Criminal Law Offences Summary

Possession
Actus Reus Mens Rea
Manual Handling (physical
possession)
Knowledge (of your physical possession)
(intent to exercise) Control over the item
Possession s. 4(3)(a) (when actus reus loo!s li!e mens rea) ") Manual handling of a thing# $)
must %e co&existent with !nowledge of what the thing is# and 3) %oth these elements must %e co&
existent with some act of control.
R. v. Beaver
'acts (eaver has cocaine# %ut claims he thought it was icing sugar
Ratio: Court defines possession To constitute possession within the meaning of the
criminal law there is manual handling of a thing! it must "e co#e$istent with the
%nowledge of what the thing is! and "oth these elements must "e co#e$istent with some
act of control &outside pu"lic duty'( )hen these three elements e$ist together! * thin% it
must "e conceded that under s(+&,'&d' it does not then matter if the thing is retained for
an innocent purpose-
R. v. Marshall
'acts )eenager gets a ride with others who possess mari*uana. )hey throw weed out of car when
police signal them# %ut after leaving the police station# retrieve it. Marshall had passed a pipe
containing mari*uana. He did not smo!e it.
+ssue ,as Marshall in possession of the mari*uana-
Held He was not in possession.
& .rosecutor claims that he had possession of the pipe when he passed it from one person to
another
& /udge says it was an automatic reflex to pass it across. +t was so instantaneous or spontaneous
that not intended
Ratio: .lements identified:
& ACT/AL- or manual- possession
o Manual handling &physical possession'
o 0nowledge &of your physical possession'
o *ntent to e$ercise Control o1er the item
o 2o1erned "y section +3&a'
0ecision held Marshall had !nowledge# %ut no control# and no consent to the presence of the
mari*uana# and no power to control the persons in possession. 1lso not guilty of aiding 2a%etting
Constructi1e Possession
Actus Reus Mens Rea
Manual handling %y one Knowledge of that manual handling
%y defendant (and the possessor)
Control %y defendant (Chambers) Consent of defendant (Terrence)
Constructi1e possession s. 4(3)(%) 3where one of two or more persons# with the knowledge and
consent of the rest# has anything in his custody or possession# it shall be deemed to %e in the
custody or possession of all of them4
i) Manual handling %y one
ii) Knowledge of that Manual Handling %y defendant (and the possessor)
iii) Consent of defendant& Terrence
iv) Control %y defendant& Chambers
R. v. Terrence 5"6738 9CC
5.ossession re:uires 3measure of control4 on part of person deemed in possession8
'acts 1ccused was pic!ed up in Kingston %y a friend and rode as passenger in stolen car.
Charged with theft.
+ssue ,hat is the meaning of 3possession4 in s.3(4)(%) of the CC- 0oes 3possession4 import
control as an essential element-
/udgment )here was no evidence that the accused participated in anyway in the actual theft# and
nothing to support finding of common intention. Cites R. v. Colvin and Gladue which held 3that
;!nowledge and consent< cannot exist without the co&existence of some measure of control over
the su%*ect&matter. +f there is the power to consent there is the power to refuse=)hey each
signify the existence of some power or authority which is here called control# without which the
need for their exercise could not arise or %e invo!ed.4 (text# $"$&3)
0ecision 1ccused ac:uitted.
RAT*O: A constituent and essential element of possession under s(3&+'&"' of the CC is a
measure of control on the part of the person deemed to "e in possession "y that pro1ision in
the CC( &te$t! 4,3'
R v. Pham 5$>>?8 (@nt. C.1.)
'acts 1ppellant was charged with *oint possession of cocaine for the purpose of traffic!ing
contrary to s.?($) of the Controlled Drugs and Substances ct after her apartment was searched.
(she was not present at the time&gone for 3A hours). .olice had had the house under surveillance
for some time. 'ound cash in a ma!eup %ag and drugs in a purse in the %athroom. 'ound
paraphernalia in her room..
+ssue ,hether the appellant had !nowledge and control of the cocaine found in the %athroom
and therefore had it in her possession.
Held Bvidence suggests that even if Mr. Cguyen or someone else %rought the drugs into the
apartment during Ms. .ham<s a%sence# she was in constructive andDor *oint possession of the
drugs. )he fact that the drugs were in plain sight# that the paraphernalia was mixed in with her
%elongings and she had possession of the apartment suggests that she had !nowledge# consent
and control. )herefore would dismiss appeal.
0issent @nly evidence is that the appellant was the principal occupant of the premises and was
engaged in the traffic!ing of drugs. 9ince she was gone it could have %elonged to someone else.
Ratio: .1en if not in immediate possession of an item you may "e found to "e in 5oint
possession of it( *f it is found that you had %nowledge! consent and some sort of control o1er
the situation( 6ou can ma%e a case for possession on circumstantial e1idence(
Re! Chambers and the "ueen
'acts ,oman owns apartment. (f lives there occasionally. Cops find scales and cocaine under
%ed found. Eocation of drugs ena%led cops to conclude that she had a sufficient connection to
ma!e her have *oint possession.
+ssue ,hether she had possession of the drugs.
Held Bven if the drugs didn<t %elong to her# she had dominion of control# they were in the open
enough for her to have !nown they were there and she didn<t ma!e him remove the drugs.
Ratio: the court may draw appropriate inferences from e1idence that a prohi"ited drug is
found in a room under the control of an accused and where there is also e1idence from
which an inference may properly "e drawn that the accused was aware of the presence of
the drug(-
Constructi1e Agency Possession
Constructi1e Agency Possession s. 4(3)(a)(i) 3has it in the actual possession of custody of
another person4
Actus Reus Mens Rea
Manual Handling (%y the other)
Control
Knowledge of that manual handling
Consent to that other having possession
i) Manual Handling (%y the other)
ii) Knowledge of that manual handling
iii) Consent to that other having possession
iv) Control
Constructi1e location Possession
s.4(3)(a)(ii) if it<s in another place=
Possession of a )eapon 7angerous to the Pu"lic Peace
Actus Reus Mens Rea
.ossession of a weapon Knowledge of dangerous to the pu%lic peace
(9u%*ective or @%*ective--)
R v. #err ($>>4) 9CC
'acts .risoner possessing a weapon dangerous to the pu%lic peace %Dc of threat.
+ssue ,hat is the mens rea for s. 7?# possessing a weapon dangerous to the pu%lic peace-
(astarache /. & +n R v. Cassid$ two elements which the F must prove are proof of possession and
proof that the purpose of that possession was one dangerous to the pu%lic peace.
)his is a specific intent crime since Gthe prohi%ited conduct must %e committed with an intent to
achieve a particular result. +n the determination of purpose the correct approach is a hy%rid
su%*ective&o%*ective test. )he trier of fact must first determine what was the accused personHs
purposeI this is su%*ective. )he trier of fact must then determine whether that purpose was in the
circumstances dangerous to the pu%lic peaceI this is o%*ective.
GpurposeG is capa%le of two meanings purpose as intention or purpose as desire. +n %ibbert the ct
concluded that the former shld %e adopted Ga prn who consciously performs an act !nowing the
conse:uences that will (with some degree of certainty) flow from it HintendsH these conse:uences
or causes them Hon purpose#H regardless of whether he or she desired them.G
)wo stage purpose analysis
". ,hat o%*ect did the accused prn !now wld pro%a%ly flow from his possession#
whether he desired it or not- (self&defence doesnHt count %Dcit is not smtg that s.o.
HintendsH)
". ,as that purpose# from an o%*ective standard# dangerous to the pu%lic peace-
.ractical implications of a purely su%*ective test it does not capture those who regularly carry a
weapon to prepare themselves for potential attac!.
Festore the ac:uittal %Dc he has a defence of self&defence.
Ee(el /. & Mens rea must %e su%*ective. + wld define Ga purpose dangerous to the pu%lic peaceG as
the intent to do harm to persons or property# or %eing rec!eless in that regard. @f course# harm
need not actually ensue from necessity and not self&defence.
Concerned that the su%*ective&o%*ective approach might slip into a wholly o%*ective approach.
He has a valid defence of necessity.
0ecision 1c:uitted %y four separate *udgments.
Ratio: 8* thin% the test is still su"5ecti1e! "ut the de"ate in this case is important "9c it shows
that su"5ecti1e intent can "e tric%y "9c in accepting the accused at their word! they could "e
ac:uitted and the law would ha1e not enforcea"ility(;
Se$ual Assault s(4<,&,'
Actus Reus Mens Rea
Act
)ouching (o%*ective) (Chase)
Act
+ntention to touch (o%*ective standard) (Chase)

Conditions
9exual Cature of the Contact (o%*ective)
(Chase)
1%sence of Consent (su%*ective in the mind of
the victim# doesn<t have to %e vocaliJed)
(&wanchuk)
Conditions
Co corresponding mens rea
Knowledge of# rec!lessness to or wilfully %lind to
the lac! of consent.
Mista%en =elief in Consent &defence# 1itiates
mens rea >Ma5or ?@ '
9u%*ective %elief in consent# %ut o%*ective
element ,ere reasona%le steps ta!en to
confirm this consent- (&wanchuk and Davis)
' 1lso need of an air of reality (Pa((a)ohn)
R. v. Chase 5"67K8 9CC
'acts 0 L Chase. complainant L "? yr old girl. 0 entered girl<s home wDo invitation# seiJed her
around the shoulders 2 gra%%ed her %reasts. 9he foughtI he said 3don<t hit me# + !now you want
it4. Bventually he left.
+ssue ,hat is the meaning of the term 3sexual assault4 as used in ss.$44 2 $4A."-
Held )/ found guilty of sexual assault.
C1 dismissed 0<s appeal# su%stituted a verdict of guilty of the included offence of
common assault under s.$4?(").
9CC Festored the conviction of sexual assault made at trial.
Feasons
9.$4A." creates the offence of sexual assault# an expression nowhere defined in the CC.
C1 Held that the modifier 3sexual4 should %e ta!en to refer to genitalia & %roader
definition may lead to a%surdities if it encompassed other portion of human anatomy
descri%ed as having 3secondary sexual characteristics4.
9CC The test for the recognition of se$ual assault doesnAt depend solely on contact
with specific areas of the human anatomy(
Ratio: Se$ual assault is an assault within any one of the definitions of that concept in
s(4++&,' of the CC which is committed in circumstances of a se$ual nature! such that the
se$ual integrity of the 1ictim is 1iolated( The test to "e applied in determining whether the
impugned conduct has the re:uisite se$ual nature is an O=?.CT*B. one: Biewed in the
light of all the circumstances! is the se$ual or carnal conte$t of the assault 1isi"le to a
reasona"le o"ser1er-(
The part of the "ody touched! the nature of the contact! the situation in which it
occurred! the words C gestures accompanying the act! C all other circumstances
surrounding the conduct! including threats which may or may not "e accompanied
"y force will "e rele1ant(
*mplicit in this 1iew of se$ual assault is the notion that the offence is one re:uiring a
general intent only(
Comments .rof says 9CC held that it<s not confined to secondary sexual characteristics
R v. &wanchuk ("666) 9CC
'acts 1ccused initiated a num%er of touching incidents# each progressively more intimate
although the complainant clearly said GnoG on each occasion. He stopped each time she said GnoG
%ut persisted shortly afterwards.
.rocedural History )/ F had not proven a%sence of consent (1F0 and ac:uitted relying on
3implied consent4
C1 she did not consent %ut %Dc of fear portrayed a relaxed and unafraid visage. 'ailure to
communicate rendered her feelings irrelevant# i.e. 3implied consent.4
+ssue ,as there implied consent- +s that a defence-
/udgment
+mplied consent & Co defence of implied consent. )rier of fact may only come to one of two
conclusions the complainant either consented or not. )here is not third option. Consent is
a matter of the state of mind of the complainant while %elief in consent is# su%*ect to s.
$K3.$# a matter of the state of mind of the accused and may raise the defence of honest %ut
mista!en %elief in consent.
'ear & )he trier of fact has to find that the complainant did not want to %e touched sexually
and made her decision to permit or participate in sexual activity as a result of an honestly
held fear. )he complainantHs fear need not %e reasona%le# nor must it %e communicated to
the accused in order for consent to %e vitiated. ,hile the plausi%ility of the alleged fear#
and any over expressions of it# are o%viously relevant to assessing the credi%ility of the
complainantHs claim that she consented out of fear# the approach is su%*ective
Meaning of GConsentG in the Context of an Honest %ut Mista!en (elief & 1s with the
actus reus of the offence# consent is an integral component of the mens rea# only this time
it is considered form the perspective of the accused. )he mens rea of sexual assault is not
only satisfied when it is shown that the accused !new that the complainant was essentially
saying GnoG %ut it is also satisfied when it is shown that the accused !new that the
complainant was essentially not saying 3yes.4
)he defence of mista!e is simply a denial of mens rea. +t does not impose any %urden of
proof upon the accused R v. Robertson# and it is not nec for the accused to testify in order
to raise the issue.
Eimits on Honest %ut Mista!en (elief in Consent & silence# passivity or am%iguous
conduct provides not defence R v. M.
EHH&0 ma!es reference to s. $K3.$(%)# whether the accused too! reasona%le steps is a M of fact to
%e determined %y the trier of fact only after the air of reality test has %een met.
Concurring EHH&0 &
C1 also found that Gthe sum of the evidence indicates that Bwanchuc!Hs advances to the
complainant were far less criminal than hormonal.G 1cc to this analysis# a man wld %e
free from criminal resp for having non&consensual sexual activity whenever he cannot
control his hormonal urges.
Complainants shld %e a%le to rely on a system free from myths and stereotypes and on a
*udiciary whose impartiality is not compromised %y %iased assumptions.
Nnless and until the accused first ta!es reasona%le steps to assure that there is consent the
defence of honest# %ut mista!en %elief does not arise R v. Daigle. Moreover# where a
complainant expresses non&consent# the accused has a corresponding escalating o%lig to
ta!e additional steps to ascertain consent.
0ecision 1ccused places reliance on his having stopped each time she said GnoG in order to show
that he had no intention to force himself upon her. )his demonstrates that he understood the
complainantHs GnoG to mean precisely that. )he accused did not raise nor does the evidence
disclose an air of reality to the defence of honest %ut mista!en %elief in consent. Ouilty.
Ratio: The actus reus of se$ual assault is esta"lished "y the proof of three elements:
i( Touching # o"5ecti1e
i( Se$ual nature of the contact # o"5ecti1e! the R need not pro1e that the accused
had any mens rea wrt the se$ual nature of the "eha1iour: R v. Litchfield
i( A"sence of consent # su"5ecti1e! determined "y the complainantDs state of
mind towards the touching: R v. Jensen( )hile the complainantDs testimony is
the only source of direct e1idence as to her state of mind! credi"ility must still
"e assessed "y the finder of fact(
Mens Rea # general intent! tE the R need only pro1e that the accused intended to
touch the complainant in order to satisfy the "asic mens rea re:uirement: R v.
Daviault
Fwr! since se$ual assault only "ecomes a crime in the a"sence of the complainantDs
consent! the CML recogniGes a defence of mista%e of fact which remo1es culpa"ility
for those who honestly "ut mista%enly "elie1ed that they had consent to touch the
complainant(
The mens rea of se$ual assault contains two elements:
i( *ntention to touch
ii( 0nowing of or "eing rec%less of! or wilfully "lind to! a lac% of consent on the
part of the prn touched(
R. v. *itch+ield& Crown need not prove mens rea with respect to the sexual nature of his or her
%ehaviour.
R. v. DGS 5$>>4 @nt. C.1.8 P 3ctus reus! Mista!en %elief in consent4
'acts Bx&%f threatened to send nude pics of gf unless she had sex with him.
+ssue 0id the complainant consent to sexual acts in :uestion- +f so# did the threats to send out
nude photos vitiate her consent-
Held 1ccused guilty of sexual assault. 3Consent4 to sex within the meaning of s.$K3."(") was
never given. )he girlfriend did not give 3consent4 to sex. Co finding of 3voluntary agreement4
per s.$K3."(") was made at trial# therefore it was a sexual assault. +t is uncessary to consider
arguments over vitiating factors %ecause there was never consent to %egin with. Co other options
appeared availa%le to complainant# so it can<t %e said she consented.
Ratio: Ho 1oluntary agreement- was e1er made "9c of the e$tortion! so consent could not
ha1e e1en "een gi1en( There is no need to in:uire a"out consent "eing 1itiated- "y
e$tortion "9c the consent was ne1er gi1en in the first place(
R v. Davis 5"6668 9CC
+ssue How does one consider the defence of honest %ut mista!en %elief-
/udgment)he mens rea of sexual assault re:uires the accused to intend the touching 2 to !now
of# or to %e rec!less or willfully %lind as to the complainant<s lac! of consent (&wanchuk)
+n some circumstances# it<s possi%le for the complainant not to consent to the sexual
touching %ut for the accused to honestly %ut mista!enly %elieve that the complainant
consented. +n these circumstances# the actus reus of the offence is esta%lished# %ut the
mens rea is not.
(efore the defence of honest %ut mista!en %elief can %e considered# there must %e
sufficient evidence for a reasona%le trier of fact to conclude that ") the complainant didn<t
consent to the sexual touching and $) the accused nevertheless honestly %ut mista!enly
%elieved that the complainant consented.
o +n other words# given the evidence# it must %e possi%le for a reasona%le trier of
fact to conclude that the actus reus is made out %ut the mens rea is not. +n these
circumstances# the defence is said to have an air of reality# and the trier of fact#
must consider it.
+n most cases# the issue will %e simply one of 3consent or no consent4# and there will %e
only " of $ possi%ilities. )he "
st
is that the complainant consented# in which case there is
no actus reus. )he $
nd
is that the complainant did not consent# and the accused had
su%*ective !nowledge of this fact. Here# the actus reus is made out# the mens rea follows
straightforwardly.
'or example# suppose the complainant and the accused rely on diametrically opposed
stories. +n such circumstances# the trial %ecomes a pure :uestion of credi%ility. +f the
complainant is %elieved# the actus reus is made out and the mens rea follow
straightforwardly. +f the accused is %elieved# or if there is a reasona%le dou%t as to the
complainants version of events# there is no actus reus. There is no 3
rd
possi"ility of an
honest "ut mista%en "elief in consent(
Ratio: the defence of honest "ut mista%en "elief in consent is simply a denial of the mens
rea of se$ual assault
Citing McLachlin in R v. Esau: there must "e e1idence not only of non#consent and
"elief in consent! "ut in addition e1idence capa"le of e$plaining how the accused
could honestly ha1e mista%en the complainantAs lac% of consent as consent(-
ProfAs Comments:
)his is a tough defence %ecause there are so many %arriers to it.
o if victim said 3no4 its perilous for accused to proceed further wDo getting firm yes.
o reasona%le steps re:uirement if you don<t do what a reasona%le person would
have done you can %e found guilty even if you do honestly %elieve in consent
o Qou can<t interpret consent from complainants< passivity.
Pa((a)ohn v. R 5"67>8 (9CC) (0efence of Mista!en (elief in Consent)
'acts Complainant was a realtor# hired %y appellant. 9he claims she was raped and he said it was
consensual. 9he ran na!ed from the house wither hands tied to a neigh%ours house upset and
police were called. Charges of sexual assault resulted. )/ refused to accede to defence counsel<s
re:uest that mista!en %elief in consent %e su%mitted as a defence. C1 said that the issue emerging
was a simple matter of consent or not. 0issent said that there was enough evidence to put to the
*ury the charge that the accused was entitled to an ac:uittal if the *ury found he entertained an
honest and reasona%ly held mista!en %elieve in the existence of consent.
+ssue ,hether the )/ erred in not charging the *ury wD the defence of mista!en %elief in consent.
/udgment (Mc+ntyre /) +n searching for evidence of a mista!en %ut honest %elief in consent first
:uestion to as is 3where is this evidence to %e found-4 )he two stories were diametrically
opposed and is not for the )/ to weigh them and prefer one to the other. Has simply to recogniJe
the issue which arises on the evidence for the purpose of deciding what defences are open. )/
was correct in concluding that there simply was not sufficient evidence to *ustify putting the
defence of mista!e of fact to the *ury.
0issent (0ic!son /) +f# according to an accused<s %elief concerning the facts# his act is criminal#
then he intended the offence and can %e punished. +f# on the other hand# his act would %e
innocent# according to facts as he %elieved them to %e# he does not have the criminal mind and
ought not to %e punished for his act. Mista!e is a defence where it prevents an accused from
having the mens rea which the law re:uires for the very crime with which he is charged. Can<t %e
restricted to situations in which %elief has %een induced %y info received from a third party. @nly
availa%le where there is sufficient evidence presented %y an accused# %y his testimony or %y the
circumstances in which the act occurred# to found the plea. Mista!e is unli!ely to %e %elieved
unless it is reasona%le to the *ury. /udge erred in failing to instruct the *ury (a) that# as to pre&
%ondage intercourse# the issues were consent and %elief in consentI and (%) that# as to post&
%ondage intercourse# the issue was whether sex occurred or not. ,ould dismiss the appeal.
Ratio: To re:uire the putting of the alternati1e defence of mista%en "elief in consent! there
must "e some e1idence "eyond the mere assertion "y counsel for the appellant of "elief in
consent( The e1idence must appear from or "e supported "y sources other than the
appellant in order to gi1e it any air of reality(
Sansregret v. R
'acts )he accused# who had %een stal!ing and a%using his ex girlfriend# went to her place with a
gun. +t was evident to her that he would !ill her. 9he persuaded him to thin! that she was
accepting him %ac! so wouldn<t !ill her# so her strategy for survival was to convince him that she
did want to engage in sexual acts.
+ssue 0id he commit sexual assault-
/udgment 9CC upheld the conviction. He had to %e wilfully %lind as to the %elief of her consent.
'rom a legal perspective# it is impossi%le to %elieve a fact and to suspect that it isn<t true. 9o it
was applied to extend a net of law# and the term wilfully %lind was used loosely.
Ratio: 7istinction "etween %nowledge and wilful "lindness! and states application of wilful
"lindness
& Knowledge: The rule is that if a party has his suspicion aroused "ut the deli"erately
omits to ma%e further en:uiries! "ecause he wishes to remain in ignorance! he is deemed
to ha1e %nowledge- &p( +IJ'
& Court distinguishes between recklessness and wilful blindness: )= is distinct from
rec%lessness "ecause! while rec%lessness in1ol1es %nowledge of a danger or ris% and
persistence in a course of conduct which creates a ris% that the prohi"ited result will
occur! )= arises where a person who has "ecome aware of the need for some in:uiry
declines to ma%e the in:uiry "ecause he does not wish to %now the truth( Fe would
prefer to remain ignorant( The culpa"ility in rec%lessness is 5ustified "y consciousness of
the ris% and "y proceeding in the face if it! while in )= it is 5ustified "y the accusedAs
fault in deli"erately failing to in:uire when he %nows there is reason for in:uiry(- &p(
+IJ'
& Application of W: A court can properly find )= only where it can almost "e said that
the defendant actually %now( Fe suspected the factK he realised its pro"a"ilityK "ut he
refrained from o"taining the final confirmation "ecause he wanted in the e1ent to "e
a"le to deny %nowledge( This! and this alone! is )=( *t re:uires in effect a finding that
the defendant intended to cheat the administration of 5ustice(- &p(+II'
R. v. Park 9exual 1ssault Mista!en %elief in consent
&Consent# as part of mens rea for sexual assault# is considered from the perspective of the
accused.
&3=the mens rea of sexual assault is not only satisfied when it is shown the accused !new that
the complainant was essentially saying 3no4# %ut is also satisfied when it is shown that the
accused !new that the complainant was essentially not saying 3yes4.4
R. v. Morgan
'acts Morgan went %owling with friends# told them that his wife had a rape fantasy. )heir
defence was that they %elieved she was consenting. Charged with sex assault.
/udgment )hat defence wasn<t %ought %y the court. )he level force used was not compati%le
with such ridiculous contention.
Ratio: Court accepted "asic principle that if they had honestly "elie1ed she was consenting!
that )O/L7 "e a defence(
Assault s( 4LM&,'
Actus Reus Mens Rea
Act
1pplication of force (direct or
indirect)I or )hreat to apply forceI
or +ntimidation with weapon (-)
Act
intention to apply force# threaten or
intimidate (su%*ective)
Condition
,ithout consent of the victim
Condition
!nowledge that is without the
consent of the victim.
R. v. Mc*eod
'acts 0uring McEeod<s fight with another man# an undercover cop gets involved in the fight#
and McEeod punches this cop. McEeod admits to assaulting him# %ut did not !now he was a cop.
+ssue 0id he commit the crime of assault of a police officer-
/udgment Fad the mens rea to hit him! "ut only the mens rea! for "asic assault not the
higher le1el mens rea for assaulting a police officer(
.1en though you wonAt find the term %nowing- in the pro1ision! his mens rea wasnAt
complete without symmetrical %nowledge of elements( *n this case! he had to %now that this
was a cop(
R v. ,andergraa+ ("664) Man. C1
'acts 2 .rocedural History Charged with the offence of assault with a weapon (a *ar of peanut
%utter). )he )/ held that it was the accusedHs *ar that struc! the complainant# hwr the accused did
not intend to hit any%ody. He concluded# Gthat there was the intention to apply force in a general
sense# and it happened to %e particularly against the complainant.G )he accused was convicted on
this %asis.
+ssue ,hat is the intention re:uired for assault with a weapon-
/udgment )he conviction cannot stand. ,ithout proof of an intention to apply force to the
complainant or to another person. )he NF offence is an assault# and the intent that must %e
esta%lished is the intention to apply force# directly or indirectly# to another person.
0ecision Conviction set aside# ac:uittal directed.
Ratio: The mens rea for assault with a weapon must "e that of the underlying offence of
assault which re:uires force to "e intentionally applied to another person(
Aggra1ated Assault s( 4LJ&,'
Actus Reus Mens Rea
Act
1pplication of force (direct or
indirect)I or )hreat to apply forceI
or +ntimidation with weapon (-)
Act
intention to apply force# threaten or
intimidate (su%*ective)
Conditions Conditions
,ithout consent of the victim !nowledge that is without the
consent of the victim.
Conse:uences
)ound! maims! disfigures or
endangers the life of the
complainant
Conse:uences
+ntention or rec!lessness towards
these conse:uences
R. v. -illiams
'acts ,illiams learns that he is H+R positive ? months after dating and having unprotected sex
with his partner. He didn<t disclose that he was H+R positive.
+ssue 0id the accused commit aggravated assault- ,ere the elements present-
/udgment 1ggravated assault have to prove that the act endangered the life of the victim.
9ection $A7(") of the Code Bvery one commits an aggravated assault who wounds# maims#
disfigures or endangers the life of the complainant.
)he accused didn<t !now he was infected %efore the test# so if that is when she contracted the
disease# then he is not guilty. 1fter he !new# or during the 3guilty period4# she may have already
%een infected.
Held no conviction of aggravated assault. +mpossi%le to say when she got infected. *f the
Crown wishes to allege an offence predicated on an aggra1ating conse:uence! the Crown
must pro1e the conse:uence "eyond a reasona"le dou"t-
Cote He was convicted of attempted aggravated assault on the %asis that he !new that he was
exposing her to the ris!.
& Have to lin! conduct of the accused# coupled with mens rea# to the conse:uence (of
endangerment in this case).
Ratio: To constitute a crime! Nat some point the actus reus and the mens rea or intent must
coincideA- &p( 4+L'
R. v. Godin 1ggravated 1ssault
&9CC# not fully *ustifying its position# found intent was not re:uired respecting the conse:uences
of 3wounding# maiming or disfiguring4 and the mens rea fault element for aggravated assault was
o%*ective foresight of %odily harm.
Omissions
To "e guilty of an Omission:
,( must "e a L.2AL 7/T6 TO ACT
pro1ision creating the offence may spell out the legal duty
A separate Code pro1ision may spell out the duty while another
offence creates the offence
A common law duty may e$ist
7uty to pre1ent ris%s created "y actor
7uty to identify self to police officer who witnesses you
committing an offence
A pro1incial statute may create an offence
4( the omission represents a EA*L/R. TO E/LE*L TFAT 7/T6
3( the offence charged! as a matter of interpretation! e$tends to
omissions(
R. v. Browne 5"66K @nt. C.1.8
902C pp. $7>&$7$. ctus reus# 3@missions4
'acts 0 and deceased were drug dealers# deceased swallowed %ag of drugs to avoid detection %ut
dies from overdose. 0 said he 3would ta!e her to the hospital4 so called a ca% which too! too
long. )rial /udge held that this constituted an 3underta!ing4 within s. $"K of CC (0uty of persons
underta!ing acts).
+ssue 0id the statement to help out constitute an ;underta!ing< within s. $"K-
Held Co# accused not guilty. )rial *udge erred P in:uiry should have %egun with whether here
was an underta!ing# not %ased on the relationship. @nly if there was an underta!ing first could a
duty exist. Eegal duty does not (and can not) flow from relationshi( that existed (s. $"?)# only the
act or omission itself in s. $"K. Here there was C@) an underta!ing %Dc the mere words indicating
a willingness to do an act cannot trigger the legal duty.
&Co underta!ing under s. $"K# so no finding of legal duty# so no %reach contrary to s. $"6.
Ratio: There must "e a commitment made and reliance placed upon that commitment(
Hothing short of a "inding commitment will gi1e rise to the duty in s( 4,<
Thornton v. R. 5"663 9CC8
902C pp.$7>. ctus reus# 3@missions4
'acts 1ccused donated %lood# !new he was H+R positive. Fed Cross detected %lood and put it
aside so no%ody infected. 0 charged under s."7> (common nuisance %y unlawful act which
includes an omission). )/ found there was a duty under s.$"A CC %Dc donations involved a
medical (rocedure. 1ccused appeals# claims his conduct was not an offence !nown to the law.
+ssue 0id the 0<s conduct amount to a failure to discharge his 3legal duty4- Must a 3legal duty4
%e imposed %y CE or statute-
Held
Court of Appeal: 0 guilty for failing to discharge his legal duty to refrain from causing
harm. 1 duty which is imposed %y law includes a duty which arises at common law.
R. v. Co!ne 5in )hornton8
Fatio 0uty imposed may arise from either CE or %y statute.
R. v. "open 5in )hornton8
Fatio 1 parent is under a legal duty at CE to ta!e steps to protect hisDher child.
SCC: 0 guilty for %reaching his duty of care in giving %lood imposed upon him %y s. $"A.
9CC divided s. $"A to create independent duties.
Ratio: 7 "reached duty of care imposed "y s( 4,L "y gi1ing "lood and not re1ealing his F*B
status( This e:uated to common nuisance! which endangered the life! safety and health of
the pu"lic &as set out in s( ,JO'(
A duty of care will arise for those doing lawful acts which endanger the li1es of
others(
This creates a much wider measure of criminal responsi"ility(
o )ider pro1ision ma%es it easier to find lia"ility for an omission(
o Fard to imagine a situation where a duty of care will HOT "e found(
SCC read S 4,L as not only applying to medical professionals and! therefore! applied
to ALL people
.agan v. Comm. o+ Metro(olitan Police
&1ccused guilty of assault %ecause he had !nowledge car was on the officer<s foot# switched off
ignition# maintained wheel on officer<s foot# and used words to indicate intention of !eeping
wheel there when# considered together# cannot %e characteriJed as mere omission.
Beardsle$
'acts 1 man %rought a woman home# she started drin!ing 2 ta!ing meds. Oot into pro%lems wD
prescri%ed meds. Ouy tried to prevent her from ta!ing meds unsuccessfully. Eeft her downstairs
2 she died. +t was clear that she overdosed %ut he did nothing a%out it.
Held He was ac:uitted
Feasons Hot his spouse and too% no steps to ta%e control o1er her(
Comments 3Nnderta!ing duty in s.$"A4
Eailure to Pro1ide the Hecessities of Life &Omissions' S( 4,M
s. $"? (") 0uty of persons to provide necessaries& Bvery on is under a legal duty
(a) as a parent# foster parent# guardian or head of a family# to provide necessaries of life for a
child under the age of "A years.
(%) to provide necessaries of life to their spouse or common&law partnerI and
(c) to provide necessaries of life to a person under his charge if that person
(i) is una%le# %y reason of detention# age# illness# mental disorder or other cause to
withdraw himself from that charge# and
(ii) is una%le to provide himself with necessaries of life.
($) @ffence& every one commits an offence who# %eing under a legal duty within the meaning of
su%section (")# fails without lawful excuse# the proof of which lies on him# to perform that duty#
if
(a) with respect to a duty imposed %y paragraph (")(a) or (%)#
(i) the person to whom the duty is owed is in destitute or necessitous circumstances# or
(ii) the failure to perform the duty endangers the life of the person to whom the duty is
owed# or causes or is li!ely to cause the health of that person to %e endangered
permanentlyI or
(%) with respect to a duty imposed %y paragraph "(c)# the failure to perform the duty endangers
the life of the person to whom the duty is owed or causes or is li!ely to cause the health of that
person to %e in*ured permanently.
Actus Reus Mens Rea
1ct
1re under a legal duty
'ails to perform that duty
.erson who is owed the duty is in
1ct
+ntentional or rec!less (.eterson)
destitute or necessitous
circumstances

Condition
.erson who is owed the duty is in
destitute or necessitous
circumstances
Conse:uences
'ailure to perform endangers lifeI
or
Causes or is li!ely to cause the
health of that person to %e
endangered
R. v. Peterson
'acts 1nd elderly man is una%le to care for himself# and ended up in %asement of the home with
no access to washrooms etc. His son 0enis ran the home# and was charged with failing to provide
the necessities of life under (c) that he was under 0enis< charge. 0enis claims that the father was
not under his charge.
& )his has an o%*ective standard of fault don<t loo! for intent or evil mind. Chec! if his
omission is a mar!ed departure from the standards of norm. ,ould a reasona%le person
%ehave this way-
+ssue +s he under 0enis< charge- ,as there an o%ligation-
/udgment Qes# he was under 0enis< charge and there was an o%ligation.
& .. $76 3what the definitions have in common is the exercise of an element of control of one
person and dependency of another.4
Ratio: This case outlines the &non#e$hausti1e' factors considered "y court in to determine
whether a party is under an o"ligation to pro1ide the necessities of life:
". dependency of father
$. familial relationship and son<s awareness of father<s dependency. Felative positions
dependent# in need of assistance# and son was aware of this. Key that the son controlled his
living environment
3. Control of living conditions 'ound that the son assumed control of his father %ecause of a
degree of legal control was shown when his father had signed a power of attorney. 1lso
evidence that the son had assumed charge (ex. when neigh%ours dropped him off).
4. Control over personal care
?. 9on chose not to ma!e decisions that would result in father receiving the necessaries of life
A. +na%ility to withdraw himself from the charge of the father
& Felationship# power dynamics# someone assumed charge# and circumstances (the father had
dementia and was una%le to care for himself properly). 9o court had no pro%lem convicting
him# and saying responsi%le
& Cote that was no discrete act
& )he ongoing relationship can %e the actus reus of the offence# don<t need one specific act
.ara 36 includes failure to act in an ongoing relationship
& Cote 3)he ina%ility of the victim to appreciate his or her need for necessities and the victim<s
unwillingness to cooperate is not a defence for an accused charged with failure to provide
necessities4 (para 43)
R v. /aglik P 1%orig woman cld not care for her child. Qou shld ta!e into account her lac! of
education and age.)he o%ligation to provide necessaries is not a%solute and may %e excused# for
example# where there is financial ina%ility. 9. $"?($)(%) indicates that the failure to provide
necessaries includes not only a failure to do a discrete act %ut also includes a failure to act in an
ongoing relationship over a period of time.
=rea% and .nter
Actus Reus Mens Rea
(rea!
1nd Bnter
1 .lace
1nd either
i) commit an indicta%le offence therein
(347(")(a) ) or
ii) have the intention of committing an
indicta%le offence therein (347(")(%) )
presumed at common law&
intention andDor rec!lessness
R v. 0ohnson & 1 home under construction. +t had no doors# *ust plywood nailed onto the frames.
@ne of the pieces of wood had %een removed %y s.o. (fact found %y *udge). ,hile inside the
accused commits a theft and he is su%se:uently charged with s.347 (2B. )he CME def of %rea!
re: that for a %rea!&in to occur there must %e some displacement of any part of a %ldg or its
fastenings# incl turning a !ey. s. 3$" of the CC defines G%rea!G a) to %rea! any internal (e.g.
windows) or external part or %) to open or close anything that is used to closed and internal or
external opening. )he accused could not %e convicted %Dc he was faced with an open door. )he
CME also had constructive %rea!&ins# e.g. chimney. +f you come into an opening that is
permanently open then we will treat it as a %rea! in. 1t CME if you left your front door or
window open you are inviting others to come into your home and t' there is no %rea! re:. 9. 3$"
G%rea!G def a) was written to ma!e up for this. /ohnson relied on R v. Jewel clim%ed into a home
through an open window and t' did not %rea! in. )he ct applied strict construction and /ewel was
not convicted. )he 9CC held in /ohnson that %rea!ing into an internal or external opening
includes entering wDo %rea!ing.
Pple of symmetry & there must %e a mental element corresponding to the physical elements of
every offence. )he typical mental element is rec!lessness or intention# otherwise it is !nowledge.
)here is a presumption that every offence re:s as such R v u##anga & 1lthough no mental
element is expressly mentioned=mens rea is non the less re: since the inclusion of an offence in
the CC a mental element must %e assumed unless it is clearly dispensed with. Hwr# this has %een
ignored %y some more recent cases
Traffic%ing s( M Controlled Su"stances Act
Actus Reus Mens Rea
Act
)raffic!ing in a su%stance that is
prohi%itedI or
9aying it is prohi%ited even if it is
not.
+ntention to traffic in this !ind of
su%stance.
R v. CR&1G%T2/ 5"6638 9CC (page ?4")
'acts @n a charge of manslaughter# defence counsel conceded at trial that the in*ection into the
deceased<s %ody of cocaine constituted traffic!ing wDi the def<n set out in s.4(") of Carcotic
Control 1ct. )he Crown argued that the accused was guilty of manslaughter as the death was the
direct conse:uence of the unlawful act# contrary to s.$$(?) of CC. )he court expressed some
thought on the meaning of negligence in the criminal law.
+ssue McEachlin P )he diff %tw my approach 2 the C/<s turns on the extent to which personal
characteristics of the accused may affect lia%ility under the o%*ective test.
Feasons McE&
)he Cature of the @%*ective )est
)he mens rea of a criminal offence may %e either su%*ective or o%*ective# su%*ective to the
.@'/ that the moral fault of the offence must %e proportionate to its gravity 2 penalty.
9u%*ective mens rea re:uires that the accused has intended the conse:uences of hisDher
acts# or that !nowing of the pro%a%le conse:uences of those acts# the accused has
proceeded rec!lessly in the face of the ris!. )he re:uisite intent or !nowledge may %e
inferred directly from what the accused said or says a%out his or her mental state# or
indirectly from the act and its circumstances. Bven in the latter case# however# its
concerned with 3what was actually going on in the mind of this particular accused at the
time in :uestion4
@%*ective Mens Fea is not concerned with what the accused intended or !new. Father# the
mental fault lies in failure to direct the mind to a ris! which the reasona%le person would
have appreciated. @%*ective mens rea is not concerned with what was actually in the
accused<s mind# %ut with what should have %een there# had the accused proceeded
reasona%ly.
+t<s now esta%lished that a person may %e held criminally responsi%le for negligent
conduct on the o%*ective test. )he negligence must constitute a 3mar!ed departure4 from
the std of the reasona%le person. +t follows from this re:uirement# affirmed in Hundal# that
a predicate offence involving a carelessness or negligence must also %e read as re:uiring a
3mar!ed departure4 from the std of the reasona%le person
+n F v. Hundal# it was said that the mens rea of dangerous driving should %e assessed
o%*ectively in the context of all the events surrounding the incident. (ut the extent to
which those circumstances include personal mental or psychological frailties of the
accused wasn<t explored in depth.
Nnderlying .rinciples
+ agree with the C/ that the rule that the morally innocent not %e punished in the context
of the o%*ective test re:uires that the law refrain from holding a person criminally
responsi%le if he or she isn<t capa%le of appreciating the ris!. )here * differ from the C?
is in his designation of the sort of educational! e$periential and so#called ha"itual-
factors personal to the accused which can "e ta%en into account( )he C/# while in
principle advocating a uniform std of care for all# in the result seems to contemplate a std
of care which varies with the %ac!ground 2 predisposition of each accused. )hus an
experienced# uneducated# young person# li!e the accused in F v. Cugli!# could %e
ac:uitted# event though she doesn<t meet the std of reasona%le person. @n the other hand#
a person with special experience# li!e Mr. Creighton in this case# or the appellant police
office in F v. Oosset# will %e held to a higher std than the ordinary reasona%le person.
* must respectfully dissent from this e$tension of the o"5ecti1e test for criminal fault(
*n my 1iew! considerations of principle C policy dictate the maintenance of a single!
uniform legal std of care for such offences! su"5ect to , e$ception: incapacity to
appreciate the nature of the ris% which the acti1ity in :uestion entails(
+n summary# + can find no support in criminal theory for the conclusion that protection of
the morally innocent re:uires a general consideration of individual excusing conditions.
)he principle comes into play only at the point where the person is shown to lac! the
capacity to appreciate the nature and :uality or the conse:uences of his or her acts
)he answer to the :uestion of whether the accused too! reasona%le care must %e founded
on a consideration of all the circumstances of the case. )he :uestion is what the
reasona%ly prudent person would have done in all the circumstances. )hus a welder who
lights a torch causing an explosion may %e excused if he has made an en:uiry and %een
given advice upon which he was reasona%ly entitled to rely# that there was no explosive
gas in the area. )he necessity of ta!ing into account all of the circumstances in applying
the o%*ective test in offences of penal negligence was affirmed in F v. Hundal
Feasons (Eamer C/)
The reasona"le person will "e in1ested with any enhanced foresight the accused may
ha1e en5oyed "y 1irtue of his9her mem"ership in a group with special e$perience or
%nowledge related to the conduct gi1ing rise to the offence. 'or ex# the reasona%le
person should %e deemed to possess Mr. Creighton<s considera%le experience in drug use.
@nce the Crown has esta%lished (1F0 that this reasona%le person in the context of the
offence would have foreseen the ris! of death created %y hisDher conduct# the focus of the
investigation must shift to the :uestion of whether a reasona%le person in the position of
the accused would<ve %een capa%le of foreseeing such a ris!. + wish to reiterate that the
std of care remains uniform and unchanging irrespective of the particular accused P rther#
its in the determination of what<s reasona%le that the s!ill 2 expertise of the accused may
%e considered.
Human frailties encompass personal characteristics ha%itually affecting an accused<s
awareness of the circumstances which create ris!. 9uch characteristics must %e relevant to
the a%ility to perceive the particular ris!.
+t should %e emphasiJed that the relevant characteristics must %e traits which the accused
couldn<t control or otherwise manage in the circumstances
Feasons (Ea 'orest)
He prefers the su%*ective view of mens rea
*mporting Harcotics
Actus Reus Mens Rea
Contrary to $arcotics Control Act
Act
importing
Condition
1 narcotic
9u%*ective intention or rec!lessness
Knowledge or wilful %lindness as to
whether it was a narcotic (Blondin)
R v. Blondin &,I<,' =C CA
'acts 2 .rocedural History +mported drugs in a scu%a tan!. He !new something illegal was
inside %ut did not !now that it was canna%is resin specifically. )he trial *udge found him not
guilty.
+ssue +s it sufficient to !now that there was an illegal su%stance inside or is specific !nowledge
re:uired-
/udgment Fo%ertson /1 & trial *udge erred when he instructed the *ury that in order to find
(londin guilty they must find that he !new that the su%stance was canna%is resin. +t wld %e
sufficient to find mens rea in the widest sense. +t is essential to find that he !new he was
importing a narcotic. Mes rea :ua this offence is proven %y an intention to commit an offence.
)he *ury cld have found mens rea if they had found that (londin had %een paid to smuggle a
su%stance illegally into Cda and either was rec!less a%out what it was or wilfully %lind to what it
was# inferring therefrom that he suspected it might %e a narcotic.
0avey C/(C &
/ury shld convict if they found (1F0 that (londin %rought the su%stance into Cda !nowing that
it was a narcotic# or %eing rec!less or wilfully %lind.
Mc'arlane /1 & +t was wrg of the trial *udge to instruct the *ury that the F must prove (1F0 that
he !new it was canna%is resin and it wld %e wrg to instruct the *ury that it is sufficient to for him
to !now that it was unlawful to import the su%stance.
)he *ury shld have %een instructed that the onus on the F was to prove (1F0 that the accused
!new the su%stance was a narcotic# although not necessarily canna%is resin.
Beaver v. The "ueen ' there is in law no possession wDo !nowledge of the character of the
for%idden su%stance.
+t wld %e correct to instruct a *ury that the existence of !nowledge may %e inferred as a fact# with
due regard to all the circs# if the *ury finds that the accused has rec!lessly or wilfully shut his eyes
or refrained from in:uiry as to the nature of the su%stance he imports.
0ecision Rerdict of ac:uittal set asideI trial de novo ordered.
Ratio: 0nowledge that the su"stance "eing imported is a narcotic! although not necessarily
canna"is resin! is an essential ingredient of the offence(
Comments: The ct mi$ed up rec%lessness and wilful "lindness in this case( )ilful "lindness
is w9in rec%lessness &Supp MOO'
R. v. Sandhu3 R. v. ,inokurov P (oth cases saying that
6ou can HOT su"stitute rec%lessness with wilful "lindness
)ilful "lindness relates to 0nowledge P not rec%lessness
Criminal Hegligence (s. $"6("))
9NMM1FQ @' CBOE+OBCCB @''BCCB9
& @rdinary negligence 1 departure from the reasona%le person (careless driving)
vs.
& .enal negligence 1 M1FKB0 departure from the reasona%le person (dangerous driving
causing deathDin*ury)
vs.
& Criminal negligence 1 M1FKB0 and 9N(9)1C)+1E departure from the reasona%le
person (criminal negligence causing deathDin*ury)
Actus Reus Mens Rea &O"5ecti1e Standard'
1C)
&1n act or omission
&showing wanton or rec!less disregard for
the lives and safety of others
1C)
& mar!ed and su%stantial departure from the
norm (MeneJes)
C@C0+)+@C9DC+FCNM9)1CCB9
& failure to fulfill a duty (from another
section)
C@C0+)+@C9
C@C9BMNBCCB9
&--- (depends on offence charged)
C@C9BMNBCCB9
& ---
Penalties include:
". causing death (CreightonI MeneJes)
$. causing %odily harm (0esousa)
3. manslaughter (9mithers)
Criminal Hegligence Causing 7eath (s. $$>)
Actus Reus Mens Rea
1C)
1n act or omission
showing wanton or rec!less
disregard for the lives and safety of
others
1C)
mar!ed and su%stantial departure
from the norm (MeneJes)
C@C0+)+@C9DC+FCNM9)1CCB9
failure to fulfill a duty (from
another section)
C@C0+)+@C9
!nowledge of that duty or wilful
%lindness to it. (QQQ'
C@C9BMNBCCB9
causing 0eath
C@C9BMNBCCB9
*n5ury must have %een o%*ectively
foreseea%le (not death)
R. v. Bartlett
'acts 'riends were driving in two cars down the highway. (artlett sprayed %eer on the other car#
causing the car to drive onto the gravel# after which the driver lost control of the car and caused a
fatal accident. (artlett was convicted under section $"($) of the Code of %eing a party to
dangerous driving.
+ssue ,as the explanation to the *ury of the difference %etween civil negligence and dangerous
driving appropriate-
/udgment Co. Conviction was :uashed %ecause the trial *udge misdirected the *ury in not
contrasting dangerous driving with civil negligence and criminal negligence. Cew trial ordered
for charge of dangerous driving
Ratio: 7angerous dri1ing in1ol1es a mar%ed departure from the standard of care of a
prudent dri1er! and must "e a danger to the pu"lic
Cote .rof says Eamer is trying to descri%e the reasona%le person having the characteristics of the
accused# so he is really as!ing a su%*ective :uestion.
Nnder what circumstances are we to put the reasona%le person when ma!ing the evaluation-
,hat characteristics do we give reasona%le person- .rof said we must ta!e into account the
situation# %ut not the personal characteristics# except for having the capacity of %eing a%le to
appreciate the reasona%le person
R v. Mene4es
'acts drag racing & accused %ac!ed off and the other racer continued to drive dangerously# hit a
pole and died. He was charged with criminal negligence causing death.
+ssue 0id the accused cause the death of his opponent and if so was he criminally negligent-
/udgment
Causation &
+f in prosecution of a criminal driving charge alleging death as a conse:uence# a real
connection %Dw the driving misconduct and the death is not esta%lished# as re:uired %y
law# the F may %e left simply with discharge of proof for a lesser offence# i.e. dangerous
driving.
Causation re:uires a finding that the accused caused the death of another# %oth in fact and
in law. 'actual causation is concerned with an in:uiry as to how the victim came to his or
her death in a medical# mechanical or physical sense# and with the contri%ution of the
accused to that result /ette.
Femoteness may %ecome an issue. +f the accusedHs actions are fairly viewed as only part
of the history of the setting in which the prohi%ited result unfolded# wDo more# causation is
not proven R v. Cribbin.
,ithdrawal or a%andonment of involvement may %e an intervening act. @rdinarily
a%andonment re:uires communication or timely notice of intention to a%andon the
common pursuit. +n the a%sence of exceptional circs# smtg more than a mere mental
change of intention is re:uired & a Sve act.
Criminal Cegligence &
'irst & did the accused drive in a manner that constituted negligence or dangerous driving-
)hen & was it %y reason of criminal negligence or dangerous driving that the death
ensued-
Criminal negligence amounts to a wanton and rec!less disregard for the lives and safety
of other# s. $"6("). )his is a higher degree of moral %lameworthiness than dangerous
driving nderson v. the "ueen. )his is a mar!ed an su%stantial departure in all of the
circs from the standard of care of a reasona%le prn -hite v. the "ueen. )he word
GwantonG means heedlessly# ungoverned# undisciplined R v. -aite5 R v. Shar(. )he term
Grec!lessG means Gheedless of conse:uences# headlong# irresponsi%leG R v. Shar(.
0ecision MeneJesH driving constituted a mar!ed departure from the standard conduct expected of
a reasona%ly prudent driver in all of the circs# %ut %Dc he %ac!ed off he was no longer engaged in
the race and t' not resp for the death of his opponent.
Ratio: Causation # )ithdrawal or a"andonment of in1ol1ement may "e an inter1ening act
which "rea%s the chain of causation( *t usually re:uires a communication and9or a positi1e
act(
The mens rea for criminal negligence is higher than that for dangerous dri1ing(
Criminal Hegligence Causing =odily Farm (s. $$")
Actus Reus Mens Rea
1C)
&1n act or omission
&showing wanton or rec!less disregard for
the lives and safety of others
1C)
&.enal negligence
C@C0+)+@C9DC+FCNM9)1CCB9
& failure to fulfill a duty (from another
section)
C@C0+)+@C9
& mar!ed and su%stantial departure from
the norm
C@C9BMNBCCB9
& causing (odily Harm
C@C9BMNBCCB9
& *n5ury must have %een o%*ectively
foreseea%le (not death)
7angerous 7ri1ing &s( 4+I&,'' causing =odily Farm &s(4+I&3'' or
7eath &s(4+I&+''
1C)N9 FBN9 MBC9 FB1
1C)
&@perating a motor vehicle
1C)
&+ntentional# rec!lessness# or penal
negligence
C@C0+)+@C
&0angerous to the pu%lic
C@C0+)+@C
&Mar!ed departure from the norm
C@C9BMNBCCB (causes)
&(odily harm
&0eath
C@C9BMNBCCB
&@%*ective 'oreseea%ility of ris! or in*uryT
&@%*ective 'oreseea%ility of ris!
T Femem%er the predicate offence of an unlawful act causing %odily harm (Creighton)
R. v. Cham(agne
/udgment Charron& 0istinguished %etween dangerous driving and criminal negligence %y
suggesting that the actus reus element is difference. 9. $"6 re:uires that the act shows wanton or
rec!less disregard. +n order for an act to show this the departure has to %e so significant that it is
manifest or clear that the conduct was not *ust a departure from the standards of a reasona%le
person# or even a mar!ed departure# had to %e a fairly extreme departure from the standards.
Ratio: Mar%ed and su"stantial: the difference "etween dangerous dri1ing and criminal
negligence is in 7angerous 7ri1ing you say thatAs a mar%ed departure from the norm! for
Criminal Hegligence you say thatAs a mar%ed and S/=STAHT*AL departure from the
norm( *s a :uestion of degree(
R. v. %undal & 0angerous driving
5Eor dangerous dri1ing conduct must "e mar%ed departure- from standards of the norm8
'acts 1ccused driving overloaded dump truc! on wet roadI couldn<t stop# hit and !illed other
driver.
+ssue +s there a su%*ective element to mens rea for dangerous driving-
/udgment Court adopted 3modified o%*ective test4I appeal dismissed# accused<s driving
constituted a 3gross departure4 from standard.
/udgment Cory /. ma*ority P reasons for adopting test (") licensing re:uirement P demonstrates
drivers are mentally# physically a%le and familiar with standards of care# ($) automatic reflexive
nature of driving P virtually impossi%le to esta%lish state of mind# (3) wording of the section 3in
manner dangerous to the pu%lic4 P %asis of lia%ility clearly negligence# and (4) statistics P
incidences of in*ury on the roadI although it is an o"5ecti1e test! %ens rea for dangerous
dri1ing should "e assessed o"5ecti1ely "ut in the conte$t of all e1ents surrounding the
incident this meets constitutional minimum fault re:uirementK trier of fact should "e
satisfied that conduct amounted to a mar%ed departure from the standard of care a
reasona"le person would o"ser1e in the accusedAs situationI accused may offer excuse of
3sudden and unexpected illness4.
McEachlin /. minority P must !eep concepts of o%*ective and su%*ective mens rea separate either
loo! at what accused !new or ought to have !nown# not %othI test should not import su%*ective
elements
Careless 7ri1ing &Regulatory offence'
Actus Reus Mens Rea
1C)
&0riving in a careless manner
1C)
& @%*ective standard (mere negligence)
C@C0+)+@C
& failure to use reasona%le care
& conduct deserves punishment
C@C0+)+@C
& simple negligence
R. v. Beaucham(
'acts (us driver has to par! his %us# mirror on side loose so can<t use it. 0rives %y par!ing spot
and !nows while %ac!ing in will %e in a %lind situation. )a!es the chance. 1nother car pulls into
the spot and he hits it while %ac!ing up.
Standard to determine guilt: p( +,J: *t must also "e "orne in mind that the test! where an
accident has occurred! is not whether! if the accused had used greater care or s%ill! the
accident would not ha1e happened( *t is whether it is pro1ed "eyond reasona"le dou"t that
this accused! in the light of e$isting circumstances of which he was aware or of which a
dri1er e$ercising ordinary care should ha1e "een aware! failed to used the care and
attention to gi1e to other persons using the highway the consideration that a dri1er of
ordinary care would ha1e used or gi1en in the circumstancesQ
Manslaughter P Sections 434&,'! 43+
Can %e any one of the following (per p 44A 9upp)
". Nnlawful act causing death
s( 43+ Culpa"le homicide that is not murder or infanticide is manslaughter P so you ha1e to
ha1e culpa"le homicide that is not planned and deli"erate and that is not done in the
commission of another listed offence(
1ctus Feus Mens Fea
1ct
Nnlawful act causing death (where one or
more elements of murder is missing)# i.e.
did not intend to cause death# intoxication
prevented the formation of intention
@F Criminal negligence causing death
@F .rovocation in !illing (s. $3$("))
Condition
Human %eing
Conse:uence
0eath
.resume su%*ective intention
Oross negligence
.resume su%*ective intention
.resume !nowledge or rec!lessness
.resume intention
Smithers v. R 5"6K78 (@C))
'acts Facial remar!s in hoc!ey P !ic!ed P epiglottis malfunction P C@0 aspiration.
)/ Ouilty of manslaughter
C1 appealed on the ground that the )/ did not instruct that the assault must cause death.
+ssue ,hether the appellant had committed homicide %y directly or indirectly# %y any means#
causing the death of Co%%y and whether such homicide was culpa%le for the reason that it was
caused %y an unlawful act.
/udgment 'irst ground of appeal doesn<t stand. 9ufficient evidence given to the *ury (mainly
medical testimony) that the !ic! could cause regurgitation and regurgitation caused the death.
1ppellant !ic!ed the deceased in the stomach area which was followed %y immediate distress#
and that the death occurred within minutes. 0ifference %etween causation as a :uestion of fact
and a :uestion of law. 'act is whether 1 caused ( and answer can only come from evidence of
witnesses. /ury is entitled to loo! at %oth expert testimony and lay evidence. Cot %ound to accept
the expert testimony. 9u%stantial evidence that the !ic! was at least a contri%uting cause of death#
that is all Crown was re:uired to esta%lish. Have to loo! at it in context# he was !ic!ed#
immediately fell down# and then su%se:uently died. Manslaughter doesn<t have to esta%lish intent
to !ill. 1ppeal should %e dismissed.
Ratio: .1en if a "low alone would not ha1e caused the death it is still a legal cause so long as
it contri"uted in some way to the death(
SM*TF.RS T.ST: whether the contri"uting cause is "eyond the de %ini%us range(
R. v. Smith
/ote! +ocus is on 1ntervening Cause
'acts 9oldier !illed another soldier in a fight %y sta%%ing him in the arm and in the %ac!#
piercing a lung. @n the way to treatment the deceased was dropped twice# and then he was
administered a negligent treatment. He died# although doctors testified that if he had received
proper treatment he pro%a%ly would have recovered.
+ssue ,as the chain of causation %ro!en %y the negligent treatment-
/udgment 0eath resulted from the original wound.
& +f it is found that at the time of death the would was an operating and a su%stantial cause# then
death is the result of the wound# even if another cause of death# such as the negligent care# is
also operating. 3@nly if the second cause is so overwhelming as to ma!e the original would
merely part of the history can it %e said that the death does not flow from the wound.4
Ratio: To "rea% the chain of causation it must "e shown that there must "e a new cause
which distur"s the se:uence of e1ents! something which can "e descri"ed as either
unreasona"le or e$traneous or e$trinsic-
R. v. Blaue
'acts /ehovah witness was sta%%ed. 9he wouldn<t ta!e medical treatment as indicated P %lood
transfusion would have saved herU
Ratio: Thin s%ull rule applica"leK you ha1e to ta%e the whole 1ictim as you find them
including her right to ma!e choices over her %odyU
Comments Nnder Eegal Causation P thin s!ull & manslaughter
Murder P Sections 44I#43, and 43M
1ctus Feus Mens Fea
s. $$6(a) Murder sim(liciter
1ct
causes death
Condition
@f a human %eing
Conse:uence
0eath ensues
s. $$6 (%) )ransferred intent
1ct
(y accident or mista!e causes death of
another (i.e. not the person intended)
Condition
)o a human %eing
Conse:uences
i) means to cause death (CC)
ii) means to cause him %odily harm that he
!nows is li!ely to cause death (Smithers
test) and is rec!less whether death ensues
(CC)
.resume !nowledge or wilful %lindness
.resume intent
meaning to cause death or %odily harm that
he !nows is li!ely to cause death
.resume !nowledge or wilful %lindness
0eath ensues
s. $$6 (c)
1ct
0oes something is li!ely to cause death
Condition
'or an unlawful purpose
Conse:uence
death
c) where the person# for an unlawful o%*ect
does anything that he !nows is li!ely to
cause death and there%y causes death
notwithstanding that he desires to effect his
o%*ect wDo causing death or %odily harm
(CC)
rec!less of whether death ensues (CC)
he !nows or ought to !now it will li!ely
cause death notwithstanding that he does
not mean to cause death or %odily harm
.resume !nowledge or wilful %lindness
.resume intention
Once you ha1e a culpa"le homicide then you decide whether or not it is first or second
degree:
s( 43, &4' P first degree when planned and deli"erate P see also host of offences in
su"sections &4' P &L(4' that if com"ined with a culpa"le homicide ma%e it murder(
s( 43,&<' # all murder that is not first degree is second degree
R. v. /ette 5$>>"8 9CC
'acts 1ccused charged with first degree murder after tying up a 6? year old woman and leaving
her to asphyxiate on the %ed. 9he died $4&47 minutes after he left. +n an FCM. undercover sting
operation# accused told police officer was involved in the ro%%ery and death. 1t trial# he claimed
that he had fa%ricated the admission. )estified that he had gone alone to the victim<s house only
with intent to %rea! and enter# that the %ac! door was open as though someone already had
%ro!en into the home# and that he left after finding the victim already dead. 1ccused convicted of
second degree murder. 1ppealed on %asis *ury was misdirected as to test of causation.
+ssue whether the *ury was misdirected as to the test of causation.
/udgment 'actual causation# as the term implies# is concerned with an in:uiry a%out how the
victim came to his or her death# in a medical# mechanical or physical sense# and with the
contri%ution of the accused to that result. Eegal causation is concerned with the :uestion of
whether the accused person should %e held responsi%le in law for the death that occurred. +n
determining whether legal causation is esta%lished the in:uiry is directed at the :uestion of
whether they should %e held criminally responsi%le for the conse:uences that occurred. ,hether
the terminology used for causation is 3%eyond de minimis4# 3significant contri%ution4 or
3su%stantial cause4 the standard of causation which this terminology see!s to articulate# within
the context of causation in homicide# is essentially the same. )rial *udges may find it prefera%le
to express the standard positively as a 3significant contri%uting cause4. Causation issues arise
more in manslaughter cases than in murder chargesI the conviction for second degree murder was
amply supported on the evidence and the *ury was correctly charged on the applica%le legal
re:uirements of causation.
Concurring on result (E<Heureux&0u%e) 0o not agree with the rephrasing of the standard of
causation for culpa%le homicide in Smithers. )here is a meaningful difference %etween
expressing the standard as 3a contri%uting cause that is not trivial or insignificant4 and expressing
it as a 3significant contri%uting cause4. )he causation test in Smithers should remain the law and
to rephrase it in the language of a 3significant contri%uting cause4 would draw the line at a
different place# thus drastically changing the law.
Ratio: Should change the &%ithers causation test of "eyond de %ini%is- to the positi1e
standard of a significant contri"uting cause-( Hot a change in the standard! 5ust eliminates
the Latin and the dou"le negati1e( Minority disagrees saying the effect of this change raises
the standard of causation(
*ewis v. R.
'acts 1ccused and )atlay were *ointly charged with murder of )atlay<s daughter and son in law.
1ccused admitted mailing pac!age for )atlay %ut denied !nowing it contained a %om%.
+ssue ,hether motive can %e ta!en into account.
/udgment (0ic!son /)
Ratio: Concepts of intent and moti1e are distinct( *ntent is concerned with e$ercise of free
will to use particular means to produce particular resultK moti1e precedes and induces the
e$ercise of the will( Crown merely had to pro1e that accused %new he was mailing a "om"(
R. v. Mulligan
'acts 1ccused repeatedly sta%%ed wife# causing her death. Claims he meant to cause %odily harm
that he !new was li!ely to cause death.
+ssue ,as the accused<s intention to cause death or to cause %odily harm that he !new was li!ely
to cause death- ,as the accused rec!less whether death ensued# there%y committing murder-
3)he circumstances and pro%a%le conse:uences of a man<s act are no more than evidence of his
intention. 'or this reason this court has often said that it is misleading to spea! of a man %eing
presumed always to intend the natural and pro%a%le conse:uences of his acts.4
Ratio: A manAs own intention is for him a su"5ecti1e state! 5ust as are his sensations of
pleasure or pain( =ut the state of another manAs mind! or of his digestion! is an o"5ecti1e
fact References to a su"5ecti1e test could lead to an idea that the e1idence of an accused
man as to his intent is more credi"le than his e1idence of other matters( *t is not: he may or
may not "e "elie1ed "y the 5ury( )hate1er he says! they may "e a"le to conclude from the
whole of the e1idence that "eyond dou"t he had a guilty mind and a guilty purpose( =ut
always ha1e the :uestions are what did he in fact %now! foresee! e$pect! intend-
R. v. Michael (+C&CE199 Feference) P Mother poisoned %ottle# %ut given to %a%y %y another
innocent child
3Causation4 & cts o+ innocent agents that break the chain o+ causation
Ratio: An innocent agent will HOT "rea% the chain of causation(
(9upp @verhead# pg. 47K)
6B) Rules that PR&,&/T a break in the chain o+ causation
". 3)hin s!ull rule4 P .hysical L 9mithersI .sychological L (laue
$. Bvents which are not 3supervening4 or 3intervening4 such as
a. Contri%utory negligence %y victim (1ncio# Creighton)
%. 0esperate acts %y victim trying to escape unless %eyond expectation or it is
unreasona%le (Fo%erts)
c. Fefusal %y victim to %e treated ((ingapore)
d. .oor medical treatment administered in good faith# where accused causes
dangerous %odily in*ury for which death results (9mithI s.$$? CC)
e. 1cts of innocent agents (Michael)
R. v. %arbottle 5"663 9CC8
ctus reus 30etermining causation4
'acts 1ccused# together with a companion# forci%ly confined woman. Companion sexually
assaulted her while accused watched. 1ccused held down victim<s legs to prevent her from
moving while companion strangled her. 1ccused convicted of "
st
degree murder at trial.
+ssue ,as the accused<s participation such that he could %e found guilty of "
st
degree murder
pursuant to s. $3"(?) of CC-
Held 0 guilty of "
st
degree murder. +mportant to remem%er that s. $3"(?) comes into play upon
sentencing# as the gravity of the crime and severity of sentence indicate a substantial and high
degree of %lameworthiness (%eyond that of murder).
#*ntroduction of strict Eirst 7egree Murder Test: su"stantial and integral cause of death-
&0 played a very active role in the !illing so meets this test of %lameworthiness
&Cote the difference %etween
&manslaughter causation (3%eyond the de minimus range4 in 9mithers)I and
&murder causation (3su%stantial and integral cause of death4) P demonstrates the
distinctions in the degree of causation re:uired for different homicide offences.
Ratio: An accused may only "e con1icted of Eirst degree murder if Crown esta"lishes
accused has committed an act or series of acts that must "e regarded as a su"stantial and
integral cause of the death(
Constructi1e Murder &no longer e$ists'
,11*/C27RT v. R
'acts Raill was going to do a ro%%ery at a pool hall wD his friend. 'riend had a firearm# Raill said +<m not
going in if you %ring a gun. His friend gave him the %ullets. Raill claims that he hid the %ullets in his glove
in %athroom. 0uring ro%%ery Raill hears a shot. 'riend shot someone in pool room 2 they died. 'riend
escapes# Raill caught 2 charged wD $
nd
degree murder.
+ssue +s s.$"3(d) of the CC inconsistent with the provisions of either s.K or s.""(d) of Charter-
Held Qes. 9ection $"3(d) is of no force or effect.
Feasons Eamer /
S.8968) gets ,aill +or all o++ences he commits : all those that would be reasonabl$
+oreseen. So he;d get convicted even though he had no intent : he didn;t shoot.
3,hatever the mininum mens rea for the act or the result may %e# there are certain
crimes where# %ecause of the special nature of the stigma attached to a conviction
thereof or the availa%le penalties# the .@'/ re:uire a mens rea reflecting the particular
nature of that crime. 9uch is theft and murder. )he punishment for murder is the most
severe in our society# and the stigma that attaches to a conviction for murder is
similarly extreme. +n addition# murder is distinguished from manslaughter only %y the
mental element wD respect to the death. +t is thus clear that there must %e some special
mental element with respect to the death %efore a culpa%le homicide can %e treated as
a murder. )hat special mental element gives rise to the moral %lameworthiness which
*ustifies the stigma and sentence attached to murder conviction. +<m presently of the
view that it is a .@'/ that a conviction for murder cannot rest on anything less than
proof %eyond a reasona%le dou%t of su%*ective foresight.4
9.$"3 will catch an accused who performs one of the acts in su%ss. 1 S 0 and there%y
causes a death %ut who otherwise would have %een ac:uitted of murder %ecause he
didn<t foresee and couldn<t reasona%ly have foreseen that death would %e li!ely to
result. 1s such# s.$"3 prima facie violates ss.K S ""(d). and is not saved %y s."
Feasons (Ea 'orest /. concurring)
+<m in agreement wD Eamer /. +ts sufficient to say that the mental element re:uired %y
s.$"3(d) of the CC is so remote from the intention specific to murder that a conviction
under that paragraph violates fund<l *ustice.
Ratio:
SCC struc% down all of the constructi1e murder pro1isions said constructi1e
murder is unconstitutional "ecause any offence that has as unremitting a penalty
as murder and the stigma of murder! has to ha1e S/=?.CT*B. fault(
+nterpreted the provisions of s.$"($) as inapplica%le to murder or attempted murder
All murder pro1isions re:uire pure su"5ecti1e intent or fault(
.rof<s Comments
,hat<s the implication- +f you can<t have @(/ fault for offences that are deeply
stigmatiJing# what follows- Qou can have @(/ fault for provisions that are C@)
deeply stigmatiJing.
Regulatory Offences
Strict Lia"ility 7emonstrate that ha1e e$ercised due diligence
R. v. Trans(ort Robert# R v. -illiam Cameron Trucking ($>>3) (9.C.C.)
'acts Constitutional challenge# s.K and s.""(d) of the a%solute lia%ility offence of 9. 74."(") of
the %ighwa$ Tra++ic ct which provides that the owner and operator of a commercial motor
vehicle are guilty of an offence where a wheel %ecomes detached from the vehicle while it is on a
highway.
+ssue ,hether it is open to the Eegislature to create an a%solute lia%ility offence where there is
no possi%ility of imprisonment or pro%ation if the defendant is convicted.
/udgment Co violation of s.""(d) %Dc legislature has defined an offence so as to eliminate an
element# or as here# a possi%le common law defence which is not prohi%ited in common law. Cot
convinced that prosecution for s.74." offence engages the !ind of exceptional state&induced
psychological stress that triggers security of the person under s.K. 1t most conviction of the
offence implies negligence# and the stigma attached does not fall under s.K.
Ratio: Legislature has a right to create a"solute lia"ility offence where there is no
possi"ility of imprisonment or pro"ation if the defendant is con1icted "ecause they ha1e the
right to eliminate an element or common law defence and "ecause the stigma attached to
such an offence only indicates negligence(
R. v. Burt
'acts (urt charged with motor vehicle offence. .olice saw motor vehicle causing excessive
noise in violation of the highway traffic act. Oave chase and found vehicle. (urt found near %ut
not in the vehicle.
/udgment .erson cannot %e convicted for an act that he or she didn<t commit
s.$?3 of CC was vicarious lia%ility offence# as a person could %e convicted even though he or she
too! no part in the offence# i.e. in the a%sence of both mens rea and actus reus.
Nnconstitutional %ecause of violating s.K 3the result is that the owner %ecomes punished for the
misconduct of another4
Ratio: Law unconstitutional "9c owner may "e punished for the misconduct of another
&1icarious lia"ility'(
Cote prof mentioned in class that we weren<t as!ed to read this case
R. v. Cha(lin
'acts Chaplin hunting for %irds in %aited conservation area# %ut didn<t !now place was %aited.
9he shot two %irds contrary to s. "4(") of the Migrator$ Birds Regulations
+ssue )rue crime or a regulatory offence- ,hat is the mens rea re:uirement-
Held 9he committed a regulatory offence.
Ratio: The factors listed "elow indicate that s(,+&,' of the Migratory =irds Regulations is
not a mens rea offence 3one would %e hard pressed to characterise the offence created %y s.
"4(")= as a ;crime in the true sense<. Riolation is punisha%le upon summary conviction and not
%y indictment. @ne must note the a%sence of the usual signals connoting mens rea# such as
;wilfully< or ;with intent<.4
& Cot an a%solute lia%ility offence# held to %e a strict lia%ility offence
& Cote that even though punisha%le on summary conviction# this is not necessarily an indication
that it is a true crime. )here are regulatory offences that are punisha%le %y indictment.
& 1lso have to loo! at overall statutory scheme. )his legislation is intended to regulate the way
we deal with migratory %irds. Cot a%solute prohi%ition# *ust regulation
& Court held that she acted in a duly diligent fashion.
& .rof says that court found due diligence to let her off. 0ue diligence isn<t always this easy to
prove# %ut the court was lenient in this case
Cit$ o+ *evis
'acts City appealing two separate ac:uittals operating a car wDo having paid registration fees
and driving wDo a license. Fespondents argue that provisions are strict lia%ility and they exercised
due diligence
/udgment Fegulatory offences and 9trict Eia%ility offences
Concept of diligence is "ased on the acceptance of a citiGenDs ci1ic duty to ta%e action
to find out what his or her o"ligations are( Passi1e ignorance is not a 1alid defence in
criminal law(
0efence of @fficially +nduced Brror P
0orgensen defined the constituent elements of the defence
)hat an error of law or of mixed law and fact was made
)hat the prn who committed the act considered the legal conse:uences of his actions
)hat the advice o%tained came from an appropriate official
)hat the advice was reasona%le
)hat the advice was erroneous
)hat the prn relied on tat advice in committing the act
0ecision )he offences in M must %e considered strict lia%ility offences# %ut the accused have not
shown that they exercised due diligence. Moreover# the company did not ma!e out the defence of
officially induced error.
Ratio: Most regulatory offences are presumed to "e strict lia"ility! re"utta"le "y the
language outlined in &ault &te. 'arie or other Parliamentary intention( The defence of due
diligence re:uires something more than passi1ity on the part of the accused(
R v. Tammage
'acts drowning in Mississauga river after the opening of a dam. @nt Hydro was resp for the
operation of the damn. )hey escaped lia%ility %y directed verdict %Dc the *udge found that the
decisions were not authoriJed decisions. )his case happened %efore the CC was updated and the
*udge found that if they were charged under the new law they wld li!ely %e found lia%le # p.
">K?&A. s. $$." ma!es the corp lia%le if the senior officers acted in a mar!ed departure from the
standards of the norm. 9. $$.$ if a senior officer# acting in the scope of their duty# had the mental
state re:uired or was aware that a non&senior employee has a criminal intent.
G9enior employeeG & a rep that plays an important role in the est of organiJation policy or is resp
for managing an important aspect of the orgHs activities (much more agg than directing mind and
will)
GorganiJationG & includes any organiJed activity carried on in common with other individuals.
(measure of how aggressive they wanted this leg to %e)
R. v. Sault Saint Marie
8True crimes re:uire %ens rea! strict lia"ility not! a"solute lia"ility no %ens rea or defence;
'acts City %uilt disposal site near stream when filled resulted in waste seeping into the streamI
city charged with discharging# or permitting to %e discharged# refuse into the pu%lic waterways
causing pollution pursuant to 2ntario -ater Resources ct
+ssues 9trict lia%ility or a%solute lia%ility-
Held Charge re:uired proof of mens rea# which on the facts would ac:uit defendant
Feasoning 0ic!son C./. P wording of provision implies re:uirement of intention# i.e. 3causing4
or 3permitting4I distinction %etween true crime and pu%lic welfare offenceI three categories of
offences
)o distinguish %etween these types the court examines 35t8he overall regulatory pattern adopted
%y the legislature# the su%*ect matter of the legislation# the importance of the penalty and the
precision of the language used will %e primary considerations in determining whether the offence
falls into the third category.4
R. v. Can Coil Thermal Riolation of s."4 of 2ccu(ational %ealth and Sa+et$ ct
8Eor legislation to sur1i1e court assumes strict lia"ility allowing defence of due diligence;
'acts Bmployee cut off fingers after manager of corporation removed guard from a machine
%ecause it 3created a haJard4.
+ssue (y not providing the defence of due diligence for s."4(")(a)# does the ct create an offence
of a%solute lia%ility-
Held @ffence must %e considered as strict lia%ility as a%solute lia%ility# coupled with possi%ility
of imprisonment# would violate the CharterI corporation must have right to demonstrate they
acted with due diligence.
Feasoning Bxcluding specifically s."4(")(a) from due diligence defence# s.3K($)# the ct appears
to create an a%solute lia%ility offence thus violating s.K of the Charter as it may attract term of
imprisonmentI to avoid the Charter (and save the provision of the ct) the section must %e read
as creating a strict lia%ility offence leaving the defence of due diligence availa%le to corporation.
0nowingly selling o"scene material without lawful 5ustification or
e$cuse
0orgensen v. R.
'acts /orgensen operated adult video store# in which undercover officers found tapes with
o%scene material. Charged with !nowingly selling o%scene material without lawful *ustification
or excuse# s. "A3($)(a) of CC. )/ found the material o%scene within s. "A3(7) of CC
& +ssue +s presence of 3!nowingly4 and its definition re:uire actual !nowledge
& Held 9CC reversed the conviction
& Ratio : *n order to con1ict for %nowingly- selling o"scene materials! the Crown must
show more than the accused had a general %nowledge of the nature of the film as a se$
film-( +n other cases# 3the o%scene material is plainly in view and its contents and !nowledge
of the specific nature of its contents can %e assumed to %e 3!nown4. )he same cannot %e said
concerning films# videos# and other media involving a collection of images and where it ta!es
some time and active steps to o%serve and 3!now< the contents4
& Cote that Crown doesn<t have to prove that accused !new that films met legal definition of
o%scenity Crown re:uired to pro1e "eyond a reasona"le dou"t retailerAs %nowledge
that materials "eing sold ha1e :ualities or contain specific scenes which render such
materials o"scene in law
Aiding and A"etting &Party to an Offence' s(4,&,' and &4'
Actus Reus Mens Rea
& 1ctually commits offenceI does or omits to
do anything for the purpose of aiding any
person to commit itI or a%ets any person in
committing it
& +ntention for offence to %e committed
& Knowledge that principal intended to commit
offence (%oggan)
&s.$"($) Common intention P ,here 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 who !new or ought to have !nown that the
commission of the offence would %e a pro%a%le conse:uence of carrying out the common
purpose is a party to the offence
R. v. %ibbert
'acts prosecuted for aiding in murder. Hi%%ert as!ed someone to come down from his
apartment. )hen the person came down and the people with whom Hi%%ert was waiting in front
of the apartment shot him. Hi%%ert claims that he had no choice# as they would have shot Hi%%ert
otherwise. Claims the intent was to lure the guy down# %ut that he didn<t do it for the purpose of
assisting them# %ut for the purpose of saving his life.
& +ssue How can purpose %e defined for the relevant provision-
& )rying to defend himself on the grounds that the person did not desire that the other person
should %e shot.
& Court defines purpose in two ways. +t is e:uated with 3desire4# and with 3immediate
intention4. /udgement see!s to interpret 3purpose4 in light of its meaning# as intended %y
.arliament# in section $"(")(%) of the Code.
& +t is determined that intent to assist is what is relevant# rather than why the accused intended
to assist. )he fact that he intended to assist %c he was intimidated doesn<t change the fact that
he intended to assist. /udge interprets the intimidation %y suggesting the defence of duress.
& Purpose is not the same as desire( *n this section! purpose is e:uated with *mmediate
intent-( Page +<+: A person who consciously performs an act %nowing the
conse:uences that will &with some degree of certainty' flow from it NintendsA these
conse:uences or causes them Non purposeA( Regardless of whether he or she desired
them(-
& Court stated that the 3purpose e:uals desire4 interpretation is pro%lematic# as it would
produce a%surd results. Oives the example of the accused %eing offered V">> to lend his car
for a ro%%ery# and lending the car. )he accused could argue that the purpose is to get the V">>
and not to assist in the ro%%ery# to which he is indifferent.
& Ratio : Purpose can in1ol1e as%ing what an accused desired in some sections! "ut not in
s( 4,&,'&"'(
& Cote Court stated that in some provisions# it is possi%le that a purpose could %e as!ing what
an accused desired
R v. Schachter ( police as!ed him if he !new where to get drugs. He too! him to s.o. who sold
him drugs. He argued that he was directing the officer to s.o. who cld sell the drugs# not aiding
the traffic!er in the sale. Comments Hi%%ert calls 9chachter into M %Dc in %ringing the %uyer and
seller together you are aiding the traffic!er# %ut that wld mean that any %uyer is also aiding and
a%etting in traffic!ing.
Dunlo( and S$lvester v. R 5"6K6 9CC8
'acts .<s showed up to a gang rape# stayed for a short while then left. )hey claim they did
nothing at all %ut %ring %eer. )./. erred in *ury charge %y giving $ instructions to %elieve the
claimants story and find them guiltyI or *ury could also find accused guilty as parties to the
offence under s. $"(") and ($) 5common intention8.
+ssue ,ere the accused parties to the crime- ,hat actions did they do to aid and a%et this crime-
Held 1ccused ac:uittedI no evidence they did anything to aid or a%etI s.$"($) easily dismissed#
no evidence they had any common intentionI for s.$"(")# more than *ust %eing present is re:uired
to satisfy the aiding and a%etting an offence.
Ratio: Mere presence at scene of a crime is not sufficient to ground culpa"ility( *t is an
error to con1ict accused in a"sence of any e1idence(
/ttering a Eorged 7ocument
R. v. Currie
'acts )he accused is as!ed to cash che:ue for some money. He cashes the che:ue that turns out
to %e fraudulently endorsed.
& +ssue ,as the accused wilfully %lind-
& Held )/ wrong in conviction for wilful %lindness
& Ratio : 7octrine of wilful "lindness: The rule is that if a party has his suspicion aroused
"ut then deli"erately omits to ma%e further en:uiries! "ecause he wishes to remain in
ignorance! he is deemed to ha1e %nowledge( *n other words! there is a suspicion which
the defendant deli"erately omits to turn into certain %nowledge-
& Cote court states that constructive !nowledge# or the concept that the accused ought to have
!nown something# does not have an application in criminal law and does not constitute
!nowledge for the purpose of criminal lia%ility. +t does not %y itself form the %asis for the
application of the doctrine of wilful %lindness.
& Conviction :uashed
Attempts s(4+&,'
Actus Reus Mens Rea
& 0oes# or omits to do anything
") Must go be$ond mere (re(aration and
%ecome an act of perpetration
$) 1ct of perpetration must not be too
remote
& +ntend to commit offence charged with
(su%*ective)
&s.4A3 outlines penalties for attempts
&s.$K6 attempted murder max. "4 yearsI and if using a firearm minimum 4 years
&+f a summary offence does not have a specific penalty go to s.K7K A months# or V$>>>
R. v. ncio 5"6748 (9CC)
8Attempts are independent offencesK %ens rea is intent to commit offence in :uestion;
'acts 1ccused entered home of Kurley with loaded shotgunI Kurley threw a chair at accused as
gun dischargedI shot missed %y three feetI the men struggled (wea!ly) until police arrived.
+ssue ,hat is the mental element re:uired for proof of offence of attempted murder-
Held Mens rea for attempted murder re:uires intention to !illI appeal dismissed.
Feasoning Crime of attempt developed separately from offence of murder. Mens rea for
attempts is the intent to commit the offence in :uestion! while actus reus is some step
towards the commission of offence attempted going "eyond mere preparation. *ntention to
commit attempted murder must include intention to %ill P one cannot intend to
unintentionally !ill anotherI offence of attempts are defined only in s.$4# while s.4$" outlines
penalties# and s.$$$ outlines separate penalty for attempted murder.
R. v. Deutsch 5"67A 9CC8'-here to draw the line between attem(ts and (re(aration<
'acts 1ccused operating %usiness recruits women to %e secretaries and they were told they were
expected to have sex with potential clients. Charged with attempting to procure women to
%ecome prostitutes# %ased on assumption 0 would get some money from women<s acts
+ssue ,hat is the distinction %etween an 3attempt4 and 3mere preparation4-
Held )he act to induce women to employment with large financial rewards constituted the actus
reus %ecause it was a clear and important step towards the commission of the offence. )he
inducement or persuasion was the decisive act in the procuring.
Ratio: The distinction "etween attempt and preparation comes down to a :ualitati1e
distinction
*t in1ol1es the relationship "etween the nature and :uality of the act! and the nature
and :uality of the co%plete offence(
Must also consider: relati1e pro$imity of the act in :uestion what would ha1e "een
the completed offence! in terms of time! location! and acts under control of accused
remaining to "e accomplished
)hen preparation to commit a crime is complete or nearly complete! the Nne$t step doneA
constitutes an actus reus sufficient to esta"lish an attempt
R. v. Mathe (/o!e)
'acts 0run! man went up to %an! teller# told her he had a gun and demanded money. ,al!ed
out %efore money was handed over telling her it was a *o!e. ,as apprehended later and charged
with attempted theft.
+ssue ,hether the accused had the re:uisite mens rea for the offence.
Ratio: *f transaction amounted to a 5o%e! there was no crime( *f! on the other hand he was
serious initially! "ut decided to a"andon the transaction! then there could "e a crime(
O"struction of ?ustice s(,3I&4'
Actus Reus Mens Rea
& )endency test ,ould accused<s actions have
had the tendency to o%struct *ustice-
& 9pecific intent offence must have intended
specific conse:uence of o%structing *ustice
R. v. Murra$ 5$>>> @nt.8
'acts .aul (ernardo<s lawyer (Murray) hiding sex tapes of his client. His expressed intention
was to use them to attac! Homol!a on witness stand# not to %uryDhide them forever.
+ssue 0id Murray have the mens rea to commit the offence of o%structing *ustice-
Held /udge could not dis%elieve accused (1F0. 9. "36 re:uires ;wilfully attempting< to o%struct
*ustice# imposing a mens rea to intend to o%struct. Crown did not prove that specific intention# so
not guilty.
Ratio: N)ilfully attemptsA interpreted "y the court as the specific intention to o"struct
5ustice! which was not intention of the 7( Therefore! the %ens rea was not found(
Eor actus reus of s(,3I! we use Tendency Test-: )ould his actions ha1e had the
tendency to o"struct 5usticeQ This element of the offence was found(
o Attempting to o"struct 5ustice is construed as the doing of an act which has
the tendenc! to per1ert or o"struct the course of 5ustice &the actus reus'(
Eor the %ens rea we ha1e a specific intent offence( A specific intent is a more precise
form of intent that is usually lin%ed to a purpose( *t is the intention to do an act for a
purpose! not 5ust the intent to do an act( The offence says that he must ha1e intended
a specific outcome &he must ha1e intended to o"struct 5ustice'( This was not found(
O"struction of Peace Officer
Actus Reus Mens Rea
& Fesist or o%struct peace officer# or anyone
aiding the officer# in execution of their duty
& Must wilfully intend to o%struct
)he accused must resist or o%struct a pu%lic officer or a peace officer in the execution of duty or
any person lawfully acting in aid of such an officer
Moore v. R
'acts Cop went after %icyclist who went through red lightI tried to stop %ut could not get name
+ssue ,hether the appellant had an o%ligation to stop at the re:uest of the police officer.
Held (icycle not vehicle in the CC or the Motor ,ehicle ct so no violation when the appellant
refused to give his name to the officer. However officer having seen him commit infraction was
under duty to attempt to identify wrongdoer and failure to identify himself did constitute an
o%struction of the police officer in the performance of his duties.
Ratio: *t is in the pu"lic interest to re:uire people to comply with police in1estigations "y
pro1iding their names when as%ed(
0issent Fe:uiring someone to give their name in all circumstances goes against the fundamental
common&law principles of the presumption of innocence and the privilege against self&
incrimination. Co duty at common law to identify oneself to police.
R. v. %a$es
'acts 1ppellant on motorcycle stopped at police road chec!. @fficers repeatedly as!ed him to
remove his helmet so they could inspect it and he refused repeatedly. Bventually arrested him for
o%structing *ustice so they could loo! for the safety stic!er on inside of helmet. 1ppellant
testified he refused to remove helmet %ecause he %elieved he was under no o%ligation to do so.
Held 1ppeal allowed conviction overturned.
.olice have authority under s.$"A to perform specific activities in the course of detention. (ut do
not re:uire specific statutory authority for all of their conduct during a s.$"A detention. .olice
have the right to examine helmets# %ut this power should not %e found under the ancillary powers
doctrineI instead they<re under s.7$ of H)1. 1ppellant did frustrate the police<s attempt# %ut the
police didn<t even try to use his power under s.7$(3) to write him up. 9ince he did not try to stop
them from writing him up he did not o%struct *ustice.
Ratio: Hot an omission to refuse to su"mit to in1estigation! only to o"struct the writing of
lawful penalties( Courts should not limit peopleAs rights! it should "e left to legislation(
)ilful Promotion of Fatred
1ctus Feus Mens Fea
Act of Accused
Communicating statements
Act of Accused
& 1ct of spea!ing or writing is
3willed4 or wilful
& +ntent to communicate
Conditions
& Cot in private conversation
Conditions
+ntent for communication not to %e in
private conversation
Conse:uences
& 9tatements are such as to promote
hatred against an identifia%le group
Conse:uences
& 3wilful4
Hote: meaning of wiful
a) intentional# not accidental act (applies solely to act of accused)
%) the desired result (accused wants to produce result& intention "a and "%)
c) the desired or inevita%le result (intention W$)
d) the act is 3intentional4 or 3rec!less4
R v. Bu44anga
'acts 0<s pu%lished a scandalous paper that said %ad things a%out 'ranco&@ntario people# even
tough they were 'ranco&@ntario themselves. )his was done to try to incite the community
together to act so a new school would %e %uilt. Charged with 9 3"6 ($) ,ilful promotion of
hatred.
+ssue ") 0oes this offence (s.3"6($)) include rec!lessness as part of its mens rea re:uirement- $)
Can the 0<s %e guilty when they had no intention to wilfully promote hatred-
Held
9. 3"6($) is limited to the intentional promotion of hatred# and does C@) include
rec!lessness. )his section is narrower than s. 3"6("). +t is designed to stri!e a %alance
%etween private speech and freedom of expression to allow for more freedom# unli!e
pu%lic speech in s.3"6(") which can incite violence and hatred.
%ow does the court come to this conclusion<
o i) (y loo!ing at the immediate section (s. 3"6(")) to read what parliaments
intention was.
)he general mens rea for crimes# where no mental element is mentioned# is
either intentional or rec!lessness.
However# the insertion of the word 3wilfully4 is s. 3"6($) shows
parliament<s intention to limit the offence to intentional promotion
Bvident that the use of the word in the previous section reflects their
intention P could have used the same language in %oth# %ut didn<t.
o ii) (y loo!ing at other sections in the CC which contain ;wilfully< to determine it
is limited to intention.
Bg. 9. 4$6(") CC wilfully causing an event to occur.
)HBFB'@FB# )/ erred in applying the wrong intention to find guilt. )/ focused on
intentional nature of the act (actus reus) rather than their actual +C)BC)+@C to produce
the conse:uences of promoting hatred (mens rea).
Fatio
)ilfully does not include rec%lessness in the conte$t of NwilfullyA promoting hatred(
)ilfully means an accused su"5ecti1ely communicates with the intention of
promoting hatred( Rec%lessness in s( 3,I&4' is not a1aila"le for an element! only
intention is(
This entire case hinges on whether they wanted to insight hatred to "ring
their community together &intention! so guilty'! OR
*f they only thought it was possi"le that they would insight hatred "ut they
were willing to ta%e that ris% to "ring their community together &rec%lessness!
so not guilty'(
R v. %arding P ,ilful promotion of hatred
87o not confuse concepts: wilful "lindness replaces %nowledge! rec%lessness replaces
intention;
&'acts 1ccused had we% site# phone message and pamphlets promoting hatred towards Muslims.
&Paccioco states court confused terms of wilful %lindness and rec!lessnessI the case was decided
incorrectly %ecause court applied wilful %lindness to intent rather than !nowledge.
&Correct application wilful %lindness replaces !nowledge# rec!lessness replaces intention as to
the conse:uences of offence.
&'ens rea re:uirement for wilful "lindness! accused must ha1e &,' su"5ecti1e realiGation! &4'
of the li%ely result of his actions and &3' deli"erately a1oid actual %nowledge while engaging
in or pursuing the acti1ity(
Predicate offences
1ctus Feus Mens Fea
1ct
& wtv the underlying act is# i.e. 1ssault or
Nnlawful 1ct
Conditions
& not a%solute lia%ility
& constitutionally valid
& act inherently dangerous
Conse:uences
----
1ct
)he mens rea for )H+9 offence must exist
9u%*ective.
Conditions
----
Conse:uences
Must %e @(/BC)+RB foreseea%ility of
%odily harm
& simple negligence is enough
& for criminal negligence must %e
.BC1E negligence or 3mar!ed
departure4
)HB 1C1EQ9+9
". +s there a predicate offense (ex. assault causing %odily harm)-
$. +f yes# the (a) mens rea for the underlying offense must exist (for assault)I 1C0
(%) the %odily harm must %e o%*ectively foreseea%le (the conse:uence).
.redicate offences
)he underlying offence must have a mens rea.
Mens rea has 3 prongs intention# rec!lessness# penal neg (ie mar!ed departure)
'or ex# criminal negligence +alls under (enal negligence. +t has an o%*ective mens rea.
'or ex# assault +alls under intention.
9o predicate offences can %e measured o%*ectively from that penal neg standard.
9N.. p?>7
/H7.RL6*H2 OEE.HC. COHS.R/.HC.
s(4L< Assault causing =odily harm
s(4LI /nlawful Act causing =odily harm
De&ousa
o act does not carry a%solute lia%ility
o act was inherently dangerous
o constitutionally valid
COHST*T/T*OHALL6 R.RA7 .L.M.HTS
Mens rea for )H+9 offence must exist must %e @(/BC)+RB
'@FB9BB1(+E+)Q
of %odily harm
s(444&M'&a' /nlawful Act causing 7eath
Creighton
must %e @(/BC)+RB
'@FB9BB1(+E+)Q
of %odily harm
6Mc*achlin 05 Ma)orit$ =
Constitution doesn;t
re>uire s$mmetr$)
& 9+M.EB negligence (3mere departure4) for producing conse:uences is
enough
Criminal Hegligence causing 7eath
2b)ective +ault causing 0eath
& Must %e .BC1E negligence or a 3mar!ed departure4
Must %e foreseea%le
that it can cause in*ury
R v. De Sou4a
Eacts: 1ppellant was charged with unlawfully causing %odily harm contrary to s.$A6 5unlawful
act causing %odily harm8. He was involved in a fight and threw a glass %ottle which hit a wall. 1
piece of glass from the %ottle in*ured a %ystander.
Feld: 9CC L The underlying unlawful act must "e at least o"5ecti1ely dangerous so that
"odily harm must "e o"5ecti1ely foreseea"le. 1lthough there must %e an element of personal
fault respecting a culpa%le aspect of the actus reus# it was not necessary to esta%lish fault with
respect to each conse:uence of an action. 9.$A6 complied with s.K of the Charter.
R v. CR&1G%T2/
Eacts: 1ppeal accused from conviction of manslaughter. ,ith the deceasedHs consent# the
accused in*ected cocaine into her forearm. 9he experienced cardiac arrest 2 died. 1ppellant
argued that the common law definition of unlawful act manslaughter contravened s.K of Charter.
Feld: 1ppeal dismissed. )he test for the mens rea of unlawful act manslaughter did not violate
s.K of the Charter. The mens rea re:uired is only o"5ecti1e foreseea"ility of the ris% of "odily
harm( )he standard was that of the reasona%le person in the circumstances of the accused and
this standard did not vary with the %ac!ground and pre&disposition of each accused# unless the
accused did not have the capacity to appreciate the nature of the ris! which the activity in
:uestion entailed.
Ealse Ad1ertising
R. v. -holesale Travel Grou( 1nc. 5"66" 9CF8
'acts )ravel agency charged with misleading advertising. .enalty is only one year# %ut is not
determinative# can %e an important factor (if penalty is ? years# can say true crime).
+ssue )rue crime vs. Fegulatory @ffence-
Held Fegulatory offence. 1vaila%ility of imprisonment as sanction of %reach of a statute is not of
a criminal offence.
Ratio:
Regulatory Offences 1( True Crime : o"5ecti1e of regulatory leg is to protect the
pu"lic or "road segments of the pu"lic from potentially ad1erse effects of otherwise
lawful acti1ityAs(
o *t in1ol1es a shift of emphasis from the protection of the indi1idual interests
and deterrence and punishment of acts in1ol1ing moral fault TO the
protection of pu"lic and societal interests(
o )hile criminal offences are usually designed to punish and condemn past!
inherently wrong acti1ity! regulatory measures are generally direct to the
pre1ention of future harm through the enforcement of minimum standards of
conduct and care(
Regulatory offence protect pu"lic and implement policy o"5ecti1es( Concept of fault
is "ased on reasona"le standard and does not imply moral "lameworthiness in same
manner as criminal fault(
/se of penalty is not enough to distinguish "etween true crimes and regulatory offences(
'ault element and 9trict Eia%ility negligence. 7oes not need to "e a mar%ed and
su"stantial departure( Feasona%leness of accused<s conduct should %e determined on the
%asis of the circumstances that a reasona%le person would have seen# not the circumstances
that the accused actually perceived. Mista%e of fact ha1e to "e "oth honest and reasona"le(
0oes placing the %urden of proof for strict lia%ility offences on the accused violate
presumption of innocence under 9 "" (d) of Charter. Qes %ut can %e *ustified. .articipants in
regulated activities are in the %est position to prove due diligence# since they possess re:uired
information.
Se$ual *nterference
R. v. D;ngelo
'acts 0efendant convicted of sexual interference# part of sentence was "> year pro%ation under
s."A". (Cot allowed in a pu%lic par! or swimming area where children under "4 could %e present#
not allowed employment wor!ing with !ids under "4) ,ent swimming in a pool owned %y a
clu%. He was a mem%er through his apartment complex.
+ssue ,hether the trial *udge erred in her interpretation and application of the words 3pu%lic
swimming area4 in s. "A" of the Criminal Code.
Held 'acts that should %e considered in determining if there is a pu%lic right to access# either
express or implied# include the num%er of people with access# the particular community#
ownership# limitations or restrictions on access# the conduct of owners and the manner in which
the place is used. Many of the users in all of these categories are children.
Ratio: Loo% at language and consider intent of Parliament! i(e( here to protect children(
Eor purpose of s(,L, the definition of pu"lic- pool needs to "e e$panded to include pools
and pu"lic areas not controlled "y the go1ernment( Purposi1e approach is really what is
important in defining pu"lic- in this case(
Accessory to Murder After the Eact
R. v. Duong
'acts Charged with %eing an accessory to murder after fact. 1c:uaintance lin!ed to mo% hit
shows up at door and as!s to hide there. 0uong admits to police that friend told him he was in
trou%le# %ut that accused said he didn<t want to !now anything more %Dc he !new he would %e in
trou%le for helping him hide.
+ssue ,hether 0uong was guilty with lia%ility imposed through wilful %lindness.
Held Crown must esta%lish that (") principal offender had done acts said to constitute the offence
of murder# ($) that accused !new that and# (3) with that !nowledge# received or assisted him in
order to ena%le him to escape punishment. ,here the Crown proves the existence of a fact in
issue and !nowledge of that fact is a component of the fault re:uirement of the crime charged#
wilful %lindness as to the existence of that fact is sufficient to esta%lish a culpa%le state of mind.
Ratio: Lia"ility "ased on wilful "lindness is su"5ecti1e( Actual suspicion! com"ined with a
conscious decision not to ma%e in:uiries which could confirm that suspicion! is e:uated in
the eyes of the criminal law with actual %nowledge( =oth are su"5ecti1e and "oth are
sufficiently "lameworthy to 5ustify the imposition of criminal lia"ility(
Possession of Stolen 2oods
R. v. ,inokuriv (1( C1)
'acts 1ccused manager of a pawn shop. (ought stolen goods# claimed he didn<t !now stolen.
+ssue ,hether this was an issue of rec!lessness or wilful %lindness-
Held Cannot su%stitute wilful %lindness for rec!lessness. ,hile wilful %lindness is imputed
!nowledge# rec!lessness is something greater than that. (Concern is that lowering standard of
lia%ility %y using rec!lessness instead of wilful %lindness)
Ratio: Cannot su"stitute wilful "lindness for rec%lessness( Cannot "e wilfully "lind without
"eing rec%less! howe1er you can "e rec%less without "eing wilfully "lind(
Eirearms Offences
1ctus Feus Mens Fea
1ct of 1ccused
Stores5 dis(la$s5 handles or trans(orts an$
+irearm
1ct of 1ccused
Co mens rea defence of due diligence
Conditions
1n a manner contrar$ to regulation5
paragraph ""A(")(g) )he governor in
council can ma!e regulations respecting the
storage# display# handling and
transportation of firearms
(use 39torage and )ransportation
Fegulations4)
Can store a firearm if
unloaded
rendered inopera%le %y secure loc!ing
device and stored in a container or
stored in a vault or safe
is not stored with cartridges unless they
are stored in a container as a%ove
-ithout law+ul e?cuse
Conditions
Mens rea +or strict liabilit$ o++ence
Cote failure to advert to a ris! does not
form part of the mens rea for this offence
(9millie)
Cote Cot a 3full mens rea4 %ecause of
regulatory aspect# that is that the person is
voluntarily operating in a regulated area
and is deemed to have notice of the
standard of care re:uired
R v. SM1**1& 5"6678 (C C1
'acts Charged with series of firearms offences. 3D? counts alleged violations of s.7A(3).
+ssue 0oes s.7A(3) violate s.K of the Charter-
Held s.7A(3) does C@) violate s.K of the Charter.
Feasons
offence in s.7A.3 Qou must store firearms in manner prescri%ed %y reg. +f you don<t
you<re charged under the code. Pro+ asks! Should we be creating crimes through
regulation< Crime is ultimate de(rivation o+ libert$.
Crown says it<s a mar!ed departure standard. 1nd its an a%solute lia%ility provision
%ecause no possi%ility to defend yourself P either you put loc! on or you didn<t
.ara $3 on p43$ 3evidence that the accused rendered the weapons inopera%le in some
way not provided %y the regulations is not a defense to the charge. + don<t agree that the
element of storing re:uires full mens rea. + do not thin! that it is possi%le to separate the
act of storing from the manner of storing.4 Pro+ has (roblems with that statement
)he regulations in :uestion specify particular action# to store handguns in accordance
with a certain standard. 'ailure to store in accordance wD the standard which constitutes
the offence. )he only duty placed upon the accused is to do what the regulations re:uire.
He cant avoid his duty %y proclaiming that he has found an e:ually safe# or even %etter
way to store his handguns
Ratio:
(C C1 says this is C@) a true crime *tAs a :uasi regulatory offence
The offence does not re:uire negligence as part of the actus reus.
*t does allow a defence of due diligence. )he accused may avoid lia%ility if he raises a
reasona%le dou%t that he too! reasona%le steps to prevent the event that forms the %asis of
the charge from happening. )he offence is thus one of strict lia%ility %earing the classic
features of a regulatory offence# or 3penal4 offence as descri%ed %y 9CC in ,holesale
)ravel
Court interprets this as strict lia"ility pro1ision and puts onus on accused to show
due diligence
Pro+ sa$s! -hat kind o+ mistakes will e?cul(ate strict liabilit$ o++ences it has to be a
R&S2/B*& mistake.
.rof<s Comments
,hat if you have a heart attac! %efore loc!ing your trigger loc!. .rof says that<s a
defenseU Qou had a due diligence while trying to loc! up the gun.
)he pro%lems are $ fold with saying it<s a strict lia%ility offence
o ") )he guy will have a criminal recordU
o $) throws into dou%t the CC P CC isn<t *ust a%out %ad people anymore %ecause
now regulatory activity is in there and we em%race negligence %ased offences
.rof says he is not sure that 9millie is right as a decisionU
)here aren<t a lot of cases that treat provisions in CC as strict lia%ility offences. (ut it<s a
trend that could develop.
Counselling Offences s( +L+
ACT/S R./S M.HS R.A
Act
1n act of counselling
the deliberate encouragement or active
inducement o+ the commission o+ a
criminal o++ence
3either intention or rec!lessness will
suffice4
Condition
Communicated to another person Knowledge or wilful %lindness
+n respect of the commission of an
offence
Conse:uence
Co crime is committed
&&&&
R. v. %amilton Counselling offences
8)hen counselling must ultimately intend for the offence counselled to "e committed;
'acts Hamilton had we%site selling files descri%ing how credit card num%ers in use %y others
could %e ac:uiredI charged with counselling offence contrary to s.4A4 %y deceit# falsehood# or
other fraudulent means defrauding credit card companies under s.37>(")(%)
+ssue 0id accused have the re:uisite mens rea for counselling fraud related to credit cards-
Held 9CC split# )/ made error in law new trial ordered.
Feasoning Ma*ority to satisfy actus reus the materials or statements must acti1ely induce or
ad1ocate! and do not merely descri"e! commission of an offence( 1s offence includes
rec!lessness# mens rea re:uires an accompanying intent or conscious disregard of the su%stantial
and un*ustified ris! inherent in the counselling# i.e. accused intended for offence to %e committed
or !nowingly counselled while aware of the ris! that offence was li!ely to %e committed.
7efinition of rec%lessness from &ansregret: one who! aware that there is danger that his
conduct could "ring a"out the result prohi"ited "y the criminal law! ne1ertheless persists!
despite the ris%in other words! the conduct of one who sees the ris% and who ta%es the
chance-I )/ erred in ac:uitting accused %y confusing his motive of ma!ing money with his
intention.
0issent 1grees correct test for counselling is (") an act of counselling# ($) communicated to
another# (3) in respect of the commission of an offence. 1lthough# actus reus not made out as
accused did not 3actively induce4 commission of offence# and mens rea not satisfied as accused
did not necessarily 3intend to persuade4 and mere rec!lessness is not enough. Cites R. v.
0aneteas (man threatens to !ill doctor to extort him) despite accused desiring words to %e ta!en
seriously# it does not esta%lish that they intend the commission of a crime.
/nlawful Act Causing =odily Farm &predicate offence'
R. v. DeSousa 5"66$ 9CC8
7nlaw+ul act causing harm ' The underl$ing o++ence must be constitutionall$ sound
'acts 0 attending a new years party when a fight %rea!s out and a %ottle is thrown %y 0. +t hits
the wall# %rea!ing into pieces. 1 fragment hits the victim in the eyeI 0 charged with s. $A6
(unlawful act causing harm). (efore trial# 0 %rings Charter motion declaring s. $A6 violates s. K.
+ssue +s s. $A6 unconstitutional under s. K %Dc it does not re:uire su%*ective foresight of all
conse:uences which comprise the actus reus of the offence- (Co symmetry-)
Held
)/ P s. $A6 created criminal responsi%ility for causing %odily harm %y way of an unlawful
act# which may violate a federal or provincial statute (including one of a%solute lia%ility).
)his contravened charter %Dc of possi%ility of imprisonment.
1ppeal Court P @verturned trial *udge.
9CC
o )o %e guilty of this crime# accused must have committed underlying unlawful
offence. )he harm caused must have sufficient causal connection to the underlying
offence committed.
o Nnderlying offence must contain a mental element# must C@) %e an a%solute
lia%ility offence.
o ;unlawful< in s.$A6 imports another aspect to the mens rea element P (N) in the
context of s.$A6 unlawful act must %e at least @(/BC)+RBEQ dangerous.
o )herefore# s. $A6 has two separate mental element aspects
"
st
Nnderlying offence must have constitutionally sufficient mental
elementI mens rea would have to meet constitutional standards.
$
nd
(odily harm caused %y the underlying unlawful offence must %e
reasona%ly foreseea%le (o%*ectively foreseea%le).
Ratio:
The %ens rea for the underlying offence &predicate offence' must "e sub)ective
The conse:uence must "e an ob)ective foreseea"ility of harm
S( 4LI has neither the stigma or criminal sanctions to re:uire a more demanding
mental element(
So for crimes with lower stigmaAs and penalties! su"5ecti1e %ens rea is re:uired in
symmetry for the actus reus(
So long as the predicate offence in1ol1es: a dangerous actK is not an offence of
a"solute lia"ilityK and is not unconstitutional #TF.H an offence can depend on the
predicate offence to find guilt(
Charter Challenges
BC Motor ,ehicle = Charter Challenge of 1%solute lia%ility offence
8A"solute lia"ility coupled with imprisonment is unconstitutional 1iolating s(<;
'acts .rovince wanted constitutional opinion of new driver licensing law permitting the
penaliJation of drivers for having expired licenses whether they had !nowledge of their status or
notI province was trying to stop people from driving and denying !nowledge of expired licenses.
+ssue 0oes the proposed law create an a%solute lia%ility offence violating s.K of the Charter-
Held Eaw unconstitutional# violating s.K# as it coupled a%solute lia%ility (i.e. no defence) with
possi%ilityDris! of imprisonment for offenders.
Feasoning 'ollowing the principle that the morally innocent should not %e punished# s.K
prohi%its the imposition of imprisonment in the a%sence of proof of mental faultDmens reaD3guilty
mind4 (s.K violations may only %e saved under s." in times of war or national emergencies).
A"solute lia"ility offences cannot carry with them the ris% of imprisonment! "ecause they
ha1e no defence and thus may catch the morally innocent(
7.E.HC.S
Boluntariness
Kilbride v. Lake 5"6A$ CX9C8 3Roluntariness# +nvoluntary acts negativing 1ctus Feus4
'acts 0 left vehicle with current ;fitness< stic!er on the windshield and when he returned# it was
not there# %ut a tic!et was.
+ssue +s the 0 guilty of operating a vehicle without a current warrant of fitness-
Held 0 ac:uitted %Dc event was not produced %y the appellant. Case argued from the a%sence of
mens rea# when really it was all a%out the actus reus not ever %eing completed. )he tic!et was
%ased on strict lia%ility# so !nowledge or intention are irrelevant regardless of what occurred. 0
voluntarily did nothing P the condition occurred without any act %y him# so it was involuntary.
@mission %ro!e the chain of causation.
Ratio: A person cannot "e held lia"le for an act or omission in the a"sence of a 1oluntary
act "y the accused (unless it was done or omitted in circumstances where there was some other
course open to him).
R v. &wab!
'acts )he accused was driving when the police followed him the passenger *umped out and ran
into a field. )here he was found wD a restricted gun. He plead guilty to possession. )he accused
was convicted at trial of %eing an occupant of a vehicle !nowing there was present an unlicensed#
restricted weapon. 1cc to the passengerHs testimony the gun was the accusedHs and he gave it to
him to dispose of. 1cc to the accused the gun %elonged to the passenger and he had no
!nowledge of it prior to his arrest.
+ssue 1t what point are you acting voluntarily-
/udgment )he F had to prove the coincidence of occupancy of the vehicle and the 1Hs
!nowledge of the weapon. 1lthough the section under which the 1 was charged contained no
explicit defence it must %e interpreted so as to exclude the possi%ility of conviction for what
would amount to an involuntary act.
R v. Th@rou? & the act must %e the voluntary act of the accused for the actus reus to exist.
*f one ac:uires %nowledge of an illegal weapon while in a mo1ing 1ehicle! it cannot "e
the law that criminal responsi"ility instantly attaches( There must "e some period of
time afforded to the person who has ac:uired that %nowledge to deal w9 the
situation(
+t is the conduct of the driver following the coincidence of occupancy and !nowledge that
counts# and if the driver acts with appropriate dispatch to get either the gun or himself out
of the vehicle# there is no voluntary act for the criminal law to punish.
0ecision Conviction set aside# new trial ordered.
Ratio: *n order for the act to "e 1oluntary the accused must ha1e a choice to either
ac:uiesce to the criminal "eha1iour or remo1e himself from participation.
R. v. -ol+e ("6K?)
'acts @wner of hotel hit man with phone after %eing suc!er punched %y him
/udgement Court found the accused not guilty as his act was an involuntary reflex
.olicy overlay this case demonstrates how concept of in1oluntary9refle$i1e act can empower
5udges to permit certain actions deemed trifling andDor not re:uiring of criminal sanction
R. v. R$an
'acts shot cler! when spoo!ed
Court found accused made immediate unconsidered reaction rather than unconscious reflexive
one
R v. *7C#1 ("6??)
'acts 1ccused operated car at a speed of ">&"? mph. Made right turn and his car s!idded over
onto the left or north side of the road# colliding with another car
+ssue 0o these facts render 0 guilty of an offence under s."$?(6) of the Rehicles 1ct- )here are
many sections under that 1ct that re:uire no mens rea & is this one of them-
Held Co. 0 1c:uitted.
Feasons 3+t<s clear that his car wasn<t on the right half of the road 2 that another car was
inconvenienced there%y. +t<s clear to me that he got onto the wrong side of the road %y an
involuntary act# caused %y the condition of the road. + thin! it was an involuntary act# for which
he isn<t to %lame.4
Ratio: A person who "y an in1oluntary act for which he isnAt to "lame gets onto the wrong
side of the road is not guilty under the section in :uestion(
7efence of Mental 7isorder
R v. Demers 5$>>48 9CC ( 0efence of Mental 0isorder)
'acts 1ccused had 0owns 9yndrome and was declared unfit to stand trial on charges of sexual
assault. 1s a result he sta$s in the s$stem until either becomes +it to stand trial or Crown +ails to
establish a (rima +acie case against him. 1ccused challenged the constitutional validity of the
provisions %Dc he is re:uired to have an annual fitness hearing and there are conditions on his
li%erty even though his condition will never improve.
+ssue ,hether the law was over%road and violated the accused<s s.K rights.
/udgment +n the case of a permanently unfit accused# trial is not possi%le and the o%*ective of
rendering the accused fit for trial did not apply. )he continued su%*ection of an unfit accused to
the criminal process# where it<s evident that he<ll never have capacity or a significant threat to
pu%lic safety# made the law o1er"road %Dc the means chosen did not min. impair the unfit
personHs li%erty and were not necessary to achieve the 9tateHs o%*ective.
0ecision 9CC struc! down aspect of fitness provision in %reach of s. K.
Ratio: )hen an accused is permanently restricted "y conditions placed and an ina"ility to
stand trial due to mental illness! the legislation imposing these restrictions is o1er"road(
Coo(er v. R ("6K6) 9CC
'acts 1ppellant# outpatient at a psychiatric hospital# accused of murdering an inpatient of the
facility after a regularly scheduled dance. )he pair went on a wal!# unsuccessfully attempted
intercourse and then he strangled her to death. 1t trial defence counsel did not plead defence of
insanity. )/ charged the *ury on insanity anyway.
+ssue ") ,hether a trial *udge has an o%ligation to charge on insanity in circumstances where an
accused has a lengthy psychiatric history %ut the medical evidence is that he does not suffer from
a 3disease of the mind4. $) ,hether there was evidence from which a properly charged *ury could
conclude# on a %alance of pro%a%ilities# that the appellant had a disease of the mind to an extend
that rendered him incapa%le of appreciating the nature and :uality of the act or !nowing that it
was wrong.
Held (0ic!son /) 1ccused had a history of %rea!s with reality# and a long history of unsta%le#
aggressive and inade:uate %ehaviour. ()hough doctor stated he did not have a disease of the
mind) @n the night in :uestion varied %etween stories of having !illed her# having only witnessed
a murder# and having not intended to !ill her. )rial /udge erred in not properly charging the *ury
with this defence# it should have %een %rought in as a defence as determining 3disease of the
mind4 is a legal and not medical :uestion. ,ould allow appeal and order new trial.
Ratio: *n a legal sense! disease of the mind-:
+( Any illness! disorder or a"normal condition
M( impairs the human mind and its functioning! e$cluding! howe1er! self#
induced states caused "y alcohol or drugs! as well as transitory mental
states such as hysteria or concussion(
L( disease must "e of such intensity as to render the accused incapa"le of
appreciating the nature and :uality of the 1iolent act or of %nowing
that it is wrong(
Appreciating is not 5ust cogniti1e! "ut also in1ol1es emotional awareness( To %now- the
nature and :uality may mean merely to "e aware of the physical act( To appreciate- may
in1ol1e estimation and understanding of its conse:uences(
R. v. 2ommen 5"6648 (9CC)
'acts 9uffering under paranoid delusion that a local union had assigned the victim a commission
to !ill her# the accused shot and !illed a young female friend (no motive). 1t trial %rought up
defence of insanity. ,as re*ected %Dc at time of !illing accused was li!ely capa%le of !nowing
that he was doing wrong according to society<s standards. 9u%*ective %elief that the act was not
wrong was not enough to assist him.
+ssue ,hether the defence of insanity should have %een allowed.
Held (full court) Qes. )he in:uiry is to focus not on general capacity to !now right from wrong#
%ut rather on the a%ility to !now that an accused lac!s the capacity to rationally decide whether
the act is right or wrong and hence to ma!e a rational choice a%out whether to do it or not.
Ratio: Test is whether the accusedAs mental disorder depri1ed him of the capacity to %now
his act was wrong "y the standards of the ordinary person(
R. v. &wain 5"66" 9CC8 P 2ld detention rules were unconstitutional5 struck down. lso sets out
-%&/ crown can bring +orth the accused;s insanit$ issue at trial.
Ratio:
,( The mandatory detention of an insane ac:uittee under old s( L,+&4' without any chance
of a hearing offended s( < of the Charter and was also ar"itrary( This was not 5ustified "y
section ,(
& 7ecision led to reform pac%age: Ho more insanity- terminology! "ut rather
mental disorder-
& Fearing "y either i' a 5udgeK or ii' a committee must occur within +M days(
& Must also "e a re1iew of the file at least once per year(
4( Crown can no longer adduce e1idence of insanity at trial at its own will( The Crown can
OHL6 independently raise the issue of insanity:
A' After the accused was found guiltyK OR
=' *f the accused had put his9her mental state in issue at trial! then the Crown
could adduce e1idence of insanity during trial(
R. v. Chaulk 5"66> 9CC8
Ratio: Measured o"5ecti1ely: As% if the accused %nows that society thin%s the act is
immoral(
*t is possi"le that a person may "e aware that is ordinarily wrong to commit a
crime "ut! "y reason of a disease of mind! "elie1es that it would "e right-
according to the ordinary morals of his society to commit the crime in a
particular conte$t( *n this situation! the accused would "e entitled to "e
ac:uitted "y reason of insanity(
Mental disorder must render the person incapa"le of %nowing the act is
wrong-( Hot 5ust legally wrong( Fa1e to go "eyond and ha1e to "e capa"le of
%nowing it is morally wrong(
Ruestion: 7oes society 5udge it to "e morally wrongK is he capa"le of %nowing
society considers it wrongQ Must not "e a"le to appreciate it is morally wrong
then ha1e "enefit of the test(
#This allows a 5udge to still con1ict in the face of a reasona"le dou"t &"9c of the re1erse onus
placed on the accused'
#This was su"5ect to a Charter challenge in Chaulk and it was found to "e 5ustified "y S(,(
R. v. -hittle 5"6648
'acts 0elusional man told police he had !illed manI police followed directions and found %odyI
when in custody accused contacted lawyer who advised him not to tal!I accused refused and
continued to tal! anyway feeling he was incapa%le of holding information %ac!
/udgement This mental state was not sufficient to constitute in1oluntariness and9or satisfy
the test for unfit to stand trial
#)eldsen v. R. 5"67"8 P Mc+ntyre# /.
&Psychopathic personality disorder! while a disease of the mind! alone is not sufficient to
allow the defence of mental disorder
&Bxemption from lia%ility %y reason of disease of the mind does not extend to one who has the
necessary understanding of the nature# character and conse:uences of the act# %ut merely lac!s
appropriate feelings for the victim or feelings of remorse or guilt for what he has done even
though such lac! of feeling stems from 3disease of the mind4
&1%sence of such feelings is a common characteristic of many persons who engage in repeated
and serious criminal conduct
R v. 2%
Eacts: @h went to a neigh%or<s house wDo her !ids. ,hen as!ed where !ids were# @h said 3+
hung themU4 Ceigh%or went over and saw !ids hanging dead. Ceigh%or went %ac! to tal! to @h#
she said 3+ can<t stay + have to go ta!e care of my !ids4.
Reasons:
9he understood the act# %ut she didn<t appreciate the conse:uences of death itself. Qou
must as!
") 0oes she !now the physical act she was engaging in-
o +n this case# yes.
$) Could she identify the physical act and its conse:uences-
o +n this case# yes for the act# %ut no for the conse:uences.
Automatism
.aulkner
'acts hus%and threatened that he was going to rape wife and said he en*oyed raping their
daughters. Felied on profound psych %low that caused her to %ehave in the extreme fashion
(!illed him)
Held Court ac:uitted on %asis of full automatism# not M0 automatism. 'elt that %low could
cause a lapse or %rea! with reality %Dc it was so profound
Rabe! v. R &,IJO' SCC
'acts Feclusive geology ma*or %efriend girl and thin!s they are in a relationship. ,hen she sets
him straight he hits her with a roc! that he too! from the la% and then tries to strangle her. Oym&
goer and prof intervene. (oth victim and accused are ta!en to the nurse. 1ll three o%serve the
accused to %e clammy# pale# glassy&eyed# daJed and confused. 9he survived %ut he didnHt
understand that.
+ssue ,as he automatistic or mentally diseased-
/udgment Fitchie /. &
G1utomatismG of the non&insane variety is defined in R v. # as a term used to descri%e
unconscious# involuntary %ehaviour# the state of a person who# though capa%le of action#
is not conscious of what he is doing. +t means an unconscious# involuntary act# where the
mind does not go with what is %eing done.
Bratt$ v. G o+ /orthern 1reland & )he general rule is that it is for the *udge as a M of law
to decide what constitutes a Gdisease of the mindG %ut that the M of whether or not the
facts in a given case disclose the existence of such a disease is a M to %e determined %y
the trier of fact.
1ny malfunctioning of the mind or mental disorder having its source primarily in some
su%*ective condition or wea!ness internal to the accused may %e a Gdisease of the mindG if
it prevents the accused from !nowing what he was doing# %ut transient distur%ances of
consciousness due to certain specific external factors do not fall wDin the concept of
disease of mind. .articular transient mental distur%ances may not# hwr# %e capa%le of
%eing properly categoriJed in relation to whether they constitute Gdisease of the mindG on
the %asis of a generaliJed statement and must %e decided on a case&%y&case %asis. )he
ordinary stresses and disappointments of life do not constitute an external cause
constituting an explanation for a malfunctioning of the mind which ta!es it out of the
category of a Gdisease of the mind.G )he emotional stress suffered %y the respondent as a
result of his disappointment with respect to Miss Y cannot %e said to %e an external factor
producing the automatism wDin the authorities# and the dissociative state must %e
considered as having its source primarily in the respondentHs psychological or emotional
ma!e&up. )he dissociative state in which the respondent was said to %e constituted a
Gdisease of the mind.G
Bxtraordinary external events might reasona%ly %e presumed to afect the average normal
person wDo reference to the ma!eup of the person exposed to such experience. )he
Gpsychological %lowG which caused the dissociative state was an external cause and the
trial *udge shld have held that if the respondent was in a dissociative state at the time he
struc! Miss Y he suffered from a Gdisease of the mind.G
0issent 0ic!son /. & 1utomatism is %Dw criminal resp and legal insanity. )he Gpsychological
%lowG type of automatism is sometimes called non&insane automatism to distinguish it from
Gdisease of the mind.G
+t may %e that the automatism relied on some Gdisease of the mindG %ut it is not
necessarily so. MHCaghten Fules can have no application unless there is some form of
Gdisease of the mindG which is not necessarily present in all cases of automatism.
+n the present case the F is asserting insanity in answer to the defence of automatism
raised %y the appellant. )he presumption of sanity runs in the appellantHs favour.
Co %urden of proof is imposed on an accused raising such defence %eyond pointing to
facts which indicate the existence of such a condition R v. Berger.
.olicy automatism is a defence easily feigned. +t is said the credi%ility of our criminal
*ustice system will %e severely strained if a person who has committed a violent act is
allowed an a%solute ac:uittal on a plea of automatism arising from a psychological %low.
,here a condition is transient# unli!ely to recur# not in need of treatment and not the
result of self&induced intoxication# the policy o%*ectives in finding such a person insane
are not served. 9uch a person is not a danger to himself or to society in generally.
Here there is no evidence of insanity and since s. "A(4) presumes sanity.
0ecision 1ppeal dismissed. Held to have a disease of the mind.
Ratio: Psychologically induced automatism "rings mental state into :uestion and the R can
then raise the mental disease defence(
*f the psychotic "rea% is caused "y smtg internal S mental diseaseK if e$ternal S
automatism(
*f the thing that caused the "rea% is such that a reasona"le person could cope w9o the
psychotic "rea% then it is smtg internal to the accused that caused this reaction and it is tE a
mental disease( *f it is such a profound e1ent that a reasona"le person wld ha1e a similar
reaction then it is automatism.
R v. PR#S 5"66$8 9CC 0ic!sons<s discussion of ongoing danger has some legs
Eacts: .ar!s was having personal pro%lems# ma!ing it hard for himto sleep. @ne night he fell
asleep# %ut a few hours later he got up and drove to his parent&in&laws far away. He too! crow %ar
out of his car# goes into their house# into their %edroom and !ills mom&in&law and in*ures father&
in&law. Ooes to police station# agitated 2 distressed# confesses. Charged with murder 2
attempted murder. .ar!s raised defence of sleepwal!ing at murder trial.
*ssue: +s sleepwal!ing properly classified as non&insane automatism# or does it stem from a
disease of the mind (there%y leaving only the defence of insanity for the accused)- (i.e. which
of .aciocco<s $ %oxes does sleepwal!ing go in-)
Feld:
)/
o 1c:uitted at murder trial %y *ury. )/ ruled that defence of sleepwal!ing should %e
left to *ury as non&insane automatism (entitling him to ac:uittal).
o 1c:uitted at attempted murder trial. )/ said he was re:uired to accept previous
*ury<s determination that the defence of sleepwal!ing was made out.
C1 Npheld )/
9CC Npheld )/.
Reasons:
? physicians all agreed that he was sleepwal!ing.
o Had no motive for attac!# had clinical indicia of sleepwal!er. 9leepwal!ing is
C@) regarded as an illness# it<s not a neurological condition. .pl who sleepwal!
are not fully conscious# don<t act with volition. )here<s no medical treatment
(%esides reducing stress 2 violent physical exercise)
o )here was no ris! that he would do this again.
Crown<s position was that this is a condition that is internal to .ar!s. His genetic ma!eup
and waves on test show it<s something internal that causes him to act in hypnotic way.
0efense counsel said these are e?ternal acts P you can go through entire life wDo
sleepwal!ing if you have these waves. +t was his stress from gam%ling# fight with wife#
sleep deprived P external situational factors caused this.
)he internal cause theory suggests that a condition stemming from the psychological or
emotional ma!eup of the accused# rather than some external factor# should lead to a
finding of insanity
)he continuing danger theory holds that any condition li!ely to present a recurring danger
to the pu%lic should %e treated as insanity.
o )he a%sence of a danger of recurrence will not automatically exclude the
possi%ility of a finding of insanity. +t<s *ust " of many factors to %e considered in
the policy phase of the disease of the mind in:uiry
9CC concludes that .ar!s must go into 1utomatism %ox (non&mental disorder)UUU
Ratio:
0ey thing court said P we will ma%e decision on the facts of this case( )e wonKt say
all sleepwal%ing goes into this "o$ or that one( *ts S*T/AT*OHAL(
,e will %e informed %y what happened in Rabe$ case.
o E*RST thing to loo% at is whether its e$ternal or internal
%ut in this case its not that importantI 3sleepwal!ing is a condition that is
not well suited to analysis under the internal cause theory4
o S.COH7L6 weAll loo% at continuing dangerA info(
+n this case the evidence was that he didn<t pose a threat in the futureU
this would incline us to move him into 1utomatism %ox (non&mental
disorder)
o TF*R7 well loo% at policy considerations
,' Eloodgates argumentT Bveryone will claim this to get ac:uittedU
Court wasn<t influenced %y this though cuJ we<ve recogniJed
automatism as a defence for a long time and sleepwal!ing as a
possi%le avenue and there wasn<t a single case anywhere that
succeeded in gaining automatism ac:uittal %ased on sleepwal!ing.
)his is not a floodgates pro%.
4' People will fa%e it
Bvidence in this case was that it is C@) hard to fa!e. Ceeded %rain
wave test and genetic history testsU )hese are indicia that you will
have sleepwal!ing propensity. +f you don<t have these propensities
chances of you getting ac:uitted on this defense are slim
3' what is the "urden of proof in these %inds of casesQ
,hat presumption operates in par!s advantage- ,hat does s.A$ of
CC say- ,ho has %urden of proof in mental disorder case-
Eaforest says that + have to start with presumption that person isn<t
mentally disordered. +f there<s enough evidence to re%ut
presumption + can put it into mental disorder defense %ox.
Comments:
)he .rof<s ratio 2 Ea'orest<s ratio were slightly different. Here is LaEorestAs ratio
'+F9) ,hen accused raises defense of non&insane automatism# the )/ must
determine whether the defense should %e left with the trier of fact. )his involves $
tas!s
"
st
L the )/ must determine whether there is some BR+0BCCB on the record to
support leaving the defence with the *ury. Bvidential %urden rests with
accused# mere assertion of the defence won<t suffice.
$
nd
L the )/ must consider whether the condition alleged is# in law# non&insane
automatism.
9BC@C0 the 3legal or policy4 component to the in:uiry
"
st
L +nternal cause theory
$
nd
L Continuing 0anger theory
3
rd
L 1utomatism is easily feigned
4
th
L 'loodgates
R. v. Stone 5"6668 9CC
'acts Hus%and insulted %y wife# experiences 3whooshing4 sensation (%y his account resulting in
loss of consciousness) fatally sta%%ing her 4K timesI he then went to Mexico
Held +nsults not sufficient to %e 3extraordinary external events4 that could lead to a
psychological %low causing a normal person to suffer dissociation (loss of voluntariness)
Fatio Boluntariness rather than consciousness is the %ey legal element of automatistic
"eha1iour. Re1ersed "arks regarding legal "urden in cases of auto%atis% burden %ust
be on the defence to prove involuntariness on a "alance of pro"a"ilities "ecause it is easily
feigned and all %nowledge of its occurrence rests with the accused
Cote Controversial %ecause with this presumption the court may convict even if there is some
evidence of automatism (%ut simply not enough on %alance of pro%a%ilities) %ecause of the
possi%ility that people may %e fa!ing it. 1lso held that *udge should evaluate defence %efore
putting it to *ury raising standard of air of reality test# (N) this was overturned in .ontaine
R. v. .ontaine
Eacts )he accused was a paranoid man and thought a hit was out for him. He was a chronic
weed user# twitchy# etc. @ne night# he shoots the wall# doors and windows of the house when
heard someone outside it# thin!ing it is the hit man# or 3nocturnal intruders4. )he next morning#
sees victim approaching# and shoots him fatally# as he thought that the victim was out to !ill him
due to an alleged 3contract on his head4. 1t trial# his defence was mental disorder automatism.
He testified that he had acted involuntarily at the time of the offence.
*ssue /ury direction in air of reality test# and validity of 9tone test.
Feld 9CC went %ac! on 9tone. )rial *udge was wrong in the *ury direction regarding the air of
reality. )he *udge should not try the air of reality test himself.
Ratio:
Stone! and the Eontaine Retreat
Step ,: the air of reality test
9tone<s attempts to toughen standard were overturned in 'ontaine. )hey were
+ncorporate %alance of pro%a%ilities into air of reality test (re*ected in 'ontaine paras ?K and 6>)
Fe:uire *udge to decide evaluate the strength of the decision (re*ected in 'ontaine para 73)
+0 of factors *udge must consider (re*ected 'ontaine para 7A&7K)
Fe:uire expert evidence& court doesn<t comment on this# pro%a%ly still need this
Step 4# )hich defence to lea1e# mental disorder or non#M7Q
9tone& presume M0 (s. "A($))
9ection "A($) starts with presumption of mental disorder# when the legislation says that
you have to %e presumed non&M0
Holistic test
+nternalDexternal& mere factor# %ut if internal# mental disorder applies
Continuing danger& mere factor# %ut if continuing danger# mental disorder applies
'loodgates# easily feigned# repute of administration of *ustice-
.rof this is also an issue. (asically considering what the pu%lic would thin!# rather than
%asing this decision on the law and legal principles. (astardache says that we can<t do it
%ecause it is popular# yet it is a factor that the 9tone court put into consideration
Step 3
(urden on accused on %alance of pro%a%ilities
+f mental disorder is appropriate defence# must prove disease of mind
*nto$ication
Director o+ Public Prosecutions v. B&RD 5"6$>8 H.E O1erruled(
+ssue manner in which a *ury should %e instructed on the relationship %tw intoxication and intent
Fatio e1idence of into$ication is to "e considered "y a 5ury only in those cases where its
effect was to render the accused *HCAPA=L. of forming the re:uisite intent
Comments
the (eard rules were incorporates into our law through Mac1s!ill v. the King 5"63"8 9CC
(also overruled now)
(eard was o1erruled in R v. Robinson where the 9CC held that the in:uiry should %e
into the 1C)N1E state of mind of the accused# not hisDher capacity.
R. v. Robinson 5"66A8 9CC
'acts +ntoxicated man struc! victim with a roc! then fatally sta%%ed him
+ssue +s capacity to commit offence in cases of intoxication sufficient# or is specific intent
re:uired-
Fatio Capacity alone is insufficient and unconstitutional! must ha1e intent Beard rules do
not apply. Proper charge is that 5ury consider whether e1idence of into$ication! along with
all other e1idence in the case! impacted on whether the accused possessed the re:uisite
specific intent. However# examining evidence of capacity can assist in esta%lishing intent#
capacity *ust cannot %e sufficient on its own to impose moral culpa%ility. Fegardless# there must
%e evidence that intoxication undermined mens rea# i.e. must %e some ;air of reality< to defence
Cote Most common use of intoxication is to reduce murder charges to manslaughter
R. v. Bernard 5"6778 (9CC)
'acts charge of sexual assault causing %odily harm. Complainant had %een forced onto sexual
assault and punched several times. Complainant testified accused had %een drin!ing %ut was a%le
to wal!# see# tal! clearly and put music on. 'riend of accused also said had %een drin!ing %ut was
coherent. .olice testified when arrived appeared to %e feeling effects of alcohol. 1ccused stated
drun!enness caused the attac!. )/ directed *ury that was no evidence of drun!enness except
accused<s statement and even if he were drun! it would %e no defence to the charge. ,as
convicted. C1 dismissed appeal saying sexual assault causing %odily harm was offence of
general intent so defence of drun!enness couldn<t apply.
+ssue ,hether sexual assault causing %odily harm (s.$4?.$(c)) is an offence of specific or
general intent# and whether evidence of self&induced drun!enness is relevant to issue of guilt or
innocence of offence of general intent.
Held (Mc+ntyre /) )he general intent offence is one in which the only intent involved relates
solely to the performance of the act in :uestion with no further ulterior intent or purpose. 1
specific intent offence is one which involves the performance of the actus reus coupled with an
intent or purpose going %eyond the mere performance of the :uestioned act. +f the policy %ehind
the present law is that society condemns those who# %y the voluntary consumption of alcohol#
render themselves incapa%le of self&control so that they will commit acts of violence causing
in*ury to their neigh%ours# then in my view no apology for the policy is needed. )he proposition
that the defence of drun!enness should %e extended to include all criminal charges is
unsustaina%le.
Mental element of s.$4A.$(c) is simply to commit the assault# and causing %odily harm is *ust a
conse:uence. )herefore is a general intention offence. 9hould not loo! at drun!enness as a
defence for general intent %Dc *ust prevents people from relying on self&imposed ine%riation as a
factor showing an a%sence of any necessary intent. +f a person got so drun! they did not !now
what they were doing the rec!less %ehaviour in attaining that level of intoxication affords the
necessary evidence of the culpa%le mental condition. Cor is this determination a violation of s.K
of the Charter as it only intrudes on security of the person in terms of those who are not morally
innocent (having gotten drun!) so is sound policy. ,ould dismiss appeal.
(,ilson /) 1grees with Mc+ntyre. Clearly general intent even with drun!enness# was a%le to hide
a %loody towel and pillowcase from police. Co evidence of extreme intoxication verging on
insanity or automatism which would %e capa%le of negating minimal intent here. Nnli!e Mc+ntyre
doesn<t %elieve this is an a%solute offence where Crown is relieved of responsi%ility of proving
mental element. Co violation of s.""(d) %Dc Crown must still prove the accused applied force
intentionally and evidence of intoxication is withheld from the *ury only %Dc it is incapa%le of
raising a reasona%le dou%t. +t is :uite wrong to characteriJe the issue as whether the 3defence of
drun!enness4 should apply to this or that offence. ,hile this expression is commonly used# it
suggests that those who would otherwise %e lia%le for criminal conduct will escape %.c they were
drun!. +ssue is really whether the Crown should %e relieved of the usual %urden of proving the
re:uisite mental element for the offence# %Dc the accused was intoxicated. 9hould the *ury %e
entitled to assess all of the evidence relevant to intent and %e entitled to decide on the %asis of all
of the evidence whether the Crown has satisfied that %urden- *ear$ should %e overruled and
drun!enness should %e availa%le for all intent cases (left to the discretion of the *ury). 9ince there
was no reference made to the re:uirement that the Crown prove that the accused acted with the
re:uisite intent# it is fatal to the conviction. 1ppeal should %e allowed and conviction overturned.
(Ea 'orest /) ,hen a common law rule is found to infringe upon a right or freedom guaranteed
%y the Charter# it must %e *ustified in the same way as legislative rules. Co ade:uate *ustification
here. Co su%stantial wrong occurred here however so agrees with Mc+ntyre /.
Ratio: *nto$ication should only "e a defence for specific intent offences(
Hote: in Daviault Ma5ority adopted )ilson compromise saying that e$treme into$ication
a%in to automatism or insanity had to "e a defence to general intent crimes under the
Charter "ut li%ened the defence to insanity and re1ersed the onus of proof(
R v. Daviault &,II+' SCC
'acts A? yDo woman sexually assaulted %y the accused# age A6. He as a chronic alcoholic and
that night %rought a 4> of %randy to her home upon her invitation & enough alcohol in his system
to put s.o. in a coma. )hey dran!# she fell asleep in her wheelchair. Eater# the accused threw her
into %ed an assaulted her. 9he fought %ac!. He got his shirt and left & claims no recollection of
what happened. )he defence claims that
.rocedural history )/ ac:uitted %Dc there was a reasona%le dou%t %Dc of his extreme intoxication#
applied Bernard. C1 convicted and held that self&induced intoxication resulting in automatism
was not a defence that was laid out in Bernard.
+ssue Can a state of drun!enness resem%le automatism and therefore constitute a defence to
general intent crimes-
/udgment Cory /.&
*ear$ rule violates ss. K and ""(d) of the Charter & the su%stitution of mens rea for self&induced
intoxication is not one that Gleads inexora%ly to the conclusion that the essential elements 5of the
main crime8 exists# with no other possi%ilities.G (,aillancourt) @nly if that is the case is the
su%stitution constitutionally accepta%le. Riolates s. K %Dc there may not %e any mens rea or
voluntarinessI violates s.""(d) %Dc the F does not have the %urden of esta%lishing mens rea of the
crime# *ust of the self&induced intoxication.
9elf&induced intoxication cannot supply the necessary lin! %Dw the mens rea and actus reas De
Sousa5 Therou?.
)he ,ilson approach
)he accused shld esta%lish on the (@. that he was so drun! as to %e automatistic. )he ct
recogniJed in R v. Chaulk that although it constituted a violation of the accusedHs rights under s.
""(d) of the Charter# such a %urden can %e *ustified under s. " %Dc the accused is the only one who
!nows how much he dran! and its effects on him. Bxpert evidence is re:uired to confirm that the
accused was pro%a%ly in a state a!in to automatism as a result of drin!ing.
+t wld e:ually infringe on the Charter if the accused were convicted wDo the re:uisite
voluntariness.
0issent 9opin!a &
)he fact that the *ear$ rule violates symmetry does not violate a poff*. Roluntariness is a general
rule not a constitutional re:uirement (Ma*ority totally disagreesU) Bernard was in obiter. )here is
no principled distinction %Dw specific and general intent crimes (he also discusses ulterior intent
crimes# i.e. those where intent in addition to the %asic intent is re:uired.) He approves of *ear$
and its underlying policy & the ct shld reaffirn the rule that voluntary intoxication is no defence to
general intent crimes. 9uggests .arliament come up with a list of specific intent crimes or ma!e
extreme intoxication an offence.
0ecision Conviction set asideI )rial de novo
Ratio: ,ilsonHs o%iter in Benard is interpreted into the reverse onus defence of extreme
intoxication. +t re:uires expert evidence that the accusedHs (1C pro%a%ly caused automatism.
Comments Cory says that the 2AConnor rule Gcannot %e followedG %Dc it goes against
specificDgeneral intent crimes# %ut then he goes on to *ustify it.
)here are facts omitted from the 9CC *udgment that are in the factum he did not seem drun!
during the assault nor when went home to his wife. He was spo!e coherently to the victim during
the assault# %ut called her a name different from her own or his wifeHs.
Le%k! ' held no air of reality to his air of defence. 9aid he was going to commit suicide and the
gun HaccidentallyH went off. He fought with his CME partner and his fall %ac! position was that he
was very drun!# even though he got drun! at a wedding and ppl did not thin! he was drun! and
he did not have that much alcohol in him. 9o moral of the story you need an air of reality.
Hecessity
R v. P&R# ## 0efence of Cecessity
Eacts: delivering drugs to 1las!a. 9torm hitU 9o had to come into Cdn watersU Oot arrested.
*ssue:
". 0id the )/ err in raising the issue of necessity to the *ury- /o
$. +f not# did the )/ err in charging the *ury on necessity- Bes
Feld: @rdered a new trial.
Reasons:
criminal theory recogniJes a disction %tw 3*ustifications4 and 3excuses4
1 *ustification challenges the wrongfulness of an action which technically constitutes a
crime.
o +e the innocent o%*ect of an assault who uses force to defend himself against his
assailant# or the Oood 9amaritan who commandeers a car and %rea!s speed limit
to rush accident victim to hospital these are all actors whose actions we
consider rightful# not wrongful
1n excuse concedes the wrongfulness of the action %ut asserts that the circumstances
under which it<s done are such that it ought not to %e attri%uted to the actor.
o )he perpetrator who<s incapa%le# owing to a disease of the mind# appreciating the
nature and conse:uences of his actionsI the person who la%ours under a mista!e of
factI the drun!ardI the sleepwal!er these are all actors whose criminal actions
we disapprove intensely# %ut whom in appropriate circumstances our law will not
punish
Ratio:
35the defence of necessity8 can go no further than to *ustify non&compliance in urgent
situations of clear 2 imminent peril when compliance wD the law is demonstra%ly
impossi%le4 6Morgentaler v. R C9DEFG SCC)
Cecessity should %e recogniJed as an excuse# which implies no vindication of the deeds of the
actor
)he criterion is the moral +CR@ENC)1F+CB99 of the wrongful action
Cegligence or imvolvment in criminal or immoral activity doesn<t disentitle the actor to the
excuse of necessity.I %ut actions or circumstances which indicate that the wrongful deed
was not truly involuntary do disentitle
,here the accused places %efore the Court sufficient evidence to raise the issue# the @CN9 +9
@C )HB CF@,C to meet it %eyond a reasona%le dou%t
.lements of defence of necessity:
o , # Must "e clear and *MM*H.HT P.R*L &situation so pressing that normal
human instincts cry out for action'
o 4 # Compliance with the law must "e demonstra"ly impossi"le P HO
R.ASOHA=L. L.2AL ALT.RHAT*B.
o 3 # There must "e proportionality "tw conse:uences of illegal act C not acting
o + # The necessitous circumstances must ha1e "een /HEORS..A=L. &or
una1oida"le'