Criminal Law 1

Criminal Law Course Summary..........................................................................................6

Introduction......................................................................................................................6
Actus Reus...................................................................................................................6
Mens Rea.....................................................................................................................6
AR + MR = Criminal Liability....................................................................................6
Manslaughter...............................................................................................................6
Source of Canadian Criminal Code.............................................................................6
Aims and Purposes of Punishment..................................................................................7
Theories of Justice.......................................................................................................7
Retributive Theories of Justice (focus: criminal)........................................................7
Utilitarian/Humanitarian Theories of Justice...............................................................7
C.S. Lewis: Critique of the Humanitarian Theory of Justice......................................7
R. v. Sweeney [1992] (P1120).....................................................................................8
R. v. C.A.M. [1996] (P1128).......................................................................................8
Dragoljub Cetkovic (1987)..........................................................................................8
Goldstein (1971, Handout)..........................................................................................9
Hart, H.L.A. (1968, Handout)......................................................................................9
Ryan (P105).................................................................................................................9
Morton (S+D P108).....................................................................................................9
Sources - Code v. Common Law...................................................................................10
R. v. Sedley [1663] (P1) “Crazy Flasher Guy Convicted On Morals”......................10
Frey v. Fedoruk (P3) “Peeping Tom Not a Criminal”..............................................10
Commonwealth of Penn. v. Mochan [1955] “Caller ID’d - Morality”.....................10
Criminal Code Sections Re: Harassment...................................................................10
Summary conviction..................................................................................................10
Professor J. Willis [1950] (P5) “Use the Common Law”..........................................11
Advantages of Narrow Statutes.................................................................................11
Interpretation - Strict Construction................................................................................12
Strict Construction.....................................................................................................12
Frey v. Fedoruk “Crimes Must be Written Down”....................................................12
Law Reform Commission: Categories of Offenses (P161).......................................12
R. v. Goulis (1981) 20 C.R. (3rd) 360 “Benefit of Doubt to Accused”....................12
R. v. Pare (1987) 2 S.C.R. 618 “Unlawful domination”...........................................12
R. v. Muchikekwanape [2002] 166 C.C.C. (3d) 144 “While committing”...............13
R. v. Mac [2002] “Strict Construction Only If Ambiguous”.....................................13
Innocence and Proof......................................................................................................14
Woolmington v. D.P.P [1935] “Burden of Proof Not for the Accused”...................14
Other Burden of Proof Cases.....................................................................................14
R. v. Osolin [1993] “Burden on Accused to Justify Proposed Defense”..................14
Daviault (Burden Shifts to the Accused)...................................................................14
Allen C.K. (P83)........................................................................................................15
Wigmore (P83) “Assumption of Innocence”.............................................................15
R. v. Lifchus (P87) “Courts Must Explain Reasonable Doubt”................................15
R. v. Starr [2001] “Courts Must Also Discuss Absolute Certainty”.........................15
R. v. Jackson [2002] “Timid Jurors Speech – Apparently Fine”...............................15
People v. Feldman [1947] “Poisoner Free, Improper Instructions”..........................15
Criminal Law 2

AR Interpreting Unlawful Acts.....................................................................................16

Williams, Glanville [1983] (P186) “Actus Reus Must Exist”...................................16
Hutt v. R. (P187) “Narrowly Define Ambiguous Words – Ex:Solicit”....................16
Freedom of Expression..............................................................................................16
R. v. di Giuseppe [2002] “Indecency, Prostitution Are Not Vague”.........................16
J.F. Stephen: Liberty, Fraternity and Equality, 2nd ed., 1874 (P167).........................17
John Stuart Mill: On Liberty, 1858 (P167)................................................................17
Canadian Committee on Corrections (Ouimet Report, 1969) (P167).......................17
Law Reform Commission, 1976 (P169)....................................................................17
N.D. Walker: Crime and Punishment in Britain, 1968 (P170)..................................17
Criminal Negligence (P171)......................................................................................17
AR Assault, Sexual Assault...........................................................................................18
Jobidon (P219) “Can’t consent to serious hurt or non-trivial harm”.........................18
R. v. Lamy [2002] “A Dildo Can be a Weapon”......................................................18
Bolduc and Bird v. R. [1967] (P236) “Watching is not an assault”..........................18
R. v. Cuerrier [1998] (P241) “Obligation to warn re: serious harm”........................19
Progression of Seriousness in Assault.......................................................................19
AR Breaking and Entering.............................................................................................19
Johnson v. R. [1977] (P248) “Entering = Breaking and Entering”...........................19
AR Public Disturbance..................................................................................................20
R. v. Lohnes [1992] (P253) “External Manifestation of Disturbance”.....................20
Ouillmet Report (Law Commission).........................................................................20
Criminal Negligence (P171)......................................................................................20
Sue Rodriguez “ALS - Suicide”.................................................................................20
AR Omissions................................................................................................................21
Anglo-American approach.........................................................................................21
Quebec Charter of Rights and Freedoms...................................................................21
Europe........................................................................................................................21
Exceptions..................................................................................................................21
People v. Beardsley (1907), 113 N.W. 1128 (Mich. S.C.) “Morphine Mistress: Only
moral duty”................................................................................................................21
Fagan v. Commissioner of Metropolitan Police, [1968] 3 All E.R. 442 (C.A.) (P269)
“Parked on Foot: Continuous act, not an omission”..................................................21
Moore v. R., [1979] 1 S.C.R. 195 (P274) “Duty to identify yourself”......................22
R. v. Miller, [1983] 1 All E.R. 978 (P272) “Set Fire to Mattress”............................22
Code Provisions Regarding Duty..............................................................................22
Reasons for high penalties for intent.........................................................................22
Annotations to S.129.................................................................................................23
Glanville Williams.....................................................................................................23
Thornton v. R, [1993] 2 S.C.R. 445 (P285) “Knowingly donating infected blood”..23
R. v. Browne (1997), 116 C.C.C. (3d) 183 (Ont. C.A.) (P286) “Swallowed cocaine:
Binding commitments”..............................................................................................23
AR Causation.................................................................................................................24
Identifying causes......................................................................................................24
Factual Causation.......................................................................................................24
Legal Causation Principles........................................................................................24
Criminal Law 3

R. v. Michael (1840), 9 C. & P. 356 (C.C.C.R.) (P308) “Child poisoned by

laudanum”..................................................................................................................25
Stephenson v. State (1932), 179 N.E. 633 “KKK leader convicted”.........................25
R. v. Smith, [1959] 2 All E.R. 193 (P333) “Bayonet wound was only one cause”. . .25
R. v. Kitching and Adams, [1976] 6 WWR 697 “Organ donation not legal cause of
death”.........................................................................................................................25
Smithers v. R., [1978] 1 S.C.R. 506 (P304) “Contributing Kick”.............................26
R. v. Harbottle, [1993] 3 S.C.R. 306 (P324) “M1: Substantial Cause”.....................26
R. v. Shanks (1997), 4 C.R. (5th) 79 (Ont. C.A.) (P316) “Shove of sick man was
more than trivial”.......................................................................................................26
R. v. Nette (2001), 158 C.C.C. (3d) 486 (e-reserve) “Objective foreseeability for
manslaughter”............................................................................................................27
Glanville Williams on Accountability.......................................................................27
MR Subjective vs. Objective.........................................................................................27
Subjective test............................................................................................................27
Objective test.............................................................................................................27
R. v. Ortt (1969), 6 C.R.N.S. 233 (P359) “Infer, don’t presume, intent from acts”. .27
R. v. Mulligan (1976), 26 C.R.N.S. 179 (P352) “Acts, utterances shed light on
intention”...................................................................................................................27
R. v. Hundal, [1993] 1 S.C.R. 867 (P350) “Subjectively, driver MUST have been
aware”........................................................................................................................28
Necessity....................................................................................................................28
MR vs. Strict/Absolute Liability....................................................................................28
Procedural Due Process.............................................................................................28
Substantive Due Process............................................................................................28
Beaver v. R., [1957] S.C.R. 531 (P360) “MR not required when pretending to sell
heroin”.......................................................................................................................28
Re S.94(2) Motor Vehicle Act (B.C.) (1968), 48 C.R. (3d) 289 (S.C.C.) (P409).......28
R. v. Pierce Fisheries, [1971] S.C.R. 5 (P368) “Statute does not require mens rea” 29
R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 (P380).....................................29
R. v. Chapin, [1979] 2 S.C.R. 121 (P403).................................................................29
R. v. Théroux, [1993] 2 S.C.R. 5 (P351) “MR for fraud: subjective”.......................29
MR Intention..................................................................................................................30
R. v. Steane, [1947] 1 K.B. 997 (P485) “Intent:Motive:Duress”...............................30
Duress........................................................................................................................30
Necessity....................................................................................................................30
R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.) (P493) “Anti-
French Pamphlets: Willful more certain than reckless”............................................30
Lewis v. R., [1979] 2 S.C.R. 821 (P479) “Kettle bomb: No Motive”........................31
R. v. Hibbert, [1995] 2 S.C.R. 973 (P489) “Forced to lure tenant to his death:
Duress”......................................................................................................................31
J. Hall “General Principles of Criminal Law” (P479) “Motive excluded”................31
MR and Murder.............................................................................................................31
Common Law Felony Murder...................................................................................31
Caruso [1927] 159 N.E. 390 “The smiling doctor”...................................................32
Rowe v. The King (1951), 100 C.C.C. 97 “Slippery when armed”...........................32
Criminal Law 4

R. v. Smith (1979), 51 C.C.C. (2d) 381 (Sask. C.A.) (P463) “Deerhunter”..............32

Simpson v. R. (1981), 20 C.R. (3d) 36 (P435) “Jury instructions for murder were too
objective”...................................................................................................................32
Vaillancourt v. R., [1987] 2 S.C.R. 636 (P438) “Pool hall robbery: Obj. Foresight of
Death”........................................................................................................................32
R. v. Nygaard and Schimmens (1989), 72 C.R. (3d) 257 (P468) “Collection Goons”
...................................................................................................................................33
R. v. Martineau, [1990] 2 S.C.R. 633 (P453) “Trailer robbery/murder: Subj.
Foresight of Death”....................................................................................................33
MR Recklessness, W. Blindness...................................................................................33
Re The Zamora, [1921] 1 A.C. 801...........................................................................33
Glanville Williams (P510).........................................................................................33
R. v. Blondin (1972), 2 C.C.C. (2d) 118 (B.C.C.A.) (P513) “Scuba tank of hash:
Recklessness is enough”............................................................................................34
R. v. Currie (1975), 24 C.C.C. (2d) 292 (Ont. C.A.) (P510) “Forged check: Jury
instructions too objective”.........................................................................................34
Sansregret v. R. (1985), 45 C.R. (3d) 193 (S.C.C.) (P508) “Terrorized girlfriend”. 34
R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. C.A.) (P516) “Heroin in luggage:
Recklessness NOT enough”......................................................................................35
R. v. Jorgensen, [1995] 4 S.C.R. 55 (P747)...............................................................35
R. v. Duong (1998), 15 C.R. (5th) 209 (P521) “Harboring fugitive: W. Blindness”..35
R. v. Vinokurov (2001), 156 C.C.C. (3d) 300 (e-reserve) “Stolen Property:
Knowledge required”.................................................................................................35
Stuart/Delisle.............................................................................................................35
R. v. Harding (2001), 160 C.C.C. (3rd) 225 (e-reserve) “Anti-Muslim pamphlets: W.
Blindness”..................................................................................................................35
MR Charter - Murder.....................................................................................................36
Vaillancourt v. R., [1987] 2 S.C.R. 636 (P438).........................................................36
MR Charter - Bodily Harm............................................................................................36
R. v. Desousa, [1992] 2 S.C.R. 944 (P571) “Bottle toss: Objective foreseeability of
bodily harm”..............................................................................................................36
MR Charter - Manslaughter...........................................................................................36
R. v. Creighton, [1993] 3 S.C.R. 3 (P579) “Cocaine injection: Obj. foreseeability of
bodily harm”..............................................................................................................36
R. v. Krushel (2000), 142 C.C.C. (3d) 1 (Ont. C.A.) (P586) “Harassment of Ex:
Foreseeability of Fear”..............................................................................................37
MR Charter - Aggravated Assault.................................................................................37
R. v. Godin, [1994] 2 S.C.R. 484 (P596) “Objective foreseeability of bodily harm”37
MR Criminal Negligence...............................................................................................37
Objective crimes........................................................................................................37
Criminal Negligence v. Civil Negligence..................................................................38
Commission (Positive Act) v. Omission Standard of Departure...............................38
R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392 (P545) “God says the boy doesn’t
need insulin: Marked departure”...............................................................................38
H.L.A. Hart (P598)....................................................................................................38
Criminal Law 5

Waite v. R., [1989] 1 S.C.R. 1436 (P559) “Playing chicken w. wagon: Too
subjective”.................................................................................................................38
R. v. Creighton, [1993] 3 S.C.R. 3 (P563) “Coke injection: Objective, Mrk.
Departure”..................................................................................................................39
Meat Example:...........................................................................................................39
Criminal Law 6

Criminal Law Course Summary

Introduction
Actus Reus
 The actions of a crime.

Mens Rea
 A guilty mind
 States of mind
o criminal intent (meaning to cause a crime)
o recklessness (acting with knowledge of risk)
o willful blindness
o criminal negligence
 Self defense involves actus reus without mens rea

AR + MR = Criminal Liability

Manslaughter
 Unlawful act manslaughter
o Death caused while committing an unlawful act
o Example: Smithers kicks Nettle - Assault caused death.
o Example: Jobidon kills man during consensual fistfight. Public Policy.
 Death caused through negligence.

Source of Canadian Criminal Code

 Canada's Criminal code based on India's code.
 Has only been revised once since 1892.
 Interpretation helped by case law.
Criminal Law 7

Aims and Purposes of Punishment

Theories of Justice
 Retributive
 Utilitarian/Humanitarian

Retributive Theories of Justice (focus: criminal)

 Kant
o It is self-evident that the desert of crime is punishment.
o ‘Juridical punishment can never be administered merely as a means for
promoting another good … For one man ought never to be dealt with
merely as a means subservient to the purpose of another.’
o If society fails to punish a criminal, it sanctions his principles and thereby
becomes particeps criminis
o Culpability of the offence
 Hegel
o Other factors to consider beyond offence (still retribution)

Utilitarian/Humanitarian Theories of Justice

 Utilitarianism (focus: society)
o Since punishment consists in the infliction of pain, it is, apart from its
consequences, an evil.
o Ends served by punishment: general deterrence, specific deterrence,
isolation, social peace, reformation, denunciation1
 Humanitarianism (focus: criminal)2
o Reformation of the criminal
 Holmes
o Retribution is ‘only vengeance in disguise.’
 Stephen
o The criminal law stands to the passion of vengeance in much the same
way as marriage to the sexual appetite (social peace)

C.S. Lewis: Critique of the Humanitarian Theory of Justice

 ‘I urge a return to the traditional or Retributive theory not solely, not even
primarily, in the interests of society, but in the interests of the criminal.’
 ‘My contention is that this doctrine, merciful thought it appears, really means that
each one of us, from the moment he breaks the law, is deprived of the rights of a
human being.’
 ‘Thus when we cease to consider what the criminal deserves and consider only
what will cure him or deter others, we have tacitly removed him from the sphere

1
Hart distinguishes between the characterization of certain types of conduct as offences (denunciation) and
punishment. [handout]
2
But see C.S. Lewis critique.
Criminal Law 8

of justice altogether; instead of a person, a subject of rights, we now have a mere

object, a patient, a ‘case.’’

R. v. Sweeney [1992] (P1120)

Ontario Court of Appeal, Wood J.A.
 20 yr-old caused death while driving drunk. Gets high sentence (4.5 years) which
is reduced on appeal. Proper accountability (aggravating and mitigating factors)
are more important than blind consistency.
 With regard to youthful offenders, the longer the sentence, the less likely
reformation is to be. High sentences can also backfire through societal rebellion,
indifference, lack of perspective, or the reluctance of juries to convict.
Wood J.A.
 ‘the moral culpability for the offence of impaired driving simpliciter is the same
as that of the same offence, committed by the same individual which causes either
death or bodily harm to an innocent victim … That is because, apart from the
personal circumstances relating to that offender, the moral culpability of both
offences lies in the intention to drive a motor vehicle after having voluntarily
consumed more alcohol than the law permits, together with a reckless disregard
for the foreseeable consequences of such driving.’
 ‘if retribution is to become a principle by which the severity of legal sanctions is
to be determined in this country, then let Parliament say so in language which is
clear and unequivocal and which can withstand close scrutiny under s.12 of the
Charter of Rights and Freedoms.’

R. v. C.A.M. [1996] (P1128)

Supreme Court of Canada
Lamer C.J.
 ‘In my view retribution is integrally woven into the existing principles of
sentencing in Canadian law through the fundamental requirement that a sentence
imposed be ‘just and appropriate’ under the circumstances.’
 ‘Vengeance, as I understand it, represents an uncalibrated act of harm upon
another, frequently motivated by emotion and anger, as a reprisal for harm
inflicted upon oneself by that person. Retribution in a criminal context, by
contrast, represents an objective, reasoned and measured determination of an
appropriate punishment which properly reflects the moral culpability of the
offender, having regard to the intentional risk-taking of the offender, the
consequential harm caused by the offender, and the normative character of the
offender’s conduct.’
 Lamer welcomes victim statements, to be used in assessing sentencing.
 S.718 Sentencing
 S.718(1) Fundamental principle of sentencing

Dragoljub Cetkovic (1987)

 Princeton genius from Yugoslavia gets depressed and places cyanide tea bag in
grocery store.
Criminal Law 9

 Charged in New Jersey with recklessly endangering life.

 Considerations in sentencing:
o Incapacitation
o Deterrence
 Can irrational people be deterred?
 Specific or general deterrence?
o Rehabilitation
o Retribution
o Lack of remorse, malice? (mens rea)

Goldstein (1971, Handout)

 Criminal law is only one of the many institutions designed to control human
behavior by discouraging it. It is a last resort.
 Ex: Decriminalizing pot. Still illegal, but perhaps fine instead of criminal record.

Hart, H.L.A. (1968, Handout)

 Instead of using criminal law for control/deterrence, use non-legal institutions,
such as education, churches, unions, etc.
 Condemning/denouncing behavior is done by sanction, criminalization, not by
punishment itself.

Ryan (P105)
 Punishment is an evil, to be used at a minimum and then only with justification.

Morton (S+D P108)

 Calls criminal trial a contemporary morality play. Tension about what people
should be responsible for. Ex: Dudley v. Stevens (Speluncean Explorers - Duty to
sacrifice life rather than commit murder.)
 Religion and criminal law serve the same moral purposes. External and internal
(conditioning) controls. Prevents crime by ordinary citizens through
conditioning, but does not have an effect on extraordinary citizens.
 (P118) Certainty of detection is more effective than a higher penalty. Ex: Capital
punishment has very little deterrent effect.
Criminal Law 10

Sources - Code v. Common Law

R. v. Sedley [1663] (P1) “Crazy Flasher Guy Convicted On Morals”
 Guy flashes from top of building, urinates in bottles and throws them down.
 Though there was no law against such behavior, Sedley was convicted through
the king’s mandate as keeper of the morals of the public.

Frey v. Fedoruk (P3) “Peeping Tom Not a Criminal”

 Frey was a peeping-tom caught outside a window, arrested and temporarily
imprisoned. The trial judge and B.C.C.A had decided that peeping could incite
violence and was therefore a criminal offense.
 Frey sues for false imprisonment, because peeping was not a crime. Note: After
this decision, loitering at night was made a crime under s.177.
 The Supreme Court doesn't think it is safe for judges to decide what constitutes a
crime, based on its potential to incite other crime. Crimes must be written down
or previously decided at common law to be punishable. Lots of acts (free speech,
adultery) might incite crimes, but are not crimes themselves.
 The Criminal Code now states (s.9) that only crimes written in acts can be
punished, and not those derived from common law precedent.

Commonwealth of Penn. v. Mochan [1955] “Caller ID’d - Morality”

Pennsylvania, 100 A.D. (2nd) 788
 Defendant telephoned a married woman at all hours, lewd language, repeated
harassment.
 Though there were no law or cases against it at the time, Mochan was punished by
the court, contrary to the Frey decision.
 According to the common law, whatever is injurious to the public morality is a
misdemeanor at common law.” Considering the broad nature of this rule, who
controls the judges and how does the public really know what's prohibited?

Criminal Code Sections Re: Harassment

 CC s.372(1) prohibits false messages.
 CC s.372(2) prohibits indecent phone calls. Summary conviction offense. (1972)
Enacted because the old s.264(1) (Uttering threats) was not relevant to Mochan.
 CC s.372(3) prohibits repeated phone calls without excuse.

Summary conviction
 < 2 yrs.
 Provincial penitentiary
 Subpoena instead of arrest warrant; a summons demanding that the accused
appear in court.
Criminal Law 11

Professor J. Willis [1950] (P5) “Use the Common Law”

 Dislikes Frey decision. Thinks new offenses that are contra bonos mores (against
good morals) should be punishable using common law sources.
 The Supreme Court has chosen a less elastic route of nullum crimen, nulla poena,
sine legel (no one will be punished for anything that is not expressly forbidden by
law.
 Note: Five years later, s.9 of the code fully excludes common law crimes, though
s.8 saves common law defenses.

Advantages of Narrow Statutes

 Narrow statutes can exclude some offenders from punishment, but would prevent
frivolous charges.
 The specific points might also outline certain very serious elements of a crime.
Criminal Law 12

Interpretation - Strict Construction

Strict Construction
 If language is ambiguous, it is interpreted in favor of the accused.

Digression on Attempts
 An attempt begins when preparations end. People are not punished simply for
mens rea, but mens mea IS emphasized.
 Pushing arrest closer to crime allows people time to change their minds.
Arresting earlier in process promotes a policy of enforcement.

Frey v. Fedoruk “Crimes Must be Written Down”

 Socially undesirable behavior is not a crime in itself. The courts are not entitled
to create crimes. Principle of legality requires that crimes be written down.
 S.177: defines prowling as a crime.
 S.2: defines night as 9pm-6am
 S.264: Harassment: Stalking should not be extended to this case, because that
was not the intention of the code.

Law Reform Commission: Categories of Offenses (P161)

 Felony: Called an indictable offense in Canada
 Misdemeanor: Called a summary conviction in Canada (approx. 6months)
 Hybrid offense: Combination of indictable offense and summary conviction.
 Function of the judge is to decide the law. Function of jury is to decide fact.

R. v. Goulis (1981) 20 C.R. (3rd) 360 “Benefit of Doubt to Accused”

Ontario Court of Appeal
 Strict construction discussion. If an ambiguous penal provision is reasonably
capable of two interpretations, the one more favorable to the accused must be
adopted.
 In the case of a hit and run, where the driver intentionally hit another car and then
drove off, the driver was not leaving the scene of an ‘accident’, because there was
no accident.

R. v. Pare (1987) 2 S.C.R. 618 “Unlawful domination”

 Teen (17) sexually assaults boy (7), then kills him 2 minutes later.
 Charge of 1st degree murder depends on the act being committed WHILE
committing an indecent assault. CC s.214.5(now s.231.5)
 Strict construction can be used with common sense towards rational results. Here,
in its strictest sense, it might have resulted in murder 2. Questions of freedom vs.
imprisonment (or death) require sensible use of the rule of strict construction.
 Wilson J. decided to consider both acts part of one criminal transaction. The
intent of strict construction was to soften excessive Draconian punishments,
Criminal Law 13

which doesn't apply here. The unlawful DOMINATION was constant. In

addition, waiting to commit the crime makes it deliberate and even more serious.
 Sklar thinks that the further away from the scene, the less the domination seems to
be apparent. Less s.231(5). More plain and deliberate (pre-meditated in U.S.A.).

R. v. Muchikekwanape [2002] 166 C.C.C. (3d) 144 “While committing”

Manitoba Court of Appeal
 Woman was found dead in river with lacerations in genital area. Expert evidence
found that lacerations occurred at or after death. The accused denied that he
killed her, and that if he did kill her then there was reasonable doubt as to the time
of the assault.
 Judge instructed the jury that if they thought the accused killed the deceased, he
would be guilty of 1st degree if he did it while committing sexual assault, even if
deceased had died during or before assault. Single continuous transaction. These
instructions were found to be correct. Assault and murder inextricably
intertwined.
 Dissenting judge points out that if she was already dead, he is guilty of
"interfering indecently with a dead body", which is no longer sexual assault.
Question - What if he didn't know she was dead? That would be an attempted
sexual assault, and enough for 1st degree murder under 231(5).

R. v. Mac [2002] “Strict Construction Only If Ambiguous”

Supreme Court
 Man is charged with possession of forger's tools. Intent to commit forgery with
tools ADAPTED to forgery. Adapted can mean suitable for or it can mean
modified for. Tools in question had not been modified, so he would not be guilty
under that interpretation.
 The court held that there was no ambiguity here because of the French version, so
strict construction could not be used. The French version of another article
(s.342.01) uses modifié, and in this article (s.369b) uses adapté. Here it must
mean ‘suitable for’, and Mac is therefore guilty.
 Sklar: Someone’s liberty is dependent on the translation department, which may
have chosen these words arbitrarily!
Criminal Law 14

Innocence and Proof

Woolmington v. D.P.P [1935] “Burden of Proof Not for the Accused”
House of Lords
 Wife left man. Man sawed off shotgun, went to wife's mother's house where he
argued with and shot wife. He claimed trying to scare her by threatening suicide,
when the gun went off accidentally.
 Judge advised the jury about intent. If he intended to kill her then he is guilty of
murder, otherwise it would be manslaughter or acquittal. He also placed the
burden of proof on the accused to refute or mitigate the murder charge,
assumption of malice.
 On appeal, it was decided that the judge had erred in placing the burden of proof
on the accused. Assumption of innocence, reasonable doubt.
 P81 "in the web of the English Common Law, the golden thread has been the
notion of innocent until proven guilty."

Other Burden of Proof Cases

 Greenacre case was the last precedent with regard to burden of proof. Until 1907
there was no proper appeal for criminal cases such as that.
 M'Naughten case was the first insanity defense. Exception in that the burden of
proof then falls on the accused.

R. v. Osolin [1993] “Burden on Accused to Justify Proposed Defense”

Supreme Court of Canada
 Accused charged with sexual assault. The trial judge refused to instruct the jury
on the accused chosen defense of "honest but mistaken belief in consent", because
the complainant was an “eager, though not active participant.”
 Accused does have some burden in this case, of proving that he has a valid
defense. He must produce some evidence that creates an air of reality about the
defense. Not a burden of proof, but an evidentiary burden.
 The judge (as gatekeeper) decides what evidence/defenses the jury should be
presented with. A reasonable jury might acquit on a proper defense.

Supreme Court can decide as a matter of policy that the burden of proof should shift to
the accused in any given defense.

Daviault (Burden Shifts to the Accused)

 Sexual assault, mutual drinking, woman was elderly and wheelchair-bound; the
accused was on top of her. He argued that he was so drunk that he did not know
what he was doing, that he was an automaton.
 In controversial new law, the court decided that this was a total absence of mens
rea and acquitted. The trial judge said he thought the accused was probably
guilty, but had reasonable doubt. The Supreme Court upheld the acquittal, but
Criminal Law 15

established that the burden of such a defense would rest on the accused from then
on.
 Exception to Woolmington, Osolin.

Allen C.K. (P83)

 Says property and freedom should both be protected with the same zeal.
 The jury doesn't need to be more careful in a criminal case than a civil case, but
must be more convinced. (Beyond a reasonable doubt) There is no presumption
of innocence in a civil case.
 Ex: 50.1% certain is about enough in civil cases vs. about 95% to 100% in
criminal cases.

Wigmore (P83) “Assumption of Innocence”

 Despite the fact that a man has been arrested and indicted, he walks into court
innocent. His arrest must not be held against him.

R. v. Lifchus (P87) “Courts Must Explain Reasonable Doubt”

 Law reform commission (P84) thought reasonable doubt did not need to be
explained to juries. Trial judge in this case followed that example by framing the
words ‘doubt’ and ‘reasonable’ as ordinary, everyday words.
 Supreme Court (Cory J.) disagreed and outlined a sample set of instructions that
might be told to a jury. Emphasized are that doubt must be based on reason,
connected to evidence, not based on sympathy or prejudice. Not possible to prove
until certainty, simply beyond reasonable doubt.

R. v. Starr [2001] “Courts Must Also Discuss Absolute Certainty”

 Iacobucci J. allowed the appeal, because the trial judge had failed to properly
instruct the jury on the difference between balance of probabilities and absolute
certainty. The trial judge had also said that the words ‘reasonable doubt’ have no
special connotation.
 L'Heureux-Dubé thought the trial judge had conformed to the criteria from R. v.
Lifchus (though Lifchus had not yet been decided), but had failed to discuss
absolute certainty vs. reasonable doubt.

R. v. Jackson [2002] “Timid Jurors Speech – Apparently Fine”

Ontario Court of Appeal, 163 C.C.C. (3d) 45
 Example of a questionable charge to a jury. "Timid jurors"

People v. Feldman [1947] “Poisoner Free, Improper Instructions”

Court of Appeal, 71 N.E. 2d 433
 Feldman got away with poisoning his wife and mother-in-law because of
improper instructions to jury.
Criminal Law 16

AR Interpreting Unlawful Acts

Williams, Glanville [1983] (P186) “Actus Reus Must Exist”
 Distinguishing between day-dream and fixed intention etc. requires actus reus.

Hutt v. R. (P187) “Narrowly Define Ambiguous Words – Ex:Solicit”

 Plainclothes policeman in an unmarked car stopped near prostitute. She smiled,
he smiled. She got in the car and once inside offered her services.
 s.195(1)
o Actus reus - soliciting in a public place
o Mens rea - for the purposes of prostitution
 Accused had not argued that a car is not a public place. The judge (Spence J.)
thought that this would have decided the case, but would not be considered.
Legislation was later changed to include cars.
 The meaning of 'solicit' was at issue. Dictionary (persistence), history of
legislation was used (thread of public inconvenience). The definition was
narrowed, making it extremely difficult to prosecute prostitutes until the
legislation was changed. In requiring pressing and persistent behavior, the
criminal law seeks to confront only behavior that inconveniences society.
 Appeal allowed.
 (P194) S.175 replaced by s.195, and then with s.213. The new legislation
changed the actus reus in the definition of public place and the mens rea in the
intent to solicit or enjoy. The john and the prostitute can now both be charged.
 Note: S.213 was challenged on 2b of the Charter (freedom of expression) in R.v.
Di Giuseppe. It was found in violation. In the prostitution reference case, it was
saved 5-4 by s.1 as a reasonable violation (the Oaks test.)

Freedom of Expression
 In Canada, almost everything is protected speech, whereas in the US, hard core
pornography (for example) is not protected speech.
 In Canada, s.1 saves many of the provisions that violate s.2b.

R. v. di Giuseppe [2002] “Indecency, Prostitution Are Not Vague”

Ontario Court of Appeal, 161 C.C.C. (3d) 425
 Offense: Keeping a common bawdy house, dancing and sexual conduct. S.197
defines a bawdy house. S.210 criminalizes keeping, residing in, transporting
someone to a, and procuring in a bawdy house.
 Language of a statute has to be clear enough that a reasonable person could
understand it. (Frey v. Fedoruk) Are the terms ‘acts of indecency’, or
‘prostitution’ vague enough to cause uncertainty and therefore in violation of s.7
of the Charter?
 Sharpe J.A. found that the indecency test should be one of community standards.
(see Butler case) Experts on standards (sociologists, academics) testify, courts
make the decision.
Criminal Law 17

 Ascertaining an area of risk: The owner of a bawdy house is aware that the
business may be construed as indecent. The vagueness of the statute is not an
issue. Held for the crown.
P167-173

J.F. Stephen: Liberty, Fraternity and Equality, 2nd ed., 1874 (P167)
 There are acts of wickedness so gross and outrageous that self-protection apart
they must be prevented as far as possible at any cost to the offender and punished
if they occur with exemplary severity.

John Stuart Mill: On Liberty, 1858 (P167)

 The only purpose for which power can rightfully be exercised over any member
of a civilized community against his will is to prevent harm to others.

Canadian Committee on Corrections (Ouimet Report, 1969) (P167)

 No act should be prescribed unless it is substantially damaging to society.
 No act should be criminal where it could be adequately controlled by other means.
 No law should do more damage than it was designed to prevent.

Echoes Goldstein and Hart. Notice that the language here is very strong, perhaps too
strong.

Law Reform Commission, 1976 (P169)

 The criminal law is a blunt and costly instrument. It should be of last resort and
stick to criminalizing things that are really wrongful. So violence and harmful
dishonesty should be criminalized but anything short of that should not be. Also
echoes Goldstein and Hart.

N.D. Walker: Crime and Punishment in Britain, 1968 (P170)

 Talks about borderline cases between the criminal and the civil law, most of
which involve sexual conduct. Adultery, for instance, is criminalized in certain
jurisdictions, notably in Italy. Homosexuality, abortion, prostitution, etc.
 Borderline crimes that are not sexual include attempted suicide (prosecuted in
England and Scotland until 1961) and negligent injury (apparently criminal in
Canada). Bigamy might be an example of crime which is not longer in need of
criminalization. Of course, the use of narcotics is a signal example.
 The discussion here really focuses on victimless crimes, which are hard to
enforce, because there are no complainants. Police have to seek out the crimes or
go under cover. Sklar thinks that this is not only costly, but brings justice into
disrepute.

Criminal Negligence (P171)

 An absence of a state of mind, not a crime in itself.
Criminal Law 18

AR Assault, Sexual Assault

Jobidon (P219) “Can’t consent to serious hurt or non-trivial harm”
 Barfight gets taken outside for consensual fight. The accused punches his
opponent many times in the head. It is decided that the first punch rendered the
opponent unconscious, and the others killed him.
 The judge decides that there was no intent to kill or inflict serious harm, and
Jobidon was not aware that his opponent was unconscious. Acquitted, then
convicted of manslaughter in the appeals court. (Killing during commission of an
unlawful act. s.222 - Homicide / Assault)
 Is consent vitiated in a fistfight? Was it assault under s.265?
 Are there common law factors?
o Sopinka J.: Stick to the criminal code. Court has overstepped its bounds.
S.9(a) says common law offenses are not criminal. Fistfighting is not a
crime. Parliament can make it so if they would like to. Trial judge may
have misconstrued evidence about the blows; if Jobidon knew about
unconsciousness then consent would have been vitiated, but the Supreme
Court does not have jurisdiction to interfere with decisions of fact. P235,
236.
o Gonthier (Majority) says:
 s.9 says there are no more common law offenses, but it IS
permissible to look to the common law in interpreting the code.
(P221)
 England applies common law
 s.8(3) says common law can be used for defense.
 Sklar agrees with Gonthier.
 Issues
o 9a
o actus reus and consent
o looks to authorities, policies (knife fight cases involved vitiated consent.
o Later cases have interpreted this case to mean: intending to cause serious
or non-trivial bodily harm makes this a mens rea crime. This avoids
people being imprisoned for life for accidental death in consensual fights.

R. v. Lamy [2002] “A Dildo Can be a Weapon”

Supreme Court of Canada, 162 C.C.C. (3rd) 353
 Sexual assault, dildo caused bodily harm. Was dildo a weapon?

Bolduc and Bird v. R. [1967] (P236) “Watching is not an assault”

Supreme Court of Canada
 Bolduc (obstetrician) invited his friend Bird to pretend to be a budding physician
and watch a gynecological exam. The patient consents to the extra “medical”
presence, only later finding out the truth. She pressed charges for assault.
Criminal Law 19

 Hall J. held that she consented to the procedure that would have occurred (the
nature and quality of the act) with or without Bird's presence. Bird is
characterized as a peeping tom (Frey v. Fedoruk.) Rex v. Harms was
distinguished because there the act of sexual intercourse was fraudulently passed
off as medical treatment. Bolduc was suspended, probably lost his license.
 Spence J. (dissent): The consent was to a procedure with doctors present. That
was not the case. She did not consent to being a spectacle. Spence ignores that
language of the statute by disassociating the nature and quality of the act and
going to s.230 (now s.265 - assault) In Hutt, Spence used narrow interpretation
and policy.
 Goldstein and Hart would advocate the majority decision in this case, feeling that
crim law is to be used as a last resort. (Ex: a disciplinary committee could have
been used. )

R. v. Cuerrier [1998] (P241) “Obligation to warn re: serious harm”

 Is HIV positive, is told to have only protected sex and to tell his partners about his
status. Cuerrier rejects advice and has sex with 2 people without telling them.
Charged under s.265.
 Did the crown have to prove that the women contracted HIV? No, because he
endangered their lives as described in s.268(1)
 This conduct was aggravated assault. Fraud vitiates consent. Use the common
law to 'inform' the concept of fraud. McLachlin doesn’t want to open the door to
all frauds. It’s not criminal to promise a fur coat to someone in exchange for sex?

Progression of Seriousness in Assault

 s.266 Assault (5 yrs)
 s.267 Assault w. weapon (10 yrs)
 s.268 Aggravated (14 yrs)
 s.269 Unlawful Bod. Harm (10 yrs)
 s.270 Assaulting Peace Officer (5 yrs)
 s.271 Sexual Assault (10 yrs)
 s.272 SA w. Weapon (14)
 s.273 Aggr. SA (Life)

The most common form of manslaughter is death in the course of an assault.

AR Breaking and Entering

Johnson v. R. [1977] (P248) “Entering = Breaking and Entering”
 Interaction of common law and code
 Words in law don't always mean the same as words on the street. Legal fictions
are created. Charged under s.348 "breaking and entering". Does this mean that
Johnson actually broke anything? No, an open window could mean a max 14
year sentence if he put his hand inside, max 7 years if he only attempts.
Criminal Law 20

 Johnson entered a partially constructed building through a temporary opening (not

yet a door.)
 Common law had definition of burglary before 1892. Entrance by any artifice
(imposter), by any collusion, by any chimney (permanent opening for necessary
purpose.) That which is not a ‘breaking’ is a fiction, a constructive breaking.
 S. 350 definition of entering.
 One interpretation is that breaking in the case of a temporary opening requires
that the accused open it further. Dickson calls this wrong; it would give the
skinny burglar advantage over the fat burglar. Appeal dimissed.

AR Public Disturbance
R. v. Lohnes [1992] (P253) “External Manifestation of Disturbance”
Supreme Court
 Argued similar to Hutt, definitions, origins, statutory construction, narrow
interpretation.
 Porter was a loud and obnoxious neighbor. Lohnes lost this cool one day and
yelled threats at him from his own home.
 Held for Lohnes. Because the code requires it to occur in a public place, an
external manifestation of 'disturbance' is required for charge. Mere emotional
upset is not sufficient, but distracting people from their work is enough. Balance
between the public's right to peace and tranquility, and the individual's right to
express him/herself.

Ouillmet Report (Law Commission)

 Any response would be preferable to imprisonment.
 It has been argued that victimless crimes (prostitution, consensual fistfights)
should not be prosecuted. Summary conviction offenses usually begin with a
summons demanding that the accused appear in court. (i.e. not even serious
enough for an arrest.) Police have to search for these crimes, going undercover
and often pitting themselves against society. The code has been altered (s.213) in
order to prosecute more successfully.

Criminal Negligence (P171)

 An absence of a state of mind, not a crime in itself.

Sue Rodriguez “ALS - Suicide”

 Attempt to have assisted suicide declared unconstitutional. Cruel and unusual
punishment, quality of death, and other reasons.
 She had ALS (Lou Gherig's disease) and wanted options for when she would want
help dying. Court split 5-4 against her.
Criminal Law 21

AR Omissions
Anglo-American approach
 We don't punish mere omissions, no matter how monstrous that might be.

Quebec Charter of Rights and Freedoms

 Not criminal but civil action can be brought by omissions.

Europe
 1 month to 3 years for omissions.

Exceptions
 Duty by contract (lifeguard).
 Parental duty.
 Duty by caregiver.

People v. Beardsley (1907), 113 N.W. 1128 (Mich. S.C.) “Morphine

Mistress: Only moral duty”
 Man has affair with woman (X) while his wife is away. X takes pills (morphine),
he knocks them from her hand and stomps on them. X passes out. Though he
must know that the pills were dangerous, he takes the woman downstairs and
leaves her there. The staff find her dead. Charge of manslaughter.
 Held that he only had a moral, not legal duty to care for her.
 Today, you have a civil duty to protect your invitees/guests, in s.215(1)c(i).
 Duties can arise through relationships: protector, parent, caregiver, etc.

Fagan v. Commissioner of Metropolitan Police, [1968] 3 All E.R. 442

(C.A.) (P269) “Parked on Foot: Continuous act, not an omission”
UK
 Guy drives car onto constable's foot and parks there. The constable yells for him
to get the car off the foot. Fagan tells him to fuck off and wait. Eventually,
Fagan complies. Fagan is charged with assault.
 Trial judges decide that he didn't intentionally drive onto the officer's foot, but
held that he was guilty of assault.
 The accused argued that the act (driving onto the foot) occurred without mens rea.
Principle of concurrence was not met. Mere omission cannot be an assault.
 The court holds that this was a continuous act, continued until the mens rea was
superimposed. Doing, middle (omission), end of the act (driving off).
 P270-271 the obiter about leaving the scene of an accident is important. No
continuous act -> no assault -> no manslaughter. (though there would be a charge
of leaving the scene.)
 Influence of British Cases
o Jobidon and Brown were influenced by British and Welsh cases (consent
issues).
Criminal Law 22

o Fagan and Miller will be influential as well, though British cases are
suspect because they have no code. All common law crimes. s.9a.

Moore v. R., [1979] 1 S.C.R. 195 (P274) “Duty to identify yourself”

 Cyclist seen going through light. Offense witnessed. (Pre-S.9(a))
 Spence (majority) held that the accused did indeed have a duty to stop and
identify himself to the policeman. S.129 obstruction. P276, 280 Duty of officer
to ask, duty of citizen to respond. Matter of public policy, balancing the
minimal personal interference with the protection of the public.
 Dickson (dissent): Duties can only arise by statute or by common law. (P277)
Ref: Rice v. Conolly (right to remain silent) distinguished because no offense was
witnessed by police. Moral/Social duty to cooperate is different than a legal duty.
 No common law duty, no statutory duty in this case. Reciprocal/implied duty.

R. v. Miller, [1983] 1 All E.R. 978 (P272) “Set Fire to Mattress”

UK
 Kipper (squatter) sets mattress on fire with cigarette while sleeping and drunk,
wakes up, goes into other room and goes back to sleep.
 Convicted of arson (S.433) using negligence to establish the crime.
 Ref: Fagan - Duty to act, continuous act.
 Court held that he who sets into motion series of events, becomes aware of those
events, is under a legal duty to try to alleviate damage to property. Mens Rea
(P274) English def. of recklessness?
 Can this be applied to the hit and run example from Fagan? Well, not if it's
distinguished because this is damage to property and not persons, arson and not
assault. The rule would have to be extended.
 Failure to prevent damages from a non-culpable act.

Code Provisions Regarding Duty

 S.215 - Duty to provide the necessaries of life. Courts have been very liberal in
their interpretation of this statute.
 S.216 - (not a criminal offense, but a definition, attached to 215) - Duty to use
reasonable skill and care when undertaking surgical or medical treatment.
 S.217 - (not a criminal offense, but a definition, attached to 215) - Undertaking
an act means finishing that act if omitting it might be dangerous to life.
 S.80 - Breach of duty (Interesting that the penalty can reach 14 years, even
without intent to cause harm. A message about taking care, some retribution.)
 S.79 - Duty of care re: explosive.
 S.263 - Duty to guard opening in ice.

Reasons for high penalties for intent

 Deterrence
 Mental blameworthiness (retribution, justification of penalty)

C.S. Lewis likes punishing people who are blameworthy, not deterring.
Criminal Law 23

Annotations to S.129
 Guthrie case - Officer must have evidence that a crime was committed in order to
require name and address of a person.
 Lavin (sp?) case. Man was compelled to hand over radar detection device.
 Moore is restricted to demanding name and address, and not other information.

Glanville Williams - You don't have to say nothin' to no one.

Thornton v. R, [1993] 2 S.C.R. 445 (P285) “Knowingly donating

infected blood”
 Giving blood to the red cross which is known to be infected is not an unlawful
act, but does go against a legal duty. There is no specific statute that makes sex
w. aids or donating blood w. aids a crime, but it is a crime to be careless with
people's lives by failing to discharge a legal duty.
 S.180 Nuisance - Unlawful act or failure to discharge a legal duty, endangers.
 A duty imposed by law (a legal duty) can include duties arising from common
law. Atkins' (Donaghue) neighbor principle (not to injure your neighbor.) This
is a very broad duty, yielding uncertainty in the law. It is also strange to use tort
law in a criminal context, bringing criminal sanctions instead of damages. P283
Must a duty only be found in a statute, or can they be drawn from common law?
 Three courts convict Thornton on three different theories.
o Trial judge says Thornton was involved in a medical procedure. (s.216)
o Court of appeal uses s.219, crim. negligence w. duty from common law
and s.180 (requires endangering of public, not just one person).
o Supreme Court likes s.216 (not for medical procedure, but lawful act w.
care.) They simply say it imposed a duty and then apply s.180.
 Violation of 9a? The CA judgment, while odd (tort) might still be followed in the
future. If common law duties can lead to criminal punishment, does this give rise
to too many omissions? Does the common law simply illuminate here, as it did in
Jobidon, or does it create a new offense?

Note: Drug offenses are not in the criminal code, but in the Narcotics Act. Specific
duties.

R. v. Browne (1997), 116 C.C.C. (3d) 183 (Ont. C.A.) (P286) “Swallowed
cocaine: Binding commitments”
 Drug dealer swallows a bag of cocaine and gets very sick. When Brown knew
that she was sick he told her that he would take her to the hospital and called
her a taxi, which takes almost 15 minutes to arrive. She is DOA at the hospital.
 Trial judge finds a legal duty under s.217 and uses it in s.219 (Death by criminal
negligence), s.220.
 Court of Appeal - S.217 An undertaking ranges from an assertion to a promise.
Max penalty is life imprisonment, so we interpret narrowly, only for binding
commitments. No undertaking here, says the CA. For that matter, there is no
evidence that the ambulance would have been any faster than the cab.
Criminal Law 24

AR Causation
Identifying causes
 Voluntary act or omission (legal duty?) of accused must cause prohibited result.
(P306-307)
 Causation required to be proved beyond a reasonable doubt.
 There can be many contributing causes, too many to count. One must choose
causes that are proximate, sensible and not remote.

Factual Causation
 Ex: Host puts arsenic (slow working, as opposed to cyanide) in x's martini. While
x is crossing the road, he faints from drunkedness and is run over. the only charge
can be attempted murder, because alcohol was the factual cause. But for the
arsenic, x would still have died.
 Ex: Same host has cramp from arsenic, kneels in street and is run over. Arsenic is
a factual cause with an intervening cause. Is it fair to hold the accused
responsible for the result? Glanville Williams would say it is not fair if the result
came from an unexected source.
 Based only on factual causation, we would hold all defendants responsible for
deaths, because but for the first act the death would not have occurred.

Legal Causation Principles

 "Thin Skull" - Take victim as you find him.
o Smithers (P310) (Faulty epiglottis, death from aspiration)
o Shanks (P316) (Incredibly sick old man, shove, heart attack.)
o Blaue (P317) (Jehovah’s witness refused blood transfusion)
 Innocent agent
o Michael (P308) (The child that poisoned the victim was an IA.)
 Intervening cause (ex: negligent medical treatment)
o Smith (P333) (Negligent med treatment is a foreseeable intervention.)
o Jordan (P335) (Patient would have lived without the med. treatment)
o Ethiopian python kills and eats unconscious robbery victim.
o Fire spread by wind (god) in Oz.
 Degree/extent of contributing cause required
o Smithers (P310) (Manslaughter: Contr. cause outside de minimis range.)
o Harbottle (P324) (Murder 1 – Substantial and integral cause.)
o Nette (Manslaughter, Murder 2: Significant contributing cause.)
 Statutory Causation Rules
o S.222(5): Culpable homicide – Causing death by:
 (c): causing someone to do something that causes their death.
 (d): willfully frightening children or sick people.
o S.224: Act or omission resulting in death, even if death was preventable.
o S.225: Causing bodily injury, death even if caused by med. treatment.
o S.226: Causing bodily injury resulting in (accelerating progress of) death.
Criminal Law 25

o S.227 (REPEALED) Comes from common law. Year and a day rule
existed because of a lack of medical proof of causation of death after a
long time. Today, we can keep people alive in comas, and also have better
forensic techniques.
o S.228: No culp. homicide by influence on the mind alone.

R. v. Michael (1840), 9 C. & P. 356 (C.C.C.R.) (P308) “Child poisoned

by laudanum”
UK
 Mother can't care for children and nurse leaves them alone with a bottle of
laudanum. One of the other young children gives the victim an excessive dose
causing death by poisoning. Lots of other causes here. Mother's act becomes the
purpose of liability.
 Civil negligence for leaving children alone.
 Since mother intended a lethal dose for the child, she is still guilty of murder.
 If you desire a result and do something which brings it about, even if it does
not happen the way you expect, you have still caused it.

Stephenson v. State (1932), 179 N.E. 633 “KKK leader convicted”

Indiana Sup. Ct.
 Head of Indiana KKK adbucted young woman and made her his prisoner for
sexual purposes. She committed suicide. He was charged with 2 nd degree murder
(would have been S.222(5)(c) in Canada), and found guilty.

R. v. Smith, [1959] 2 All E.R. 193 (P333) “Bayonet wound was only one
cause”
UK
 Military brawl resulted in bayonet wounds to one man, who was dropped twice on
the way to the aid station. His pierced lung was not noticed, leading to improper
treatment, such as AR. The victim died.
 Legal causation.
o If at the time of death the original would is still an operating and
substantial cause (even if other causes are also operating) death can be
said to be a result of the wound. (S.225)
o If the wound becomes part of the history because of the overwhelming
presence of another cause (terrible medical treatment), the second cause
is the legal cause.
 Appeal dismissed. Smith is guilty of murder, sentenced to life imprisonment.
 P335 Jordan should be distinguished on its facts. The wound in that case has
almost healed when a drug killed that victim.

R. v. Kitching and Adams, [1976] 6 WWR 697 “Organ donation not

legal cause of death”
 Manitoba man sustained fracture after being dropped on his head by two
bouncers. He ended up in a vegetative state in a hospital. Bouncer charged.
Criminal Law 26

 Held that causation was not broken by the resulting organ donation, even though
the act of removing the kidneys caused death.

Smithers v. R., [1978] 1 S.C.R. 506 (P304) “Contributing Kick”

 One hockey player taunts another with racial slurs. After the game, the taunted
player (Smithers) punched and kicked Cobbe, who fell down unconscious and
died from aspiration of his own vomit, because of a faulty epiglottis.
 Smithers is guilty. Temporal and medical evidence proved that the kick caused
the vomiting. It's too bad for Smithers that Cobbe had a faulty epiglottis (thin
skull rule.) Smithers was a contributing cause outside the de minimis range,
and need not be the sole or proximate cause to convict on manslaughter.
 Dickson (dissent): S.222(5)(c) Maybe Cobbe's stress caused the vomiting, and
not the kick. Death caused by fear is not manslaughter. The jury must decide
remoteness; if Cobbe had died because of the poor treatment received at the
hospital, the chain of causation would have been broken. (P313) But see s.225.

R. v. Harbottle, [1993] 3 S.C.R. 306 (P324) “M1: Substantial Cause”

 Harbottle watched sexual assault and held down victim’s legs during murder,
convicted of murder 1 under s.231(5) for forcible confinement and sexual assault.
 Murder 1 requires substantial cause,
 Requirements for conviction under S.231(5):
o Accused was guilty of the underlying crime (or attempt) of domination.
o Accused was guilty of murder (intent to kill or bodily harm likely to cause
death. See s. 229)
o Accused was a substantial (essential, integral) cause of death; Must have
played a very active (usually physical) role.
o No intervening act breaking connection of the accused to the death.
o Crimes of domination and murder were part of the same transaction.

R. v. Shanks (1997), 4 C.R. (5th) 79 (Ont. C.A.) (P316) “Shove of sick

man was more than trivial”
 Argument over cats leads to confrontation between an elderly heart attack and
stroke survivor who was overweight, had diabetes and high blood pressure, and
one of that man's neighbors. The elderly man was shoved to the ground and later
suffered a fatal heart attack.
 Unlawful act (assault) manslaughter is charged.
 Factual causation: Did the shove cause the heart attack? Doctors say it probably
would have happened anyway.
o Although the medical evidence provides reasonable doubt, the defendant
was convicted. The trial judge did not accept the medical evidence, and so
it was not available to the Court of Appeal. (Smithers: Medical evidence
does not have to be given much weight in causation.)
 Legal causation: Was the shove more than trivial (outside the de minimis range.)
After the Nette change to 'significant', there might not have been a conviction
here. Para 72: Trial judges have discretion in choosing the terminology?!
Criminal Law 27

Murder 2 is a less aggravated form of murder. The test belongs more in the manslaughter
range.

R. v. Nette (2001), 158 C.C.C. (3d) 486 (e-reserve) “Objective

foreseeability for manslaughter”
 Man breaks into house, hog-ties 95 year-old woman on bed (forcible
confinement?) and leaves. Woman fell off bed, was constricted at the throat and
suffocated on her dentures. Jury rejected 1st degree murder in favor of 2nd
degree murder. S.229 reckless, death is likely.
 Court rejected the ‘not insignificant’ test.
 "More than trivial" from Smithers is seen as too harsh considering the test is
objective foreseeability. The new test is “significant contributing cause outside
the de minimis range” for manslaughter and murder 2.

Glanville Williams on Accountability

 Concern about fairness when deciding accountability. How much influence did
one man's act have on the death, such that it can be attributed to that man?
 Ex: python case, left drowning in field case...

MR Subjective vs. Objective

Subjective test
 Crown must prove that the accused knew the risk that he was creating. If a driver
was distracted and lost track of speed, he would not be aware of the risk.

Objective test
 Crown must prove that the accused should have been aware of the risk.

R. v. Ortt (1969), 6 C.R.N.S. 233 (P359) “Infer, don’t presume, intent

from acts”
 Drawing an inference is a matter of common sense.
 Judges are often careless in using objective language in giving subjective
instructions to juries.
 Trial judge wrongly advised jury that they could presume intent from acts. The
presumption is supposed to be innocence, not guilt. The jury can INFER intent
from acts, but they cannot presume it. The more obvious a risk, the easier it is to
infer knowledge of that risk, and hence intention to proceed in the face of it.

R. v. Mulligan (1976), 26 C.R.N.S. 179 (P352) “Acts, utterances shed

light on intention”
 Accused repeatedly stabbed his wife, claimed he did not mean to cause her death.
 It is misleading to speak of a man being presumed to always intend the natural
and probably consequences of his acts. Subjective intent must be proved. Acts,
Criminal Law 28

utterances, and other circumstances may shed light on the intention of the
accused.

R. v. Hundal, [1993] 1 S.C.R. 867 (P350) “Subjectively, driver MUST

have been aware”
 Dangerous driving. Subjective test indicates that the driver MUST have been
aware of the risk he was creating.

Necessity
 May excuse a crime that had actus reus and mens rea.

MR vs. Strict/Absolute Liability

Procedural Due Process
 Ex: Fair trial, right to lawyer, no coerced confessions, trial by jury.

Substantive Due Process

 A statutory definition of a crime is unconstitutional. Courts have power to
oversee legislature, parliament.

Beaver v. R., [1957] S.C.R. 531 (P360) “MR not required when
pretending to sell heroin”
 3-2 decision, oft-quoted precedent.
 Though they were selling sugar of milk, they represented it to be heroin. The
statute catches this situation (or flushing of drugs) and does not require the drugs
to be present. At the time, possession and sale of narcotics were not common.
 Cartwright: Someone whose pharmacist accidentally gives them morphine would
be guilty of possession under Fauteux's theory. This crime needs mens rea. IT
is not a strict or absolute liability offense. The statute in this case is silent, but
there is a mandatory sentence here, so moral culpability should be required. All
criminal offenses require mens rea, subject to exceptions of subject matter (public
welfare) or statute. (P362)
 Fauteux (dissent): Sale of narcotics is a danger to public health and should be
treated as if mens rea were displaced.
 See R. v. Merritt

For crimes in the true sense (murder, burglary, arson), mens rea is subjective.

Re S.94(2) Motor Vehicle Act (B.C.) (1968), 48 C.R. (3d) 289 (S.C.C.)
(P409)
 BC Motor Vehicle statute, normally a public welfare offense.
 Minimum 7 day imprisonment for person who was driving with a
suspended/revoked license.
 P410: S.1 makes this an absolute liability offense, said the court.
Criminal Law 29

 First time that the court has struck down an act of parliament, a criminal
provision, on Charter grounds (s.7).
 Any time that imprisonment is a possibility, the offense must be at least strict
liability, if not mens rea. Otherwise, there would be charter violations.

R. v. Pierce Fisheries, [1971] S.C.R. 5 (P368) “Statute does not require

mens rea”
 Statute did not contain mens rea language with regard to this offense. The actus
reus is enough. Undersized lobsters were found in the warehouse.
 Cartwright (dissent): This won't deplete the lobster industry. (He did not dissent
in Beaver. He also judged Frey.)

R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 (P380)

 Leading case. City charged with polluting Cannon Creek with chemicals. This is
held to be a strict liability offense.
 Public welfare crimes: environmental, food sale, labor, conservation, sale of
liquor to minors, highway regulation infractions.
 Dickson divides offenses into three categories:
o Full mens rea offenses: When language indicates intent, offenses fall into
this category. These offenses are criminal (penalties, stigma.)
o Strict liability (presumed for public welfare): The crown proves actus
reus), a defense of reasonable due diligence is available, the burden of
which lies on the defendant to prove on a balance of probabilities (>50%).
 A person who is convicted does not have the stigma of being
convicted of a criminal offense. (P370)
 'Permit', 'cause' are strict liability words.
o Absolute liability: When the language of the legislature makes it clear,
public welfare offenses can fall into this category.
 Negligence can be imported to public welfare offenses, which are not in the true
sense criminal, which allows for a defense of due diligence.

R. v. Chapin, [1979] 2 S.C.R. 121 (P403)

 Chapin was duck hunting within 1/4 mile of bait, contrary to the Migratory Birds
Convention Act.
 Dickson found this a strict liability offense, based on Sault Ste. Marie. The
accused took all reasonable care in avoiding negligence and she was acquitted
without a new trial.

R. v. Théroux, [1993] 2 S.C.R. 5 (P351) “MR for fraud: subjective”

 Mens rea test is subjective unless the actus reus is negligence.
 Mens rea can be inferred from the act and circumstances.
Criminal Law 30

MR Intention
R. v. Steane, [1947] 1 K.B. 997 (P485) “Intent:Motive:Duress”
UK
 A British broadcaster in Germany was forced to broadcast propaganda. Initially
he refused, but was then beaten and his family was threatened. He was charged
by the British gov't for doing acts likely to assist the enemy with intent to assist
the enemy.
 Court found that knowing you will help the enemy does not imply desire to help
the enemy. Desire makes criminal intent. P488 Judge wrongly distinguishes
guilty from innocent intent. (assist the enemy, save family) (See Dickson in
Lewis for explanation) [N/A TO CDN CRIM LAW]
 Duress is a motive. Justified motives can be used as defense, in common law, but
not for treason.
 Steane may only be useful for treason.

Duress: Pressure applied by a person.

Necessity: Pressure applied by circumstances.

R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.)

(P493) “Anti-French Pamphlets: Willful more certain than reckless”
 Proposed construction of a French high school in Essex County. In order to
encourage sympathy for the French, defendants released an anti-French flyer.
Charged with willfully (i.e. with intent) promoting hatred. S.319.
 See Steane: Same mens rea? No duress here.
 Does willfully mean intentionally (P494) or recklessly?
o Beaver rule: If the statute is silent, there is no mens rea requirement. The
serious nature of the offense makes it necessary to require mens rea, but
recklessly can be used for a wide interpretation and easier prosecution.
 Martin J.A.: Mens rea = Intending the act + Intending the result. (P495)
o Willmott v. Atack (obstructing police)
o R. v. Burnell (setting fire to mattresses)
o Unless the statute specifies "willfully commits an act which causes", it
probably refers to both the act and consequence as willful. (P494)
 Recklessness (Subjective): a person foresees that his conduct may cause the
prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of
bringing it about (Glanville Williams). Contrast to the woman who blew up a
plane to kill her husband. She was not reckless (she was willful) wrt. the other
passengers, because she was quite certain that they would die.
 Intention: a person who foresees that a consequence is certain or substantially
certain to result from an act which he does in order to achieve some other
purpose, intends that consequence. Foresight of the certainty or moral certainty
of the consequence resulting from his conduct compels a conclusion that if he,
none the less, acted so as to produce it, then he decided to bring it about (albeit
regretfully), in order to achieve his ultimate purpose. His intention
Criminal Law 31

encompasses the means as well as [sic] his ultimate objective. The greater the
likelihood of the relevant consequences ensuing from the accused’s act, the easier
it is to draw the inference that he intended those consequences. The purpose of
this process, however, is to determine what the particular accused intended,
not to fix him with the intention that a reasonable person might be assumed to
have in the circumstances , where doubt exists as to the actual intention of the
accused.
 Willfulness (Subjective): the word “willfully” does not have a fixed meaning,
but I am satisfied that in the context of s.281.2(2) it means with the intention of
promoting hatred and does not include recklessness.
 Court held that the guy either intended to promote hatred or foresaw that it was
certain to result from the pamphlets. Intentions can be direct or indirect. The trial
judge erred in equating "intent to create controversy, furor, uproar" with "intent to
promote hatred". There must be a new trial to decide which intention existed,
since courts of appeal cannot decide matters of fact. (P500) Intent can be inferred
from objective circumstances.

Lewis v. R., [1979] 2 S.C.R. 821 (P479) “Kettle bomb: No Motive”

 Tatlay disapproved of his daughter and son-in-law. On behalf of Tatlay, Lewis
mailed a kettle rigged to blow up when plugged in. (Designed to kill with high
likelihood.) Lewis and Tatlay were both charged with murder.
 Defense for Lewis argued his lack of motive. (Payment had not been proven.)
 Motive not necessary in determining mens rea. Lewis is guilty with mens rea
if he knew the circumstances of the bomb. (Lewis had worked with explosives in
Tatlay's mine; there was circumstantial evidence that he made the bomb.)

R. v. Hibbert, [1995] 2 S.C.R. 973 (P489) “Forced to lure tenant to his

death: Duress”
 Hibbert was coerced into going to an apartment building and calling a man down
to the lobby to be shot.
 S.21(1)(b) accomplice to the crime of murder.
 Intention = Knowledge of consequences + Act which brings consequences.
 Duress allows a defense to an intended act.

J. Hall “General Principles of Criminal Law” (P479) “Motive excluded”

 Motive is excluded from mens rea. Morally neutral determination.

MR and Murder
Common Law Felony Murder
 Common law origins of felony murder are suspect. Unlawful act deaths were
split into murder and manslaughter. Eventually, only enumerated felonies
dangerous to life were included in s.230 as unlawful acts that would make for
murder when resulting in accidental deaths.
Criminal Law 32

Caruso [1927] 159 N.E. 390 “The smiling doctor”

US case
 Kills doctor that smiled nervously after arriving too late to save his son.
 Caruso had time to deliberate, but not to plan.

Rowe v. The King (1951), 100 C.C.C. 97 “Slippery when armed”

 Accused fled towards London from Windsor robbery. His taxi driver grew
suspicious and tried to phone the police while stopped at a gas station. Rowe
overheard the call and ordered everyone into the back room. The driver escaped
into a washroom through a wooden door, the accused (accidentally?) fired the
through the door and killed a different person whose presence was yet unknown
to the accused.
 S.260(a) (now s.230(d)) provided for a charge of murder:
o “if he means to inflict grievous bodily injury for the purpose of facilitating
the commission of any of the offences in this section mentioned, or the
flight of the offender upon the commission or attempted commission
thereof, and death ensues from such injury”
 The accused was not being pursued by the police at the time of the shooting.
 The court found that flight was subjective. (Flight if you think you’re chased).

R. v. Smith (1979), 51 C.C.C. (2d) 381 (Sask. C.A.) (P463) “Deerhunter”

 3 guys get drunk and go hunting, shooting mailboxes, etc. They end up at empty
barn and one guy hears a gunshot. Smith reloads his gun and fires at the running
victim, stands over him and kills him point blank.
 Judge instructed that there was no planning to kill until the time of the argument.
The question - did he plan? Jury convicts on murder 1 (planned and deliberate.)
 C.A. disagreed, finding deliberation but no planning. (Compare to Paré.)
 A plan requires more than just a deliberate decision to kill.

Simpson v. R. (1981), 20 C.R. (3d) 36 (P435) “Jury instructions for

murder were too objective”
 'Know or ought to know' allowed conviction for murder S.229 on objective
grounds, though murder requires subjective mens rea. Trial council never
objected. Here, a new trial is ordered because of the improper instructions to the
jury. (Improper instructions are the reason for many overturned decisions.)
 Crimes with high punishments or stigmas require proof of subjective mens rea.
 686(1)(b)(iii) In criminal cases, grounds for appeal are not waived simply because
objections were not made at the trial.

Vaillancourt v. R., [1987] 2 S.C.R. 636 (P438) “Pool hall robbery: Obj.
Foresight of Death”
 Unknown to the accused, his robbery accomplice had a loaded revolver. The
accomplice shot a pool hall patron and escaped. (If found, he would be charged
under 229(a)(i) or (ii) and 230(d). V was charged with murder 2 under 230(d).)
Criminal Law 33

 Note: The gun need not be loaded to establish an armed robbery under s.230(d).
 S.21(2) – Accomplice.
 S.213(d) (now S.230(d)) Death caused in commission of an unlawful act.
 Lamer prefers subjective test (P445 - highest stigma, penalty and degree of moral
blameworthiness) but settles for objective foreseeability of death as the
minimum requirement for constructive murder.
 S.230(d) struck down as being in violation of s.7 and 11(d) of the charter, not
justified under s.1 because it failed the minimal impairment test.

R. v. Nygaard and Schimmens (1989), 72 C.R. (3d) 257 (P468)

“Collection Goons”
 Enforcers whack man in forehead repeatedly with baseball bat for not paying
debts. Reckless as to whether or not death would ensue (s.229(a)(ii)) as well as
planned and deliberate (s.231(2)).
 Mens rea: Intention (planned and deliberate) to cause serious bodily harm that the
defendant knew was likely to cause death. Recklessness is enough to convict for
murder 1. Jury instructions were not wrong.
 Cory J.: Moral culpability in this case is not different than intent to kill.

R. v. Martineau, [1990] 2 S.C.R. 633 (P453) “Trailer robbery/murder:

Subj. Foresight of Death”
 Accomplice to trailer robbery is convicted of murder because his partner shot the
victims. The partner said "lady, say your prayers" before the woman was shot,
indicating that her life was in danger.
 Subjective foreseeability of death required for murder. Severe penalty should
be reserved for those who choose to intentionally cause death or who choose to
inflict bodily harm that they know is likely to cause death. S.230(a) and (c)
violate charter, are not justified by s.1 and are of no force or effect. The
provisions will remain in the code until changed or repealed by parliament.
 L'H-D (dissent) denied the stigma distinction between manslaughter and murder,
and advocated restraint in using the charter to strike down criminal legislation.
(accuses Lamer of trying to do as a judge what he could not do as pres. of the law
reform commission in striking down s.230(d))

MR Recklessness, W. Blindness
Re The Zamora, [1921] 1 A.C. 801
 Director of shipping company denied knowledge of contraband on ship.
 Knowledge may be dangerous because it may embarrass my denials, protest.

Glanville Williams (P510)

 Intent to cheat the administration of justice.
Criminal Law 34

R. v. Blondin (1972), 2 C.C.C. (2d) 118 (B.C.C.A.) (P513) “Scuba tank

of hash: Recklessness is enough”
 Comes back from Japan with scuba tank filled with hashish. Makes incriminating
statements in Vancouver, implying that he knew there was something illegal
going on.
 Awareness of risk has to relate to the specific crime in order to be sentenced
with life imprisonment, as opposed to importing other items, such as cameras.
Must prove Blondin reckless specifically wrt. importing narcotics. (P515)
New trial ordered.
 Recklessness, willful blindness and knowledge are all sufficient for mens rea.
Recklessness is easier to prove than WB. The crown burden is made easier.
 Ref: Beaver. (Heroin: Mens rea required.)
 Blondin case does not reflect current SCC thinking.

R. v. Currie (1975), 24 C.C.C. (2d) 292 (Ont. C.A.) (P510) “Forged

check: Jury instructions too objective”
 Man cashes check in return for $5. Charged with uttering a forged document.
 Was the defendant’s suspicion aroused? Test for WB is subjective.
 Trial judge made the mistake of saying "should have known/ inquired", even
when discussing willful blindness.
 Scenario: Woman coming back from vacation thinks someone slipped narcotics
into her bag. Doesn't want to check her bag for it because that knowledge would
make her sick on the flight. If she's not looking to cheat the administration of
justice, then she may not be willfully blind, but reckless. (And is recklessness
enough for mens rea?)

Sansregret v. R. (1985), 45 C.R. (3d) 193 (S.C.C.) (P508) “Terrorized

girlfriend”
 Repeated terrorizing, confinement and rape of girlfriend
 Reasonable care (negligence) standard is a basis for normal civil actions, not
criminal penalties.
 [Ignore paragraph 1 on P509]
 Recklessness (Subjective: Buzzanga): “knowledge of a danger or risk and
persistence in a course of conduct which creates a risk that the prohibited result
will occur”. Culpability justified by “consciousness of the risk and by proceeding
in the face of it”.
 Willful blindness (Subjective): “a person who has become aware of the need for
some inquiry declines to make the inquiry because he does not wish to know the
truth. He would prefer to remain ignorant.” Culpability justified by “the
accused's fault in deliberately failing to inquire when he knows there is reason for
inquiry.” Willful blindness invalidates the former defense of unreasonable
mistake of fact. (Pappajohn)
 Sansregret willfully blinded himself to the possibility of lack of consent.
Criminal Law 35

R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. C.A.) (P516) “Heroin in

luggage: Recklessness NOT enough”
 Coming back from India, heroin is found in jacket and wallet.
 Story is that the heroin was put in the suitcase and wallet by a woman friend.
Woman flies in to testify that it was her boyfriend in India that put the drugs
there.
 Trial judge instructs jury that either recklessness or willful blindness would
suffice to convict. Jury convicts.
 Ont. C.A. says recklessness will not suffice. The requirement in Beaver was
knowledge. Only willful blindness is like knowledge. Screw Blondin. Sandhu
is a better argument.

R. v. Jorgensen, [1995] 4 S.C.R. 55 (P747)

 Charged with knowingly selling obscene material under s.163(2)(a).
 Crown must prove that the accused knew of the presence of the ingredients of
the subject matter which as a matter of law rendered the exploitation of sex
undue. Did the accused shut his eyes because looking would fix him with
knowledge? No evidence of that here.

R. v. Duong (1998), 15 C.R. (5th) 209 (P521) “Harboring fugitive: W.

Blindness”
 Accused charged with accessory after the fact after helping a murder suspect (L)
under s.23(1). L told D that he was in trouble about Murder. D did not inquire
further.
 Court held D willfully blind and convicted under 23(1).

R. v. Vinokurov (2001), 156 C.C.C. (3d) 300 (e-reserve) “Stolen

Property: Knowledge required”
 Alberta. Possession of stolen property. Recklessness will not suffice. The statute
requires knowledge.
 Follows Sandhu. (though trial and appeal lawyers had not brought up Sandu
issue)

Stuart/Delisle
 Sandu does not articulate policy considerations. Recklessness and WB overlapp.

R. v. Harding (2001), 160 C.C.C. (3rd) 225 (e-reserve) “Anti-Muslim

pamphlets: W. Blindness”
 Pamphlets and telephone messages in Toronto filled with anti-Muslim sentiments.
 Prosecuted under willful promotion of hatred s.319(2). (Note: Free speech in USA
allows hate speech, until clear and present danger. - Shank)
 Defense: Didn't intend to include all Muslims, but only terrorists and radical
fundamentalists. Intended to wake up Christians to evangelize. (See Buzzanga)
Criminal Law 36

 Court held that hatred was intended, or he was willfully blind as to the result.
Both the trial judge and the 1st appeal court agreed that mens rea for willfulness
requires intent. (Substantially certain result.)

MR Charter - Murder
Vaillancourt v. R., [1987] 2 S.C.R. 636 (P438)
 Lamer said that the s.7 requirement of subjective mens rea would place in
doubt the offense of causing death by unlawful act.
 In Martineau objective constructive murder was held to be unconstitutional.

MR Charter - Bodily Harm

R. v. Desousa, [1992] 2 S.C.R. 944 (P571) “Bottle toss: Objective
foreseeability of bodily harm”
 Holding here was not manslaughter, but suggested the manslaughter holding in
Creighton.
 S.269 Unlawfully causing bodily harm.
 New Years Eve. Accused throws a bottle in an apartment during a fight. Bottle
broke on the wall and a shard hit the complainant in the eye. Desousa charged
under 269.
 Sopinka: What is the mens rea requirement?
o It is a predicate offense (underlying crime on which a more serious penalty
rests), but doesn’t have the stigma or criminal sanction of subjective MR.
 What is the unlawful act? AR, MR
o Must be federal/provincial offense.
o Not absolute liability (motor vehicle case, but could be strict liability).
Can’t violate s.7 of the charter.
o Must be a dangerous act (usually violent.)
 MR: Objective foreseeability of bodily harm (more than trivial or transitory)
held to be constitutional in 222(5)(a) and 269. (P575)
 P574 Sopinka discussed Smithers. Objective foreseeability? P314 Dickson
statement held to be invalid, but Smithers is still good law.
 No dissent in this case. This is a retreat from Martineau.

MR Charter - Manslaughter
R. v. Creighton, [1993] 3 S.C.R. 3 (P579) “Cocaine injection: Obj.
foreseeability of bodily harm”
 Non-violent unlawful act. Drug offense in which the accused injects cocaine into
the arm of the victim, who overdoses. Use of a narcotic is considered trafficking.
 No evidence that Creighton departed from the standard of care of the reasonable
drug user. (Crim. Negligence.)
Criminal Law 37

 This test for manslaughter becomes objective foreseeability of bodily harm in

the underlying act. Marked departure.
 McLachlin: We don't take into account the personal characteristics of the
individual. (Gosset)
 Similar to L'H-D discussion of felony murder development, and the majority in
Vaillancourt, Martineau that upheld the constitutionality of the provision. Stigma,
penalty. (P581)
 McLachlin "Let's save the thin skull rule." (contra Lamer and appellant) But a
reasonable person would not be able to foresee the frailty of the thin skull victim.
(P584)
 Dissenters (Lamer, Sklar) wanted objective foreseeability of death. (This would
throw out the thin skull manslaughter holding in Smithers as being
unconstitutional.)
o Gravity of offense
 Stigma.
 Punishment proportionate to moral blameworthiness.
 Intentional harm should be punished more severely than
unintentional harm.
o Symmetry (if MR=Consequence, Foreseeability of death makes sense)
 Risk of bodily harm different in manslaughter.
 Symmetry is a fundamental principle of justice. Con: It has
exceptions so perhaps it’s not so fundamental.
 Foreseeability of death would invalidate the thin skull rule.

R. v. Krushel (2000), 142 C.C.C. (3d) 1 (Ont. C.A.) (P586) “Harassment

of Ex: Foreseeability of Fear”
 Harassment of his former common law spouse.
 S.264(1) - Harassment that causes people to reasonably fear for safety.
 Mens rea (See Desousa) Objective foreseeability of fear.

MR Charter - Aggravated Assault

R. v. Godin, [1994] 2 S.C.R. 484 (P596) “Objective foreseeability of
bodily harm”
 Aggravated assault causing wounding.
 Follows Desousa, Creighton. Intention to apply force, objective foreseeability
of bodily harm.

MR Criminal Negligence
S.219 is not a criminal offense. It is always paired with other offenses. (ex: crim negl.
causing death)

Objective crimes
 Dangerous driving (Hundal) marked departure from the standard of care of
reasonable driver.
Criminal Law 38

 Ice hole non-watching.

Criminal Negligence v. Civil Negligence

 The Threshold for Negligence: The Standard of Departure
o Criminal: Marked and substantial/significant departure.
o Civil: Below the standard of care. (Less departure than in criminal test.)
 The Standard of Proof
o Criminal: Proof beyond a reasonable doubt.
o Civil: Proof on a balance of probabilities.

Commission (Positive Act) v. Omission Standard of Departure

 In R. v. Tutton and Tutton, though the Ont. C.A. required a higher standard of
departure for criminal negligence founded on omission, the S.C.C. held that the
test was the same for both kinds of acts.
 Criminal negligence (both commission AND omission) requires marked and
substantial/significant departure.

R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392 (P545) “God says the
boy doesn’t need insulin: Marked departure”
 3-3 Decision [NO LEGAL SIGNIFICANCE]
 Criminal negligence causing death (a form of Manslaughter)
 Son needs insulin to stay alive. Religion does not preclude religious treatment,
but the mother has two visions that tell her the boy doesn't need insulin. Doctors
save the child once. Mother has another vision, stops the insulin again and the
child dies.
 Subjective (Wilson) mens rea would require knowledge of risk of death from
actions. Much easier to prove objective (McIntyre) mens rea. 3-3 division over
219 requirement.
 Test for criminal negligence is a marked departure from the objective
standard.

H.L.A. Hart (P598)

 Negligence. Subjective-objective.
 Disagrees w. Glanville Williams
 You can't deter people from carelessness, says GW. Hart says punishment will
encourage care.
 You can punish people for failing to take care, though it is recognized that there
must be a marked departure from the standard of care exercised by the
reasonable person. Criminal negligence requires a much higher standard than
civil negligence.

Waite v. R., [1989] 1 S.C.R. 1436 (P559) “Playing chicken w. wagon:

Too subjective”
 Killed 4 people by playing chicken with a hay wagon.
Criminal Law 39

 Trial judge advised jury that deliberate and willful understanding of the risk was
necessary to convict in criminal negligence.
 Ont. CA and the SCC (even Wilson) ordered a new trial because the instructions
were too strongly subjective sounding.

R. v. Creighton, [1993] 3 S.C.R. 3 (P563) “Coke injection: Objective,

Mrk. Departure”
 Unanimous obiter, that the criminal negligence test was objective, is now the law.
 5-4 on factors to be taken into account. Marked departure is the standard.
 McLachlin P566: Agrees w. Hart on objective standard, regardless of
background or training. Assume no drug experience here. (Exception: Lack of
capacity to understand risk or avoid the situation. See epilepsy)
 McIntyre P549: Take into account the circumstances known to the person and ask
if a reasonable person would act in such a way.
 Lamer P567: Disagrees w. R. v. Gosset (Cop held to ordinary standard of average
user of firearms.) and thinks in this case the reasonable person should be assumed
to have experience w. drug use.

Callous indifference to life is a characterization that is punished as murder.

Meat Example:
Part A
 Whereas in Desousa the act might have been an assault, this one was a public
welfare offense. (Cartwright in Beaver - big difference between drugs and food.)
Contains willfully. Offense involves prison time.
 Willfully?
o Could be applied to the selling or to the selling (convict) and the sickness
(can't convict).
o Negligence not enough here, because of the word 'wilfully'.
 Objective foreseeability of bodily harm, neither trivial nor transitory. (Dangerous
act.)
Part B
 Thin skull rule.