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CRIMINAL LAW Designed primarily to denounce and punish inherently wrongful behaviour; deter people from committing crimes/engage

ge in behaviour that presents serious risk of harm

Summary vs. Indictable Offence Summary offence lowest form of offence punishable by up to 6 months of jail and/or up to $2000 fine (s. 787 of CCC) Super Summary Conviction Offence can be summary conviction offences, but Parliament decreed punishment can be up to 18 months in jail Can only be tried in some courts Indictable offence more serious offence (depends on crime, but up to life) Can be tried in any court (except jury trialonly superior court) Crown elect/dual procedure/hybrid for some offences, crown can elect whether to proceed by indictment or summarily

QUICK SUMMARY General Guideline for Fact Pattern 1. Regulatory offence or True Criminal Offence? 2. Depending on which: a. True Criminal Offence break down offence using principles of criminal liability i. Actus Reus 1) Voluntariness; 2) Contemporaneity; 3) Action, Inaction, and Status; 4) Circumstances; 5) Consequences and Causation ii. Mens Rea; consider: 1) Subjective Proof -- Intention and knowledge, recklessness and wilful blindness And/or 2) Objective Proof reasonable person standard b. Regulatory Offence Strict, Absolute or Mens Rea? Differentiate between regulatory and true criminal Talk about 3 types of regulatory and how to differentiate Determine which one applies Counter argue others applicability What do you have to prove depending on each type Possible defences available Sources of Criminal Law Constitution Act, 1867 split of power b/w federal and provincial Charter limits on power at all levels of government, minimum rights guarantees (presumption of innocence) Statute law criminal code Common law judge made lawdefences Case Name Rule Friedland Centralizing criminal law (enacted by feds); Administration local/prov authorities - more flexibly Switzman v. Where legislation is in relation to criminal law, it is unconstitutional for a Elbing province to enact it Morgentaler Only the federal government can enact criminal legislation Reference Re If the pith and substance of an Act is criminal law, it falls within federal Firearms Act jurisdiction Amato v. The Common law defences preserved by s.7(3) of CC [duress, necessity, due Queen diligence (regulatory defence), entrapment] Frey v. Fedoruk SCC refuses to expand common law offences to include being 'peeping tom'; Concern that uncertainty would be introduced to criminal law Jobidon all criminal offences contained in Criminal Code, but common law approach to scope of consent to defence to assault is relevant (i.e. help clarify offences) Bell Expressvu Interpret CC provisions strictly, but ensure interpret to achieve objective of act Nova Scotia Criminal law should be certain vague (ambiguous) violates s.7 of Charter; Pharmaceutical cant be retroactive Society Heywood When considering whether legislative provision is overbroad, court asks "are those means necessary to achieve objective? Canadian Correction of children with reasonable force provision in CCC not void as Foundation for vague or over breadth Children

Goulis Pare Prevost

Strict construction of the Criminal Code requires the benefit of an ambiguity be given in favour of the accused Strict construction should only be applied if competing meanings are equally reasonable Interpret as per objective of provision (e.g. on duty police = while having lunch too)

Actus Reus Criminal liability can only exist where there is valid definition in law of criminal wrongdoing No culpable act without culpable mental state; no penalty for thoughts alone Voluntariness Proof required that actus reus was voluntary conduct product of freewill and controlled body Ruzic No actus reus if no conscious control of action (reflexive action, sleepwalking, accident, duress) Contemporaneity Proof required that mens rea and actus reus existed at same time Fagan Not necessary that MR should be present at the inception of AR - can be superimposed on existing act But, MR must coincide with AR at some point Miller Unintentional act followed by an intentional omission to rectify act or its consequences can be regarded in total as intentional Cooper MR need only coincide with AR at some point If act is complete, actus reus & mens rea coincide even if eventual result occurs later Action, Inaction, and Status Action if crime requires positive action, prove it Inaction some omissions can be crimes (statute or common law duty) Moore Duty to act must be imposed by statute or common law Thornton Open for courts to create common law duties in cases of serious harm to public Cuerrier Common law duty to disclose HIV status to sexual partners Popen Parent under legal duty at CL to take reasonable steps to protect child Status some offences, AR consists of essentially of status or some specific state of affairs almost being punished for what he is rather than for voluntary commission or omission (e.g. keeper of gaming house) Larsonne Charged with illegal immigrant even though came to country involuntarily ur Terrence Possession requires knowledge, consent & control Circumstances If definition of crime requires some element, prove that element (e.g. sex w/ 14 yr old; prove 14) Consequences and Causation Some crimes defined by consequence; prove that actions caused consequence Smithers MANSLAUGHTER - Crown must establish that D's act was contributing cause outside of de minimus range, thin skull rule applies Cribbin MANSLAUGHTER - looks at constitutionality of Smithers test (de minimus + thin skull rule) - it's okay Nette 2nd DEGREE MURDER - didn't overrule Smithers, same causation test for ALL homicide not insignificant cause is same as significant contributing cause; Objective foresight for manslaughter; subjective foresight for murder subjective foresight of death elevates act from manslaughter to 2nd and level of causation (substantial cause = more moral culpability) elevates from 2nd to 1st Harbottl 1st DEGREE MURDER - actions must form essential, substantial & integral part of e killing of victim - active role (higher requirement than Smithers) Larocque IMPAIRED DRIVING - impaired driving is a status (legally defined), not based on how you drive Blaue INTERVENING CAUSE - Refusal by victim to take blood transfusion does not break chain of causation

Menezes Reid & Stratton

INTERVENING CAUSE - Causation can be eliminated by intervening factors (independent factors) OR abandonment (Car Race) INTERVENING CAUSE - Independent intervening causes can negate actus reus (CPR)

Mens Rea Refers to the guilty mind the wrongful intention of the accused Morally innocent should not be punished Inclusion of offence in Criminal Code must be taken to import mens rea in absence of clear intention to dispense with it (Buzzanga) Subjective States of Fault fault that focuses on what passed through the mid of the accused person at the relevant time (i.e. actually what the accused intended or thought) Buzzang People intend the natural consequences of their actions (knowing it will occur = a intent) Tennant Where liability imposed on subjective basis, what reasonable person ought to have and anticipated is merely evidence that accused may have anticipated same Naccarat consequences o o Intent and Knowledge Intent does not equal motive Lewis Intent = exercise of free will to use means to produce particular result Motive is legally irrelevant not as part of crime but prove motive, more likely committed crime Hibbert Can have mens rea without desire for outcome; motive does not negate MR but can work as excuse (e.g. common law duress) Steane Look at offence definition to determine if particular intent required, such intent has to be proved beyond reasonable doubt by Crown Buzzang Wilful promotion of hatred - wilful means intent (wilful = high level of MR) a High degree of subjective MR required to prove purpose/intent Actual Knowledge lesser form of subjective fault than intentional or wilful conduct Theroux Actual knowledgedont have to desire/intend outcome just knowingly (subjective) do act knowing outcome is possible (recklessness is sufficient for MR) o Recklessness and Wilful Blindness (Recklessness = extension of intent; Wilful Blindness =extension of knowledge) Sansregr B&E, SEXUAL ASSAULT - Recklessness is see risk and take it; wilful blindness is see et need for inquiry-but deliberate ignorance of risk (proof of subjective required for both) Duong ACCESSORY AFTER THE FACT - crown cannot succeed in their case on basis of accuseds generalized knowledge that principal had committed some crime; BUT Suspicion coupled with deliberate failure to question further (wilful blindness) is considered requisite knowledgesufficient to establish a culpable state of mind Where accused made no inquiryspeculation that would have found out nothing is

irrelevant Cooper HOMICIDE - reckless causing murderknow death is likely, and take risk because of stigma of for murder, level of recklessness is higher: foreseeability of probability not foreseeability of possibility as for lesser crimes Objective States of Fault what reasonable person should have anticipated constitutes basis for liability / what the accused ought to have thought or contemplated about his or her actions Tutton CRIM NEG causing DEATH - Modified objective test = objective standard to and determine criminal negligence but would make allowance for factors which are Tutton particular to accused such as youth, mental development, education Waite CRIM NEG CAUSING DEATH (Driving) objective test is held to be standard for criminal negligence mental element in criminal negligence is the minimal intent or awareness of the prohibited risk or wilful blindness to the risk Gingrich CRIM NEG CAUSTING DEATH - no need to prove subjective intent to obtain conviction and for criminal negligence criminal negligence = objective fault element McLean Hundal CRIM NEG CAUSING DEATH (Driving) - modified objective test is constitutionally sound but inapplicable to driving offencepurely objective (all who drive have reasonable standard of health, capacitylicense standard for all drivers) Creighto MANSLAUGHTER prove objective foreseeability of the risk of bodily harm; Objective n test okay as stigma for manslaughter not serious enough to require subjective fault

Constitutional Considerations Vaillanco nothing less of subjective foresight is required before an accused can be convicted urt&Mart of murder, attempted murder, and crimes against humanity ineau Logan Short of murder, attempted murder, and crimes against humanity, something less than subjective fault will suffice for most criminal offences Durham Consider stigma of crime in deciding if subjective fault proof required Finlay CARELESS FIREARM - not sufficient stigma arising from conviction to require subjective mens rea Peters WILFULLY SET FIRE - subjective foresight of consequences not required (not like murder) DeSousa BODILY HARM - offence requires objective foresight of bodily harm constitutionally valid Hundal DANGEROUS DRIVING - under s.249 does not require subjective awareness of risk Creighto MANSLAUGHTER - subjective foresight not required for unlawful act of manslaughter n Finta CRIME AGAINST HUMANITY/WAR CRIMES - added measure of blameworthiness prove accused subjectively knew actions so perverse as to fall under war crime Absolute and Strict Responsibility subject to Charter, liability for regulatory offences may be satisfied by proof of act, accompanied by no further fault (absolute liability) or reduced fault (strict liability) true criminal offences usually must be proof of some guilty state of mind (law presumes requirement of some mental state) and actus reus Regulatory offenses designed to protect public and societal interests (minimum standard of care) General (Mens Rea) Beaver POSSESSION - statute could be interpreted in more than one way; and it is unfavourable to the defendant to assume legislators meant that no mens rea is necessary (b/c persons liberty) Irwin Toy Ltd. Corporations do not come under protection of s. 7 of Charter Absolute Liability crown just proves actus reus beyond reasonable doubt; not open to due diligence defence Pierce LOBSTER - offence lacked stigma of true criminal offence thus, it is okay to Fisheries Ltd. not have a mental fault requirement (and just interpret offence as written) B.C. Motor DRIVING w/out LICENSE - Absolute liability and imprisonment cannot be Vehicle Act combined (violates s.7 of the Charter) Pontes DRIVING w/out LICENSE Absolute liability okay because imprisonment is not available William Open to legislature to create an absolute liability offence where there is no Cameron possibility of imprisonment or probation (examine s.7 see if that would Trucking require mens rea (obj. or subjective)) Strict Liability crown proves actus reus beyond reasonable doubt; open for accused to prove due diligence defence on a balance of probabilities Sault Ste. Offences created by province are in public welfare offences category; 3 types Marie of offences: 1) Creates strict liability offences regulatory offence prima facie in this category 2) Mens Rea positive state of mind required - look for "intent" "knowingly" "willingly" 3) Absolute legislation clear that guilt flows from proof of act (common law defence okay) o Administrative Penalties

Sault Ste. Marie Pillar Oilfield Projects

Whistler Mountain Ski Corp Constitutional Considerations Wholesale MISLEADING ADS - no requirement for subjective mens rea requirement (low Travel Group stigma); held not to violate s.11(d) presume innocence b/c enforcement of regulatory offences impossible otherwise Ellis-Don Ltd. Wholesale upheld; reverse onus not violate 11(d)

does not stand for proposition that due diligence defence can only be used for regulatory offences as general principle, administrative penalties may be subject to due diligence defence that person should be penalized administratively by public servant without possibility of exculpating him/herself is extraordinary and abhorrent a punishment is a punishment Board held to have erred by not considering due diligence argument

A) SOURCES OF CRIMINAL LAW (1) Constitution as the supreme law Constitution Act 1867; Federal government has power to enact criminal law (Morgentaler) [s.91(27) of CA, 1867] o Centralizing criminal allows for consistencybut local (prov) administration = flexibility (Friedland) o Provincial laws about criminal law is unconstitutional (Switzman v. Elbing) To determine if criminal look at pith and substance (Reference Re Firearms Act) o Other related powers: Federal: s.91(28) penitentiaries jail for more than 2 years; Appoints superior judges; Prosecute some areas of criminal law drugs, etc. Provincial: s.92(15) enforce valid provincial laws; s.92(6) administer reformatories (2 years less one day); Appoint provincial judges (most criminal trials); Administer criminal law Charter, 1982 places restraints on criminal law, such as trial without unreasonable delay legal rights set out in ss.7-14, protect those being investigated, charged and tried for criminal offences applies to all aspects of criminal law, from charge to trial to sentence applies to government officials such as police, legislatures (2) Statute law Criminal Code of Canada; Source of criminal law in statutes common law offences eliminated in 1953 o Criminal law should be certain vague (ambiguous) violates s.7 of Charter; cant be retroactive (Nova Scotia Pharmaceutical Society) o Judges refuse to expand common law offences to include being 'peeping tom' Concern that uncertainty would be introduced to criminal law (Frey v. Fedoruk) But common law can help clarify offences (Jobidon) o Common law defences preserved by s.7(3) of CC [duress, necessity, due diligence (regulatory defence), entrapment] (Amato) Interpretation o Interpret CC provisions strictly, but ensure interpret to achieve objective of act (Bell Expressvu) Strict construction of the Criminal Code requires the benefit of an ambiguity be given in favour of the accused (Goulis) Strict construction should only be applied if competing meanings are equally reasonable (Pare) Interpret as per objective of provision (e.g. on duty police = while having lunch too) (Prevost) o When considering whether legislative provision is overbroad, court asks "are those means necessary to achieve objective? (Heywood) (3) Common law judge-made decisions, interpreting constitution, Criminal Code Case Name Frey v. Fedoruk Facts & Decision Civil action for false imprisonment and malicious prosecution Ratio SCC refuses to expand common law offences to include being peeping tom concern that uncertainty would be introduced into criminal law leaves it up to legislature the rather than judge include in Criminal Code

Jobidon Cases still illuminate the definition in CC

A consensual bar fight took place between the defendant and another man, who died of the injuries sustained in the fight. The accused was charged with unlawful manslaughter

Amato

Bell Expressvu

Nova Scotia Pharmaceuti cal Society

Heywood

The lack of consent element of assault does not extend to intentional infliction of bodily harm A person cannot consent to harmJobidon was guilty of unlawful act manslaughter The unlawful act was assault causing bodily harm which caused a mans death All criminal offences contained in CCC, but common law approach to scope of consent to defence to assault is relevant Common law defences preserved by s.8(3) of Criminal Code, such as duress, necessity, due diligence (regulatory defence), entrapment Interpretation Act applies to all Strict construction of criminal law does federal laws (provincial act for not clash with this principle, as court provincial laws) S.12: every act finds that prohibition against decoding deemed to be remedial, to be given encrypted subscription signal under fair, large and liberal construction and Radio communication Act not interpretation as best ensures ambiguous, includes U.S. signals attainment of its objects (objective is met) Crimes are not to be created or punished on retroactive basis (also protected by ss.11(g), (i) Charter of Rights) Fundamental principle of criminal law is no crime/punishment except in accordance with fixed, predetermined law Void for vagueness doctrine under Charter of Rights offence which is impermissibly vague violates s.7 - Vagueness (means not clearly defined) OR Over breadth (means are too sweeping in relation to objective) = not fair notice to citizens or - In dealing with ambiguous definition; generally take definition favourable to accused s. 179(1)(b) of CCC : offence for Criminal Code offence of loitering near person with past sexual violence playground vague as overly broad in conviction to be found loitering in or geographic scope, applies for life near school, playground, public park, without review, too broad in number of bathing area persons it encompasses, and may be enforced without notice to accused When considering whether legislative provision is overbroad, court asks "are those means necessary to achieve State objective? If state uses means broader than necessary to accomplish goal, principles of fundamental justice violated b/c rights unreasonably limited

Canadian Foundation for Children

SCC considering whether s. 43 of CCC authorizing use of force by way of correction toward pupil/child if force does not exceed what is reasonable under the circumstances was void because of vagueness or overbreadth

Goulis

Issue: whether a bankrupt who deliberately fails to include items of his property in his statement of affairs to trustee, fails to disclose them as assets has 'concealed' property with intent to defraud creditors (CCC s. 350(a)(ii))

Pare

The accused indecently assaulted a boy and killed him 2 minutes later. At trial he was found guilty of first degree murder for killing the boy while committing an indecent assault

Prevost

Accused killed on-duty cop while officer on lunch. Issue: whether murder was first degree (like Pare)

correction of children with reasonable force provision in Code not void as vague/overbreadth; s.43 sets real boundaries, delineates risk zone for criminal sanction so not vague; it does not permit force that cannot correct or is unreasonable, so not overbroad word conceals to creditors in fraud offence requires positive conduct, not just failure to disclose latter is offence under Bankruptcy Act; Word used by Parliament requires positive act of concealment Strict construction of the CC requires the benefit of ambiguity be given in favour of accused interpretation of murder provision while committing another indecent assault; Strict construction should only be applied if competing meanings are equally reasonable murder represents exploitation of power created by underlying crime, and makes entire course of conduct a single transaction s. 231(4)(a) - whether murder was planned or deliberate or not - murder is 1st degree when victim police officer acting in course of duties court rejects argument that murder must be exactly simultaneous with commission of underlying offence officer having lunch, still acting in the course of his duties

B) ACTUS REUS No culpable act unless performed with culpable mental state; NO criminal liability unless guilty mind expresses itself in performance of prohibited act Criminal act is important limitation on ambit of criminal liability no penalty for thoughts alone Five Elements: 1) Voluntariness; 2) Contemporaneity; 3) Action, Inaction, and Status; 4) Circumstances; 5) Consequences and Causation Voluntariness Normally, no need to examine fault element in actus reus, but Crown required to prove voluntariness for prohibited conduct established if conduct is product of conscious choice implies that some minimal mental element in actus reus, which is not the same as fault element Rationale: Only voluntary conduct product of free will and controlled body, unhindered by external constraints should attract stigma and penalty of criminal liability (Ruzic) Criminal liability cannot be attributed to person who is not responsible for his/her acts Physical involuntariness covers wide range of conduct: reflexive action, sleepwalking, accident Consciousness alone is not enough: person may be conscious but incapable of controlling conduct: e.g. person slips and strikes person while falling; e.g. driver has heart attack and loses control of car voluntary acts? Common law duress (Ruzic) Facts & Decision Girl from Yugoslavia forced to carry drugs on plane held not to be criminally liable because she was acting under duress (threats to family back home) Ratio Criminal responsibility ascribed only to acts from choice of a conscious mind and autonomous will S.17 defense of duress did not work (need immediacy and presencemoral involuntariness does not negate mens rea or actus reus of offence); but common law duress defense did work (as per Charter) - Free will and controlled body deserves protection under section 7 (life, liberty and security of the person) of charter

Case Name R. v. Ruzic (2001) SCC No actus reus if act under duress

Contemporaneity Contemporaneity requires crown to prove that element of fault and actus reus coincide i.e. intent and act must concur to constitute the crime (if fault in definition of the offence) May be difficulty in determining whether or not fault coincides with conduct Mens Rea and Actus reus must coincide at some point (Fagan, Cooper) Not necessary that MR be present at start of AR, MR can be superimposed on existing act (Fagan) Unintentional act followed by an intentional omission to rectify act or consequences is sufficient (Miller) If act is complete, actus reus & mens rea coincide even if eventual result occurs later (Cooper) e.g. Assault requires actus reus and mens rea be present at same time act of accused becomes criminal when intention formed to produce apprehension flowing from continuing act

Case Name Fagan v. Commission er of Metropolitan Police (1969) QB CA unintention al act + later omission to rectify = intentional act R v. Miller (1982) CA unintention al act + later omission to rectify = actus reus

Facts & Decision Charge of assaulting police officer in execution of duty: accused runs over officers foot, swears when told to get off, and shuts off car. Convicted

Ratio Assault requires mens rea and actus reus; no mens rea in original running over foot But mens and actus reus coincide when Fagan shuts off engine and remains on foot (while swearingmental component proved) - original conduct not assault, but became assault by later inaction mens rea not necessary to be present at inception of actus reus; it can be superimposed on an existing act (i.e. series of events part of one transaction) - Continuous act theory unintentional act followed by intentional omission to rectify its consequences = intentional act - Duty theory (separate acts) first unintentional; then omission Defendant should not avoid liability for arson just because last thing he does is omission to act Conduct gives rise to criminal liability where failure to take measures within ones control to counteract danger one has created, if at time of conduct, accuseds state of mind constitutes necessary ingredient of offence - i.e. accused acts unintentionally, then realizes risk in previous action and continues w/ it or omits to stop it (reckless) [duty theory] - says either theory leads to same result [duty or continuous] Criminal Code murder provision states that once accused forms intent to cause bodily harm to deceased which he knows is likely to cause death, accused need not be aware what he was doing at moment she actually dies Principle of voluntariness is fundamental justice principle implicit that fault must coincide with element of voluntary conduct

Accused falls asleep in anothers home with lit cigarette, starts fire in mattress which he ignores and moves to another room, house catches fire. Convicted Accused charged with murder by strangling, he recalls grabbing her by throat, shaking her, and wakes up next morning; accused under influence due to alcohol consumption. Convicted

R v. Cooper (1993) SCC if act is complete, actus reus & mens rea are contemp. even if eventual result occurs later

Action, Inaction and Status Action Most offences require proof of positive act positive action as opposed to standing still verb Such as stealing, driving, killing In some circumstances doing nothing can constitute prohibited conduct, but this where omission to act such as failing to render help at accident scene Parliament may provide definitions to help clarify act, such as meaning of break in break and enter offence general definitions section under s.2 Inaction Failure to act can constitute actus reus of criminal offence, although as general rule doing nothing is not a crime Inaction becomes criminal conduct where: (Moore) - legislature identifies specific circumstances where doing nothing is sufficiently hurtful to merit criminalization, or - law has imposed duty of positive action and criminal sanction for failing to fulfill duty Open for courts to create common law duties in cases of serious harm to public (Thornton) e.g. CL duty for parent to take care of child (Popen) e.g. CL duty to disclose HIV status to sexual partners (Cuerrier) Criminal negligence where act or omission to act if duty to do so, that is wanton or reckless disregard for lives or safety of other persons [s. 219 of CCC] Duty defined in same section as a duty imposed by lawby statute or by common law Controversy about liability for omissions extent to which criminal law should create duties and penalty for non-compliance: duty to prevent offence?

Case Name Fagan omission can be actus reus Miller omission can be actus reus Moore v. The Queen (1979) SCC failing to give name = obstructing act R v. Thornton (1991) OCA open for courts to create common law duties in cases of serious harm to public

Facts & Decision Run over foot (see Contemporaneity above) Mattress fire (see Contemporaneity above) charge of obstructing peace officer by failure to give name when stopped for riding bicycle through red light. Convicted Accused aware that he has AIDS, charged with common nuisance by donating blood to Red Cross; argued no harm b/c not endanger people (Red Cross screening process 99.3% accurate). Convicted.

Ratio accused did not know at first he drove over officers foot, but failure to get off voluntary conduct as soon as he realizes situation failure of accused to attend to burning mattress same as setting fire Officer under duty to attempt to identify wrongdoer; failure to identify himself was obstruction by wrongdoer majority considers this major inconvenience and obstruction to police in carrying out their duties Minority view that person not guilty of obstructing officer by doing nothing, unless legal duty to act which is imposed by statute/common law Common nuisance in Criminal Code is doing unlawful act, or failure to discharge legal duty which endangers lives or health of public No offence to donate contaminated blood, but common law duty may be duty imposed by law Donating blood one knows is HIV contaminated to organization providing blood for transfusion to others is breach of common law duty to refrain from conduct which one foresees could cause serious harm to another - When gravity of potential harm is great, public is endangered even where risk of harm actually occurring is slight or minimal duty of care under section 216 of Criminal Code breached by not disclosing blood contaminated no reference to common law duty

Cuerrier common law duty to disclose HIV status to sexual partners Popen

non-disclosure of accused of HIV status precluded valid consent, as if common law duty created by court Mom killed kid, father did nothing to stop it.

Editorial Duties based on liability for omissions should be left to Parliament, where it enacts criminal law and creates statutory duty - Creates common law offencesshould not be the case - On the other hand, impossible for parliament to legislate all duties A parent is under a legal duty at common law to take reasonable steps to protect his/her child from illegal violence from another parent or 3rd person. He had a legal duty to act, thus is liable for omission

Status In Some offences actus reus consists essentially of status or some specific state of affairs almost as if accused being punished for what he or she is, rather than for voluntary acts e.g. being keeper of gaming house or bawdy house, being found-in, or being nude in public place Parliament rejected option of creating offence of being member of criminal organization or terrorist organization, but offence of participating in activities of such organizations Offences of possession concerned with relationship between people and things around them (Terrence) - Active possession: if person actually has it on his person - Constructive possession: person asks somebody else to hold something, he is still in possession - Joint possession: scheme/plan to commit offense, one holds it for all

Case Name Heywood (1994) SCC Larsonneur (1933)

Facts & Decision

Ratio Some status offences in Code such as vagrancy until declared void for over breadth Accused charged with being alien by violating condition on her passport Fact that she did not enter England voluntarily no defence, as if no actus reus committed

R v. Terrence (1983) SCC status actus reus re possession requires knowledge of possession

Accused (French) allowed to enter UK, but visa subsequently revoked, she left to Irish Free State. But deported from there and forcibly returned to England. Charged upon landing with being an alien. Possession of stolen car where accused is passenger, but did not know it was stolen. Not convicted.

Possession defined in s.4(3)(b) requires knowledge and consent of other party; s.21 makes one party to an offence if common intention formed Constituent and essential element of possession under s.4(3)(b) is measure of control on part of person deemed to be in possession no evidence that accused knew car stolen

Circumstances In definition of actus reus common for legislature to include specific circumstances among elements of offence as much part of actus reus as element of voluntary conduct Failure by Crown to prove each circumstance results in acquittal In interpretation of offences identify what circumstances are essential elements, e.g. breach of valid custody order requires proof of existence of valid order; e.g. assault of police officer requires proof that party is police officer; e.g. sexual interference with person under 14 years old requires proof of persons age Statutory definitions provided sometimes to assist in clarifying relevant circumstances e.g. Dangerous driving offence in s.249 contains definition of offence Consequences and Causation Some offences include element of causation, such as causing death or bodily harm e.g. Dangerous driving offence complete where driving shows marked departure from requisite standard; Issue: What suffices to establish causal connection between conduct and prohibited consequence? Causation issues tend to arise where multiple parties, thin skull victims or intervening events (Nette) Factual causation = inquiry about how the victim came to death (medical, mechanical, physical sense) and contribution of accused to that result But-for test Legal causation (imputable causation, morally culpability) = whether accused should be held responsible in law for death legal considerations, such as wording of section, principles of interpretation Requires proof that act of accused caused death MANSLAUGHTER - Crown must establish that D's act was contributing cause outside of de minimus range, thin skull rule applies (Smithers) (Cribbin held that Smithers was constitutionally valid) HOMICIDE Smithers test, but positive wording not insignificant cause is same as significant contributing cause (Nette) 1st DEGREE MURDER - actions must form essential, substantial & integral part of killing of victim - active role (Harbottle) Sometimes result that is prohibited is not concrete act, but risk (e.g. fraud) Intervening Causes independent factors exist which might reasonably be said to sever link that ties accused to prohibited result (Menezes) e.g. victim assaulted, but subsequent CPR medical cause of death no actus reus (Reid & Stratton) e.g. Refusal by victim to take blood transfusion does not break chain of causation (Blaue)

Case Name Smithers v. The Queen (1978) SCC (assaulter takes accused as isthin skull rule) (Sufficient cause for manslaughter at least a contributing cause of deathbeyond de minimis) R v. Cribbin (1994) OCA Smithers test for Causation in manslaughter applies causation beyond de minimus range; based on objective foresight (substantial causation w/ subjective foresight only required for murderlater overruled) R v. Nette (2001) SCC Causation in murdersame test for all homicide not insignificant cause is same as significant (objective foresight for manslaughter; subjective foresight for murder)

Facts & Decision Heated hockey match; racial remarks to Smithers (16, black), after game, punched victim 2 times and kicked once victim died to aspiration of foreign materials (vomit) his epiglottis (the 'valve' separating the breathing and eating tubes) failed. Convicted of manslaughter. Victim beaten into unconsciousness, injuries not lifethreatening, but drowns in own blood, under influence of alcohol, cocaine. Accused charged with second degree murder, convicted of manslaughter.

Ratio Issue in case is whether causal connection between kick and death Crown had burden of showing factual causation: that beyond reasonable doubt kick caused death (whether A caused B) - crown has no burden to prove intention to cause death or foreseeability of death Evidence that kick was at least a contributing cause of death, outside de minimis range this is all Crown was required to establish - Sufficient Causation = was at least a contributing cause of death, outside the de minimis range [not trivial, not need main cause] One who assaults another takes the victim as is immaterial that death due to organ malfunction (thin skull rule) Accuseds own assaultive acts need not have been medical cause of death Smithers test applies - Trial judge not required to instruct jury that they could only convict if found accuseds assault substantially contributed to victims death; substantial causation test required only for murder To prove guilty of manslaughter: person must commit unlawful dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful act is at least a contributing cause of the victim's death, outside the de minimis range - Causation and fault element must be proven beyond reasonable doubt de minimis range = not trivial or insignificant = objective foreseeability of bodily harm for manslaughter; subjective foresight in case of murder

Elderly victim bound in wire during robbery (hogtying), garment tied around her neck and chin, later dies of asphyxiation. Convicted of second degree murder.

Harbottle

multiple parties

Only one standard of causation exists for all homicide cases, whether manslaughter or murder - Smithers causation test still valid - Use of positive terms may be better in explaining standard to jury: significant contributing cause rather than the negative not a trivial cause or not insignificant (not required) Dissenting View: not insignificant does not equal significant; standard is higher in second case Show factual causation (died of asphyxiation that would not have occurred but for actions of accused); and legal causation (actions constituted a significant, operative cause of the victims death) Homicide trial question: whether accused caused victims death fact that others or other factors contributed to result may or may not be significant to trial of one accused charged with offence; - legal significance where independent factors, before or after acts or omissions, legally sever link b/w accused & prohibited result Test for first degree murder = accused must play very

R v. Blaue (1975) intervening cause R v. Menezes (2002) OSCJ Causation can be eliminated by intervening factors (independent factors) OR abandonment

Assault victim refused to take blood transfusion, died. Still convicted. Two people street racing; one dies b/c he loses control over vehicle and hits utility pole; other is held responsible. But abandoned in time (slowed down) not convicted of criminal negligence causing deathconvicted of dangerous driving.

Court ruled chain of causation not broken

R v. Reid & Stratton (2003) NS CA Independent intervening causes can negate actus reus

Physical altercation results in one becoming unconscious; people try to resuscitate him -- medical evidence shows that resuscitation efforts are cause of death. New trial ordered b/c judge did not instruct jury correctly w.r.t. causation

Issue: not primary cause or most proximate just a material cause (factual and legal) Remoteness if act of accused is too remote to have caused result alleged -- causation not established Intervening cause If the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate accused - Intervening = do independent factors exist which might reasonably be said to sever link that ties accused to prohibited result - Abandonment = breaking chain of events --> requires timely notice of intention to abandon common pursuit (positive action) Note: Victims responsibility is irrelevant all that needs to be shown for causation is to show the accused contributed to the death To prove causation, have to show beyond reasonable doubt that accused actions in fact and law caused death of victim - requires review of accuseds physical actions as well as others who try to revive victim Clearly, in this case, independent intervening factors (thus exculpatory factors) occurs after accuseds acts, severing link in chain which tied them to victims death Legitimate Intervening examples: - A assaults B, leaves B unconscious on floor of a building; building collapses and B dies-->A not held criminally responsible - A assaults B, leaves B unconscious, others carry him to hospital and at hospital, he gets a different disease and dies Trial judge erred in failing to provide jury instructions on intervening act

C) MENS REA Mens Rea refers to the guilty mind the wrongful intention of the accused Function in criminal law is to prevent the conviction of the morally innocentthose who do not understand or intend the consequences of their acts (R v. Theroux) If mental element is proved to be absent > no crime committed S. 19 of CCC ignorance of the law is not a defense a.k.a. mental state, mental element, guilty mind, fault element, etc. In statute: maliciously, fraudulently, negligently, knowingly Legislative Definitions of Fault To determine fault requirement for offence, wording of statute must be examined along with common law definitions Act subjective fault assessment Omission objective fault assessment No legislative definitions of fault in Canada (but there is in US, UK); examples: A person intends an event when; - His purpose is to cause that event, - When he has no substantial doubt that the event will result from his conduct - When he foresees that event will probably result from his conduct Reckless if: - Knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk; and it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present Negligent if: - Fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise

Subjective States of Fault Subjective fault fault that focuses on what passed through the mid of the accused person at the relevant time (i.e. what the accused intended or thought) NOT fault as measured up to some normative of objective standard (objective fault) Objective element may still be important for crimes formally requiring subjective fault when considering what a reasonable person would have known or realized (Tennant and Naccarato) As a guiding rule: People intend the natural consequences of their actions (Buzzanga) Case Name R v. Buzzanga and Durocher (OCA) 1979 people intend the natural consequences of their actions Ratio People usually able to foresee consequences of actions; if a person does an act likely to produce certain consequences reasonable to assume he also foresaw probable consequences i.e. he intended consequences - More likely the consequence from act, more likely accused intended those consequences Subjective fault what a reasonable man ought to have anticipated is merely evidence from which a conclusion may be drawn that the accused anticipated same consequences Objective fault what a reasonable man should have anticipated constitutes the basis of liability

R v. Tennant and Naccarato (OCA) 1975

objective fault may be relevant in considering subjective fault

Intention and Knowledge Two basic subjective fault requirements: Intention and Knowledge Look at offence definition to determine if particular intent required, such intent has to be proved beyond reasonable doubt by Crown (Steane) e.g. Wilful promotion of hatred - wilful means intent (not accident) (Buzzanga) Intent vs. Motive Intent = exercise of free will to use means to produce particular result (Lewis) Motive (desire) is legally irrelevant not as part of crime but prove motive, more likely committed crime (Lewis) Can have MR without desire for outcome; motive does not negate MR but can work as excuse (e.g. common law duress) (Hibbert) Case Name Facts & Decision Ratio R v. Lewis Intent the exercise of a free will to use particular means to produce a (SCC) 1979 particular result; the mens rea element of a crime Motive that which precedes and induces the exercise of the will; emotion prompting act - Intention is means; whereas motive is the end; Motive not part of crime (legally irrelevant) good intentions not matter Relevant if had motive, more likely they committed crime

Hibbert v. The Queen (SCC) 1995 intention not same as desire or motive; depending on offence-can have mens rea without desire for outcome

Accused was forced (according to accused) to lure victim into lobby of building where the principal offender shot the victim; accused acquitted of attempted murder, but convicted of aggravated assault appeal to SCC. Appeal allowed-new trial

Steane look at offence definition to determine if particular intent need be proven

Purpose = Intention (Dont confuse intent w/ motive) - Not require that accused desired outcome [for 21(1)(b) & (2)] - Thus, 21(1)(b) not negated by duress still know what you are doing and probable consequences (thus, do have mens rea) 1) if person commits crime b/c of threats of bodily harm, question mens rea depending on if definition of offense is such that existence of coercion can have bearing on existence of mens rea 2) if a person commits a criminal act because of threats of death/bodily harm, they are entitled to use defence of duress (common law, or s. 17 in CCC) (Criminal Code s. [regardless of 1] 21(1)(b)party to 3) mental states in 21(1)(b) and 21(2) of CC cannot offence) be negated by duresscannot argue that b/c they were under coercion and so lacked mens rea [can be excused by common law defence duress] Accused charged with Issue in case is whether acts were done with doing acts likely to assist intention of assisting enemy particular intent enemy with intent to must be proven assist the enemy (British an inference must be drawn that the defendant subject, in Germany intended the natural consequences of his acts where family is also; merely from the fact that he did them, but this did threatened that would not necessarily impute a guilty intent harm family if didnt Various matters may have negatived intent, such assist with propaganda as threats accused said were made to him, work) resulting in his making broadcast for Germany Charged with: if with during war (i.e. duress) intent to assist the Conclusion: no conviction enemy, any person does any act which is likely to assist the enemy

Intention and Wilful Conduct Case Name Facts & Decision Ratio R v. Buzzanga Accused charged with wilfully promotes hatred (s. 281.1(1) of CC now and Durocher wilfully promoting 319(2)) (OCA) 1979 hatred against - Means with the intention of promoting hatred; not Francophones, defence include recklessness or accident wilful means that they did so to Have to prove wilful intent to promote hatred intend combat apathy as they - Wilfully if: conscious purpose is to achieve result; conseq. were sympathetic with OR foresaw that result is certain to result from an stated in French, pamphlet action; but distributed it anyway for the purpose of offence intended as satire. New some other result need to prove trial. (wilfully promote Wilful not proved yet this hatreds.319(2)) But person likely intended natural consequence of their actions Actual Knowledge lesser form of subjective fault than intentional or wilful conduct Dont have to desire/intend outcome just knowingly (subjective) do act knowing outcome is possible (recklessness is sufficient for MR) (Theroux) Case Name Facts & Ratio Decision

R v. Theroux (SCC) 1993 (S. 380 of CC Fraud --prohibited act is deceit, falsehood or some other dishonest act)) actual knowledge dont have to desire/intend outcomejus t knowingly do act knowing outcome is possible

Accused convicted of fraud for accepting deposits from investors in a building project having told them that he had purchased deposit insurance when he hadnt.

Issue is whether test for mens rea for fraud is subjective or objective subjective test is not whether reasonable person would have foreseen consequences of prohibited act, but whether accused subjectively appreciated those consequences at least as a possibility - looks at accuseds intention and facts as accused believed them to be - But not values That accused believed that act was not wrong or that no one will be hurt in the end is NOT a defence - subjective awareness of consequences can be inferred from act itself Actus reus of fraud: accused practised deceit, lied or committed some other fraudulent act causing deprivation or risk to economic wellbeing of victim Mens rea of fraud: subjective awareness one was undertaking prohibited acts which constitute falsehood, deceit or other fraudulent means, and accused aware that deprivation could result from such conduct - Recklessness as to consequences also indicates criminal intent (know the risk, and reckless as to outcome)

Recklessness and Wilful Blindness Recklessness is seen as extension of intention; Wilful Blindness seen as extension of knowledge Recklessness is see risk and take it; wilful blindness is see need for inquiry-but deliberate ignorance of risk (Sansregret) Wilful Blindness example: ACCESSORY AFTER THE FACT Suspicion coupled with deliberate failure to question further (wilful blindness) is considered requisite knowledge (Duong) Recklessness example Reckless causing murder know death is likely, and take risk (Cooper) Case Name Facts & Ratio Decision R v. Accused Recklessness found in attitude of one who, aware, that Sansregret breaks into there is danger that his conduct could bring about the result (SCC) 1985 house, prohibited by the criminal law, nevertheless persists, despite sexually the risk (i.e. sees risk, takes the chance) recklessness assaults - Allows for defence of mistake (even if unreasonable, as long is see risk victim, claims as honest) and take it; defense of - Culpability comes from knowingly taking the risk Qmust wilful mistake in accused realize there is an actual risk (R v. G UK case) [but blindness is fact in open to judge to determine if accused did realise; i.e. dont see need for consent, just take accuseds ignorance of risk at face value] inquirybut victim fearful, Wilful Blindness arises where a person who has become deliberate complies to aware of the need for some inquiry declines the make the ignorance of ensure own inquiry because he does not wish to know the truth; prefers to risk safety. Guilty remain ignorant deliberate ignorance (proof of b/c of willful - No room for defence of mistake (presumes knowledge by subjective blindness accused) required for - Culpability comes from accuseds fault in deliberately failing both) to inquire when he knows there is reason for inquiry Recklessness has subjective element; Wilful Blindness does not R v. Duong Accused S.23(1) Code contemplates aid given to someone who has (1998) OCA allowed a committed an offence (the principal) by a person who knew person who that principal had committed that offence when the assistance wilful had was provided blindness is committed - prove alleged accessory knew person assisted was party to deliberate murder to specific offence actual knowledge of offence by accused ignorance stay in his sufficient have apartment; - show willful blindness as to existence of fact sufficient to suspicion, knew from TV establish culpable state of mind dont make a murder had Wilful Blindness is subjective = deliberate ignorance inquiry happen; the - Actual suspicion, combined with a conscious decision not to person make inquiries which could confirm that suspicious, is admitted he equated (in criminal law) with actual knowledge was in - Where an accused chose to make no inquiries, speculation trouble for as to what the accused would have learned had he made murder the inquiries is irrelevant to determine the blameworthiness of the accused state of mind R v. Cooper Concerning s. Court aligns recklessness in this context with actual intention (1993) SCC 229(a)(ii)-to cause death murder Recklessness causing murder -- It is not sufficient that accused reckless foresee simply a danger of death; accused must foresee a

causing murder know murder is likely, and take risk

likelihood of death flowing from the bodily harm he is occasioning the victim - must be established that accused had intent to cause such grievous bodily harm that he/she knew was likely to cause death - Suggests deliberate disregard for fatal consequences which are known to be likely to occur reckless whether death ensues or not

Objective States of Fault Objective standards focus on what the accused ought to have thought or contemplated about his or her actions, as opposed to what he or she did actually think about Criminal negligence Objective standard held to be standard for criminal negligence (Waite) Case Name Facts & Ratio Decision R v. Tutton Parents of child 219. (1) Every one is criminally negligent who (a) in doing and Tutton charged with anything, or (b) in omitting to do anything that it is his duty (1989) SCC homicide due to to do, shows wanton or reckless disregard for the lives or criminal safety of other persons [duty as parent prescribed by for criminal negligence, by s.215(1)(a)] negligence, failing to provide Normally, in criminal cases act element + mental fault impute mens necessities of life element is punished; with criminal negligence crimes rea from to their child act or omission which exhibits requisite degree of conductlook b/c of their negligence is punished to see if religious beliefs, Objective test must be employed where criminal negligence conduct they failed to is considered it is accuseds conduct, as opposed to departs from administer his/her intention or mental state, which is examined in this reasonable insulin injections inquiry person to diabetic son Test is reasonableness proof of conduct which reveals a marked and significant departure from the standard which (criminal could be expected of a reasonably prudent person in the negligence circumstances = criminal negligence s.219(1) & Court did not agree on this; one set argued for objective 215(1)) with subjective consideration for things like age, mental capacity, etc.; another set argued it should be subjective test because words reckless and wanton fit with other interpretations of reckless (e.g. Sansregret) Waite Criminal Trial judge wrong to have imposed subjective test, per negligence McIntyre, Lamer JJ. objective test causing death Trial judge wrong to have placed too high onus on Crown to for criminal case by acts of prove elements of deliberation, wilfulness, although negligence commission, subjective element to criminal negligence, per Wilson J. accused drives objective test is held to be standard for criminal negligence car at high mental element in criminal negligence is the minimal speed while intent or awareness of the prohibited risk or wilful blindness intoxicated, kills to the risk four people in church hayride Gingrich and President of Ont. C.A. quashes McLeans conviction, upholds conviction McLean trucking of Gingrich company, No need to import concept of subjective intent to obtain objective test McLean, and conviction for negligence for criminal driver, Gingrich, - sins of omission and commission that cause injury to negligence charged with ones neighbour, elevated to crime by magnitude of criminal wanton and reckless disregard for lives and safety of negligence others i.e. objective fault causing death trucks brakes fail; Gingrich aware problems with brakes over several days

Hundal objective fault makes sense for driving offences

Dangerous driving case,

Court rejects subjective mental element in such cases as denial of reality Operation of motor vehicle is automatic and with little conscious thought Objective test to be applied, but with some measure of flexibility, take into account context of events surrounding the incident modified objective test satisfies constitutional minimum fault requirement But, in light of licensing requirements and nature of driving offences, purely objective test in this case

R v. Creighton (1993) SCC manslaughte r requires objective foreseeability of the risk of bodily harm

Experienced cocaine user helps/sells? cocaine to another, accused injects victim and victim and dies of overdose; accused charged with manslaughter (negligence). Creightons appeal dismissed; conviction stands.

subjective mens rea requires that accused intended consequences of his/her acts, or that, knowing of probable consequences of those acts, accused proceeded recklessly in face of the risk; objective mens rea not concerned with what accused intended or knew, but mental fault lies in failure to direct the mind to a risk which reasonable person would have appreciated - not what was in accuseds mind, but what should have been there general consideration of individual excusing conditions only comes into play at point where person shown to lack capacity to appreciate nature and quality of or consequences of his/her acts (incapacity) court disagreed on whether objective foreseeability of consequence (death) or just bodily harm should be used: majority objective foreseeability of bodily harm court disagreed on extent subjective elements should be accounted for (e.g. context human frailties that make person incapable of perceiving correct set of facts e.g. illiterate cant read hazard sign, but can be held to take care of gun) - (court NOT consider experience w/ cocaine as increasing knowledge)

Constitutional Considerations Charter has had significant impact on minimal levels of fault for both criminal and quasi-criminal offences Short of murder, attempted murder, and crimes against humanity, something less than subjective fault will suffice for most criminal offences (Logan) Case Name Facts & Ratio Decision Vaillancourt; nothing less of subjective foresight is required before an accused can be Martineau convicted of murder, attempted murder, and crimes against humanity Logan s.21(2) phrase ought to have known for parties to offence is of no force and effect when applied to crimes of murder or attempted murder subjective Short of murder, attempted murder, and crimes against humanity, something foresight less than subjective fault will suffice for most criminal offences required for As long as there is a meaningful fault requirement, s.7 Charter may be satisfied murder by objective fault components Durham Not all criminal offences carry same amount of stigma; stigma proportional to gravity of conduct and its consequences, and to level of fault, represented by consider mental element, with which act or omission was performed stigma of Parliament can use civil standard of negligence for s.86(2) offence of using crime in firearm in careless manner or without reasonable precautions for safety of deciding if others subjective Although s.86(2) offence has stigma of criminal conviction, this is not sufficient fault proof to warrant that the offence have subjective mental element required Finlay offence of S.C.C. agrees that objective test satisfies mens rea careless storage requirement for offence of careless storage of firearms of firearms under under s.86(2): there is not sufficient stigma arising from s.86(2) conviction under section to require subjective mens rea Peters s.434(a) offence subjective foresight of consequences not required for of willfully setting s.434(a) offence of willfully setting fire to certain objects; fire to certain offence not like murder, attempted murder which requires objects intent to cause death, or theft which requires dishonesty these are offences which require subjective mens rea DeSousa offence of offence of unlawfully causing bodily harm under s.269 unlawfully causing requires objective foresight of bodily harm, is bodily harm under constitutionally valid under s.7 Charter of Rights s.269 Offence requires mental element of underlying unlawful act, and additional requirement of objective foresight of bodily harm no constitutional requirement that intention, either on objective or subjective basis, extend to consequences of unlawful acts in general Hundal dangerous driving dangerous driving under s.249 does not require subjective under s.249 awareness of risk Creighton unlawful act of subjective foresight not required for unlawful act of manslaughter manslaughter under s.222(5)(a); court divided on whether under s.222(5)(a) objective foresight of death required majority holds section requires only reasonable foreseeability of bodily harm Finta Accused charged crown argued proving act (which is obviously morally with committing wrong) is good enough for mental fault; Court rules: for war unlawful While underlying offences may constitute base level of crimes confinement, moral culpability, Parliament has added further measure of conviction, robbery, blameworthiness by requiring act or omission to constitute prove kidnapping, and crime against humanity or war crime

accused subjectively knew actions so perverse as to fall under war crime

manslaughter that constitutes a war crime against humanity

If jury not satisfied that this additional element of culpability established beyond reasonable doubt, accused not guilty of war crime offence - Meaning accused must subjectively know what he did would constituted war crime (how to prove?)

D) ABSOLUTE AND STRICT RESPONSIBILITY Public Welfare or True Criminal Offences true criminal offences usually must be proof of some guilty state of mind (law presumes requirement of some mental state) regulatory or public welfare offences state is not held to such a high standard subject to Charter, liability for these offences may be satisfied by proof of act, accompanied by no further fault (absolute liability) or reduced fault (strict liability) (Sault Ste. Marie) some regulatory offences import mens rea requirement look for knowingly, wilfully, with intent Absolute liability and prison dont go together (B.C. Motor Vehicle Act) Arguments against absolute liability Unfair punishes w/out fault No evidence to show that absolute liability increases standard of care by people May have opposite effect if no defence possible that you were duly diligent, may discourage people from taking any care at all Public Welfare (Regulatory) True Criminal Protects designed to protect public interest/those who are unable to protection of ? protect themselves (protection of public and societal individual interests) interests Purpose meant to prevent future harm through enforcement of meant to deter and minimum standards of care and conduct and punish acts Rational inherently deal with the consequences, not actual conductdoes not e abhorrent imply moral blameworthiness conviction implies allows government to pursue social policy goals moral culpability Found in all offences enacted by provincial/territorial government Criminal code and other federal some Criminal Code offences statutes Burden Crown must prove actus reus beyond a reasonable doubt prove actus reus of Proof and mens rea no mens rea requirement as essential element to be proven beyond a - absolute liability only proof of act required reasonable doubt no possible defence regarding mental element - strict liability only proof of act required, but open to defendant to argue there was no negligence (i.e. due diligence) onus of proof for due diligence on defendant on balance of probabilities can be much higher for regulatory e.g. $50,000 for flying truck wheel (William Cameron) vs. $2,000 and 6 month ceiling for summary convictions; 5 years for false advertising (Wholesale Travel) Ratio S.4(1)(d) of Opium Narcotic Drug Act: Every person who has in is possession any drug[except by permission from gov] is guilty of an offence, and is liable A later section says that lack of knowledge is a defence that can be used, but onus of proof on defendant SCC ruled that w.r.t. possession, the statute could be interpreted in more than one way; and it is unfavourable to the defendant to assume legislators meant that no mens rea is necessary (as it concerned

Penalties

Case Beaver v. The Queen (1957) SCC

Facts & Decision Appellant sold drugs to undercover police officer, charged with possession and selling drugs; but it may have been the case that he didnt know what was in the package sold trial and appeal level said this fact was irrelevant due to wording of offences (i.e. saying mens rea

R v. Pierce Fisherie s Ltd. (1970) SCC Sault Ste. Marie Wholes ale Travel

component not essential a persons liberty) thus, possession conviction is ingredient of offence) squashed (but the selling conviction is held) Accused charged with having Court ruled that this offence lacked stigma of undersized lobsters in its true criminal offence thus, it is okay to not possession contrary to Lobster have a mental fault requirement (and just Fishery Regulations made re interpret offence as written) Fisheries Act (26 undersized found Conviction stands in 60,000 lb. batch) intended to protect lobster beds from depletion, protect supply. offences created by province are in public welfare offences category outlined general principles for regulatory offences versus true criminal offences (see table above)

The Emergence of Strict Liability Case Name R v. City of Sault Ste. Marie (1978) SCC Facts & Decision City charged with pollution, allowing pollution under Ontario Water Resources Act, which charges municipalitie s $$ for pollution/ allowing (cause and permit) pollution of water. New trial ordered Ratio Is a public policy offence b/c safe drinking water is public policy goal; b/c provincial act cant be true criminal offence; cause and permit wording imply strict liability Created halfway house for offences between full mens rea (true criminal crimes) and absolute liability offences strict liability Prosecution still only has to prove act; but open to defence to argue no negligence Do not have to prove innocence, just raise doubt as to guilt prove on a balance of probabilities that defendant took due care Absolute and strict liability offences exist because it is impossible for anyone but the actor to know his intentions and have means of proof; so it makes sense to shift onus of proof to defendant 3 classes of offences: 1) Mens Rea proof required some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed , or by additional evidence 2) Strict Liability Offences No necessity for prosecution to prove existence of mens rea; doing of prohibited act prima facie imports the offence, leaving it open to accused to avoid liability by proving that he took all reasonable care - Consider what reasonable man would have done in circumstances - Defence available if: - Accused reasonably believed in a mistake set of facts which if true would render act/omission innocent OR - Accused took all reasonable steps to avoid particular event - NOTE: Public welfare offences prima facie in this category 3) Absolute Liability Offences guilt follows from proof merely of proscribed act; not open for accused to exculpate himself by showing that he was free of fault - To determine if in this category: Overall regulatory pattern adopted by legislature, Importance of penalty, Precision of language used to say absolute

- Note: can still advance common law defence (necessity, duress, being followed too closely) to challenge actus rea and mental fault Application to administrative penalties: Case Name Facts & Ratio Decision Sault Ste. does not stand for proposition that due diligence defence can only be used for Marie regulatory offences as general principle, administrative penalties may be subject to due diligence defence Pillar Oilfield that person should be penalized administratively by public servant without Projects possibility of exculpating him/herself is extraordinary and abhorrent a punishment is a punishment Whistler Partys liquor Violations under Liquor Control and Licensing Act can be Mountain Ski licence suspended dealt with by prosecution for offences or administrative Corp by Board for 30 sanctions days, Act is public welfare legislation with strict liability offences, establishment which have potential for serious consequences for party ordered closed such as loss or suspension of licence during this period, More expedient to deal with offence regulatory than liquor forfeited criminally and destroyed Board held to have erred by not considering due diligence argument Constitutional Considerations Case Name Reference re Section 94(2) of the B.C. Motor Vehicle Act (1985) SCC Facts & Decision 91(1) prohibits driving with suspended/ invalid licence with fines and mandatory imprisonment as penalty (7 days min. for 1st conviction); s. 94(2) makes 94(1) an absolute liability offence is this valid under Charter? Ratio Absolute liability and imprisonment cannot be combined because it violates s.7 of the Charter (persons right to life, liberty, and security of person, and the right not to be deprived thereof except in accordance with principles of fundamental justice) - Principles of fundamental justice needs defining, but take cue from s. 8 -14 of Charter Imprisonment without having to prove mental culpability (absolute liability offences) violates this if prison is potentially possible - Potential = In terms of prison not paying fine, open to give prison Exemption under s. 1 of charter not met Provision still absolute offence, even though repealed, since defence of due diligence effectively eliminated But okay because the imprisonment is not available (even refusing to pay fine will not result in prison term); thus, no charter violation Dissent forcefully argued that it was a strict liability offence instead (5-4 decision)

R v. Pontes (1995) SCC

Irwin Toy Ltd. v. Quebec (Attorney-

Following B.C. Motor Vehicle Reference, absolute liability offence of driving while prohibited repealed, Offence Act amended to state imprisonment not available for absolute liability offence, and that failure to pay fine (default) will not result in jail Corporations do not come under protection of s. 7 of Charter Corp cannot go to prison / Bankruptcy stretches meaning of right to life beyond recognition / Economic security not protected under security of person (for

General)

R v. 1260448 Ontario Inc. (c.o.b. William Cameron Trucking); R. v. Transport Robert (1973) Ltee (2003) OCA

corp); - could apply for individual in terms of economic rights fundamental to human life or survival (equal pay for equal work, food, clothing, shelter) Charter s. 7 indented for human Case involved offence Issue: Is it open to legislature to create an absolute under HTA that liability offence where there is no possibility of charged imprisonment or probation if the defendant is owners/operators of convicted? trucks with offence if S.11(d) prevents reversal of the burden of proof of a wheel becomes fact that is an element of the offence; BUT detached w/ $50,000 - Says nothing about elimination of an element fine (specified that - Unless offence is drafted to include certain elements due diligence not a or s.7 requires that certain elements be proved for defence, and that an offence, it is open to legislature to draft offences imprisonment is not a omitting elements now look to s. 7 to see if possibility) element is required defendants argue this S. 7 argument offence violates security of person still violates s. 7 and because offence allows for conviction of person who is s. 11(d) (presumption without fault based on stigma of offence + large of innocence) of monetary fine Charter. Court said no - Exceptional state induced psychological stress can violation under violate security of person not apply to co. Charter. operating for profit in highly regulated industry - But, here, stigma flows from negligence, not moral turpitude thus, stigma of conviction reduced thus, no violation Plus, court can provide relief (lesser fine)

R v. Wholesale Travel Group Inc. (1991) SCC

Accused charged with false or misleading advertising under Competition Act which provides statutory due diligence defence; argument that imposing burden of proof on defendant violates s.11(d) Charter; s.7 violation said to be caused by negligence fault requirement Reverse onus on defendant to prove he exercised due diligence on a balance of probabilities violates s.11(d) of Charter right to be presumed innocent

R. v. Ellis-Don Ltd. (1992) SCC

s.7 fault requirement All members of S.C.C. agree that no requirement for subjective mens rea requirement, as in offence of theft where stigma of dishonesty (stigma is lower here) - Negligence as minimum fault requirement is sufficient thus, s.7 does not require proof element of mens rea s.11(d) shifting of burden of proof have to prove due diligence on balance of probabilities (>50%) this means that can convict even though judge/jury not convinced beyond a reasonable doubt - court disagreed (violate, violate but okay per s.1, not violate - held not to violate b/c enforcement of regulatory offences would be impossible otherwise As it stood, court was required to convict if it is not satisfied on the balance of probabilities that the accused has exercised due diligence even thought it may have a reasonable doubt on the issue reverse onus created under Occupational Health and Safety Act does not violate s.11(d) Charter of Rights in view of Wholesale Travel Group - No difference in substance between nature of legislation in two cases: false/misleading advertising vs. laws which protect safety of workers

Canned Answers ACTUS REUS Actus reus is the guilty act component of an offence. There is no crime unless a guilty mind (mens rea) expresses itself in an action or omission (with exceptions, e.g. conspiracy) Voluntariness Voluntariness is the mental element of the actus reus of an offence. Ruzic held that the actus reus of an offence has to arise from the product of freewill and a controlled body. This means that reflexive motions, such as causing a car to crash because of a heart attack or striking someone because of a seizure, would not constitute actus reus. Further, as per Ruzic, actions arising out of duress do not constitute actus reus because it does not arise from conscious control. This requirement arises from the principle that people should not be convicted for acts they are not responsible for. Contemporaneity Contemporaneity requires that the actus reus (guilty act) and mens rea (guilty mind) coincide. As per Fagen, it is not necessary that the mens rea be present at the start of an act, but can be superimposed on an existing act. This was emphasized in Miller where an unintentional act, followed by an intentional act/omission to rectify a risk or consequence will constitute sufficient actus reus (and contemporaneity). Cooper also addressed this issue when the Court held that mens rea and actus reus only have to coincide at some point, even if the eventual result happens after the action is concluded. Action This requires that if a positive act is apparent in the definition of the offence, the positive act must be proved beyond a reasonable doubt. Inaction Inaction or omission can also lead to criminal liability. As per Thornton, it is open for the courts to create common law duties in cases of serious harm to the public. Duties may also be defined by statute (Moore). Thus, as evident in Fagen and Miller, omissions can give rise to criminal liability as much as positive acts can. Status Status offences are those where the offender is punished almost for who they are rather than for an actioni.e. for some state of affairs (e.g. keeper of gaming house). In Terrence, the court ruled that possession requires the accused have knowledge, consent and control about/over the item alleged to be possessed. Circumstance If an offence defines a specific situation to exist before it constitutes an offence, each of the defined elements must be proven beyond a reasonable doubt. For example, if the offence is breach of a restraining order, the crown must prove a restraining order existed. Consequences and Causation For many offences, the existence of an offence will depend on a specific outcome occurring; in these cases, it must be proven that the accused caused the consequence. For manslaughter cases, Smithers defined the test of causation: if the accuseds act was a contributing cause beyond the de minimumus range (i.e. not insignificant cause), the actus reus has been committed. This test was held to be constitutionally valid in Cribbin; and Nette clarified the test to hold that the test can be stated in positive or negative terms (i.e. not insignificant =

significant cause), but that it may be better stated in positive terms (i.e. was a significant cause). Although there was strong dissent to this issue, this is the test that stands for all homicide cases. In Harbottle, it was held that for 1st degree murder, the accuseds actions must form essential, substantial & integral part of killing of victim - active role (higher requirement than Smithers for manslaughter). Smithers outlined that, as per the thin skull rule, the accused must take the victim as he/she finds himthus, it cannot be argued that the consequence was greater than it would have been for a normal person because of the victims specific frailties. Intervening Causes Intervening causes are independent factors that break the chain of causation of the accuseds act and the eventual consequence (Menezes). Intervening causes, such as abandonment in Menezes, occurring after the accuseds actions can exculpate the accused from wrongdoing (Reid and Stratton). MENS REA Mens rea, or a guilty mind, must be proven for conviction. Mens rea refers to wrongful intention; this requirement comes from the principle that the morally innocent should not be punished. The fact that there are no uniform definitions of fault requirements that apply to specific offences in the criminal code or elsewhere for Canada, makes it difficult to analyze offences application to specific situations. Thus, it is left up to the judicial system to interpret such terms on an offenceby-offence and term-by-term basis. Subjective vs. Objective The fault element in offences can be classified as either subjective or objective. Subjective is fault that focuses on what passed through the mid of the accused person at the relevant time (i.e. actually what the accused intended or thought). Whereas, Objective fault is what a reasonable person should have anticipated constitutes basis for liability / what the accused ought to have thought or contemplated about his or her actions. Despite this difference, even if subjective fault is held to apply, objective standards are considered in that what a reasonable person would have thought will guide that the accused may have thought the same (Tennant and Naccarato). Also, for subjective fault, objectivity is a factor is that, generally a person intends the natural consequences of their actions (Buzzanga). Subjective Fault The two basic subjective fault requirements are intention and knowledge. In Lewis, intention was defined as the exercise of free will to use means to produce a particular result. Objective Fault In Logan, the court held that short of murder, attempted murder, and crimes against humanity, something less than subjective fault will suffice for most criminal offences. Courts consider the stigma associated with a crime in deciding whether subjective fault is required (greater the negative stigma, the greater likelihood that subjective fault will be required). However, in Logan the court ruled that as long as there is a meaningful fault requirement, s.7 Charter may be satisfied by objective fault components. ABSOLUTE AND STRICT LIABILITY Distinction between true criminal offence and regulatory offence

A distinction must be made with respect to true criminal offences and regulatory offences, this was established in Pierce Fisheries Ltd. True criminal offences are those meant to deter and

punish inherently abhorrent/immoral acts like murder. These offenses generally require proof beyond a reasonable doubt of a guilty mind (mens rea) expressed through a guilty act or omission (actus reus). With regulatory offences, as per Sault Ste. Marie, the crown can prove liability by only proving beyond a reasonable doubt, the guilty act. There is generally no requirement for a fault element (absolute liability), or a reduced fault element (strict liability). These offences are enacted for public interest/protection and to set a minimum standard of conduct for all people and organizations in society. As per Pierce Fisheries Ltd., if an offence lacks the stigma associated with a true criminal offence, it is okay not to have a mental fault requirement Different classes of regulatory offences

Generally, all provincial offences are presumed to be regulatory offences (Sault Ste. Marie). In that case, three classes of regulatory offences were set out. 1) The Court held that prima facie, regulatory offences fall under the strict liability category. Strict liability offences require proof of the guilty act (beyond a reasonable doubt), but leaves it open for the defense to argue on a balance of probabilities that he/she did not act negligently (i.e. took reasonable care). 2) The second category of regulatory offences is Mens Rea offences. These offences bring in a mental element into regulatory offences with the use of words like intentionally, or wilfully, or knowingly. Thus proof of guilty act and mind is required (like true criminal offences). In Beaver, the court ruled that if a statute could be interpreted in more than one way; and it is unfavourable to the defendant to assume legislators meant that no mens rea is necessary (b/c a persons liberty is at stake), a mens rea requirement will be imported. 3) The final category of regulatory offences is absolute liability. These offences require only proof of act, and it is not open for the defense to argue due diligence. A offence falls under this category if the legislation makes it clear that guilt flows from act only. One must look at the wording of offence, general purpose, structure of act to see if it is classified as an absolute liability offence. As per B.C. Motor Vehicle Act, absolute liability and prison cannot be combined; meaning if the punishment for an offence has as a possibility of jail, it can not be an absolute liability offence.

PARTIES Criminal offences are not committed only by people who act alone where more than one involved, each may be involved in different way or to different degree Law relating to participation defines principles on which involvement of someone other than actual perpetrator is accountable as party to offence Relevant Legislation CC Parties to offence o 21. (1) Every one is a party to an offence who (a) actually commits it; (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. o Common intention o (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 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. Person counselling offence o 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. o (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. o Definition of counsel o (3) For the purposes of this Act, counsel includes procure, solicit or incite. Principals S.21(1)(a) refers to participation of person who actually commits offence subject to proof of identity, this is rarely difficult issue It is possible, however, for person to be found guilty as principal party to offence when he/she commits offence through agency of another: R v. Thatcher (1987) SCC Crown put forth two theories that Thatcher killed his wife, or hired someone to do it Two theories not legally different Aiding/abetting puts the person in the same position as the principal

Usually, jury must have unanimous view of all material facts (i.e. how crime happen) to convict o BUT, with s.21 (aiding and abetting), if some jurors find that Thatcher killed wife, and others think he hired someone is okay, because legally irrelevant difference Possible for person to be found guilty as a principal of the offence when he or she commits that offence through the agency of another

R v. H. (L.I.) (2004) A group of people beat up one person; accused arguing that victim would have died anyway regardless of his assault Judge failed to instruct jury on s.21 aiding and abetting, instead focusing on contributing cause beyond de minimus range and intervening causes Should judge have focused on s.21?

Manitoba CA Court ruled judge erred in omitting to mention s.21 key issue is whether accused caused victims deaththis could have occurred if he acted as principal, as aider or abettor o Legally irrelevant which role he played (or which specific blows killed victimmen acted in concert) Note: contributing cause/intervening factors issue is only legally relevant if independent factors occurring before or after acts/omissions of the accused legally sever the link that ties him to the prohibited result o In such participation cases, unnecessary to to determine if accuseds actions were sole or contributing cause of death causation proved if jury satisfied victim died due to assault and that accused participated in it as a party In order to convict accused under s.21(1)(b) or (c), there must be some evidence that accused intentionally assisted or encouraged another to commit the crime o Accused can be convicted either as aider or abettor, or as principal, if evidence indicating that accused aided and abetted another to commit crime was same as evidence indicating accused committed crime as principal, [applies Thatcher] o As long as there is evidence that the accused actively participated in the crime with requisite intent, it does not matter whether the accused is principal or party If accused participated in beating with others and had requisite intent for murder, then he would be guilty of second degree murder (if no requisite intent, manslaughter)

R v. Berryman (1990) BC CA Accused charged Four categories of felonious offender: with forging a 1) Principals in the first degree actually commit the offence, or passportshe deemed to commit by doctrine of innocent agency filled in the form, o Doctrine of Innocent Agency a person who committed an but someone offence by means of an innocent agent deemed to be actual else (not perpetrator this is implied by history of s.21(1)(a) knowing that it 2) Principals in second degree aid or abet the commission of was for fake offence by principal in first degree passport) printed o Actual or constructive presence at commission of crime as the passport essential prerequisite to aiding or abetting/timing of Is the accused act/omission to aid is distinguishing feature still guilty of 3) Accessories before the fact those who counselled or procured forging a the commission passport even o Not present nor active at time of commission though innocent 4) Accessories after the fact knowing that felony has been agent actually committed by another; receives, relieved or comforted, or assisted did the actus person reus? Trail level ruled no, IN CANADA accessory before fact and principals in second appealed. degree = principal in first degree as per s.21

Aiding and Abetting R v. Kulbacki (1966) Man. CA Accused charged with Accused failed to make any effort to stop or prevent the aiding and abetting commission of the offence when he was in a position to do so and dangerous driving for when he had the authority to do so thus, he is aider or saying or doing nothing abettor b/c of failure to discharge duty (as owner and as a passenger in his present) his omission encouraged activities own car while a Example of aiding and abetting by omission rare licensed minor drove o BUT here, accused was owner of car, present when driven, and had dangerously opportunity to prevent or stop any dangerous driving Defendant says that he ALSO, Accused as an adult has legal duty to ensure safe operation o did not participate in of car, failure to prevent or stop offence in these circumstances is commission of crime, as if participation by aiding or abetting as if vicarious liability: B is but merely a passive held liable for actions of A by virtue of some special feature in observer (passive relationship b/w them acquiescence) and had no duty to do anything Note: Criminal law, other than for corporations, traditionally hostile to vicarious liability as it is inimical to elementary principles of responsibility for individual agency should passenger in taxi be party to dangerous driver by chauffeur by failing to prevent the dangerous driving? Dunlop and Sylvester v. The Queen (1979) SCC Accused Person not guilty just because he is present at the scene of a crime and does present nothing to prevent it while o If no evidence of encouragement by him, presence will not suffice to victim is render liability as aider/abettor gango Passive acquiescence is not good enough to convict raped by Presence at commission of offence can be evidence of aiding and abetting if a accompanied by other factors: motorcyc o Prior knowledge of principals intention to commit offence or attendance le gang for purpose of encouragement Guilty as o Facilitate or assist principal offender aider/abe Thus, appeal was allowed and accused acquitted ttor? SCC in Kirkness v. The Queen Decision in R. v. Salajko (1970) OCA where accused witnessed a gang rape with his pants down was acquitted SCC ruled Salajko was not a passive observer and should have been convicted R v. Popen (1981) Accused charged with manslaughter of his infant daughter as a result of mistreatment on a number of occasions by his wife First convicted of aiding & abetting, but later OCA declared re-trial

If no evidence to suggest that accuseds action/inaction was for purpose of assisting in crime, no application of aiding/abetting provision BUT, if a person present at the commission by another of an illegal act, which he has a duty to prevent, may by mere inactivity encourage the illegal act aiding and abetting Husband not present during acts, not aider or abettor But could be charged with separate crime of criminal negligence

R v. Nixon (1990)

Accused was senior officer in charge of police lock-up where a prisoner was assaulted by other officers convicted of aggravated assault as he was present and aware of what happened Common Intention

Failed to discharge duty to protect prisoner when he was in a position to do so thus, aided and abetted offence An accused who is present at the scene of an offence and who carries out no overt acts to aid or encourage the commission of the offence may none the less be convicted as a party if his purpose in failing to act was to aid in the commission of the offence In some cases, presence itself can be said to encourage act thus, not mere presence

R v. Kirkness (1990) SCC Break and enter led to a killing First step in establishing liability under s.21(2) is to show accused formed intention in common with others to carry out unlawful purpose and to assist them in achieving that purpose o Common Intention can be pre-planned, or not Can arise just prior to or at time of commission of offence S.21(2) deems a party criminally liable for the acts of the principal offender when the accused knew or ought to have known of the probable commission of the acts which constitute the offence o Thus: (i) the commission of offence has to be probable; and (ii) accused must know or ought to have known of this probability Abandonment accused may absolve self of liability for acts of principal if he/she can show his/her purpose abandoned to assist in commission of criminal offence o [available under either s.21(1) or (2), but usually applied to common intent] o where practicable and reasonable, there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplate crime to those who desire to continue in it o Communicate orally or by actions o Different standards depending on prior acts to assist in crime If positively act to help (beyond mere incite/encourage), must do best to prevent commission to escape liability o Factors: (1) withdrawal voluntary? (2) Countermand necessary? (3) Countermand sufficient? (4) Must countermand be express? (5) Must withdrawal be timely? (6) Is attempted withdrawal sufficient? (7) Must countermand be communicated to all principals? Comparison of section 21(1) and 21(2) 21(1) applies in cases where the committed offence must not only be similar but must be sufficiently contemporaneous with the contemplated offence o Where crime committed is of same type as one in which accused assisted 21(2) reserved for those instances 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 planned o Where crime committed was one knew or ought to have known would be probable consequence of contemplated offence he/she assisted R v. Maier and Clark (1968) Sask. CA Error made by trial judge under s.21(2) where no finding of fact that possession offence was one which Clark should have known was probable consequence of carrying out unlawful purpose

R v. Logan (1990) SCC Accused charged with offences relating to robbery of store and wounding of cashier, convicted of attempted murder, appealed to OCA, ruled that 21(2)s ought to have known objective test is not valid for second degree murder fault determination because murder requires consideration of subjective fault (a higher standard), thus ought to have known in 21(2) must be upped to a subjective test in cases of murder Still held liable for robbery appealed to SCC R v. Davy (1993) SCC Combination of 21(2) and manslaughter Manslaughter does not require that risk of death be foreseeable, foreseeability of risk of harm is sufficient: Creighton

SCC agreed that ought to have known is inoperable for the few offences that carry stigma so great that constitution (Charter s.7) requires subjective intent (e.g. attempted murder)

There is nothing inherent in s.21(2) which requires higher mens rea than would be otherwise required for manslaughter conviction Appropriate mens rea for manslaughter under s.21(2) is objective awareness of risk of harm: requires not foreseeability of death, but foreseeability of harm which in fact results in death

Counselling R v. Lacoursire (2002) QB CA Accused and friend discuss robbery of accuseds grandmothers home, accused not willing to rob grandmother, but agrees to share in stolen money if friend waits for his call that grandmother out of house at time of robbery Accused later calls friend, states that no longer wants robbery to be committed; however friend and accomplice commit robbery anyway Accused charged with conspiracy to offence and counselling offence

Conspiracy is both offence and way to be party to offence under s.21(2) o To withdraw from conspiracy is not defence as all of ingredients of conspiracy can be found in accuseds conduct o Withdrawal can negative allegation of participation in substantive offence under s.21(2); withdrawal valid if done in timely fashion, is clear and final, and communicated to co-conspirators Counselling is also offence under s.464 where no offence committed, and also way to become party to offence under s.22 S.22 akin to inciting: accused must try to persuade someone to do something o Trial judge correctly describes accuseds conduct as conspiratorial, not incitation; no need to examine effect of withdrawal on s.22, accused not charged with conspiracy as an offence, and validly withdrew from conspiracy to negative his participation as party o Can not withdraw from counselling b/c under charge even if committed in a different way

Accessory After the Fact Criminal liability of accessory after fact defined under ss. 23, 23.1, 463 of Criminal Code, not under s.21 o S.240 accessory after the fact for murder (life imprisonment) 23. (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 person for the purpose of enabling that person to escape As with modes of participation, accessoryship contemplates some relation between conduct of accessory after fact and commission of criminal offence Accessory is not party to offence, but principal party in distinct offence which consists of facilitating escape of another person who was party to offence

R v. Camponi (1993) BC CA Accused appealed Accessory after the fact for murder in s. 240, 463 external and conviction of fault elements defined in 23: accessory after the o External elements: (a) conduct of accused had effect of fact for helping a receiving, comforting or assisting a person, and (b) person she knew had circumstance that such party had been party to offence for murdered another to which accessoryship alleged escape o Fault elements: (a) intention with respect to the conduct Issue is whether an alleged; and (b) knowledge by accused of circumstance accessory after the that person was party to offence respecting which fact to an offence accessoryship is alleged, (~c) free standing fault element may be tried and ulterior intention or desire (purpose) that the person convicted even assisted escape as a consequence of conduct alleged though the o 23.1 of Code Where one party cannot be convicted principal offender For greater certainty, sections 21 to 23 apply in has not been respect of an accused notwithstanding the fact that convicted the person whom the accused aids or abets, (proceedings stayed, counsels or procures or receives, comforts or assists no trial held on cannot be convicted of the offence merits) Thus, no argument accessory after fact can be convicted regardless of conviction of principal offender o Court refuses to address scenario where principal is acquitted

ATTEMPTS (INCHOATE OFFENCES) Inchoate offences criminal liability for incomplete offences has as its object the completion of an offence that is not actually committed o Criminal liability for culpable conduct and fault that lies b/w innocent behaviour and successful completion of substantive offence 3 types: 1) Attempt; 2) Incitement (aka counselling); and 3) Conspiracy o Examples Attempts ss. 71, 119, 123, 139, 239, 368, part II.1 (terrorism); Incitement ss. 318; Conspiracy ss. 46, 59, 466, 467 Attempts A person who tries to commit a criminal offence but does not succeed can be found guilty of attempting the offence if his conduct meets s. 24: o 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. o 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, and too remote to constitute an attempt to commit the offence, is a question of law. Actus Reus there must be some act that goes beyond preparation, but what this is can raise difficulty v. Cline (1956) OCA criminal attempt features (1) mens rea and actus reus are required, but criminality of misconduct lies mainly in accuseds intention (2) evidence of similar acts done by accused before offence, and also afterward if not too remote in time, admissible to establish pattern of conduct showing mens rea o (3) crown may lead this evidence in advance of defence raising issue (4) not essential that actus reus be crime or even tort or moral wrong (5) actus reus must be more than mere preparation to commit crime o (6) when preparation to commit crime is fully complete and ended, next step done by accused for purpose and with intention of committing specific crime constitutes actus reus sufficient in time to establish criminal attempt to commit crime

Deutsch v. The Queen (1986) SCC Accused put ad in paper Distinction b/w preparation and attempt is qualitative for secretary, during consider relationship b/w nature and quality of act in question interview told them they and nature of complete offence would have to have sex Factors: relative proximity of act in question and what would with clients to conclude have been complete offence time, location, acts by accused contracts remaining Accused charged with o Here: If accused had necessary intent to induce or attempting to procure persuade women to seek employment that would females to have illicit sex require them to have sex with clients, then holding out with another (CC s.212(1) large financial rewards in course of interview where (a)) having sex was disclosed, could constitute actus reus of attempt to procure clearly important step in commission of offence o Holding out large financial rewards in course of interview would not lose quality as step in commission of offence, and thus actus reus of attempt, because considerable time might pass before person engaged for position had sex with client or due to otherwise

contingent nature of sexual act Conclusion: most of procuring done (ad & money offer), just have to offer job; convicted.

Mens Rea whether mens rea for attempt is the intent to commit substantive offence, or something else R v. Ancio (1984) SCC s.24-attempts general, s.463-penalties attempts, s.239 Accused convicted of separate penalty for attempted murder attempted murder, breaks into apartment building Mens rea for attempted murder (murder - s.229) is the with intent to use gun to specific intent to kill force wife to leave man she o For s.24 attempts Must read in the mens rea is staying with associated with full crime in question (just logically makes sense) Conclusion: crowns appeal dismissed, new trial ordered R v. Logan (1990) SCC Accused charged with offences relating to robbery of store and serious wounding of cashier attempted murder Issue: Whether requirement from Ancio for specific intent to kill for attempted murder is a constitutional requirement?

Consider stigma and penalties (only the very serious crimes require subjective intent) o Same stigma for murder and attempted murder same killer instinct, severe penalty Conclusion: Mens rea for attempted murder cannot, without restricting s.7 of Charter, require of accused less of mental element than that required of murderer under s.229(a)(i) subjective foresight of the consequences crown appeal dismissed

R v. Sorrell and Bondett (1978) OCA Accused charged with attempted robbery of store they had gone to store with balaclavas and guns, but store owner told them they were closed, the robbers left

Not convicted necessary intent to commit robbery not proved Where no extrinsic evidence of intent with which accuseds acts were done, acts of accused which are ambiguous may be insufficient to show acts done with intent to commit crime o If intent otherwise proved, ambiguous acts may be sufficient to constitute an attempt

Impossibility: can a person be guilty of an attempt when completing of offence is impossible? United States v. Dynar (1997) SCC Canadian citizen part of s.24 says whether or not it was possible under the circumstances to commit the offence failed FBI sting operation for money Difference b/w factual impossibility and legal impossibility is not laundering; US wants tenable same intent to commit crime, thwarted by independent extradition for circumstances (both really factually based) attempted laundering o Factual impossibility completion is thwarted by test for extradition is happenstance; or inadequate means to do act if it is crime in Canada e.g. reach into pocket to pick, but no wallet; not (double criminality) enough poison Issue: is it a crime, o Legal impossibility even if attempt completed, is not when impossible to a crime

commit crime (b/c sting failed)?

e.g. take umbrella thinking its someone elses, turns out to be own Only relevant aspect of legal impossibility is imaginary crime cant be convicted for this e.g. import sugar thinking it is a crime 2nd argument: crime requires accused know that money is proceeds from crime o Knowledge legally requires true belief (belief-subjective; truth-objective) o Knowledge is part of actus reus of offence; NOT mens rea Dissent legally impossible crimes upon completion should not be crime

o E.g. buy goods from another thinking you got a good deal
because the goods are stolen; but really you just got a good deal is this an offence (per Majority, it would be)

Incitement/Counselling 2 Forms: o (1) incitement of offence that is actually committed (s.22(2) - parties) and, Note: per s.22(3) counsel includes procure, solicit or incite o (2) incitement of offence not committed (s.464) Theory is that by inciting another, the inciter has already taken affirmative steps toward completion of an offence Issues: At what point is this offence complete? Does it matter that incited had no intention of acting on incite? Ford v. The Queen (2000) OCA Accused Inconsistent verdicts test only squash if verdicts are violently at charged with odds, onus on appellant to show that no reasonable jury applying counselling minds to evidence could arrive at that conclusion murder, Here: sufficient differences to allow differing verdicts: conspiracy to Conspiracy involves agreement between two persons to do something, commit murder agreement is anchor to conspiracy and attempted o Counselling involves one person urging another to do something, murder agreement is unconnected to counselling acquitted on all Relationship between attempted murder (grounded in party liability) and but counselling counseling offences closer, some overlap in definitions charge abet for purpose of party liability includes encouraging, appeals on basis instigating, promoting or procuring crime to be committed: that verdict is Greyeyes inconsistent with s.22(3) counsel includes procure, solicit or incite others o Word encourage appears in definitions of both abetting and counseling, but clear difference in definitions: o Counselling offence is limited to oral encouragement by accused Activity of abetting requires actual participation or assistance rendered Counseling murder: accused charged under s.464, counseling offence not committed: offence counseled was murder, offence actually committed by Doe was attempted murder o S.22 deals with circumstances in which person counseling offence becomes party to that offence or other offences which person knows or should know is likely to be committed due to counseling

o S.22(1) inapplicable; s.22(2) inapplicable or unnecessary but clear only basis to


convict accused of counseling was for counseling Doe to commit murder R v. Dungey (1979) OCA Accused is a lawyer who charged with unlawfully conspiring with client to defraud Law Society by agreeing with client to apply for full Legal Aid money & for client to pay his own money but client never agreed

In absence of agreement, no offence conviction would be convicting for guilty mind alone More fitting charge would be that of inciting to commit fraud (if evidence exists) If conduct falls short of such offence, it is neither necessary nor desirable to extend law so that person could be convicted of an attempt to conspire to commit the substantive offence of fraud

R v. Gonzague (1983) OCA Accused wanted to 'procure' = 'incite' which does not necessarily mean that inciter hire another to kill a must originate or initiate transaction; person may be convicted of business competitor, incitement although plan originated with party alleged to have gave him some been incited

money (hitman went to police); later told the hitman to forget about it

R v. Janeteas (2003) OCA s.464] Accused appeals For mental element must prove beyond reasonable doubt that conviction of accused intended to speak words that constituted counselling and counselling murder that his words be taken seriously AND that accused intended the and counselling commission of the offences counselled unlawfully causing o No compelling reason why requisite mental state for bodily harm inchoate crime of counselling should be different from mental state required for inchoate crimes of attempt and Issue: was there conspiracy requisite mental state for crime of Attempted crimes offender must intend to commit counselling an desired offence; conspiracy offender must intend to indictable offence commit offence that forms subject of agreement that is not Here, no basis for finding that accused intended substantive committed offences be committed, convictions cannot stand R v. Hamilton (2003) AB CA Accused sold files on internet, some of which included documents about bomb making; accused not aware of all of contents on files Issue: appropriate mens rea for s.464 offence of counselling a criminal offence not committed

Offence of procuring under s.464 is complete when solicitation or incitement occurs even if it is immediately rejected by person solicited, or even though the person solicited merely pretends assent and has no intention to commit offence No Cdn authority to support view that renunciation of criminal purpose constitutes defence to charge of counselling, procuring or inciting under s.464 [mental element required for proof of incitement under

Appropriate test is: accused must both intend to counsel a criminal act and also intend that the counselled crime be committed (court follows Janeteas) Actus Reus for counselling: actively induce or encourage described offences mens rea for counselling under s.464 should be confined to concept of intention (the strictest standard) o Provision is designed to discourage devious from inducing others to commit crimes; thus its application should not result in conviction of morally innocent o Section never intended to catch within its net professor teaching class to make bombs or RCMP instructor teaching students how criminals create credit cards it is aimed rather at those who encourage others to actually commit crimes Danger in using lesser standard of subjective mens rea, such as recklessness or wilful blindness, to support conviction under s.464 lies in nature of section conduct it prohibits is counselling crime that is not committed; this means counsellors state of mind is sole factor that determines whether his/her conduct is criminal o In such a situation, most demanding standard of subjective mens rea should apply To determine what accused must intend, it is necessary to look at actus reus of offence for counselling accused must pass on material or make statements that, when viewed objectively, actively induces or encourages a criminal offence o If acts of counselling must be sufficient to induce person to commit crime, and accused must intend to

commit these acts of inducement, it follows that counsellor must intend that counselled crime be committed s.464 is stand-alone offence, with its own mens rea, and culpability does not depend on nature of counselled crime o Court may be able to take into account different nature of counselled crimes in sentencing, but those who counsel murder will breach s.464 just as those who counsel robbery Side note: when CC does not say what mental element is, assume subjective; subjective means one of: intention, recklessness, or wilful blindness (intention is strictest)

Conspiracy Exists when two or more people agree to commit a criminal offence offence of conspiracy complete upon agreement o Issue: was there an agreement, and if so, on what? United States v. Dynar (1997) SCC What is criminal conspiracy: it consists not merely in intention of two or more, but in agreement of two or more to do unlawful act, or to do lawful act by unlawful means Conspiracy intention to agree, completion of an agreement, and a common design o Requires intention to put common design into effect Actus Reus factual element, or actus reus, of offence is satisfied by establishment of agreement to commit predicate offence this factual element does not have to correspond with factual elements of substantive offence o Not all involved need be indentified or capable of being convicted o Conspirators must have genuine intention to participate in agreement (not a conspirator if just pretend to agree; e.g. police informant) o Really just punishing preliminary preparation, no acts to further prep (as required for attempt) Mens Rea Goal of agreement, commission of substantive offence, is part of mental element or mens rea of offence of conspiracy Conspiracy is a far more preliminary crime than attempt, since offence is considered to be complete before any acts are taken that go beyond mere preparation to put common design into effect o Crown simply required to prove meeting of minds regarding common design to do something unlawful, specifically commission of indictable offence, s.465(1)(c) Reason for punishing conspiracy before any steps are taken towards attaining object of agreement is to prevent unlawful object from being attained, and thus prevent serious harm from occurring o Rationale for punishing conspirators coincides with rationale for punishing persons for attempted crimes not only is offence itself deemed to be harmful to society, but clearly in societys best interests to make it possible for law enforcement officials to intervene before harm occurs that would be occasioned by successful conspiracy Impossibility as defence to conspiracy: o By virtue of preliminary nature of offence of criminal conspiracy, mere fact that money not transferred to Cohen for laundering by Dynar would not preclude finding that conspiracy existed between them o Criminal liability will still ensue, as long as agreement and common intention can be proved Issue is whether there should be any difference to potential liability of conspirators that they could not have committed substantive offence even if they had done everything they set out to do o s.465(1)(c) does not specifically state that criminal liability for conspiracy can ensue where substantive offence is impossible to commit o But, Most writers take position that if distinction between factual and legal impossibility is rejected in case of attempt, it should a fortiori be rejected for conspiracy no good reason to treat conspiracy and other forms of inchoate liability any differently o Distinction b/w factual and legal impossibility is as unsound in law of conspiracy as it is in law of attempt Legal impossibility cannot be invoked as defence to conspiracy charge Only conspiracy to commit fanciful offences (imaginary crimes) cannot give rise to criminal liability o Since conspiracy offence only requires intention to commit substantive offence, and

not commission of offence itself, does not matter from objective point of view that commission of offence may be impossible it is subjective point of view that is important: intention of conspirators remains same, regardless of absence of circumstances that would make realization of that intention possible

IGNORANCE OF THE LAW s.19 Ignorance of the law by a person who commits an offence is not an excuse for committing that offence Issues: relevance of accuseds belief about legality of his/her actions to proof of fault elements for offence; mistaken belief as to facts or law; defence of officially induced error; impact of Charter of Rights Mistaken beliefs about the law and particular fault elements R v. Howson (1966) OCA Employee of towing service Theft is s. 269 commits theft who fraudulently and charged with theft of car when without colour of right takes he refused give towed car back Here, there is a colour of right right meaning legal to owner until owner paid right thus no offence charges; appealing conviction As such, s.19 does not apply, acquitted

R v. Docherty (1989) SCC Accused wilful is exception to s.19 b/c requires that accused know he was charged with committing the offence wilfully failing to Acquittal upheld on appeal accused cannot willfully breach probation order comply with through commission of offence unless he knew what he did constituted probation order offence Mens rea must be proved by sleeping o s.19 does not preclude accused from relying on his honest belief that he was drunk in an not doing anything wrong inoperable car Where knowledge is part of mens rea, absence of knowledge is good defence Note: parliament subsequently removed wilfully from statute is Docherty still good law? Mistake of Fact and Mistake of Law R v. Prue and Baril (1979) SCC Accuseds lack of knowledge that licence had been automatically suspended under provincial law after a driving offence is question of fact (not of law) when charged w/ s.259(4) driving while suspended o Regardless of automatic suspension or notice given suspension Existence of suspension from driving is a question of fact underlying invocation of that provision, and so too is proof that accused charged thereunder drove while his licence to do so was under suspension o Mistake of fact thus, can use defence of not knowing that he licence was suspended For purpose of Criminal Code, whether there has been effective suspension is simply question of fact

R v. MacDougall (1982) SCC Accused charged with driving while licence cancelled contrary to provincial statute b/c: after conviction under s.233(2) of CC, accused was sent a Order of Revocation of Licence; but following appeal, sent Notice of Reinstatement, appeal dismissed but accused still drove, charged by provincial statute; only got Revocation order after accused believed he could drive until he got notice

Court ruled this was a mistake of law thus s.19 applicable to allow no defence of ignorance Prue and Baril distinguished as that was Criminal Code driving case Note: R v. Pontes (1995) SCC later disapproved of MacDougall saying it was a pre-charter decision

Emerging Defence of Officially Induced Error Molis v. The Queen (1980) SCC Accused charged with trafficking restricted Defence of due diligence from Sault Ste. drug; not restricted when first started, later Marie is in relation to fulfilment of duty became restricted imposed by law, NOT in relation to ascertainment of existence of prohibition or Accused argued he did not know it was its interpretation thus, convicted illegal and he had exercised due diligence is ascertaining state of law Notes: Should Molis be decided differently under Charter relevant what precise steps taken to ascertain the law, eg., own reading of law, advice of lawyer, or advice of official responsible for administering the law Forester v. The Queen (1992) SCC Reaffirmed Molis Honest but mistaken belief respecting legal consequences of ones deliberate actions does not furnish defence to criminal charge, even when mistake cannot be attributed to negligence of accused o Docherty principle that knowledge that ones actions are contrary to the law is not component of mens rea for an offence, and consequently does not operate as a defence R v. Cancoil Thermal Corporation Safety inspector examined with apparent approval a piece of new, but unsafe machinery in a plant defence of officially induced error accepted and Parkinson (1986) OCA officially induced error defence available where accused reasonably relied upon erroneous legal opinion/advice of official responsible for administration or enforcement of law o Reasonableness of reliance depends on: efforts made to ascertain proper law, complexity or obscurity of law, position of official giving advice, clarity/definitiveness/reasonableness of advice

R v. Jorgensen (1995) SCC Accused Court holds that defence of officially induced error applies by virtue of convicted under film boards approval Criminal Code Mistakes of fact relevant to commission of a criminal offence can excuse (s.163(2)) with accused from criminal responsibility selling o Mistakes of law do not (and mistake of law is same as ignorance knowingly of law); why not? obscene Defence of ignorance of law creates insurmountable materials evidential problems for court without lawful Encourages ignorance where knowledge is socially excuse desirable materials are Every person would be law unto himself approved by Ignorance of law is blameworthy in itself Ontario Film o Officially induced errors dont infringe on the above reasons Review Board Exceptions to mistake of law rule where crime not published (impossible to gain knowledge of it), now officially induced error Officially induced error of law: Officially induced error of law: exists as exception to rule that ignorance of law does not excuse o Complexity of contemporary regulation makes assumption that responsible citizen will have comprehensive knowledge of law unreasonable o As complexity of regulation linked to justification for this excuse, predictable that it arises most often in realm of regulatory offences, but it is equally valid for true

crimes with full mens rea component Is an excuse (not a defence) leads to stay of proceedings, not acquittal o Accused has done nothing to be entitled to acquittal, but state has done something which disentitles it to conviction Defence of due diligence is separate from officially induced error: due diligence in ascertaining law does not excuse whereas reasonable reliance on official advice which is erroneous (officially induced error) will excuse Distinctions between these provisions: o (1) Due diligence is full defence, elements of offence not completed VS officially induced error does not negate culpability, functions (like entrapment) as an excuse, party proven to have committed offence Officially induced error not meant to function as full defence o (2) Diligence may be necessary to obtain advice which grounds officially induced error, accused to rely on excuse must have weighed potential illegality of his/her actions and made reasonable inquiries this standard does not convert officially into error into due diligence Onus of proof on accused on balance of probabilities, after crown has proven elements of crime

Test (1) Determine if error one of law or mixed law and fact o If error one of fact, argument is unnecessary, must be error of law (2) Accused must have considered legal consequences of his/her actions o Insufficient to assume conduct permissible; must consider whether conduct illegal and seek advice (3) Advice must come from appropriate official o Official must be one whom reasonable individual in position of accused would normally consider responsible for advice about particular law in question (4) Officials advice must be reasonable in circumstances o Criteria not difficult to meet most times, individual relying on advice has less knowledge of law than the official, sufficient if appropriate individual is consulted advice obtained presumed to be reasonable unless it appears on its face to be utterly unreasonable (5) Advice obtained must also have been erroneous o This fact does not have to be demonstrated by accused since in proving elements of offence, Crown will have established what correct law is, from which existence of error can be deduced (6) To benefit from excuse, accused must demonstrate that reliance on official advice o e.g. proving that advice was obtained before actions in question commenced and by showing that questions posed to official specifically tailored to accuseds situation New Cases: R v. MacIntyre 1983 OJ 2463 Mistake due to judges ruling that dont have to give breath sample if genuine belief that machine faulty breath tests o Mistake of law relied on overruled judgement; and, not officially induced (test not met not consulting) R v. Campbell 1972 AJ 55 immoral performance (stripper/go-go dancer), judges ruling that legal o Mistake of law relying on a judgement that was later overruled Cranbrook Swine 2003 OJ 1433 building permit issued officially induced error Tetreault 2006 SCJ 12 drive suspended officially inducted error

Mistake of Law and Constitutional Considerations Jones and Pamajewon v. The Queen (1991) SCC Accused charged with operation unlawful bingo contrary to s.206 of CC Accused were Aboriginals and operated on a reserve, thought no jurisdiction of prov and fed gov law on reserves R v. Pontes (1995) SCC Case involves absolute liability offence of driving while suspended, also ignorance of law issue: Because driving prohibition is automatic and without notice (absolute liability), defendant who is unaware of prohibition effectively prevented from raising due diligence defence

Mistake of fact only apply to facts which constitute the offence, this is mistake of law convicted

Mistake as to what law is does not operate as defence: Molis, but MacDougall holds that defendant who drives without knowledge of prohibition in strict liability offence cannot raise lack of knowledge of prohibition as this is same as ignorance of law, contrary to s.19 MacDougall is inconsistent with Prue and Baril which holds that ignorance of licence suspension is mistake of fact; it cannot be that mistake as to law under Code is mistake of fact whereas mistake as to provincial law is mistake of law MacDougall decision also pre-Charter of Rights due diligence must be available for strict liability defence Defence of due diligence not available under the B.C. legislation statute effectively deprives accused of due diligence defence By virtue of provision, accused liable, without notice, automatically prohibited from driving from date of conviction ignorance of law cannot be invoked as defence Legislature could readily convert offence to strict liability by permitting due diligence defence to be raised if concern that accused could raise defence on basis of no knowledge of its effect, provision requiring notice be given of its consequences could be added Ignorance of law is factor in mitigation of sentence

Statutory Reform Law Reform Commission of Canada (1987) No one liable for crime committed by reason of mistake or ignorance of law: o (a) concerning private rights relevant to crime or o (b) reasonably resulting from (1) non-publication of law (2) reliance of decision of court of appeal in that province, or (3) reliance on competent administrative authority All three exceptions to general rule relate to mistakes reasonably resulting from factors specified o No one can reasonably be expected to be wiser than highest court within his/her jurisdiction one is entitled to assume law is what it says it is until Supreme Court of Canada states otherwise

Federal Proposals to Amend General Principles of Criminal Code (1993) Neither ignorance of law nor mistake of law is defence to offence unless: o (a) description of offence provides defence of claim of right or colour of right, or otherwise provides defence of ignorance of law or mistake of law o (b) description of offence includes element that concerns matter of private rights, or o (c) offence committed under officially induced mistake of law Officially induced mistake of law is defence only if:

(a) mistake is in relation to existence or interpretation of law and results from information or advice given by official responsible for administration or enforcement of law (b) person relied in good faith on that information or advice, and (c) it was reasonable for person to have relied on that information or advice o Advice under paragraph (a) that law will not be enforced in particular case does not provide basis for defence of officially induced mistake of law

MENTAL DISORDER s.16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. o Presumption (2) presumption that person not suffering from mental disorder unless contrary proved on balance of probabilities o Burden of proof (3) burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. Mental disorder defined in s. 2 means a disease of the mind s.672.1(1) "verdict of not criminally responsible on account of mental disorder" means a verdict that the accused committed the act or made the omission that formed the basis of the offence with which the accused is charged but is not criminally responsible on account of mental disorder. Important preliminary procedural issues affect mental disorder defence: (1) Fitness to stand trial; (2) Restrictions on Crowns ability to raise mental disorder issue; (3) Burden of proof on proponent of mental disorder issue; (4) Consequences of defence being accepted Constituent elements of mental disorder defence: Threshold requirement that accused has mental disorder or disease of mind; Alternative arms of defence o Whether MD renders person incapable of appreciating nature and quality of act or omission, or o Whether mental disorder rendered person incapable of knowing act or omission was wrong Procedural Elements of Mental Disorder Defence Unfitness to Stand Trial o s. 2 unfit to stand trial unable on account of mental disorder to conduct a defence at any stage of proceedings (up until conclusion of trial) or instruct counsel to do so; specifically: understand nature of proceedings, possible consequences of proceedings, communicate with counsel Presumed to be fit, unless shown otherwise on balance of probabilities (s.672.22) Can later be tried for offence when fit to stand trial (672.32(1)) Burden of proof on party who asserts defendant fit to stand trial, and is on balance of probabilities: s.672.32(2) Issue may be raised by court, prosecutor or defence: s.672.23(1) Party who raises issue has burden of proof that accused unfit to stand trial: s.672.23(2) Court required to appoint counsel if fitness issue arises and defendant has no counsel: s.672.24 R v. Whittle (1994) SCC Defence of mental disorder (s.16) does not automatically imply unfit to stand trial o Mental disorder defence deals with blameworthiness vs. fitness dealing with fitness to stand trial Test for fitness to stand trial is quite different from definition of mental disorder in s.16 it is predicated on existence of mental disorder and focuses on ability to instruct counsel and conduct defence

Only need limited cognitive capacity no need to be capable of exercising analytical reasoning in making a choice to accept advice or in coming to decision that best serves interest

Who Can Raise the Mental Disorder Issue? R v. Swain (1991) SCC Common law rule that accused must be able to control own defence (no interference by crown) Thus, crown can only introduce evidence about mental disorder is specific situations: o 1) After trier of fact concluded accused is otherwise guilty of offence issue of insanity tried after verdict of guilty reached, but prior to conviction being entered o 2) After issue is raised by defence Why would crown raise issue? o Avoid conviction of an accused who may not be responsible on account of insanity (but doesnt want to raise that defence) integrity of criminal justice system o Protection of public from dangerous persons requiring hospitalization Burden of Proof R v. Chaulk and Morrissette (1990) SCC s.16(2) Presumption of sanity violates presumption of innocence (11(d) of Charter); but reasonable limit per s.1 Objective of s.16(4) is to avoid placing impossible burden of proof on Crown and to thereby secure conviction of guilty proportionality between effects of measure and the objective Concurring opinion: s.11(d) not violated because issue of sanity does not affect Crowns burden to prove beyond reasonable doubt everything that constitutes guilt Dissent noted that successful use of insanity defence is fraction of 1% of all felony cases o Government must have been of the view that necessary to impose persuasive burden on accused to prove his/her insanity on balance of probabilities to prevent sane persons who committed offences from escaping liability on tenuous insanity pleas o Burden of adducing sufficient evidence to raise reasonable doubt in minds of jury as to sanity was not enough, violates s.11(d) presumption of innocence Consequences of Mental Disorder as a Defence Winko v. British Columbia (Forensic Psychiatric Institute) (1999) SCC NCR verdict is not verdict of guilt or acquittal, neither is it verdict that NCR accused poses significant threat to society Part XX.1 diverts those not criminally responsible b/c of mental disorder to special stream Review Board decides whether person should be kept in a secure institution, released on conditions, or unconditionally discharged o Assess if threat to society exists if no threat = absolute discharge Thus, Part XX.I does not deprive mentally ill accused of their liberty or security of person in manner contrary to fundamental justice principles, nor violate their right to equal treatment under the law o Can only order treatment if accused consents, and Review board says its reasonable and necessary o Hold another hearing every 12 months (unless absolute discharge)

Goal is to protect accused (assessment-treatment model fairer than common law) and society (addresses cause of offending behaviour, mental illness)

Mental Disorder as a Defence Alternative arms of defence o (1) Whether mental disorder renders person incapable of appreciating nature and quality of act or omission, or o (2) Whether mental disorder rendered person incapable of knowing act or omission was wrong

Mental Disorder or Disease of the Mind Threshold: whether disorder is disease of mind within s.16 of CC v. Simpson (1977) OCA Threshold question is whether personality disorder is disease of mind within s.16 of Code Disease of the mind is a legal concept question of law for judge o Although it includes medical component Psychiatrist describes accuseds mental condition and medical view judge decides whether condition constitutes a disease of the mind Personality disorders or psychopathic personality are capable of constitution a disease of the mind necessary condition of insanity for s.16 (but NOTE: not sufficient need inability to appreciate act/wrongness next page) o Concept disease of mind capable of evolving with advance of medical knowledge

Cooper v. The Queen (1980) SCC Disease of mind is legal term judge determines what mental conditions are within meaning of phrase and whether there is any evidence that accused suffers from abnormal mental condition comprehended by that term o If there is any evidence accused did suffer such a disease in legal terms, question of fact must be left for jury Disease of mind any illness, disorder or abnormal condition which impairs the human mind and its functioning o Excludes self-induced states caused by alcohol/drugs, and transitory mental states (hysteria or concussion)

To support defence of insanity must be of such intensity to render the accused incapable of appreciating nature and quality of violent act or of knowing that it is wrong (1) Appreciating the Nature and Quality of the Act

Cooper v. The Queen (1980) SCC Appreciate emotional, as well as, intellectual awareness of the significance of the conduct is in issue o More than mere knowledge that act is being committed, must be an appreciation of the factors involved in act and a mental capacity to measure and foresee consequences e.g. know he is choking; but does he appreciate that choking can cause death

o Legally relevant time when the act was committed


Kjeldsen v. The Queen (1981) SCC Appreciate means the accused have the capacity to know what he is doing, AND have capacity to estimate and understand the physical consequences which would flow from act o e.g. know that he was hitting woman on head with rock, AND that he was causing physical injury which could result in death

Simpson (1977) OCA Exemption due to s.16 does not extend to one who has necessary understanding of nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done,

even though such lack of feeling stems from disease of the mind R v. Abbey (1982) SCC Accused charged with importing cocaine and possession for purpose of trafficking Suffered from hypomania experts agreed he knew what he was doing and that it was wrong, but not clear whether he was capable of appreciating nature and quality of acts o Accused was delusional believed that he would not be punished if caught; o Also believed that he was powerless to change his action (b/c of some force acting on him)irresistible impulse

Delusion which renders accused incapable of appreciating the nature and quality of his act goes to mens rea of offence, brings into operation first arm of s.16(2): he/she is not guilty by reason of insanity Incapacity to appreciate penal consequences of act does not go to mens rea of offence o i.e. does not render accused incapable of appreciating nature and consequences of act Consequences only relate to effects of the act Irresistible impulse is not a defence could be a symptom of a disease though (as in this case)

(2) Knowing That the Act is Wrong

R v. Chaulk and Morrissette (1990) SCC Accused entered home, What is meant by wrong more than simply legally plundered it for wrong, must be capable of understanding that the act is valuables, and then morally wrong in the circumstances according to ordinary stabbed and bludgeoned moral standards of reasonable members of society its sole occupant to Will not open floodgates b/c h have to link incapacity to make death moral judgements to disease of the mind what is illegal and Suffered from paranoid what breaches societys moral standards does not often differ; psychosis thought moral wrong is not judged by personal standards of offender they were above law and but by his/her awareness that society regards the act as wrong had power to rule world Dissent (MacLachlin) it does not matter whether capacity thought they had right relates to legal wrongness or moral wrongness all that is to kill b/c victim was a required is that accused be capable of knowing act was in some loser sense wrong

Issue: What is meant by wrong?

Generally absence of moral appreciation is no excuse for criminal conduct; problem with making capacity to appreciate moral wrong the test for criminal responsibility is that of determining societys moral judgment in every situation; court in no position to do so, nor is it fair to expect jury to agree on issue Note: before Chaulk, in Schwartz, majority holds wrong means no more than capacity to know that what one is doing is against the law of the land o Dickson J dissent wrong is ambiguous, capable of meaning either legally or morally wrong term must mean contrary to ordinary moral standards of reasonable men and women; otherwise s.16(2) would not protect amoral persons since any incapacity must result from disease of mind

R v. Oommen (1994) SCC

Accused suffered from paranoid delusion and believed the woman he repeatedly shot was part of a conspiracy that was coming into his house to kill him Knew society in general would regard his acts as wrong but, subjectively, the accused did not believe his act to be wrong o (i.e. thought that his act was justified) and he believed he had no choice to anything but what he did Issue: What is meant by know it was wrong

What is meant by know it was wrong in abstract sense, or in subjective sense? Ruling: Must possess intellectual ability to know right from wrong in abstract sense, but also possess ability to apply that knowledge in a rational way to the alleged criminal act o General capacity to understand right and wrong in some abstract sense, and particular capacity of accused to understand that his or her act was wrong at time of committing act Crux of inquiry is whether accused lacks capacity to rationally decide whether act is right or wrong, hence make rational choice about whether to do it or not o Inability to make rational choice may result from variety of mental dysfunctions Note: not applicable to person with irrational believesif he has capacity for rationality and fails to use it, responsibility not precluded

Conclusion: not criminally responsible by reason of mental disorder [Note: Abbey says irresistible impulse is not a defence is this contradictory to this?]

Considering the Two Alternative Arms of the Mental Disorder Defence Together R v. Landry (1988) Que. CA Accused charged with Appeal court held to have erred in extending s.7 of Charter to first-degree murder for s.16(2) to protect accused who is incapable of appreciating killing person formerly his moral wrongfulness of act friend o First branch of s.16(2) protects accused who, because of disease of mind, incapable of appreciating physical consequences of act Accused from paranoid schizophrenia and Court of Appeal did not have benefit of Chaulk decision if so believed his friend was would have reached same conclusion but for different reasons Satan and that he was Established at trial that accused suffered from disease of mind God to extent that he was rendered incapable of knowing that the act was morally wrong in the circumstances suffered from delusion that he was God and he had divine mission to kill victim

Conclusion: not guilty by reason of insanity

[Possible Statutory Reform Law Reform Commission of Canada (1987) o s.3(6) follows s.16 except in three respects: (1) nothing corresponding to insane delusion provision; idea of partial insanity not in accordance with modern medical opinion (2) nothing about presumptions of sanity or burden of proof

(3) replaces word insanity with mental disorder more in line with modern medical and social attitudes]

AUTOMATISM Automatism Specific condition of dissociation b/w mind and body in which a person cannot consciously control his or her conduct o Automatism negates actus reus of offence, and in most instances, mens rea absolves criminal liability Issue: which causes of automatism are valid for law (i.e. not necessarily same as medicine)

Insane and Non-Insane Automatism and Emotional Blows Automatism is defence in Canadian criminal law its two forms may be classified as noninsane or insane: former leads to complete acquittal, latter to verdict of not guilty by reason of mental disorder Of particular importance is cogency of distinction: Rabey v. The Queen (1980) SCC Hit the girl he liked on the head with a rock and choked her after finding out she didn't like him SCC restored TJ's verdict of acquittal Automatism is a term used to describe unconscious, involuntary behaviour, the state of a person who, though capable of action is not conscious of what he is doing Non-insane automatism is to be used when external events such as psychological/emotional blows can reasonably be presumed to affect the average person without regard to subjective make-up of the accused o Otherwise, dissociative state must be internal and is thus insane automatism Central question in deciding any case involving automatism defence is: Whether or not accused suffering from disease of mind (Whether is disease of the mind is a question of law) o If disease of the mind (internal factors) internal, thus insane automatism [thus, subject to medical treat] o If external factors (physical or emotional blow) dissociative state (non-insane automatism) A would only have defence of Non-insane automatism if he went into automatic state because of extraordinary event that would reasonably be presumed to affect average normal person without reference to subjective make-up of person exposed to such experience o Typical daily emotional stress insufficient to be external cause of automatism Here: A only under ordinary stresses/disappointments of life and so defence would have to be limited to insane automatism b/c dissociation must have been from psychological make up o psychological blow so as to put accused in dissociative state which is disease of mind o Accuseds infatuation with victim created abnormal condition in his mind, under influence of which he acted unnaturally and violently to imagined slight to which normal person would not have reacted in same manner Dickson J. dissent Automatism exists as middle ground between criminal responsibility and legal insanity o Automatism similar to insanity in both, issue is whether accused had sufficient control or knowledge of his/her criminal act to be held culpable o Automatism may be subsumed in defence of insanity where accuseds unconscious action can be traced to, or rooted in, disease of mind where this so insanity defence prevails In principle, defence of automatism should be available whenever there is evidence of unconsciousness throughout commission of crime that cannot be attributed to fault or negligence on accuseds part

Such evidence should be supported by expert medical opinion that accused did not feign memory loss and there is no underlying pathological condition which points to disease requiring detention and treatment Notion that extraordinary external event (intense emotional shock) can cause state of dissociation or automatism if and only if all normal persons subjected to that sort of shock would react in that way should be rejected o Though, requirement is that there be a shock precipitating state of automatism dissociation caused by low stress threshold and surrender to anxiety cannot fairly be said to result from psychological blow No person should be committed to hospital for criminally insane unless he/she suffers from disease of mind in need of treatment or likely to recur Here: No evidence to support CAs view attributing dissociated state to psychological or emotional makeup of A o Medical evidence proved that A did not suffer from MD and that this was isolated event with remote chance of recurrence psychological blow did cause loss of consciousness and fact that others would not have reacted this way does not obscure this o

Rabey Summary psychological blackout could be attributed to one of three sources: (1) an external cause such as a blow to the head in which case an accused would be entitled to raise non-mental disorder automatism, (2) an internal cause that would be likely to produce a similar psychological impact on a person of everyday sensibilities and psychological make-up o such as a persons witnessing the killing of his or her own children, which could qualify as an external cause and which might (the point was left open) entitle an accused to plead non-mental disorder automatism, or (3) an internal cause which was triggered by no more than the ordinary stresses and disappointments of life o In the absence of any other credible explanation, the cause of the automatism in the third scenario would be deemed to be a disease of the mind can only plead mental-disorder automatism Sleepwalking R v. Parks (1992) SCC A sleepwalked, sleep-drove and sleepkilled mother-in-law and attempted to kill father-in-law CA, SCC agree that sleepwalking is form of non-insane automatism which entitles A to acquittal Expert evidence in case not contradicted by Crown SCC: case is one of non-insane automatism, majority disagree that cause should be sent back to TJ for further hearing under 'preventative justice' power

Adopted from dissent from Rabey In principle, defence of automatism should be available whenever there is evidence of unconsciousness throughout commission of crime that cannot be attributed to fault or

Issue: Proper approach to distinction between insane and non-insane automatism issue here Sleepwalking an exception - it counts as noninsane automatism because it is not mental illness - just sleep disorder that cannot be treated 3 relevant points were not contradicted by the crown: i) Parks was sleepwalking; ii) There is no cure for sleepwalking; iii) sleepwalking is not a mental disorder In absence of verdict of not criminally responsible on account of MD, court did not have jurisdiction to make preventative orders (i.e. keep the peace order) Minority CJ wanted to issue preventative order

negligence on accuseds part o Such evidence should be supported by expert medical opinion that accused did not feign memory loss and there is no underlying pathological condition which points to disease requiring detention and treatment NOTE: Internal/External analysis from Rabey downgraded to a mere analytical tool by Parks

Mental Disorder and Non-Mental Disorder Automatism Parks may have roused anxiety In Stone, SCC moved to impose strict conditions on defence of automatism o (both substantive principle restrictions, and evidentiary challenges) R. v. Stone (1999) SCC Accused kills his wife, stabs her 47 times in frenzy defence that he lost consciousness when mind snapped due to verbal abuse trial judge rules in accuseds favour that evidence of unconsciousness throughout commission murder reduced to manslaughter CA agrees, appeal to SCC SCC maj dismisses appeal (upholds conviction) Dissent Follows Rabey dissent in stressing that there was no medical evidence before court that A was suffering from MD and arguing that A had right to have his defence of non-MD automatism considered by jury o Both confident that jury would reject frivolous claims of non-insane automatism o Concerned that maj would deprive A of traditional right to be acquitted if there was reasonable doubt as to whether he acted in voluntary manner A having put in issue his consciousness at time of offence, he was entitled to jury's verdict on whether or not his conduct, though sane, was voluntary - issue having been withdrawn from jury, Crown relieved of one real challenge to its proof, new trial ordered o Evidence established that there are states of automatism where perfectly sane people lose conscious control over their actions - at that point for jury, not judge, to decide if A brought himself within physical and mental conditions identified o A entitled to have pleas of non-MD automatism left to jury in light of TJ's evidentiary ruling that there was evidence A was unconscious throughout commission of crime Rejects Crown argument that judgement classification of situations into MD automatism and non-MD automatism can relieve Crown of obligation to prove all elements of offence, (i.e. voluntariness) o No evidence that A's unconsciousness came through own fault or negligence preferable to have corroborative evidence, this does not relieve court of duty to consider defence presented o Imposition of persuasive burden on A to establish involuntariness on balance of probabilities, instead of present evidential burden, runs counter to ss. 11(d) and 7 Crown's internal cause theory can't be used to deprive A of jury's consideration of voluntariness of his action, once he met evidential onus, without risking s. 11 (f) violation o Wrong of courts to require A to substitute insanity for his chosen defence of involuntariness as it is conceptually quite different from insanity plea- A either unconscious at time of killing, or not telling truth at trial - matter for jury Majority Two forms of automatism are recognized at law: insane automatism and non-insane automatism o Involuntary actions which does not stem from disease of mind gives rise to claim of non-insane automatism if successful, claim of non-insane automatism entitles accused to acquittal o Involuntary action which is found, at law, to result from disease of mind gives rise to claim of insane automatism insane automatism subsumed by defence of mental disorder (formerly insanity)

Automatism may arise in different contexts: Parks somnambulism; Daviault extreme intoxication; Stone verbal abuse amounting to psychological blow o Majoritys approach to apply to all claims of automatism, not simply cases of psychological blow Legal burden in cases involving claims of automatism must be on defence to prove involuntariness on balance of probabilities to trier of fact Establishing single approach to all cases involving claims of automatism two discrete tasks for trial judge in determining if automatism should be left with jury (1) Assess whether proper foundation for defence of automatism has been established o Equivalent of satisfying evidentiary burden for defence (evidentiary burden sufficient evidence to make it an issue; legal burden sufficient evidence to convince) o Mere assertion of involuntariness does not suffice o Burden of proof issue what accused must do to satisfy evidentiary or proper foundation burden in automatism cases is directly related to nature of legal burden in such cases change to evidentiary burden associated with automatism in order To meet burden, defence must satisfy trial judge that there is evidence upon which jury could find accused acted involuntarily on balance of probabilities Accused must claim he/she acted involuntarily at relevant time to satisfy evidentiary burden Mere assertion of involuntariness will not suffice, defence must present expert psychiatric evidence confirming its claims Additional evidence also relevant in determining if accused has met evidentiary or proper foundation burden: o severity of the triggering stimulus o corroborating evidence of bystander as to accuseds appearance (unresponsive, distant); o medical history of automatistic-like dissociative states o motive absence for act will generally lend plausibility to claim of involuntariness - no single factor determinative Only where accused has laid proper foundation for automatism defence must judge decide whether mental disorder or non-insane automatism to be left with jury o If proper foundation not established, presumption of voluntariness applies, neither defence available to jury, although accused may claim independent s.16 mental disorder defence (2) If proper evidentiary foundation established, trial judge must next determine if condition alleged by accused is mental disorder or non-mental disorder automatism o Determining whether defence to be left with jury assessment of which form of automatism should be left with jury is question of whether or not condition alleged by accused is a mental disorder legal term defined in s.2 as disease of mind Question of what mental conditions are included in term disease of mind is question of law judge must also determine whether condition accused claims to have suffered from satisfies legal test for disease of mind o Determining whether condition is disease of mind two distinct approaches to disease of mind inquiry: internal cause theory and continuing danger theory Holistic approach must be available to trial judges in dealing with disease of mind question approach must be informed by internal cause theory, continuing danger theory and policy concerns raised in Rahey, Parks (1) Internal cause factor developed in context of psychological blow automatism Judge must compare accuseds automatist reaction to psychological

blow to way one would expect normal person in same circumstances to react determine whether condition accused claims to have suffered is disease of mind o Trial judge must consider nature of trigger and determine whether normal person in same circumstances might have reacted to it by entering automatism state as accused claims to have done this approach helpful in some cases, not so in others o Evidence of extremely shocking trigger required in psychological blow automatism cases, to establish normal person might have reacted to the trigger by entering automatistic state, as accused claims to have done (2) Continuing danger factor: Condition likely to present recurring danger to public should be treated as disease of mind Likelihood of recurrence of violence is factor to be considered in disease of mind inquiry, but while continuing danger suggests disease of mind, finding of no continuing danger does not preclude finding of disease of mind (3) Other policy factors: Consideration of internal cause and continuing danger factors may not conclusively answer disease of mind question, e.g., impossible to classify alleged cause of automatism (internal cause factor) and no continuing danger of violence (continuing danger factor) Holistic approach to disease of mind must permit trial judge to consider other policy concerns which underlie inquiry: o Whether society requires protection from accused (mental treatment detention) o Also, consider reputation of court (i.e. not allow floodgates of feigning accused) o NOTE: Court takes judicial notice that it will only be in rare cases that automatism is not caused by MD Available defences o If trial judge concludes accuseds condition is not disease of mind, only defence of non-mental disorder automatism to be left with jury, as judge will have found there is evidence that jury could find accused acted involuntarily on balance of probabilities Jury then determine if defence has proven accused acted involuntarily on balance of probabilities Positive answer to q results in successful defence of non-MD automatism, and absolute acquittal o If trial judge concludes accuseds condition is disease of mind, only mental disorder automatism will be left with jury case proceeds like any other s.16 case, leaving for jury question of whether defence has proven, on balance of probabilities, that accused suffered from mental disorder which rendered him/her incapable of appreciating nature and quality of act in question or that act was wrong S.16 provides framework within which protection of public assured when mental disorder automatism established Triers determination whether accused has made out successful defence of mental disorder automatism absorbs question whether accused acted involuntarily if automatism could only have resulted from disease of mind, finding that accused not suffering from mental disorder necessarily extinguishes validity of accuseds claim of involuntariness In this case: Trial judge had found that only the non-insane automatism defence applied

However, the triggering effect for Stone was not something that would reasonably be expected from a normal person Consequently, his defence should fail (conviction for manslaughter upheld)

R v. Fontaine (2004) SCC Supreme Court declines opportunity to review Stone Issue is whether trial judge should have left defence of mental disorder automatism with jury; appeal court holds sufficient evidentiary foundation and orders new trial, SCC agrees

Supreme Court does not modify majoritys views in Stone on substantive law of automatism, but restates its views on evidentiary threshold for defence Discharge of evidential burden regarding affirmative defence is matter for trial judge judge must leave to jury any defence supported by evidence o In making this determination, judge neither entitled nor required to assess weight of evidence or probability of its success this for trier of fact o Function of judge is to determine whether there is relevant evidence that, if accepted by trier of fact, would tend to support affirmative defence test remains the same whether or not defence is one that carries reverse onus Fontaine eliminates any suggestion in Stone that in considering evidential burden judge should assess weight that might be given to evidence

Gate keeping function of judge in mental disorder defence seemed lower than w/ automatism defence o In mental disorder if defendant brings issue judge leaves it to jury to determine feigning, etc. o In automatism judge seems to have higher degree of control; Though, Fontaine backtracks on this Healy o o o comments re majority of Stone 1) Parks would not have met burden 2) higher evidentiary burden than Rabey 3) not clear that result in Stone would have been same if trial judge followed rules prescribed rules from Stone SCC

INTOXICATION Issue: to what extent should voluntary self-induced intoxication by alcohol or drugs afford a defence to prosecutions case in the sense of negating proof of a voluntary actus reus or the mens rea of an offence o If intoxicant can negate mental element of offence or voluntariness of actus reus, logic of law compels acquittal; o But if this due to self-induced intoxication, for policy reasons law should deny person defence b/c dont want to encourage irresponsibility by intoxication

Issues: (1)Does intoxication defence deal with capacity to form intent or absence of intent (2)Intoxication defence is use re general intent offences vs. use in specific intent offences (3)Intoxication defence for general intent offences in cases of extreme intoxication a. Statutory additional guidelines Common Law Defence of Intoxication D.P.P. v. Beard (1920) HL Under law of England to nineteenth century, voluntary drunkenness never an excuse for criminal misconduct considered as aggravation, not a defence Rule later relaxed so that other than in insanity cases: For offences requiring specific intent evidence of a state of drunkenness rendering accused incapable of forming such an intent should be taken into consideration in order to determine if he had in fact formed the intent necessary to constitute particular crime 3 categories of intoxication cases: 1) Insanity whether produced by drunkenness or otherwise, defence to crime charged o Insane person cannot be convicted of crime, law takes no note of cause of insanity; if insanity supervenes due to alcoholic excess, furnishes complete answer to criminal charge as insanity induced by any other cause 2) Evidence of drunkenness which renders accused incapable of forming specific intent essential to constitute crime should be considered with other facts proved to determine whether accused had this intent 3) Evidence of drunkenness falling short of proved incapacity in accused to form intent necessary to constitute crime, and merely establishing his/her mind affected by drink so as to more readily give way to violent passion, does not rebut presumption that person intends natural consequences of ones acts

Intoxication Defence: Capacity or Intent Difference between incapacity to form intent and absence of intent o Beard speaks in terms of whether person is so intoxicated that does not have capacity to form intent This can be said to be a harsher test for the accused b/c limiting intoxication defence to capacity of accuse to form specific intent if jury satisfied that accuseds voluntary intoxication did not render accused incapable of forming intent, then they would be compelled to convict despite the fact that the evidence of intoxication raised a reasonable doubt as to whether the accused actually possessed requisite intent o Canadian courts followed this formulation of intoxication for many years: McAskill Young trial judge applies Beard, states that if jury has any reasonable doubt as to accuseds capacity to form intent due to drunkenness, accused to be given benefit of that doubt o SCC declines to reconsider law of drunkenness, and logic and desirability of categorizing offences as of general or specific intent (in this case) R v. Robinson (1996) SCC Accused kills Beard rules inconsistent w/ Charter rules put accused in jeopardy of man, claims to being convicted despite reasonable doubt could exist in minds of jury have acted on issue of actual intent without intent as New Rules he was Before trial judge is required by law to charge jury on intoxication, intoxicated; he/she must be satisfied that effect of intoxication was such that its accused drinking effect might have impaired accuseds foresight of consequences with victim, sufficient to raise reasonable doubt offended by what once judge satisfied this threshold met, he/she must make it clear to victim says jury that issue before them is whether Crown has satisfied them beyond reasonable doubt that accused had requisite intent Verdict of second Charge which only refers to capacity is constitutionally infirm, degree murder, constitutes reversible error, but new trial ordered In certain cases (e.g. expert evidence introduces capacity issue) may on appeal due to be appropriate to charge both regarding capacity to form requisite jury instructions intent AND regarding need to determine in all the circumstances Crown appeals whether requisite intent in fact formed by accused to SCC o In these circumstances jury might be instructed their overall duty is to determine whether accused possessed requisite intent for crime o If jury left with reasonable doubt that accused had capacity to form requisite intent, verdict of acquittal o If jury not left in reasonable doubt from expert evidence as to capacity to form intent, jury must consider all surrounding circumstances in determining whether or not accused had requisite intent for offence R v. Lemky (1996) SCC Issue: How should jury be instructed in light of Robinson decision Threshold for putting defence of intoxication to jury is: there must be evidence sufficient to permit a reasonable inference that accused did not in fact foresee those consequences While capacity and intent related, evidence may fall short of establishing accused lacked capacity to form intent, but jury left with reasonable doubt that when offence committed accused foresaw likelihood of death R v. Seymour (1996) SCC

Accused stabs wife to death, stabs himself, alcohol level of twice legal limit Judge does not charge jury on both capacity and intent, recharge on capacity only

Air of Reality and the Intoxication Defence Court holds case good example where two-step instruction, including reference to capacity to form intent, appropriate (expert brought issue of inability) Judge correct in recharge to include issue of ability to measure consequences of act, but failed to remind jury of ultimate issue for its determination whether accused intended to cause bodily harm likely to cause death

Intoxication and Specific Intent R v. George (1960) SCC Charge of robbery Offence of robbery requires presence of kind of intent and purpose specified in s.343, but use of word intentionally in Accused given benefit of defining common assault in s.265 is exclusively referable to doubt on defence of physical act of applying force to person of another drunkenness, found o guilty of common assault i.e. robbery requires specific intent; assault just general intent o General intent attending commission of act is, in some cases, only only intent required to constitute crime; in other cases there must be in addition specific intent attending purpose for commission of act Robbery offence consists of theft and assault (included offences) Trial judge has doubt that accused had, owing to drunkenness, specific intent required for offence of robbery, intent to rob (for theft element) Accuseds condition not such that he was incapable of applying force intentionally offence of common assault established Bernard v. The Queen (1988) SCC Accused charged Majority drunkenness in general sense is not true defence to criminal act with sexual o BUT, where crime of specific intent and accused so affected by assault offence, intoxication that he/she lacks capacity to form such intent, may defence of apply consent; accused o No application in general intent offence drunk at time, but Criticism of law (distinction b/w general and specific) based on two drunkenness held propositions: not to be valid o (1) distinction between general intent and specific intent offences defence to charge is artificial, little more than legal fiction b/c rape is o (2) illogical distinction as allows drunkenness defence in certain general intent situations but not others, merely policy made by judges and not offence based on principle or logic Supreme Court o Answer: Common law rules have rationality that accords with asked to criminal law theory and served society well reconsider b/c: If self-induced intoxication relevant for mens rea Leary where determination, more drunk a person is, more extended held that opportunity for successful defence former offence Leary should not be overruled; but note: Crown not relieved of its of rape was one obligation to prove mens rea in general intent offence: of general o (1) can impute mens rea from actus reus; or (2) self-inducement intent, itself can be taken as evidence of guilty mind voluntary o It is almost metaphysically inconceivable for person to be so drunk intoxication no as to be incapable of forming minimal intent to apply force: George defence Parliament at some time in future may intervene in matter with statutory provisions Wilson J. issue only arises where intoxication so extreme that

reasonable doubt as to minimal intent required for conscious, volitional conduct o Substitution of element of offence should happen only if substituted relates sufficiently here, self-inducement not relate to mens rea
Dissent Self-induced intoxication should be considered by trier of fact, with all other relevant evidence, in determining whether Crown has proven beyond reasonable doubt mens rea required to constitute offence o It is a different matter for offences such as driving while impaired, where intoxication or alcohol consumption is itself ingredient of offence (Penno) o Since Leary decided, Charter in force law which imposes jail without fault element (absolute liability) violates s.7 Effect of Leary is to impose form of absolute liability on intoxicated offenders, inconsistent with requirement of blameworthy state of mind requirement under s.7 o Leary also inconsistent w/ s.11(d): for crimes of general intent, guilty intent in effect presumed on proving fact of intox o No evidence to support assertion that Leary rule deters commission of unintended crimes o Leary qualification on criminal law principle respecting mistake of fact unnecessarily and unduly complicates jurys task: where intoxication factor in inducing mistaken belief in consent, honest but unreasonable belief negates mens rea (Pappajohn), but trier to disregard effect that intoxication might have had in inducing that mistake (Leary) o Distinction between general and specific intent offences mandated by Leary based on policy rather than principle, becomes unpredictable exercise

R v. Quinn (1988) SCC Decided shortly after Bernard, majority holds breaking and entering and committing indictable offence of assault causing bodily harm is offence of general intent Wilson J. evidence not of such extreme intoxication as to negate minimal intent Dickson J. dissent distinction between specific and general intent should be abandoned Distinction between specific and general intent exists solely for purpose of determining whether there is intoxication defence at common law no other meaningful purpose or content R v. Penno (1990) SCC Intoxication not defence to offence in which it is element e.g. impaired driving If mental element of offence compatible with unavailability of defence of impairment, absence of that defence does not violate Charter o If mental element of offence is one where defence of impairment might be relevant, absence of defence violates Charter Mental element for impaired driving is voluntary intoxication; intoxication excluded as defence since it is very gravamen of offence Extreme Intoxication and General Intent R v. Daviault (1994) SCC Accused charged with Issue: Can a state of drunkenness which is so extreme that sexual assault of elderly an accused is in a condition that resembles automatism or a woman, accused chronic disease of the mind constitute a basis for defending a crime alcoholic, blood level which requires not a specific but only a general intent? would cause death for Majority inconsistent with fundamental justice principle, most people presumption of innocence, to eliminate mental element in general Expert evidence that intent offences person would have no o Though, self-induced intoxication not sufficiently awareness of his actions blameworthy state of mind to justify culpability, and or memory of them next substitute for it mental element that is essential day requirement of such crimes (i.e. not sub for specific intent) Trial judge acquits on Strict application of Leary rule in cases of extreme intoxication

basis of extreme intoxication, reasonable doubt as to minimal intent necessary for sexual assault Court of Appeal substitutes conviction SCC finds Charter violation

offends ss.7, 11(d) of Charter mental aspect of offence, or mens rea, long recognized as integral part of crime, fundamental concept to criminal law o May be minimal for general intent offences, but nonetheless exists To deny even a very minimal mental element required for sexual assault offends Charter; thus, position of Wilson J. in Bernard should be adopted: o Those who can demonstrate that they were in such a extreme degree of intoxication that they were in a state akin to automatism or insanity can raise reasonable doubt as to ability to form minimal mental element required for a general intent offence Given minimal nature of mental element for general intent crimes, even those who are significantly drunk will usually be able to form requisite mens rea and be found to have acted voluntarily o Will be rare that evidence of extreme state of intoxication will be successfully advanced It is always open to Parliament to fashion remedy, make it offence to commit a prohibited act while drunk

Dissent Leary should not be overruled; sexual assault is not in category of offences for which either stigma or available penalties demand as constitutional requirement subjective intent to commit actus reus Sexual assault is heinous crime of violence those guilty of offence rightfully submitted to moral opprobrium which is not misplaced in case of intoxicated offender; such individuals deserve to be stigmatized Best course is to reaffirm traditional rule that voluntary intoxication does not constitute defence to offence of general intent If different approach considered desirable because Leary approach does not comport with social policy, Parliament is free to intervene new offence could be created of dangerous intoxication, or Code amendment extending defence of drunkenness to some or all offences to which it does not apply but these changes are for Parliament, not the courts

Bill C-32 passed into law in 1995 as new s.33.1 of Criminal Code in response to Daviault S.33.1(1) self-induced intoxication is not a defence for offences under subs. (3) that accused lacked basic intent or voluntariness required for offence, where accused departed markedly from standard of care under subs. (2) s.33.1(2) criminal fault by reason of intoxication person departs markedly from standard of reasonable care and is criminally at fault where he/she, while in state of self-induced intoxication is rendered unaware of, or incapable of consciously controlling behaviour, voluntarily or involuntarily interferes or threatens to interfere bodily integrity of another person S.33.1(3) section applies to offences that include as element of assault or any other interference or threat of interference by person to bodily integrity of another person S.33.1 drafted in response to Daviault, language in awkward terms State of law seems more confusing now: o (1) common law rule in cases such as Bernard restricts defence to offences of specific intent still applies; o (2) expanded defence of extreme intoxication in Daviault applies event o general intent offences; o (3) s.33.1 denies extreme intoxication defence to general intent offences where interference with bodily integrity and marked departure from standard of reasonable care may be two or more of these variations in single case

All of difficulties with traditional common law rule remain, compounded in defence of extreme intoxication if negates voluntariness of offence, leads to acquittal; requires expert evidence and clear evidence of alcohol consumption at relevant time o Underlying theory of s.33.1 rests on substitution of fault theory for another: marked negligence for element of fault in definition of offence may be defensible, but problem in that it denies defence if intoxication makes accuseds conduct involuntarily, in which case absence of actus reus, not just fault