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CRIMINAL LAW Prepared by Andrew Carvajal Instructor: Prof.

Payam Akhavan Winter 2008

Table of Contents Introduction.............................................................................................................................................39 principle of legality.........................................................................................................................51 Basic Considerations of the Criminal Law.............................................................................................60
Sources of Criminal Law........................................................................60

Akhavan: \The Origin and Evolution of Crimes Against Humanity\...................................................69


Codification: The Criminal Law as a Statute...........................................71

s. 9 Criminal Code........................................................................................................................73
Common Law Defences..........................................................................75

Amato v. The Queen SCC (1982), 69 CCC (2d) 31.......................................................................75 s. 8(3) Criminal Code...................................................................................................................77
Common Law Offences..........................................................................78

Frey v. Fedoruk SCC, [1950] SCR 517..........................................................................................78 Re Regina and Gralewicz................................................................................................................80

Jobidon v. The Queen SCC, [1991] 2 SCR 714.............................................................................80 Note on United Nurses of Alberta v. AG Alberta SCC (1992), 71 CCC (3d) 225........................85
Vagueness, Overbreadth and Certainty in the Criminal Law...................87

s. 11 Canadian Charter of Rights and Freedoms.........................................................................89 Note on R v. Nova Scotia Pharmaceutical Society SCC (1992), 74 CCC (3d) 289......................91 R. v. Heywood SCC, [1994] 3 SCR 761........................................................................................95 Canadian Foundation for Children v. Canada (Attorney General), 2004 SCC 4........................100

The Limits of Criminal Law..................................................................................................................108


Pornography........................................................................................109

R. v. Butler SCC (1992), 70 CCC (3d) 129..................................................................................109 R. v. Sharpe SCC, [2001] 1 SCR 45.............................................................................................117
Marijuana and the Harm Principle........................................................127

R. v. Malmo-Levine; R. v. Caine SCC, 2003 SCC 74.................................................................127


Hate Speech........................................................................................137

R. v. Keegstra SCC (1990), 61 CCC (3d) 1.................................................................................137 R. v. Zundel SCC (1992), 75 CCC (3d) 449................................................................................146 Conduct or Actus Reus..........................................................................................................................156 Roach Ch. 5 and Lecture Notes Introduction............................................................................156
Voluntariness......................................................................................159

R. v. Ruzic SCC, [2001] 1 SCR 687.............................................................................................160


Contemporaneity.................................................................................166

Fowler v. Padget............................................................................................................................166 Fagan v. Commissioner of Metropolitan Police, [1969] 1 Q.B. 439...........................................167 R. v. Miller, [1982] 2 All E.R. 386...............................................................................................176 Note on R. v. Cooper, (1993) 78 CCC (3d) 289 (SCC)...............................................................181
Action, Inaction and Status.................................................................187

A) Action.......................................................................................................................................188 B) Inaction (Omissions)................................................................................................................189

s. 219 Criminal Code.................................................................................................................190 s. 2 Quebec Charter of Human Rights and Freedoms...............................................................192 Moore v. The Queen SCC, [1979] 1 SCR 195.............................................................................195 R. v. Thornton, Ontario CA (1991) 3 CR (4th) 381.....................................................................206 C) Status........................................................................................................................................219 R. v. Terrence SCC, [1983] 1 SCR 357........................................................................................221
Consequences and Causation...............................................................225

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Smithers v. The Queen SCC, [1978] 1 SCR 506.........................................................................227 R. v. Cribbin, Ontario CA (1994), 89 CCC (3d) 67.....................................................................239 R. v. Nette SCC (2001), 158 CCC (3d) 486.................................................................................250 R. v. Menezes, Ontario Superior Court of Justice (2002), 50 CR (5th) 343................................263 R. v. Reid & Stratton, Nova Scotia CA (2003), 180 CCC (3d) 151............................................273 Mens Rea...............................................................................................................................................282
Presumption of Innocence...................................................................282

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Woolmington v. D.P.P. , House of Lords [1935] AC 462...........................................................282


Constitutional Aspects of Fault............................................................291

R. v. Finta SCC (1994), 88 CCC (3d) 417....................................................................................294


Intention and Knowledge....................................................................302

R. v. Lewis SCC (1979), 47 CCC (2d) 24....................................................................................304 R. v. Steane Court of Criminal Appeal, England, [1947] 1 KB 997............................................309 Hibbert v. The Queen SCC (1995), 99 CCC (3d) 193.................................................................315

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R. v. Buzzanga and Durocher Ontario Court of Appeal (1979), 49 CCC (2d) 369.....................322 R. v. Theroux SCC (1993), 79 CCC (3d) 449..............................................................................328 Prosecutor v. Tadi, Case No. IT-94-1-A (1999).........................................................................334 Prosecutor v. Jelisi, Case No. it-95-10-A (2001)........................................................................340
Recklessness and Wilful Blindness.......................................................352

R. v. Sansregret SCC (1985), 18 CCC (3d) 223...........................................................................353 R. v. Duong Ontario CA (1998), 124 CCC (3d) 392...................................................................358

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R. v. Cooper SCC (1993), 78 CCC (3d) 289................................................................................361 Doctrine of Command Responsibility in International Law - Prosecutor v. Blaki, Case No. IT95-14-A (29 July 2004), at paras. 53-85.......................................................................................365
Negligence..........................................................................................369

R. v. Tutton and Tutton SCC (1989), 48 CCC (3d) 129..............................................................373 Note on R. v. Waite SCC (1989), 48 CCC (3d) 1........................................................................384 R. v. Creighton SCC (1993), 83 CCC (3d) 346............................................................................386
Absolute Liability.................................................................................404

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Public Welfare or True Criminal Offences.............................................407

Beaver v. The Queen SCC (1957), 118 CCC 129........................................................................407 R. v. Pierce Fisheries SCC, [1970] 5 CCC 193............................................................................421 Note on R. v. Wholesale Travel Group SCC (1991), 67 CCC (3d) 193.....................................425
The Emergence of Strict Liability.........................................................435

R. v. Sault Ste. Marie SCC (1978), 40 CCC (2d) 353..................................................................435


Constitutional Considerations..............................................................443

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Reference Re Section 94(2) of the B.C. Motor Vehicle Act SCC (1985), 23 CCC (3d) 289.....443 R. v. Pontes SCC (1995), 100 CCC (3d) 353...............................................................................455 Irwin Toy Ltd. v. Quebec Attorney General................................................................................459 R. v. 1260448 Ontario Inc. (c.o.b. William Cameron Trucking; R. v. Transport Robert (1973) Lte Ontario CA (2003), 180 CCC (3d) 254................................................................................460 R. v. Wholesale Travel Group Inc.SCC (1991), 67 CCC (3d) 193.............................................470 Specific Offences...................................................................................................................................488
1. Second-degree murder....................................................................488

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s. 222 Criminal Code.................................................................................................................489 s. 229 Criminal Code.................................................................................................................493


Section 229(a): Intentional or Reckless Killing....................................495

R. v. Simpson Ontario CA (1981), 585 CCC (2d) 122................................................................495 R. v. Cooper SCC (1993), 78 CCC (3d) 289................................................................................498
Section 229(b): Transferred Intent.....................................................504

R. v. Fontaine Manitoba CA (2002), 168 CCC (3d) 263.............................................................504

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Section 229(c): Unlawful Object..........................................................507

R. v. Tennant and Naccarato Ontario CA (1975), 23 CCC (2d) 80.............................................508 R. v. Vasil SCC (1981), 58 CCC (2d) 97.....................................................................................514
Constitutional Considerations..............................................................520

Vaillancourt v. The Queen SCC (1987), 39 CCC (3d) 118.........................................................520 R. v. Martineau SCC (1990), 58 CCC (3d) 353...........................................................................530
2. First-degree murder........................................................................534

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s. 231 Criminal Code.................................................................................................................535


Section 231(2): Planned and Deliberate..............................................544

R. v. More SCC, [1963] 3 CCC 289.............................................................................................544


Section 231(4): Murder of Police Officer, etc.......................................550

R. v. Collins Ontario CA(1989), 48 CCC (3d) 343......................................................................551


Section 231(5): While Committing.......................................................558

R. v. Par.......................................................................................................................................559

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R. v. Russell SCC, [1963] 3 CCC 289..........................................................................................559


Constitutional Considerations: Challenges to Section 231(5)...............564

R. v. Arkell SCC (1990), 59 CCC (3d) 65....................................................................................564 R. v. Luxton SCC (1990), 58 CCC (3d) 449................................................................................568
Manslaughter......................................................................................576

s. 234 Criminal Code.................................................................................................................577 s. 236 Criminal Code.................................................................................................................579

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3. Sexual Assault.................................................................................583

R. v. Chase SCC (1987), 2 SCR 293............................................................................................583 Pappajohn v. The Queen SCC (1980), 52 CCC (2d) 481............................................................588 s. 265(4) Criminal Code.............................................................................................................598 Note on Osolin v. The Queen SCC, [1993] 4 SCR 595...............................................................600
Mistake................................................................................................604

Sansregret v. The Queen SCC (1985), 18 CCC (3d) 223.............................................................605

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R. v. Seaboyer SCC (1992), 66 CCC (3d) 321.............................................................................609 R. v. Darrach SCC, [2002] 2 SCR 443.........................................................................................616 R. v. Ewanchuk SCC, [1999] 1 SCR 330.....................................................................................626 Forms of Participation...........................................................................................................................645 s. 21 Criminal Code...................................................................................................................646 s. 22 Criminal Code...................................................................................................................650
Principals............................................................................................653

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R. v. Thatcher SCC, [1987] 1 SCR 652........................................................................................653 R. v. H. (L.I.) Manitoba CA (2004), 17 CR (6th) 338.................................................................659 R. v. Berryman British Columbia CA (1990), 57 CCC (3d) 375.................................................666
Aiding and Abetting.............................................................................676

Dunlop and Sylvester v. The Queen SCC (1979), 47 CCC (2d) 93.............................................682 Note R. v. Nixon British Columbia CA (1990), 57 CCC (3d) 97................................................689
Common Intention..............................................................................691

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R. v. Kirkness SCC (1990), 3 SCR 74..........................................................................................692 R. v. Logan SCC (1990), 58 CCC (3d) 391................................................................................703
Counselling..........................................................................................710

R. v. Lacoursire Quebec CA (2002), 7 CR (6th) 117.................................................................710


Accessory after the fact.......................................................................716

s. 23 Criminal Code...................................................................................................................717 s. 23.1 Criminal Code................................................................................................................718

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s. 463 Criminal Code.................................................................................................................719 R. v. Camponi British Columbia CA (1993), 82 CCC (3d) 506.................................................722 Inchoate Offences..................................................................................................................................725
Attempt...............................................................................................728

s. 24 Criminal Code...................................................................................................................728
Actus Reus..........................................................................................730

R. v. Cline Ontario CA (1956), 115 CCC 18...............................................................................731

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Deutsch v. The Queen SCC (1986), 27 CCC (3d) 385................................................................736


Mens Rea.............................................................................................741

R. v. Ancio SCC (1984), 10 CCC (3d) 385..................................................................................741 R. v. Logan SCC (1990), 58 CCC (3d) 391.................................................................................744 Note on R. v. Sorrell and Bondett Ontario CA (1978), 41 CCC (2d) 9.......................................747
Impossibility.......................................................................................749

United States v. Dynar SCC, [1997] 2 SCR 462.........................................................................749

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Incitement..........................................................................................754

s. 464 Criminal Code.................................................................................................................755 Ford v. The Queen Ontario CA (2000), 145 CCC (3d) 336.........................................................757 Note on R. v. Dungey Ontario CA (1979), 51 CCC (2d) 86........................................................762 R. v. Gonzague Ontario CA (1983), 4 CCC (3d) 505..................................................................764 R. v. Janeteas Ontario CA (2003), 172 CCC (3d) 97...................................................................768 R. v. Hamilton Alberta CA (2003), 178 CCC (3d) 434...............................................................774

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Conspiracy...........................................................................................780

United States v. Dynar SCC, [1997] 2 SCR 462.........................................................................781 Corporate Liability................................................................................................................................786 Roach Ch. 10 and Lecture Notes Introduction..........................................................................787
The Old Common Law of Directing Minds.............................................789

R. v. Waterloo Mercury Sales Ltd, Alberta District Ct. (1974), 18 CCC (2d) 248.....................789 Canadian Dredge and Dock Co. et al v. The Queen, SCC (1985), 19 CCC (3d) 1.....................793

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R. v. Safety-Kleen Canada Inc., Ontario CA (1997), 114 CCC (3d) 214....................................806 A Note on Vicarious Liability and the Charter.............................................................................812
The New Statutory Provisions for Organizational Liability...................814

s. 2 Criminal Code.....................................................................................................................814 s. 22.1 Criminal Code................................................................................................................817 s. 22.2 Criminal Code................................................................................................................819 Archibald and Roach \The Changed Face of Corporate Criminal Liability\..................................822

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Defences................................................................................................................................................833
1. Intoxication.....................................................................................835 The Common Law Defence of Intoxication...........................................836

D.P.P. v. Beard, House of Lords [1920] AC 479.........................................................................836


The Intoxication Defence: Capacity or Intent?.....................................840

R. v. Robinson, SCC [1996] 1 SCR 683.......................................................................................841 Note on Lemky v. The Queen (1996), 105 CCC (3d) 137...........................................................849

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Air of Reality and the Intoxication Defence..........................................851

Note on R. v. Seymour (1996), 106 CCC (3d) 520......................................................................851


Intoxication and Specific Intent..........................................................854

R. v. George SCC (1960), 128 CCC 289......................................................................................854 Bernard v. The Queen SCC (1988), 45 CCC (3d) 1.....................................................................862 R. v. Quinn....................................................................................................................................876 R. v. Penno SCC (1990), 59 CCC (3d) 344..................................................................................877

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R. v. Daviault SCC (1994), 93 CCC (3d) 21................................................................................881 Parliaments Response to Extreme Intoxication Bill C-72..........................................................892
2. Duress.............................................................................................899

s. 17 Criminal Code...................................................................................................................900 Paquette v. The Queen..................................................................................................................903 Hibbert v. The Queen....................................................................................................................904 R. v. Ruzic.....................................................................................................................................904

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The Common Law Defence of Duress...................................................907

Paquette v. The Queen SCC (1976), 30 CCC (2d) 417................................................................907 R. v. Mena Ontario CA (1987), 34 CCC (3d) 304.......................................................................912
Duress and Mens Rea..........................................................................914

Note on Hbert v. The Queen SCC (1989), 49 CCC (3d) 59.......................................................914 Hibbert v. The Queen SCC (1995), 99 CCC (3d) 193.................................................................916
Duress and the Charter........................................................................925

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R. v. Ruzic SCC, [2001] 1 SCR 687.............................................................................................925 Duress and Excluded Offences.....................................................................................................936


3. Self-Defence....................................................................................938

People v. Goetz New York CA, 497 N.E. 2d 41..........................................................................940


Applying the Criminal Code Provisions.................................................947

s. 34 Criminal Code...................................................................................................................949 s. 37 Criminal Code...................................................................................................................950

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R. v. Bogue Ontario CA (1976), 30 CCC (2d) 403......................................................................952 R. v. Pawliuk British Columbia CA (2001), 151 CCC (3d) 155.................................................958 R. v. Deegan..................................................................................................................................963 Reilly v. The Queen......................................................................................................................963 R. v. Cinous SCC (2002), 162 CCC (3d) 129..............................................................................965
Self-Defence and Domestic Violence....................................................975

R. v. Lavallee SCC (1990), 55 CCC (3d) 97................................................................................975

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R. v. Ptel SCC (1994), 87 CCC (3d) 97......................................................................................982 R. v. Malott SCC (1998), 121 CCC (3d) 456...............................................................................990
4. Necessity.......................................................................................1001 Necessity and Abortion......................................................................1003

Morgentaler v. The Queen SCC (1975), 20 CCC (2d) 449........................................................1004 R. v. Morgentaler et al. Ontario CA (1985), 22 CCC (3d) 353................................................1009 The Conceptualization of Necessity as an Excuse or Justification............................................1013

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in Re A (Children) (Conjoined Twins: Surgical Separation).....................................................1024


Necessity and Latimer.......................................................................1025

Latimer v. The Queen, SCC [2001] 1 SCR 3.............................................................................1025


Necessity and Codification.................................................................1031 5. Provocation...................................................................................1033 Applying the Provisions.....................................................................1038

R. v. Hill, SCC [1986] 1 SCR 313..............................................................................................1038

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R. v. Thibert, SCC [1996] 1 SCR 37..........................................................................................1047


Provocation and Intent......................................................................1056

R. v. Campbell Ontario CA (1977), 38 CCC (2d) 6...................................................................1057 R. v. Cameron Ontario CA (1992), 71 CCC (3d) 272................................................................1062 R. v. Parent SCC (2001), 154 CCC (3d) 1.................................................................................1066 Review.................................................................................................................................................1071

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Introduction

The codification of the criminal law is the codification of common law, given the federal jurisdiction of criminal matters What distinguishes criminal law? - Some of the purposes of criminal law Punishment of wrongful behaviour o In lex talionis exercised on the body of the person

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o Currently the most common form is incarceration o Purpose An assumption of reprimanding poor moral choice Linked to utilitarian objectives of Deterrence the criminal system Prevention o Not the case of habitual offenders Protection against harm Retribution

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Linked to a moral conception of criminal law Denunciation wrongful and harmful behaviours Rehabilitation as an alternative to punishment

What is crime? What society labels as such Something universally punishable linked to principles of utilitarianism and natural justice

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Some crimes carry more moral and social weight than others o E.g. homicide vs. pollution In part, this is linked to the intention of the perpetrator of the crime Should intended, though victimless crimes, be punished any less than crimes with victims?

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Intention (in the case of a car accident because of intoxication) may draw the line between murder and recklessness Some elements of crime Actus reus o The physical element of crime o A physical contraction

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Mens rea o Linked to intention o Also knowledge of the consequences of the act that led to the crime Causation o Unlike in civil liability contributory harm is not relevant in determining criminal culpability and is only relevant to sentencing

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Culpability may also be linked to presumptions of fault o Strict liability vs. absolute liability Where state of mind may be irrelevant and presumed o True crimes vs. regulatory or welfare offences State of mind is presumed depending on the moral blameworthiness of the case Elements of punishment

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Imprisonment Fines Stigma o The stigma of a criminal record, as deemed by the Supreme Court o Linked to the fundamental principles of justice Justification for punishment

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Deterrence o Two dimensions Individual: aimed at the person who committed the crime Human being are rational calculators; punishment increase the cost of crime so that it outweighs its benefits Not effective with individuals from certain backgrounds who will see no deterrence in prison or

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even the death penalty, or those who are not calculative in their crimes General deterrence More generally accepted as the deterrent factor that justifies punishment Incapacitation Rehabilitation Retribution

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o Distinguished from the above as it is linked to a moral theory, while the above are linked to utilitarian principles of criminal law The fundamental assumption behind all this principles of punishment is that of moral choice Individuals are morally blameworthy and should be hold accountable for guilty actions

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Some of the most significant issues with punishment in particular imprisonment, is that it deprives people of their liberty Thus there are many safeguards so that people are not subject to arbitrary deprivation of their liberty o One of this substantive safeguards is that people know the law and that which is criminalized

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o Another elemental consideration underlying the criminal law is

the principle of legality Prohibition of the retroactive application of criminal law Crimes must be narrowly defined Criminal law is void for vagueness What type of conduct should be criminalized? The criminal code, for the most part, reflects existing social norms

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o It is realistic to some extent

o What is in line with habitual lawfulness This becomes more complex when we move away from fundamental and archaic crimes to more controversial ones Two basic elements of any crime Actus reus o The criminal act

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o E.g. homicide: bodily harm causing death Mens rea o The criminal intent o This is the core of the crime It determines, for instance, the type of crime that follows the death of a person o It is not enough that you carried out an act, but you have to have done it with a specific intent

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o Varying degrees of knowledge With the most forcible crimes, you need to know that your actions would have caused the specific harm Recklessness and wilful disregard Recklessness: intention to carry an act that may lead to harm but no specific knowledge that it would result in such Negligence

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Absolute liability Mere proof that the actus reus has been committed results in conviction regardless of moral blameworthiness o E.g. homicide: various degrees of intention o In here we also see a distinction between true crimes and regulatory (or welfare) crimes

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In true crimes mens rea plays a crucial role in determining the nature of the crime This crimes carry great stigma and the punishment can be very serious In regulatory crimes mens rea may be less important (as is the case of strict liability crimes) The stigma and punishment involved is much less Forms of participation

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May be dependent on the knowledge of a crime Examples: aiding and abetting, joint criminal enterprise Individuals may share a criminal purpose (mens rea) even if they played different roles in the commission of the crime or the actus reus Grounds for exclusion of criminal liability

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Different from a defence that the crime was not committed by the accused If the prosecution fails to prove the actus reus and mens rea, there is no reason to put forth a positive defence E.g. duress can serve as an excuse for engaging in criminal behaviour o Duress used to apply to all crimes except for murder or treasons

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o In Canada it does not apply to kidnapping, sexual assault o In civil law systems it can apply to all crimes Different from a justification such as self-defence Necessity is similar to duress though linked to natural circumstances Other examples are automatism and mental disorder, linked to capacity Intoxication Provocation

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o Not a full defence, but in a case like homicide, may reduce murder to manslaughter Basic Considerations of the Criminal Law Sources of Criminal Law Statutes

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o Criminal Code of Canada Criminal Offences (only a small

portion of total offences) o Regulatory Offences (most common types of offences) Enacted by Federal, provincial and municipal governments Usually punishment is a fine, but may include imprisonment Common law - judge made decisions

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o Most of it can be codified, and crimes can no longer be cerated by the CML since 1953 The Constitution o Canadian Charter Applies to activities of Canadian legislature or government offices o Guarantees number of Rights (Legal Rights)

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o Ss.7-14, designed to protect those subject to criminal investigation, those charged and tried for criminal offences, and those punished for crime. o S.7 Broadest legal right which can potentially apply to any stage of the criminal process Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

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o Ss.8-10, protect those subject to investigation by the State o S.8 provides the right to be secure against unreasonable searches or seizures o S.9 provides the right not to be arbitrarily detained or imprisoned o Upon arrest or detention, individuals have many rights under s.10, including the right to retain and instruct counsel without delay and to be informed of that right

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o Ss.11-14, protect those charged and tried for offences. Before trial, a person charged has the right not to be denied reasonable bail without just cause (s.11(e)), and the right to be tried within reasonable time (s.11(b)) At trial, there is the right to be presumed innocent until proven guilty in court of law in a fair and public hearing by an independent and impartial tribunal (s.11(d)) and the right to a jury in certain circumstances (s.11(f)

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When acquitted or found guilty and punished, accused has the right not to be tried or punished again (s.11(h)) o S. 12 everyone has right not to be subjected to any cruel or unusual treatment or punishment o S.15 (equality rights) laws and practices can be found to infringe s.15 o Limits to Rights

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S.1: is a law is found to infringe the Charter, the State must prove that it is a reasonable limit prescribed by law and demonstrably justified in a free and democratic society If not justified, s.52 states that any law inconsistent with the constitution to the extent of its inconsistency has no force and effect o Remedies

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S.52 - striking down law s.24 (1), provides that those whose charter rights have been infringed may apply to court of competent jurisdiction to obtain a remedy that the court considers appropriate and just s.24(2) governs the remedy of exclusion of evidence obtained in a manner that violates Charter rights by providing that evidence shall be excluded from a criminal

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trial if it is established that, having regard for all circumstances, its admission would bring the administration of justice into disrepute Akhavan: The Origin and Evolution of Crimes Against Humanity During WWII, international law did not criminalize the inhumane treatment in which state treated its own citizens A problem with this was nullum crimen sine legem

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o How to criminalize something that was not illegal at the time it took place, such as during the reign of Nazi Germany One could not rely on domestic law to penalize much of the behaviour that took place during the holocaust This is relevant to s.11(d) of the Canadian Charter o The Charter was influenced by the International Covenant on Civil and Political Rights ICCPR, which contained legacies of the Nuremberg trials

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o This document established that crimes against humanity were

not the result of custom or a treaty, but based on principles Codification: The Criminal Law as a Statute

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When looking at the CML treatment of the criminal law, we see that it has moved towards a codified application of the criminal law, rather than one larger based on precedent Since 1892, we see a move towards codification of criminal liability and to restrict the scope of judicial discretion with regards to it In 1953 CML crimes were abolished in Canada, except for the crime of content (see s.9) Nevertheless, defences are still found in the CML

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s. 9 Criminal Code Criminal offences to be under law of Canada Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 (a) of an offence at common law, (b) of an offence under an Act of the Parliament of England, or of Great

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Britain, or of the United Kingdom of Great Britain and Ireland, or (c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada, but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

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Common Law Defences Amato v. The Queen SCC (1982), 69 CCC (2d) 31 Issue: Can the common law develop new defences to criminal liability? Holding: Yes Estey J

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S. 7(3) [now s.8(3) specifies the conditions under which common law defences are to be considered by the courts This section should not be regarded as having frozen the power of courts to enlarge the contents of the common law by recognizing new defences

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It was within the jurisdiction of the courts to create the defence of entrapment s. 8(3) Criminal Code Common law principles continued Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

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Common Law Offences Frey v. Fedoruk SCC, [1950] SCR 517 Facts An individual was arrested for being a peeping tom without a warrant and convicted by a police magistrate

Issue: Can the common law develop new criminal offences?

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Holding: No Cartwright J Treating a conduct as criminal, not because of any standard provided in the Code, but because otherwise it will provoke violence, would lead to uncertainty

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There were no cases where the act in question was treated as a criminal offence Re Regina and Gralewicz [1980] SCC clarified that to be liable of conspiracy, one needs to have an unlawful purpose which is contrary to the extant law of federal or provincial legislation Jobidon v. The Queen SCC, [1991] 2 SCR 714

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Facts Two men started a fight with each other and one was killed The issue at stake was whether the accused could be charged with assault given that the fight was consented to The court deems that consent does not go as far as to having authorized assault to the extent of leading to deadly injuries o The court, relying on its capacity to define CML defences to s.265, determines the scope of what constitutes consent to assault

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Issue: Can the common law be used to illuminate existing criminal offences and definitions? Holding: Yes Gonthier J All CML offences are now defined in the Code (s.9), but that does not mean that the CML can no longer illuminate these definitions or give content to the various principles of criminal responsibility

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S.8 states that CML rules and principles continue to apply as long as they are not inconsistent with the Code or any Act of Parliament If s. 8(3) and its interaction with the CML allows to develop new defences, this surely authorizes courts to look at pre-existing CML rules Sopinka J (dissenting) Canadian criminal law has been codified and courts are constrained by the

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wording of sections defining criminal offences The absence of consent as an element of assault cannot be swept away by judge-made policy The effect of the majority opinion is to create a new offence which does not exist, the intentional application of force with the consent of the victim An interpretation of the offence in light of the common law eliminates an element of the offence, contrary to s.9, and the reason why offences have been codified in Canada

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Note on United Nurses of Alberta v. AG Alberta SCC (1992), 71 CCC (3d) 225 Facts Union was fined $400,000 for contempt of court by disobeying court directives not to go on strike

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McLachlin J The union argued that limitations to vague and arbitrary laws assumes all uncodified CML crimes are unconstitutional Principles of fundamental justice call for all crimes to be codified While criminal contempt is discussed in s.9, its actus reus and mens rea are elements defined at CML Absence of codification does not mean that the principles of fundamental

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justice are violated Criminal contempt as defined does not violates s.7 of Charter.

Vagueness, Overbreadth and Certainty in the Criminal Law Codification is thought to advance some of the most fundamental values of criminal law

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The basic expression of the principle of legality is contained in the maxim of nullum crimen sine lege (no crime without a law) This restricts the retroactive application of the criminal law o This is protected by s. 11(g) and (i) of the Charter Also restricts vagueness in what gives rise to criminal liability o A similar doctrine also limits the application of criminal liability: overbreadth

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This does not imply that the means of criminal liability are not well defines, but that they go beyond the purpose of what they wish to sanction

s. 11 Canadian Charter of Rights and Freedoms Any person charged with an offence has the right... (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or

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international law or was criminal according to the general principles of law recognized by the community of nations; (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. S.19 of the Criminal Code establishes that ignorance of law is no excuse to criminal liability

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The corollary to this, however, is that the law must be properly defined and be accessible

Note on R v. Nova Scotia Pharmaceutical Society SCC (1992), 74 CCC (3d) 289 Held: S.32(1)(c) of the Combines Investigation Act which made it an offence to lessen, unduly, competition was not impermissibly vague.

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Gonthier J Vagueness can be raised under: S.7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague S.1 in limine, on basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be prescribed by law

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Doctrine of vagueness is founded on the rule of law, particularly on principles of: Fair notice to the citizens o 2 aspects: Formal acquaintance with the text of the law and formal notice is not a central concern in vagueness analysis (ignorance of law is no excuse) Fair notice may not have been given when enactments are in somewhat general terms, in a way that does not readily

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permit citizens to be aware of their substance, when they do not relate to any element of the substratum of values held by society Limitation of Law Enforcement Discretion o A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute o If the powers of the judiciary to decide if a charge leads to conviction/acquittal and the power to prosecute are fused, because of the working of law, then it is unconstitutionally vague

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o This leaves the accused completely in the dark, with no possible way of defending himself before the court.

R. v. Heywood SCC, [1994] 3 SCR 761 Facts A man was arrested for loitering near a playground, contrary to s.179(b) of the Code, given his past criminal record for sexual assault

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He was seen photographing the crotch area of school girls The British Columbia CA quashed his conviction for the vagueness of the law in question Issue: Was the law overly broad? Holding: Yes; appeal dismissed Cory J Overbreadth and vagueness are different concepts, but can sometimes be

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related, in that both result of a lack of sufficient precision by a legislature in the means used to accomplish an objective In the case of vagueness, the means are not clearly defined In the case of overbreadth, the means are too sweeping in relation to the objective The meaning of a law may be ambiguous but not vague, yet overly broad Where a law is vague, it may be overly broad to the extent that the ambit of its application is difficult to define

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Overbreadth analysis looks at the means chosen by the legislature in relation to its purpose and whether they are necessary The effects of overbreadth in an arbitrary and disproportionate application of the law The law was deemed to be overly broad in its geographical and temporal scope It was also deemed broad in relation to the people it applied to, and the

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fact that it could be enforced without any notice to the accused Gonthier J (dissenting) A lifetime prohibition of activities with a malevolent or ulterior purpose related to reoffending is in no way objectionable or overbroad This restriction of liberty directly related to preventing reoffending is a minor intrusion and justified

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Cory Js reliance on an absence of notion to the accused about the enforcement of the law as contrary to s.7 of the Charter is unjustified Since ignorance of the law is not an excuse for breaking the law, formal notice of enforcement is not required Canadian Foundation for Children v. Canada (Attorney General), 2004 SCC 4 Facts

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Section 43 of the Criminal Code justifies the reasonable use of force by way of correction by parents and teachers against children in their care The appellant sought a declaration that s. 43 violates ss. 7, 12 and 15(1) of the Charter The trial judge and the CA rejected the appellant's contentions and refused to issue the declaration requested Issue: Was the spanking law vague or overbroad? Holding: No; appeal dismissed

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McLachlin CJ S. 43, properly construed, is not unduly vague or overbroad It sets real boundaries and delineates a risk zone for criminal sanction and avoids discretionary law enforcement o The force must have been intended to be for educative or corrective purposes While the words "reasonable under the circumstances" on their face are broad, implicit limitations add precision

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o Considering Canada's international treaty obligations, the circumstances in which the discipline occurs, social consensus, expert evidence and judicial interpretation, a solid core of meaning emerges for "reasonable under the circumstances", sufficient to establish a zone in which discipline risks criminal sanction. The Foundation argues that s.43 is overbroad because children under the age of two are not capable of correction and children over the age of 12 will only

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be harmed by corrective force This concern is addressed by Parliament's decision to confine the exemption to reasonable correction Section 43 does not permit force that cannot correct or is unreasonable. It thus follows that it is not overbroad Arbour J (dissenting) Section 43 of the Criminal Code can only be restrictively interpreted if the law,

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as it stands, offends the Constitution and must therefore be curtailed Absent such constitutional restraints, it is not the proper role of courts to enlarge criminal responsibility by limiting defences enacted by Parliament Section 43 of the Criminal Code infringes the rights of children under s. 7 of the Charter The phrase "reasonable under the circumstances" in s. 43 violates children's security of the person interest and the deprivation is not in

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accordance with the relevant principle of fundamental justice, in that it is unconstitutionally vague A vague law violates the principles of fundamental justice because it does not provide "fair warning" to individuals as to the legality of their actions and because it increases the amount of discretion given to law enforcement officials in their application of the law, which may lead to arbitrary enforcement While it may work well in other contexts, in this one the term "reasonable force" has proven not to be a workable standard and the

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lack of clarity is particularly problematic here because the rights of children are engaged Since s. 43 is unconstitutionally vague, it cannot pass the "prescribed by law" requirement in s. 1 of the Charter or the minimal impairment stage of the Oakes test and accordingly cannot be saved under that section Striking down the provision is the most appropriate remedy, as Parliament is best equipped to reconsider this vague and controversial provision

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The Limits of Criminal Law What justifies criminal liability? On the one hand it is argued that the state should not encroach in the liberty of an individual unless there is social harm Alternatively, the doctrine of legal moralism proposes there is no need for a clearly defined social harm

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Modern criminal law, however, has moved away from legal moralism and has confined itself mainly in the idea that individual liberty should be infringed only so as to prevent social harm

Pornography R. v. Butler SCC (1992), 70 CCC (3d) 129 Facts

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The accused, who operated a shop selling various forms of pornography, was charged with various counts contrary to s. 163 of the Criminal Code The trial judge concluded that the obscene material was protected by the guarantee of freedom of expression in s. 2(b) of the Charter, since only those materials which contained scenes involving violence or cruelty could be said to be proscribed under s. 1 o He convicted the accused on eight counts relating to eight films and entered acquittals on the remaining charges The Crown appealed the acquittals and the CA allowed the appeal and

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entered convictions with respect to all the counts Issue: Are criminal limitations on pornography unconstitutional? Holding: No; appeal allowed and a new trial called Sopinka J In order for a work or material to qualify as "obscene", as per s.163(8), the exploitation of sex must not only be its dominant characteristic, but such exploitation must be "undue"

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Courts have attempted to formulate workable tests to determine when the exploitation of sex is "undue" The most important of these is the "community standard of tolerance" test from R v. Town Cinema (1985) This test is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed to

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Material which may be said to exploit sex in a "degrading or dehumanizing" manner will necessarily fail the community standards test, not because it offends morals, but because it is perceived by public opinion to be harmful to society, particularly women In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of

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HARM that may flow from such exposure Harm in this context means that it predisposes persons to act in an antisocial manner The stronger the inference of a risk of harm, the lesser the likelihood of tolerance Pornography can be usefully divided into 3 categories: The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex

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Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial Explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production

Section 163 of the Code seeks to prohibit certain types of expressive activity and thereby infringes s. 2(b) of the Charter, yet the infringement is justifiable under s. 1

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The overriding objective of s. 163 is no longer moral disapprobation (which is no longer defensible) but the avoidance of harm to society, and this is a sufficiently pressing and substantial concern to warrant a restriction on freedom of expression There is a sufficiently rational link between the criminal sanction and the objective as it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs S.163 minimally impairs freedom of expression as it does not proscribe sexually explicit erotica without violence that is not degrading or

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dehumanizing Finally, the effects of the law do not so severely trench on the protected right that the legislative objective is outweighed by the infringement

R. v. Sharpe SCC, [2001] 1 SCR 45 Facts The accused was charged for possession of child pornography for the purpose of distribution under s. 163.1 of the Code

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Prior to his trial, the accused brought a preliminary motion challenging the constitutionality of this section alleging a violation of his constitutional guarantee of freedom of expression Both the trial judge and the majority of the British Columbia CA ruled that the prohibition of the simple possession of child pornography as defined under s. 163.1 of the Code was not justifiable in a free and democratic society Issue: Is the law banning the possession of child pornography constitutional? Holding: Yes; appeal allowed and a new trial called

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McLachlin CJ The restriction on freedom of expression imposed by this law is constitutional for the purpose of protecting children from abuse and exploitation The offence prohibits the possession of photographs, film, videos and other visual representations that show or depict a person under the age of 18 engaged in explicit sexual activity

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Courts should take an objective approach to determining whether material falls within the definition of child pornography o The question is whether a reasonable person would conclude that the impugned material portrays "explicit" sexual activity, or that the material "advocates or counsels" sexual offences with persons under 18 Courts should also take an objective approach in determining the availability of any statutory defence, and the various defences (i.e., artistic merit; educational, scientific or medical purpose; and public

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good) must be interpreted liberally to protect freedom of expression, as well as possession for socially redeeming purposes Nevertheless, two exceptions to this restriction must be recognized, for two particular cases cases in which the law limits freedom of expression heavily while adding little to the protection of children. These exceptions are: o The possession of expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use

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Examples are personal journals and drawings, intended solely for the eyes of their creator o The possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted These two exceptions apply equally to the offence of "making" child pornography under s. 163.1(2), but neither exception affords protection to a person harbouring any other intention than private possession

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L'Heureux-Dub (dissenting in part) The possession of child pornography has no social value, thus it warrants only attenuated protection Increased deference should be afforded to Parliaments decisions to prohibit it In prohibiting the possession of child pornography, Parliament promulgated a

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law which seeks to foster and protect the equality rights of children, along with their security of the person and their privacy interests The importance of these Charter rights cannot be ignored in the analysis of whether the law is demonstrably justified in a free and democratic society and warrants a more deferential application of the criteria set out in the Oakes test Moreover, Parliament has the right to make moral judgments in criminalizing certain forms of conduct o The Court should be particularly sensitive to the legitimate role of

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government in legislating with respect to our social values Unlike the majority, L'Heureux-Dub feels that the extension of the prohibition to teenagers between the ages of 14 and 17 who keep pornographic videotapes or pictures of themselves, is a reasonable limit on teenagers' freedom of expression Parliament had a strong basis for concluding that the age limit in the definition of child pornography should be set at 18

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The provision does not amount to a total ban on the possession of child pornography The provision reflects an attempt by Parliament to weigh the competing rights and values at stake and achieve a proper balance The definitional limits act as safeguards to ensure that only material that is antithetical to Parliament's objectives in proscribing child pornography will be targeted, and the legislation incorporates defences of artistic merit, educational, scientific or medical purpose, and a defence of the public good

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Marijuana and the Harm Principle R. v. Malmo-Levine; R. v. Caine SCC, 2003 SCC 74 Facts A challenge to the Narcotics Control Act based on principles of fundamental justice under s.7 of the Charter Issue: Does the criminalization of Marijuana depend exclusively on the harm

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principle? Holding: No Gonthier and Binnie JJ All sides agree that marihuana is a psychoactive drug which "causes alteration of mental function" Certain groups in society share a particular vulnerability to its effects, such as chronic users, pregnant women and schizophrenics

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Advancing the protection of these and other vulnerable individuals through criminalization of the possession of marihuana is a policy choice that falls within the broad legislative scope conferred on Parliament

For a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard

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against which to measure deprivations of life, liberty or security of the person Societal values play a role in the delineation of the boundaries of the rights and principles in question, nevertheless, there must be the balancing of individual and societal interests Even if the "harm principle" relied upon by the accused could be characterized as a legal principle, it does not meet the other requirements There is no sufficient consensus that the harm principle is vital or

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fundamental to our societal notion of criminal justice While the presence of harm to others may justify legislative action under the criminal law power, the absence of proven harm does not create an unqualified s. 7 barrier to legislative action There is no consensus that the distinction between harm to others and harm to self is of controlling importance The harm principle is not a manageable standard against which to measure deprivation of life, liberty or security of the person

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While the "harm principle" is not a principle of fundamental justice, the state nevertheless has an interest in the avoidance of harm to those subject to its laws which may justify legislative action Harm need not be shown to the court's satisfaction to be "serious and substantial" before Parliament can impose a prohibition Once it is demonstrated, as it has been here, that the harm is not de minimis, or not "insignificant or trivial", the precise weighing and calculation of the nature and extent of the harm is

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Parliament's job A criminal law that is shown to be arbitrary or irrational will infringe s. 7 However, in light of the state interest in the avoidance of harm to its citizens, the prohibition on marihuana possession is neither arbitrary nor irrational. Arbour J (dissenting)

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A law that has the potential to imprison a person whose conduct causes little or no reasoned risk of harm to others offends the principles of fundamental justice "Societal interests" may indeed form part of the s. 7 analysis where the operative principle of fundamental justice necessarily involves issues like the protection of society The harm associated with marihuana use does not justify the state's decision to use imprisonment as a sanction against the prohibition of its possession.

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Lebel J (also in dissent) Agrees with Arbour J but is unsure that the harm principle deserves the recognition of a principle of fundamental justice Deschamps (also in dissent) While disagreeing with Arbour Js limitation of imprisonment to activities that do harm to others, she agrees that marijuana is moderately

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harmless Lecture notes There are crimes that do not rest on the harm principle but offend social values so as to be criminalized o Cannibalism, bestiality, inhumane treatment of animals While the principle of social harm is not a fundamental requirement of the principle of fundamental justice, the court does not abandon it altogether and adopt instead a pure principle of morality

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Hate Speech R. v. Keegstra SCC (1990), 61 CCC (3d) 1 Facts The accused, a high school teacher, was accused of promoting hatred against Jews The accused was convicted at trial but the conviction was overturned by

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the Alberta CA on the grounds that s.319(2) of the Code violated ss.2 and 11(d) of the Charter, while not being justified under a s.1 analysis Issue: Was the criminalization of hate speech constitutional? Holding: No; appeal allowed Dickson CJ Communications which wilfully promote hatred against an identifiable group are protected by s. 2(b) of the Charter

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The type of meaning conveyed is irrelevant. Section 2(b) protects all content of expression

Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the

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wilful promotion of hatred against identifiable groups Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred, as well as an international commitment to eradicate hate propaganda and promote equality and multiculturalism

Section 319(3)(a) infringes the presumption of innocence guaranteed in s. 11(d) of the Charter

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The real concern under s. 11(d) is not whether the accused must disprove an element of the offence or prove a defence Section 319(3)(a) of the Code constitutes a reasonable limit on the presumption of innocence Parliament's objective in employing a reverse onus is pressing and substantial o Harm is created whenever statements are made with the intention of promoting hatred, whether or not they contain an element of truth

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o If the defence of truth is too easily used, Parliament's objective under s. 319(2) will suffer unduly McLachlin (dissenting) Section 319(2) does, to some degree, further Parliament's objective, but the rational connection between s. 319(2) and its goals is tenuous as there is not a strong and evident connection between the criminalization of hate propaganda and its suppression

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Section 319(2) may in fact detract from the objectives it is designed to promote by deterring legitimate expression o Not only is the category of speech caught by s. 319(2) defined broadly, the application of the definition of offending speech (i.e., the circumstances in which the offending statements are prohibited) is virtually unlimited o Only private conversations are exempt from state scrutiny. At the same time, it is unclear that this section provides an effective way of curbing hate-mongers, who may gain media attention and

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sympathy by going through this criminal process Section 319(3)(a) of the Code infringes s. 11(d) of the Charter and does not constitute a reasonable limit upon the right to be presumed innocent It is difficult to discern a rational connection between the aims of this section and its requirement that the accused prove the truth of his statements Further, s. 319(3)(a) does not impair s. 11(d) as little as possible o Because of its superior resources, the state is in a better position

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than the accused to determine whether or not a statement is true or false Parliament intended the truth to be a defence and falsehood to be an important element of the offence created by s. 319(2) o That fact, coupled with the centrality of the presumption of innocence in our criminal law, indicates that only a countervailing state interest of the most compelling kind could justify the infringement It is difficult to see what benefits s. 319(2) in fact produces in terms of

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stemming hate propaganda and promoting social harmony and individual dignity R. v. Zundel SCC (1992), 75 CCC (3d) 449 Facts The accused was convicted under s.181 of the Criminal Code for publishing material denying the holocaust He was convicted but the Ontario Ca allowed his appeal in part because

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of matters of jury selection He was convicted in his second trial and appealed to the SCC Issue: Was the propagation of fail information constitutional? Holding: No; appeal allowed McLachlin J Section 181 of the Code infringes the guarantee of freedom of expression This extends to the protection of minority beliefs which the majority

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regards as wrong or false Given the broad, purposive interpretation of the freedom of expression guaranteed by s. 2(b), those who deliberately publish falsehoods are not, for that reason alone, precluded from claiming the benefit of the constitutional guarantees of free speech Section 181 of the Code is not justifiable under s. 1 of the Charter While s. 181 may be capable of serving legitimate purposes, Parliament

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has identified no social problem, much less one of pressing concern, justifying it The provision originally focused on the prevention of deliberate slanderous statements against the nobles of the realm to preserve political harmony in the state o To suggest now that its objective is to combat hate propaganda or racism is to go beyond its history and its wording and to adopt the "shifting purpose" analysis this Court has rejected Justification under s. 1 requires more than the general goal of

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protection from harm common to all criminal legislation; it requires a specific purpose so pressing and substantial as to be capable of overriding the Charter's guarantees Even if the Court were to attribute to s. 181 a legitimate objective, it would still fail to meet the proportionality test which prevailed in Keegstra First, assuming a rational link between s. 181 and the objective of social harmony, the section is too broad and more invasive than necessary to achieve that aim

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The range of expression potentially caught by the vague and broad wording of s. 181 extends to virtually all controversial statements of apparent fact which might be argued to be false and likely to do some mischief to some public interest, regardless of whether they promote the values underlying s. 2(b) There is thus a danger that s. 181 may have a chilling effect on minority groups or individuals, restraining them from saying what they would like for fear that they might be prosecuted Second, when the objective of s. 181 is balanced against its potential

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invasive reach, the limitation of freedom of expression is disproportionate to the objective envisaged Cory and Iacobucci JJ (dissenting) The deliberate publication of statements known to be false, which convey meaning in a non-violent form, falls within the scope of s. 2(b) of the Charter. Section 181 of the Code is justifiable under s. 1 of the Charter

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Parliament's objective of preventing the harm caused by the wilful publication of injurious lies is sufficiently pressing and substantial to justify a limited restriction on freedom of expression This specific objective in turn promotes the public interest in furthering racial, religious and social tolerance.

Section 181 of the Code is an acceptably proportional response to Parliament's objective There is a rational connection between the suppression of the

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publication of deliberate and injurious lies and Parliament's objective of protecting society from the harms caused by calculated falsehoods and thereby promoting the security and safety of the community S. 181 does not unduly infringe the right of freedom of expression The prohibition of the wilful publication of what are known to be deliberate lies is proportional to the importance of protecting the public interest in preventing the harms caused by false speech and thereby promoting racial and social tolerance in a multicultural democracy o Section 181, at best, limits only that expression which is

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peripheral to the core values protected by s. 2(b) of the Charter o The falsehoods of the type caught by s. 181 serve only to hinder and detract from democratic debate o The section is narrowly defined in order to minimally impair s. 2(b). It also provides maximum protection for the accused

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Conduct or Actus Reus Roach Ch. 5 and Lecture Notes Introduction Criminal liability can only exists when there is a valid definition of criminal wrongdoing This affirmation can be justified, at least in part, to the principle of legality o This excludes the retroactive application of the law and the enforcement of offences that impermissibly vague or overly broad

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Most crimes require both actus reus and mens rea in order to give rise to criminal liability In cases of absolute liability, an actus reus could be enough to constitute a crime Actus non facit reum nisi mens sit rea (there can be no culpable act unless it is performed with a culpable mental state)

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The corollary, is that criminal liability cannot arise unless a guilty mind expresses itself in the performance of a prohibited act Lord Mansfield: So long as an act rests in bare intention, it is not punishable by our laws Nevertheless in some cases a criminal offence may be undertaken in some way but not completed, but this is sufficient to give rise to criminal liability o E.g. Inchoate offences, notably, attempt, incitement and conspiracy

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Even in inchoate offence, or the attempt to commit a crime, there has to be some positive act that would give rise to criminal liability Criminal thoughts are not punishable

Voluntariness

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Criminal liability cannot be attributed to a person unless that person is responsible for her act Responsible agency not only requires that the person performed the act, but that she did so voluntarily R. v. Ruzic SCC, [2001] 1 SCR 687 Lebel J Even before the advent of the Charter it become a basic concern that criminal

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responsibility be ascribed only to acts that are the product of a conscious mind and an autonomous Only those acting on knowledge of what they are doing and with the freedom to choose will bear the burden of criminal liability

Dickson J stated in R. v. Rabey (1980) that the absence of volition is a defence to a crime

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This principle enjoys constitutional status, as it would infringe s.7 of the Charter to convict an accused who is not acting voluntary, as a fundamental aspect of the actus reus would be absent

What underpins the conception of voluntariness is the critical importance of autonomy in the attribution of criminal liability Grounded in the idea that a criminal act must be both voluntary and

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intentional Also the assumption of rationality, in that criminal liability should only be borne by those who can reason right from wrong

Punishing a person whose actions are involuntary in the physical sense is unjust as it conflicts with the assumption that individuals are autonomous and freely choosing agents

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It is similarly unjust punish someone who acted in a morally involuntary fashion To do otherwise would violate the principle of fundamental justice enshrined in s.7 of the Charter

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Physical involuntariness can include a wide range of conduct including reflexive action, sleepwalking or accident The essential characteristic is the conscious control of the action, though it is not enough to establish voluntariness Voluntariness will be established if a persons conduct is the product of conscious choice There is then some mental element in the actus reus, though this is distinguishable from elements such as fault, knowledge or recklessness

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Contemporaneity For offences that require fault, an offence cannot be proved unless the element of fault and the actus reus coincide Fowler v. Padget: it is a principle of natural justice that actus non facit reum nisi mens sit rea. The intent and the act must concur to constitute the crime

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Fagan v. Commissioner of Metropolitan Police, [1969] 1 Q.B. 439 Facts The accused was convicted of assaulting a policemen While he was reversing on a street, he was stopped by the police officer and asked to park on the curve of the street at a spot which the police officer indicated In doing so he stopped on the officers left foot and only moved the car once he restarted the engine, even though he had been warned by the

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police to get off his foot The justices at the appeal court were unsure on whether the accused had parked the car on the officers foot on purpose or accidentally, but were satisfied beyond a reasonable doubt that he knowingly and unnecessarily allowed the wheel to remain on the officers foot The accused contends that the act of the wheel being on the officers foot came to an end without there being any mens rea and that the omission to remove the wheel from the foot did not meet an actus reus which could constitute assault

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o The prosecution argues that the original mounting of the wheel on the foot constituted an actus reus which continued until the wheel was removed, and thus coincided with the mens rea of the accused Issue: Did the actus reus and the mens rea coincide so as to constitute assault? Holding: Yes; the appeal was dismissed James J

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Where an assault involves battery it doesnt matter if the offender direct inflict harm over the body of another or through the medium of some weapon or instrument There is no difference in principle between the action of stepping on to a persons toe and maintaining that position, and driving a car into a persons foot

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To constitute an assault some intentional act must have been performed: a mere omission to act cannot amount to an assault

Te question rests on whether the act of the accused came to an end when the wheel came to rest on the foot of the officer, or when it was finally removed A distinction must be drawn with acts which are complete though

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results may continue to flow and acts which are continuing If the act is complete, it cannot be said to be a threat to inflict harm upon the victim

For an assault to be committed, both the elements of mens rea and actus reus must be present at the same time

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It is not necessary that the mens rea be present at the inception of the actus reus On the other hand, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault

The accuseds inaction to remove the car from the officers foot cannot be

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regarded as mere omission or inactivity There was an act constituting battery, that although not criminal at its inception, became criminal from the moment the intention was formed

Bridge J (dissented), not on the legal principles stated, but their application to the case at hand

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After the wheel came onto the officers foot by accident, there was nothing that could constitute assault. The car just rested on the officers foot by its own weight and its own inertia The accuseds fault was that he omitted to manipulate the controls to set the car in motion

Comments Omissions can only give rise to criminal liability when there is a common law requirement or it arises by statute

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A continuous act with both elements of crime will give rise to criminal liability

R. v. Miller, [1982] 2 All E.R. 386 Facts While squatting in someones house, the accused lit a cigarette and placed it on the mattress He then fell asleep and woke up to see the mattress flaming

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He did nothing about it but merely moved to another room and continued sleeping The house caught fire and the accused was rescued and charged with arson Issue: Did the actus reus and the mens rea coincide so as to constitute arson? Holding: Yes; the appeal was dismissed A further appeal to the House of Lords was also dismissed

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May L.J. An unintentional act, followed by an intentional omission to rectify that act or its consequences, can be regarded in toto as an intentional act Each case, however, will depend on the facts, and it is to the discretion of the judge to properly instruct the jury Setting the mattress on fire and moving to the adjoining room could be

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regarded as one same act, and his failure with knowledge to extinguish the fire had a substantial element of adoption on his part of what he had unintentionally done earlier

A further appeal to the House of Lords was also dismissed Lord Diplock said the following on this matter There is no reason to exclude from conduct giving rise to criminal

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liability, conduct which consist on failing to take measures that lie within ones power to counteract a danger that one has oneself created This is provided that at the moment of awareness, it lies within ones power to take steps or to call for help to minimize the damage caused by ones previous act

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Note on R. v. Cooper, (1993) 78 CCC (3d) 289 (SCC) Facts The accused was charged with murder by manual strangulation and convicted He testified that he became angry with the deceased and grabbed her by the throat and shook her He remembered nothing thereafter until he woke up in his car with the deceased besides him He had consumed a considerable amount of alcohol

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The trial judge directed to the jury that once the accused had formed the intent to cause the decease harm, which he knew was likely to cause her death, he need not be aware of what he was doing when she actually died The CA ordered a new trial but the SCC restored the conviction Cory J It is not always necessary for the guilt and the intent to be completely

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concurrent

He then quoted some general rules in the jurisprudence It is not necessary that the mens rea be present at the inception of the actus reus; it can be superimposed on an existing act At some point the mens rea and actus reus must coincide

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An act which may be innocent can become criminal at a later stage when the accused becomes knowledgeable of the act and still refuses to change her course of action

The determination of whether the mens rea coincides with the wrongful act will depend to a large extent on the act itself

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Since the death occurred between 30 second and 2 minutes after he grabbed the victim by the neck, there was a necessary coincidence between the wrongful act and the intent to do bodily harm to the victim

Lamer CJC (dissenting) It is at the point when the wrongful conduct becomes likely to cause death that the accused must have a conscious awareness of the

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likelihood of death Comments The case quotes Meli v. The Queen, which describes the criminal liability imposed on a man who beat a person until he thought the deceased was dead and then threw him of a cliff o While the deceased died from exposure to the elements after lying at the bottom of the cliff, the Privy Council that the entire episode was one continuous transaction

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While no clear statement has been made that contemporaneity enjoys a constitutional status, to the extent that the Charter requires proof of fault for criminal liability, it is implicit that such fault must coincide with the element of voluntary conduct Action, Inaction and Status

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A) Action Most offences require proof of some positive act There are consequences in which doing nothing can constitute prohibited acts, but that is understood as an omission Parliament has provided definitions in an attempt to clarify what is meant by specific terms used in the definition of prohibited conduct

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B) Inaction (Omissions) As a general proposition, doing nothing does not give rise to criminal liability For inaction to become criminal, it has to be identified by Parliament as sufficiently harmful to merit criminalization or the law otherwise impose a duty of positive action and crimoinal sanction for failure to fulfil that duty

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Liability for omission is thus exceptional Nevertheless, there is considerable scope for liability based upon omissions to arise, most notable in the definition of criminal negligence and duty as per s.219 of the Criminal Code s. 219 Criminal Code (1) Every one is criminally negligent who (a) in doing anything, or

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(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Definition of duty (2) For the purposes of this section, "duty" means a duty imposed by law. This imposes a duty by law

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Without a duty you cannot be held morally liable

S.2 of the Quebec Charter does imposes a duty to rescue Its consequences would be far reaching if it created criminal duties on individuals An interesting question is whether non-compliance with this provincial enactment could support a prosecution for manslaughter s. 2 Quebec Charter of Human Rights and Freedoms

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Right to assitance Every human being whose life is in peril has a right to assistance. Aiding person whose life is in peril. Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or

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he has another valid reason. There is a further question concerning the scope of liability for omissions that constitute breach of legal duty Legal duties can be statutory or recognized at common law o At common law they can be found in law relating to extracontractual liability and elsewhere

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Moore v. The Queen SCC, [1979] 1 SCR 195 Facts The accused went through an intersection against a red light on his bicycle A peace officer observed the infraction, stopped the accused and asked for identification. The accused refused to give his name and address He was charged with unlawfully and wilfully obstructing a peace officer in the execution of his duty, contrary to s. 118 of the Criminal Code At trial, the trial judge directed the jury that there was no evidence of

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obstruction of the police officer and the jury, accordingly, returned a verdict of acquittal On appeal by the Crown, this verdict was reversed and a new trial directed Issue: Was the accuseds refusal to provide identification grounds for obstruction? Holding: Yes; the appeal was dismissed. Spence J

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With regards to s.58 of the Motor-vehicle Act, which states that persons driving a motor are required to provide identification, it is clear that a bicycle is neither a "motor-vehicle" nor a "vehicle" of any kind under the provisions of the aforesaid definition A bicycle is plainly not self-propelled and, therefore, cannot be a "motor-vehicle" and it is a device designed to be moved by human power and, therefore, it cannot be a "vehicle" at all

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Nevertheless, the cyclist could be held guilty of an offence when he proceeded into the intersection when facing a red traffic light A "cycle", defined as a device having any number of wheels that is propelled by human power and on which a person may ride is subject, according to the provisions of s. 173(1) to the same duties as the driver of a vehicle

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As per the provisions of the Criminal Code as to summary convictions, the officer could only have arrested the appellant for the summary conviction offence of proceeding against a red light if it were necessary to establish his identity The constable, therefore, in requesting the appellant to identify himself, was carrying out the duty of enforcing the law by attempting to identify

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the accused person so that he might proceed to issue a ticket

Accordingly, the officer was under a duty to attempt to identify this wrong-doer and the failure to identify himself by the wrong-doer did constitute an obstruction of the police officer in the performance of his duty

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Neither the provisions of the Bill of Rights nor the topic of individual freedom generally were applicable in this case There is not even minimal interference with any freedom of a citizen who is seen committing an infraction by a police constable is the constable is simply requesting his name and address without any attempt to obtain from that person any admission of fault or any comment whatsoever

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Dickson J (dissenting) Any duty to identify oneself must be found in either common law or statute A person is not guilty of the offence of obstructing a police officer merely by doing nothing, unless there is a legal duty to act Omission to act in a particular way will give rise to criminal

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liability only where a duty to act arises at common law or is imposed by statute There was no statutory duty on a cyclist caught committing a traffic infraction to divulge his name and address While, as held by the majority, the constable could have arrested the accused for the offence of proceeding against a red light if it were necessary to establish his identity, it was not accepted that as a consequence the accused

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was guilty of the further, and much more serious, offence of obstructing the constable in the performance of his duties by refusing to divulge his name and address There is no duty at common law to identify oneself to police, and the refusal to so identify oneself cannot constitute obstruction of the police A person cannot "obstruct" by refusing to answer a question unless he is under a legal duty to answer

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The argument that because a duty rested upon constables to investigate crime and enforce provincial laws, an "implied" or "reciprocal" duty rested upon a person to give his name and address, and refusal to do so amounted to such frustration as to constitute the offence of obstructing the police in the execution of their duty was rejected Only if the police have a lawful claim to demand that a person identify himself, does the person have a corresponding duty to do so Lecture Notes

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Since the bicycle is not a motor-vehicle, this is the reason why the statutory duty does not apply However, since cyclists are given the same rights as individuals it was interpreted that they had the same obligation to produce their documents of identification to police officers, as per the majority R. v. Thornton, Ontario CA (1991) 3 CR (4th) 381 Facts

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The accused had HIV and had knowledge that he was a member of a group which was highly at risk of contracting AIDS He donated blood knowing that AIDS could be transmitted through a blood transfusion The Red Cross's screening process detected the contaminated blood and it was put aside He was charged with an offence contrary to s. 176(1)(a) (now s. 180(2) (a)) of the Criminal Code (common nuisance) and convicted Issues: 1. Did the accuseds actions amount to an offence known to law? 2.

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Did the donation by the appellant of HIV-contaminated blood endanger the lives or health of the public? 3. Did the accused have the mens rea necessary to have found a conviction? Holding: 1. Yes 2. Yes 3. Yes; Galligan JA the appeal was dismissed

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1. Section 180(2)(a) provides that a common nuisance is committed by either the doing of an unlawful act or the failure to discharge a legal duty which endangers the lives or health of the public. On the assumption, therefore, that the appellant's conduct could not constitute an "unlawful act" I will examine whether it amounted to a failure to discharge a "legal duty".

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There are no provisions in the Code or any other statute which impose a legal duty upon a person to refrain from donating contaminated blood Can a "legal duty" within the meaning of s. 180(2) be one which arises at common law or must it be one found in a statute? There are no cases deciding whether the "legal duty" in s. 180(2) must be a duty imposed by statute or whether it can be a duty according to common law

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However, the "duty imposed by law" which forms part of the definition of criminal negligence set out in s. 219 of the Code has been held to be either a duty imposed by statute or a duty arising at common law While the words "legal duty" in s. 180(2) are not the same as a "duty imposed by law" used in s. 219, they have exactly the same meaning Thus the legal duty referred to in s. 180(2) is a duty which is imposed by statute or which arises at common law

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Since there is no duty imposed by law to prohibit the donation of contaminated blood, it becomes necessary, then, to decide whether at common law there is a duty which would prohibit the donating of blood known to be HIV-contaminated to the Red Cross. While this is not a civil case and the principles of tort law are not directly applicable to it, in such domain the common law has recognized a very fundamental duty, which can be summed up as being a duty to refrain from conduct which could cause injury to another person (which derives from the

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basic neighbour principle in Donoghue v. Stevenson) At the very least, however, it requires everyone to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons. Accepting, as I have said, that a "legal duty" within the meaning of that term in s. 180(2) includes a duty arising at common law, I think that the common law duty to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons is a "legal duty" within the meaning of that term in s. 180(2). Donating blood which one knows to be HIV-contaminated to an organization

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whose purpose is to make the blood available for transfusion to other persons clearly constitutes a breach of the common law duty to refrain from conduct which one foresees could cause serious harm to another person It is thus a failure to discharge a "legal duty" within the contemplation of s. 180(2) The indictment thus allege an offence known to law

I turn now to consider the appellant's second argument, namely, that it was

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not proved that the 2. There was ample evidence to show the magnitude of the risk to which the public was subjected by the conduct of the accused Section 180 requires that the conduct of a person "endanger" the lives or health of the public. It does not require actual injury or damage

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When the gravity of the potential harm is great, in this case "catastrophic", the public is endangered even where the risk of harm actually occurring is slight

3. It was contended that the offence requires proof that the appellant actually knew of the danger created by his action and that the trial judge erroneously applied an objective standard when he decided that the appellant had mens

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rea The trial judge clearly found that the appellant had personal knowledge of the consequences of his blood being passed to others He also admitted that he deliberately withheld from the Red Cross the information that he had tested positive for HIV antibodies There can be no doubt that this appellant had personal knowledge that he should not donate his blood, that it was possible for it to get through the testing screen and that it could cause serious damage to the life and

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health of members of the public Comments The case was appealed to the SCC and dismissed summarily o Lamer CJC recognized that the accused breached a duty of care imposed by s.216 of the Code o S.216 reads: Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable

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knowledge, skill and care in so doing. Canadian criminal law remains unsettled on the duties that might be invoked to establish liability for omissions As a matter of principle it seems that liability should be limited to instances in which Parliament has created a statutory duty C) Status

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In some cases, the actus reus consists essentially of status or some specific state of affairs Such offences are rare, however, because they come close to punishing a person for what she is Parliament considered but rejected the option to create offences of being a member of a criminal organization or a terrorist organization Instead, Parliament created an indictable offence of participation in the activities of such organizations

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See ss.83.18 and 476.11(1) R. v. Terrence SCC, [1983] 1 SCR 357 Facts The accused was a passenger in a stolen car and was charged with its possession contrary to s. 313 of the Criminal Code At trial, the accused testified that (1) that he had accepted an invitation from one of his friends to go for a ride in his "brother-in-law's car" and (2) that he did not know the car to be stolen property -- was not

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contradicted by any direct evidence The judge disbelieved him, however, and proceeded on the assumption that the respondent's knowledge of the stolen character of the vehicle was a proven fact and found him guilty The Court of Appeal quashed the conviction holding that some evidence of control on the accused's part was necessary to establish possession under s. 3(4)(b). This appeal is to determine whether the word "possession" used in s. 3(4)(b) of the Code imports control as essential

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element Issue: Was the accused guilty of possession of the stolen car by virtue of being in it and because of his association with the person who stole it? Holding: No; the appeal dismissed Ritchie J "Knowledge and consent", as essential elements of join possession, cannot

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exist without the co-existence of some measure of control over the subjectmatter If there is the power to consent there is equally the power to refuse and vice versa They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked

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The court agreed with the CA that a constituent and essential element of possession under s. 3(4)(b) of the Criminal Code is a measure of control on the part of the person deemed to be in possession

Consequences and Causation

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Many offences are described in a way in which they are complete on completion of the act or omission without regard to any specific consequence Many others include a specific element of causation Some offences must be closely scrutinized to ascertain whether they include an element of causation that requires proof or a particular consequence or result Homicide, for instance, requires proof that the act of the accused caused death

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Smithers v. The Queen SCC, [1978] 1 SCR 506 Facts The accused and the deceased were the leading players in two competing hockey teams During a game the accused was subjected to racial insults by the deceased and other members of the opposing team, and following an exchange of profanities the accused and deceased were both ejected from the game

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Outside, the accused caught with the deceased and kicked him in the abdomen causing death Medical evidence indicated that the deceased had died from asphyxia from aspiration of foreign materials due to vomiting and that the malfunction of the epiglottis was probably caused by the kick but could have resulted from fear The accused testified he had acted in self-defence but was convicted of

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manslaughter The accused appealed unsuccessfully to the CA

Issues: 1. Did the trial judge fail to delineate clearly the issue as to the cause of death of the deceased and to relate the evidence to that issue? 2. Did the CA err in holding that there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death?

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3. Did the charge to the jury on the matter of self-defence amount to misdirection? Holding: 1. No 2.No 3. No; the appeal was dismissed Dickson J 1. It is important to distinguish between causation as a question of fact and causation as a question of law The factual determination is whether A caused B

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The answer to the factual question can only come from the evidence of witnesses. It has nothing to do with intention, foresight or risk In certain types of homicide jurors need little help from medical experts o Expert evidence is admissible to establish factual cause, however In this case, the Crown had the burden of showing factual causation, that beyond a reasonable doubt the kick caused the death The trial judge did not err in failing to instruct the jury that in determining that issue they could consider only the medical evidence

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2.

The issue of causation is for the jury and not the experts The weight to be given to the evidence of the experts was entirely for the jury

There was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the minimis range, and that is all that the Crown was required

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to establish There are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide In the case of so-called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least The Crown was under no burden of proving intention to cause death or injury o The only intention necessary was that of delivering the kick to the

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deceased The Crown did not have to prove beyond a reasonable doubt that the kick caused both the vomiting and the aggravated condition of aspiration Once evidence had been led concerning the relationship between the kick and the vomiting, the contributing condition of a malfunctioning epiglottis would not prevent conviction for manslaughter Although causation in civil cases differs from that in a criminal case,

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the "thin skulled man" may appear in the criminal law as in the civil law The case of R. v. Nicholson will serve as an illustration. In that case, the accused dealt the deceased man two heavy blows whose heart was abnormally small o Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some way to the death

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3. Although undoubtedly much upset by the actions and language of the deceased during the first ten minutes of play, thereafter the appellant alone was the aggressor He relentlessly pursued the deceased some forty-five minutes later for the purpose of carrying out his threats The trial judge charged fully on self defence and in a manner which was not open to criticism

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Comments What distinguishes manslaughter from homicide is that the accused did not intend to bring about death The relevant thing here is whether the assault caused the death The question is then whether the assault caused the death o In answering this, the court looks at whether the assault contributed to the death of the accused Should factual causation contain an element for intentionality? o Not in the case of manslaughter

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In determining causation as a matter of law, we are dealing with whether or not to attach moral blameworthiness to the actions of a person

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R. v. Cribbin, Ontario CA (1994), 89 CCC (3d) 67 Facts The accused and another were charged with second degree murder o In the course of the trial the co-accused pleaded guilty to murder and following the trial, the accused was convicted of manslaughter The deceased met the accused at a bar. After the bar closed, the accused, the deceased, the co-accused and a woman went for a ride

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According to the accused, in response to an unwanted proposition by the deceased, the accused punched the deceased very hard in the face and kicked him in the leg o The co-accused then began to hit the deceased with a beer bottle and punched and kicked him repeatedly o The accused claimed that he tried to stop the co-accused but was unable to do so The medical evidence established that the beating led to unconsciousness

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o Although the injuries themselves were not life-threatening the deceased was left unconscious and he drowned in his own blood An appeal was dismissed by the CA Issues: 1. Did the trial judge misdirect the jury with respect to causation? 2. Is the common law definition of causation for manslaughter unconstitutionally vague and set such a low standard as to violate the principles of fundamental justice? Holding: 1. No 2.No ; the appeal was allowed on other grounds

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Arbour JA 1. The trial judge adequately instructed the jury with respect to causation The trial judge directed the jury that the accused could not be convicted as a principal if the Crown had failed to satisfy the jury beyond a reasonable doubt that the assault by the accused contributed to the

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death of the deceased The trial judge was not required to instruct the jury that they could convict only if they found the accused's assaults substantially contributed to the victim's death Any unlawful act which is a contributing cause of death outside the de minimis range is sufficient to engage criminal responsibility for manslaughter o An action of objective foreseeability of bodily harm which is not trivial nor transitory

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In this case, it was unnecessary to burden the jury with distinctions between intervening and supervening causes capable or not, in law, of interrupting the chain of causation The question of intervening cause would only arise if the jury were to conclude that the accused and the co-accused were truly independent actors The accused's own assaultive acts need not have been the medical cause of

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death On the facts of this case it could not be said that the acts of the coaccused operated as a supervening cause such as to insulate the accused from the legal consequences flowing from the death 2. The common law test for causation requiring an unlawful act which is at least a contributing cause of death outside the de minimis range

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does not set such a low standard as to infringe upon the principles of fundamental justice in s. 7 of the Charter nor is the standard so vague as to be unconstitutional The test is sufficiently precise to provide guidance to legal debate The de minimis test is not too remote to engage criminal responsibility for homicide The law of causation must be considered to be a principle of fundamental justice akin to the doctrine of mens rea

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Like the fault doctrine, causation is embodied in the same principle of fundamental justice and it requires that the law should refrain from holding a person criminally responsible for consequences that should not be attributed to him or her Causation in criminal law is not merely an explanation for the unfolding of events but is a way of making people account for their contribution to the result

The accused can only be convicted of manslaughter if he also has the requisite

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fault in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory Both causation and the fault element must be proved beyond a reasonable doubt Combined in that way, both requirements satisfy the principles of fundamental justice. Any risk the de minimis test could engage the criminal responsibility of the morally innocent is removed by the additional requirement of objective foresight Comments

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The appeal was nevertheless allowed and a new trial ordered because The trial judge misdirected the jury as to the accused's liability as a party to murder R. v. Harbottle requires that the assault that an assault be a substantial cause of death. This is the standard for murder The factual question of causation does not vary between murder and manslaughter, it is the intention to cause death or not o It is interesting here how the mens rea shapes the actus reus The evidentiary burden will vary significantly in these two cases

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R. v. Nette SCC (2001), 158 CCC (3d) 486 Facts A 95-year-old woman was robbed and left bound with electrical wire on her bed with a garment around her head and neck Sometime during the next 48 hours, she died from asphyxiation as shown by the only medical evidence adduced at trial During an RCMP undercover operation, the accused told a police officer

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that he had been involved in the robbery and death and was charged with first degree murder under s. 231(5) of the Criminal Code -- murder while committing the offence of unlawful confinement -- and tried before a judge and jury At trial, he claimed that he had fabricated the admission. He testified that he had gone alone to the victim's house only with intent to break and enter and that he left after finding the victim already dead in her bedroom The trial judge charged the jury on manslaughter, second degree

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murder and first degree murder under s. 231(5) of the Code The jury found the accused guilty of second degree murder and the CA upheld that verdict Issue: What should be the test of causation applicable to second degree murder? Holding: a significant contributing cause of death; the appeal was dismissed L'Heureux-Dub J. (concurring in the result) The test for causation for culpable homicide set out in Smithers should not be

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changed from "a contributing cause of death, outside the de minimis range" into "a significant contributing cause" The current language is the correct formulation and should be used to express the standard of causation to the jury for all homicide offences To avoid a Latin expression, an appropriate version would be "a contributing cause [of death] that is not trivial or insignificant" A "significant contributing cause" standard calls for a more direct causal relationship than the "not insignificant" or "not trivial" test, thus raising the

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threshold of causation for culpable homicide from where it currently stands Arbour J (majority) Responsibility for causing a result must be determined both in fact and in law Factual causation concerns how the victim came to death in a medical, mechanical, or physical sense and the accused's contribution Legal causation concerns the accused's responsibility in law and is informed by legal considerations such as the wording of the offence and

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principles of interpretation o These considerations reflect fundamental principles of criminal justice The inquiry to find legal causation can be expressed as determining whether the result can fairly be said to be imputable to the accused Although the jury does not engage in a two-part analysis of causation, the charge to the jury should convey the requisite degree of factual and legal causation

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It will rarely be necessary to charge the jury on the standard of causation if the requisite mental element for the offence exists because the mens rea requirement usually resolves concerns about causation Where a factual situation does not fall within a statutory rule of causation, the criminal common law applies The civil law of causation is of limited assistance in elucidating the criminal standard of causation

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It is not appropriate in jury charges to formulate a separate causation test for second degree murder The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. The standard, however, need not be expressed as "a contributing cause of death, outside the de minimis range" Latin expressions or the formulation of the test in the negative are not useful means of conveying an abstract idea o It is preferable to use positive terms such as "significant

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contributing cause" rather than "not a trivial cause" or "not insignificant" o Also, because causation issues are case-specific and fact-driven, trial judges should have discretion to choose terminology relevant to the circumstances of the case In the case of first degree murder under s. 231(5) of the Code, a jury must also consider the additional Harbottle "a substantial causation" standard but only after finding the accused guilty of murder

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This standard, which indicates a higher degree of legal causation, comes into play at the stage of deciding whether the accused's degree of blameworthiness warrants the increased penalty and stigma of first degree murder

The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal conclusion that there were multiple operative causes of death In a homicide trial, the question is not who or what caused the

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victim's death but whether the accused caused the death It will be significant, and exculpatory, if independent factors, occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the prohibited result

The trial judge accurately stated the correct standard of causation for second degree murder In relation to the charge of first degree murder under s. 231(5) of the Code, it was necessary for the trial judge to instruct the jury in

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accordance with Harbottle Whatever the jury's reasons for acquitting the accused of first degree murder, the jury's verdict of second degree murder is unimpeachable Comments The accused is charged with second degree murder and not manslaughter because the death was brought about in the course of confinement There seems to be a blurring of the line between the Harbottle and the Smithers test

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It might be that the SCC felt that the standard had to be expressed in more strict words in order to uphold principles of fundamental justice

When there are multiple causes to a crime, the prosecution must prove that the conduct of the accused contributed to the result within the defined standard of causation The standard set in Smithers is comparatively low

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The following two cases are concerned with intervening causes They are much more complex issues that the other causation cases Intervening causes break the chain of causation R. v. Menezes, Ontario Superior Court of Justice (2002), 50 CR (5th) 343 Facts Menezes incited the deceased (Meuszynski) into a car race Several witnesses testified to the cars' excessive speeds

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Meuszynski came to a curve in the road, lost control, and was killed when his vehicle went into a lamppost Menezes admitted to dangerous driving, but denied that he was racing and that he caused Meuszynski's death The Crown argued that because Menezes was a co-participant in a dangerous activity that could foreseeably result in death, he should be liable for criminal negligence causing death while operating a motor vehicle Issue: Was the accused causally liable for the death of the deceased?

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Holding: No; he was found guilty instead of dangerous driving Hill J A determination of causation requires a finding that the accused caused the death of another both in fact and in law Factual causation is concerned with an inquiry as to how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result

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Was the conduct of the accused a significant contributing cause of the prohibited consequence? Where there are multiple operative, independent, and significant contributing causes, competing causes need not be sorted out by the trier of fact in an effort to identify a predominant cause?

The legal causation inquiry concerns itself with the question of whether the accused should be held criminally responsible in law for the death that occurred.

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The starting point in the chain of causation is usually an unlawful act in itself When the commission of the unlawful act is with the relevant mental element for the crime charged, causation is generally not an issue The causation inquiry, other than in sentencing, is generally unconcerned with contributory negligence As well, a wrongdoer cannot escape the thinskull rule In examining the traceable origin of the chain of events causing death, remoteness may become an issue

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o If the act of the accused is too remote to have caused the result alleged, causation is not established Likewise, if the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused from any responsibility for the consequence o An intervening act terminating the causal chain of events may be the withdrawal or abandonment by the accused of involvement in the dangerous enterprise

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In my view, there is no reason rooted in law or policy not to identify the same degree of moral blameworthiness in the surviving racer when it is the driver of the second vehicle, and not the passenger therein, who loses his or her life or is injured There is one danger. Each driver bears equal responsibility for its continued lifespan subject to withdrawal or intervening event o As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created

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o The consequence was, in legal contemplation, as a result of the act of both Did the accused cause the deceaseds death? The more prolonged the course of racing, the greater the burden on the individual quitting the venture to alert his or her co-participant of that decision in order to escape continued liability for any reasonably foreseeable consequence of the second racer's ongoing conduct The judge concluded that about half a mile before the crash site,

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Menezes slowed down for an underpass and a curve in the road. He found that given the race situation, Meuszynski would have been aware that Menezes had slowed down This amounted to an intervening event in which Menezes withdrew from the race, and was no longer liable for the consequences if Meuszynski chose to continue with the dangerous activity for his own purposes, which he did The deceased, as an independent agent then chose to maintain excessive speed for motives unrelated to the accused

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His death was a result of his independent actions Comments Dangerous driving is a crime of conduct, but the element of death adds the complex issues of causation into the matter In assessing whether to charge the accused, the court is not merely looking at issues of whether the accused is morally blameworthy, but also issues of public policy and deterring unlawful acts such as dangerous driving o Because you are already engaged in an unlawful act, you should

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be responsible for the consequences of that action o That is why the court makes the parallel between a passenger in the car and the driver of another car also engaged in a race Here the chain of causation was broken by an intervening event o There was no longer a link with engaging the other person in the race and continuing it to a point that it led to the victims death

R. v. Reid & Stratton, Nova Scotia CA (2003), 180 CCC (3d) 151

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Facts The accused were charged with manslaughter. They were out with others drinking on the night that the victim was killed After the bars closed, the accused, the victim and others ended up at a nearby house A fight broke out which involved the two accused individuals and the victim Both Stratton and the victim fell to the ground. He grabbed the victim around the neck in a headlock and Reid kicked the victim a few times

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between his shoulders and hips It soon became apparent that the victim was unconscious Others administered CPR to the victim and he was pronounced dead at the hospital The failed attempts at CPR were the sole cause of the victim's death The attempts to resuscitate the victim caused him to aspirate his stomach contents Both accused were convicted and the trial judge imposed conditional sentences of imprisonment on each accused

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Issue: Were the accused individuals criminally liable for the death of the deceased? Holding: No; the appeal was allowed and a new trial ordered Saunders JA The trial judge erred in his instructions to the jury on causation While he identified the correct test of causation as being a "significant contributing cause", the trial judge failed to provide any instructions to

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the jury on the issue of the intervening act or cause of the CPR efforts Intervening cause cases are a unique category of causation cases requiring a clear and specific instruction with respect to intervening events It was critical for the jury to understand their obligation to consider whether or not any independent, intervening and therefore exculpatory factors occurred after the accused's acts, thereby severing the chain of causation

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It was open to the jury to conclude, based on the expert evidence, that if the victim had been left alone when he was rendered unconscious, he may well have returned to consciousness on his own The trial judge ought to have given the jury examples of what the law would recognize as legitimate intervening events The question for the jury was whether the initial injury could still be viewed as a significant contributing cause The trial judge should have focused the jury on whether the accused

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were significantly causally linked up until the time of death or whether some other act interrupted the chain of causation Comments The cause of death here was the CPR that unintentionally led to the aspiration of vomit The assault was not the cause of death o There was an intervening event that broke the chain of causation The administration of CPR could not qualify as assault as there was no intention to do harm

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Summary of issues related to actus reus The element of voluntariness Contemporaneity between the mens rea and the actus reus o At some point there must be a coincidence between the both In dealing with causation, in the case of manslaughter there must be an element of contribution to death beyond a de minimis range

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Generally speaking, it is much easier to establish the actus reus as a positive act, rather than what was happening in the mind of the accused

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Mens Rea Presumption of Innocence The burden on the Crown to prove beyond a reasonable doubt that an accused is guilty is one of the most important safeguards in the criminal justice system Woolmington v. D.P.P. , House of Lords [1935] AC 462 Facts

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The accused was charged with the murder of his wife and sentenced to death Shortly after the birth of a child there appeared to be some disputes between the spouses and she went to live with her mother An eye witness account put him on the scene and alleged to have heard them fighting before a gunshot was heard o He claims to have brought to gun to speak to his wife and tell her that if she didnt return home with him he would commit suicide. She then grabbed the gun and it went off killing her in a purely

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accidental manner When charged and arrested he said to the police I want to say nothing, except that I done it... it was jealousy I suppose... In summing up the case to the jury the judge said that if they find that she died as a consequence of the gun brought by the accused and they are satisfied by the Crown beyond a reasonable doubt that she died at the prisoners hands he is guilty o He then added that if they were satisfied of this, then it is up to him to show that there were circumstances that alleviated the

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crime so that it was manslaughter or purely an accident o This instructions suggested that once the actus reus was proved, there was a presumption of malice He appealed arguing that the judge had misdirected the jury by telling them that in the circumstances of the case he was presumed guilty His appeal was dismissed finding that no substantial miscarriage of justice was committed even though they might have ruled in favour of the appellant Issue: Did the judges instruction contravene the presumption of innocence?

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Holding: Yes; the appeal was allowed Viscount Sankey LC There is some apparent authority for the principle that once someones death has been proved to be the cause of another, there is a prima facie presumption of murder, unless the contrary appears from the evidence of the prosecution or the defence

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The question, however, is whether this is correct law Is it correct to say that it arises in a trial a situation at which the accused has to prove his innocence? What these passages mean is that if there is proof that the conscious act of a person killed someone else, and nothing else appears in the case, there is evidence upon which the jury may find the accused guilty this, however, does not mean that the onus is not still on the prosecution

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If at any point during the trial it was proper for the judge to conclude that the prosecution has met its burden of proof and that it was up to the accused to prove he was not guilty, this would go against the common law While the prosecution must prove guilt of the accused, there is no such burden laid on the accused The accused should have the benefit of the doubt, and it is enough for him to raise a doubt to his guilt In order to be acquitted the accused must not need to satisfy the jury

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The law in R. v. Davies state that where intent is an ingredient of the a crime, there is no onus on the defendant to prove the act alleged was accidental If by the end of the case there is reasonable doubt as to whether the accused killed the deceased with malicious intention, the prosecution has not made out the case and the defendant is entitled to an acquittal When dealing with murder, the Crown must prove:

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That the death was the result of the voluntary act of the accused Malice of the accused

When evidence of death and malice has been given (this is a question for the jury), the accused is entitled to show that the act was unintentional or provoked If the jury are either satisfied by the accuseds explanation or are left in reasonable doubt (even if his explanation is not accepted) that the act was unintentional or provoked, the

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accused must be acquitted Since it is not known whether a properly instructed jury would come to a different conclusion, the appeal must be allowed Constitutional Aspects of Fault Roach Ch. 7 Constitutional Considerations

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S.7 of the Charter has had a significant impact on both criminal and quasicriminal offences It has helped shape the fault requirements for true criminal offences o E.g. subjective foresight is required before an accused can be convicted of murder o In attempted murder and crimes against humanity, less than subjective fault will suffice for most criminal offences

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o As long as there is a meaningful fault requirement, s.7 of the Charter is satisfied In R. v. Durham, it was established that Parliament could use a civil standard of negligence of using a firearm in a careless manner In R. v. Finaly, the SCC agreed that the objective test satisfied the mens rea requirement for careless storage of firearms The same was the case of unlawfully causing bodily harm in R. v. DeSousa

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R. v. Peters established that subjective foresight of consequences was not necessary for the offence of wilfully setting fire to certain objects In R. v. Hundal, the SCC decided that subjective awareness of risk is not required for dangerous driving In R. v. Creighton, the SCC held that subjective foresight is not required for manslaughter but only reasonable foreseeability of bodily harm, as per the majority

R. v. Finta SCC (1994), 88 CCC (3d) 417

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Facts The accused was charged with crime against humanity as a result of his activities as a senior officer at a concentration camp in Hungary The trial judge held that the jury must determine that the accused was aware of the circumstances that would bring his actions within the definition of crimes against humanity The accused was acquitted Issue: Does the offence of war crime or crime against humanity involve a subjective foresight of such acts?

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Holding: Yes; the appeal was dismissed Cory J What distinguishes a crime against humanity from other criminal offences under the Criminal Code are the cruel and terrible actions which are elements of the offence, taken in pursuance of a policy of discrimination or persecution of an identifiable group or race

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With war crimes, the distinguishing feature is that the terrible actions constituted a violation of the laws of war

While the underlying offences of manslaughter, confinement or robbery may constitute a base level of moral culpability, Parliament has added a further measure of blameworthiness If the jury is not satisfied that this additional elements of culpability

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have been established beyond a reasonable doubt, they must acquit the accused of these charges

R. v. Vaillancourt established that certain crimes, because of the unavoidable penalties or degree of stigma attached to them, require a mental element of blameworthiness or mens rea reflecting the particular nature of the crime Because of the degree of moral turpitude attached to crimes

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against humanity or war crimes, it follows that the accused must be aware of the conditions which render her actions more blameworthy than the domestic offence o I.e. an elements of subjective knowledge on the part of the accused of the facts or circumstances which would bring the acts within the definition of crimes against humanity or war crimes o It is not necessary, however, for the accused know that her

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actions were inhumane This is grounded in the constitutional requirements of mens rea

La Forest (concurring) A mens rea need only be found in relation to the individually blameworthy elements of a war crime or crime against

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humanity, not every circumstances surrounding it The stigma attached to the conviction of this crimes does not come from the nature of these crimes, but the circumstances surrounding them

Comments A war crime or crime against humanity contains some elements of harm to the moral integrity. What distinguishes it from domestic crimes, is the underlying conditions that surround it You cannot add a higher level of blameworthiness to an action without

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including an added level of mens rea It is sufficient that Finta was aware of the underlying facts surrounding the crimes

Intention and Knowledge Intention and knowledge are the most important elements of a culpable state of mind

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An important issues is the difference between intention and knowledge Some crimes require that you specifically intend the consequences of the crime, while others simply require that the consequences are foreseeable The distinction between dolus specialis (specific/special intent) and dolus generalis (which involved knowledge that the consequences is a possibility) This is particularly important to the distinction that the SCC makes between true crimes and regulatory (or welfare offences)

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R. v. Lewis SCC (1979), 47 CCC (2d) 24 Facts The accused was charged with the murder of Ts daughter and son in law The victims received an electric kettle which contained a bomb The Crown argued that the accused either made the bomb and mailed it, or at least was aware of the bomb and mailed it Dickson CJ

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While intent and motive are often used interchangeably they had different meanings in criminal law Mens rea relates to intent (the exercise of a free will to produce a particular result) rather than motive (that which preceded and induces the exercise of the will)

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Accepting the terms motive in criminal law as meaning ulterior intention, leads to the formulation of some propositions As evidence, motive is always relevant, and evidence of motive is admissible Motive is not part of the crime, and it is legally irrelevant to criminal responsibility

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o It is not an essential element of the prosecutions case Proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of note in a charge to the jury Conversely, proved presence of motive may be an important factual ingredient in the Crowns case, notable in the issue of identity and intention, when the evidence is circumstantial Motive is always a matter of fact and evidence, and the necessity to

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referring to motive in the charge to the jury falls within the general duty of the judge Each case will turn on its unique circumstances. The issues of motive is always a matter of degree

The necessity to charge a jury on motive may be looked as a continuum

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Comments From the point of view of mens rea, motive and intent make no difference o Motive may be important for sentencing o It may also be relevant as an evidentiary matter, to prove identity of a perpetrator, etc R. v. Steane Court of Criminal Appeal, England, [1947] 1 KB 997

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Facts The accused was convicted of intent to assist the enemy by entering the service of a German Broadcasting System There was evidence from a witness that the accused had made a broadcast through this system The accused claimed that he had no idea or intention of helping the enemy, and that anything he did was to protect his wife and children who lived in Germany Issue: Was the jury properly instructed as to whether intent of the accused to

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commit the crime? Holding: No; the appeal was allowed and the conviction quashed Lord Goddard CJ Where a particular intent must be laid and charged, that intent has to be proved Duress is a matter of defence, where an accused is forced by fear of violence

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or imprisonment to do an act which in itself is criminal Before a question of duress arises, the jury must be satisfied that the accused had the intention laid in the indictment Duress is a matter of defence, and the onus rests on the accused Where an intent is charged on the indictment, the onus in on the Crown Another important matter is whether the accused, at the time he carried out these acts, was subjected to an enemy power When an act is done in subjection to the power of others, it is

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impossible to infer that she intended the natural consequences of such act just because she did it The guilty intent cannot be presumed and must be proved

The jury should have been properly instructed that it was up to the Crown to prove the intent and not for them to presume it if the act was carried out under the power of the enemy or under duress because of fear for the accuseds family They should convict if satisfied by the evidence that the act was in fact

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done to assist the enemy, and doubt on this matter would warrant an acquittal The trial judge also failed to remind the jury of the threats to which the accused swore to have been exposed to, even though it is up to the jury to decide to believe him or not Comments There is a difference between duress as negating mens rea and duress as a defence to a crime

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Hibbert v. The Queen SCC (1995), 99 CCC (3d) 193 Facts The accused was charged with attempted murder of a friend of his He testified that he was forced by the principal offender to accompany him to the victimss apartment and lure him down to the lobby o The accused then stood by while the principal offender shot the victim The trial judge told the jury that if the accused joined in the common plot to shoot the victim, under threats of death or grievous bodily harm,

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that would negate his having a common intention with the principal offender and he should be found not guilty o He added that the accused could not rely on the common law defence of duress if a safe avenue of escape existed, which was a matter for the jury to decide The accused was acquitted of the charge of attempted murder, but was convicted of the included offence of aggravated assault The Court of Appeal upheld the conviction Issue: Did the mens rea of this crime include the desire to commit the crime?

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Holding: No; the appeal was allowed and a new trial was ordered Lamer CJC The fact that a person commits a crime as a result of threats of death or bodily harm can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an offence Whether or not this is so will depend, among other things, on the

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structure of the particular offence in question - that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea Generally, a person who performs an action in response to a threat will know what she is doing and will be aware of the probable consequences Whether or not she desire these consequences depends on the

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circumstances While the existence of a threat will clearly have a bearing on the motive underlying the action, the circumstances will show whether the actor desired the particular consequences or not

The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress Section 21(1)(b), which imposes criminal liability as a party on anyone who "does or omits to do anything for the purpose of aiding any person

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to commit" an offence, does not require that the accused actively view the commission of the offence he is aiding as desirable in and of itself o Parliament's use of the term "purpose" in s. 21(1)(b) is essentially synonymous with "intention" and does not incorporate the notion of "desire" into the mental state for party liability o This interpretation, which best reflects the legislative intent, is in accord with the common law principles governing party liability, and avoids the absurdity that would flow from the equation of

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"purpose" with "desire" As well, under s. 21(2), which provides that "persons [who] form an intention in common to carry out an unlawful purpose and to assist each other therein" are liable for criminal offences committed by the principal that are foreseeable and probable consequences of "carrying out the common purpose", the accused's subjective view as to the desirability of the commission of the offence is not relevant o The expression "intention in common" in s. 21(2) means only that the party and the principal must have in mind the

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same unlawful purpose Comments Unlike special intention offences, desire is not part of the intention to commit this crime and hence the mens rea of the crime as laid by Parliament R. v. Buzzanga and Durocher Ontario Court of Appeal (1979), 49 CCC (2d) 369

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Facts The accused were charged with wilfully promoting hatred against Francophones contrary to s. 281.2(2) of the Criminal Code They were both sympathetic with the French community in which they lived and claim to have published the pamphlet in question to combat apathy in the French-speaking community in relation to the building of a French-language school Issue: Did the trial judge err in charging the jury as to the intention to wilfully promote hatred?

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Holding: Yes; the appeal was allowed and a new trial ordered Martin JA While the word "wilfully" may sometimes include recklessness as well as intention, in the context of s. 281.2(2) it means with the intention of promoting hatred, and does not include recklessness The general mens rea which is required where no mental element is mentioned in the definition of the crime is either the

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intentional or reckless bringing about of the result which the law seeks to prevent The insertion of the word "wilfully" in s. 281.2(2) was not necessary to import mens rea since that requirement would be implied in any event because of the serious nature of the offence It is reasonable to assume that Parliament intended to limit the offence under s. 281.2(2) to the intentional promotion of hatred

The issue in this case then was what mental attitude must be established to

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constitute an intention to promote hatred An accused's foresight that a consequence is highly probable, as opposed to substantially certain, is not the same as an intention to bring it about However, a person who foresees that a consequence is certain or substantially certain to result from an act that she does in order to achieve some other purpose intends that consequence In this case then the accused wilfully promoted hatred if (a) their conscious

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purpose in distributing the handbill was to promote hatred against the French Canadian community, or (b) they foresaw that the promotion of hatred against that group was morally certain to result from the distribution of the pamphlet, but distributed it as a means of achieving another purpose The trial Judge erred in holding that "wilfully" means only "intentional as opposed to accidental" and this error inevitably caused him to focus on the intentional nature of the accused's conduct rather than on the question whether they actually intended to produce the consequence of promoting

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hatred What the accused intended or foresaw must be determined on a consideration of all the circumstances, including their own evidence, as to what their state of mind or intention was The trial Judge also erred in equating their admitted intention to create controversy, furor or uproar with an intention to promote hatred R. v. Theroux SCC (1993), 79 CCC (3d) 449

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Facts The accused was convicted of fraud for accepting deposits from investors in a building project having told them that he had purchased deposit insurance when he had in fact not done so Issue: Did the accused possess the mens rea to commit fraud? Holding: Yes; the appeal was dismissed McLachlin J

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The mens rea of fraud is established by proof of subjective knowledge of the prohibited act, and by proof of subjective knowledge that the performance of the prohibited act could have as a consequence the deprivation of another In certain cases, the subjective knowledge of the risk of deprivation may be inferred from the act itself Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended

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the deprivation or was reckless as to whether it would occur The accused's belief that the conduct is not wrong or that no one will in the end be hurt affords no defence to a charge of fraud While the scope of the offence may encompass a broad range of dishonest commercial dealings, the proposed definition of mens rea will not catch conduct which does not warrant criminalization Only deliberate fraudulent acts which, in the knowledge of the

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accused, actually put the property of others at risk will constitute fraud The requirement of intentional fraudulent action excludes mere negligent misrepresentation, or sharp business practice Comments This case looks at actual knowledge of the offence, which is another element of the crime

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There seems to be then a continuum separating offences of dolus specialis from dolus generalis We can start at intention knowledge recklessness negligence mere commission of the actus reus (some regulatory offences) In looking at the ICTY cases, we see a more rule-oriented approach rather than a fact-driven one

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Canadas criminal code is a codification of jurisprudence, while these international statutes are much more rule-oriented and the tribunals base themselves largely on the letter of the law

Prosecutor v. Tadi, Case No. IT-94-1-A (1999) Facts Tadi was charged with crimes against humanity Some of the issues are whether crimes against humanity can be committed merely for personal reasons or whether they need to take

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place within the environment of an armed conflict, in relation to article 5 of the Statute of the International Tribunal Issue: Does the required mens rea for a crime against humanity preclude that it be carried out for personal motives? Holding: No Appeals Chamber

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There is nothing in art. 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives It may be inferred from the words "directed against any civilian population" in the article that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern o The court cites some international case law on this matter,

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including some jurisprudence which indicates that a crime against humanity can include a crime carried out against one individual There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons A further reason why this was not in issue is precisely because motive is generally irrelevant in criminal law o I.e. what matters is the intention o Motive is only important at the sentencing stage in mitigation or

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aggravation of the sentence The Prosecution is also right in asserting that at the words "committed in armed conflict" in art. 5 require nothing more than the existence of an armed conflict at the relevant time and place The armed conflict requirement is a jurisdictional element, not "a substantive element of the mens rea of crimes against humanity That phrase is unsound if it is taken to require proof of the accuseds

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motives, as distinct from the intent to commit the crime and the knowledge of the context into which the crime fits The Trial Chamber appears to have viewed the proposition that "the act must not be unrelated to the armed conflict" as being synonymous with the statement that the act must "not be done for the purely personal motives of the perpetrator" o These two concepts, neither of which is a prerequisite for criminal culpability under Art. 5 are, in any case, mutually exclusive Comments

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What makes the crimes included within crimes against humanity more worthy of moral blameworthiness is the context in which they take place o The actus reus can be a single murder, provided that it fits within the larger context o The knowledge of this comprises the mens rea

Prosecutor v. Jelisi, Case No. it-95-10-A (2001) Facts Jelisi was charged with genocide

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A first issue is whether the Trial Chamber limited the mens rea of genocide to the dolus specialis standard and if it was right in doing so Issues: 1. Is the requisite mental state for genocide limited to the dolus specialis standard? 2. Given the proper standard, was the evidence insufficient to find the accused guilty of genocide? Holding: 1. No 2. No; an retrial was not called for the sake of efficiency and

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other concerns Appeals Chamber 1. The Statute itself defines the intent required for genocide as: the intent to accomplish certain specified types of destruction. This intent has been referred to as, for example, special intent, specific intent, dolus specialis, particular intent and genocidal intent

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The specific intent requires that the perpetrator, by one of the prohibited acts enumerated in art. 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group As to proof, in the absence of direct explicit evidence , the specific intent can be inferred from a number of facts and circumstances, such as the general context , the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a

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particular group, or the repetition of destructive and discriminatory acts The existence of a plan or policy is not a legal ingredient of the crime o However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases

The Appeals Chamber further recalls the necessity to distinguish specific intent from motive The existence of a personal motive does not preclude the perpetrator

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from also having the specific intent to commit genocide, following the rule of Prosecutor v. Tadi The Trial Chamber did not apply a dolus specialis standard as the prosecution contends 2. [The Tadic principle applies only where the decision in question was one which

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the trier of fact was authorised to make; if, being authorised to make the decision, he makes it on the basis of material on which a reasonable trier of fact could have reached the same conclusion, his decision will not be overruled because another equally reasonable trier of fact would, on the same material, have reached a different but equally reasonable conclusion This, however, is not applicable to the case at bar] Having reviewed the evidence in the appeal record, the Appeals Chamber cannot validate the Trial Chambers conclusion that it was

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not sufficient to sustain a conviction (i.e. that no reasonable trier of fact could find the evidence sufficient to sustain a conviction, beyond reasonable doubt, for genocide) As to the first ingredient, the actus reus of genocide, the Trial Chamber found that the evidence was sufficient to sustain a conviction As to the second ingredient or the mens rea of the offence, the Trial Chamber acknowledged that the respondent performed the actus reus, in this case the murder of Muslims, with a discriminatory intent

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The Trial Chamber, however, then went on to find that, despite that discriminatory intent and the commission of acts within the definition of the actus reus of genocide, the respondent did not have the requisite intent to destroy in whole or in part the Muslim group from Brcko The Appeals Chamber considers that this evidence and much more of a similar genre in the record could have provided the basis for a reasonable Chamber to find beyond a reasonable doubt that the respondent had the intent to destroy the Muslim group in Brcko The proper lens through which the Appeals Chamber must view such

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evidence is not whether it is convinced that the respondent was guilty of genocide beyond reasonable doubt but whether, giving credence to such evidence, no reasonable Trial Chamber could have found that he had such an intent o The Appeals Chamber cannot come to the latter conclusion There is no per se inconsistency between a diagnosis of the kind of immature, narcissistic, disturbed personality on which the Trial Chamber relied and the ability to form an intent to destroy a particular protected group

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Displays of randomness did not negate the other evidence adduced as to the respondents announced intent to kill the majority of Muslims in Brcko Similarly, the fact that he took pleasure from the killings does not detract in any way from his intent to perform such killings (motive is irrelevant)

A retrial would be limited to the question of whether he possessed the special intent to destroy in whole or in part, a national, ethnical, racial or religious

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group, as such The Appeals Chamber, decided, however, for reasons of efficiency and practicality not to hold a retrial, which was within its discretion Comments The Trial Chamber had thrown out the case of genocide on its motion, and this is why the second issues is part of the appeal o The Trial Chamber had decided that he enjoyed the killings so as to not have the specific intent In the abstract the difference between genocide and crimes against

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humanity is that the former needs an intentionality requirement, though how much difference does it make in practice The case shows how easy it is to let motive creep into the concept of mens rea Motive can, however, be relevant from an evidentiary point of view to prove intent

Recklessness and Wilful Blindness

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There are two forms of subjective mens rea that are thought to be extensions of the core standards of intention or knowledge Recklessness is often seen as an extension of intention, while wilful blindness is seen as an extension of knowledge R. v. Sansregret SCC (1985), 18 CCC (3d) 223 Facts The accused was charged under s.143(b)(i) for sexually assaulting a victim, breaking into her home and terrorizing her

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The victim became compliant with the accused in order to ensure her own safety At trial the accused raised the defence of mistake of fact in consent Issue: What distinguishes recklessness and wilful blindness? McIntyre J Negligence, a civil creature, is often confused with recklessness, but they should not be mistaken Negligence is tested based on the reasonable person, whereas a

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departure from the behaviour associated with this reasonable person, will give rise to civil liability Recklessness, to form a part of mens rea, must have a subjective element This is found in the attitude of one who is aware that there is a danger, which could bring about criminal consequences, yet persists despite the risk The conduct of someone who sees the risk, yet takes the chance

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Recklessness is also different from wilful blindness While recklessness involves the knowledge of a danger followed by persistence, wilful blindness arises where a person who has become aware o the need of some inquiry declines to make the inquiry, because she does not want to know the truth The culpability in recklessness is justified by knowledge of the risk and proceeding in face of it, while it is justified in wilful blindness in deliberately failing to inquire when one knows there is reason for inquiry

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A wider doctrine of wilful blindness would make this doctrine indistinguishable from civil negligence Judges should guard against imposing a constructive test of knowledge when assessing wilful blindness, since this is not what it is about In the case at bar, the accused was wilfully blind, by blinding himself to the obvious and making no inquiries to the nature of the consent

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R. v. Duong Ontario CA (1998), 124 CCC (3d) 392 Facts The accused was charged with being an accessory after the fact to murder He allowed an individual wanted for murder to stay in his apartment The accused had heard about the killing though the media and the perpetrator had told the accused that he was in trouble for murder Issue: What the accused wilfully blind? Holding: Yes

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Doherty JA As per the wording of s. 23(1) of the Criminal Code, the Crown must prove that the accessory knew that the person to whom assistance was given was a party to the specific offence alleged Where the Crown chooses to charge someone with being an accessory after the fact to murder, it must prove that the accused had knowledge that the principal committed a murder,

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and cannot gain a conviction based on a more generalized knowledge that the principal committed a criminal offence Where the Crown proves the existence of a fact in issue and knowledge of that fact is a component of the fault requirement of the crime charged, wilful blindness as to the existence of that fact is sufficient to establish a culpable state of mind Liability turns on the decision not to inquire once real suspicions arise and not on the hypothetical result of inquiries which were never made

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Where an accused chooses to make no inquiries, preferring to remain deliberately ignorant, speculation as to what the accused would have learned had he chosen to make the necessary inquiries is irrelevant to the determination of the blameworthiness of the accused's state of mind

In the case at bar, the accused was wilfully blind, by blinding himself to the obvious and making no inquiries to the nature of the consent R. v. Cooper SCC (1993), 78 CCC (3d) 289

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Facts The accused was charged with being an accessory after the fact to murder He allowed an individual wanted for murder to stay in his apartment The accused had heard about the killing though the media and the perpetrator had told the accused that he was in trouble for murder Issue: What the accused wilfully blind? Holding: Appeal dismissed

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Cory J In a murder conviction, where the requisite mens rea is intention to bring about bodily harm of such a grave nature that the accused knew it was likely to result in death, the aspect of recklessness is almost an afterthought It can be considered an afterthought because to secure a murder conviction it must be already established that the accused had the intent to cause such grievous harm and that he knew it was likely to

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cause death o At this point the accused must have had a deliberate disregard for the fatal consequences which are know were likely to occur o The accused must be reckless whether death ensues or not The necessary intent for a murder conviction must have two elements: A subjective intent to cause bodily harm Subjective knowledge that the bodily harm is of a nature that will likely result in death

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Doctrine of Command Responsibility in International Law - Prosecutor v. Blaki, Case No. IT-95-14-A (29 July 2004), at paras. 53-85 Ingredients of command responsibility 1. Command and Control (superior-subordinate relation) o The essence is that there is relation of authority between the commander and subordinates

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o This is the basis for holding someone responsible for something in the absence of intention 2. Commander knew or had reason to know that his subordinates had committed or were about to commit War Crimes 3. Failure to prevent or punish the behaviour of the subordinates The key is the element of knowledge

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In assessing whether the commander was completely ignorant of the fact that crimes were about to be committed or had been committed, one may look into whether she knew or had reason to know o Yomashita Case: prosecution based on strict liability standard of knowledge issue if prosecuted on strict liability standard. Not in position to know what soldiers doing by time US there. Ppl criticize denies knowl element, uses strict liability. o Knew is assessed as actual knowledge o Had reason to know

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Is this the same as should have known? No, should have known is based in an objective standard and should not apply to a subjective foresight There will always need to prove that the was something that was known, even if it is just a risk which is persisted nonetheless (recklessness) or knowledge of a reason to be suspicious (wilful blindness) What about a commander who does not read her reports about what soldiers are doing in the field

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Negligence

There needs to be some minimal level of knowledge, a degree of suspicion which requires to make further inquiry At least knowledge of the risk or something that amasses suspicion; The standard that the commander was supposed to know what subordinates were doing is mere negligence

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Different from subjective foresight, as it is based on an objective standard The conduct of the accused is measured in relation to the standard of the reasonable person Does negligence have no mens rea? It has a minimum mes rea, which involved consciousness of the risk Negligence does not require a minimal departure from the conduct of the reasonable person, but a marked and significant departure

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o Civil negligence just requires a departure from the reasonable person, while criminal negligence requires a marked departure If you were to bring subjective foresight of a risk into negligence, it would begin to resemble recklessness or wilful blindness To make the objective test more sensible we particularize it What could be reasonably presumed was in the mind of the accused

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At what point, however, does this particularization lead to subjective foresight

Negligence, unlike strict liability offences, still requires proof beyond a reasonable doubt that the accused significantly and markedly departed from the conduct of the reasonable person Strict liability arises by proof beyond a reasonable doubt of the mere actus reus, yet nevertheless are subject to a defence of reasonable care based on a balance of probabilities

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R. v. Tutton and Tutton SCC (1989), 48 CCC (3d) 129 Facts The accused were parents of a five-year-old diabetic and convicted of manslaughter under s.205 of the Code (presently s.222) through criminal negligence under s.197 (now s.219) They believed in faith healing and because of their religious convictions failed to administer insulin to the child, who then died They raised the defence of an honest although mistaken belief in the

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existence of a circumstance which would render their conduct nonculpable The CA set aside the convictions and directed new trials Issue: What is the proper test to determine the mens rea of criminal negligence? Holding: Appeal dismissed McIntyre J

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An objective test must be used in determining criminal negligence It is the conduct of the accused, not her intention or mental state, which is examined No distinction should be made between any acts of commission or omission Section 202 clearly applies to a person who is negligent in doing anything or in omitting to do anything that is his duty and shows a wanton or reckless disregard for the lives or safety of others

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Negligence is a factor that may lead to criminal liability It connotes the opposite of thought-directed action and precludes the element of positive intent to achieve a given result Section 202 it punishes the consequence of mindless action and not the state of mind The application of the objective test under s. 202 may not be made in a vacuum The surrounding circumstances and the accused's perception of

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those facts must be considered, not for assessing malice or intention, but only to form a basis as whether the accused, in light of her view, was acting reasonably [McIntyre J upheld the order for a new trial because of error with respect to the burden of proof] Lamer J

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The reasons of McIntyre J. were agreed with, subject to certain considerations The application of the objective norm in s. 202 of the Criminal Code must make generous allowance for factors particular to the accused such as youth, mental development and education Further, Parliament did not determine the nature of the negligence required to ground criminal liability when enacting s. 202 but merely defined the expression "criminal negligence" wherever used in the Code The constitutionality of s. 205(5)(b) was not in issue in this case. Assuming without now deciding that it is a principle of fundamental

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justice that knowledge of a likely risk or deliberate ignorance thereof is an essential element of the offence of manslaughter does not arise Wilson J The imposition of criminal liability in the absence of proof of a blameworthy state of mind does not sit comfortably with the principles of penal liability and fundamental justice A serious criminal offence, absent clear statutory language and

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purpose to the contrary, should not be interpreted as an absolute liability offence o Rather, the presumption should be in favour of some degree of mental blameworthiness if the text and purpose can support such an interpretation. Given the fundamental ambiguity of s.202, it should be given the interpretation most consonant not only with its text and purpose, but also with the broader concepts and principles of the criminal law

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The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk assumed This Court has adopted a subjective approach to recklessness

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I would add that the importance of what the reasonable person would have foreseen to the determination of whether a particular accused would have become aware or wilfully blind to the prohibited risk will vary with the context Proof of the mental element of advertence to the risk or wilful blindness to the risk will not undermine the policy objectives of s. 202 The subjective test would at most offer protection for those who

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due to some peculiarity or unexpected accident commit conduct which, although wanton or reckless with respect to the lives and safety of others, can be explained as inconsistent with any degree of awareness of or wilful blindness to such a risk Constitutional issues did not arise in this case, and constitutional considerations would not be precluded if a case involving constitutionality were to arise Comments

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The court states that the act which itself demonstrates negligence is punished (unlike the act accompanied with a requisite state of mind) Proof of conduct which reveals a marked and significant departure from the reasonable person

Note on R. v. Waite SCC (1989), 48 CCC (3d) 1 Facts

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A person driving his car while intoxicated kills some individuals and is charged with criminal negligence causing death Decision: The trial judges association of negligence with deliberate and wilful intention as a subjective elements of negligence was in error He states that in looking at negligence you look at both the objective driving, and also the subjective attitude that is in mind of the accused This according to the SCC, puts a standard that is too high on the prosecution

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o As stated in Tutton, the mental element of criminal negligence is the minimal state of awareness of the prohibited risk or wilful blindness of the risk R. v. Creighton SCC (1993), 83 CCC (3d) 346 Facts The accused was charged with manslaughter as per section s. 222(5)(a) of the Code

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The accused, a companion of his and the deceased shared a large quantity of alcohol and cocaine at the deceased's apartment With the deceased's consent, the accused injected a quantity of cocaine into her forearm o As a result of the injection, she had experienced a cardiac arrest, and later asphyxiated on the contents of her stomach the deceased The companion indicated he wanted to call for emergency assistance but the accused, by verbal intimidation, convinced him not to

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The accused placed the deceased, who was still convulsing, on her bed. He then proceeded to clean the apartment of any possible fingerprints, and the two men then left The companion returned unaccompanied to the deceased's apartment six to seven hours later and called for emergency assistance The accused was convicted, and the CA upheld the conviction Issue: Does the common law definition of unlawful act manslaughter contravenes s. 7 of the Canadian Charter? Holding: No; Appeal dismissed

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McLachlin J The test for the mens rea of unlawful act manslaughter is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act Foreseeability of the risk of death is not required This test does not violate the principles of fundamental justice under

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s. 7 of the Charter The requirement of foreseeability of harm is entirely appropriate to the stigma associated with the offence of manslaughter o By the very act of calling the killing manslaughter, the law indicates that the killing is less blameworthy than murder, and the sentence attached to manslaughter is less The principle that those causing harm intentionally must be punished more severely than those causing harm unintentionally is strictly observed in the case of manslaughter

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Risk of bodily harm is not appreciably different from risk of death in the context of manslaughter: when the risk of bodily harm is combined with the established rule that a wrongdoer must take his victim as he finds him and the fact that death did in fact occur, the distinction disappears Further, while the rule that there must be symmetry between the mens rea and the prohibited consequences of the offence is a general rule of criminal law, it is not a principle of fundamental justice

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Fundamental justice does not require absolute symmetry between moral fault and the prohibited consequences Consequences, or the absence of consequences, can properly affect the seriousness with which Parliament treats specified conduct and policy considerations support a test for the mens rea of manslaughter based on foreseeability of the risk of bodily injury

The objective test for criminal fault, which requires a "marked departure" from the standard of the reasonable person, should not be

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extended to incorporate a standard of care which varies with the background and predisposition of each accused Criminal law principles and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails The fundamental premises upon which the criminal law rests mandate that personal characteristics not directly relevant to an element of the offence serve as excuses only at the point where they establish

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incapacity While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused's failure to take the requisite care The question is what the reasonably prudent person would have done in all the circumstances The de facto or applied standard of care, however, may vary with the

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activity in question and the circumstances in the particular case In cases of penal negligence, the first question is whether the actus reus is established This requires that the negligence constitute a marked departure from the standards of the reasonable person in all the circumstances of the case The next question is whether the mens rea is established o As is the case with crimes of subjective mens rea, the mens rea

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for objective foresight of risking harm is normally inferred from the facts The standard is that of the reasonable person in the circumstances of the accused. If a prima facie case for actus reus and mens rea are made out, it is necessary to ask a further question: did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? o If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted. If not, the accused must be acquitted.

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In this case a reasonable person in all the circumstances would have foreseen the risk of bodily harm The trial judge found, the conviction was properly entered and should not be disturbed Lamer CJ (dissent) There is no general constitutional principle requiring subjective

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foresight for criminal offences There are, however, certain crimes where, because of the special nature of the stigma attached to a conviction, or its pebalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime o In analysing social stigma, the court must first look to the conduct being punished to determine if it is of sufficient gravity to import significant moral opprobrium on the individual

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o The second branch of the stigma test concerns the moral blameworthiness not of the offence, but of the offender found guilty of committing it Unlawful act manslaughter falls into the class of offences where a mental element in relation to the consequence must be established In accordance with the requirements of s. 7 of the Charter, the proper interpretation of unlawful act manslaughter under s. 222(5)(a) of the Code requires the Crown to prove beyond reasonable doubt: (a) that

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the accused has committed an unlawful act which caused the death of the deceased; (b) that the unlawful act must be one that is objectively dangerous (c) that there was fault (d) that a reasonable person in the circumstances of the accused would foresee the unlawful act giving rise to a risk of death However, the trier of fact must pay particular attention to any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen death

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The trier of fact must ask the threshold question of whether a reasonable person in the same circumstances would have been aware that the likely consequences of his or her unlawful conduct would create the risk of death If the answer is no, then the accused must be acquitted If the answer is yes, the trier must then ask whether the accused was unaware (a) because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result (leading to a conviction), or (b) because he or she lacked the

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capacity to turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result, due to human frailties o If the answer is (b), the trier must ask whether in the context of the particular offence, the reasonable person with the capacities of the accused would have made herself aware of the likely consequences of the unlawful conduct and the resulting risk of death Human frailties encompass personal characteristics habitually affecting an

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accused's awareness of the circumstances which create risk Such characteristics must be relevant to the ability to perceive the particular risk and must be traits which the accused cannot control or otherwise manage in the circumstances In this case the trial judge concluded that the accused foresaw the risk of death or serious bodily harm in injecting the deceased with cocaine, given the lethal nature of the narcotic in question and the fashion in which it was administered, the familiarity of the accused with the drug and its dangerous

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properties Comments Lamer J wishes to particularize the test to the fact that Creighton was a habitually cocaine user to hold him more accountable for his actions o McLachlin J believes that other than capacity, no predisposition of the accused should be taken into account Absolute Liability

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The question for these types of offences is whether the law may require just proof of an act or omission to give rise to criminal liability I.e. no proof of voluntariness in the commission of these acts or omissions Voluntariness has been required for true criminal offences, especially after the entrenchment of the Charter This is not the case, of regulatory or public welfare offences The distinction between mala in se offences (offences that are bad in themselves) and offences which are mala

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Some may be satisfied by proof of the act and no further fault requirement (absolute liability offences) or a much reduced fault requirement (strict liability offences)

As per R. v. Sault Ste. Marie, all offences enacted by provincial legislation fall into the category of public welfare The distinction is sometimes difficult for some Federal offences

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Public Welfare or True Criminal Offences Beaver v. The Queen SCC (1957), 118 CCC 129 Facts The appellant was tried jointly with Max Beaver for the unlawful possession and sale of a drug without the authority of a licence from the Minister of National Health and Welfare or other lawful authority contrary to ss. 4(1)(f) and 4(1)(d) of the Federal Opium and Narcotic Drug Act

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The accused presented the narcotics as heroin to an undercover officer pretending to be a client, though the appellant had no knowledge that the substance contained in the package was diacetylmorphine and believed it to be sugar of milk The trial judge charged the jury that if they were satisfied that the appellant had in his possession a package and sold it, then, if in fact the substance contained in the package was diacetylmorphine, the appellant was guilty on both counts, and that the questions (i) whether he had any knowledge of what the substance was, or (ii) whether he

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entertained the honest but mistaken belief that it was a harmless substance were irrelevant and must not be considered Both accused individuals were convicted, but since Mr. Beaver had died, the court was only concerned with the appeal of the co-accused The Ontario Court of Appeal dismissed the appeal stating that the charge to the jury was correct Issue: Did the offence of possession of narcotics require a mens rea? Holding: Yes; Appeal allowed in part

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Cartwright J In examining the Opium and Narcotic Drug Act it appears that two main reasons are assigned for holding that mens rea is not an essential ingredient of the offence created by s. 4(1)(d) (i) the assumption that the subject-matter with which the Act deals is of the kind dealt with in the cases of which Hobbs v. Winchester Corp. is typical and which are sometimes referred to as "public welfare offence cases"

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(ii) by implication from the wording of s. 17 of the Act

As to the first of these reasons, there is little similarity between a statute designed, by forbidding the sale of unsound meat, to ensure that the supply available to the public shall be wholesome, and a statute making it a serious crime to possess or deal in narcotics The wording of s.17 does not compel the court to construe s.4 as not requiring mens rea

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Counsel informed the court that there is no other statutory provision which has been held to create a crime of strict responsibility, that is to say, one in which the necessity for mens rea is excluded, on conviction for which a sentence of imprisonment is mandatory It would be within the power of Parliament to enact that a person who, without any guilty knowledge, had in his physical possession a package which contained heroin, be convicted of a crime and

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sentenced to at least 6 months' imprisonment Nonetheless, the court refused to impute such an intention to Parliament unless the words of the statute were clear and admitted of no other interpretation For the above reasons the conviction on the charge of having possession of a drug was quashed As to the charge of selling, the accused's version of the facts brings his actions

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within the provisions of s. 4(1)(f), since he and his brother jointly sold a substance represented or held out by them to be heroin, for which the a conviction on the charge of selling must be affirmed As leave to appeal from the finding that the appellant is an habitual criminal was granted conditionally upon the appeal from the convictions being successful, and one conviction has failed, there is no jurisdiction to review the finding that the appellant is an habitual criminal and in the result that finding stands

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Fauteux J (dissenting in part) The plain and apparent object of the Act is to prevent, by a rigid control of the possession of drugs, the danger to public health, and to guard society against the social evils which an uncontrolled traffic in drugs is bound to generate The scheme of the Act is this: the importation, exportation, sale, manufacture, production and distribution of drugs are subject to the

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obtention of a licence which the Minister of National Health and Welfare may issue Having in one's possession drugs without a licence or other lawful authority, is an offence The principle underlying the Act is that possession of drugs covered by it is unlawful

The enforcement sections of the Act manifest the exceptional vigilance and firmness which Parliament thought of the essence to

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forestall the unlawful traffic in narcotic drugs The subject-matter, the purpose and the scope of the Act are such that to subject its provisions to the narrow construction suggested on behalf of appellant would defeat the very object of the Act On the plain, literal and grammatical meaning of the words of this section, there is an absolute prohibition to be in possession of drugs, whatever be the various meanings of which the word possession may be susceptible, unless the possession is under the authority of a licence from the Minister

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Furthermore, and if it is argued that knowledge is of the essence of unlawful possession under both s. 4(1)(d) and s. 17, then one is at a loss to understand why Parliament should have, in the latter section, provided for a defence resting on the proof of lack of knowledge As interpreted by most of the members of the Canadian Courts of Appeal since 1932, the provisions of s. 4(1)(d) are, like many other provisions of the Act, undoubtedly severe

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The duty of the Courts is to give effect to the language of Parliament

For all these reasons, it is impossible to accede to the proposition that knowledge of the nature of the substance is of the essence of the offence of unlawful possession under the Act As to sale, since the substance delivered to and paid for by Tassie was represented and held out to be a drug by the accused appellant, he is guilty of

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the offence of sale under s. 4(1)(f) Comments Possession appears to be an offence that requires no element of mens rea as delimited by the definition of the legislation In selling narcotics, there must be a representation by the accused that what she is selling are drugs, which involves a mental element The majority feels it is not an absolute liability offence per se and knowledge is required

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R. v. Pierce Fisheries SCC, [1970] 5 CCC 193 Facts The accused was charged with having undersized lobsters contrary to Lobster Fishery Regulations made pursuant to the Fisheries Act The evidence showed that on the day in question the company would have in its plant 50 to 60 thousand pounds of lobster, and amongst these, 26 undersized lobsters Issue: Did the offence imposed by the Fisheries Act contain an element of

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mens rea? Holding: Appeal dismissed Ritchie J The regulation of having undersized lobsters does not involve the creation of an offence but mere regulation The offence in question does not have the same stigma as a true crime

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In looking at the wording of the legislation, there is nothing to suggest that the offence should not be construed free from the requirements of any presumption of mens rea There is an absence of words such as knowingly, wilfully or without lawful excuse The offence is thus an absolute liability offence The case is distinguished from Beaver v. the Queen given the little similarity in

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regulating the possession of narcotics and undersized lobsters Cartwright J The case cannot be distinguished from Beaver v. the Queen where possession of something gives rise to criminal liability The essence of the crime is the possession of the forbidden substance, and in a criminal case there is in law no possession without knowledge of the character of the forbidden substance

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(Beaver v. the Queen) Parliament can impose an absolute liability offence, but there is no such wording in the Fisheries Act nor it can be implied

Since there was no knowledge of any of the undersized lobsters on the premises of the accused, he is not guilty Note on R. v. Wholesale Travel Group SCC (1991), 67 CCC (3d) 193

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Cory J A. The distinction between crimes and regulatory offences The common law has long acknowledged a distinction between truly criminal conduct and conduct, otherwise lawful, which is prohibited in the public interest Earlier, the designations mala in se and mala prohibita were utilized; today prohibited acts are generally classified as either crimes or

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regulatory offences The number and significance of regulatory offences increased greatly with the onset of the Industrial Revolution There is no doubt that regulatory offences were originally and still are designed to protect those who are unable to protect themselves. In Sherras v. De Rutzen, [1895] 1 Q.B. 918 it was held that, while the mens rea presumption applied to true crimes because of the fault and moral

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culpability which they imply, that same presumption did not apply to offences "which ... are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty" Regina v. Sault Ste. Marie affirmed the distinction between regulatory offences and true crimes Dickson J recognized public welfare offences as a distinct class: such offences, although enforced as penal laws through the machinery of the criminal law, "are in substance of a civil nature and might well be

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regarded as a branch of administrative law to which traditional principles of criminal law have but limited application" The Sault Ste. Marie case recognized strict liability as a middle ground between full mens rea and absolute liability o Where the offence is one of strict liability, the Crown is required to prove neither mens rea nor negligence; conviction may follow merely upon proof beyond a reasonable doubt of the proscribed act o However, it is open to the defendant to avoid liability by proving

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on a balance of probabilities that all due care was taken (the defence of due diligence) The new category of strict liability represented a compromise which acknowledged the importance and essential objectives of regulatory offences but at the same time sought to mitigate the harshness of absolute liability which was found to "violate" "fundamental principles of penal liability"

The rationale for the distinction

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Some criminal acts are so abhorrent to the basic values of human society that it ought to be prohibited completely At the same time, some conduct is prohibited, not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests

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While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care

It follows that regulatory offences and crimes embody different concepts of fault The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral

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blameworthiness in the same manner as criminal fault Thomson Newspapers Ltd. v. Canada La Forest J: "[The regulatory offence] is not primarily concerned with values, but with results. B. The fundamental importance of regulatory offences in Canadian society Regulatory measures are the primary mechanisms employed by

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governments in Canada to implement public policy objectives It is difficult to think of an aspect of our lives that is not regulated for our benefit and for the protection of society as a whole In short, regulation is absolutely essential for our protection and well being as individuals, and for the effective functioning of society The more complex the activity, the greater the need for and the greater our reliance upon regulation and its enforcement o Of necessity, society relies on government regulation for its safety

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The Emergence of Strict Liability R. v. Sault Ste. Marie SCC (1978), 40 CCC (2d) 353 Facts The city of Sault Ste. Marie was charged with discharging or causing to discharge materials into the Cannon Creek and Root River, which might impair the quality of water of the river

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The charges were laid under s.32(1) of the Ontario Water Resources Act, which provides that those guilty of such an offence are subject to a fine and on subsequent convictions could be subject to imprisonment Issue: What is the standard of mens rea for public welfare offences? Holding: Mens rea must not be proved but the defence of reasonable care must be available; Appeal dismissed Dickson J

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Regarding mens rea the distinction between the true criminal offence and the public welfare offence is of prime importance Where the offence is criminal, mens rea must be established and mere negligence is excluded from the concept of the mental element required for conviction In sharp contrast "absolute liability" entails conviction on mere proof of the prohibited act without any relevant mental element The correct approach in public welfare offences is to relieve the Crown

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of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases of proving wrongful intention, as well as to reject absolute liability, admitting the defence of reasonable care While the prosecution must prove beyond reasonable doubt that the defendant committed the prohibited act, the defendant need only establish on the balance of probabilities his defence of reasonable care

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Three categories of offences are recognized: (1) offences in which mens rea must be established; (2) offences of "strict liability" in which mens rea need not be established but where the defence of reasonable belief in a mistaken set of facts or the defence of reasonable care is available; and (3) offences of "absolute liability" where it is not open to the accused to exculpate himself by showing that he was free of fault Offences which are criminal are in the first category Public welfare offences are prima facie in the second category Absolute liability offences would arise where the legislature has

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made it clear that guilt would follow on mere proof of the proscribed act Section 32(1) being a provincial enactment does not create an offence which is criminal in the true sense; and further the words "cause" and "permit" which are frequently found in public welfare statutes do not denote clearly either full mens rea or absolute liability, therefore fitting much better into an offence of the strict liability class

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[As the City did not lead evidence directed to a defence of due diligence and the trial judge did not address himself to the availability of such a defence there should be a new trial to determine whether the City was without fault] Comments The court highlights three types of offences o Those where there is a necessary mens rea o Those in which there is no implied necessity of mens rea (strict liability) o Absolute liability offences

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The difference between strict liability between negligence and strict liability is that in criminal negligence cases mens rea must be proved (based on the objective stance) while in strict liability offences the actus reus leads to a presumption of the mens rea In strict liability offence the onus is shifted to the defendant bit merely to raise a doubt that due diligence was in fact exercised, not to prove that due diligence was exercised

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Constitutional Considerations Reference Re Section 94(2) of the B.C. Motor Vehicle Act SCC (1985), 23 CCC (3d) 289 Facts The BC Motor Vehicles Act imposed a fine and imprisonment on anyone who drove without a licence or if the licence was suspended, regardless of whether they knew about the suspension or not The sole proof was whether you were driving or not, no other defences

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on part of the individual were entertained (absolute liability offence) Issue: Did the absolute liability offence violate the principles of fundamental justice? Holding: Yes; Appeal dismissed Lamer J A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice

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and, if imprisonment is available as a penalty, such a law then violates a person's right to liberty under s. 7 of the Charter In other words, absolute liability and imprisonment cannot be combined A purposive analysis designed to ascertain the purpose of the s. 7 guarantee shows that the interests which are meant to be protected by the words "and the right not to be deprived thereof except in accordance with the principles of fundamental justice" of s. 7 are the life, liberty and security of the person

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The principles of fundamental justice, on the other hand, are not a protected interest, but rather a qualifier of the right not to be deprived of life, liberty and security of the person The narrower the meaning gives to "principles of fundamental justice" the greater will be the possibility that individuals may be deprived of these most basic rights.

There was an argument that the principles of fundamental justice discussed in s.7 were supposed to merely encompass natural justice as could be seen from

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the minutes of the proceedings when the Charter was drafted The court further felt these minutes should be given little weight as they are not entirely reliable, they do not represent the fact that the Charter was the product of a multiplicity of individuals, and giving them too much importance would freeze the development of the interpretation of the rights over time The court feels that sections 8 to 14 address specific deprivations of the "right" of life, liberty and security of the person in breach of the principles of

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fundamental justice, and as such, violations of s. 7 It would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14 Thus, ss. 8 to 14 provide an invaluable key to the meaning of "principles of fundamental justice" o Many have been developed over time as presumptions of the common law, others have found expression in the international conventions on human rights

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The principles of fundamental justice are to be found in the basic tenets of our legal system They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system The SCC in R. v. Sault St. Marie predicated that absolute liability in penal law offends the principles of fundamental justice As per Dickson J., to the effect that "there is a generally held revulsion

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against punishment of the morally innocent" that the argument that absolute liability "violates fundamental principles of penal liability" was the most telling argument against absolute liability and one of greater force than those advanced in support thereof A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty or security of the person Imprisonment (including probation orders) deprives persons of their

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liberty, so an offence has that potential as of the moment it is open to the judge to impose imprisonment There is no need that imprisonment, as in s. 94(2), be made mandatory

Imprisonment and of absolute liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the

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circumstances, a justified reasonable limit to one's rights under s. 7 In terms of the concern of many as regards corporate offences, this might well be dispelled were it to be decided, given that s. 7 affords protection to human persons only and does not extend to corporations There is no issue with the fact that it is highly desirable that "bad drivers" be kept off the road and those bad drivers who are in contempt of prohibitions against driving are punished

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The bottom line is whether the Government has demonstrated as justifiable that the risk of imprisonment of a few innocent is, given the desirability of ridding the roads of bad drivers, a reasonable limit in a free and democratic society That result is to be measured against the offence being one of strict liability open to a defence of due diligence, the success of which does nothing more than let those few who did nothing wrong remain free

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As found by the Court of Appeal, this demonstration has not been satisfied in the least S. 94(2) of the Motor Vehicle Act, as amended by the Motor Vehicle Amendment Act, 1982, inconsistent with s. 7 of the Charter Wilson J (Concurring on the result) Disagrees with Lamer in that ss.8-14 are not mere illustrations of s.7 She further states that mandatory imprisonment is a disproportionate measure for the objective which the legislature is trying to accomplish

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with this law. As such the violation of s.7 is not justified by s.1 of the Charter R. v. Pontes SCC (1995), 100 CCC (3d) 353 Facts After the decision in BC Motor Vehicle Act which deemed that an absolute liability offence which imposes imprisonment is ultra-vires, the question arose of whether the Legislature could still create an absolute

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liability offence when imprisonment was not an option o S 4.1 of the B.C. Offence Act was in fact amended to provide that no person could be liable to imprisonment with respect to an absolute liability offence Issue: Can the Legislature create an absolute liability offence when conviction is not followed by conviction? Holding: Yes, Appeal dismissed Cory J

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Absent of the defence of due diligence, the combined effects of ss.92 and 94 of the BC Motor Vehicle Act imposed an absolute liability regime The defence of due diligence must be available to defend a strict liability offence, otherwise it cannot be classified as such Nevertheless, this offence does not contravene the Charter as absent of imprisonment, the offence does not lead to a violation of the right of life, liberty and security of the person

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Gonthier J (dissenting) S.94 was now a strict liability offence The impugned provisions provide for the constitutionally minimum mens rea of negligence in order to ground a conviction The majority extended the due diligence defence to include ignorance of the law contrary to s.19 of the Code

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Comments In Irwin Toy Ltd. v. Quebec Attorney General (1989), 58 DLR (4th) 577, the court held that corporations cannot avail themselves of the protections offered by s.7 of the Charter A corporation cannot be put in jail, it can only be deprived of some sort of economic liberty which is not protected by the Charter

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R. v. 1260448 Ontario Inc. (c.o.b. William Cameron Trucking; R. v. Transport Robert (1973) Lte Ontario CA (2003), 180 CCC (3d) 254 Facts The two accused were charged with being the owner of a vehicle from which a wheel became detached on a public highway The Ontario Highway Traffic Act provides that the operator of a commercial motor is guilty of an offence where a wheel becomes detached from the vehicle while on the highway The penalty imposes a fine but the defendant is not liable to

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imprisonment or probation The defendants submit, that non-withstanding the monetary penalty of this offence, it violates ss.7 and 11(d) (presumption of innocence) of the Charter Issue: Can the Legislature create an absolute liability offence when conviction is not followed by imprisonment? Holding: Yes The Court

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Section 11(d) While s. 11(d) prohibits the reversal of the burden of proof of a fact that is an element of the offence, that subsection says nothing about elimination of an element There is no violation of s. 11(d) because the legislature has defined an offence so as to eliminate an element, or as here, a possible common law defence

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Section 7 The real and only constitutional issue in this case then is whether, despite the wording of s. 84.1 of the HTA, s. 7 mandates that the defendants be able to defend the case on the basis of due diligence Although the rights guaranteed by s. 7 can only be enjoyed by human beings, a corporation has standing to challenge the constitutionality

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of a penal provision on the basis that the provision violates the s. 7 rights of a human being As the law now stands, a defendant alleging a violation of s. 7 must establish both a violation of the right to life, liberty or security of the person and that the deprivation of that right does not accord with the principles of fundamental justice The defendants properly concede that since there is no possibility that an individual convicted of the offence can be either imprisoned or placed

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on probation, s. 84.1 of the HTA does not violate any liberty interest protected by s. 7 They do submit, however, that the provision infringes the security of the person of an individual because it allows for the conviction of a person who is without fault Their submission of an infringement of the security of the person is primarily based on the effect of the stigma attached to a conviction together with the large possible monetary penalty

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R. v. Pontes proposes that if the offence is one of absolute liability, but there is no risk of imprisonment, then the provision will not offend s. 7 of the Charter The defendants submit that in Pontes, the Supreme Court dealt only with the liberty interest of s. 7 and not security of the person It is not clear that Pontes can be limited in that way but for the purposes of the appeal, the court proceeded on the basis that Pontes has not fully resolved the question of whether absolute liability violates the guarantee to security of the person under s. 7

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Blencoe v. British Columbia (Human Rights Commission) Where the psychological integrity of a person is at issue, security of the person is restricted to 'serious state-imposed psychological stress'". There is no "generalized right to dignity, or more specifically, a right to free from stigma" The defendants here are charged with quasi-criminal offences and required to appear in open court to face the charges

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We also take the point that this offence was enacted in response to a serious public safety issue The offence does not create a true crime, and like most regulatory offences, it focuses on the harmful consequences of otherwise lawful conduct rather than any moral turpitude

We reject the proposition that a defendant charged with this offence is stigmatized as a person operating in a wanton manner, heedless of the extreme dangers to life and limb posed by his or her operation

468

The diminished stigma attached to the s. 84.1 offence is not sufficient to trigger the security interest in s. 7 even when coupled with the possibility of a significant fine The right to security of the person does not protect the individual operating in the highly regulated context of commercial trucking for profit from the ordinary stress and anxieties that a reasonable person would suffer as a result of government regulation of that industry

Accordingly, s. 84.1 of the HTA does not violate s. 7. It is therefore

469

unnecessary to consider whether any violation could be saved by s. 1. Comments Corporate defendants cannot invoke s.7 as individuals o While there is a right to a mens rea attached to certain degrees of stigma, there is no protection for dignity R. v. Wholesale Travel Group Inc.SCC (1991), 67 CCC (3d) 193 Facts

470

The accused corporation was charged with several counts of false advertisement contrary to s.36(1)(a) of the Competition Act At trial, the court argued that some sections of the Act, which creates a statutory due diligence defence, were inconsistent with ss. 7 and 11(d) of the Charter and dismissed the charges against the accused The CA held that the Act imposed a persuasive burden that the accused establish that he or she exercised due diligence and thus violated s. 11(d) of the Charter Issue: Did the statutory due diligence defence violate ss.7 and 11(d) of the

471

Charter? Holding: No; Appeal dismissed Section 7 of the Charter Lamer CJ Since the misleading advertising provisions provide for a penalty of up

472

to five years' imprisonment, the offence cannot be one of absolute liability without infringing s. 7 of the Charter The minimum fault requirement is not, however, proof of subjective mens rea While there are some offences for which the special stigma attaching to conviction is such that subjective mens rea is necessary in order to establish the blameworthiness which justifies the stigma, the offence of misleading advertising is not such an offence

473

A requirement of negligence with the availability of a due diligence defence is sufficient

Cory J The content of a Charter right, including the guarantee to the principles of fundamental justice in s. 7 of the Charter, can only be determined from the context Constitutional standards developed in the criminal context cannot be

474

applied automatically to regulatory offences The conduct being regulated is prohibited not because it is inherently wrongful but because unregulated activity would result in dangerous conditions Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, being convicted of a regulatory offence may be thought to import a significantly lesser degree of culpability than being convicted of a true crime

475

The concept of fault in regulatory offences is based upon a reasonable care standard and does not imply moral blameworthiness in the same manner as criminal fault The different treatment for regulatory and criminal offences is justified because of the distinctive nature of regulatory activity and of the fundamental need to protect the vulnerable through regulatory legislation Those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public

476

generally and must accept the consequences of the responsibility In view of the distinction between regulatory and criminal offences, even where imprisonment is available as a penalty for breach of a regulatory statute, the principles of fundamental justice as guaranteed by s. 7 of the Charter require only negligence as the minimum fault element Although s. 7 requires that the element of fault may not be removed completely, the demands of s. 7 may be met in the

477

regulatory context where liability is imposed for conduct which breaches the standard of reasonable care of those operating in the regulated field Further, practically speaking it would be impossible for the government to monitor adequately every industry so as to be able to prove actual intent or mens rea in each case

The Court was divided on the question whether the shifting of the onus violated s.11(d)

478

Per Lamer CJ (dissenting on the s. 11(d) issue) The presumption of innocence as guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms is infringed when an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence, including those elements required by s. 7 of the Charter The interpretation of s. 11(d) cannot change because of the

479

regulatory setting\ The words "he establishes that" in s. 37.3(2) place a burden on the accused to establish on a balance of probability that he exercised due diligence Thus, an accused could be convicted of misleading advertising despite the existence of a reasonable doubt as to whether he was duly diligent and therefore, despite the existence of a reasonable doubt as to guilt This shift in the burden of proof cannot be justified as a

480

reasonable limit under s. 1 of the Charter Iacobucci Placing a reverse onus on the accused to establish the due diligence defence on a balance of probabilities infringes the presumption of innocence in s. 11(d) of the Charter This infringement, however, constitutes a reasonable limit within the meaning of s. 1 of the Charter

481

The offence of false or misleading advertising is properly characterized as a public welfare offence and prohibition of such conduct is of fundamental importance in Canadian society This objective is of sufficient importance to warrant overriding the right guaranteed by s. 11(d) of the Charter The means chosen also impair the right to be presumed innocent no more than is necessary to accomplish the desired objective o Without this alternative it would be virtually impossible for the Crown to prove public welfare offences, and there would be no

482

effective inducement for those engaged in the regulated activity to comply strictly with the regulatory scheme Cory J The contextual approach must also be used in the interpretation of the presumption of innocence as guaranteed by s. 11(d) of the Charter The due diligence defence is itself a function of the presumption of

483

innocence, but if regulatory mechanisms are to operate effectively, the Crown cannot be required to prove due diligence beyond a reasonable doubt The enforcement of regulatory offences would be rendered virtually impossible if the Crown were required to prove negligence beyond a reasonable doubt If the participant in the regulated activity is to be effectively controlled, then it is necessary to require that he show on a balance of probabilities that he took reasonable precautions to avoid the harm which actually

484

resulted On the issue of standing by the accused company Lamer CJ While the rights guaranteed by s. 7 of the Charter can only be enjoyed by human beings, where there are penal proceedings pending in the case, a corporation can challenge the validity of those provisions on the basis that the

485

provisions infringe the rights of an individual Where a corporation's constitutional challenge gives rise to a finding that the statutory provision violates a human being's Charter rights, the appropriate remedy under s. 52(1) of the Constitution Act, 1982, is that the provision is of no force and effect Once the provisions are held to be of no force and effect, they cannot apply to any accused, whether corporate or individual Comments The court is unanimous that there is no violation of s.7

486

o WTG claims that the stigma related to false advertisement is analogous to the stigma that accompanies theft (which is a violation that involves mens rea) On the issues of the violation of the presumption of innocence some judges feel that the mandatory presumption of negligence does violate s. 11(d) but it is saved under s.1

Wholesale Travel was upheld in the SCC decision of R. v. Ellis-Don Ltd. (1992), 71 CCC (3d) 63

487

Specific Offences 1. Second-degree murder S.222 of the Code defines in board terms the parameters of homicide (i) Read in conjunction with s.229, which defines murder, all homicides that are not murder are infanticide or manslaughter

488

s. 222 Criminal Code Homicide 222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Kinds of homicide (2) Homicide is culpable or not culpable.

489

Non culpable homicide (3) Homicide that is not culpable is not an offence. Culpable homicide (4) Culpable homicide is murder or manslaughter or infanticide. Idem

490

(5) A person commits culpable homicide when he causes the death of a human being, (a) by means of an unlawful act; (b) by criminal negligence; (c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) by wilfully frightening that human being, in the case of a child or sick person.

491

Exception (6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

492

s. 229 Criminal Code Murder Culpable homicide is murder (a) where the person who causes the death of a human being (ii) means to cause his death, or (iii)means to cause him bodily harm that he knows is likely to cause his

493

death, and is reckless whether death ensues or not; (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or (c) where a person, for an unlawful object, does anything that he knows or

494

ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. Section 229(a): Intentional or Reckless Killing R. v. Simpson Ontario CA (1981), 585 CCC (2d) 122 Facts

495

The accused was convicted for two counts of attempted murder The accused met one victim in a bar and had sex with her in his apartment, following which he strangled her to unconsciousness The accused attacked the other victim after she left the same bar where the accused met the first victim The appeal concerned the accuracy of the trial judges instructions to the jury on the definition of murder in context of trying to explain the offence of attempted Issue: What is the mens rea for murder?

496

Martin JA Either of the intents specified in s.212(a)(i) and (ii) means to cause his death or means to cause him bodily harm that he knows is likely to cause his death - suffice to constitute the intent required for the offence of attempted murder (Lajoie v. The Queen (1973)) The trial judge, in paraphrasing the intent specified in s. 212(a) (ii) - namely,

497

an intention to cause bodily harm that the offender knows is likely to cause death -, substituted for the requisite intent an intention to cause bodily harm that offender knows or ought to know is likely to cause death To substitute for that state of mind an intention to cause bodily harm that the accused knows or ought to know is likely to cause death is to impose liability on an objective basis. R. v. Cooper SCC (1993), 78 CCC (3d) 289

498

Facts Accused was convicted of second degree murder pursuant to s. 212(a) (ii) of the Criminal Code He and his victims had been drinking, and after becoming angry after being hit in an argument, struck the deceased and grabbed her by the throat with both hands and shook her He contends that this occurred in the front seat of the Jeep and that he could recall nothing else until he woke in the back seat and found the body of the deceased beside him

499

The expert evidence established that death was caused by one-handed manual strangulation and that death probably occurred after two minutes of pressure The CA set aside the conviction and directed that a new trial be held Issue: Does the mens rea for murder require that the accuse have a persisting or continuing knowledge that the act is likely to cause death? Holding: No; appeal was allowed Cory J

500

The intent that must be demonstrated in order to convict under s. 212(a)(ii) has two aspects. There must be (a) subjective intent to cause bodily harm, and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death There is only a "slight relaxation" in the mens rea required for a conviction for murder under s. 212(a)(ii) as compared to s. 212(a)(i) Mens rea must not only be present but also must be concurrent with

501

the impugned act It is not always necessary, however, for the guilty act and the intent to be completely concurrent; they need only coincide at some point An act which may be innocent or no more than careless at the outset can become criminal at a later stage when the accused acquires knowledge of the nature of the act and still refuses to change his or her course of action

502

The Crown had to demonstrate that the accused intended to cause bodily harm that he knew was ultimately so dangerous and serious that it was likely to result in the death of the victim; but that intent did not need to persist throughout the entire act of strangulation The jury could reasonably infer that the actus reus and mens rea coincided at the moment when the accused grabbed the victim by the neck and shook her The respondent was aware of these acts before he "blacked out.

503

Section 229(b): Transferred Intent R. v. Fontaine Manitoba CA (2002), 168 CCC (3d) 263 Facts The accused was convicted for first degree murder He attempted suicide by crashing his car though there were three passengers in the vehicle, one of which died He survived, but a passenger died

504

In instructing the jury on transfer of intent, the judge stated that Fontaine was guilty if he intended to kill himself and the passenger died because of his attempt Issue: Was there a transfer of intent necessary to constitute murder? Holding: No; appeal was allowed and a new trial ordered Steel JA The legislation's ambiguity on the issues of transferred intent was resolved by reference to its context, ordinary sense, and harmony

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with the legislative purpose Where ambiguity is present in a piece of penal legislation, the statutory interpretation rule of strict construction should be applied because of the potential for serious interference with individual rights Equating the mens rea of suicide with murder was not consistent with its stigma, penalties, or blameworthiness Suicide is not a criminal offence, as contrasted with murder, which was the most serious crime and required specific intent

506

The judge erred in her charge on transferred intent and it was impossible to know whether the jury convicted because of it Section 229(c): Unlawful Object This section of the Code is controversial because it rests liability on the objective standard of ought to have know

507

The following cases were decided before the constitutional invalidation of the objective arm of s.229(c)

R. v. Tennant and Naccarato Ontario CA (1975), 23 CCC (2d) 80 Facts The accused were charged with second-degree murder The deceased had earlier in the day been at a party where he had violently assaulted a friend of the accused Naccarato agreed to talk to the deceased and both accused went to the

508

deceased's apartment and were confronted by the deceased who had a large knife and a crutch The accused claim that one of them rushed home to get a gun for protection and that this accidentally went off when the deceased struck Naccaratos arm The theory of the Crown was that Naccarato intended to murder the deceased within the meaning of s. 212(a) of the Code and that Tennant was a party to the offence under s. 21 N raised the defence that the deceased's death was accidental

509

In charging the jury the trial Judge did not define "accident" and merely told the jury on one occasion that the theory of the defence was that the gun went off accidentally Issue: What constitutes unlawful object? Holding: Theappeal was allowed and a new trial ordered The Court Section 212(c) providing that culpable homicide is murder "where a person, for an unlawful object, does anything deadly that he knows or ought to know

510

is likely to cause death", may be applicable so that the accused is guilty of murder While liability for murder under s. 212(a) is grounded upon the intention specified therein, liability under s. 212(c) is grounded upon foresight, actual or attributed, that an act done for an unlawful object is likely to cause death Where the provisions of s. 212(c) are applicable, the words "ought to know" impose liability for murder where death is unlawfully caused

511

by conduct which a reasonable person, with knowledge of the surrounding circumstances which make conduct dangerous to life, should have foreseen was likely to cause death Section 212(c) also requires that the accused shall have "done anything" for "an unlawful object", thereby causing death That is, the accused's act which caused death must have been done to effect some further unlawful purpose

512

Naccarato getting his fire-arm and his use of it under the circumstances could satisfy a jury beyond reasonable doubt that the procuring and use was for the unlawful purpose of assaulting the deceased and that he knew, or ought to have known, his conduct was likely to bring about a situation in which someone might be killed The jury should then have been told that if they had a reasonable doubt that the gun discharged accidentally, and the Crown had not proved the elements of s. 212(c), they must acquit of murder and then consider if the Crown had proved manslaughter

513

When death is accidentally caused by the commission of an unlawful act, such as Naccarato's pointing or using the fire-arm, which any reasonable person would inevitably realize must subject another person to the risk of, at least, bodily harm, the offence is manslaughter R. v. Vasil SCC (1981), 58 CCC (2d) 97 Facts

514

The respondent, a chronic alcoholic, had set fire to the house where he lived with a friend and her two children The children died In his charge, the trial judge instructed the jury that in view of the facts adduced in evidence a verdict of murder could, subject to certain factual determinations by them, be grounded upon ss. 212(a)(i), 212(a) (ii) or 212(c) of the Criminal Code The respondent was convicted of murder The Ontario CA found no misdirection in law by the judge with respect

515

to the application of the first two sections, but found that the trial judge had erred in his charge with respect to s. 212(c) in that he did not relate the defence of drunkenness to the issue of the respondent's knowledge of the surrounding circumstances at the time Issue: 1.What constitutes unlawful object? 2. Is drunkenness a defence to what the accused ought to have known given the circumstances in furtherance of the unlawful obejct? Holding: 2. Yes; the appeal was dismissed

516

Lamer J (for the Court) Having regard to the common law as it existed in 1892, in a prosecution under s. 212(c), the element of unlawfulness necessary is that which is the result of the prosecution of the unlawful object by the act which is dangerous to life There is no requirement that the dangerous act be itself unlawful When the dangerous act is unlawful, the jury must be told that

517

there must be the prosecution of a further unlawful object clearly distinct from the immediate object of the dangerous act The words "unlawful object" mean the object of conduct which, if prosecuted fully, would amount to a serious crime

With respect to the other issue, while the test under s. 212(c) is objective and the behaviour of the accused is to be measured by that of the reasonable man, such a test must nevertheless be applied having regard, not to the knowledge a reasonable man would have

518

had of the surrounding circumstances that allegedly made the accused's conduct dangerous to life, but to the knowledge the accused had of those circumstances Drunkenness, though not relevant in the determination of what a reasonable man with the knowledge the accused had of those circumstances, is relevant in the determination of the knowledge which the accused had of those circumstances

519

Constitutional Considerations As the Charter came into force, many provisions of the Code were put to test One aspect of particular litigation was whether different standards of fault set in the Code were consistent with principles of fundamental justice Vaillancourt v. The Queen SCC (1987), 39 CCC (3d) 118 Facts Vaillancourt was convicted of second degree murder

520

He and his accomplice committed an armed robbery in a pool-hall There was a struggle between the accomplice and a client during the robbery and a shot was fired and the client was killed The accused had testified that they had agreed to commit the robbery only armed with knives but on the night of the robbery, the accomplice arrived with a gun He asked the accomplice to unload the gun so it would not discharge and the accomplice did in fact give him 3 bullets, later found by police The appellant testified that at the time of the robbery he was certain

521

that the gun was unloaded His appeal challenged the constitutional validity of s.213(d) (the felonymurder rule that existed under 230(d)) both in itself and when it is used in combination with s.21(2) Issue: Can an accused be convicted of murder through constructive liability? Holding: No; the appeal was allowed and a new trial ordered Lamer J The punishment for murder is the most severe in our society and the stigma

522

that attaches to a conviction for murder is similarly extreme There must be some special mental element with respect to the death before a culpable homicide can be treated as a murder It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight Section 213 has substituted for proof beyond a reasonable doubt of objective

523

foreseeability, proof beyond a reasonable doubt of certain forms of intentional dangerous conduct causing death Indeed, s.213 will catch an accused who performs one of the acts in paras. (a) to (d) of s.212 and thereby causes a death but who otherwise would have been acquitted for murder because he did not foresee and could not reasonably have foreseen that death would be likely to result This section then violates prima facie s.7 It is not necessary to convict of murder persons who did not intend or

524

foresee the death, and who could not even have foreseen the death, in order to deter others from using or carrying weapons Parliament has already decided that the possession and use of weapons, particularly firearms, in the course of the commission of offenses is a gravely aggravating factor La Forest J Because of the stigma attached to a conviction for murder, the principles of fundamental justice require a mens rea reflecting

525

the particular nature of that crime, namely one referable to causing death In addition to the intention to cause death, this can include a closely related intention such as intention to cause bodily harm likely to result in death combined with recklessness as to that result The mental element required by s. 213(d) of the Criminal Code is so remote from the intention specific to murder that a conviction under that paragraph violates fundamental justice

526

Beetz J For the reasons given by Lamer and La Forest JJ., s. 213(d) of the Criminal Code does not conform to the principles of fundamental justice entrenched in the Charter and cannot be saved under s. 1 For the reasons given by Lamer J., s. 213(d) also violates s. 11(d) of the Charter and cannot be justified under s. 1 Given these conclusions, it is not necessary to decide whether there exists a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of

527

subjective foresight. McIntyre J (dissenting) The two constitutional questions should be answered in the negative Parliament has decided that possession and use of weapons in the course of the commission of offences is a gravely aggravating factor and has chosen to term a killing arising in the circumstances described in s. 213(d) as murder

528

While it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner

529

R. v. Martineau SCC (1990), 58 CCC (3d) 353 Facts Martineau and his friend, Tremblay had set out one evening armed with a pellet pistol and rifle respectively Martineau testified he knew they would commit a crime, but only thought it would be a breaking and entering After robbing the trailer and its occupants, Tremblay shot and killed the

530

MacLeans The accused was charged with murder under Section 213(a), which defines culpable homicide as murder where a person causes the death of a human being while committing or attempting to commit a range of listed offenses whether or not the person means to cause death Issue: Is s.213(a) [now 230(a)] unconstitutional? Holding: Yes Lamer J

531

In a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death It is not necessary to achieve sufficient deterrence, to convict of murder persons who do not intend or foresee the death S. 213(a) unduly impairs s.7 of the Charter

532

The conviction for manslaughter would indeed result in an indictable crime punishable anywhere from a day in jail to confinement for life

LHeureux-Dub (dissenting) The test of objective foreseeability is sufficient Indeed, s.213(a) does not deal with accidental killings, but rather with killings that are objectively foreseeable as a result of the abominable nature of the predicate crimes

533

2. First-degree murder In 1976 the law of murder was vastly reformed by Parliament, introducing the distinction between first and second-degree murder While both carry a mandatory sentence of life imprisonment, with seconddegree murder a trial judge may set parole ineligibility between 15 to 25 years

534

o For first-degree murder parole ineligibility must be set at 25 years s. 231 Criminal Code Classification of murder (1) Murder is first degree murder or second degree murder. Planned and deliberate murder

535

(2) Murder is first degree murder when it is planned and deliberate. Contracted murder (3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that others causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.

536

Murder of peace officer, etc. (4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is (a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriffs officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties; (b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer

537

or a permanent employee of a prison, acting in the course of his duties; or (c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein. Hijacking, sexual assault or kidnapping (5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an

538

offence under one of the following sections: (a) section 76 (hijacking an aircraft); (b) section 271 (sexual assault); (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); (d) section 273 (aggravated sexual assault);

539

(e) section 279 (kidnapping and forcible confinement); or (f) section 279.1 (hostage taking). Criminal harassment (6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section

540

264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered. Murder during terrorist activity (6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence

541

also constitutes a terrorist activity. Using explosives in association with criminal organization (6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an offence under section 81 for the benefit of, at the direction of or in association with a criminal organization. Intimidation

542

(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an offence under section 423.1. Second degree murder (7) All murder that is not first degree murder is second degree murder. Sub-paragraph 3 states that if money is involved, it is presumed that there is first-degree murder

543

Section 231(2): Planned and Deliberate R. v. More SCC, [1963] 3 CCC 289 Facts The accused, who was depressed about his financial affairs and fearful of their disclosure to his wife planned to kill her and himself He failed at his attempted suicide and was charged with capital murder, which requires a killing to be planned and deliberate He presented psychiatric evidence to raise a reasonable doubt as to

544

whether his murder was planned and deliberate He was found guilty by the jury Issue: What does planned and deliberate entail? Cartwright J Murder cannot be satisfied unless there is proof beyond a reasonable doubt that the killing was both planned and deliberate Deliberate means considered and not impulsive Other adjectives in the dictionary are: not hasty, slow in deciding

545

Psychiatric evidence showed that at the time of pulling the trigger, the accused was suffering from depressive psychosis, which impaired his decisionmaking The weight to give to this and the rest of the evidence was for the jury to decide Comments The Oxford English Dictionary also characterizes deliberate as intentional, but this is not a good word since second-degree murder also

546

necessitates intention The words of Gale J in R. v. Widdifield (1961) have stood as an authority of the meaning of planned and deliberate Planned involves a calculated scheme or design which has been carefully thought out, and the nature of the consequences have been considered and weighed

547

o So far as time is concerned, what matters is not the time between the development of the plan and doing the act, but the time involved in developing the plan Deliberate is associated with considered, not impulsive, slow in deciding and cautious, implying that the accused took the time to weigh the advantages and disadvantages of the intended action

548

In R. v. Nygaard (1989) the Supreme court held that it was possible to classify a murder as first-degree on the basis of secondary intent in s. 229(a)(ii): a reckless killing The case involved the beating of a victim with a baseball bat Cory J stated that the requisite intent is that if causing such bodily harm that the perpetrator knows is likely to result in death and yet persist the assault

549

The planning and deliberation to cause bodily harm which is likely to be fatal must of necessity include the planning and deliberation to continue that conduct despite the knowledge of the risk The element of recklessness does not exist in a vacuum of mens rea requirement, but in conjunction with the intentional infliction of bodily harm can satisfy the requirement for first-degree murder Section 231(4): Murder of Police Officer, etc.

550

R. v. Collins Ontario CA(1989), 48 CCC (3d) 343 Facts The accused was charged with the first-degree murder of a police officer under s.214(4)(a) (now 231(4)(a) The victim was on duty at the time of the death and uniformed The accused challenged the constitutionality of the provision, alleging that it violated s.7 of the Charter, because he could be convicted of first-degree murder without the need to prove that his killing was

551

planned and deliberate The CA set aside the convictions and directed a new trial Issue: Is s. 231(4)(a) of the Criminal Code constitutionally invalid because it is contrary to the provisions of s. 7 of the Charter? Holding: No; Appeal dismissed Goodman JA The Supreme Court has ruled that s. 214 of the Code (now s. 231)

552

does not set out the element of the offence of murder; this is done in ss. 212 and 213 (now ss. 229 and 230) S. 231 draws the distinction between first and second degree murder based upon intent upon (1) the presence of planning and deliberation; (2) the identity of the victim, or (3) the nature of the offence being committed at the time of the murder The rationale behind s. 231(2) is that there is an added moral culpability to a murder that is planned and deliberate which justifies a

553

harsher sentence This added culpability is present by virtue of the planning and deliberation with relation to the taking of a human life, not with relation to the identity of the intended victim The rationale behind the provisions of s. 231(4) is to provide additional protection some persons while acting in the course of their duties, whose occupations are extremely dangerous The classification of the murder of such persons as first degree murder

554

is designed as an additional deterrent to potential murderers First degree murder and second degree murder are not independent substantive offences. The substantive offence is murder The distinction between first degree murder and second degree murder is not based upon intent The onus is on the Crown to establish beyond a reasonable doubt the actus reus and mens rea of the substantive offence of murder under s. 229

555

S. 231(4)(a) should be interpreted in such a manner that requires proof of the facts which give rise to the added moral culpability or which would act as an additional deterrent There would then be no logical reason for imposing a heavier penalty in the case where the murderer killed the person who he did not know and had no reason to know was a police officer acting in the course of his duties

556

Where a statutory provision is open to two interpretations, one of which will contravene the Charter and the other of which will not, the provision should be interpreted in such a manner as will not contravene the Charter As a result, the onus is on the Crown to prove that the appellant knew that the victim was a police officer who was acting in the course of his duty and accordingly, the provisions of s. 231(4)(a) do not contravene s. 7 of the Charter

557

In the present case the trial judge charged the jury in accordance with this conclusion. There was evidence to support a finding of knowledge on the part of the appellant Comments It may be the case that sometimes these types of crime are not the result of a rule-oriented approach but precedent that guided the Criminal Code Section 231(5): While Committing

558

A leading case on this issue is R. v. Par (1987), where the accused killed a young boy shortly after having assaulted him R. v. Russell SCC, [1963] 3 CCC 289 Facts The accused was charged with first-degree murder on the basis that he cause the death of the victim while forcibly confining another individual contrary to s.231(5)(d)

559

The judge at the preliminary inquiry concluded that the deceased did not have to be the victim of the underlying offence of forcible confinement The Superior Court judge quashed the conviction for first degree-murder and substituted a committal to second-degree murder The CA reversed the decision holding that even if the preliminary inquiry judge was in error, this was not reviewable by the Superior Court Issue: Did the preliminary inquiry judge erred in holding that s. 231(5) may apply even if the victim of the murder and the victim of the enumerated

560

offence are not the same? Holding: No; Appeal dismissed McLachlin CJC As a matter of statutory interpretation, the words in question should be considered in the context in which they are used, and read in a manner consistent with the purpose of the provision and the intention of the legislature

561

The language of s. 231(5) is clear and does not state that the victim of the murder and the victim of the enumerated offence must be one and the same, unlike other provisions of the Code If Parliament had intended to limit the scope of s. 231(5), it could have done so explicitly

Several of the offences enumerated in s. 231(5) clearly raise the possibility that the person murdered will not be same as the victim of the enumerated crime; thus, s. 231(5) is not precluded from applying to

562

multiple-victim scenarios The organizing principle of s. 231(5) is to punish more severely murders committed in connection with crimes of domination, whether or not the victim of the killing and the enumerated offence are the same The provision is properly restricted to its appropriate context by the requirement that there must be a close temporal and causal connection between the murder and the enumerated offence

563

Constitutional Considerations: Challenges to Section 231(5) R. v. Arkell SCC (1990), 59 CCC (3d) 65 Facts The accused killed the victim during the course of sexual assault and was convicted under s.214(5) (now s.231(5)) Issue: Does s. 231(5) of the Criminal Code contravene s. 7 of the Charter? Holding: No; Appeal dismissed

564

Lamer CJC In R. v. Par the court held that s. 214 (now s.231) is a classification section concerned with sentencing and does not create a substantive offence No principle of fundamental justice prevents Parliament from classifying murders done while committing certain underlying offences as more serious, and thereby attaching more serious penalties to them

565

The section is based on an organizing principle that treats murders committed while the perpetrator is illegally dominating another person as more serious than other murders

The relationship between the classification and the moral blameworthiness of the offender clearly exists Section 231 only comes into play when murder has been proven beyond a reasonable doubt When we reach the stage of classifying murders as either first or

566

second degree, we are dealing with individuals who have committed the most serious crime in our Criminal Code, and who have been proven to have done so with the highest level of moral culpability, that of subjective foresight of death (as per R. v. Martineau) o It can no longer be said that s. 214(5) has the potential to classify unintentional killings as first degree murder Parliament's decision to treat these murders more seriously accords

567

with the principle that there must be a proportionality between a sentence and the moral blameworthiness of the offender and other considerations such as deterrence and societal condemnation of the acts of the offender R. v. Luxton SCC (1990), 58 CCC (3d) 449 Facts The accused was accused of first-degree murder on the basis that he forcibly confined the victim, a taxi driver, while forcing her to drive him

568

to a field where she was repeatedly stabbed in the head and neck Issue: Does the combined effect of ss. 231(5)(e) and 742(a) of the Criminal Code does infringe ss. 7, 9 and 12 of the Charter or s. 2(e) of the Canadian Bill of Rights? Holding: No; Appeal dismissed Lamer CJC Section 231(5)(e) defines first degree murder as murder in respect of a person when the death is caused by the person while committing or

569

attempting to commit certain offences Section 742(a) provides that the punishment is life imprisonment without parole for 25 years; subject to judicial review after the accused has served 15 years of a sentence If there is a principle of fundamental justice (as per s.7) requiring that different degrees of moral blameworthiness in different offences be reflected in differential sentences, the combined effect of ss. 231(5)(e) and 742(a) is in accordance with this principle

570

Section 231(5) isolates a particular group of murderers and classifies them for sentencing purposes as murderers in the first degree The distinction between first and second degree murder only comes into play when it has first been proven beyond a reasonable doubt that the accused is guilty of murder that is that he had subjective foresight of death

While there is no doubt that a sentencing scheme must exhibit a proportionality to the seriousness of the offence, a sentencing scheme

571

must also take into account other factors that are of significance for the societal interest in punishing wrongdoers These sections of the Code clearly demonstrate a proportionality between the moral turpitude of the offender and the seriousness of the offence and is in accord with the objectives of a rational system of sentencing The decision of Parliament to elevate murders done while the offender commits forcible confinement to the level of first degree murder is consistent with the principle of proportionality between the

572

blameworthiness of the offender and the punishment It is also consistent with the individualization of sentencing Moreover, even in cases of first degree murder, by providing for judicial review after 15 years in the Code, there is some sensitivity to the individual circumstances of each case when it comes to sentencing

The scheme for first degree murder does not contravene s. 9 of the Charter (arbitrary detention or imprisonment) The combined effect of these sections does not demonstrate

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arbitrariness on the part of Parliament o Parliament has narrowly defined a class of murderers under an organizing principle of illegal domination and has specifically defined the conditions under which the accused can be found guilty of first degree murder o The policy decision of Parliament to classify these murders as first degree murder accords with the broader objectives of a sentencing scheme o The elevation of murder while committing a forcible

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confinement to first degree murder reflects a societal denunciation of those offenders Finally, the combined effect of ss. 231(5) and 742(a) does not contravene the guarantee to protection against cruel and unusual punishment in s. 12 of the Charter These sections provide for punishment of the most serious crime known to criminal law, a crime carrying with it the most serious level of moral blameworthiness

575

The penalty is severe but deservedly so and reflects society's condemnation of a person who has exploited a position of power and dominance to the gravest extent possible by murdering the person that he is forcibly confining The punishment is not excessive and clearly does not outrage our standards of decency

Manslaughter

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In many ways, manslaughter is a residual category of homicide s. 234 Criminal Code Manslaughter Culpable homicide that is not murder or infanticide is manslaughter. There are many ways in which a verdict of manslaughter can be reached In many cases this charge is laid in killings that are the product of criminal negligence or an unlawful act

577

o These types of manslaughter, however, are captured by the definition of homicide in s.222(5) of the Code In other cases, this verdict is reached from charges of murder in which the Crown is unable to establish the requirements for liability, such as a subjective intent to kill o This cases are largely contested given the reduced punishment for manslaughter o The distinction arises often through the defence of the accused (such as intoxication) and through matters like provocation

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s. 236 Criminal Code Manslaughter 236. Every person who commits manslaughter is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

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(b) in any other case, to imprisonment for life. Life imprisonment is not a mandatory sentence for manslaughter, as it is the case of murder The fault requirement for unlawful manslaughter is objective foreseeability of bodily harm (as opposed to death) that is not transitory or trivial (see R. v. Creighton (1993)) An issue here is thus causation, whether the bodily harm caused the death of the victim

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This meets the requirements of s.7 of the Charter As per McLachlin J o The stigma attached to manslaughter is not the same as the one attached to murder o It would shock the publics conscience that a person could be convicted of manslaughter absent of any moral fault based on foreseeability of harm

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o It would also shock the publics conscience to convict a person who has killed another only of aggravated assault, because she did not perceive the death of the victim o The more flexible sentencing scheme for manslaughter is in accordance with the principle of proportionality between punishment and the level of moral blameworthiness of the offender o This is the test which provides the greatest promise of deterrence without disproportionate penal consequences

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3. Sexual Assault R. v. Chase SCC (1987), 2 SCR 293 Facts Respondent was convicted of sexual assault contrary to s. 246.1(1)(a) of the Criminal Code He entered the home of the complainant, a fifteen year-old girl, without invitation, seized her around the shoulders and arms and grabbed her

583

breasts o She testified at trial that he tried to grab her "private" but did not succeed On appeal, the Court of Appeal expressed the view that the modifier "sexual" in the new offence of sexual assault should be taken to refer to parts of the body, particularly the genitalia o Because there was no contact with the complainant's genitals, the conviction at trial was set aside and a conviction for common assault substituted

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Issue: Does the definition of sexual assault require genital touching? Holding: No; Appeal allowed McIntyre J Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated

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The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant

586

The accused's intent or purpose as well as his motive, if such motive is sexual gratification, may also be factors in considering whether the conduct is sexual

Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only In the present case, there was ample evidence before the trial judge upon which he could find that sexual assault was committed

587

The prosecution of sexual assault can be fraught with evidentiary difficulties, in particular as they relate to the issue of consent Pappajohn v. The Queen SCC (1980), 52 CCC (2d) 481 Facts The appellant listed his house for sale with the real estate firm with which the complainant, a real estate saleswoman, was associated After an appointment at a downtown restaurant for lunch to discuss the

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house sale, during which lunch a good deal of liquor was consumed by both parties, they went to the appellant's house, the one which was listed for sale There, the complainant contended, she was raped over her protests and struggles, while the appellant claims he had an amorous interlude involving no more than a bit of coy objection on her part and several acts of intercourse with her consent When the defence closed its case and before the trial judge commenced his charge, the jury was excluded while counsel for the appellant argued

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that the trial judge should put the defence of mistake of fact to the jury The trial judge refused to accede to the request and the appellant was eventually convicted of the rape of the complainant The conviction was affirmed in the Court of Appeal Issue: Was the judge required to put the defence of mistake of fact to the jury? Holding: No; Appeal dismissed McIntyre J

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It is well established that the trial judge must put before the jury any defences which may be open to the accused upon the evidence whether raised by the accused's counsel or not This, however, does not mean that the trial judge becomes bound to put every defence suggested to him by counsel There must be in the evidence some basis upon which the defence can rest and the judge must consider, assuming that the evidence relied upon by the accused to support a defence is true,

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whether that evidence is sufficient to justify the putting of the defence o The test to be applied is that there must be in the record some evidence which would convey a sense of reality in the submission To require the putting of the alternative defence of mistaken belief in consent, the evidence must appear from or be supported by sources other than the accused in order to give it any air of reality

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Dickson J (dissenting) The mens rea which is required will vary with the particular crime: it can only be determined by detailed examination of the actus reus of the offence In a case of alleged rape, where a fact or circumstance is not known to, or is misapprehended by, the accused, leading to a mistaken but honest belief in the consent of the woman, his act is not culpable in relation to that element of the offence

593

The actus reus of rape is complete upon (a) an act of sexual intercourse; (b) without consent An affirmative finding as to each of these elements does not finish the inquiry, however, for the requirement that there be a guilty intention must also be satisfied Intention or recklessness must be proved in relation to all elements of the offence, including absence of consent

594

An honest and reasonable mistake of fact is on the same footing as the absence of a reasoning faculty, as with infants, or impairment of the faculty, as in lunacy Culpability rests upon commission of the offence with knowledge of the facts and circumstances comprising the crime Mistake is a defence where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged

595

Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence Whether the mistake is rooted in an accused's mistaken perception, or is based upon objective, but incorrect, facts confided to him by another, should be of no consequence.

With respect to whether a defence of honest, though mistaken, belief in consent must be based on reasonable grounds The mind with which the jury is concerned is that of the accused, not

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that of a reasonable man By importing a standard external to the accused, there is created an incompatible mix of subjective and objective factors If an honest lack of knowledge is shown, then the subjective element of the offence is not shown To apply the reasonable standard in this appeal, the Court would defy accepted and sound principles of criminal law

Section 265(4) of the Code codifies Papajohn

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s. 265(4) Criminal Code Accuseds belief as to consent Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accuseds belief,

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to consider the presence or absence of reasonable grounds for that belief Judges continue to be divided on what constitutes an air of reality In Bulmer and Illingworth v. The Queen (1987) CCC o McIntyre J recognizes that the circumstances are key: The statement of the accused alleging mistaken belief will be a factor but will not by itself be decisive, and even in its total absence, other circumstances might dictate the putting of the defence

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o Lamer J with the air of reality norm if understood as enabling the trial judge to choose not to leave the defence of honest belief with the jury even in a case where the accused has taken the stand and asserted under oath that he or she honestly believed in consent Note on Osolin v. The Queen SCC, [1993] 4 SCR 595 The court considered whether s.265(4) violates s.11(d) or s.11(f) (right to trial by jury) of the Charter

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It was decided that it did not Cory J o Section applicable to all assaults, not just sexual o In sexual assault there was some confusion as whether the evidence needed to put forth the defence of mistake of consent needed to come from a source other than the accused It has been decided that the evidence simply needs to be more than the mere assertion of a mistaken belief. o s.265(4) does not create a presumption but only bears a tactical

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evidential burden It still leaves the burden on the Crown in regard to all the essential elements of the offence Prosecution must prove mens rea and actus reus beyond a reasonable doubt The court disagreed on whether there can be an air of reality when complainant/accused have given diametrically opposed versions of facts o McLachlin J (+4) Not logically impossible to conceive the defence of honest

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but mistaken belief arising While it may rarely occur, seems that it will be possible for jury to accept parts of the testimonies o CoryJ ( +3) agree that in such circumstances cannot be air of reality The jury will nonetheless have to be satisfied beyond a reasonable doubt that consent was lacking

603

The test for Air of Reality applies with respect to any matter of defence raised by the evidence and does not carry a legal burden with it The test consists on whether a properly instructed jury acting reasonably could acquit by virtue of finding a reasonable doubt Mistake

604

In 1983 the Code was amended so that the previous sexual history of complainants would be excluded from evidence at trial Sansregret v. The Queen SCC (1985), 18 CCC (3d) 223 Facts The accused was charged under s.143(b)(i) for sexually assaulting a victim, breaking into her home and terrorizing her The victim became compliant with the accused in order to ensure her own safety

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At trial the accused raised the defence of mistake of fact in consent and was acquitted The CA set aside the acquittal and entered a conviction for rape. Issue: Was there mistake of fact in consent? Holding: No; Appeal dismissed McIntyre J The defence of mistake of fact rests on the proposition that the

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mistaken belief, honestly held, deprives the accused of the requisite mens rea for the offence The mens rea for rape under s. 143(b)(i) of the Criminal Code must involve a knowledge that the woman is consenting because of threats or fear of bodily harm, or recklessness as to its nature An honest belief on the part of the accused -- even though unreasonably held -- that the woman was consenting to intercourse freely and voluntarily and NOT because of threats

607

would negate the mens rea and entitle the accused to an acquittal In the present circumstances, the defence of mistake of fact was not available to the accused The trial judge found that the complainant consented out of fear and that the appellant blinded himself to the obvious and made no inquiry as to the nature of the consent which was given To proceed with intercourse in such circumstances without further

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inquiry constitutes self-deception to the point of wilful blindness R. v. Seaboyer SCC (1992), 66 CCC (3d) 321 The SCC held that the rape-shield provisions of s.276 of the Code violated ss. 7 and 11(d) of the Charter and were not justified under s.1 The court also unanimously held that s.277, prohibiting the use of evidence of sexual reputation to challenge the credibility of the complainant, was constitutional

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McLachlin J The goals of the legislation, the avoidance of unprobative and misleading evidence, the encouraging of reporting and the protection of the security and privacy of the witnesses, conform to our fundamental conceptions of justice The concern with the legislation is not as to its purpose, which is laudable, but with its effect Section 277 excludes evidence of sexual reputation for the purpose of

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challenging or supporting the credibility of the plaintiff There is no logical or practical link between a woman's sexual reputation and whether she is a truthful witness It follows that the evidence excluded by s. 277 can serve no legitimate purpose in the trial Section 276, unlike s. 277, does not condition exclusion on use of the evidence for an illegitimate purpose Rather, it constitutes a blanket exclusion, subject to three exceptions --

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rebuttal evidence, evidence going to identity, and evidence relating to consent to sexual activity on the same occasion as the trial incident The question is whether this may exclude evidence which is relevant to the defence and the probative value of which is not substantially outweighed by the potential prejudice to the trial process o It in fact could

Consider the defence of honest belief

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The basis of the accused's honest belief in the complainant's consent may be sexual acts performed by the complainant at some other time or place, tet section 276 would preclude the accused leading such evidence.

I conclude that the operation of s. 276 of the Criminal Code permits the infringement of the rights enshrined in ss. 7 and 11(d) of the Charter In achieving its purpose -- the abolition of the outmoded, sexistbased use of sexual conduct evidence -- it overshoots the mark

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and renders inadmissible evidence which may be essential to the presentation of legitimate defences and hence to a fair trial L' Heureux-Dub J (dissenting) Sexual assault is not like any other crime It is for the most part unreported and the prosecution and conviction rates are among the lowest for all violent crimes

614

Evidence of sexual history of the complainant is almost invariably irrelevant and, in any event, is nothing more than a prohibited propensity argument, besides being highly prejudicial to the integrity and fairness of the trial process It is my view that, assuming that both the trier of fact and the trier of law are operating in an intellectual environment that is free of rape myth and stereotype about women, any evidence excluded by this subsection would not satisfy the "air of reality" that must accompany this defence nor would it

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provide reasonable grounds for the jury to consider in assessing whether the belief was honestly held Parliament responded to Seaboyer with Bill C-49 to deal with substantive evoidentiary matters Not surprisingly, these amendments were also challenged, and so the dialogue between the SCC and Parliament is ongoing R. v. Darrach SCC, [2002] 2 SCR 443

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Facts The accused was charged with sexual assault and, at his trial, attempted to introduce evidence of the complainants sexual history He unsuccessfully challenged the constitutionality of s. 276.1(2)(a) of the Criminal Code (which requires that the affidavit contain detailed particulars about the evidence), ss. 276(1) and 276(2)(c) (which govern the admissibility of sexual conduct evidence generally), and s. 276.2(2) (which provides that the complainant is not a compellable witness at the hearing determining the admissibility of evidence of prior

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sexual activity) After a voir dire the trial judge refused to allow the accused to adduce the evidence of the complainants sexual history The accused was subsequently convicted of sexual assault The Court of Appeal dismissed the accuseds appeal, concluding that the impugned provisions did not violate the accuseds right to make full answer and defence, his right not to be compelled to testify against himself or his right to a fair trial as protected by ss. 7, 11(c) and 11(d) of the Charter

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Issue: Was the prohibition to adduce evidence of the complainants sexual history unconstitutional? Holding: No; Appeal dismissed Major J The current version of s. 276 of the Criminal Code is in essence a codification by Parliament of the Courts guidelines in Seaboyer The substantive aspect of s. 276 does not infringe the accuseds s. 7 right to

619

make full answer and defence or his s. 11(d) right to a fair trial Far from being a blanket exclusion, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences, namely, that a complainant is more likely to have consented to the alleged assault and that she is less credible as a witness by virtue of her prior sexual experience These twin myths are simply not relevant at trial - they are not probative of consent or credibility and can severely distort the trial

620

process Because s. 276(1) is an evidentiary rule that only excludes material that is not relevant, it cannot infringe an accuseds right to make full answer and defence An accused has never had a right to adduce irrelevant or misleading evidence With respect to the procedural aspect of s. 276, the requirement that an

621

accused present an affidavit and establish on a voir dire that the evidence is admissible in accordance with established criteria does not infringe his right not to be compelled to be a witness in proceedings against him, nor a right not to reveal his defence It is a basic rule of evidence that the party seeking to introduce evidence must be prepared to satisfy the court that it is relevant and admissible. Further, the particular voir dire required by s. 276 does not offend the principle against self-incrimination because the requirement that the

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accused establish a legitimate use for evidence of sexual activity does not compel him to testify o The affidavit requirement does not infringe the accuseds right to silence o The right to silence in s. 7 comprises the right to silence before trial and the privilege against self-incrimination at trial; it is inaccurate to speak of an absolute right to silence at the trial stage of the criminal process Lastly, s. 276 does not offend the presumption of innocence because

623

nothing in s. 276 obviates the Crowns basic duty to establish all the elements of a sexual offence beyond a reasonable doubt The non-compellability of the complainant at the voir dire and the requirement to submit to cross-examination on the affidavit do not infringe the accuseds right not to be compelled to testify at his own trial An accused does not face a legal compulsion to testify and the tactical pressure he encounters is not unfair

624

The Crowns right to cross-examine on the affidavit under s. 276 is essential to protect the fairness of the trial Furthermore, on the voir dire, s. 13 of the Charter protects an accused against self-incrimination o This privilege against self-incrimination applies because a voir dire is an other proceeding within the meaning of s. 13.

The complainants non-compellability at the voir dire is based on sound legislative goals

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R. v. Ewanchuk SCC, [1999] 1 SCR 330 Facts The complainant, a 17-year-old woman, was interviewed by the accused for a job in his van After the interview, the accused invited the complainant to see some of his work which was in the trailer behind the van The complainant purposely left the trailer door open but the accused

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closed it in a way which made the complainant think that he had locked it The complainant stated that she became frightened at this point The accused initiated a number of incidents involving touching, each progressively more intimate than the previous, notwithstanding the fact that the complainant plainly said no on each occasion Any compliance by the complainant was done out of fear and the conversation that occurred between them clearly indicated that the accused knew that the complainant was afraid and certainly not a willing

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participant The trial judge acquitted the accused of sexual assault relying on the defence of implied consent and the CA upheld that acquittal Issues: 1. Did the trial judge erred in his understanding of consent in sexual assault? 2. Was the trial judges conclusion that the defence of implied consent exists in Canadian correct? Holding: No; Appeal dismissed

628

Major J A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea The actus reus of assault is unwanted sexual touching The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words

629

or actions, from the person being touched. ACTUS REUS The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent The first two of these elements are objective It is sufficient for the Crown to prove that the accuseds actions were

630

voluntary o The Crown need not prove that the accused had any mens rea with respect to the sexual nature of his behaviour The absence of consent, however, is purely subjective and determined by reference to the complainants subjective internal state of mind towards the touching, at the time it occurred o If the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent

631

The accuseds perception of the complainants state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry The trier of fact may only come to one of two conclusions: the complainant either consented or did not, there is no third option If the trier of fact accepts the complainants testimony that she did not consent, no matter how strongly her conduct may contradict that claim,

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the absence of consent is established and the third component of the actus reus of sexual assault is proven No defence of implied consent to sexual assault exists in Canadian law Here, the trial judge accepted the complainants testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as implied consent - this conclusion was an error

633

To be legally effective, consent must be freely given Section 265(3) of the Criminal Code enumerates a series of conditions including submission by reason of force, fear, threats, fraud or the exercise of authority - under which the law will deem an absence of consent in assault cases, notwithstanding the complainants ostensible consent or participation The complainants fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated While the plausibility of the alleged fear, and any overt expressions of it,

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are obviously relevant to assessing the credibility of the complainants claim that she consented out of fear, the approach is subjective MENS REA The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched.

635

The accused may challenge the Crowns evidence of mens rea by asserting an honest but mistaken belief in consent The defence of mistake is simply a denial of mens rea It does not impose any burden of proof upon the accused The accused need not testify in order to raise the issue Consent is an integral component of the mens rea, but considered from the perspective of the accused In order to cloak the accuseds actions in moral innocence, the evidence

636

must show that he believed that the complainant communicated consent to engage in the sexual activity in question A belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire, is not a defence o The accuseds speculation as to what was going on in the complainants mind provides no defence.

For the purposes of the actus reus consent means that the complainant in her mind wanted the sexual touching to take place

637

In the context of mens rea -- specifically for the purposes of the honest but mistaken belief in consent -- consent means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused The two parts of the analysis must be kept separate. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence If so, then the question which must be answered by the trier of fact is

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whether the accused honestly believed that the complainant had communicated consent To be honest, the accuseds belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2

If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been

639

re-established before he resumed his advances Here, the accused knew that the complainant was not consenting before each encounter The trial judge ought to have considered whether anything occurred between the communication of non-consent and the subsequent sexual touching which the accused could honestly have believed constituted consent.

640

But for his errors of law, the trial judge would necessarily have found the accused guilty Since a new trial would not be in the interests of justice, this Court can properly exercise its discretion under s. 686(4) of the Code and enter a conviction LHeureux-Dub (concurring) Canada is a party to the Convention on the Elimination of All Forms of

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Discrimination against Women, which requires respect for and observance of the human rights of women These human rights are protected by ss. 7 and 15 of the Charter and their violation constitutes an offence under the assault provisions of s. 265 and under the more specific sexual assault provisions of ss. 271, 272 and 273 of the Criminal Code This case is not about consent, since none was given It is about myths and stereotypes

642

The application of s. 265(3) requires an entirely subjective test As irrational as a complainants motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent. The question of implied consent should not have arisen The findings necessary to support a verdict of guilty on the charge of sexual assault were made

643

In particular, there was no evidence that would give an air of reality to a defence of honest but mistaken belief in consent for any of the sexual activity which took place in this case McLachlin J. (concurring) The reasons of Major J. and the finding of LHeureux-Dub J. that stereotypical assumptions lay at the heart of this case were agreed with These stereotypical assumptions no longer find a place in Canadian law

644

Forms of Participation Participation is the basis for liability Four forms of participation 3 as per s.21

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o Actual commission o Aiding and abetting o Common intention s. 21 Criminal Code Parties to offence 21. (1) Every one is a party to an offence who (a) actually commits it;

646

(b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Common intention (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in

647

carrying out the common purpose, commits an 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 that offence. Paragraph 2 is unique because a person may be held responsible for some crime she did not intend but should have foreseen when committing some other unlawful act o Involves the element of an objective test o The consequence must be probable and not merely possible

648

A fourth form of participation is counselling Mere suggestion to commit a crime is not counselling, encouragement must be involved Conceptually the crime of counselling is completed when you counsel someone to commit the crime o Does this mean that if you change you withdraw after counselling you are still held liable?

649

Yes, but if the person whom you counselled does not committed the crime, you will not be held liable for s.22

s. 22 Criminal Code Person counselling offence 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 counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

650

Idem (2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling. Definition of counsel (3) For the purposes of this Act, "counsel" includes procure, solicit or incite.

651

Categories of felonious offenders as per R. v. Berryman Principals in 1st degree (actual commission as per s.21) Principal in 2nd degree (aiding and abetting as per s.22) Accessory before the fact Accessory after the fact o There is no accessory during the fact, as this would involve being a principal in the commission in the crime

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Principals As per s.21(1)(a), these are the individuals who actually commit the offence Subject to proof of identification, this rarely poses challenges However, it is possible for a person to be found guilty as a principal when she commits the offence through the agency of anther R. v. Thatcher SCC, [1987] 1 SCR 652 Facts

653

Appellant was charged with causing the death of his ex-wife following their separation and an increasingly bitter relationship The accused's ex-wife was ferociously beaten and then shot to death At trial, the Crown led direct and circumstantial evidence to prove that the appellant had personally murdered his ex-wife or, alternatively, that he aided or abetted the killer In his charge, the trial judge instructed the jurors that the appellant could be found guilty of murder if they were satisfied beyond a reasonable doubt that he was the principal offender or a party to the

654

offence under s. 21 of the Code The jury returned a verdict of guilty of first degree murder contrary to s. 218 of the Code The majority of the Court of Appeal dismissed his appeal. Issue: Does the jury need to unanimously agree on the level of participation to return a guilty verdict? Holding: No; the appeal was dismissed Dickson CJC

655

It is not necessary to instruct the jury that they must be unanimous as to which of the subsections of s. 21 grounds the criminal liability of a particular accused Section 21 is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant o It eliminates the need for the Crown to choose between two different forms of participation in a criminal offence, as it provides that both should be treated as one single mode of incurring

656

criminal liability It was clear that every juror was convinced that the accused had committed a murder in one of two ways, and to acquit the accused on the basis that they could not agree on which of the two ways would fail to achieve justice and this was the very reason s. 21 was enacted

Where an accused is tried alone and there is evidence that more than one person was involved in the commission of the offence, it is appropriate to direct the jury with respect to the provisions of s. 21

657

As much of the Crown evidence was consistent with either theory, it was not necessary for the judge to go through it with respect to each theory In any event, given the effect of s. 21, the two theories were not legally different views of what happened and to stress the difference between the theories might leave the jury with the erroneous impression that they had to decide between the theories Lecture notes Even though the jury was not clear about how he killed his wife, they

658

believed he was somehow involved in it, and was still convicted o In the common law there would have been no conviction, as the just would have had to be unanimous in the issue of liability o But under s.21 of the Code the requirements are sufficed R. v. H. (L.I.) Manitoba CA (2004), 17 CR (6th) 338 Facts

659

A 63-year-old man was assaulted by three young men and they were convicted of manslaughter A charge of second degree murder was laid against a fourth participant, the accused, who was 13 at the time of the offence One witness stated that the accused was an active participant but the judge rejected this evidence as inconsistent o The judge then refused to instruct the jury regarding the applicability of section 21(1) of the Code Prior to the jury's deliberations, the judge gave them a list of questions,

660

the first was whether the accused caused the death of the deceased The jury later asked the judge if they had to decide whether he directly caused the death or whether he was a participant o After considerable discussion with counsel, she responded that the jury had to be satisfied beyond a reasonable doubt that the accuseds conduct contributed to the death The accused was acquitted Issues: 1. Did the judge err in not charging the jury on s.21?

661

2. Is it necessary for the accused to be the sole or contributing cause of death to be found guilty as a participant? Holding: 1.Yes 2. No; the appeal was allowed and a new trial ordered Freedman JA There was no charge on s.21 because the judge concluded that, since the witness was not believed, the accused should be acquitted This was an oversimplification that caused the judge to go astray

662

The judge erroneously focused on causation and whether the accused contributed to the death If the jury had been properly instructed about section 21, it would not have been necessary to consider whether the accused was the sole or contributing cause of the death Causation would be proven if the victim died as the result of an assault and the accused participated in the assault

663

The jury should have been charged regarding section 21(1) because there was evidence that H had been a participant Otherwise the jury could be left in doubt about the role that the accused would have had to have played, and particularly whether he had to strike the killing blow, in order to be found guilty Under s. 21 it is clear that the precise nature of the role, so long as it is either that of a principal or an aider, is irrelevant, and that should have been explained to the jury Once an evidentiary basis existed for liability as a principal, it was not

664

necessary to establish an evidentiary base to find liability as an aider or abettor In order to convict an accused under s. 21(1)(b) or (c), it is imperative that there is some evidence indicating that the accused intentionally assisted or encouraged another person to commit the crime If there is no such evidence, the jury should not be charged on s. 21(1) (b) or (c)

665

As long as there is evidence before the jury which indicates that the accused actively participated in the crime with the requisite intent, it will not matter whether the jury finds the accused's participation to be that of a principal, or that of an aider or abettor, as long as the jury is satisfied beyond a reasonable doubt that the accused did actively participate in the crime with another person R. v. Berryman British Columbia CA (1990), 57 CCC (3d) 375

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Facts The accused was a government employee convicted of making a written statement on a passport application form she knew to be false in order to obtain the passport She further reived accepted applications knowing persons from whom she received them were not applicants and falsely stated in writing that applicants produced proof of citizenship Passports were produced by other employee (the government) Trial judge found that accused was not a party to offence of forging as

667

aider or abettor since other employee committed no forgery Issue: Can the accused be found guilty of participation when she did not herself commit the actus reus? Holding: Yes; the appeal was allowed and conviction entered Wood JA (for the Court) In English common law, the person who caused a felony to be committed by means of the act of an innocent agent, was considered to be a principal in the

668

first degree The question is whether this principle survive codification The common law recognized 4 types of felonious offenders Principals in the first degree were those who actually committed the offence, or who were deemed to have actually committed it by virtue of the doctrine of innocent agency Principals in the second degree were those who aided or abetted the commission of the offence by the principal(s) in the first degree

669

Accessories before the fact were those who counselled or procured the commission of a felony by another, but who were neither present nor active at the time of its commission An accessory after the fact was one who, knowing that a felony had been committed by another, received, relieved, comforted, or assisted that person.

A significant development in Canada was the Criminal Code and its categories of participation

670

As a consequence of this enactment, those who formerly were known to the law as principals in the second degree became parties under (s.21 (b) and (c)), and those who would previously have been accessories before the fact became parties under ss.22 (counselling) Those who would have been principals in the first degree, including those who committed an offence by means of an innocent agent, must be taken to have been described in s.21(a) The sole authority in which the doctrine of innocent agency has been applied

671

in Canada is R. v. MacFadden (1971), where the Court held that he who employs an innocent agent for the purposes of transporting narcotics is himself guilty of the resulting trafficking S. 21 must be strictly construed At first sights is seems that the wording of s.21(a) suggests that a principal can only be a person who actually committed the offence However, the rules of construction require that the language of the section be read with regard for the law as it had evolved prior to 1892

672

such as the doctrine of innocent agency Past cases show t that where the agent is truly innocent of any complicity in the crime which has undoubtedly been committed, the act of such agent becomes, or is deemed to be, the act of the perpetrator A person who commits an offence by means of an instrument "whose movements are regulated" by her, actually commits the offence himself

673

While the learned trial judge was right in his conclusion that the accused could not be convicted as an aider or an abettor, because she committed no forgery, it was nonetheless open to him to convict the respondent as a principal in the first degree, under s. 21(1)(a) of the Code While the court did not want to reach any final decision on the proper construction to be given to s. 23.1 (accessory after the fact), without having the benefit of full argument on the question, it does not appear that it was

674

intended to encompass the doctrine of innocent agency The result of the doctrine of innocent agency is to render an accused guilty as a principal in the first degree under s. 21(1)(a) Occasionally the case arises in which the evidence leaves open the possibilities that the accused actually committed the offence or was party to it in some other way (see R. v. Thatcher)

675

The trial judge must instruct the jury on alternative modes of participation

Aiding and Abetting R. v. Kulbacki Manitoba CA, [1966] 1 CCC 167 Facts The accused was convicted with driving a motor vehicle in a manner

676

dangerous to the public, contrary to s. 221(4) of the Code, He was not actually driving the motor vehicle himself, but was the owner of it, and had permitted 16-year-old female, although duly licensed to drive, to take the wheel of the car and drive the motor vehicle over an unimproved municipal highway in excess of 90 m.p.h o The accused was sitting in the front seat beside the driver and allegedly did or said nothing to stop, prevent, or attempt to stop or prevent the driver of the car from driving in the manner in which she did

677

The Crown contended that the conviction was proper in that the accused had aided and abetted the commission of the offence and, as such, under s. 21(1) of the Code, was liable to the same extent as if he had been driving the vehicle Issue: Was the passenger an aider and abettor in the charge of dangerous driving? Holding: Yes; the appeal was dismissed Miller CJM (for the Court)

678

In R v. Halmo, three facts combined to make the accused responsible of reckless driving committed by his chauffer He was the owner of the motor vehicle He was the master, and the driver his hired servant He was personally present at all material times both before and at the time when the motor vehicle was being driven in a manner dangerous to the public

679

Every passenger in an unlawfully driven motor vehicle is not necessarily subject to conviction as an aider and abettor, as it is conceivable that a passenger might not have any authority over the car or any right to control the driver However, in this present case, the accused failed to make any effort to stop or prevent the commission of the offence when he was in a position to do so and when he had the authority to do so Notes Kulbacki is one of the rare examples where someone can be held

680

guilty for aiding and abetting in an offence because of an omission o Central to the courts decisions was the element of responsibility and control in part of the accused Does this make sense? o Does it open the door to criminal vicarious liability, which has traditionally been rejected by the courts?

681

Dunlop and Sylvester v. The Queen SCC (1979), 47 CCC (2d) 93 Facts The appellants were convicted on a charge of rape in their part in a mass rape of a 16-year-old by members of a motorcycle gang The complainant identified the accused as two of the men who attacked her o The accused denied the charge and testified that they had attended a meeting of the club at the dump earlier in the evening in question, and later were present in a beverage room where the

682

complainant and a friend were spending some time o Still later, the accused delivered a quantity of beer at the place of the party o Dunlop saw a female having intercourse, but he believed the person to be a member of the motorcycle club, and after three minutes he and his co-accused left Instead of restricting the issue of whether the two accused had intercourse with the complainant, the judge chose to instruct the jury upon parties to an offence under s. 21 of the Code, and it was in this

683

respect that the convictions were challenged Issue: Did the judge err in instructing the jury on the issue of the accuseds participation in the act of sexual assault? Holding: Yes; the appeal was allowed Dickson J A person is not guilty merely because he is present at the scene of a crime and does nothing to prevent it

684

If there is no evidence of encouragement by him, a man's presence at the scene of the crime will not suffice to render him liable as aider and abettor o A person who, aware of a rape taking place in his presence, looks on and does nothing is not, as a matter of law, an accomplice

In the case at bar, there is no evidence of anything more than mere presence and passive acquiescence Presence at the commission of an offence can be evidence of aiding and

685

abetting if accompanied by other factors, such as prior knowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement There was no evidence that while the crime was being committed either of the accused rendered assistance or encouragement, or that there was any positive act or omission to facilitate the unlawful purpose

A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended

686

One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned

Martland J (dissenting) It is not disputed that mere presence at the scene of a crime is not, in itself, sufficient to establish aiding or abetting the commission of an offence, but the trial judge did not instruct the jury that it was He charged the jury that "it is only necessary to show that he

687

understood what was being done and by some act on his part assisted or encouraged the attainment of that act There was evidence on which the jury could conclude taht the appellants haid aided and abetted Lecture Notes The court finds that had he know that this was taking place before he arrived in the scene, then this could be considered an act of encouragement o Mere presence is insufficient to constitute aiding and abetting

688

This is reflective of the absence of a good Samaritan principle in the common law o There is not specific culpability, absent a duty to act

Note R. v. Nixon British Columbia CA (1990), 57 CCC (3d) 97 Facts Accused was the senior officer in charge of the Vancouver police lock up He was convicted of aggravated assault of a prisoner

689

His appeal was dismissed by the CA Legg JA The court did not accept the appellants argument that he could not be convicted of an assault by reason of failure to act, because assault requires intentional force The accused was not convicted as a principal but for aiding and abetting Elaborating on Dunlop the court said that an accused who is present at the scene of an offence and who carries out no overt acts to aid or

690

encourage the commission of the offence may nonetheless be convicted as a party if his purpose in failing to act was to aid in the commission of the offence This is consistent with the wording of s.21(b): does or omits to do anything for the purpose of aiding any person to commit the offence

Common Intention

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R. v. Kirkness SCC (1990), 3 SCR 74 Facts The accused and a friend had been drinking when they agreed to break into a house at his friends suggestion The accused entered through a window and let his friend in His friend sexually assaulted and killed the eighty-three year old woman who lived there o The accused was told to leave the room when the assault began

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and remained across the hall while the assault was occurring The trial judge set out two options to the jury: either they could find both the accuseds fiend and the accused guilty of murder or the lesser included offence of manslaughter or alternatively they could find that the death occurred because of suffocation at the hands of the accuseds friend The friend was convicted of first degree murder and the accused was acquitted The CA set aside the verdict and directed a new trial on the charge of

693

manslaughter Issue: Was there a shared common intenton? Holding: Yes; the appeal was allowed Wilson J (dissenting) The common intent rule (codified in s. 21(2)) was specifically designed to determine liability in situations such as the present First the accused must be shown to have formed an intention in

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common with others to carry out an unlawful purpose and to assist them in achieving that purpose o This common intention is usually implied from the facts o It need not be pre-planned in any way and may arise just prior to or at the time of the commission of the offence The nature of the common purpose is often determinative of whether an accused will be held responsible for the principal's subsequent acts The propensity for violence of each or any of the common

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intenders is relevant to a determination of the extent of the common purpose o If the jury found that the common purpose encompassed only the breaking and entering it might be hard to justify a finding that the death of the occupant was a probable consequence of that purpose o If, however, the jury determined that the common purpose also encompassed acts of physical violence against the occupant, then the route to party liability is much clearer

696

On abandonment An accused may be absolved of criminal liability for the acts of the principal if he can show that he abandoned his purpose to assist in the commission of a criminal offence The standard varies in relation to the accused's degree of participation in the crime and the central consideration relates to the quality of the withdrawal in relation to both the offence and the type of criminal participation in which the party has

697

engaged The trial judge did not adequately instruct the jury with regard to the possibility of convicting the appellant of manslaughter or the possibility of abandonment The charge was confusing and it was erroneous and misleading with respect to the application of the common intent section The question for the jury was not whether the sexual assault caused the death but rather whether accused aided or abetted

698

his friend in a crime which was of the type which could have caused bodily harm Ss 21(1) and (2) are conceptually distinct Where an accused has aided or abetted the commission of some crime, party liability under subs. (1) follows where the crime which is ultimately committed is of the same type as the one in which the accused has assisted o The committed offence must not only be similar but must be

699

sufficiently contemporaneous with the contemplated offence Under subs. (2), on the other hand, party liability follows upon a finding that the offence actually committed was one which the accused knew or ought to have known would be a probable consequence of the commission of the contemplated offence in which he assisted Section 21(2) is reserved for those instances where there has been a break in time between the two offences and the offence actually committed follows after but as a consequence of the offence originally

700

planned It is often hard to distinguish these two scenarios

Lecture Notes Planning is not needed for there to be common intention Ought to have known is based on the reasonable person test The court also distinguishes between possibility and probability o Possibility is a much broader concept than probability

701

Abandonment Involves starting with a common purpose but leaving it behind It requires a change in mens rea What if the crime has already been committed? o If the crime is consummated, you cannot abandon it o This is why abandonment does not matter in inchoate offences, where the attempt to commit the offence constitutes the crime itself

702

R. v. Logan SCC (1990), 58 CCC (3d) 391 Facts The accused were charged with a number of offences relating to the robbery of a store and the serious wounding of the cashier Two of the accused were convicted of attempted murder and the Ontario CA held that the objective test in s.21(2) is inoperative in relation to attempted murder Issue: Should the objective test in 21(2) be inoperative in cases of offences requiring subjective foresight?

703

Holding: Yes; the appeal was dismissed Lamer CJ R. v. Vaillancourt cannot be construed as saying that Parliament cannot ever enact provisions requiring different levels of guilt for principal offenders and parties There are a few offences with respect to which the operation of the objective component of s. 21(2) will restrict the rights of an accused

704

under s. 7 of the Charter If an offence is one of the few for which s. 7 requires a minimum degree of mens rea, Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of mens rea below the constitutionally required minimum When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that

705

same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder Any conviction for attempted murder, whether of the principal directly or of a party pursuant to s. 21(2), will carry enough stigma to trigger the constitutional requirement To the extent that s. 21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foreseeability, its operation restricts s. 7

706

The objective s. 21(2) is to deter joint criminal enterprises and to encourage persons who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful purpose This is a legislative objective of sufficient importance to justify overriding the rights of an Accused under s. 7 The objective of the legislation is that this possibility of conviction through s. 21(2) will make parties more responsible for the actions of their accomplices, so there is clearly a rational connection between the restriction and the legislative objective

707

It, nevertheless, does not satisfy the proportionality test because it unduly impairs an accused's rights under s. 7

Because of the importance of the legislative purpose, the objective component of s. 21(2) can be justified with respect to most offences However, with respect to the few offences for which the Constitution requires subjective intent, the stigma renders the infringement too serious and outweighs the legislative objective which, therefore, cannot be justified under s. 1

708

The words "or ought to have known" are inoperative when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder In R. v. Davy (1993), the SCC dealt with the operation of s.21(2) to manslaughter

709

Manslaughter does not require that a risk of death be foreseeable, but instead objective awareness of the risk of harm As such, its mens rea is not incompatible with s.21(2)

Counselling R. v. Lacoursire Quebec CA (2002), 7 CR (6th) 117 Facts

710

The accused told his friends, including the principal offender, that his grandmother had a great amount of money They agreed with the principal that when the accused informed tell him, the principal would rob the grandmother o However, evidence from a phone conversation between the two showed that the accused did not want to go along with the theft o Yet a day after the theft did take place by the principal and 3 others The accused was convicted of counselling

711

Issue: Does mere suggestion constitute counselling or conspiracy? Holding: No; the appeal was allowed Proulx JCA CONSPIRACY is an agreement between two or more people with the intention to participate together in the pursuit of an illegal end There must be actual intent; if there is merely a simple study of possibilities, there is no conspiracy per se

712

It is possible to plead retreat from a conspiracy plot with the consequence of eliminating liability through s. 21(2) Whether or not there was retreat is a question of fact in each case There must be more than a mere mental change intention, and where applicable and reasonable, there must be timely communication of the intention to abandon the common purpose in order to break the chain of causation of responsibility It needs to occur at a useful time, it needs to be definitive and clear and needs to be communicated to the other co-conspirators at

713

reasonable time To establish COUNSELLING, the Crown needs to prove more than recommendations Courts have adopted the terms of active encouragement o There must a very strong element of persuasiveness Unlike conspiracy, counsel is not proven where one tells another her desire intention to see a criminal infraction take place, there must be

714

a voluntary need to convince the other party to commit a criminal act In the case at bar, the accused did not at any time counsel or incite the principal to commit theft He simply expressed an idea that provoked the principals interest who took the initiative to commit theft himself The only possible accusation was conspiracy and since he retreated and did not have intent at the time the theft occurred, he is not guilty of that

715

Accessory after the fact All of the modes of participation reviewed so far are ways in which a person can be considered a party to an offence Criminal liability of an accessory after the fact is defined in ss.23, 23.1 and 463 of the Code The analysis contemplates some relation between the conduct of the accessory after the fact and the commission of the offence

716

The accessory is not a party to the offence, but a principal party in a distinct offence that consists of facilitating the escape of another person who was party to the offence s. 23 Criminal Code Accessory after the fact (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that

717

person for the purpose of enabling that person to escape. s. 23.1 Criminal Code Where one party cannot be convicted For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

718

s. 463 Criminal Code Attempts, accessories Except where otherwise expressly provided by law, the following provisions apply in respect of persons who attempt to commit or are accessories after the fact to the commission of offences: (a) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is

719

liable to be sentenced to imprisonment for life is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years; (b) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to imprisonment for fourteen years or less is guilty of an indictable offence and liable to imprisonment for a term that is one-half of the longest term to which a person who is guilty of that offence is liable;

720

(c) every one who attempts to commit or is an accessory after the fact to the commission of an offence punishable on summary conviction is guilty of an offence punishable on summary conviction; and (d) every one who attempts to commit or is an accessory after the fact to the commission of an offence for which the offender may be prosecuted by indictment or for which he is punishable on summary conviction (i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding a term that is one-half of the longest term to which

721

a person who is guilty of that offence is liable, or (ii) is guilty of an offence punishable on summary conviction. This section of the Code delimits the sentences to be received by acecsories after the fact, depending on the offence they were involved with

R. v. Camponi British Columbia CA (1993), 82 CCC (3d) 506 Facts The accused was charged with accessory after the fact for assisting

722

James Ervin Gee, knowing that he had committed murder, for the purpose of helping him escape contrary to s.240 of the Code She was convicted of this offence Issue: What constitutes accessory after the fact? Can one be accused of accessory after the fact in helping an accused who has yet not been convicted? Holding: Yes; the appeal was dismissed Wood JA

723

The prove accessory after the fact the Crown must prove conduct on the part of the accused which had the effect of receiving, comforting or assisting a person, as well as the circumstances that such person had been a party to the offense with respect to which the accessoryship is alleged There must be also intention with respect to the conduct alleged and knowledge by the accused of the circumstance that the person was a party to the offense with respect to which the accessoryship is alleged S.23.1 notes that for greater certainty, sections 21 to 23 apply in respect

724

of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence S.23.1 has put to rest any notion that an accessory after the fact can only be tried after the principal or another party to the alleged offense has been convicted, which was the common law rule Inchoate Offences

725

Inchoate offence When the accused fell short of completing the crime There must be an actus reus and mens rea, but does not require completion These offences represent and extension to criminal liability They recognize criminal liability for conduct which falls in between innocent behaviour and the completion of a substantive offence

726

The logic behind these types of offences is that there is demonstrable and sufficient harm in setting the commission of a criminal offence in motion This type of liability must be distinguished from a substantive offence that sanctions attempt or incitement where the object is not a criminal offence E.g. incitement of hatred

727

Attempt A person who tries to commit a criminal offence, yet does not succeed, can be held liable for attempting the offence if her conduct falls within the terms s.24 of the Criminal Code s. 24 Criminal Code

728

Attempts 24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. Question of law (2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence,

729

and too remote to constitute an attempt to commit the offence, is a question of law. The actus reus is the doing of something The requisite intention is the mens rea Actus Reus An element that is very difficult to establish in issues of inchoate offences Will depend on the specifics of the case

730

R. v. Cline Ontario CA (1956), 115 CCC 18 Facts Accused was charged with indecently assaulting a 12 year-old boy He had approached the boy carrying sunglasses and asked him to help him carry his suitcases home, even though he had none (this constituted his usual modus operandi for committing this type of offence) The boy refused and run away. The accused chased him and stopped

731

him, later telling him that he will let him know and asked him to not tell him parents Laidlaw JA There is no one single theory or test applicable in all cases with regards to whether the act is sufficient to establish attempt Each case must be determined in its own facts There must be a mens rea and an actus reus to constitute a criminal

732

attempt, but the criminality of misconduct lies mainly in the intention of the accused It is not essential that the actus reus be a crime or a tort or even a moral wrong or social mischief The actus reus must be more than mere preparation to commit a crime o When the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the

733

purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt Lecture notes The court decides that the attempt was committed when the man approached the boy When the preparation was fully completed, the next step constitutes the attempt o This was when he began to approach the boy

734

You can infer the mens rea from acts he had committed previous to approaching the boy o This is a case of similar fact evidence used to impute intention, given that the man had already committed similar acts in the past The court discusses whether we have to wait until the facts unequivocally show that the act would have been performed o The law has decided that attempt should happen before Comment If we waited until the criminal action has started (e.g. when the boy is

735

touched by the man) then we have not avoided the act at all o This would imply that we would not be able to charge a person for an attempt to commit murder until the person fires the gun and misses Deutsch v. The Queen SCC (1986), 27 CCC (3d) 385 Facts The accused was charged with attempting to procure female persons to have illicit sexual intercourse with another contrary to s.195 (now, 212

736

of the Code) The accused had placed an in a newspaper recruiting secretaries, but the evidence of three applicants and of an undercover policewoman was that during the interviews, the accused indicated that part of the job included having sex with clients The trial judge acquitted the accused on the basis that his actions had not gone beyond mere preparation The Ontario CA allowed the appeal Issues: Was the accused guilty of attempt?

737

What is the difference between preparation and attempt? Holding: Yes; the appeal was dismissed Le Dain J (for the Court) The distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offense Consideration must necessarily be given in making that qualitative distinction to the relative proximity of the act in question to what

738

would have been the complete offence, in terms of time, location and acts under the control of the accused remaining to be accomplished The accused had the necessary intent to induce or persuade the women to seek employment that would require having sex with clients, in exchange for promised more money There would be little else that the appellant would be required to do towards the completion of the offense other than to make the

739

formal offer of employment Lecture notes The court speaks on a language of probability to commit the offence o Whether the accused was relatively proximate to committing the offence o When the step was an important step, or a decisive act in the sequence of events This happened when the financial compensation was offered This seems to push the actus reus a bit back than Cline

740

Mens Rea R. v. Ancio SCC (1984), 10 CCC (3d) 385 Facts

741

Ancio, who wanted to speak with his estranged wife, broke into an apartment building with a loaded shotgun Kurely, the man Ancis wife was staying with, threw a char at Ancio when he saw him climbing up the stairs The gun discharged, missing Kurely and a struggle followed The trial judge found that the accused had broke into the apartment with the intent to use the weapon and convicted him of attempted murder The CA overturned the decision and ordered a new trial

742

Issue: Did the accused posses the intent of attempted murder? Holding: No; the appeal was dismissed McIntyre J (for the Court) The common law recognition of the fundamental importance of intent in the crime of attempt is carried forward into the Criminal Code It is abundantly clear that the criminal element of the offense of attempt may lie solely in the intent

743

The mens rea for an attempted murder cannot be less than the specific intent to kill.

In the case at bar, the subjective intent of murder was not proved R. v. Logan SCC (1990), 58 CCC (3d) 391 Facts The accused were charged with a number of offences relating to the robbery

744

of a store and the serious wounding of the cashier Two of the accused were convicted with attempted murder at trial, but successfully appealed to the Ontario CA Issue: Did the accused posses the intent of attempted murder? Holding: No; the appeal was dismissed Lamer CJ (for the Court) R. v. Ancio established that a specific intent to kill is the mens rea required for a principal on the charge of attempted murder

745

o According to Ancio, the elements of mens rea for attempted murder are identical to those for the most severe form of murder o Each accused must have had the specific intent to kill The crucial consideration is whether there is a continuing serious social stigma which will be imposed on the accused upon conviction; since there is one Parliament cannot include objective foresight as being sufficient for a conviction without restricting s.7

746

Note on R. v. Sorrell and Bondett Ontario CA (1978), 41 CCC (2d) 9 Facts The accused were charged with attempted robbery of the manager of a fried chicken store Issue: Did the accused posses the intent of attempted robbery? Holding: No Lamer CJ (for the Court)

747

Where there is no extrinsic evidence of the intent with which accuseds acts were done, acts of the accused, which on their face are equivocal, may be INSUFFICIENT to show that the acts were done with the intent to commit the crime that the accused is alleged to have attempted to commit, and hence insufficient to establish the offense of attempt The Crown did not satisfy the court with evidence that there was intention to commit robbery

748

Impossibility Can a person be guilty of an attempt to commit an offence which for some reason is impossible United States v. Dynar SCC, [1997] 2 SCR 462 Facts

749

Dynar agreed to launder dirty drug money into the US as an undercover FBI agent He was charged with attempt to launder money However, it was factually impossible for him to have carried out the crime since he was the subject of a sting operation with the FBI Further, he sent his associate to meet the FBI and he did not meet them in person, but contracted with them through telephone The CA allowed the accused committal decisions Issue: Was the accused guilty of attempt to money launder despite the

750

impossibility of being able to actually commit the crime? Holding: Yes; appeal allowed Cory and Iacobucci JJ On its face, the Canadian Criminal Code is indifferent about whether or not the attempt might possibly have succeeded S.24 is clear in that the crime of attempt consists of an intent to commit the completed offence together with some act more than merely preparatory

751

taken in furtherance of the attempt The only relevant distinction for purposes of s. 24(1) is between imaginary crimes and attempts to do the factually impossible Only attempts to commit imaginary crimes fall outside the scope of the provision o The accused attempted to commit crimes known to law and was thwarted only by chance Sufficient evidence was produced to show that Dynar intended to commit the

752

money-laundering offences and that he took steps more than merely preparatory in order to realize his intention Since an attempt in its very nature is an incomplete substantive offense, it will always be the case that the actus reus of the complete offense will be deficient, and sometimes this will be because an attendant circumstance is lacking Hence, it should not be troubling that Dynar did not constitute the actus reus of the money laundering offenses

753

Incitement Criminal liability for incitement or counselling exists in two forms in Canadian law The first is incitement of an offence which is actually committed (s.22) o This is a mode of participation in the commission of the offence The second is incitement of an offence not committed (s.464)

754

o This is an offence of inchoate liability o This type of incitement is criminalized on the theory that by inciting another, the inciter has already taken affirmative steps toward the completion of an offence s. 464 Criminal Code Counselling offence that is not committed Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences,

755

namely, (a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and (b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an

756

offence punishable on summary conviction.

Ford v. The Queen Ontario CA (2000), 145 CCC (3d) 336 Facts The Crown contended that the appellant had contracted a certain John Doe to kill a certain Bidwell to prevent that person from giving testimony against the appellant in a trial on charges of breaking and

757

entering and possession of stolen property Bidwell was shot but he survived According to Doe, Ford told him that he had been caught with some stolen goods and Bidwell would testify against him The accused denied playing any role in or having any prior knowledge of Does attempt to kill Bidwell o While Ford did discuss his legal problems with Doe and told him about Bidwells unwillingness to help out, he denied ever suggesting that he should be killed

758

The accused was convicted at trial of the offence of counselling murder but acquitted of the offense of conspiracy to commit murder and attempted murder Issue: Could the accuseds conviction for counselling stand despite the fact that he was not guilty for conspiracy and attempted murder? Holding: Yes; appeal dismissed Macpherson JA While there is without question some overlap in the definitions of conspiracy,

759

attempted murder (aiding and abetting) and counsel, there were sufficient differences in the definitions provided by the trial judge to justify the three verdicts reached by the jury Indeed, one person may counsel or procure another to commit the offense as a result of persuasion and bargaining There is no necessity that the person who procures and the person who commits form a conspiracy or a real agreement as to how it will be done

760

Conspiracy involves an agreement between two persons to do something; counselling involves one person urging another to do something Agreement is the anchor of conspiracy, while agreement is unconnected to counselling

The difference between attempted murder in terms of aiding and abetting and counselling is that the word encourage is limited to oral encouragement in terms of counselling while abetting requires actual participation or

761

assistance rendered Note on R. v. Dungey Ontario CA (1979), 51 CCC (2d) 86 Facts The accused, a lawyer was charged with unlawfully conspiring with a client to defraud the Law Society of Upper Canada He was said to have agreed that the client would apply for full legal aid and also pay the lawyer a certain amount from his own funds

762

Issues: 1. Is the accused guilty of conspiracy? 2. Is he guilty of attempt to fraud? Holding: 1. No; 2. No Dubin JA Although defrauding was the lawyers intention, the client never entered into the agreement based on the evidence, hence, there is no conspiracy

763

In addition, his actions were too preparatory and hence he was innocent of attempt Incitement could have been a more appropriate charge, but given the evidence, the court was not prepared to discuss the issue R. v. Gonzague Ontario CA (1983), 4 CCC (3d) 505 Facts

764

The accused was convicted for procuring another to commit an offense of first degree murder, which was eventually not committed The victim in question was the accuseds former employee who opened up a shop to compete with him The accused told a man named Charbonneau he wanted to kill the potential victim and the he had some people from out of town coming to do the job would kill the victim Since Charbonneau did not want to see this person get hurt, he suggested instead that he would kill the victim himself

765

Charbonneau then approached the police, obtained some money for the accused gave it to the authorities Before the accused was arrested, however, he called Charbonneau and told him to forget about the matter Issues: 1. Was the accused guilty of counselling? 2. Could renunciation be applicable to counselling? Holding: 1. Yes 2. No; the appeal was allowed for other reasons Martin JA (for the Court)

766

The offense of procuring is complete when the solicitation or incitement occurs even though it is immediately rejected by the person solicited or even though the person solicited merely pretends assent and has no intention of committing an offence There is no authority in either the Canadian or Commonwealth decisions in support of the view that renunciation of the criminal purpose constitutes a defence to a charge of counselling, procuring or inciting Active persuasiveness on the part of the accused is sufficient

767

What is the mental element required for proof of incitement under s.464? R. v. Janeteas Ontario CA (2003), 172 CCC (3d) 97 Facts The accused was convicted of one count of counselling murder and two counts of counselling the indictable offence of unlawfully causing bodily

768

harm Issue: What is the requisite mental state for the crime of counselling an indictable offense that is not committed? Holding: The counsellor must intend the offense he counsels the principal to commit, to actually be committed; appeal allowed and verdicts of acquittal entered Moldaver JA (for the Court) The offence of counselling can only be made out upon proof that the

769

counsellor intended the commission of the offense(s) counselled No one should be found guilty of furthering an offense without intending that the offense be committed The counsellor must intend that his conduct will result in the offender actually committing the offense counselled An intention to bring about the criminal result is of the essence of incitement It has indeed been rejected with all inchoate offenses that recklessness as to the consequences would suffice as the

770

requisite intent Solicitation (as in counselling) is accomplished by the mere act of having enticed, advised, incited, ordered or otherwise encouraged that person to commit a crime Summary on criminal liability and inchoate offences (from R. v. Janeteas) Assume that A wishes to have his enemy B killed, and asks C to kill B for him

771

If C acts upon A's request and fatally shoots B, then both A and C are guilty of murder If, again, C proceeds with the plan to kill B, but he is unsuccessful, then both A and C are guilty of attempted murder If C agrees to A's plan to kill B but the killing is not accomplished or even attempted, A and C are nonetheless guilty of the crime of conspiracy But if C immediately rejects A's homicidal scheme, so that there is never even any agreement between A and C with respect to the intended crime

772

o C has committed no crime at all, yet A, however, because of his bad state of mind in intending that B be killed and his bad conduct in importuning C to do the killing, is guilty of the crime of solicitation o For the crime of solicitation to be completed, it is only necessary that the actor with intent that another person commit a crime, have enticed, advised, incited, ordered or otherwise encouraged that person to commit a crime The crime solicited need not be committed

773

R. v. Hamilton Alberta CA (2003), 178 CCC (3d) 434 Facts Hamilton offered for sale on the Internet a machine which he advertised as a credit card number generator As part of the same package of Top Secret files, he also offered for sale bomb recipes and information on how to commit burglaries He was charged with counselling crimes that were in fact never committed He was acquitted by the trial judge, as he found that the accused did

774

not intend the crimes described The Crown appeals arguing that recklessness is sufficient for the mens rea for counsel, and proof that the person committing the counsel intended that the offense be committed is unnecessary Issue: Is recklessness sufficient for mens rea purposes in counselling? Holding: No; appeal dismissed (note that this was overturned in 2005) Moldaver JA (for the Court) It is clear Parliament did not set out a mens rea in s. 464 of the Code

775

In the absence of legislative direction, it is presumed that some form of subjective mens rea is required

Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them The danger in using a lesser standard of subjective mens rea (such as

776

recklessness or wilful blindness) to support a conviction under section 464 lies in the nature of the section The conduct it prohibits is counselling a crime that is not committed, so there is no detrimental consequence from the performance of the actus reus This means that the counsellor's state of mind is the sole factor that determines whether his or her conduct is criminal o In such a situation, the stricter standard of subjective mens rea should apply

777

Note: This decision was overturned in 2005 by the SCC for the following reasons given by Fish J The actus reus for counselling will be established where the materials or statements made or transmitted by the accused actively induce or advocate and do not merely describe the commission of an offence o Janeteas was decided on an unusual set of facts and in light of concessions by Crown counsel as to the inadequacy of the trial judges instructions to the jury The mens rea consists in nothing less than an accompanying

778

intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accuseds conduct Nothing in the evidence suggests that the accused intended these documents to be read in a different manner or that they be used for a

779

different purpose Moreover, the trial judge expressly found that the accused had subjective knowledge that the use of false credit card numbers is illegal

Conspiracy

780

A conspiracy exists when two or more people agree to commit a criminal offence and it is complete upon their agreement Difficulties can arise through issues such as whether there was an agreement or not United States v. Dynar SCC, [1997] 2 SCR 462 Facts Dynar agreed to launder dirty drug money into the US as an undercover FBI agent

781

He was charged with attempt to launder money However, it was factually impossible for him to have carried out the crime since he was the subject of a sting operation with the FBI Further, he sent his associate to meet the FBI and he did not meet them in person, but contracted with them through telephone The CA allowed the accused committal decisions Issues: 1. Was constitutes conspiracy? 2. Is factual impossibility a defence to conspiracy? Holding: 2. No

782

Moldaver JA (for the Court) A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means There must be an intention to agree, the completion of an agreement, and a common design To conspire is to agree

783

The essence of criminal conspiracy is proof of agreement The actus reus is the fact of agreement o The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was in fact a common agreement to which the acts are referable and to which all of the alleged offenders were privy

Where one member of a so-called conspiracy is a police informant

784

who never intends to carry out the common design, there can be no conspiracy involving that person Nonetheless, a conspiracy can still exist between other parties to the same agreement It is for this reason that the conspiracy in this case is alleged to involve Dynar and Cohen, and not the informant Impossibility is not a defence to conspiracy; criminal liability will still ensue as long as the agreement and the common intention can be

785

proved Since the offense of conspiracy only requires an intention to commit the substantive offense, and not the commission of the offense itself, it does not matter that from an objective point of view commission of the offense may be impossible Corporate Liability

786

Roach Ch. 10 and Lecture Notes Introduction The law concerning corporate liability was fundamentally changed by the statutory amendments found in ss.2, 22.1 and 22.2 of the Criminal Code To understand these changes, it is important to study the common law that existed before the amendments were passed The new statutory regime replaced the former concept of directing minds in the corporations, whose fault could be attributed to the corporation, with the broader concept of senior officer

787

Furthermore, s.22.1 now provides for organizational liability for criminal offences of negligence and s.22.2 provides for organizational liability for criminal offences of subjective intent

Why punish a corporation? Deterrence o Make sure other corporations acts responsibly to avoid fines and stigma Moral blameworthiness?

788

The Old Common Law of Directing Minds The framework of the directing mind implied that criminal liability would only arise when higher officials who had an impact over policy would carry out criminal acts R. v. Waterloo Mercury Sales Ltd, Alberta District Ct. (1974), 18 CCC (2d) 248

789

Facts The accused corporation was charged of fraud under s.338 of the Criminal Code The accused corporation through its used car sales manager, Walter Golinuwski, purchased some 26 automobiles in Ontario and shipped them to Alberta After the vehicles were unloaded, but before being placed on the used car sales lot, the odometers of some of these vehicles were turned back to show that the car had been driven a substantially smaller number of

790

miles than it had in fact been driven Issue: Can the accused corporation be held criminally liable for the act of its used car sales manager if such act is done within the scope of his authority? Holding: Yes; Accused was convicted Legg DCJ While the used car sales manager, Golinuwski, was not an officer or director of the accused company, he was not, however, a lesser employee It was the policy of the accused corporation to delegate to him

791

"the sole active and directing will" of the corporation in all matters relating to the used car operation of the company, and as such he was its directing mind and will His actions and intent were those of the accused itself and his conduct renders the company criminally liable

The findings arrived at may be a further extension of the criminal liability of a corporation, though nonetheless, they are in line with extant jurisprudence

792

The court accepted the evidence of Mr. Purvis that he had no personal knowledge of the circumstances which led to these charges being laid and that he had circulated written instructions to all segments of his company not to alter odometers on the vehicles However, this is not a defence in light of the findings made Canadian Dredge and Dock Co. et al v. The Queen, SCC (1985), 19 CCC (3d) 1 Facts

793

Four corporate appellants appealed their convictions under ss. 338(1) and 423(1)(d) of the Criminal Code The several counts in the indictment related to contracts between certain public authorities and the accused where the bids were alleged to have been tendered on a collusive basis, with the low bidders including in their costs compensation to be paid to the "high bidders" or "non-bidders" Each company had a manager who conducted the business of the company relating to the submission of bids for tender

794

Corporate criminal liability was denied by the appellants, notwithstanding the position of these managers because these managers allegedly (1) were acting in fraud of the appellant-employers, (2) were acting throughout for their own benefit, or (3) were acting contrary to instructions and hence outside of the scope of their employment with the appellants Several companies also challenged the existence of any theory of corporate criminal liability for mens rea offences. Issue: Can the behaviour of individuals give rise to corporate liability?

795

Holding: Yes; All appeals were dismissed Estey J for the Court Since criminal and quasi-criminal offences are creatures of statute, the amenability of the corporation to prosecution necessarily depends upon the terminology in the statute A system of classification has developed which segregates the offences according to the degree of intent required to create culpability

796

Absolute Liability Offences Corporations and individual persons stand on the same footing in the face of such a statutory offence It is a case of automatic primary responsibility where no particular state of mind is a prerequisite to guilt Offences of Strict Liability In this category, the corporation and the natural defendant are in the same position

797

This is so when the statute shows a clear contemplation by the Legislature that a breach of the statute itself leads to guilt, subject to the limited defence of due diligence

Offences Requiring Mens Rea These are the traditional criminal offences for which an accused may be convicted only if the requisite mens rea is demonstrated by the prosecution.

798

Canadian courts have declined generally to apply the principle of respondeat superior in the determination of corporate criminal responsibility (widely used in the US Federal Courts) Criminal responsibility thus far has been achieved in the mens rea offences by the attribution to the corporation of the acts of its employees and agents on the more limited basis of the doctrine of the directing mind or identification The United States federal courts are inclined, as we have seen, to find criminal liability in the corporation by vicarious liability where any

799

employee-agent commits, in the course of his employment, the criminal act o This has been criticized for flinging the net too widely Corporations are punished in cases where there is no moral turpitude In the criminal law, a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization

800

There is no vicarious liability in the pure sense in the case of the natural person

On the other hand, the corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to our criminal law is as essential as in the case of the natural person Thus where the defendant is corporate the common law has become pragmatic and a modified and limited 'vicarious liability'

801

through the identification doctrine has emerged The IDENTITY DOCTRINE merges the board of directors, the managing director, the superintendent, the manager or anyone else delegated by the board of directors to whom is delegated the governing executive authority of the corporation A corporation may, by this means, have more than one directing mind o Particularly where corporate operations are frequently

802

geographically widespread This puts forth a middle ground which would see a corporation under the umbrella of the criminal law of the community but which would not saddle the corporation with the criminal wrongs of all of its employees and agents Were the charge in question is fraud, there would clearly be no benefit to the corporation, and indeed the design of the dishonest employee was aimed squarely at reducing the financial stature of the

803

employer It can hardly be said with any reality that a person designing and executing such a scheme could be, while doing so, the directing mind and the ego of the company itself The outer limit of the delegation doctrine is reached and exceeded when the directing mind ceases completely to act, in fact or in substance, in the interests of the corporation Where the directing mind conceives and designs a plan and then executes it whereby the corporation is intentionally defrauded, and

804

when this is the substantial part of the regular activities of the directing mind in his office, then it is unrealistic in the extreme to consider that the manager is the directing mind of the corporation o When he crosses that line he ceases to be the directing mind and the doctrine of identification ceases to operate The same reasoning and terminology can be applied to the concept of benefits Where the criminal act is totally in fraud of the corporate employer and

805

where the act is intended to and does result in benefit exclusively to the employee-manager, his acts could not be attributed to the corporation under the identification doctrine Since the individuals acted in benefit of the corporation, the accused corporations were held criminally responsible R. v. Safety-Kleen Canada Inc., Ontario CA (1997), 114 CCC (3d) 214 Facts

806

An appeal from conviction for two offences under the Environmental Protection Act This appeal concerns the liability of the appellant, a corporate employer, for the misconduct of Mr. Howard, its employee The appeal from the conviction on count 2 involves a consideration of the scope of corporate responsibility for offences which require proof of a culpable state of mind o Count 2 alleged that the appellant knowingly gave false information in a return to a provincial officer

807

Issue: Can the accused corporation be held criminally liable for the acts of its employee, Mr. Howard? Holding: No; Appeal allowed Doherty JA Corporations can be convicted of crimes involving a culpable mental state Absent a statutory basis for that liability, corporate liability for such crimes is determined by the application of the identification

808

theory set down in Canadian Dredge & Dock Company v. The Queen The focus of the inquiry must be whether the impugned individual has been delegated the "governing executive authority" of the company within the scope of his or her authority

The inquiry is a fact-driven one which looks beyond titles and job descriptions to the reality of any given situation

809

Mr. Howard was a truck driver for the appellant and was also the appellant's sole representative in a very large geographical area When Mr. Howard was on holidays, the appellant did not do business in the region Mr. Howard did not, however, have any managerial or supervisory function and took no role in shaping the companys policies

Since the offence alleged in count 2 requires proof of a culpable mental state, a finding of a lack of due diligence (which founded the reasoning of the trial

810

judge) is irrelevant The determinative question of whether Mr. Howard's actual authority was sufficient to justify attributing his culpable mind to the appellant was never addressed Consequently, no finding on the crucial question of whether Mr. Howard was the directing mind of the appellant for the relevant purpose exists. o There is no evidence that he had authority to devise or develop corporate policy or make corporate decisions which went beyond those arising out of the transfer and

811

transportation of waste A Note on Vicarious Liability and the Charter Vicarious liability occurs when the acts and fault of one person are attributed to another

812

Although widely used in tort law, it is disfavoured in criminal law and required a clear statement by Parliament before the introduction of the Charter

The principles of fundamental justice do not recognize the ascribing to one person of anothers state of mind Nonetheless, a statute that applies only to corporations may be immune from s.7 scrutiny as corporations are not protected as persons that enjoy the right to life, liberty and security of the person (see Irwin Toy)

813

The New Statutory Provisions for Organizational Liability The key definitions are now contained in s.2 of the Criminal Code s. 2 Criminal Code "organization" means (a) a public body, body corporate, society, company, firm, partnership, trade

814

union or municipality, or (b) an association of persons 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; ... "representative", in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization;

815

"senior officer" means a representative who plays an important role in the establishment of an organizations policies or is responsible for managing an important aspect of the organizations activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer; S. 22.1 of the Code provides for organizational liability for negligence-based offences

816

s. 22.1 Criminal Code Offences of negligence organizations 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, 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

817

representative, that representative would have been a party to the offence; and (b) the senior officer who is responsible for the aspect of the organizations 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.

818

S. 22.2 of the Code provides for organizational liability for subjective intent offences s. 22.2 Criminal Code Other offences organizations 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;

819

(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.

820

Sub-paragraph (c) requires that there is actual knowledge of the offence by the senior officer (in comparison to command responsibility which does not requires actual knowledge) o Nonetheless, it imposes an objective standard to take reasonable care

S. 718.21 sets out sentencing principles for organizations and s. 732.1(3.1) provides for probation orders against organizations

821

The new law brings us closer the US doctrine of respondeat superior Archibald and Roach The Changed Face of Corporate Criminal Liability This amendment to the Criminal Code came through Bill C-45 in 2003 Influenced by the Westray disaster Created a new regime , which applies not only to corporations, but all types of organizations

822

Replaces corporate liability based on the fault of the corporations directing minds with liability tied to the fault of all senior officers o No longer necessary to prove fault at the highest levels of corporations, but middle managers may suffice Moreover, the conduct of the organizations representatives will be attributed to the organization Significantly expanded the net of corporate and organizational liability

823

Some aspects are troubling, however Blurs the traditional distinction between regulatory and criminal liability Greater reliance on criminal liability might be worth if the result was deterrence and reparation for harms caused, though there is reason to doubt this will be the case

824

o Some corporations may simply declare bankruptcy or invoke right to silence or other Charter protections valuable for those facing criminal charges Expanded definition of organization New law extends far beyond the corporate law to include all organizations Organized criminal gangs could be prosecuted and in convicted, fined and/or place on probation

825

o So could governmental organizations, trade unions or charitable organizations o This may also force partnerships to reconsider their executive structure and acquire insurance coverage Expanded definition of representative Defined broadly to include not only directors, partners, employees and members, but also agents or contractors

826

This might require organizations to rethink issues such as insurance and the supervision of their agents and contractors

New definition of senior officer The new law requires the prosecutions to prove only that those who controlled the operation of the organization were criminally liable, and not those who set policy in the head office or board of directors Widens the liability of the corporation beyond the boardroom to include activities that are operational in nature, at the managerial level

827

As to how the words important role will be interpreted, this will be subject to future litigation The Crowns burden of proof as well as the uncertainty as to who is a senior officer, shows the continued advantage of prosecuting regulatory offences The impact of the new senior officer varies between subjective intent offences and negligence offences

Subjective intent offences

828

Charges on this are rare A corporation can be held guilty if the senior officer had the necessary intent, but subordinates carried out the physical act The senior officer, however, will need to be acting with intent at least in part to the benefit of the organization, as per 22.2(b) The law has spread the dishonour of one conviction to the entire organization o Yet this seems troublesome given that subjective intent offences are supposed to carry more stigma than other types of offences

829

o A corporation could potentially be charged with murder if a senior officer kills a competitor on her own volition since it may qualify as activities with the intent in part to benefit the organization Further, since section 21(2) contemplates liability on the basis that a senior officer ought to have know about the commission of a crime being a probable consequence, a corporation could be convicted of a subjective fault offence in part on the basis of an objective standard o This dilutes the difference between negligence and subjective intent offences

830

S.22(c) even more directly than 22(b) makes it possible for an organization to be convicted of a subjective fault offence in part because of failure of its senior officers to act in a reasonable fashion o This section present a curious combination of the subjective standard of knowingly being aware with an objective standard, in that an organization is at fault if the senior officer did not take all reasonable measures o This requirement to take remedial action is anomalous to an omission in the criminal law

831

o S. 22(c) requires senior officer to not only stop themselves, but also take reasonable measure to stop others from acting, assuming that they have enough legal knowledge to recognize the criminal conduct of their subordinates, and the power to stop them Negligence offences S.22.1 of the Code holds organization liable for crimes of negligence where the acts or omissions of its representatives depart markedly from the standard of care that is expected under the circumstances

832

The government had a clear intention in mind to expand corporate criminal liability by means of the unreasonable behaviour of their senior officers Defences

Defences can be raised as a negation of the mens rea They can also be raised as affirmative defences after the act has been commited

833

Two broad categories of affirmative defences Excuse o Fault is taken for granted o We agree that there was a blameworthy act, but the conduct should be excused o E.g. Duress Justification o Here, there is no moral blameworthiness

834

o Self-defence Harming someone to defend yourself is not worth of morally blameworthiness 1. Intoxication To what extent should self-induced intoxication afford the defendant to negate proof of a voluntary actus reus or the mens rea? This has certainly been a matter if debate over time

835

Unlike the other defences, intoxication, for the most part, is self-induced The effect, however, can be such where one cannot appreciate the consequences of ones actions The Common Law Defence of Intoxication D.P.P. v. Beard, House of Lords [1920] AC 479 Lord Birkenhead LC

836

Under the law of England until early 19th C, voluntary drunkenness was never an excuse for criminal liability, but rather an aggravating factor to an offence Nevertheless, when intent is an essential element of an offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent, should be taken into consideration This does not mean that the drunkenness in itself is an excuse for the crime, but that the state of drunkenness may be incompatible with the

837

crime charged Intoxication may, for instance, change a charge of murder into manslaughter

Three conclusions can be drawn from the jurisprudence: Insanity, whether produced by drunkenness or otherwise, is a defence to a crime charged Evidence of drunkenness which renders the accused incapable of forming the SPECIFIC INTENT essential to constitute the crime,

838

should be taken into consideration with other facts to determine whether or not a person had the intent Evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave away to violent passion, does not rebut the presumption that a person intends the natural consequences of his act Comments

839

Although intoxication can be a defence, drunkenness can negative the intent of a crime

Beard has been interpreted by some as restricting the intoxication defence to specific intent offences What does this entail, however The Intoxication Defence: Capacity or Intent?

840

There is a difference between incapacity to form an intent and absence of intent Beard speaks in terms of whether a person is so intoxicated that she does not have the capacity to form the intent For years, Courts in Canada followed this formulation of the intoxication defence R. v. Robinson, SCC [1996] 1 SCR 683 Facts

841

The accused killed a man but claimed to have acted without intent because he was intoxicated Evidence showed that he had been drinking with the victim, who said something that offended him After being instructed on provocation, self-defence and intoxication, the jury found the accused guilty The BC CA allowed his appeal and called a new trial Issue: Should the defence of intoxication be restricted to whether the accused had the capacity to form the intent?

842

Holding: No; Appeal dismissed Lamer CJC The Beard rules on intoxication (adopted in MacAskill v. The King) should be overruled, as they are inconsistent with the Charter They are inconsistent with ss. 7 and 11(d) as the create a form of constructive liability The Beard rules violate ss. 7 and 11(d) of the Charter because they

843

put an accused in jeopardy of being convicted even though a reasonable doubt could exist in the minds of the jurors on the issue of actual intent A strict application of the Oakes test is appropriate. While decisions of the legislatures may be entitled to judicial deference under s. 1 as a matter of policy, such deference is not required when reviewing judge-made law The protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right

844

A rational connection exists between the "capacity" restriction of the defence contained in the impugned common law rule and its objective The restriction fails the proportionality prong, however, because it does not impair an accused's ss. 7 and 11(d) rights as little as is reasonably possible o They cast the criminal net too far in that all accused individuals with the capacity to formulate the requisite intent cannot rely on their state of intoxication even though it might create a reasonable doubt as to whether the accused actually had the

845

intent necessary to the crime Before a trial judge is required by law to charge the jury on intoxication, she must be satisfied that the effect of the intoxication was such that the effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt Once this threshold is met, she must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite

846

intent A single step charge (Canute) is a useful model, as it omits any reference to "capacity" or "capability" and focuses the jury on the question of "intent in fact" In some cases, however, reference to "capacity" as part of a two-step procedure will be appropriate in a charge to the jury Where the only question is whether the accused intended to kill the victim, the accused is entitled to rely on any evidence of intoxication to

847

argue that he or she lacked the requisite intent If a two-step charge is used with "capacity" and "capability" type language and the charge is the subject of an appeal, then a determination will have to be made by appellate courts on a case by case basis of whether there is a reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry Comment While the defence was expanded, it did not imply that the person could

848

not be charged for a lesser offence without a specific intent Note on Lemky v. The Queen (1996), 105 CCC (3d) 137 McLachlin J The threshold to charge the jury on the intoxication defence should be whether accused was prevented from foreseeing the consequences of her act due to drunkenness

849

While capacity and intent may be related, it is possible for evidence to fall short of establishing that an accused lacked the capacity to form the intent, yet still leave the jury with a reasonable doubt that, when the offence was committed, the accused in fact foresaw the likelihood of the consequences In some proper case, evidence of intoxication which fails to demonstrate incapacity may still have an air of reality about it being

850

possible to leave the jury with a reasonable doubt that the accused knew that death was likely to result from her actions Comments An air if reality test should be applied to the defence of intoxication Air of Reality and the Intoxication Defence Note on R. v. Seymour (1996), 106 CCC (3d) 520

851

Facts The accused repeatedly stabbed his wife before stabbing himself The question was whether he was guilty of manslaughter or second degree murder His blood level shown intoxication and he requested a charge to the jury on capacity and intent which he was denied o Nevertheless, the recharge to the jury made reference to his capacity but not his intent This is an appropriate case where a two-step instruction, including a

852

reference to the accuseds capacity to form the intent, would have been appropriate While the trial judge was correct to include in his recharge the issue of the accuseds ability to measure or foresee the consequences of his act, he erred in failing to remind the jury that the ultimate issues was to determine whether the accused actually intended to cause bodily harm which he knew would likely cause death

853

Intoxication and Specific Intent R. v. George SCC (1960), 128 CCC 289 Facts Respondent was charged under s. 288 of the Criminal Code with robbery with violence, and was acquitted by the trial judge on the ground that he was so intoxicated as to be incapable of forming the specific intent to commit robbery In acquitting him, the trial judge expressed that he had no doubt that

854

he had committed the crime, but had found that he was unable to form an intent to do it In appealing this decision the Crown contends that the trial judge did not consider the included offence of common assault and, as a result, failed to draw a distinction between the incidence of drunkenness as a defence to a charge of common assault, as distinguished from a charge of robbery with violence Issue: Can the defence of intoxication and its effect on intent be distinguished amongst various offences?

855

Holding: Yes; Appeal allowed Ritchie J Pursuant to s. 569 of the Code the trial judge was under a duty to consider the included offence of assault The duty which rests upon the trial judge to consider all included offences of which there is evidence can, in no way, be affected by the fact that the Crown has omitted to make reference to such offences

856

Where the trial judge has wrongly applied the law applicable to an included offence the Crown is not deprived of its statutory right of appeal because of its omission at trial to address the Court on the matter

The offence of robbery requires the presence of the kind of intent and purpose specified in ss. 269 and 288 of the Code, but the use of the word "intentionally" in defining "common assault" in s. 230(a) is exclusively referable to the physical act of applying force to the

857

person of another The decision of the trial judge constitutes a finding that the respondent violently manhandled a man and knew that he was hitting him Under these circumstances, evidence that the accused was in a state of voluntary drunkenness cannot be treated as a defence to a charge of common assault because there is no suggestion that the drink had produced permanent or temporary insanity and the respondent's own statement indicates that he knew that he was applying force to the

858

person of another Fauteux J In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts considered apart from their purposes A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in

859

others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act Contrary to what is the case in the crime of robbery, where, with respect to theft, a specific intent must be proved, there is no specific intent necessary to constitute the offence of common assault Here the manner in which force was applied by the respondent to his victim was not accidental or unintentional

860

The finding of the trial judge that the accused had not the capacity to form the specific intent to commit robbery did not justify the conclusion reached in appeal that he could not then have committed the offence of common assault Locke J (dissenting) The Crown's attempt to appeal a case in which a trial judge hearing a criminal charge fails not to deal with, but to consider independently, an offence

861

included in the offence specifically charged (and this is done with the approval of counsel for the Crown), should be rejected It doesnt appear that the legislature intended to allow such types of appeals Bernard v. The Queen SCC (1988), 45 CCC (3d) 1 Facts Accused was charged with sexual assault causing bodily harm contrary to s. 246.2(c) of the Criminal Code

862

He admitted forcing the complainant to have sexual intercourse with him and attempted to use intoxication as a defence for the attack He was found guilty and convicted o The trial judge found that drunkenness was no defence to the charge laid against the accused The Ontario CA dismissed an appeal from conviction Issue: Is sexual assault an offence of general intent for which voluntary intoxication is no defence?

863

Holding: Yes; Appeal dismissed McIntyre J A general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose A specific intent offence is one which involves the performance of the actus reus coupled with an intent or purpose going beyond the mere performance of the questioned act

864

Drunkenness in a general sense is not a true defence to a criminal act The defence, however, may apply in a specific intent offence when the accused is so intoxicated that he lacks the capacity to form the specific intent required to commit the crime The defence does not apply in offences of general intent The requisite mental element under s. 246.2(c) is only the intention to commit the assault

865

The resulting interference with the physical integrity of the complainant aggravates the seriousness of a sexual assault but the mental element remains the same

The Crown must still prove the mens rea in a general intent offence, notwithstanding the absence of a defence of voluntary intoxication, which can be done in two ways Firstly, the mens rea in most cases can be inferred from the actus reus itself: a person is presumed to have intended the natural and probable

866

consequences of his actions Secondly, where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may establish the necessary blameworthy mental state of the accused by proving voluntary self-induced intoxication o Persons accused of these crimes cannot hold up voluntary drunkenness as a defence o Only in the cases of extreme drunkenness, will the trier of fact need to apply this step

867

The rule in R. v. Leary does not convert the offence in s. 246.2(c) into an absolute liability offence by removing the Crown's onus of proving the requisite intention, so it does not violate s. 7 and s. 11(d) of the Charter The rule upholds the principle that the morally innocent should not be convicted Accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self-control leading to the commission of a crime, are not morally innocent and are

868

criminally blameworthy Wilson J Sexual assault causing bodily harm is an offence of general intent requiring only the minimal intent to apply force As in most cases involving general intent offences and intoxication, the Crown can establish the accused's blameworthy mental state by inference from his or her acts

869

The evidence of intoxication withheld from the trier of fact could not possibly have raised a reasonable doubt as to the existence of the minimal intent to apply force

The Leary rule is perfectly consistent with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited act in general intent offences Evidence of intoxication can go to the trier of fact in general intent offences only if it is evidence of extreme intoxication

870

involving an absence of awareness akin to a state of insanity or automatism Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence

It is not strictly necessary in this case to address the constitutionality of substituting self-induced intoxication as the mens rea for the minimal mens rea requirements of general intent offences The issue would only arise in those rare cases in which the intoxication

871

is extreme enough to raise doubts as to the existence of the minimal intent which characterizes conscious and volitional conduct Dickson CJC (dissenting) Evidence of self-induced intoxication should be considered by the trier of fact, along with all other relevant evidence, in determining whether the mens rea required to constitute the offence has been proved beyond a reasonable doubt

872

The distinction between "general" and "specific" intent, which is used to exclude otherwise relevant evidence from the jury, is artificial and two fundamental problems stem from it Firstly, Parliament, not the courts, should alter the law if it is to be done in the name of policy over principle Secondly, even if it were appropriate for the courts to do so, there is no evidence that the artificiality of the specific intent requirement is actually required for social protection

873

Leary, which gave rise to the distinction between general and specific intent, should be overruled This pre-Charter decision imposes a form of absolute liability on intoxicated offenders: an essential element is presumed on proof of intoxication The Charter right to be presumed innocent until proven guilty and the presumption of innocence are accordingly infringed The rule in R. v. Leary cannot be upheld under s. 1 as it is not

874

proportional to the objective of protecting the public The jury's task in determining whether or not the belief was honestly held is unnecessarily complicated by the Leary qualification concerning mistake of fact The absence in the charge to the jury of any reference to the Crown's duty to prove that the accused acted with the requisite intent was fatal to the conviction, so the appeal should be allowed Comments

875

This case draws the distinction between specific and general intent and the applicability of the intoxication defence to both o Only in cases of extreme drunkenness, will intoxication be considered for offences requiring a general intent

In R. v. Quinn (1988), 44 CCC (3d) 570, the SCC decided that the offence of breaking and entering and committing the indictable offence of bodily harm is an offence of general intent

876

There was no evidence of extreme intoxication as to negative the minimal intent

The distinction of general or specific intent exists SOLELY for the purpose of determining whether there is or not a defence of intoxication at common law It has no other meaning, purpose or content R. v. Penno SCC (1990), 59 CCC (3d) 344

877

The court decided that intoxication could not be a defence to an offence in which it is an element The offence in this case was care and control of a motor vehicle while impaired McLachlin J If the mental element of an offence is compatible with the unavailability of the defence of impairment, then the absence of the defence does not violate ss. 7

878

and 11(d) of the Charter If the mental element of the offence is one in which impairment may be relevant, then the absence of this defence will constitute a Charter violation In this case, the mental element of the offence lies on becoming voluntarily intoxicated Wilson J

879

Since this is an offence of general intent requiring a minimal mens rea, there is no Charter violation Lamer J found that the unavailability of the defence was unconstitutional, but it was upheld under s.1 of the Charter since it is a logical and necessary feature to the achievement of suppressing the effects of intoxication on the road

880

Extreme Intoxication and General Intent R. v. Daviault SCC (1994), 93 CCC (3d) 21 Facts Accused was charged with sexual assault of an elderly woman who was an acquaintance of his wife The accused was a chronic alcoholic One evening, at the complainants request, the accused arrived at her home carrying a 40-ounce bottle of brandy

881

The complainant drank part of a glass of brandy and then fell asleep When she awoke during the night to go to the bathroom, the accused appeared, grabbed her chair, wheeled her into the bedroom, threw her on the bed and sexually assaulted her. The complainant subsequently discovered that the bottle of brandy was empty The trial judge found as a fact that the accused had drunk the rest of the bottle The pharmacologist called by the defence as an expert witness testified

882

that an individual with the blood-alcohol ratio he hypothesized the accused would have had after consuming that amount of alcohol might suffer a blackout o In such a state the individual loses contact with reality and the brain is temporarily dissociated from normal functioning The trial judge found as a fact that the accused had committed the offence as described by the complainant, but acquitted him because he had a reasonable doubt about whether the accused, by virtue of his extreme intoxication, had possessed the minimal intent necessary to

883

commit the offence of sexual assault The Court of Appeal allowed the Crown's appeal and ordered that a verdict of guilty be entered o It held that the defence of self-induced intoxication resulting in a state equal to or akin to automatism or insanity is not available as a defence to a general intent offence Issue: Can the defence of intoxication be available to a general intent offence where there is streme intoxication?

884

Holding: Yes; Appeal allowed Cory J The strict application of the rule established in this Court's decision in Leary that the mens rea of a general intent offence cannot be negated by drunkenness offends both ss. 7 and 11(d) of the Charter The mental element in general intent offences may be minimal; in this case it is simply an intention to commit the sexual assault or recklessness as to whether the actions will constitute an assault

885

The necessary mental element can ordinarily be inferred from the proof that the assault was committed by the accused, but the substituted mens rea of an intention to become drunk cannot establish the mens rea to commit the assault o The presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime, including the mental element of voluntariness o Self-induced intoxication cannot supply the necessary link between the minimal mens rea required for the offence and the

886

actus reus To deny that even a very minimal mental element is required for sexual assault offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1

The flexible approach suggested by Wilson J. in Bernard, whereby evidence of intoxication could properly go before a jury in general intent offences if it demonstrated such extreme intoxication that

887

there was an absence of awareness which was akin to a state of insanity or automatism, should be adopted Extreme intoxication akin to automatism or insanity should, like insanity, be established by the accused on a balance of probabilities It will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced It is always open to Parliament to fashion a remedy which would make it a

888

crime to commit a prohibited act while drunk Sopinka J (dissenting) This Court's decision in Leary still stands for the proposition that evidence of intoxication can provide a defence for offences of specific intent but not for offences of general intent The fact that an accused has voluntarily consumed intoxicating amounts of drugs or alcohol cannot excuse the commission of a criminal offence

889

unless it gives rise to a mental disorder within the terms of s. 16 of the Criminal Code Since the Leary rule does not relieve the Crown of the responsibility of proving the existence of a mens rea or any of the other elements of the offence of sexual assault which are required by the principles of fundamental justice, it does not violate s. 7 or s. 11(d) of the Charter None of the relevant principles of fundamental justice require that the intent to perform the actus reus of an offence of general intent be an

890

element of the offence Individuals who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits imprisonment of the innocent Comment Parliament responded to this with Bill C-72

891

Parliaments Response to Extreme Intoxication Bill C-72 S. 33.1 in this bill (when defence of intoxication is not to be available) is awkward because Parliament had to reverse the practical effect of Daviault without contradicting the Supreme Courts statement on constitutional law. State of the law:

892

The defence is still restricted to offences of specific intent (so the distinction between specific and general intent remains) The expanded defence of extreme intoxication (as in Daviault) applies even to offences of general inten S. 33.1 denies the extreme intoxication defence to any offence of general intent that involves interference or threatened interference with the bodily integrity of another person, provided that the act was committed at a time where the defendant

893

experienced a marked departure from the standard of reasonable care o This is hard for a judge, especially when there are two or more variations in a single case Possible consequence of the fence is that if its accepted, it could negate the voluntariness of the offence, leading to a complete acquittal

894

Also central is the severity of the intoxication Daviault needed strong evidence for the type, amount and effect of the drug. That means that expert testimony is needed AND clear evidence that the consumption of the drug was done by the defendant at that time This evidence must come up to prove a balance of probabilities for an acquittal Underlying theory of S.33.1 is the substitution of one standard of fault for another

895

I.e. the substitution of a standard of marked negligence for the element of fault in the definition of the offence. Supreme Court in Vaillancourt (1987), 39 CCC it was decided that you can only substitute one standard of fault for another if they are functionally equivalent Since there is no principle of constitutional law that general intent is a minimum requirement for criminal offences, there is no objection to the substitution of marked negligence in any case where general intent would suffice for a conviction

896

As such, the theory of S. 33.1 is probably defensible. Still problematic though S. 33.1(3) would deny the defence if the effect of the intoxication was to make the offence involuntary implies conviction not only in the absence of fault but in the absence of actus reus. No supreme court or provincial ruling against the constitutionality of s. 33.1. as of yet

897

The standard of this Bill, which applies also to extreme intoxication, is an objective one Parliament introduces an on objective standard to the defence of intoxication Variations to the defence of intoxication The Bernard rule, restricting intoxication to specific intent offence still applies

898

S.33.1 of the Code denies the offence of extreme intoxication to general intent offences which cause bodily integrity and in which the conduct is a marked departure for a reasonable standard

2. Duress This is a defence which exemplifies the conflict between legal principles and legislative intent

899

Duress is Canada is an extremely complicated defence It is codified in s.17 of the Criminal Code s. 17 Criminal Code Compulsion by threats A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that

900

the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

901

Duress is an excuse, not a justification o The person committed a moral blameworthy act but will be excused for it

All the exceptions refer to crimes involving the violation of physical integrity o This is similar to Bill C-72 (on intoxication), which also makes exception for crimes as these

902

o This list expands the common law restriction to murder and treason Paquette v. The Queen held that this restrictive codification applied only to principal offenders, while a common law of judge-made defence would apply to other parties to the offence When this is not clear, the judge must charge the jury with both the statutory and common law defences of duress If an air of reality was established for either defence, the Crown must disprove its existence beyond a reasonable doubt

903

Another problem, is that the circumstances of duress may raise a reasonable doubt as to whether an accused had some form of subjective mens rea This was restricted, however, by Hibbert v. The Queen, where it was established that duress could not negate the intent required to be a party under ss. 21(1)(b) and 21(2) of the Criminal Code Furthermore, in R. v. Ruzic, the SCC held that some restrictive parts of the statutory defence of duress violate s.7 of the Charter because they

904

allowed the conviction of a person who commits a crime in a morally involuntary manner The references to immediate death or bodily harm and a threat from a person who is present when the offence was committed, have been declared of no force and effect Generally speaking, the logic behind the defence of duress is the lack of moral choice in committing a criminal act

905

The exceptions seem to imply that ones physical integrity should not be more important that the one of another One must rather kill oneself than kill another as per the common law exception Why is robbery included on the list? o Is there proportionality between ones life and robbery Perhaps the common law is more restrictive to duress to not allow judicial discretion or juries to decide when to apply the defence

906

Invoking the defence of duress is based on the objective test of the air of reality The test is particularized to the circumstances, however The Common Law Defence of Duress Paquette v. The Queen SCC (1976), 30 CCC (2d) 417

907

Facts During the course of a robbery and innocent bystander was killed by a bullet fired from a rifle by Simard The robbery was committed by Simard and Clermont, both of whom with the appellant were charged with non-capital murder The appellant was not present at the time the murder or the robbery were committed o The charge against him was based upon s. 21(2) of the Code The appellant claims that the day of the event he was forced at gun

908

point to drive Clermont to his place of work, which is where the robbery took place o He also picked up Simard and a rifle He was also threatened with revenge if he didnt wait for Clermont and Simard, yet after the robbery and homicide, he did not allow them into his car The appellant was acquitted but the CA reversed the decision given the codified restriction on the defence of duress under s. 17 of the Code Issue: Did the restrictions on the defence of duress apply to a party to the

909

offence? Holding: No; Appeal allowed and verdict of acquittal restored Martland J S. 17 uses the words a person who commits and offence, not a person who is a party to the offence The appellant in this case did not himself commit the offence of robbery and murder

910

He is thus entitled, by virtue of s. 7(3) of the Code to rely on any common law defence

Relying on D.P.P. of Northern Ireland v. Lynch, the court found that if duress can afford a defence in the common law for aiding and abetting in the commission of murder, it should be available to a person who is sought to be made a party to the offence by virtue of s. 21(2)

911

R. v. Mena Ontario CA (1987), 34 CCC (3d) 304 Holding: Conviction was quashed and a new trial ordered Martin JA Paquette v. The Queen established that s. 17 is inapplicable if a party to an offence falls under s. 21(2) It should also be inapplicable to the accuseds criminal liability under 21(1)(b) or (c) The accused is then allowed to rely upon the common law

912

defence of duress S. 17 requires a subjective assessment of the accuseds belief When the offence is invoked, whether the accused failed to avail himself or herself of some opportunity to escape or to render the threat ineffective, is a question for the jury But, when the accused had safe means of escape and no reasonable jury could come to any other conclusion, the judge can hold that, as a matter of law, the defence is not available

913

Duress and Mens Rea Note on Hbert v. The Queen SCC (1989), 49 CCC (3d) 59 Facts The accused was convicted of perjury He claimed that several motorcycle gang members were present in court and harassed him with threats

914

The Supreme Court upheld the Quebec CA which reversed an acquittal, ordering a new trial The Quebec CA argued that a threat of death which the accused could have easily escaped and rendered unenforceable does not allow him to invoke the excuse of duress found in s. 17 The SCC agreed with the CA but held a new trial to determine whether the accused possessed the requisite intent There might be a situation where a false statement is not given with the intent to mislead (needed for perjury) if the accused acts in a way in

915

which he is not believable to the trial judge Hibbert v. The Queen SCC (1995), 99 CCC (3d) 193 Facts The accuseds friend was the victim of an offence The accused testified that he was forced to accompany the principal offender to the victims apartment and lure the victim to the lobby He stood by the offender when he shot the victim The trial judge instructed the jury that if the accused joined the

916

common plot under threats of bodily harm then he would be found not guilty o He could not rely on the common law defence of duress, however, if there was the possibility to escape He was acquitted of attempted murder by found guilty of aggravated assault An appeal to the Ontario CA was dismissed, but the SCC allowed a new trial Issues: 1. Can duress be used to negate the mens rea of an offence?

917

2. How is the safe avenue of escape, for a defence of duress to be raised, evaluated? Holding: 1. Yes; Appeal allowed Lamer CJC The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be relevant

918

to the question of whether he possessed the mens rea necessary to commit an offence Whether or not this is so will depend on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that

919

the Crown has not proven beyond a reasonable doubt that he possessed the mental state required for liability A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse-based defence regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea The mental states specified in ss. 21(1)(b) and 21(2) of the Code are

920

NOT susceptible to being "negated" by duress Parliament's use of the term "purpose" in s. 21(1)(b) is essentially synonymous with "intention" and does not incorporate the notion of "desire" into the mental state for party liability This interpretation, is in accord with the common law principles governing party liability, and avoids the absurdity that would flow from the equation of "purpose" with "desire"

921

As well, under s. 21(2), the accused's subjective view as to the desirability of the commission of the offence is not relevant The expression "intention in common" in s. 21(2) means only that the party and the principal must have in mind the same unlawful purpose The expression does not connote a mutuality of motives and desires between them A person would thus fall within the ambit of s. 21(2) if he intended to assist in the commission of the same offence envisioned by the

922

principal, regardless of threats The comments in Paquette on the relation between duress and mens rea in the context of s. 21(2) can therefore no longer be considered the law in Canada Accused individuals may still, however, seek to have their conduct excused through the operation of the common law defence of duress

An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation

923

of duress The rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent The internal logic of the excuse-based defence suggests that the question of whether or not a safe avenue of escape existed is to be determined according to an objective standard o When considering the perceptions of a "reasonable person",

924

however, the personal circumstances of the accused are relevant and important, and should be taken into account Duress and the Charter R. v. Ruzic SCC, [2001] 1 SCR 687 Facts The accused was tried before a judge and jury on charges of unlawfully

925

importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368 of the Criminal Code The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability She testified that a man in Belgrade, where she lived in an apartment with her mother, had assaulted her and threatened to harm her mother

926

unless she brought the heroin to Canada o She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for a person "who commits an offence under compulsion by threats of immediate death or bodily harm from a person

927

who is present when the offence is committed" o She successfully challenged the constitutionality of s. 17 under s. 7 of the Charter, raised the common law defence of duress and was acquitted The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal

Issue: Are the immediacy and presence requirement of s.17 of the Code

928

contrary to s.7 of the Charter? Holding: Yes; Appeal dismissed Lebel J Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether The question for the courts is whether restricting the defence accords with Charter rights Statutory defences are not owed special deference by reviewing

929

courts Determining when to absolve a person for otherwise criminal behaviour is a value-laden exercise, but statutory defences do not warrant more deference simply because they are the product of difficult moral judgments.

A person lack moral voluntariness when she is denied of a realistic choice to commit a crime or not Although moral involuntariness does not negate the actus reus

930

or mens rea of an offence, it is a principle which, like physical involuntariness, deserves protection under s. 7 of the Charter It is a principle of fundamental justice that only voluntary conduct should attract the penalty and stigma of criminal liability

Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm

931

from a person who is present when the offence is committed There is no common law requirement of immediacy for the defence of duress The plain meaning of s. 17 is quite restrictive in scope The immediacy and presence requirements preclude threats of future harm The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1

932

o In any event, the criteria would likely not meet the proportionality branch of the s. 1 analysis, in particular the stage of minimal impairment The common law defence of duress was never completely superseded by s. 17 of the Code, and remains available to parties to an offence The common law defence has freed itself from the constraints of immediacy and presence and thus appears more consonant with the values of the Charter

933

In the future, when the common law defence of duress is raised, the trial judge should instruct the jury clearly on the components of this defence including the need for a close temporal connection between the threat and the harm threatened The jury's attention should also be drawn to the need for the application of an objective-subjective assessment of the safe avenue of escape test

934

There was no misdirection either on the burden of proof The accused must certainly raise the defence and introduce some evidence about it Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence o It must be shown, beyond a reasonable doubt, that the accused did not act under duress

935

Duress and Excluded Offences There are two issues regarding excluded offences: 1. Constitutionality of the excluded offences that apply to principal offenders under s.17 of the Code a. Heres the underlying issue: Someone who committed one of the excluded offences could get convicted even though they acted in a morally involuntary manner. If so, the excluded offenses seem to violate s.7 of the Charter

936

b. The issue was not decided in R. v. Ruzic because the offence was not excluded under s. 17 of the code 2. The second issue is whether some offences are excluded from the common law defence of duress that still applies to parties of an offence a. R. v. Paquette: Supreme Court held that duress could apply to a party to a murder b. R. v. Hibbert: attempted murder

937

c. In R. v. Howe, the House of Lords overruled this by saying that duress should not excuse the commission of either murder or attempted murder Lord Hailsham said that not every reasonable man would necessarily kill another to save his own life, and so therefore should not be exempt from liability. 3. Self-Defence

938

Self-defence is a statutory defence in Canada, and has remained relatively static since 1892 Though the principle that one can use force to avert force is simple, it has been a difficult concept to codify and to apply in court It is a defence that provides a justification for criminal activities, rather than an excuse

939

People v. Goetz New York CA, 497 N.E. 2d 41 Facts The defendant shot and wounded four youths on a New York City subway after one or two of them approached him and asked for $5 o The evidence seemed to indicate that he was approached by the unarmed boys and then shot them more than once with an unlicensed he was carrying on him He was indicted by a Grand Jury for attempted murder and assault A lower court dismissed the charges, concluding that the prosecutors

940

charge on the defence of justification was erroneous Issue: Is a subjective belief of necessity to use deadly force enough to constitute self-defence? Holding: No, the belief must be reasonabe; the appeal was allowed and the indictment reinstated Chief Judge Wachtler Penal law establishes that a person can use physical force on another to the extent that he reasonably believes such to be necessary to

941

defend himself or a third party from what he reasonably believes to be the use of imminent force by such other person Deadly force can only be used in the circumstance when one reasonably believes that the other person is using or about to use deadly force, or about to commit rape, kidnapping or robbery The triggering conditions are that the actor reasonably believes that the other person is about to use deadly force or commit one of the crime listed

942

As to the need to use such force, the actor must believe that it is reasonably necessary

Under modern penal law a defendant charged with murder or attempted murder must show only that he believed that the use of deadly force was necessary If the belief was wrong due to negligence or recklessness, the person may be charged for homicide requiring only recklessness or negligence Drafters of the NY Model Penal Law, however, inserted the word

943

reasonably Interpreting the word reasonably as whether the defendant felt under the circumstances that his actions were justified, appears to misconstrue the intent of the Legislature to retain an objective element as part of the provision authorizing the use of deadly force We cannot impute to the Legislature an intent that would allow citizens to set their own standards of permissible use of force

944

An objective standard does not imply that the background and relevant characteristics of a relevant actor will be ignored (such as the defendants prior experiences) A properly instructed jury will consider this evidence in weighing the defendants actions The first question for the jury is to determine whether the defendant had the requisite belief that deadly force was necessary If the prosecution cannot prove beyond a reasonable doubt that

945

the accused did not hold such a belief, then the jury must consider whether this belief was reasonable, in light of all the circumstances of the case Note: the jury later acquitted Goetz for murder since his subjective belief was inconsistent with the intent to murder They allowed a subjective theory of self-defence by the back door Comments The use of the word reasonable before belief, implied that the subjective belief of necessity in using deadly force must be reconciled

946

with an objective standard Applying the Criminal Code Provisions The Code has several provisions on the use of force depending on several circumstances: Who the aggressor is Whether the victim suffered bodily harm

947

If the accused intended to bring about this consequence If the accused provoked the victim Whether the accused was obliged to retreat Whether the accused was protecting a third party Whether the accused was protecting her property Whether the accused is a police officer

Two provisions which are at the core of most self-defence cases in Canada are the following:

948

s. 34 Criminal Code Self-defence against unprovoked assault (1) 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 death or grievous bodily harm and is no more than is necessary to enable him to defend himself. Extent of justification

949

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm 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 death or grievous bodily harm. s. 37 Criminal Code

950

Preventing assault (1) 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. Extent of justification (2) 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

951

assault that the force used was intended to prevent. R. v. Bogue Ontario CA (1976), 30 CCC (2d) 403 Facts The accused was found guilty of manslaughter There was evidence that the accused and the victim had consumed a considerable quantity of intoxicating liquor The neighbours went to the apartment and found the accused in a

952

defensive position on the floor at the victims feet o The appellant had a black eye and part of her face was discoloured The neighbours attempted to break the fight and called the police Returning to the scene of the argument, they found the deceased lying on a bed with stab wounds The accused later stated to a police officer that she had stabbed the deceased with a knife and at trial submitted a written statement saying that she had acted in self-defence, with no intention to kill the victim

953

Issue: Does s. 34(2) require that a force be proportionate to an original assault for self-defence to arise? Holding: No, the appeal was allowed and a new trial ordered Howland JA Section 34(2) of the Criminal Code, which defines the limits of self-defence in case of death, contains two criteria which must be satisfied The accused must act under a reasonable apprehension of death or grievous bodily harm

954

Her belief must be based on reasonable and probable grounds that she could not otherwise preserve herself from death or grievous bodily harm

"Excessive force", which removes the defence, must be determined with regard to the state of mind of the accused at the time the force is applied The fact that the force used was actually disproportionate to the original assault by the deceased when viewed objectively is

955

merely an item of evidence which the jury may consider in determining whether the accused had a reasonable apprehension of death and whether she had reasonable and probable grounds to believe he could not otherwise preserve herself It is the reasonableness of the accused's belief rather than the reasonableness of the force which is the issue under s. 34(2) of the Code The jury is misdirected when left with the impression that in

956

addition to the two criteria set out in s. 34(2) there was the further requirement that as a matter of law the force must be not out of proportion to the original assault for self-defence to be available The misdirection in charging the jury justifies a new trial Comments 34(2) has a requirement of intentionality, different to 34(1) There must be a subjective apprehension, but this must be reasonable

957

held (objective standard) The belief that the accused cannot preserve herself is also subjective, but must again be held reasonably There is no proportionality requirement as such in s. 34(2), it is just something to consider to determine the reasonableness of the selfdefence defence

R. v. Pawliuk British Columbia CA (2001), 151 CCC (3d) 155

958

Facts The accused and co-accused were convicted of second-degree murder o The accused shot the deceased and the co-accused was charged as a party The accused testified that he thought the deceased was going to shoot him and involuntarily shot the deceased The trial judge instructed the jury on 34(2) of the Code but not 34(1) Issue: Can a judge charge a jury with both ss. 34(1) and 34(2)?

959

Holding: No, the appeal was allowed and a new trial ordered Ryan JA The trial judge was right not to leave s. 34(1) of the Criminal Code with the jury Both s. 34(1) and s. 34(2) may apply where the accused, in repelling an attack, did not intend to cause death or grievous bodily harm

960

Lack of intention alone does not require a trial judge to leave both subsections with the jury The difference between these sections is whether the accused reasonably apprehended that the attack was likely to cause his own death or grievous bodily harm If so, the accused is entitled to the more favourable provisions of s. 34(2) The accused testified that he feared that the deceased was going to kill him

961

and that he responded by pulling out the gun His defence therefore fell within s. 34(2) The charge to the jury was sufficient to inform the jury that the accused could rely on s. 34(2) whether or not he intended to kill Comments When would s. 34(1) then be selected by a person putting forth a selfdefence claim? o When there was no reasonable apprehension of bodily harm

962

To what extent should a person be expected to withdraw before acting in self-defence? In R. v. Deegan (1979), the Alberta CA deemed that an accused may stand ground without exceeding the limits of self-defence In Reilly v. The Queen (1984), the SCC rejected the accuseds appeal that the trial judge erred in not instructing the jury to consider evidence of intoxication in deciding whether the accused acted in self-defence under s. 34(2) of the Code

963

Even though intoxication could induce an honest mistake, it could not induce one which would be based on reasonable and probable grounds It may be the case, however, that an intoxicated person can hold a reasonable belief

If the force used is excessive, should the accused be found guilty of manslaughter or second-degree murder? In R. v. Reilly (1982), the Ontario CA ruled that the accused could only be held guilty of manslaughter in the case of excessive force

964

Dickson J in Brisson v. The Queen (1982) - speaking for a minority of judges who felt it was necessary to discuss this - stated that self-defence does not necessarily reduce a murder charge to manslaughter o This was upheld in R. v. Faid (1983) where intent was said to be the determinative factor of a murder conviction, once the defence of self-defence had failed

R. v. Cinous SCC (2002), 162 CCC (3d) 129 Facts

965

The accused was charged with first degree murder He supported himself through criminal acts and specialized in the theft of computers He was suspicious that the deceased had stolen his revolver and had heard rumours that the deceased and a third party intended to kill him Several days after the accused's revolver was stolen, the deceased and the third party proposed that the accused join them in a theft o They behaved suspiciously and he believed that the deceased and the third party intended to assassinate him

966

The accused shot the deceased in the back of the head at a service station where the accused stopped to purchase a bottle of windshield wiper fluid He testified that he had no other means of escape and that he never thought of the police as he had spent his entire life fleeing from them The accused raised the defence of self-defence, but was convicted of second degree murder The Court of Appeal allowed the accused's appeal and ordered a new trial, finding errors in the trial judge's instructions on self-defence

967

Issue: What constitutes the air of reality test for self-defence under 34(2)? McLachlin CJC and Bastarache J The trial judge made several errors in explaining self-defence to the jury, however, there was no air of reality to the defence of self-defence in this case and a jury could not properly acquit the accused on this ground The errors of law can be set aside and the curative proviso in s. 686(1) (b)(iii) of the Code should be applied to uphold the conviction

968

In determining whether there is an air of reality, the issue is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit In order to establish an air of reality to self-defence under s. 34(2) of the Criminal Code, there must be evidence on (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing

969

The air of reality test must be applied to all three elements Each component of self-defence has a reasonableness requirement and a subjective component

The difficulty with this case was whether there was some evidence upon which a jury could have concluded that the accused's purported perceptions were reasonable, in particular since the evidence relied upon in this case emanates from the accused's own testimony Reasonableness is not exempt from the air of reality test

970

The assault need not be actually underway to satisfy the first requirement of self-defence There was evidence of the accused's subjective belief that he was about to be assaulted and it would have been possible for the jury to conclude that his belief was reasonable There was also subjective evidence for the second aspect of the test, that the accused reasonably believed he faced death or grievous bodily harm

971

The accused fails, however, on the third requirement, which is that he could not otherwise preserve himself except by killing the victim While there was an air of reality to the accused's evidence that he believed he had to kill the victim, there was no evidence from which a jury could conclude that the accused's belief was reasonable The accused must have believed, on reasonable grounds, that there was no alternative course of action open to him at the time

972

There was no evidence to suggest why the accused did not take any other course of action

As a result, the defence should never have been put to the jury and the conviction should be restored Binnie J (concurring along with Gonthier J) saw the matter more simply A criminal code that permitted a claim of self-defence in the circumstances of this case would fail to promote public order

973

There was no air of reality that the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm other than by killing the victim

Arbour, Iacobucci and Major JJ dissented Comments The air of reality is based on an air of reality test

974

Self-Defence and Domestic Violence A complicated issues of self-defence is the degree of the imminence that the threat must have on the accused R. v. Lavallee SCC (1990), 55 CCC (3d) 97 Facts The accused was acquitted of murdering her male partner by a judge and jury

975

At her trial she relied on the defence of self- defence Evidence indicated that the accused shot the deceased in the back of the head as he was leaving her room after allegedly assaulting her and threatening to kill her A psychiatrist called by the defence testified with respect to the "battered-wife syndrome" o It was the conclusion of the psychiatrist that the accused felt that unless she defended herself and reacted in a violent way that she would die

976

The Manitoba CA allowed and a new trial ordered on the basis that the trial judge did not adequately instruct the jury with respect to expert evidence and hearsay evidence Issue: How does the standard of self-defence apply to battered wives? Wilson J Expert testimony relating to the ability of the accused to perceive danger from the deceased would go to the issue of whether she reasonably apprehended death or grievous bodily harm on the occasion in question

977

S. 34(2) does not actually stipulate that the accused apprehend imminent danger before acting in self-defence There is, however, an assumption that it is inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault is actually in progress at which point the victim can reasonably gauge the requisite amount of force needed to repel the attack and act accordingly Expert testimony can cast doubt on these assumptions as they

978

applied in the context of a battered wife's efforts to repel an assault, in particular, whether there is heightened sensitivity of a battered woman to her partner's acts o Without such testimony it is doubtful that the trier of fact would be capable of appreciating why her subjective fear may have been reasonable in the context of the relationship o The issue is not, however, what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience

979

o The requirement that the accused must wait until a weapon is uplifted ignores the fact that women and men are not typically equals in hand-to-hand combat The question of why the accused did not leave her abuser does not really go to whether she had an alternative to killing the deceased By providing an explanation as to why the accused did not flee when she perceived her life to be in danger, expert testimony may assist the jury in assessing the reasonableness of her belief

980

that killing the accused was the only way to save her life Ultimately, of course, it would be for the jury to decide whether in fact the accused's perceptions and actions were reasonable Expert evidence cannot usurp the function of the jury and the jury is not compelled to accept the opinions proffered by the expert Fairness and integrity of the trial process, however, demand that the jury have the opportunity to hear such opinions

981

The appeal was allowed and the verdict of acquittal restored Comment Expert testimony can help understand the reasonableness of an apprehension of death as well as whether the accused reasonably believed that the killing was the only way to save her life R. v. Ptel SCC (1994), 87 CCC (3d) 97 Facts

982

The accused was charged with second degree murder as a result of the killing of a companion of her daughter's boy-friend o The boy-friend and the deceased were jointly involved in drug trafficking There was evidence that the boy-friend threatened the accused, her daughter and her granddaughter on many occasions On the date of the killing, the boy-friend came to the accused's home, forced her to weigh some cocaine and to asked her to hide a revolver, threatening to kill her, her daughter and her granddaughter

983

After consuming a small amount of drugs, the accused fired first at the boy-friend and then at the deceased as he lunged towards her, claiming self-defence In the course of their deliberations, the jury asked whether threats made prior to the incident were relevant to self-defence o The trial judge in answer to the jury's question gave them a definition of "assault" and then indicated that the act or threat constituting the assault must have taken place on the evening of the shooting but that the threats or acts prior to that were

984

relevant to assess the assault on the night in question An appeal by the accused to the Quebec Court of Appeal from her conviction for murder was allowed and a new trial ordered. Issue: To what extent are threats prior to the incident in question relevant to self-defence? Lamer CJC In a case involving self-defence, it is the accused's state of mind that must be examined

985

The issue is not whether the accused was unlawfully assaulted but rather if she reasonably believe, in the circumstances, that she was being unlawfully assaulted There is no requirement that the danger be imminent The imminence of apprehended danger is only one factor which the jury should weigh in determining whether the accused had a reasonable apprehension of danger and a reasonable belief that

986

she could not extricate herself except for killing the attacker The trial judge erred in limiting the use to be made of the prior threats to one element only: the existence of an assault and the assailant's ability to carry out the assault This direction diverted the jury from the question it should have been considering, whether the accused had a reasonable belief in the existence of an assault Further, the judge's answer might have led the jury to believe

987

that the threats were not relevant to the reasonable apprehension of the danger of death and to the belief that there was no solution but to kill the attacker By failing to mention these two elements, the trial judge seriously limited the relevance of the earlier threats

The Crown did not argue that if the trial judge erred, the provisions of s. 686(1) (b)(iii) of the Code could be applied, so the appeal was dismissed and the new trial ordered

988

Gonthier J (dissenting) The trial judge's answer to the jury's question did not overlook the very important element of the accused's belief The trial judge gave a clear and complete explanation of the essential criterion of the accused's state of mind at the time she caused the death, including her apprehension of death or bodily harm from which she could not preserve herself except by the force she used.

989

R. v. Malott SCC (1998), 121 CCC (3d) 456 Facts The accused was charged with murder in the shooting death of her previous partner, and with attempted murder in relation to his girlfriend The deceased abused the accused physically, sexually, psychologically and emotionally On the day of the shooting, the accused was scheduled to go to a medical centre with the deceased to get prescription drugs for use in the deceased's illegal drug trade

990

The accused testified that on the way to the medical centre the deceased got angry with her and choked her The accused went to the medical centre door and it was locked o She testified that as she walked back towards the car she thought she was going to be in trouble because the deceased needed the drugs for a cocaine deal that he had lined up The accused shot the deceased to death and then took a taxi to the deceased's girlfriend's home and shot her The accused was convicted on both charges

991

The Ontario CA dismissed the accused's appeal from both convictions Issue: Did the trial judge charge the jury correctly on how to deal with evidence of battered woman syndrome in light of a defence of self-defence? Holding: Yes, the appeal was dismissed Major J Pursuant to s. 34(2) of the Criminal Code, there are three constituent elements of self-defence where the victim has died: (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous

992

bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary As per Ptel, an honest but reasonable mistake as to the existence of an assault is permitted where an accused relies upon self-defence To the extent that expert evidence respecting battered woman syndrome may assist a jury in assessing the reasonableness of an accused's perceptions, it is relevant to the issue of unlawful assault

993

Once battered woman syndrome is raised, the jury ought to be made aware of the principles of that defence as per Lavallee In particular, the jury should be informed of how that evidence may be of use in understanding the following o (1) why an abused woman might remain in an abusive relationship o (2) the nature and extent of the violence that may exist in a battering relationship;

994

o (3) the accused's ability to perceive danger from her abuser o (4) whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm. [page458] The trial judge's instruction on the issue of unlawful assault together with his review of the evidence adequately conveyed to the jury which of the deceased's actions may have constituted unlawful assault The charge also communicated the accused's perceptions in light

995

of her experience and knowledge of the deceased's behaviour There is no precise formula that can be followed in instructing a jury In reviewing a jury charge, an appellate court should not minutely scrutinize the charge but should consider whether the trial judge reviewed the evidence and related it to the relevant legal issues and principles in a manner that would equip the jury to reach its verdict according to the applicable law

996

L'Heureux-Dub J (concurring) The utility of expert evidence on the effects of abusive relationships in criminal cases is not limited to instances where a battered woman is pleading self-defence, but is potentially relevant to other situations where the reasonableness of a battered woman's actions or perceptions is at issue "Battered woman syndrome" is a psychiatric explanation of the mental state of women who have been subjected to continuous battering by their intimate male partner

997

Furthermore, women's experiences and perspectives may be different from the experiences and perspectives of men o A woman's perception of what is reasonable is influenced by her gender, as well as by her individual experience, and both are relevant to the legal inquiry In order to combat the syndromization of battered women who act in selfdefence, the legal inquiry into the moral culpability of a woman who is, for instance, claiming self-defence must focus on the reasonableness of her

998

actions in the context of her personal experiences, and her experiences as a woman, not on her status as a battered woman and her entitlement to claim that she is suffering from "battered woman syndrome" A judge and jury should be told that a battered woman's experiences are generally outside the common understanding of the average judge and juror, and that they should seek to understand the evidence being presented to them in order to overcome the myths and stereotypes which we all share Finally, all of this should be presented in such a way as to focus

999

on the reasonableness of a woman's actions, without relying on old or new stereotypes about battered women Although the trial judge could have more extensively explained and emphasized the relevance of the expert evidence on battered woman syndrome to the accused's claim of self-defence, it is unrealistic for an appeal court to review a trial judge's charge to a jury based on a standard of perfection In deference to this well-established principle, the charge was sufficient

1000

4. Necessity Necessity is a controversial common law or judge-made defence which has been firmly recognized in Canadian law only since 1984 It is an excuse to criminal liability, when the accused had no safe avenue of escape or legal way out o It never justifies the commission of a crime

1001

Three elements of the defence of necessity (as per Latimer) Imminent peril or danger No reasonable legal alternative to the course of action undertaken There must be proportionality between the harm inflicted and the harm avoided These elements must be measured objectively, but through an adjusted objective test to the circumstances

1002

o There is a requirement of a reasonable degree of resistance to the adverse circumstances The defence is similar to duress, but the element of necessity is not caused by another person, but by some circumstance Necessity and Abortion

1003

Morgentaler v. The Queen SCC (1975), 20 CCC (2d) 449 Facts Henry Mongentaler performed an abortion on a 26-year-old woman contrary to the Criminal Code, which at the time only allowed abortions if they were approved by a hospital committee The accused put forth a defence of necessity, testifying that he was afraid the woman might do something foolish if he did not perform the procedure Issue: Was the abortion carried out of necessity?

1004

Holding: No, the appeal was dismissed Dickson J The defence of necessity is rare to Canadian jurisprudence, and except for exceptional cases, it has never been raised successfully Through a review of the literature the court found that the defence had permitted the encroachment on private property following and great and imminent danger, but could not justify killing, the stealing of food

1005

by a starving man or the occupancy of housing for those in need of accommodation No clear principle can be detected If the defence exists, it can go no further than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible No system of positive law can allow an individual to violate the law because on her view it violates some higher moral value

1006

Courts are afraid that it will open a door that no person could shut

The case of R. v. Bourne, which dealt with therapeutic abortion, was of no assistance to the case at hand We must ask whether the evil averted could have been prevented by anything short of the commission of the crime There is no evidence to suggest this The accused made no efforts to bring himself within the bounds of

1007

legality Laskin CJ (dissenting) The accused knew that the pregnancy had caused great psychological stress on the woman seeking the abortion, that her determination to have an abortion might lead to do something foolish, and that she had approached various hospitals without success

1008

The test applied by the Quebec CA, which parallels one which would arise when the charge against the accused is homicide, was too stringent It was to the jury to decide whether the harm sought to be avoided was an immediate and physical one R. v. Morgentaler et al. Ontario CA (1985), 22 CCC (3d) 353 Facts Accused was charged with conspiracy to procure a miscarriage contrary

1009

to ss. 251(1) and 423(1)(d) of the Code They were acquitted and the Crown appealed that the defence of necessity should not have been left to the jury Issue: Was the defence of abortion open to the jury? Holding: No, the appeal was allowed and a new trial ordered The Court When the defence of necessity is available, the conduct must be truly involuntary

1010

Planning, deliberating and relying on legal precedents show that this was not the case for the accused

There must also be evidence that compliance of the law was demonstrably impossible The accused failed to make every single effort to comply with the law and agreed to violate it Their dissatisfaction with the law, though maybe relevant to motive, could not afford a basis for the defence of necessity

1011

Note On a further appeal, the SCC did not decide whether necessity was available for the jury, but struck the law as contrary to s.7 of the Charter in 1988 Comments This case shows that the action must be truly uncalculated in order to be necessary and in light of some sudden and imminent peril

1012

The Conceptualization of Necessity as an Excuse or Justification Perka v. The Queen SCC (1984), 14 CCC (3d) 385 Facts Accused were charged with importing cannabis into Canada and with possession for the purpose of trafficking, following the seizure of their cannabis cargo by the police in Canadian waters The accused advanced the defence of necessity claiming that they did not plan to import into Canada as their destination was Alaska but that,

1013

following a series of mechanical problems aggravated by deteriorating weather, they had decided for the safety of ship and crew to seek refuge on the Canadian shoreline to repair the vessel The Crown sought unsuccessfully to adduce evidence that the ships distress was a recent fabrication, given the easiness for the authorities to start the ship and how it performed subsequently The appellants were acquitted The BC CA set aside the acquittal and ordered a new trial holding that the trial judge erred in refusing to grant the Crown's application to call

1014

rebuttal evidence with respect to the condition of the vessel Issue: What are the criteria of a defence of necessity as an excuse to criminal liability? Holding: The appeal was dismissed, the new trial was ordered Dickson J The defence of necessity is available in Canada and should be recognized as an excuse operating by virtue of s. 7(3) of the Criminal Code

1015

A justification challenges the wrongfulness of an action An excuse concedes the wrongfulness of an action but asserts that the circumstances are such that it cannot be attributed to the actor

The essential criteria for the operation of the defence is the moral involuntariness of the wrongful action measured on the basis of society's expectation of appropriate and normal resistance to pressure

1016

The defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril The standard based on a realistic assessment of human weakness The act in question may only be characterized as involuntary where it was inevitable, unavoidable, and where no reasonable opportunity for an alternative course of action that did not involve a breach of the law was available to the accused As well the harm inflicted by the violation of the law must be less

1017

than the harm the accused sought to avoid Where it was contemplated or ought to have been contemplated by the accused that his actions would likely give rise to an emergency requiring the breach of the law it may not be open to him to claim his response was involuntary Mere negligence or involvement in criminal or immoral activity when the emergency arose, will not disentitle an accused from relying upon the defence

1018

Where sufficient evidence is placed before the Court to raise the issue of necessity the onus falls upon the Crown to meet the defence and prove beyond a reasonable doubt that the accused's act was voluntary The accused bears no burden of proof In this case, the trial judge was correct in instructing the jury upon necessity, however, he erred in his directions to them Although he adequately charged the jury upon the majority of issues

1019

pertinent to the proper test for necessity he did not direct their attention to the issue of the availability of a reasonable legal alternative This error goes to the heart of the defence and justifies a new trial o Since a new trial must be ordered there is no need to decide whether the trial judge erred in refusing to allow the Crown to tender rebuttal evidence

Wilson J (concurring)

1020

Disagrees that the defence of necessity must be exclusively an excuse to criminal liability Necessity must be grounded either on excuse or on justification The only way in which the defence of necessity can be applied as an excuse is where the accused's act is done in the interest of self-preservation Where necessity is invoked as a justification, the accused must show that he operated under a conflicting legal duty which made her

1021

seemingly wrongful act right Such justification must be premised on a right or duty recognized by law The conduct must stem from the accused's duty to satisfy his legal obligations and to respect the principle of the universality of rights The justification therefore does not depend on the immediacy or "normative involuntariness" of the accused's act The justification is not established simply by showing a conflict of legal duties Since the defence rests on the rightfulness of the accused's choice of

1022

one over the other, the rule of proportionality is central to the evaluation of the justification Comments Good distinction between justification and excuse as a defence to criminal liability Unlike duress under s.17 of the Criminal Code, the standard of necessity is not restricted to not apply to specific crimes

1023

Necessity as justification (as conceptualized by Wilson J) was adopted in Re A (Children) (Conjoined Twins: Surgical Separation) (2000) The CA decided that the operation to separate conjoined twins, absent their parents consent, was lawful and justified on the basis of the defence of necessity Since there was no imminent peril, the court found the justification analysis more appealing

1024

Necessity and Latimer Latimer v. The Queen, SCC [2001] 1 SCR 3 Facts First trial o The accused was charged with first degree murder following the death of his 12-year-old daughter, Tracy, who had a severe form of cerebral palsy and caused her great pain o After learning that the doctors wished to perform additional

1025

surgery, which he perceived as mutilation, the accused decided to take his daughter's life o He carried her to his pickup truck, seated her in the cab, and inserted a hose from the truck's exhaust pipe into the cab o The accused was found guilty of second degree murder and sentenced to life imprisonment without parole eligibility for 10 years o The SCC called a new trial because of the prosecutors interference with jury selection

1026

Second trial o The trial judge denied a motion of accused to have the jury consider a defence of necessity o In the course of its deliberations, the jury sent the trial judge a note inquiring, in part, whether it could offer any input into sentencing The trial judge told the jury it was not to concern itself with the penalty at this stage o The jury recommended one year before parole eligibility and the

1027

trial judge then granted a constitutional exemption from the mandatory minimum sentence, sentencing the accused to one year of imprisonment and one year on probation o The CA affirmed the conviction but reversed the sentence, imposing the mandatory minimum sentence of life imprisonment without parole eligibility for 10 years Issue: Was the defence of necessity available to the accused? Holding: No, the appeal was dismissed The Court

1028

The defence of necessity is narrow and of limited application in criminal law The accused must establish the existence of the three elements of the defence 1. That there is imminent peril or danger 2. That the accused had no reasonable legal alternative to the course of action undertaken

1029

o The test for both steps 1 and 2 is objective 3. There must be proportionality between the harm inflicted and the harm avoided The trial judge was correct to remove the defence from the jury since there was no air of reality to any of the three requirements for necessity The accused did not himself face any peril and Tracys ongoing pain did not constitute a reasonable emergency in this case The accused had at least one reasonable legal alternative to killing his

1030

daughter: he could have struggled on, by helping Tracy to live and by minimizing her pain as much as possible Leaving open the question of whether the proportionality requirement could be met in a homicide situation, the harm inflicted in this case was immeasurably more serious than the pain resulting from Tracys operation which the accused sought to avoid Necessity and Codification

1031

Several proposals to amend the Criminal Code have been put forth, taking into consideration the characterization of the defence of necessity by the jurisprudence, more significantly The presence of an imminent and serious danger to a person or property That the harm sought to be avoided is greater than the harm resulting from the unlawful conduct That the harm could not be avoided by alternative action

1032

The defence should not apply to anyone who purposely kills or seriously harms another

5. Provocation Provocation is a partial defence to the offence of murder only If successful, it can reduce murder to manslaughter, but cannot result in complete acquittal and categorically result criminal liability

1033

Codified in s.232 of the Criminal Code

s. 232 Criminal Code Murder reduced to manslaughter (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation

1034

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. Questions of fact (3) For the purposes of this section, the questions (a) whether a particular wrongful act or insult amounted to provocation, and

1035

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being. Death during illegal arrest (4) Culpable homicide that otherwise would be murder is not necessarily

1036

manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section. Before being left to the jury, there must be an air of reality (R. v. Thibert) If this is met, the Crown must disprove the existence of provocation beyond a reasonable doubt

1037

Applying the Provisions R. v. Hill, SCC [1986] 1 SCR 313 Facts Accused was convicted of second degree murder for a fatal stabbing He was sixteen when the incident occurred and testified that he had reacted to the victim's uninvited homosexual advances He relied on the defences of provocation and self-defence The Court of Appeal ordered a new trial because the trial judge failed to

1038

charge the jury that the objective "ordinary person" standard for the defence of provocation had to take account of the age and sex of the accused Issue: How is the objective test for the provocation defence to be formulated? Holding: The appeal was allowed and the conviction restored Dickson CJC The ordinary or reasonable person has a normal temperament,

1039

average mental capacity and level of self-control, and is not exceptionally excitable, belligerent or in a state of drunkenness As for other characteristics of the ordinary person, the "collective good sense" of the jury will lead it to ascribe to the ordinary person any general characteristics relevant to the provocation in question Since features such as sex, age, or race, do not detract from a person's characterization as ordinary, they can be ascribed to an ordinary person without subverting the logic of the objective test

1040

o It would be impossible to conceptualize a sexless or ageless ordinary person The central criterion, however, is the relevance of the particular feature to the provocation in question.

The trial judge is not bound to tell the members of the jury what specific attributes they are to ascribe to the ordinary person In applying their common sense to the factual determination of the objective test, jury members will naturally and properly ascribe certain

1041

characteristics to the "ordinary person" Once the jury has established that the provocation was sufficient to deprive an ordinary person of self control (objective test), the second test of provocation involves an assessment of what actually occurred in the mind of the accused (subjective test) In this regard, a trial judge may wish to remind jury members that they are entitled to take into account the accused's mental state and psychological temperament

1042

The trial judge correctly charged the jury as to the ordinary person standard in the defence of provocation It was not necessary to direct the jury that the ordinary person means an ordinary person of the same age and sex as the accused Lamer J (dissenting in result) Agrees with the majority in the exposition of the law

1043

When giving content to the ordinary person standard, age is a relevant consideration when dealing with a young accused person It was not mandatory that the judge instruct the jury that the ordinary person is deemed to be of the same age and sex as the accused In some cases, however, failure to do so would be unfair and constitute reversible error The trial judge here erred when he gave instructions to the jury tantamount to excluding age as a relevant factor when addressing the

1044

"first leg" of the provocation test Wilson J (dissenting) The accuseds subjective level of self-control cannot be taken into account in measuring an accused's acts against the objective standard of the "ordinary person" at the first stage of the provocation defence To do so would undermine the basic principles of equality and individual responsibility

1045

However, the accused's physical characteristics and the circumstances in which he is found can be considered in applying the objective "ordinary person" test if they are relevant The jury must be directed to consider any facts which make the wrongful act comprehensible to them in the same way that it was comprehended by the accused

Le Dain J further concurred with the dissenting opinion Comments

1046

Three elements to the defence of provocation o Whether a reasonable person could have acted similarly in the heat of passion (objective test) o Whether the accused actually was provoked herself (subjective test) o Whether there was enough time for the anger to cool

R. v. Thibert, SCC [1996] 1 SCR 37

1047

Facts The accused was charged with first degree murder for the killing of his wife's lover Two months prior to the incident, his wife had disclosed her relationship to the victim, and the accused attempted to change her mind while approaching her with a loaded rifle While he was attempting to persuade his wife to go somewhere to talk, the victim came out of the building. The accused removed the rifle from the car and the victim was then told by the accused's wife that the rifle

1048

was not loaded He began walking towards the accused, with his hands on the wife's shoulders swinging her back and forth, saying, "Come on big fellow, shoot me? You want to shoot me? Go ahead and shoot me." The accused testified that his eyes were closed as he tried to retreat inward and the gun discharged The trial judge left the defence of provocation with the jury, but in his charge did not instruct the jury that the Crown had the onus of disproving provocation beyond a reasonable doubt

1049

The accused was found guilty of second degree murder The CA in a majority decision dismissed the accused's appeal, holding that the trial judge erred in leaving the defence of provocation with the jury but that this error did not prejudice the accused Issue: Should the defence of provocation have been left to the jury? Holding: Yes; the appeal was dismissed Cory J The defence of provocation in s. 232 of the Code contains both an objective

1050

and a subjective element and both must be satisfied if the defence is to be invoke The objective element requires that there be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control The "ordinary person" must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series

1051

of acts or insults as those experienced by the accused The history and background of the relationship between the victim and the accused is also relevant

The subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool To be sudden provocation, the wrongful act or insult must strike upon a mind unprepared for it Under the subjective element, the history and background of the

1052

relationship between the victim and the accused should also be taken into consideration Before leaving the defence with the jury the trial judge must determine if there is any evidence upon which a reasonable jury properly instructed and acting judicially could find that there had been provocation The trial judge should not weigh the sufficiency of the evidence, this function is reserved for the jury

1053

When considering whether the evidence has met the threshold test, the trial judge must also take into account the nature of the wrongful act and how it should be viewed in the context of the case

The trial judge properly left the defence of provocation with the jury Although rejection in the context of a romantic relationship does not constitute a basis for the provocation defence, rejection in this case is not the most significant or overriding factor The accused sought to avoid the victim in order to talk privately with his

1054

wife While the victim's actions in the parking lot were clearly not prohibited by law, they could nonetheless be found by a jury to constitute insulting behaviour

In light of the trial judge's failure to instruct the jury that the onus rested upon the Crown to establish beyond a reasonable doubt that there had not been provocation, there must be a new trial

1055

Iacobucci J (dissenting) The threshold test for leaving the defence of provocation with the jury has not been met in this case There is no enough evidence that the victim acted wrongfully or insulted the accused Provocation and Intent

1056

Can provocation be a defence that vitiates intent for murder under s. 229 of the Code, or does it operate outside the scope for murder as an independent excuse? R. v. Campbell Ontario CA (1977), 38 CCC (2d) 6 Facts Accused was charged with the attempted murder of his wife Amongst other things, he relied on the defence of provocation

1057

The defence was rejected as an offence of attempted murder Issue: Can provocation serve as a defence to attempted murder? Holding: No; appeal dismissed Martin JA Provocation as a defence to murder is based on a loss of self control as a result of sudden provocation rather than on its negativing the requisite intent, and the law is now settled beyond question that provocation reduces murder to manslaughter notwithstanding the

1058

existence of an intent to kill Absence of provocation is not part of the actus reus of murder in the sense that absence of consent is part of the actus reus of rape The defence of provocation exists with respect to a charge of murder; it is an allowance made for human frailty which recognizes that a killing, even an intentional one, is extenuated by the loss of self-control caused by adequate provocation It is unnecessary to invoke the defence of provocation until all the

1059

elements of murder have been proved The language of s. 215 is consistent only with the defence of provocation being limited to reducing murder to manslaughter Provocation may, of course, inspire the intent required to constitute murder In some cases the provocation afforded by the victim, when considered in relation to the totality of the evidence, might create a reasonable doubt in the mind of the jury whether the

1060

accused had the requisite intent Thus, in some cases, the provocative conduct of the victim might be a relevant item of evidence on the issue of intent whether the charge be murder or attempted murder Comments Provocation does not negate mens rea, it is a partial excuse once the crime has been proven

1061

R. v. Cameron Ontario CA (1992), 71 CCC (3d) 272 Facts Accused was convicted of second degree murder and sentenced to life imprisonment without eligibility of parole for 10 years He appealed his conviction alleging that the statutory defence of provocation in s. 232 of the Code was unconstitutional, since it imposed an objective standard on something that operates by negativing an essential element of the mens rea for murder" Issue: Does the statutory defence of provocation in s. 232 of the Code

1062

contravene ss. 7 and 11(d) of the Charter? Holding: No; appeal dismissed Doherty JA The appellant contends that the "defence of provocation operates by negativing an essential element of the mens rea for murder", and as such cannot be based on an objective standard, since the fault for murder must be subjective

1063

The accuseds argument misconceives the effect of s. 232 The section does not detract from or negative the fault requirement for murder, but serves as a partial excuse for those who commit what would be murder, to reduce it to manslaughter As the opening words of s. 232 plainly indicate, the defence only need be considered where the Crown has proved beyond a reasonable doubt that the accused committed murder Section 232 does not impose liability where subjective fault does

1064

not exist, but reduces the liability even when that fault exists The objective component of the statutory defence of provocation serves a valid societal purpose and cannot be said to be contrary to the principles of fundamental justice. Section 232 is not incompatible with s. 11(d) of the Charter, since it does not place any burden of proof on an accused to disprove anything essential to the establishing of his culpability

1065

Indeed, the onus is on the Crown to negate provocation beyond a reasonable doubt

R. v. Parent SCC (2001), 154 CCC (3d) 1 Facts The accused and his wife were involved in litigation over the division of their assets Because of financial difficulties, the accused's shares were seized and

1066

put up for sale, and the wife attended the sale allegedly intending to buy the shares At the sale she said: "I told you that I would wipe you out completely" at which time the accused shot his wife six times and killed her with a loaded gun he was carrying in his pocket At trial the accused, who was charged with first degree murder, argued that the verdict should be reduced to manslaughter on the basis of lack of criminal intent or provocation The jury found him guilty of manslaughter

1067

The CA upheld the verdict Issue: Did the trial judge erroneously charge the jury on the effect of anger on criminal intent? Holding: No; the appeal was allowed and a new trial ordered on second degree murder McLachlin CJC The trial judge erred in his charge to the jury on the effect of anger on mens rea and its relationship to manslaughter

1068

In the context of murder, the defence of provocation does not eliminate the need for proof of intention to kill, but operates as an excuse that has the effect of reducing murder to manslaughter Portions of the jury charge erroneously suggested that anger, if sufficiently serious or intense, but not amounting to the defence of provocation, may reduce murder to manslaughter o They also mistakenly suggested that such anger could negate the criminal intention for murder

1069

Intense anger alone is insufficient to reduce murder to manslaughter Anger can play a role in reducing murder to manslaughter in connection with the defence of provocation when all the requirements of that defence are met: o (1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control o (2) which is sudden and unexpected o (3) which in fact caused the accused to act in anger

1070

o (4) before having recovered his or her normal control

Review Prominent elements of the criminal law Punishment instead of restitution

1071

Because of the punitive element of the criminal law, a s.7 analysis of the law is often pertinent Distinction between true crimes and regulatory offences o A mens rea requirement depending on the stigma and limits to liberty imposed Two elements of crime Mens rea and actus reus

1072

They must be contemporaneous In Fega, we see that the mens rea can be superimposed after the actus reus has already started for acts which are continuous

Types of mens rea Highest level is intention o Special intent, dolus specialis, which goes beyond the mere knowledge of the consequences of the offences Knowledge of the foreseeable circumstances

1073

o Most general kind of intent Recklessness and wilful blindness o Belong to the subjective foresight category o They are variations of the knowledge category o Recklessness involves awareness of the risk and still undertaking such conduct o Wilful blindness involves having reasons to believe that there is some risk sufficient enough to make some inquiry but failing to do so

1074

Knowledge of circumstances that would require further inquiry o The defence of mistake of fact does not apply to wilful blindness Negligence o Two types: criminal negligence and strict liability Criminal negligence looks at marked departures from the reasonable standard of care Different from the civil standard of unreasonableness, since we are dealing with punishment and moral blameworthiness

1075

Strict liability Once the actus reus is proved, the mens rea is presumed In strict liability there is a defence of due diligence Different from absolute liability, where due diligence is not available, and this imprisonment cannot be imposed o In an absolute liability offence, Parliament must explicitly state that there is absolute liability,

1076

otherwise strict liability is presumed and some element of mens rea into it Some defences that make references to intent o Intoxication makes a distinction between special intent and general intent crimes This is the result of a policy decision The fact intoxication negates the mens rea of a special intent crime but not a general intent crime is a policy choice

1077

o Duress could negate mens rea for special intent crimes, since they require something beyond knowledge, which is conscious desire Causation Not all crimes requires causation E.g. in manslaughter causation is an essential element of the crime o The assault must have led to the death o Thin-skull rule does not apply

1078

To establish causation there must be proof of a causal contribution beyond a de minimis range What breaks the chain of causation? o Intervening acts

Homicide Murder in the first degree must be planned and deliberate, unless it was committed when committing certain violations

1079

o But if the murder is committed by another person, holding the person responsible for something she ought to have known violates principles of fundamental justice Murder in second degree requires merely a subjective foresight of bringing about death Manslaughter

Sexual assault

1080

At the essence of sexual assault, is the lack of consent Consent is then part of both the actus reus and mens rea o The complainant has to assert that there was no consent (based on subjective standard), this constitutes the actus reus o In relation to mens rea, it has to do with whether the accused believed that the person was consenting The accused has to have had knowledge that there was lack of consent Subjective foresight is required

1081

The defence of mistake of fact is often raised o The person assumes that consent was given o When mistake of fact is raised, there must be an air of reality, which is an objective test

Forms of participation Principal in first degree o Person who commits the crime Principal in second degree: aider and abettor

1082

Accessory before the fact Accessory after the fact Common intention o Those who share the intention with the principal, are also principals in the first degree Counselling o Not differentiated between a full offence and an inchoate offence

1083

o Withdrawal is possible in relation to common intention or conspiracy, but not counselling or promoting, where counselling constitutes the offence in itself Defences Intoxication o Difficult because it is self-induced o Can be a defence to special intent crimes but not general intent crimes

1084

Murder in the second degree is a general intent crime insofar that knowledge of the consequences is sufficient This difference between knowledge and intent often helps draw the line between general and specific intent crimes The wording in the offences are usually for the purpose of, with the intention to o Intoxication refers to absence of a specific intent, not capacity to raise an intent

1085

Capacity refers to cases of extreme intoxication, as an equivalent of automatism o To raise the defence there must be an air of reality test Duress o An excuse to criminal liability o Not available to certain offences either by statute (s.17) or common law o Principals in the first degree can only rely on the statutory defence

1086

o Accessories and principals in second degree can rely on the common law defence, since the restriction from using this defence in murder and treason in the common law is only applied to principals in first degree These forms of participation can, nevertheless, not use duress to negate the mens rea of the offence Self-defence o Justification to criminal liability This is different from duress which is an excuse

1087

Though the elements of the crime are present, it is not considered a blameworthy act because of the circumstances o Codified in s.34 of the Code Sub-paragraphs 1 and 2 diverge depending on the intention to bring death The first sub-paragraph requires proportionality The second sub-paragraph does not require proportionality but requires fear of death and no possibility of escape

1088

Necessity o Excuse to criminal liability o Different from duress because there is no human agency involved, as opposed to coercion Provocation o Partial defence Reduces murder to manslaughter o Grounds of provocation are a reasonable assault or insult which led to loss of self-control before there was an opportunity to recover

1089

1090