
The requirement of personal fault also puts limits on the state’s use of coercive power.
Objective v. Subjective: Traditionally, serious crimes have been largely subjective, and
regulatory offences have been subjective (absolute or strict liability).
Objectivity plays into the assessment of subjective mens rea though. “reasonableness” (an
objective standard) is used as a tool to assess whether or not the accused’s claim of no
subjective mens rea should be believed.
FULL MENS REA (SUBJECTIVE)
When an offence in the CC is silent as to mens rea, there is a presumption that full subjective mens
rea applies. This can be satisfied by any of the specific types (Buzzanga, S.S.M.)
1 – INTENT



Definition was clarified in Buzzanga and approved by SCC in Keegstra and Chartrand:
o Direct: Consequences intended; regardless of whether it will certainly, probably, or
possibly occur.
o Indirect or Oblique: Some other end desired or sought, but certain or substantially
certain that the proscribed consequence would be the result.
 Buzzanga indicated that substantially certain is more than highly probable.
Willfully = Intentionally
o 319(2) willful promotion of hatred requires intent.
o Excepted in part XI of CC (s. 429-288) in which willfully includes intent AND
recklessness where the result is likely or probably to occur (Buzzanga).
“For the purpose of” means intentionally whether direct or indirect (Hibbert).
2 – RECKLESSNESS


An act that causes harm when you foresee that the harm might possibly, probably or very
probably occur, but with less certainty than intention.
Probable or Possible? The word recklessly is not defined in the CC, the question of whether
the A needed to have seen the consequence as a possible or probable result of their actions is
unresolved.
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



Probability Expressly Required by Code:
o S. 429 – when the word “reckless” is used in this section, the Code requires foresight
as a probability, not a mere possibility.
o S. 229(a)(ii) – murder requires probability, not possibility.
 The use of the word reckless in the definition of criminal negligence is a
separate issue.
o S. 21(2) –refers to liability for other offences that were a “probably consequence” of
carrying out the common unlawful purpose.
Page 13 of the Mens Rea notes at Tab 5 – probable cases and possible cases.
Where an offence expressly specifies intentionally or willfully as the requisite mens rea,
proof of recklessness will not suffice (Buzzanga, affirmed in Keegstra) (Mens Rea notes –
page 19 – tab 5). Sullivan goes against this view; Fergie thinks it’s wrong.
For some offences, Courts have held that where knowledge is expressly stated in the offence
as the MR, then actual knowledge will suffice, but recklessness will not (Zundel, Vinokurov).
Others have contradicted this assertion (Mens Rea notes at Tab 5 para 32).
3 – WILLFUL BLINDNESS








Where a person who has become aware of the need for some inquiry regarding a risk fails to
inquire because they do not want to know the truth (constructive knowledge).
The courts haven’t really addressed the issue of what degree of suspicion is required. Seems
to cover instances where the person “deliberately refused to inquire” or cases where the
accused merely “suspects.”
o In Legace (2003 ONCA), Doherty said there was no need to quantify the level of
suspicion beyond the recognition that it must be a real suspicion in the mind of the
accused that causes the accused to see the need for inquiry.
Truthfully not realizing there was a risk will negate MR. Willful blindness is a subjective test
(was the accused suspicious, did they know they should inquire?) (Currie).
CANNOT be overridden by mistake of fact – law presumes knowledge.
Willful blindness can be a substitute for proof of actual knowledge (Briscoe, Duong).
o It requires in effect a finding that the D intended to cheat the administration of
justice (Professor Williams).
Where an accused made some inquiry, the question remains whether that accused
harboured real suspicions after that inquiry and refrained from making further inquiries
(Legace). Onus is on the Crown to show that the A remained suspicious.
It’s possible to negate willful blindness and still be reckless.
o If A suspects goods are stolen and make no inquiry or inadequate inquiry, A is
willfully blind.
o If A makes all possible, reasonable inquiries, A may still be uncertain whether the
goods are stolen. By making all reasonable inquiries, A is no longer willfully blind.
BUT if A goes ahead and acts, still suspecting that they might be stolen, A is acting
recklessly.
You can use willful blindness to substitute for indirect intent or for recklessness. If you’re
using it to substitute for indirect intent it has to rise to the level of virtual certainty, but if
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you’re using it for recklessness then it can be proven on the “likelihood” level (if it’s
recklessness on the lower level, then your suspicion need only be a possible one).
o However, Harding says that willful blindness does not satisfy the mens rea where it
is specifically stated as intentionally or willfully.
o Fergie says that if the willful blindness amounts to oblique intent (was or would
have been virtually certain had they inquired) then there is no problem substituting.
However, if the willful blindness only amounts to recklessness (was or would have
known the prohibited circumstance was possible or probable but not virtually
certain had they inquired), then there’s a problem with substituting.
R. V. CURRIE (1975 ONCA)
Facts: He was a 19 year old, inexperienced in the world. He was in a bar, he ran into a guy who asked
him to cash a check for him. It never occurred o him that it wasn’t the guy’s check, he just blindly
agreed. He was charged with uttering a forged document.
Held: The fact that the A “ought to have been suspicious” is an objective test and therefore
insufficient to prove willful blindness.
4 – KNOWLEDGE




Subjective knowledge of some fact or state of affairs.
If an A is willfully blind to a possible fact, the law will “deem” that the accused knew the fact
(Sansregret, Duong).
Where the mens rea specifies knowingly, willful blindness will suffice, but not recklessness
(Vinokurov, Duong).
“Knowing” offences: accessory after the fact, possession (drugs), possessing stolen prop.
TO WHAT ELEMENTS OF THE AR DOES THE MR APPLY TO?
MR must be proven in regard to “the facts constituting the offence” (SSM, Pappajohn).
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Legislative Exceptions: Many of the sexual offences include an objective standard with
respect to certain elements of the offence such as consent (an honest and reasonable belief;
reasonable steps to ascertain age etc.).
Judicial Exceptions: For crimes based on predicate offences, the MR need only be proven
with respect to the predicate offence. For example, with assault causing bodily harm, the MR
need only exist for the assault (De Sousa).
o Restriction in Creighton: “as a general rule, the mens rea of an offence relates to the
consequences prohibited by the offence.” However, in the end the SCC (McLachlin)
said they bought into the predicate offence exception.
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Criminal II Outline
CRIMINAL/PENAL NEGLIGENCE (OBJECTIVE SUFFICIENT)
CRIMINAL NEGLIGENCE
ss. 219, 220, 221, 222(5)(b)
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“A marked and substantial departure from the conduct of a reasonable person which shows
wanton and reckless disregard for the lives or safety of others” (s. 219; Tutton).
There was some debate about whether the words “wanton and reckless” involve an objective
(reasonable person) test, or a subjective one (wherein the accused needs to be personally
aware of, or willfully blind to the risk to the lives or safety of others). Provincial appellate
courts continued to apply the objective test.
In F. (J.) (2008), the SCC held that an accused is guilty of criminal negligence if he/she had
either a subjective or an objective disregard for an obvious and serious risk to the lives or
safety of others.
Modified objective test: the test of reasonable/unreasonable conduct must be made in the
context of the “facts existing at the time and in relation to the accused’s perception of those
facts” (affirmed in Beatty as the test for crim neg and penal neg).
PENAL NEGLIGENCE
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Crown proves that the A’s conduct; “in all the circumstances” was a “marked departure from
the standard care that a reasonable person would observe in the accused’s situation”
(Hundal). This standard is lower than criminal negligence but higher than civil.
SCC held that there is only one standard of reasonableness for the fault element in criminal
and penal negligence. The only concession to “individualization” by McLachlin is if the
accused does not have the capacity (mental or physical) to conform to the reasonable person
(e.g. unable to read a warning label) (Creighton, Gosset, Naglik).
STRICT LIABILITY (OBJECTIVE – REGULATORY)
In strict liability offences, the Crown prove the AR and the accused is then found guilty unless the A
can prove (on BoP) that they acted with reasonable care or due diligence (SSM). This is a reverse
onus; violation of presumption of innocence under s. 11(d) but saved under s. 1 (Wholesale Travel).
ABSOLUTE LIABILITY (NO MENTAL FAULT NECESSARY)
Crown proves AR; the A is convicted. These offences will either state expressly that they are absolute
or will expressly state that it is an offence regardless of reasonable care. Will be deemed
unconstitutional if the punishment restricts liberty.
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Criminal II Outline
DETERMINING MR
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Look to the Statute. Does it expressly state MR?
If it is silent, is it a true crime or a regulatory offence?
Define the MR.
Is it constitutional?
EXPRESSLY STATES
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The language governs; the court must go on to define the precise meaning of those MR
words (aka look above in the outline to define them).
Then you need to ask if the prescribed MR is unconstitutional? It is if...
o Stigma offence with objective mens rea requirement.
 Murder (Martineau) attempted murder (Logan), theft (Vaillancourt), war
crimes (Finta), and accessory liability to these offences (Logan).
o True crime with strict or absolute liability (Hundal).
o Risk of loss of liberty with absolute liability (BC Motor Vehicles).
If Parliament or the courts were to change their minds and impose an objective fault
standard for crimes that are currently subjective, (except for the special stigma crimes), that
would be constitutionally valid. However, the objective standard must involve at least penal
negligence, which means a “marked” departure.
IS SILENT
There is a presumption that subjective (full) mens rea is required. General MR can be satisfied by
proof of any of the specific types of subjective mens rea (Buzzanga, SSM).
If the offence is a “true crime”, the courts will presume that full mens rea is required. If the offence is
a “regulatory offence”, the courts will assume that strict liability is required (SSM).
TRUE CRIMES
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The Crown must establish that the A committed the prohibited act intentionally or
recklessly, with knowledge of the facts constituting the offence, or with wilful blindness
toward them (subjective [full] mens rea).
How do you decide whether an offence is a “true crime”?
o If it’s in the CC there is a presumption that it is a true crime and therefore requires
full mens rea (Prue & Baril).
o If an offence is not in the CC, the Courts look to (1) the nature and seriousness of
the conduct and (2) the severity of the penalty, in deciding whether the offence is
truly criminal in its character (SSM).
 Possibility of proceeding by indictment tends to show TC (Stuart).
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Criminal II Outline
REGULATORY OR PUBLIC WELFARE OFFENCES
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If a regulatory offence does not contain words of mental fault, there is a presumption that
the offence is one of strict liability (not subjective mens rea and not absolute liability). This
presumption in SSM was repeated in Levis where the court also added that offences of
absolute liability still exist but are exceptional.
An offence will be classified as an absolute liability offence only if the legislature “makes it
clear” that absolute liability is intended based upon: (1) the overall regulatory pattern of the
statute, (2) the subject matter of the legislation, (3) the importance of the penalty and (4) the
precision of the language used.
o Says that the only real way of knowing that it is an absolute liability offence is to
expressly state that it is or by clear implication (if the legislative provision
effectively eliminates the defence of due diligence) (Levis).
CONCURRENCE AND CONTEMPORANEITY
AR and MR must be “concurrent”, i.e. “present at the same time (Meli, Fagan, Miller, Cooper, Williams).
They don’t need to be completely concurrent; you just need to have an overlap. The courts do not
take a narrow or strict approach to the requirement that the AR/MR must concur (Meli, Fagan,
Miller).
In Meli (1954 PC), the individuals had intended to kill the victim. They beat him and when they
thought he was dead they threw him off of a cliff. He then died of exposure. The court found that it
was actually a single transaction but they lowered it to culpable homicide. They did so by considering
the first act as attempted murder and the second as attempt to dispose of a dead body, which
resulted in death. In Fagan (1969 ECA), the accused drove onto the officer’s foot. When he drove
onto the foot, it was accidental and therefore he didn’t have the requisite mens rea. However, he
refused to move off of the foot. In respect of the simultaneous principle, it was held that, although
there had been no mens rea when Fagan first ran his car onto the foot, it had been “superimposed” on
an existing act. In Cooper (1993 SCC), A was choking the victim with the intent to cause bodily harm.
Part way through, he “blacked out” and wasn’t conscious when the death occurred. His claim was that
the MR didn’t touch upon the point of choking. The SCC found that he had started out with a
murderous intent and the fact that he blacked out before it wasn’t realized doesn’t mean he’s not
liable. They held that it is not always necessary for the requisite mens rea to continue throughout the
commission of the wrongful act. The Court found that it was sufficient that the intent and the act of
strangulation had, at some point, coincided. In Miller (1983 HL), the Court imposed a common law
legal duty to mitigate continuing harm. The accused accidently set a fire and did nothing to put it out
or to get help. He was being convicted of arson by way of willful omission. The Lordships preferred
this approach to the one taken in Fagan. One concern with relying on common law duties as opposed
to statutory duties is that it may violate the spirit of s. 9 of the Criminal Code which abolished
common law offences. The problem with common law offences is that it prevents individuals from
knowing, ahead of time, what they may be held criminally liable for. Unless the duties are codified,
there is no way for citizens to protect themselves from liability.
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Criminal II Outline
R. V. WILLIAMS (2003 SCC)
Facts: A was convicted of aggravated assault defined in s. 268 of the CC as an assault which
“endangers the life of the complainant.”
Stage One: Having consensual intercourse, he didn’t know he was HIV-positive.
Stage Two: Having intercourse, he knew he was HIV-positive but didn’t disclose. This non-disclosure
vitiated the complainant’s consent. Thus the intercourse was a sexual assault (for which the accused
could be convicted).
Held: There was no proof that the sexual assault at this stage actually endangered her life since she
may have already been infected. So at stage two, the accused had the MR to endanger her, but the AR
(endangerment) was already complete. The AR and MR did not concur and substituted instead a
conviction for attempted aggravated assault.
MISTAKE OF FACT
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Mistake of fact is a defence if it negates the fault (MR).
o Mistake of fact needs to be in respect to an essential or material element of the
offence.
For a subject MR crime, must be:
o Honest (not intentional, reckless, or willfully blind).
o Doesn’t have to be reasonable (but harder to believe if it is unreasonable).
 In Beaver, the accused’s honest belief that he was in possession of baking
soda rather than heroin negates the MR for the offence of possession of a
narcotic even if it was unreasonable.
For an objective MR crime (criminal negligence), must be:
o Honest and reasonable.
o Fergie says: the reasonableness should reflect the degree of liability required. For
example, crim neg requires a marked and substantial departure from reasonable
conduct which demonstrates wanton and reckless disregard. If the accused’s
mistake of fact is unreasonable, but not “wanton and recklessly unreasonable,” the A
should be entitled to rely on mistake of fact as a defence.
Never a defence for an absolute liability offence.
INNOCENT MISTAKES AND TRANSFERRED MALICE
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Not settled law.
In some cases, courts have held that the accused may only rely on mistake of fact as a
defence in circumstances where the accused’s conduct would be “innocent” (not an offence)
if the facts were as the accused mistakenly assumed them to be (Tolson).
In Ladue (1965 YTCA) A had sexual intercourse with the deceased whom he thought was
alive but was asleep. Was charged with causing indignities to a dead human body.
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Criminal II Outline
Court held that if the accused’s mistaken belief had actually been true, he would
have been committing sexual assault and thus his mistaken belief was not
“innocent.”
However, in McLeod (1954 BCCA), the court allowed the accused to rely on his mistaken
belief (that the victim was not a PO) even though the mistaken belief was not innocent (A
intended to assault a citizen, but not a PO). This principle was followed in Shand (1971 SCC)
and Collins (1989 ONCA) where the A’s were acquitted of first-degree murder because they
didn’t know their victims were PO’s (2nd degree though).
Imposing a legal requirement that the mistake be “innocent” before an accused can rely on
the defence of mistake of fact is in effect an application of transferred intent.
DID NOT transfer intent:
o Daviault: Intent to get extremely drunk was not sufficient for sexual assault (no
transfer of intent).
o Blondin (1971 BCCA): Court held that intent to smuggle goods without paying duty is
not sufficient MR for a conviction of importing a narcotic if the smuggled items,
unknown to A, turns out to be a narcotic.
DID transfer intent:
o In Deakin (1974 MCA), A intended to assault B but missed and shattered a glass that
went into C’s eye. Court transferred the intent to assault B to C.
o In Kundeus (1976 SCC), the A’s mistaken belief that he was trafficking mescaline was
held to be sufficient MR to convict him for trafficking LSD. The accused’s mistake as
to the type of drug offence he was committing was not allowed as a defence.
The courts have essentially followed the approach in Blondin where the court found that the
offences were too dissimilar to allow for transferred MR (accused’s mistake is not entirely
innocent, but it will be accepted as a defence). Transferred intent should only be applied
where the two offences are “the same type of offence.”
The doctrine of transferred intent does not apply to inchoate (incomplete) offences such as
attempted murder (Gordon).
o
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Criminal II Outline
PARTIES TO OFFENCES
Ss. 21 and 22 of the CC specify who may be “a party to an offence” and therefore who is guilty of that
offence. To say you’re a party means you’re also guilty (read this in).
s. 21(1)(a)
Actual perpetrator or co-perpetrator
s. 21(1)(b)
Aider (presumably you can aid an aider)
s. 21(1)(c)
Abettor (encourage)
s. 21(2)
Party to other offences committed by other parties as a part of the common
unlawful purpose
s. 21(1)
Counsel an offence that is committed
s. 22(2)
Part to other offences committed by the person counseled as a consequence of
the counselling
s. 23
Accessory after the fact
s. 464
Counselling an offence which is not committed
s. 23.1
A secondary party can be convicted even if the principal is not
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Criminal II Outline
AIDING AND ABETTING
AIDING
S. 21(1)(b) A person is a party to an offence who “does or omits to do anything for the purpose of
aiding any person to commit it.”
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Assumes that an offence has been committed by someone else (which means that in a sense
their liability is “derivative”).
Implied that it must be an omission of a legal duty (Dunlop, Portillo, Dooley).
The MR is express: “for the purpose of aiding.”
Does not specify that the aider’s act or omission must actually assist in the commission of the
offence (causal connection).
Aiding means: “to help” or “assist” (Greyeyes). Typical acts of aiding are: (1) providing
equipment; (2) acting as a “look out”; (3) helping to execute the offence (driving).
ABETTING
S. 21(1)(c) A person is a party to an offence “who abets any person in committing it.”
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Abettor’s liability is derivative.
Abets is not defined but in Greyeyes (1997) the SCC held that it includes “encouraging,
instigating, promoting or procuring the crime to be committed.”
Presumably includes acts or omissions of a legal duty.
Does not specify the required MR. Also does not specify casual connection.
Although often joined together, Greyeyes indicates that aiding and abetting are similar, but
separate concepts. Stuart sees no benefit in this, but Briscoe (2010 SCC) reaffirms.
AIDING OR ABETTING BY OMISSION
Generally, a person who sees, or is present at the scene of a crime, and omits to intervene to stop the
crime (or to report it), is not liable for that omission unless they are under a legal duty to do so
(Dunlop). A bystander is an aider/abettor if:
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Blocks the victim’s escape route;
Offers words of encouragement to the offender;
Knows that his/her mere presence will “urge on/instigate” the principal offender to commit
or carry on the crime.
In Palombi (2007) the ONCA held that a mother’s omission to protect her child from assault by her
partner could constitute “aiding or abetting” the assault, assuming the requisite mens rea was
present. In Kulbacki (1996 MCA) he was properly convicted of dangerous driving by knowingly
allowing his car to be used for that criminal purpose. There is a legal duty when you become aware of
the fact that someone is using your property to commit an offence because you have the authority to
stop it. More cases can be found at page 5 of “Parties to an Offence” at Tab 9.
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Criminal II Outline
EXCEPTIONS TO AIDING/ABETTING OFFENCES
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Protected Persons
o Prostitute will not be convicted of aiding/abetting their pimp in the offence of
“living off of the avails of prostitution” (s. 212(1)(j), Murphy).
o Young person who encourages sexual contact with an adult is not guilty of
aiding/abetting the adult’s sexual offence against that young person.
Buyer and Seller
o Legislation generally treats the buyer and sellers as separate entities with separate
offences. Buyers are guilty of possession and sellers are guilty of trafficking.
MENS REA OF AIDING OR ABETTING
Aiding (s. 21(1)(b)): “for the purpose of aiding an offence”
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Purpose is interpreted as intent. Both direct and indirect intent (Hibbert).
P.(K). seems to ignore the possibility of indirect intent (and contradict Palombi), the ONCA
found that knowledge was not enough, but instead her actions of omitting her duty to
protect the child had to be “for the purpose” or “with intent to” assist or encourage her
partner to abuse the child (Fergie thinks it’s wrong).
Abetting (s. 21(1)(c)): silent, but Greyeyes said “intent” is the requisite MR. The Crown must prove
not only that the accused encouraged the principal with his or her words or acts, but also that the
accused intended to do so.
BRISCOE (2010 SCC)
Facts: A charged with aiding and abetting murder by driving the principal offenders and the victim to
the golf course.
Reasons: The MR reflected in the word “purpose” has two components: intent and knowledge. In
order to have the intention to assist in the commission of an offence the aider must know that the
perpetrator intends to commit the crime (though they need not know exactly how). Willful blindness
can substitute for actual knowledge whenever knowledge is a component of the MR.
Principle: Willful blindness can be used to establish MR for aiding and abetting.
Will recklessness be sufficient MR for aiding and abetting?
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Not established law.
Roach (2004 ONCA) held that recklessness does not suffice as MR for aiding because that
section expressly requires proof of “with intent to aid.”
Janeteas (2003 ONCA) and Hamilton (2003 Atla CA) held that the MR for counselling is
intention and that recklessness does not suffice.
o However, Hamilton went to the SCC and they determined that recklessness would
suffice as MR. The majority limited recklessness to situations where the A was
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Criminal II Outline
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aware of a substantial and unjustified risk that the offence counseled was “likely” to
be committed (high form of recklessness).
Court in Briscoe seemed to implicitly suggest that recklessness would not suffice.
CAUSATION OF AIDING OR ABETTING
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The acts of aiding or abetting do not have to be an indispensable (“but for”) cause of the
offence (Harrer, 1998 BCCA).
But at least one case says that the acts of aiding and abetting should have some connection to
the commission of the offence by “facilitating or making it easier to commit” (State v. Tally
[1894 Alabama SC]).
In Dooley (2009 ONCA), Doherty asserted that there must be some connection between the
aiding and abetting and the commission of the principal offence, but he rejects using the
language of causation to describe it.
o Fergie thinks that Doherty said that the person who shouts the words of
encouragement that are not heard by the principal couldn’t be convicted of abetting
the offence committed by the principal.
o In situations in which there is no causal connection, it would be more logical to term
the offence as “attempting to aid/abet.”
Multiple Accused: When persons were acting in concert it is not necessary for the trier of
fact to determine who struck the fatal blow (Biniaris).
o Where the persons were not acting in concert (no intent to assist one another), if the
trier of fact can’t determine who struck the fatal blow, all must be acquitted.
o In cases such as mutual car races/gun fights, the persons are not acting “in concert”
(there is no intent to assist one another), but they are determined to have “caused”
the consequences of the others acts. However, they are treated/liable as separate
principal offenders.
Other Rules: The trier of fact need not determine who was the “principal” and who was the
“aider/abettor.” As long as they are unanimous that they were all “parties” to the offence,
they are all guilty of the offence (Thatcher).
o The aider/abettor can be convicted even if the principal cannot (because they are
dead or have been absconded) (s. 23(1) CC).
Doctrine of Innocent Agency: Where A hides drugs in B’s suitcase, logically, B committed
the AR of importing narcotics (the principal) and A aided. However, in law, A is treated as the
principal and B merely as an “instrument” by which A committed the offence (an innocent
agent). A is considered to have “actually committed” the offence under s. 21(1)(a) (Toma).
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Criminal II Outline
COMMON UNLAWFUL PURPOSE S. 21(2)
21(2) Where two or more persons form an intention to carry out an unlawful purpose and to assist
each other therein and any one of them, in carrying out the common purpose, commits and offence,
each of them who knew or ought to have known that the commission of the offence would be a
probable consequence of carrying out the common purpose is a party to the offence.
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This is a way of extending liability to all parties for one party’s further ancillary offences. The
ancillary offence must be a probable consequence (not just possible).
o A, B & Z agree to commit a B & E (and assist each other therein)
o Z drives A & B to the house (and waits in the car)
A & B force entry into the house
with a screwdriver.
o A, B & Z are subsequently arrested.
o Held: Z can be convicted of A & B's offence of possession of house breaking
instruments under s. 21(2) since Z had a common intent with A & B to commit B & E
and Z knew, or ought to have known, that possession of house breaking instruments
"would be a probable consequence" of carrying out the B & E (Zannini – In actuality,
they pled guilty to the B&E and the Crown dropped the possession charges, but the
offence still occurred and Z could have been convicted of it even if the principals
were not).
The “intention” in this section is not limited to direct, can include indirect (Hibbert).
CONSTITUTIONAL RESTRICTION ON S. 21(2)
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Allows Zannini to be convicted of a subjective MR offence (possession of HBI) even if his only
MR was objective (“ought to have known”).
The ONCA in Logan held that the expression “ought to have known” in s. 21(2) violated the
PFJs under s. 7 by imposing liability on the s. 21(2) party on an objective basis while
requiring subjective fault from the principal offender.
However, the SCC held that Parliament could act “somewhat irrationally” in this way. They
did impose on limitation on the objective fault words “ought to have known.” Where a crime
requires subjective fault as a constitutionally required minimum fault standard (murder,
attempted murder, war crimes, and perhaps theft), then a party cannot be convicted of those
crimes under s. 21(2) with anything less than subjective MR.
WITHDRAWAL FROM COMMON UNLAWFUL PURPOSE
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A party can “withdraw” from a CUP provided that the withdrawal is clear and unequivocal
and is communicated, where possible, to the other parties in a timely fashion. Has too be
quite clear (Whitehouse, Henderson).
In P.(K.K.) the A didn’t make the withdrawal clear and was therefore convicted.
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Criminal II Outline
COUNSELLING AN OFFENCE S. 2
COUNSELLING AN OFFENCE THAT IS COMMITTED
*Major overlap with abetting*
S. 22(1) Where a person counsels another person to be a party to an offence and that other person is
afterwards a party to that offence, the person who counseled is a party to that offence,
notwithstanding that the offence was committed in a way different from that which was counseled.
(2) Every one who counsels another person to be a party to an offence is a party to every offence that
the other commits in consequence of the counseling that the person who counseled knew or ought to
have known was likely to be committed in consequence of the counseling.
(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.
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Counselling includes “procure, solicit or incite”:
o To counsel means to advise or recommend, in the sense of encouraging or actively
inducing another person to commit an offence (Hamilton).
o To procure means to instigate, encourage, or persuade. It also means to “hire” or to
“arrange for another person to commit the crime”. A person can encourage or
persuade without having instigated the offence.
o A person solicits another when he or she entreats or urges another to do
something.
o To incite has a similar meaning. It means to urge or stir up or stimulate.
The offence counseled must be committed although the offence may be committed in a way
different from the way it was counseled.
Can include A counseling B to be any type of party to the offence (principal, aider, abettor or
another counselor).
Includes offences committed along the way (knew or ought to have known).
CAUSATION OF COUNSELLING
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Unclear whether there needs to be some causal connection (real or assumed) between the
acts of counselling and the principal’s commission of the offence.
o Clearly it does not need to be a “but for” cause.
It would seem that receipt of the words of counselling by the principal offender should be a
bare minimum casual connection.
McNulty (1910 ONCA) suggests that there is no liability if it is shown that the counselling
“had in fact no effect in inducing the actual perpetration.”
Likely that the rule in Dooley that there must be some connection would apply to counselling
in the same way that it does to aiding and abetting.
o In cases where the words of counselling had not been received by the principal, the
counselor has “attempted to counsel”, but there is an open question as to whether or
not this is actually an offence.
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Criminal II Outline
MENS REA OF COUNSELLING
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The SCC in Hamilton has now held, in the context of s. 464, that counselling can be
committed by either intention or recklessness.
The form of “recklessness” adopted in Hamilton is at the high end of a recklessness scale,
which requires a “substantial risk” aka a risk that the offence is “likely” to be committed.
WITHDRAWAL FROM COUNSELLING
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Very little case law on whether a counselor can escape criminal liability if he/she clearly and
unequivocally withdraws his/her advice and encouragement to the principal offender to
commit the offence before the principal actually commits the offence.
Lacoursiere (2002 QCA) the court accepted abandonment to both CUP and counselling.
Interesting that an A may not be able to withdraw form the offence of counselling an offence
that is not committed.
COUNSELLING AN OFFENCE THAT IS NOT COMMITTED
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If A counsels B to commit robbery and B does not commit robbery, A is guilty of the inchoate
offence under s. 464: counselling an offence which is not committed.
It is not necessary for A to be the initiator of a criminal scheme in order to be convicted of
counselling another person to be party to the offence (Root).
S. 464 doesn’t require that the principal offender (being counseled) have any intent to
actually carry out the crime (counseling an undercover PO to murder someone) (Walia).
There doesn’t even need to be evidence that anyone took the advice (Georgia Straight
Publishing Ltd.).
The penalty for s. 464 is the same penalty as if the accused attempted to commit the offence
which he or she has unsuccessfully counseled the other person to commit.
ACCESSORY AFTER THE FACT (NOT PARTY)
s. 23(1) sets out the elements of the offence. The accessory after the fact is a person who
(a) knows (MR) that a person has been a party to the offence,
(b) receives, comforts, or assists that person,
(c) for the purpose of enabling that person to escape.
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S. 463 creates the crime and sets out the punishment (same as attempts).
AAF is essentially a specialized form of obstructing justice. It is a separate offence than the
original offence to which the A is an “accessory” to.
You CAN be an accessory to your spouse (repealed in 2000).
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Criminal II Outline
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Although s. 23 doesn’t specifically address it, there is no reason to prevent a person from
being an AAF by omission of a legal duty.
Escape: not limited to the narrow meaning of escaping from custody. Been given the
definition of “to avoid detection or apprehension.”
o Young (1950 QCA): A drove 250 miles to warn offender the PO on their way.
o French (1977 ONCA): Lying to PO may be form of assistance.
MENS REA FOR AAF (TWO COMPONENTS)
1.
The accessory must know that the person has been a party to the offence; knowledge can be
proven by actual knowledge (by inference) or through willful blindness.
o Duong (1998 ONCA): friend was a murder suspect; let him stay in his house for two
weeks. Court found that actual suspicion of a specific offence, combined with a
decision not to make inquiries, is equated with actual knowledge.
o Recklessness? Unclear. For some offences, Courts have held that where knowledge
is expressly stated in the offence as the MR, then actual knowledge will suffice, but
recklessness will not (Zundel, Vinokurov). Others have contradicted this assertion
(Mens Rea notes at Tab 5 para 32).
o The law is unclear about what happens if the person believed the principal
committed a different crime than he actually committed.
 Attempt? Or transfer intent? (Ladue).
2.
The accessory’s assistance must be for the purpose of enabling the person to avoid
apprehension.
o The word purpose means “intent” and intent includes both direct intent and indirect
intent (Hibbert).
OTHER RULES FOR AAF
AAF can be convicted even if charges against principal were stayed…


Originally, there was a CL rule that required the principal to be convicted in order to convict
the AAF.
Enactment of s. 23(1) changed the CL such that the AAF can be convicted despite a stay of
proceedings with respect to the principal (Camponi).
o Reasoning: there are many reasons a charge can be stayed that have nothing to do
with guilt (Charter violations etc.).
AAF can be convicted despite the principal being acquitted…
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
S. 23(1) is broad enough to allow conviction of the AAF despite an acquittal of the principal
(S.(F.J.)).
Reasoning is similar to above. If the evidence against both is the same, and the principal is
acquitted, you should try to argue res judicada (the issue was decided).
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Evidence of the principal’s conviction is admissible…


Duong recognized this in 1998.
S. 657.2(2) was added to the CC in 1997 and it provides that on a charge of accessory after
the fact to an offence, “evidence of the conviction or discharge of another person of the
offence is admissible against the A and in the absence of evidence to the contrary is proof
that the offence was committed.
VICARIOUS LIABILITY
As a general rule, vicarious liability has no place in criminal law since criminal fault should always be
premised on a finding of personal fault (SSM, Dredge & Dock).
EXCEPTIONS
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Vicarious liability may still be applied to some regulatory offences:
Delegation in Liquor Licensing Statutes:
o In some of these cases, the CL held that license holder vicariously liable for liquor
offences committed by his employees (Levesque).
o Delegation principle now limited – doesn’t apply where the statute provides for the
liability of people other than the license holder (Stevanovich).
Absolute Liability Offences:
o Vicarious liability has in the past been applied to some absolute liability offences
(Levesque, Woolworth). These cases, however, were decided prior to SSM and
Dedge & Dock, and it is unclear whether vicarious liability will be applied today.
Express Legislative Vicarious Liability:
o S. 77 of the BC Liquor Licensing Act placed vicarious liability on the owner of a bar
for offences committed by employees.
o S. 76 of the BC Motor Vehicle Act made the owner of a car vicariously liable for the
offences committed with that vehicle.
 S. 76.1 was added allowing a defence of reasonable care and due diligence
when entrusting the car to another and also no liability if the offender was
never entrusted with the care.
CHARTER CONSIDERATIONS


Vicarious liability amounting to absolute liability with potential loss of liberty is a violation
of s. 7 (Burt, Pellerin).
o Justified under s. 1 (Gray – with very little reasoning).
More fundamental issue is that absolute liability at least requires that the offender do the
actus. Vicarious liability dispenses with both AR and MR.
o Though it can be argued that the AR is providing the instrument (car) and the MR is
not practicing due diligence.
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INCHOATE CRIMES
ATTEMPTS
s. 24(1)
Creates the separate offences of “attempted…”
s. 24(2)
Provides an evidentiary rule which indicates that the question of whether or not
the accused’s conduct constitutes an attempt or is mere preparation (and not
punishable as an attempt) is a question of law to be decided by the trial judge,
and not a jury.
s. 463
Sets out the punishment for attempts.
s. 660
If an A is charged with the full offence and the evidence only establishes an
attempt, then the A can be convicted for attempt on that indictment. The attempt
is a lesser included offence.
s. 661
If an A is charged with attempted robbery but the Crown actually proves a full or
completed robbery, the trier of fact may:
1) Convict of attempted robbery (lack of fair notice); or
2) The judge may discharge the jury from giving a verdict and order that the
A be indicted and retried for the full offence.
RATIONALE
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Prevention: To wait until the crime is complete would cause unnecessary harm.
Moral Fault: People who attempt are demonstrating a criminal disposition and deserve to
be punished. Might be considered as morally blameworthy as someone successful.
Deterrence: Deter this A and others.
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Criminal II Outline
MENS REA FOR ATTEMPTS
The A must do something or omit to do something with “the intention to commit the offence” and “for
the purpose of carrying out that intent.” (Hibbert said that “for the purpose of” means “with intent to”
so this is a subjective MR offence).
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Ancio held that the MR for attempted murder is contained in s. 229(a)(i) (actual direct intent
to cause death). The SCC held that s. 229(a)(ii) will not suffice (intent to cause serious bodily
harm that they know is likely to cause death and is reckless as to whether that death
ensues). This is odd since s. 229(a)(ii) is sufficient for murder.
Logan (SCC) held that Parliament could extend the definition to include s. 229(a)(ii) without
violating the Charter, but Ancio will remain the law until they do.
Hibbert said that “with intent to” would also include indirect intent. It seems that clearly
indirect intent should be included.
Gordon (2009 ONCA) held that transferred intent does not apply for attempts.
ACTUS REUS FOR ATTEMPTS
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Attempts exist when there has been a failure in the causal chain of events. On the other end
of the spectrum, some early activity by the A will be classified merely as preparation.
S. 24(1) is misleading as it characterizes any action with the intent to commit the offence as
sufficient. Subsection (2) makes it clear re: mere preparation.
How do you tell the difference?
DEUTSCH (1986 SCC)
Facts: Charged with and found guilty of attempting to procure persons for the purpose of
prostitution. He had put an ad in the newspaper for a sale’s assistant job, he specified in interviews
that the persons would need to engage in sexual intercourse with clients if need be.
Held: He was found guilty because his conduct was seen as an important step in the commission of
the full offence and therefore sufficient to constitute an attempt.
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Leading case on the vagueness/proximity test for delineating preparation and attempt.
Found that “no satisfactory general criterion can be formulated.”
They found that the distinction must be left to the “common sense” judgment of the TJ and is
to be made on a case-by-case basis.
Look to the relationship between the nature and quality of the act in question and the nature
of the completed offence (line is drawn earlier in crimes of violence).
o Relative proximity to completion: time, location, acts under the control of A
remaining to be accomplished (could they have stopped the full offence from being
complete themselves or was everything set in motion already?).
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Application of the Distinction
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In England, courts have used a “last step test” which has been rejected in Canada (Cline,
Henderson, Deutsch).
In Canada there is a broader test than the one used in England.
Cline (1956 ONCA): A clearly had a plan to induce young children to engage in indecent acts;
stopped with his disguise after having attempted to lure children behind a building. Court
said he was well into the attempt and therefore convicted, not “last step” required.
Henderson (1948 SCC): A et al planned to rob a bank, put their plan into effect, were in the
car on their when they saw a police car and continued driving. Were charged with attempted
robbery.
Olhauser: convicted of attempted fraud despite more acts to complete.
Godfrey: A found in possession of all materials and instructions to make LSD but hadn’t
begun to produce. Found guilty of attempt.
James (1971 ONCA): A found in car, admitted looking for key, found guilty.
Coleville (1988 QCA): A found guilty of attempted theft of an automobile. He was found
attempting to break into the passenger door, ran before he could get in. He was caught and
the police found a mechanism which allows you to start cars.
Lobreau (1988 Atla CA): A went to a used car lot, hopped into a car and make a plasticine
image of the key then left the car and the parking lot. Court said that it had not reached the
stage of attempt.
Root (2008 ONCA): Charged with attempt to launder proceeds of crime. Met the undercover
PO a few times, suggested a fee, no final agreement was reached. Rejected a “test drive”
proposal; ultimately acquitted.
IMPOSSIBLE ATTEMPTS

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S. 24(1) explicitly states “whether or not it was possible to commit the offence.” This applies
to both factual and legal impossibility (Dynar).
In Dynar, the A was convicted of attempted money laundering despite it being a sting
operation and thus the “dirty money” was not in fact “dirty” (therefore making it a legal
impossibility).
In Alicandro, the A was convicted of internet luring despite the fact that the person being
“lured” was actually a PO and not a minor.
WITHDRAWAL/VOLUNTARY DESISTENCE

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
Since “attempts” are complete offences once the A passes “mere preparation”, you cannot
withdraw once the “mere preparation” stage has been passed.
However, there are policy reasons for rewarding someone that desists voluntarily from the
full offence. There is not a lot of case law dealing with this issue.
However, Goodman (1872 ONCA) suggests that there is no defence in the context of
attempted arson. Further, voluntary desistance was rejected as a defence in Kosh on a charge
of attempted burglary.
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ATTEMPTING ANY OFFENCE?
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You can attempt any subjective MR offence. Generally assumed that attempts do not apply to
objective MR offences (attempted crim. neg.).
For policy reasons (remoteness), there is no “attempt to commit conspiracy” offence since it
is itself an inchoate crime and would amount to attempting an attempt (Dungey).
Where “attempt” is expressly a part of the offence (s. 212(1)(a) “procure, attempt to
procure…”), for policy reasons it doesn’t make sense to charge an attempt.
Some offence are specifically attempt offences:
o S. 139: Attempt to obstruct justice;
o S. 239: Attempted murder.
PPT (possession for the purpose of trafficking) has been argued as an “attempt” offence.
However, the Court in Chan (2003 ONCA) found that it is not an attempt offence and
therefore nothing precludes an attempt PPT conviction.
Arguably, s. 24 doesn’t apply to provincial offences since unlike party liability
(aiding/abetting, counselling), which is incorporated into the BC Offence Act under s. 85, s.
24 is a standalone offence.
CONSPIRACY
s. 465(1)(a)
Conspiracy to murder
s. 465(1)(b)
Conspiracy to falsely prosecute
s. 465(1)(c)
Conspiracy to commit any other indictable offence
s. 465(1)(d)
Conspiracy to commit a summary conviction offence
S. 465(1)(d) – Technical wording of this provision suggests that provincial summary offences are
included. Problematic because it is criminalizing something that is not a true crime. The commission
of the actual prov. offence is not criminal but this section renders the conspiracy to do it criminal.
Courts may apply the Blamires compromise such that only provincial offences which are serious and
involve public safety will be caught.
PENALTIES
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Criminal II Outline

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Same as completion for the full offence.
A bit of an anomaly since attempts are only punishable by half.
Conspiracy doesn’t merge with full offence.
o You can be found guilty of both the conspiracy and the full offence.
o If done, TJs generally make the sentence run concurrently.
Could argue cruel and unusual punishment for convictions of conspiracy where the full
offence has a minimum sentence.
ACTUS REUS OF CONSPIRACY
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The concept of conspiracy is not defined in the Code.
It is an actual agreement by two or more persons to jointly pursue the commission of an
offence. It is necessary to show a meeting of minds, a common agreement by all parties to
work together to commit and offence (Cotroni).
It can be difficult to distinguish between negotiation and agreement (Root 2009 ONCA).
o “The fact that an agreement to commit a crime is conditional on the occurrence or
non-occurrence of some event does not necessarily mean that there is not an
unlawful agreement.”
Once an agreement is made, the crime is complete – there is no requirement for any action to
be taken on the conspiracy.
o An agreement could be implied (highly unusual), it need not be expressed.
As long as there is a continuing, overall, dominant plan, there may be changes in the methods
of operation, personnel, or victims, without bringing the conspiracy to an end.
There is no requirement that all the conspirators know one another or directly communicate
with each other, as long as each conspirator knows and agrees to be part of a common
criminal scheme.
Aiding or Abetting:
o If they aid/abet the conspiracy by partaking in its formation, then they are a party to
the offence and therefore criminally liable for it.
o If they aid/abet the conspiracy in relation to the carrying out of the unlawful object
of the conspiracy, the A would not be guilty of conspiracy, but is guilty as a party to
the offences committed as a consequence of the conspiracy (Trieu 2008 ABCA).
o R. v. F. (J.) (2011 ONCA), rejected this decision and held that a person can be a party
to a conspiracy either by being a party to its formation or in being a party to carry
out its unlawful objects.
Pretty difficult to separate the AR from the MR because in conspiracy the AR is a “meeting of
the minds.”
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Criminal II Outline
MENS REA OF CONSPIRACY

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The intention to agree (the AR and MR virtually merge).
This requires actual subjective intention to agree to the unlawful object.
It essential that the conspirators have an intention to agree. In O’Brien Tulley didn’t truly
agree to assist O’Brien in the kidnapping, he went to the police.
Where there is no true agreement between two or more people, neither can be convicted of
conspiracy (because agreement is an essential element of the offence).
o One of them could be convicted of counselling an offence not committed.
Types of conspiracy are at page 5 of Conspiracy notes at Tab 14.
OTHER ISSUES
Attempted Conspiracy



For policy reasons, attempts to conspire are not recognized (Dery 2006 SCC).
However, it is potentially possible where the substantive offence is itself conspiracy
(conspiracy to commit high treason).
May: Court held that you can conspire to “attempt to obstruct justice” since the substantive
offence of obstruction is worded as “attempt to obstruct.”
Voluntary Withdrawal/Desistence

Similar to attempts, once the threshold has been crossed and all elements met (an
intentional meeting of the minds), the crime is complete and therefore cannot be withdrawn
from.
Spouses

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

In Kowbel v. The Queen (1954 SCC) it was held that a husband and wife could not be
convicted of conspiring with each other because in law they are one person.
In R. v. Rowbotham (1988 ONCA) the court said that the rule in Kowbel only applied where
the husband/wife were the sole conspirators.
In Barbeau it was held that the wife could be charged with conspiracy even without evidence
that she met directly with any conspirators other than her husband so long as she was aware
that she was agreeing to participate in a plan to import narcotics involving not only her
husband.
o Kwan affirmed this; if the wife didn’t know there were other conspirators, she could
not be found guilty.
Principle has been extended to common law and same sex spouses (Thompson, M v. H)
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Criminal II Outline
Impossibility



Similar to attempts, you can be convicted even if it is factually or legally impossible to
commit the offence (Dynar).
Conspiracy only requires the subjective intention to commit a substantive offence;
whether or not it is possible to commit it is irrelevant.
Only caveat is “imaginary crimes” (conspiring to commit crimes that are not crimes).
CORPORATE CRIMINAL LIABILITY
BASIS OF CORPORATE CRIMINAL LIABILITY
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It is undeniable that a corporation is a separate legal entity -- Our legal system has expressly
created a separate and distinct legal identity for corporations.
A corporation’s legal identity is separate from that of its shareholders, directors and officers.
A corporation can hold property and enter into contracts.
A corporation can sue and be sued.
Owners or shareholders of a corporation enjoy the benefit of limited liability; they are not
personally liable for the debts or obligations of the corporation.
A corporation is perpetual in the sense that its existence is not altered by the addition of new
members or the retirement or death of existing members.
Thus the question naturally arose -- if a corporation can contract, and sue or be sued, is there
any reason why a corporation cannot be convicted of a crime?
History can be found on page 1 of Corporate Criminal Liability notes at Tab 15.
The most challenging obstacle to imposing criminal liability on corporations for true crimes
was the difficulty of deciding where and how MR could be found within the corporate
structure. There were at least two extreme choices:
o Vicarious Liability – Hold the corporation (as master) liable for the acts and MR of
all employees or agents acting within the apparent or real scope of their authority
within the corporation. Very wide test for imposing criminal liability.
o Board of Directors – Hold the corporation liable for criminal acts only where the
Board of Directors knew of and approved or encouraged the commission of the
criminal offence. Very narrow test for imposing criminal liability since members of
the boards of directors are often unaware of and uninvolved in the day-to-day
operations of the corporation.
DIRECTING MIND TEST

“A corporation is an abstraction. It has no mind of its own any more than it has a body of its
own; its active and directing will must consequently be sought in the person of somebody
who for some purposes may be called an agent, but who is really the directing mind and will
of the corporation, the very ego and centre of the personality of the corporation” (Lennard’s
Carrying Co. Ltd.).
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Criminal II Outline

In Fane Robinson (1941 Atla CA), the corporation and two directors of the company who
were its active managers were, on appeal, convicted of crimes of conspiracy to defraud and
obtaining money by false pretences. The Court held that there is no reason why a
corporation, which can enter into binding agreements with individuals, and other
corporations cannot be said to entertain MR when its active managers enter into an
agreement to commit a false pretence.
THE IDENTIFICATION DOCTRINE

The identification doctrine, as a compromise rule, states that the actions and mental state of
the corporation will be found in the actions and state of mind of employees or officers of the
corporation who may be considered the directing mind and will of the corporation in a given
sphere of the corporation’s activities. The crucial question is which employees or officers of
a corporation are its directing mind? (WHO is the directing mind?)
Characteristics of the Identification Theory (Canadian Dredge & Dock)
1.
2.
3.
4.
5.
6.
7.
8.
Judicially created, pragmatic, fictional device used to attribute a human element (mental
states of mind) to an abstract legal entity.
If a corporate employee is, in the Court’s assessment, virtually the directing mind and will of
the corporation in the sphere of duty and responsibility assigned to the employee by the
corporation, then the employee’s action and intent are the action and intent of the company
itself, provided the employee is acting within the scope of his/her authority either express or
implied.
The essence of the test is that the identity of the directing mind and the company coincide
when the directing mind is acting within his/her assigned field of corporate operations.
The identity doctrine merges the board of directors and all persons who are delegated the
governing executive authority for a sphere of the corporation’s business. The conduct of any
of the merged entities is thereby attributed to the corporation.
A corporation may have more than one directing mind.
Because the actions/intent of the directing mind are merged with the corporation,
a. It is not defence for a corporation to claim that the Board of Directors or other
corporate officers issued general or specific instructions prohibiting the criminal
conduct;
b. It is no defence for a corporation to claim the Board of Directors had no awareness
of the criminal conduct and did not authorize or approve it.
The identification doctrine only operates where the Crown demonstrates that the action
taken by the directing mind
a. Was within the field of operation assigned to him;
b. Was not totally in fraud of the corporation; and
c. Was by design or result partly for the benefit of the company.
Both the directing mind and the corporation can be prosecuted, convicted, and punished for
the offence.
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Criminal II Outline
APPLICATION OF THE IDENTIFICATION DOCTRINE
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Determining which corporate employees are in sufficient control to make them a directing
mind involves a wide ambit of judicial discretion.
Will depend on the court’s analysis of the size and organization of the corporation, its
command structure, the extent of delegation and the nature of the misconduct.
The Canadian application of the ID allows for the DM of the corporation to reside in a
broader and lower-level group of corporate official than appears to exist in England under
the Tesco case.
The Rhone v. The Peter A.B. Widener (1993 SCC) seems to implicitly suggest that in future
cases, DMs will only be found at higher levels of authority.
The Rhone was applied in Safety-Kleen Canada Inc (1997 ONCA). In this case, the Court held
that Mr. Howard’s postion (sole representative in a very large geographical area), was much
like that of the tugboat captain in The Rhone. Both had extensive responsibilities and
discretion, but neither had the power to design and supervise the implementation of
corporate policy.
THE RHONE (1993 SCC)
Facts: A barge towed by four tugs collided with a ship moored in the port of Montreal. The liability
issue turned on whether a tug captain, who had been negligent, was a DM. the captain was master of
the flotilla and a troubleshooter for other tugs and he wasn’t under supervision.
Held: SCC nonetheless found that he was not a DM. they interpreted Dredge to find that the “key
factor which distinguishes directing minds from normal employees is the capacity to exercise
decision-making authority on matters of corporate policy, rather than merely to give effect to such
policy on an operational basis, whether at head office or across sea.
State of Flux
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The identification doctrine has been in a state of flux in Canada. Canadian Dredge & Dock and
The Rhone leave a choice between:
o A decentralized notion of who in the corporation should be held in law to have
sufficient de facto control of an aspect of the corporation’s business to justify
identifying that person’s actions as the corporation’s actions; and
o A highly centralized notion that DMs of a corporation are those relatively few senior
corporate officers who have “governing executive authority” in the sense of
designing and deciding upon corporate policy.
Fergie thinks the latter is inappropriate. Canadian law, however, has been moving closer to a
narrow Tesco test (even though English courts are broadening it).
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Criminal II Outline
CRIMINAL CODE PROVISIONS (BILL C-45)
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Bill C-45 contains amendments to the CC designed to expand and modernize the criminal
liability of corporations and other organizations.
It was rushed through Parliament and came into force on March 31, 2004.
It introduced a number of new provisions. First, the Bill replaces the definition of “every
one”, “person”, and “owner” in s. 2 of the CC. It down states:
o “Every one”, “person”, and “owner”, and similar expressions, include Her Majesty
and an organization.
Further amends s. 2 of the Code by adding this definition of organization:
o Organization means (a) a public body, body corporate, society, company, firm,
partnership, trade union, or municipality, or (b) and association that (i) is created
for a common purpose, (ii) has an operational structure, and (iii) holds itself out to
the public as an association of persons.
Arguably, it didn’t really change much because the courts were taking a liberal approach to
the old definition anyways.
“SENIOR OFFICER”
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Under the new legislation, a corporation or organization may be held criminally liable for the
conduct of its “representatives.” This is defined as a “director, partner, employee, member,
agent or contractor of the organization.”
More importantly, the Bill replaces the common law notion of “directing mind” with
the much broader term “senior officer.”
o This new term now clearly applies to both senior policy makers and senior
managers.
Bill C-45 defines senior officer as:
o “A representative who plays an important role in the establishment of an
organization’s policies or is responsible for managing an important aspect of the
organization’s activities, and, in the case of a body corporate, includes a director, its
chief executive officer, and its chief financial officer.”
This new definition significantly broadens the scope of criminal liability.
Bill C-45 then creates separate provisions to more clearly specify the method by which
corporations can be held liable for crimes requiring proof of negligence (s. 22.1), and for
crimes requiring proof of subjective fault (s. 22.2).
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Criminal II Outline
CORPORATE NEGLIGENCE CRIMES
s. 22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a
party to the offence if
a) Acting within the scope of their authority
i.
One of its representatives is a party to the offence (actually does the AR or they aid,
abet, or counsel a person to do the AR), or
ii.
Two or more of its representatives engage in conduct, whether by act or omission,
such that, if it had been the conduct of only one representative, that representative
would have been a party to the offence (aggregate liability, you can add up the
conduct of rep 1 and rep 2); and
b) The senior officer who is responsible for the aspect of the organization’s activities that is
relevant to the offence departs – or the senior officers, collectively, depart markedly from the
standard of care that, in the circumstances, could reasonably be expected to prevent a
representative of the organization from being a party to the offence.
CORPORATE SUBJECTIVE MR CRIMES
s. 22.2 In respect of an offence that requires the prosecution to prove fault (other than negligence),
an organization is a party to the offence if, with the intent at least in part to benefit the organization,
one of its senior officers
a) Acting within the scope of their authority, is a party to the offence;
b) Having the mental state required to be a party to the offence and acting within the scope of
their authority, directs the work of other representatives of the organization so that they do
the act or make the omission specified in the offence; or
c) Knowing that a representative of the organization is or is about to be a party to the offence,
does not take all reasonable measures to stop them from being a party to the offence.
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Neither appears to apply to offences of strict liability.
The expression “with the intent, at least in part, to benefit the organization” in s. 22.2 may be
more limiting than the existing common law. In Dredge & Dock, the SCC held that a
corporation is liable for the criminal actions of a DM provided those actions were not “in
total fraud” of the corporation and were “by design or result partly for the benefit of the
company.”
o The words “with the intent” in s. 22.2 are the equivalent of the CL expression “by
design”, but s. 22.2 has no equivalent for the other expression “by result.”
Page 14 of the Corporate Criminal Liability notes at Tab 15 lay out “interesting things.”
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Criminal II Outline
CORPORATE LEGAL DUTIES
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The creation of a legal duty on senior officers, in the case of MR offences under s. 22.2 to take
all reasonable measures to stop a representative of the organization from committing a
crime is an important addition to the law because it clarifies that senior officers have a duty
to act in such circumstances and an organization can be held criminally liable for their
“omission to act”.
Likewise, the new express legal duty on senior officers under s. 22.1 for offences of
negligence to take reasonable steps to prevent these offences has the potential to
significantly broaden corporate criminal liability. At minimum, corporations will have to
carefully examine their policies and practices in terms of managerial due diligence.
As a direct response to the Westray mine disaster, Bill C-45 is also designed to make it easier
to prosecute corporations, organizations and individuals for injuries or deaths which occur
as a result of their negligence in terms of failure to follow or apply reasonable safety
standards:
o S. 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.
Sentencing of corporations can be found on page 15 of the Corporate Criminal Liability notes
at Tab 15.
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Criminal II Outline
DEFENCES
NEGATE ACTUS REUS
NOT MY ACT
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
The A may dispute that they were the person who committed the act (Marshall, Milgaard,
Mortin, Sophonow). They may claim false or mistaken identification.
In addition, the A may raise a defence of alibi.
Alibi
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There are two components to the alibi defence (Cleghorn).
Timeliness: The alibi must be disclosed to the police and prosecutor in time to allow them
to investigate it before trial (often disclosed after the prelim).
Adequacy: Disclosure must include:
o A statement that the A was not present at the scene of the crime at the time it was
committed.
o The whereabouts of the A at the time.
o The names of any witnesses to the alibi.
The trier of fact may draw an adverse inference from improper disclosure (Maracle).
In Wright a witness testified that the A was downstairs and not upstairs when the robbery
took place. The Crown and police were aware of this before trial and therefore there was no
inadequate disclosure of alibi and the trier of fact should not take it adversely.
The jury should be told not to infer guilt simply because an alibi is not believed. However, if
there is independent/extrinsic evidence that the alibi is false, they should be instructed that
they can use that evidence (as a factor, not as conclusive evidence), to infer the guilt of the A
(Tessier).
NO CAUSATION
(See Causation notes at Tab 4)
Test for Causation



Smithers: If the A’s act or omission “was at least a contributing cause of the [prohibited
harm] outside the de minimus range.”
Nette: SCC affirmed Smithers must indicated that it may be preferable to articulate the
causation in positive language as “a significant contributing case.”
Harbottle: Separate test for 1st degree murder. Take into account: thin skull rule, remoteness
and independent intervening causes.
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Criminal II Outline
NO CRIMINAL HARM
DEFINING THE HARM



Normally specified in the definition of the offence.
This is the prohibited circumstances or prohibited consequences.
As a general defence, the A may argue that their conduct does not amount to the “criminal
harm.” For example, on possession of obscene materials, they may argue that the materials
were not obscene.
CONSENT


Lack of consent is often an express or implied element of the offence.
Consent must be express or implied.
o There is no concept of implied consent for sexual assault (Ewanchuk).
o Consent obtained by threats is of no force or effect.
Assault/Sexual Assault



Assault (s. 265) is defined as the application, or attempt, or threatened application of force
without consent.
S. 265(3) indicates that consent cannot be obtained by (a) force, (b) threats or fear of force,
(c) fraud, or (d) exercise of authority.
In Cuerrier, Williams, and Mabior the SCC said the Cuerrier test is still the same, significant
risk of serous bodily harm (realistic possibility that in your condition you would transmit
HIV). The court said that there will be no realistic possibility of transmission if you have
BOTH:
o A low viral count and
o Used a condom.
Fraud




Consent, which is obtained by fraud, will not always render the consent invalid.
Old CL held that with respect to sexual activity, “fraud” must go to the nature and quality of
the act in order to vitiate consent (saying it is a medical procedure when it’s not).
o Falsely claiming to pay a prostitute in order to gain consent would not go to the
“nature and quality” of the act (either way, it’s sex) (Petrozzi).
SCC held that Parliament’s dropping of “nature and quality of the act” requires a new
approach to determining what “fraud” vitiates consent with sexual activity.
Cuerrier said that vitiating consent due to fraud in the context of sexual activity has two
components:
o Dishonesty: In this case, the A deliberately did not disclose HIV status.
o Deprivation: Must entail a significant risk of bodily harm to complainant as a result
of dishonesty.
 This is a factual determination (condoms/viral count).
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Criminal II Outline
Incapable of Consenting



Drugs administered without the v/c’s knowledge may vitiate consent (Daigle).
o V/C was given PCP without her knowledge, she then engaged in sexual activity
(claimed she felt “out of control”).
S. 273.1(2)(b) being under age renders a person “incapable of consenting.”
Cannot consent to continued sexual activity once unconscious (A. (J.) SCC).
Consent Not Legally Recognized


S. 14: No one may lawfully consent to his/her death and such consent will not relieve others
from causing, assisting in causing, or attempting to cause that person’s death.
Jobidon Exception: No one can consent to the infliction of serious bodily harm when
participating in fist fight/brawl (though, court held the defence still exists in context of
sports, medical treatment, and performance of stunts).
o Paice: Interpreted Jobidon as vitiating consent only where the A both intends and
causes non-trivial bodily harm. Suggests that consent is not vitiated if the harm
didn’t actually occur.
o Bruce: Suggests that the public policy threshold for “bodily harm” that vitiates
consent may be different in cases of domestic assault.
o Sullivan: Court held that “kneeing” was not consented to and even if it was, the
breaking of the jaw constituted SBH vitiating consent.
o A. (C.): Although SBH was caused, it was not intended and therefore consent was not
vitiated.
o Welch: Held that although s. 273.1 says that voluntary agreement to sexual activity
is a defence, the victim cannot consent to the infliction of BH upon himself/herself
except in the course of a generally approved social activity.
 Also held that the activity is dehumanizing and degrading and must yield to
competing social interests.
 McIlwaine: Consent to forcible confinement for sexual purposes (bondage)
does not vitiate consent unless it involves BH.
ACT OR OMISSION WAS INVOLUNTARY
See notes on Voluntariness at Tab 2.
There is no AR unless the act or omission was a willed act of a conscious mind (Rabey).
SANE AUTOMATISM (NON-INTOXICATED)

Unconscious, involuntary behavior, the state of the person who, though capable of action, is
not conscious of what he or she is doing (Rabey).
o If a disease of the mind causes the unconscious behavior, the A must rely on the
insanity defence.
o If it’s caused by voluntary intoxication, the A must rely on intoxication (temporary
psychosis due to voluntary drug-taking is “intoxication” not “disease of the mind).
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Criminal II Outline
If the unconscious behavior is caused by something other than those things, the
proper defence is automatism:
 Sleepwalking (Parks, not Stone and Luedecke).
 Concussion from physical blow to the head (Bleta).
 Diabetic coma.
 Involuntary intoxication.
o A must prove automatism on BoP. Stone made this the case which reversed holdings
in Rabey and Parks. Stone has in general made proof of the defence of automatism
exceedingly difficult, if not impossible.
How to determine between automatism and mental disorder? Consider:
o Internal cause factor (presumptively mental disorder).
 A condition stemming from the psychological or internal makeup of the A,
rather than external factors.
o Continuing danger factor (presumptively mental disorder) (Luedecke).
o Policy concerns:
 Fear of fabrications;
 Public disillusion resulting from acquittal;
 Successful automatism defence does not allow the court to monitor/control
the person (as in NCRMD).
o

ACCIDENT



This defence is used in two discreet ways. The first relates to situations where the A is
claiming that his or her conduct was involuntary. The second relates to situations where the
A is claiming that he or she did not intend the consequence of his/her voluntary act.
o The second is more appropriately classified as a denial of MR.
Examples of an “accident” are:
o Hitting another person as a result of a reflex action.
o Hitting another person as a result of falling down the stairs.
o Hitting another person or damaging property as a result of a defect in one’s
automobile or hitting a patch of ice or an oil slick whereby one’s vehicle is out of
control.
o Accidentally dropping property and damaging it.
Result in an acquittal. Burden with Crown to establish that the conduct was voluntary.
ACT OF GOD



Not a separate and distinct defence; claiming that the A’s act/omission was (1) not voluntary
or (2) didn’t cause the harm (intervening act).
o Sudden landslide hits car pushing it into opposite lane.
o Earthquake broke septic tank resulting in pollutants entering stream.
Potential defence against absolute liability offences.
If the offence is strict liability, may still need to establish on a BoP that due diligence was
taken to prevent harm.
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Criminal II Outline
PHYSICALLY IMPOSSIBLE TO COMPLY WITH THE LAW

If the A is under a legal duty to comply with the law, but is physically incapable of so
complying, the A is entitled to a defence on the basis that his or her omission to comply with
the law was involuntary.
NEGATE MENS REA
DUE DILIGENCE

See MR notes. If charged with a strict liability offence and Crown proves AR BRD, A is
entitled to an acquittal if A establishes due diligence/reasonable care on BoP (SSM).
VOLUNTARY INTOXICATION
The general rule is that evidence of intoxication is admissible to negate the existence of the specific
intent required for an offence (Beard, Leary, Bernard).





Not admissible to negate the general intent required for general intent offences unless there
is evidence that it is so extreme that it is akin to automatism or insanity (Daviault).
Bill C-72 partially overruled Daviault by declaring that intoxication, even when akin to
automatism, is no defence to general intent offences which involved assault or interference
with another’s bodily integrity as an element of the offence.
o Some TJs have found this unconstitutional, an appellate court has not yet ruled.
Dow: Holds that there is no Daviault since scientific evidence indicates it is not possible to go
into a state akin to automatism by drinking liquor alone.
Paul: Court didn’t consider Daviault. In this case, the A killed three friends and attempted to
kill himself/two others. He was on crazy drugs and was hearing voices from a “higher
power.” Fergie thinks they should have applied Daviault and convicted him of the lesser
offences of manslaughter and aggravated assault.
Bouchard-Lebrun: SCC held that a temporary psychotic state caused by voluntary drug
consumption is not a disease of the mind and the only defence is intoxication, not insanity.
The distinction between specific intent offences and general intent offences is set out in George.
Specific intent involves an intention which goes beyond the intent to do the act in question and
involves some external purpose. Words such as “for the purpose of” or “with intent to” in the
definition of an offence normally indicate that you are dealing with a specific intent offence.
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Criminal II Outline
LIST OF GENERAL/SPECIFIC INTENT OFFENCES
General:














Assault
Assault causing bodily harm
Assault of peace officer 270(1)(a)
Aggravated assault 268
B&E 348(1)(b)
Criminal harassment 264
Incest
Indecent assault
Manslaughter
Mischief
Rape
Sexual assault
Unlawful confinement 272(2)(b)
Willful obstruction of a peace officer
129(a)
Specific
















Aiding and abetting 21(1)b/c
Arson 433
Assault with intent to resist arrest
270(1)(b)
Assaulting a police officer
Attempted murder
B&E 348(1)(a)
Discharging firearm w/ intent 244
Murder
Possession of stolen property
Receiving stolen property
Robbery
Sexual exploitation 153
Sexual touching 151
Theft
Uttering a threat 264.1
Willfully causing a fire
THE INSANITY/MENTAL DISORDER DEFENCE
S. 16 No person is criminally responsible for an act committed or an omission made while suffering
from a mental disorder that rendered that person incapable of appreciating the nature and quality of
the act/omission or of knowing that it was wrong.

There are three elements to the defence:
o Disease of the mind (rendering them incapable of);
o Appreciating the nature and quality of his/her conduct; OR
 Given a relatively narrow meaning (Abbey, Landry). It is sufficient if the
mentally disordered person knows the nature of his act and its physical
consequences. The fact that the A is stabbing the victim because he or she is
in a paranoid state and thinks they’re the devil does not negate the second
element (knows he has a knife and that stabbing the victim may cause their
death).
o Knowing the conduct is wrong (legally or morally).
 The SCC in Oommen held that the real question on this is whether they lack
the capacity for rationale perception of what is right or wrong (more likely
to succeed on this than the second element).
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Criminal II Outline




Morally right or wrong is not judged by the offenders personal
standards but by whether the offender knows that it is right or
wrong by societies standards (Chaulk).
S. 16(2) an accused is presumed not to suffer from a mental disorder until the contrary is
proven on BoP.
Results in a special verdict of NCRMD; not an outright acquittal and it results in the court
imposing a special disposition which may include an absolute discharge, a condition
discharge, or commitment to a mental hospital.
Swain dealt with who can raise insanity and when:
o Must be raised during the trial by the A; or
o During the trial by the prosecutor only if in the TJ’s opinion the A has somehow put
his or her own mental capacity in issue; or
o By either the A or the Crown after the trier of fact has concluded that the A was
guilty of the offence, but before a verdict of guilty is formally entered.
Mental Disorder Short of Insanity


Where the evidence of insanity falls short on BoP, some cases have held that some evidence
of mental disordered should be considered with respect to whether the Crown has
discharged its burden BRD that the A formed the requisite intent.
If successful, this “new” defence, will usually result in a conviction for a lesser offence not
requiring the same degree of intent.
JUSTIFICATION (EXCULPATORY)
SELF-DEFENCE
34(1) Self-Defence Against Unprovoked Assault
Every one who is unlawfully assaulted without having provoked the assault is justified in repelling
force by force if the force he uses is not intended to cause D or GBH and is no more than is necessary
to enable him to defend himself.
34(2) Extent of Justification
Every one who is unlawfully assaulted and who causes D or GBH in repelling the assault is justified if
(a) He causes it under reasonable apprehension of D or GBJ from the violence with which the
assault was originally made or with which the assailant pursues his purposes; and
(b) He believes, on reasonable grounds, that he cannot otherwise preserve himself from D or
GBH.
35. Self-defence in case of aggression (no real applicability b/c s.34(2) is available even if the
assault is provoked)
Every one who has without justification assaulted another but did not commence the assault with
intent to cause death or grievous bodily harm, or has without justification provoked an assault on
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Criminal II Outline
himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force: (i) under reasonable apprehension of death or grievous bodily harm from the
violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable
grounds,
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily
harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict
and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving
himself from death or grievous bodily harm arose.
37(1) Preventing assault
Every one is justified in using force to defend himself or any one under his protection from assault, if
he uses no more force than is necessary to prevent the assault or the repetition of it.
37(2) Extent of justification
Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is
excessive, having regard to the nature of the assault that the force used was intended to prevent.








S. 34(1) deals with situations where the person who acts in self-defence does not intend to
cause death or grievous bodily harm.
S. 34(2) normally deals with situations where the person using self-defence does intend to
cause death or grievous bodily harm, although Pintar held that “intent to cause D or GBH” is
not essential in order to rely on s. 34(2).
In determining which one to use, Pintar and Pawliuk have shifted the focus from the A’s
intent in applying force in self-defence to the A’s apprehension of the degree of force he or
she is facing from the other person.
o S. 34(1) should be resorted to where the A does not apprehend D or GBH.
o S. 34(2) should be resorted to where the A does apprehend D or GBH.
In McIntosh, the SCC held that the words “without having provoked the assault” should not
be read into s. 34(2).
S. 34(2) contains both subjective and objective elements. The SCC has held that it is
appropriate to hear expert evidence on the battered spouse syndrome in determining
whether they were under reasonable apprehension of death or GBH (Lavallee).
Self-Defence results in an outright acquittal. Once there is an air of reality, the Crown must
disprove it BRD.
A personal is criminally responsible under s. 26 of the Code for any force used beyond that
which is authorized in ss. 34-37.
S. 37 should only be used when ss. 34-35 are not applicable. This section does not have an
important separate function; it applies not only to self-defence but to defence of third
persons, to anyone under his/her protection which has been interpreted very broadly to
include “anyone who needs help or protection” (Weber).
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Criminal II Outline
BILL C-26: NEW SELF-DEFENCE PROVISIONS

Proclaimed into force on March 11, 2013. Does three significant things:
o Abolished s. 34-37 of the CC which governed the defence of self-defence and
replaces those four provisions with one new provision.
o It abolishes ss. 38-42 of the CC on the defence of property and replaces; and
o It expands a citizen’s right of arrest.
s. 34(1) A person is not guilty of an offence if
a) They believe on reasonable grounds that force is being used against them or another person
or that a threat of force is being made against them or another person;
b) The act that constitutes the offence is committed for the purpose of defending or protecting
themselves or the other person from that use or threat of force; and
c) The act committed is reasonable in the circumstances
(2) In determining whether the act committed is reasonable in the circumstances, the court shall
consider the relevant circumstances of the person, the other parties and the act, including, but not
limited to, the following factors:
a) The nature of the force or threat;
b) The extent to which the use of force was imminent and whether there were other means
available to respond to the potential use of force;
c) The person’s role in the incident;
d) Whether any party to the incident used or threatened to use a weapon;
e) The size, age, gender and physical capabilities of the parties to the incident;
f) The nature, duration and history of any relationship between the parties, including any prior
use or threat of force and the nature of that threat or force;
o Any history of interaction or communication between the parties to the incident;
g) The nature and proportionality of the person’s response to the use or threat of force; and
h) Whether the act committed was in response to a use or threat of force that the person knew
was unlawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the
purpose of doing something that they are required or authorized by law to do in the administration
or enforcement of the law, unless the person who commits the act that constitutes the offence
believes on reasonable grounds that the other person is acting unlawfully.
Three essential elements:
1.
2.
3.
The accused believes on reasonable grounds that force or a threat of force is being used
against them or another person;
The accused commits the offence for the purpose of defending or protecting themselves or
others from the force or threat; and
The act committed is “reasonable in the circumstances.
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Criminal II Outline
Changes From Previous Law




A single reasonableness standard: Any offence committed in self-defence or defence of
others is justified if it was “reasonable in the circumstances.” While this simplifies the
defences, it also gives judges and juries a significant amount of unstructured discretion.
Not limited to assault-based offences: An A could rely on s. 34 to justify the offences of break
and enter, damage to property, theft of an automobile to escape so long as they were done to
avoid force or threat of force.
o Ryan: Provides an example of where it may be used. A was a seriously battered
spouse who was separated from husband but still fered him. She tried to get help
from the police but they only suggested a peace bond. She tried to hire someone to
kill him. Under the new self-defence provision, the defence would at least be
possible under these new circumstances.
o May mean that there is no longer a need for duress.
The A’s act must have been committed for the purpose of defending or protecting: This was
probably an unstated assumption in the old provision.
The A can rely on self-defence against unlawful use or threat of force: Allows an A to rely on
self-defence or defence of others against a alwful use or threat of force if the A believed on
reasonable grounds that the other person was acting unlawfully.
EXCUSES (EXCULPATORY)
NECESSITY



Necessity is a CL defence (incorporated through s. 8(3)). It has been held in some cases to be
an excuse and in some a justification.
It applies to situations of moral involuntariness.
o It is physically involuntary but there was not other “realistic option.”
Once there is an air of reality, the onus of proof is on the Crown.
Three elements:



An urgent situation of imminent peril that the average person would not be expected to
withstand.
o The imminent peril must not have been easily foreseeable (Perka).
o Imminent peril having resulted from illegality/contributory fault is not necessarily
fatal to the defence (Perka).
o Modified, objective standard (Latimer).
 Contextualized; situation and characteristics of the A are considered.
No reasonable “legal way out.”
o Modified objective standard (Latimer).
Proportionality: that harm form the “necessary offence” must be comparable or less than the
harm that would have occurred if the imminent peril were allowed to occur (Latimer).
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Criminal II Outline
o
o
This is a question of law for the TJ to decide. Purely objective standard (Latimer).
Unlikely that homicide is ever proportional.
Examples:





Latimer: Father kills daughter because she is in immense pain. Fails on all three branches; no
air of reality.
o Not a situation of imminent peril; prospect of further surgery; “mutilation” not
considered imminent peril.
o Had another option: not kill her and deal with it like a normal person.
o No proportional at all.
Nelson: Man fasting for 60 days breaks into house and eats. Claims necessity because of
imminent peril (death).
o Imminent peril was a clearly foreseeable/avoidable result of intentionally fasting for
60 days.
Byng: Use of alcohol to relieve pain while driving to hospital. Fails; other options.
Crispin: Necessity succeeded on impaired driving charged where A needed immediate
medical assistance and believed there was no other option.
Primus: Successful; dangerous driving to escape a group of men threatening his life.
DURESS



Dealt with in s. 17 of the Code. In Carker, the SCC held that the defence of duress was
“exhaustively defined in s. 17” and therefore the A could not avail himself of the CL version.
His attempt failed because he could not meet the strict “presence” and “immediacy”
requirement of s. 17.
S. 17 applies to “principal” offenders only, but not to “secondary offenders” therefore all
secondary parties to an offence are entitled to rely on the CL defence of duress (preserved by
s. 8 of the CC) (Paquette).
In Ruzic (2001), the SCC further restricted the application of s. 17. The Court unanimously
held that the restrictiveness of the immediacy and presence requirements of s. 17 are
unconstitutional and not saved under s. 1. They held tat the ONCA were correct in allowing
the A to rely on the CL defence of duress.
The combined effect of Paquette and Ruzic:



S. 17 does not apply to secondary parties; they can rely on the CL defence in respect of all
offences except perhaps murder (Paquette, Sandham).
S. 17 does not apply to principal offender in regards to offences which are not one of the 22
excluded offences listed in s. 17 of the Code.
S. 17 is still applicable to the list of excluded offences. This means that a principal offender
charged with an “excluded defence” cannot rely on duress under s. 17 NOR on CL duress.
CL Duress:

The A must be subject o threat of D/GBH to himself or another person.
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Criminal II Outline
Need not be “imminent” though “a close temporal connection between the threat
and the harm threatened” should be present (Ruzic).
A must be committing the offence solely as a result of the threat.
Threat must be of such gravity that it may well cause a reasonable person in the same
situation to respond by committing the offence (modified objective).
A must not have a safe avenue of escape (modified objective).
A must not be a voluntary member of a criminal association whereby he knows he may be
subjected to compulsion by threats.
o




Duress does not negate MR; it is a separate CL excuse (Hibbert). Onus is on Crown BRD once there is
an air of reality.
PROVOCATION
s. 232 of the CC: It is a qualified or limited defence in two different respects:


It is only a defence to a charge of murder, and not to any other offence (not even attempted
murder [Campbell]).
It is a partial defence in the sense that the A will not be totally acquitted, the charge of
murder will be reduced to manslaughter.
The requirements for the defence are set out in s. 232(2):



The A must be provoked by a wrongful act or insult;
The wrongful act or insult must be sufficient to deprive an ordinary person of the power of
self-control; and
o The ordinary person standard is based on a contextualized, objective standard
which takes into account the accused’s age, gender, background, relationship to the
victim, and any other characteristic or circumstance which gives the provocative
insult or conduct special significance (Hill, Thibert, Tran).
The A must him/herself be acting in response to the wrongful act or insult on the sudden and
before there is time for his/her passion to cool.
o These are question of fact (for the jury), not questions of law.
Once the issue is raised by evidence, the Crown must prove BRD that the A was not provoked.
Provocation arises as a defence after the Crown has established both the AR and the MR of murder.
The defence of murder does not negate “the intent to kill” (Cameron).