53 Sklar Criminallaw Winter1998 by 3kQWm23H


									                                                Criminal Law
Part I:   Sources of the Criminal Law: Codification vs. Common Law Crimes

 s.19  ignorance of the law is no excuse.
     reasons:       practical  raises the burden of proof
                     policy  it is everyone’s duty to know the law
                     policy (ii)  this encourages everyone to find out the law (education incentive)
 if we say that a crime has to be on the books, we keep the law-making power with the legislature.

R. v. Sedley (1663)
Facts: Sedley got naked in Covent Garden and threw down pissed-in bottles etc.
Held: the Court announces the doctrine of “protector of community morals”.

Commonwealth v. Molken (US, 1955)
Facts: Accused charged with threatening phone calls (actually suggestive). No statue in PA.
Held: Convicted on public morals, even though there was no precedent. The law is sufficiently broad to punish what
openly outrages decency and is injurious to public morals at common law (no analogy to assault or threat was made.)

Frey v. Fedoruk, [1950] S.C.C.
Facts: Pl. was seen on def’s property, looking in to where def’s mother was changing. Def chased with a knife, caught
& detained pl. Police arrived, investigated, and arrested without warrant. Pl. sued for damages for malicious
prosecution & false imprisonment. Being a “peeping tom” was not an offence.
Held: Criminal offences are to be found in the Code and established common law. Trial Judge’s holding that Criminal
Law is wide enough to punish acts that may result in violence (“breach of the King’s Peace”)is rejected. Reasonable
interpretation is okay, analogy is not. [implicitly rejects Sedley and Molken] As a result, 5 years later, Parliament
enacted s.177.

Glanville Williams: Nulla crimen sine lege, Nulla poena sine lege  there must be no crime or punishment except
in accordance with fixed, predetermined law. Punishment is all its forms in a loss of rights or advantages consequent
on a breach of law. When this degenerates into an arbitrary act of violence it produces only bad social effects.
Opinions about what people are obliged legally to do should be capable of being ascertained by legal research. “Law”
means a body of fixed rules, excluding wide discretion (Dicey) even if it is exercised by independent judges. The
principle of legality involves rejecting “criminal equity” as a mode of extending the law.

 s.8(3)  every rule & principle of the common law that acts as a defence to a charge continues in force.
 s.9(a)  no person shall be convicted of an offence at common law.

R. v. Jobidon, [1991] S.C.C.
Facts: A fight began, victim became unconscious, Jobidon continued to strike him. Victim later died.
Held: Gonthier: Places lack of consent in the defences (and not a/r). {This increases the court’s interpreting power.}
Consent is vitiated: there are common law limitations negating its effectiveness. “The limitation demanded by s.265
as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply
force causing serious hurt of non-trivial bodily harm to each other in the course of a fist fight or brawl.” {They are
narrowing m/r here.}
Sopinka: Says absence of consent destroys a/r. To hold otherwise violates s.9. However, he disagrees with the trial
Judge’s finding regarding the defendant’s belief (he knew that consciousness was lost and that there was no more
 Gonthier refers to the defence of “entrapment” in Kirzner. He would probably say that there are policy issues here
    regarding the desirability of fights. If they can define the extent of entrapment, why not consent? Putting consent
    in a/r is too formalistic because really you’re giving a defence when you say there is no consent. There’s
    something to these arguments.
 it appears Sopinka is substituting his own interpretation of the facts. Also, what would he say to a knife fight? He
    never restricts his language to fist fights and seems to be saying that consent is valid and Parliament must decide.
 R. v. Cey: (p.23) you must consider whether the nature of the act was such that the victim could consent.
Bolduc and Bird v. R., [1967]
Facts: Bolduc lied to patient, representing Bird as an intern. Bird allowed to watch examination. Bolduc was charged
with indecent assault & Bird under s.21 as a party to an indecent assault (to “abet any person”) {Dunlop said mere
presence was not enough to be guilty under s.21}
Held: Spence: The indecent assault was not the act to which patient consented. Both are guilty.
Hall (Majority): Bolduc did exactly what the complainant understood he would do. There was no fraud as to what
he was supposed to do. The fraud was as to Bird’s identity.
 the Court interprets “nature & quality of the act” from s.141( 2) [N.B. “&”; you must find both were fraudulently
   represented in getting consent] as not fraudulently representedwith or without Bird this wouldn’t have changed.
 Spence links the assault and indecent assault provisions but ignores 141(2)
 the legislation was changed (p.207), but in R. v. P. and R. v. Cuerrier, the Court interpreted as if “nature and
   quality of the act” were still there“if Parliament had meant to remove them, it would have been more explicit.”

Part II:   The Purpose and Aims of the Criminal Law

R. v. Sweeney (1992), B.C.C.A.
Facts: Accused drove his vehicle into another while being chased by police, killing the other driver. He was convicted
of one count of criminal negligence causing death, one count of driving with a blood alcohol level in excess of .08
and one count of failing to remain at the scene of an accident. The Court decided that there was an error in principle
when the trial Judge used a sentencing starting point of 5 years’ imprisonment for all drinking & driving offences
causing either death or bodily harm. A sentence of 18 months less one day was substituted.
Held: Drinking and driving is an enormous social problem. Ordinary, reasonable & fair-minded people expect that
any punishment meted out under our criminal law will bear some direct proportionality to the moral culpability of the
offence. The moral culpability of the offence of impaired driving simpliciter is the same as that of the same offence
which either causes death or bodily harm, and lies in the intention to drive after having voluntarily consumed more
alcohol than the law permits, together with a reckless disregard for the foreseeable consequences. Still, the maximum
penalties are much higher where death or bodily harm does result. The dilemma facing the sentencing Court is to
balance a proper consideration of the consequences of a criminal act against the reality that the criminal justice
system was never designed or intended to heal the suffering of the victims of crime. General deterrence, specific
deterrence, isolation, and rehabilitation have been described as the goals of any sanction. Denunciation and just
desserts have also been suggested. Wood J.A. is determined not to sanction the imposition of retributive sentences.

R. v. C.A.M. (1996), S.C.C.
Facts: Accused pleaded guilty to a number of counts of sexual assault, incest and assault with a weapon arising from
abuse inflicted upon his children. The trial Judge held that the offences were as egregious as any he had ever seen.
The Court of Appeal reduced the sentence, and the S.C.C. restored the original sentence. The question was whether
the Court of Appeal erred in holding that retribution is not a legitimate principle of sentencing.
Held: Lamer: It has been recognised by this Court that retribution is an accepted, and indeed important, principle of
sentencing in our criminal law.

Part III: The Theories and Principles of Substantive Criminal law
     A.       The “Actus Reus” (Physical) Element
          1.       The Unlawful Act & Principles of Statutory Interpretation in Criminal Cases

 “actus non facit reum nisi mens sit rea”  there is no guilty act without a guilty mind
 Burchell: a/r is needed because of the impossibility of proving a purely mental state
 Glanville Williams: 2 better reasons are:
    1. difficulty of distinguishing between day-dream & fixed intention, absent behaviour toward the crime
    2. undesirability of spreading the criminal law so wide to cover a mental state that will never translate to action

Hutt v. R., [1978] S.C.C.
Facts: Prostitute was charged with “soliciting” an officer in his car [the offence stipulated “in a public place”, and
appellant counsel conceded that a car satisfied this requirement]
Held: Ritchie: ‘Solicit’ carries with it an element of persistence and pressure. Here, there was only co-operation.
Spence: Looks to the Shorter Oxford Dictionary and chooses a restrictive meaning. Finds nothing pressing/persistent
in the acts in question. He looks to the legislative history to back up his claim. The crime is narrowed to ~
 the court is sending out a message that it will restrict this crime; the further policy question is whether this is a
    traditional crime involving harm to others (Spence sees the provision as concerned with public inconvenience or
 Spence tries to restrict the “penumbra” (not the core) meaning of the word. (Where ambiguous, we must define)
 there’s an element of entrapment that concerns Spence (implicit disapproval of police action?)
 appellant counsel should not have conceded that a car was a public place (Spence even alludes to this).
 there are summary convictions (formal arrest procedures, sped up procedures, less serious) & indictable
    offences (similar to “felonies”). This was a summary conviction.
 following this decision, there was a law enforcement outcry, and Parliament widened the crime, adding cars as
    public places, deleting “solicit”, and making other changes  s.213.

Johnson v. R., [1977] S.C.C.
Facts: Accused went through a wide-open space in a partially constructed house & was charged with b&e. The
common law definition of (actual) breaking was when any part of a building or its closed fastenings was displaced.
Constructive breaking was where the intruder entered by some permanently open aperture or by threat, collusion, etc.
A change in the Code broadened constructive breaking to include entry by any temporary opening (Dickson, p.211)
Held: Appeal dismissed. An open doorway, for which the door has not yet been installed, leading to a dwelling-
house under construction is “a permanent or temporary opening.”

          2.         Omissions

 the general common law principle is that criminal responsibility for omissions is limited to cases where there is a
  legal (and not merely moral) duty to act.
 s.228: hit and run; s.433: arson.

Fagan v. Commissioner of Metropolitan Police, [1969] Q.B.
Facts: Appellant was instructed to drive towards the kerb, stopping on the police officer’s foot. “Fuck you, you can
wait,” turned off the engine. Reluctantly, he turned the car back on and reversed off the foot.
Held: Appellant “knowingly, provocatively, and unnecessarily allowed the wheel to remain of the foot after the
officer said get off. Appellant counsel said that the act of mounting came to an end with no m/r. There was then only
the omission/failure to remove the wheel. Respondent counsel argued that the mounting was an a/r which continued
until the removal. During that continuing act, the appellant formed the m/r & once this was added, an assault took
place. {the continuing act theory}. The court says that “it is not necessary that m/r should be present at the
inception of the a/r. It can be superimposed.” An alternate argument was that a legal duty arises when a person sets
into motion events, becomes aware of the possibility of harm, and does nothing {the legal duty theory}  R. v.

R. v. Miller, [1983] H.L.
Facts: Accused fell asleep with a lit cigarette & woke up with the mattress on fire, but got up, went to the next room,
and fell back asleep. The question of law was whether the offence of arson is present when a fire is accidentally
started and thereafter, intending to destroy or damage property or being reckless as to this, no steps are taken to
Held: Lord Diplock discusses both the continuing act and the legal duty theories, and adopts the latter.
 this holding could be expanded to personal injury. There is no reason to restrict it to property (personal injury is
    often more serious, etc.)
 the court defines recklessness as an objective state of mind: if a person does not realise the danger of harm, but
    by turning their mind to it would realise, they are reckless. There is also the approach that awareness can amount
    to recklessness: a subjective state of mind. The test in Canada is subjective state of mind.

People v. Beardsley (1907), Mich. S.C.
Facts: Respondent’s mistress takes morphine. He is convicted at trial of owing a duty to care and failing to perform.
Held: A/r contains omissions where they are based upon a legal duty. These can arise from personal relationships,
contract, or the common law (Thornton), but CANNOT be based only on moral obligation. There was no legal duty
on these facts (emphasising the age and experience of the woman.)
 the year is 1907, & the court appears critical of the defendant (morally). Also there are no statutes like ss.215/217.

R. v. Thornton (1991), Ont.C.A.
Facts: Accused knew he was HIV positive and donated blood anyway. He was charged under s.180 for common
nuisance, which requires either an unlawful act or failure to discharge a legal duty. The trial Judge found a duty
within s.216, and that donating blood was a medical procedure.
Held: Parliament has created no unlawful act regarding donation of contaminated blood. Legal duties are found
within statute or common law, and here a duty is found in the common law “to refrain from conduct that will injure
another” (Donoghue v. Stevenson). This duty was breached here.
 the duty found is much broader than needed because we are only dealing with contaminated blood.
 some people say that the effect of this is to create a new crime on the common law; the response is “No, we are
    looking at the common law to define duty.” (from Jobidon, to “illuminate” the Code).
 when this issue (whether a criminal omission can be based on a common law duty, in apparent violation of s.9( a)
    of the Code) reached the Supreme Court on appeal of this case, it was avoided: “s.216 imposed…a duty of care in
    giving his blood to the Red Cross. This duty of care was breached…this common nuisance obviously endangered
    the life, safety, and health of the public.” The Court appears to read s.216 literally to impose a duty of care on
    those doing lawful acts which endanger others’ lives. This seems to establish a new wide measure of criminal
    responsibility for omissions.

           3.         Voluntariness

 Patient: involuntariness goes beyond lack of m/r.
 Holmes: we require an act because it implies choice and it is felt to be impolitic and unjust to make a man
  answerable for harm, unless he might have chosen otherwise.
 Packer: the law excludes, in a crude way, conduct that is nay view is not the exercise of conscious volition, in
  response to the simple intuition that nothing would more surely undermine the individual’s sense of autonomy and
  security than to hold him to account for conduct that he does not think he can control.
 voluntariness is a neurological concept & talks about consciousness.

R. v. Lucki (1955), Sask.
Facts: Accused was driving and skidded over onto the other side of the road and collided with another car.
Held: He got onto the other side by an involuntary act, caused by the condition of the road.
 even if no m/r is required for this provincial offence, he should be not guilty because there was no voluntariness.

R. v. Wolfe (1975), Ont.C.A.
Facts: Complainant was not to enter the hotel premises. On the evening in question, he entered anyway. Appellant
went to use the phone to call the police. Complainant punched appellant, who quickly turned & hit him w/ the phone.
Held: Trial Judge said this was a reflex action, so no offence because no intent. There is a/r, but no intent (m/r).
 a reflex is a non-conscious, spinal cord action. We don’t have this here. The correct analysis would have been that
    this was not a reflex nor an accident. Court is not applying m/r properly because of their interpretation of “intent”.

R. v. Ryan (1967), Aus.H.C.
Facts: Accused read a book and tried to emulate the hero by holding up a service station. The attendant there made a
sudden movement and the accused’s slight pressure on the trigger forced the gun to go off, killing the attendant. {in
Australia, intent to murder is moot if it occurs during a robbery.} The defence was that this was an involuntary act.
Held: The act is voluntary because the gun is cocked, loaded, and the finger is on the trigger. Even if the pulling of
the trigger was an involuntary act, it was voluntary when looking at the preceding acts in whole. The preceding
sequence of events sheds light for this purpose and an act is not to be called involuntary just because it was quick and
impulsive if everything preceding it was conscious.

Kilbride v. Lake, [1962] N.Z.S.C.
Facts: Accused had a current warrant of fitness for his car, but when he parked, it had become detached or removed
and he received a ticket.
Held: The act or omission must be voluntary. The accused must be shown to be responsible for the physical
ingredient of the crime or offence. Until initial proof exists, arguments about m/r are premature. Here, no voluntary
 crimes of strict and absolute liability do not need m/r, but you still need a/r.
 causation requirements only arise if the a/r needs a consequence (but many a/r in the Code don’t need one.)

           4.         Causation

 causation problems usually only arise with unusual fact patterns.

Smithers v. R., [1978] S.C.C.
Facts: After a hockey game a fight starts and accused kicks victim in the stomach. Victim has faulty epiglottis and
chokes on his own vomit and dies. Smithers is morally culpable only for the assault, but manslaughter punishes with
no m/r to the actual death itself. {: a harsh doctrine).
Held: Must take your victim as you find them {the “thin skull” rule of legal causation} “But for” causation applied.
 first, is there factual causation?; Then is there legal causation (was this a sufficiently contributing cause above the
   de minimus range?); finally, was the chain of causation broken?
 the harshness of the manslaughter doctrine & its high maximum punishment have led to recent Charter challenges.

R. v. Shanks (1997)
Facts: Accused fights with victim & throws him to the ground. A short while later, the victim dies of a heart attack.
Held: Trial Judge looks at evidence outside the medical & finds that accused knew of victim’s lack of fitness/health.
This is a kind of thin skull principle and defeats counsel for the accused’s suggestion of no factual causation.

R. v. Blaue, [1975] C.A.
Facts: Accused attacks victim with a knife and inflicts some wounds. Victim is a Jehovah’s Witness and refuses a
blood transfusion. Accused says this breaks the chain of causation.
Held: For the thin skull principle this “means the whole man, not just the physical man.” The question is what caused
the death. Here, it was the stab wound.

R. v. Harbottle, [1993] S.C.C.
Facts: Accused and companion forcibly confine a woman. Companion sexually assaults, accused watches. Both
discuss ways of killing. While accused holds victim’s legs, companion strangles. Accused is convicted of murder 1.
Held: Under s.21 accused is a party to the murder, but to be 1 st degree, he must have caused the death in a substantial
way (because of the severity of the sentence). A “substantial & high” degree of blameworthiness must be established,
so the Court develops a restrictive test of substantial cause (p. 272)
 s.231(5) defines certain crimes where, if death occurs, then 1st degree murder results, even if there is no
    deliberation or planning. Cory says that this is not needed here because planning and deliberation are here, but the
    jury is charged to consider this anyhow at the trial level (2 arrows in the quiver)
 m/r is combined with causation and with sentencing to decide what is fair.

R. v. Cribben (1994), Ont.C.A.
Facts: Accused punches & kicks victim before companion attacks more viciously. Injuries were not life-threatening,
but victim was left and drowned in own blood. Jury convicted of manslaughter.
Held: The trial Judge was not required to instruct the jury that they could convict only if they found that the assault
substantially contributed to the victim’s death. “As the law of manslaughter stands, if a person commits an unlawful
dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is
neither trivial nor transitory, and the unlawful act is at least a contributing cause of the victim’s death, outside the de
minimus range, then the person is guilty of manslaughter.” This is said to satisfy principles of fundamental justice.
 the state of mind to commit an unlawful act must be combined with a foreseeable risk of bodily harm. This tries
    to combine the m/r & causation to ensure that the morally innocent are not convicted.
 this case introduces the distinction between subjective and objective standards of m/r. Here, it is objective
    because of the measuring stick of the reasonable person.
 there are a few broad principles with respect to causation:
     it cannot be too remote: at some point, it is not fair to hold the accused guilty, but there is no clear meaning
        of the words “proximate” or “remote”.
 Glanville Williams describes the test of legal causation as “a test of moral reaction”.
 ss. 222(5), 224, 225, and 226 stipulate that certain intervening factors do not break causation for homicides.

      B.          The Mens Rea States of Mind
            1.        Introduction
                  (a)      The Mens Rea Requirement

 mental elements for criminal liability are NOT universal & differ between crimes. There are 4 common concepts:
    1. Intention
    2. Knowledge
    3. Recklessness
    4. Wilful Blindness
 motive is the reason an act was committed (ulterior intention), whereas intent is the intent to bring about the
  prohibited consequence. From Lewis, motive is not part of m/r (as a general rule). However, it is an important
  evidentiary factor to proving it.
 the general m/r is the intentional or reckless bringing about of the consequence.

Woolmington v. D.P.P., [1935] H.L.
Facts: Appellant visits estranged wife, neighbour hears speaking & then the sound of a gun. She sees appellant get on
his bike, he looks at her hard and then rode away. He is arrested and says, “I want to say nothing, except I done it, and they
can do what they like with me. It was jealousy I suppose. Her mother enticed her away from me. I done all I could to get her back. That’s
all.” He later claims that he went with the purpose of telling her that he’d commit suicide if she didn’t come back, but
that the gun went off accidentally. The trial judge says that “the law will presume the fact to have been founded in
malice until the contrary appeareth.”
Held: A “Golden Thread” throughout English Criminal Law is that it is the duty of the prosecution to prove guilt
subject to the defence of insanity. The defence can always remain silent and claim reasonable doubt. To prove state
of mind, all evidence can be looked to (Mulligan), and here, his riding away and not calling for help can go to proof.
Motive (a fact that can go to establish intent) is his anger from the troubled relationship.
 as a practical matter, defence often has to help create this reasonable doubt. The big issue is whether their client
    should go on the stand. It is foolish to rest if the Crown has a strong case.
 this could also be Manslaughter because we have the unlawful act of Pointing a Firearm (s.86). From Cribben, we
    need objective foresight that “more than trivial” bodily harm may ensue.
 his statement could possibly be argued away by the defence because there is a certain ambiguity (although it is
    highly incriminating).
 the point of entry of the bullet could be an issue as to intent as well (if it hits in the head or heart, the inference of
    intent is much stronger, but is never conclusive).
 in most cases, intent must be inferred.

                  (b)         The Basic Subjective/Objective Distinction

 Creighton, [1993] and Hundal, [1993] accept that there should be a clear distinction between the subjective
  (whether the accused was actually aware of a risk) & the objective (whether the accused failed to measure up to
  the external standard of the reasonable person, irrespective of awareness) standards. Given Creighton, the
  objective standard is now much tougher.

R. v. Hundal, [1993] S.C.C.
Facts: Accused was charged with dangerous driving. The Court had o determine the fault requirement.
Held: A flexible objective test is to be applied (contextually with of the surrounding events)  marked departure.

R. v. Théroux, [1993] S.C.C.
Facts: Accused was charged with fraud. The Court discussed the fault requirement.
Held: Leaving aside offences where the a/r is negligence or inadvertence & offences of absolute liability, the m/r test
is subjective. This inquiry has nothing to do with the accused’s system of values, but whether he subjectively
appreciated that certain consequences would follow (whether he believed them moral is moot). The Crown need not
show precisely what thought was in the accused’s mind, and subjective awareness can be inferred.
R. v. Mulligan (1976) Ont.C.A.
Facts: Accused repeatedly stabbed his wife, but made statements to the police that he did not mean to kill.
Held: The intention fell to be determined by a consideration of all the evidence including acts, utterances and other
circumstances which might shed light on his state of mind.

Simpson v. R. (1981) Ont.C.A.
Facts: Accused was charged with attempted murder. The trial Judge instructed the jury that the required m/r was
“intending to cause the death, or intending to cause…bodily harm that he knew or ought to have known was likely
to cause death and was reckless whether death ensued or not.”
Held: Liability under s.229(a)(ii) is subjective, and the requisite knowledge that the intended injury is likely to cause
death must be brought home to the accused subjectively. New trial ordered.

           2.         Intention or Knowledge

 Hall: the principle of m/r must be given an objective ethical meaning—the premise being that actual harms
  (disvalues) are proscribed. Neither the offender’s conscience nor the personal code of ethics of the Judge or the
  jury can be substituted for the ethics of the penal law.

Lewis v. R., [1979] S.C.C.
Facts: Accused and Tatlay were charged with murder of Tatlay’s daughter and son-in-law. Accused admitted mailing
a package, but denied knowledge that the package carried a bomb.
Held: Accused could be convicted if he had knowledge of the bomb. M/r is based here upon knowledge that harm
can or will result; you cannot argue that you did not want the bomb to kill anyone. If the bomb works, it is almost
certain that death or serious injury will follow. Evidence was given as to accused’s financial need (he was paid to
mail the package). Further, he was a dynamite expert in a mine.

R. v. Steane, [1947] K.B.
Facts: Appellant was charged with doing acts likely to assist the enemy with intent to assist the enemy. He was in
Germany in the 1930’s (a film actor), and was arrested on the outbreak of war. He was forced to read the news 3
times a day and did so until April, 1940 (first he refused, until it was hinted that the Germans had ways to make him.)
He said that he never had the slightest idea or intention of assisting the enemy.
Held: There was evidence from which a jury could infer that the acts done were likely to assist the enemy. However,
he must do it with the particular intent. If the prosecution prove an act the natural consequence of which would be a
certain result and no evidence or explanation is given, then a jury may…find that the prisoner is guilty of doing the
act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent
of the prisoner, the jury should be directed that it is for the prosecution to prove the intent. Duress is a matter of
defence (although it does not apply to treason, murder, and some other felonies). The jury would not be entitled to
presume intent if the circumstances showed that the act was done in subjection to the power of the enemy, or was as
consistent with an innocent intent as with a criminal intent. “They should only convict if satisfied by the evidence that
the act complained of was in fact done to assist the enemy.”
 “where intention to produce a particular consequence is essential to constitute the offence, an act is not done with
    intent to produce the prohibited consequence unless it is the actor’s conscious purpose to bring it about, and…the
    actor’s foresight of the certainty of the consequence is not synonymous with an intention to produce it.” (from
    Buzzanga, p.422)
 when Steane broadcasted, his purpose and knowledge were different. If knowledge were enough for m/r here, we
    do have intent. If conscious purpose is necessary (here it is found to be) there is no m/r. The a/r here is “acts likely
    to assist the enemy” and the m/r is “intent to assist the enemy”.

R. v. Buzzanga and Durocher (1979), Ont.C.A.
Facts: Defendants were active in promoting the construction of a French high school in Ontario and circulated a
pamphlet to be a catalyst to provoke Government reaction, putting pressure on the school board. They were charged
with wilful promotion of hatred (s.319(2)).
Held: The language “wilfully” in the Code is interpreted here as intention. {Sometimes interpreted as “intentionally”,
it is also sometimes used to mean “recklessly”. Martin J.A. describes recklessness as the subjective state of mind of
a person who foresees that his conduct may cause the prohibited result but, nevertheless, takes a deliberate and
unjustifiable risk of bringing it about.} Martin J.A. compares s.319( 2) with s.319(1), where the offence is limited to
incitements that are likely to lead to a breach of the peace and no m/r is expressly mentioned. He says the general m/r
is either the intentional or reckless bringing about of the result the law seeks to prevent. “Wilfully”, he concludes, was
probably inserted into s.319(2) to limit the offence to the intentional promotion of hatred (reflecting Parliament’s
policy to strike a balance in protecting the competing social interests of freedom of expression & public order.) Here,
“the appellants ‘wilfully’ (intentionally) promoted hatred…only if: (a) their conscious purpose in distributing the
document was to promote hatred against that group, or (b) they foresaw that the promotion of hatred against that
group was certain or morally certain to result…but distributed it as a means of achieving their purpose.”

Beaver v. R., [1957] S.C.C.
Facts: Accused and brother sold heroin to an undercover cop. The brothers claim that they actually thought it was
sugar of milk (that they were trying to ‘rip off’ the buyer). The defence is that they lacked m/r because they didn’t
know that this was really heroin.
Held: Where no m/r is explicit in the offence, one is to be assumed. To create an offence of which m/r is not an
essential ingredient, Parliament must, by express language or necessary implication, disclose such an intention. Here,
the m/r is spelt out as knowledge of this being a narcotic. The existence/non-existence of reasonable grounds for
such belief is merely relevant evidence to be weighed in the essential question of whether the belief was honest.

R. v. Théroux, [1993] S.C.C.
Facts: Accused was charged with fraud after falsely representing that deposits on contracts were insured. Accused
knew the insurance was not in place but sincerely believed that the deposits would not be lost. Does this negate m/r?
Held: The proper focus is to ask whether the accused intentionally committed the prohibited acts, knowing or desiring
the consequences proscribed by the offence. The personal feeling of the accused about the morality or honesty of the
act or its consequences is no more relevant to the analysis than is the accused’s awareness that the particular acts
undertaken constitute a criminal offence. “It need only be determined that an accused knowingly undertook the acts in
question, aware that deprivation, or risk or deprivation, could follow as a likely consequence…There appears to be
no reason, however, why recklessness as to consequences might not also attract criminal responsibility. Recklessness
presupposes knowledge of the likelihood of the prohibited consequences. It is established when it is shown that the
accused, with such knowledge, commits acts which may bring about these prohibited consequences, while being
reckless as to whether or not they ensue.” In this case, “where the accused tells a lie knowing others will act on it and
thereby puts their property at risk, the inference of subjective knowledge that the property of another would be put at
risk is clear.”
 m/r does not go to knowledge that the money will be lost, but is knowledge that property will be put at risk.

           3.         Wilful Blindness and Recklessness

Sansregret v. R. (1985) S.C.C.
Facts: Accused was charged with sexual assault. McIntyre J. defined the concepts of recklessness & wilful blindness.
Held: Recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a
risk that the prohibited result will occur. Wilful blindness arises where 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, preferring continued
 Glanville Williams goes further (bottom of p.433) to say that wilful blindness requires in effect “a finding that the
    defendant intended to cheat the administration of justice. This goes further than his “suspicion aroused but then
    deliberately omits to make further inquiries” language above. These 2 statements are slightly in opposition.

R. v. Currie (1975), Ont.C.A.
Facts: Accused was charged & convicted for uttering a forged document after cashing a cheque for somebody else.
Held: The fact that a person ought to have known that certain facts existed…does not constitute knowledge for the
purpose of criminal liability, and does not by itself form a basis for the application of the doctrine of wilful blindness.
The trial Judge therefore erred in saying that the accused “should have” been suspicious. This is objective.

R. v. Blondin, [1971] B.C.C.A.
Facts: Accused was paid to bring scuba gear to Canada from Japan. One tank contained blocks of hashish.
Held: The only awareness needed is that the substance is a narcotic (he doesn’t need to know precisely which one).
The offence of smuggling good which may be imported lawfully on disclosure and payment of duty is essentially
different from that of importing a narcotic, so the m/r for purposes of the narcotic is not satisfied if it can merely be
proved that the accused knew his actions were illegal. M/r is satisfied if he knew it was a narcotic, was reckless as to
whether it was a narcotic, or was wilfully blind as to whether it was a narcotic.
 recklessness is easier to prove than wilful blindness; for the latter, you must prove suspicion.

R. v. Sandhu (1989), Ont.C.A.
Facts: Accused is arrested at Pearson with 93 packets of heroin. Accused claims that he was acting as a courier for
some gifts of clothing his lover wanted to give to relatives in Canada. She testifies that the drugs were placed there
without her knowledge by her paramour, upon whom she was dependent. This paramour was killed by soldiers.
Held: The trial Judge did not stress that wilful blindness is the equivalent of actual knowledge. He also did not
instruct the jury that even if they considered the accused’s belief unreasonable, it didn’t follow that it was not
honestly held. On the authority of Sansregret, where an offence requires knowledge, it is improper to instruct the
jury that a finding of recklessness satisfies that requirement. The Court doesn’t follow Blondin on recklessness
because it drops the m/r too low, and the trial Judge’s use of Blondin-like language pushes the Court to allow the
 if we look at Beaver, the Court is probably right here (because recklessness does not equal knowledge)
 see p.441 for an explanation of the difference between wilful blindness and recklessness.

          4.          The Mens Rea for the Crime of Murder and Attempted Murder

 s.222  defines homicide, kinds of homicide, non culpable and culpable homicide.
 s.229  provides for 3 definitions of murder: the primary definition (requiring ulterior intention, foresight or
  knowledge, and recklessness); the doctrine of transferred intent, requiring the same mental element but liability
  where the requisite state of mind was for another individual than the actual victim; and, a constructive murder
  (where a death occurs in the prosecution of a further unlawful object beyond the immediate unlawful act which
  causes the death, the mental element being purpose and objective foresight of the likelihood of death. This is
  unconstitutional under s.7).
 s.230  murder in commission of offences.
 s.231  classification of murder.
 s.235  punishment for murder.

Simpson v. R. (1981) Ont.C.A.
Facts: Accused was charged with attempted murder. The trial Judge instructed the jury that the required m/r was
“intending to cause the death, or intending to cause…bodily harm that he knew or ought to have known was likely
to cause death and was reckless whether death ensued or not.”
Held: Liability under s.229(a)(ii) is subjective, and the requisite knowledge that the intended injury is likely to cause
death must be brought home to the accused subjectively. New trial ordered.

                (a)        The Impact of the Charter

Vaillancourt v. R., [1987] S.C.C.
Facts: Accused was convicted of murder 2. Before the Supreme Court, he challenged the constitutionality of s.230( d)
alone and with s.21(2). Accused and his accomplice committed an armed robbery, with a knife and a gun,
respectively. A shot was fired and a client was killed. Appellant had insisted that the gun be unloaded, so the
accomplice removed 3 bullets and gave them to the appellant, who testified that at the time of the robbery he was
certain the gun was empty. The argument was that fundamental justice requires some degree of subjective m/r to
impose criminal liability.
Held: Lamer says it is unconstitutional to find murder without finding subjective foresight, but he rests his decision
on objective foreseeability of death (because he couldn’t get a majority on the subjective position). The crime in
question is constructive murder, and the list of predicate crimes all are violent and pose a risk to life. {Parliament is
trying to say that if you engage in X conduct and someone dies, it’s at least murder 2.} The Court emphasises the
“stigma” associated with murder, as well as the high penalties and decides that a high m/r is also required.
 the original law is very hard and every Judge recognises that murder should require a m/r for murder.
 Rowe v. R., [1951] S.C.C. (p.383), accused committed a robbery, and in flight slipped on oil. His gun went off, a
    bullet went through the wall and killed someone. He was convicted (and executed).
 Lamer seems to say that s.11(d) and s.7 of the Charter piggyback on each other: when s.7 is violated, so is s.11( d).
R. v. Martineau, [1990] S.C.C.
Facts: Accused and companion, with pellet pistol & rifle respectively, set out to commit a crime. Accused thought it
would only be b&e. They went into a trailer & tied up its occupants. Companion shot & killed them after robbing
them & their home. Accused was convicted of murder 2.
Held: Lamer: “In my view, in a free and democratic society that values the autonomy & free will of the individual,
the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose
to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential
role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the
stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender…it is a
principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a
reasonable doubt of subjective foresight of death.”
 in Sansregret, it was said that recklessness is subjective; here, what is required as a constitutional minimum is
    the intention to cause death or inflict bodily harm that he knows is likely to cause death, and is reckless whether
    death ensues or not {same as s.229(a)}.
 there is a philosophy behind the judgments as to how activist the S.C.C. should be in reviewing Criminal
    legislation under the Charter. Lamer is liberal, L'Heureux-Dubé conservative, and Sopinka favours “deciding
    cases before the Courts, not…anticipating the results of future cases.”

 s.21(2)  where 2 or more persons form an intention to carry out an unlawful purpose and one of them commits
  an offence, each of them who knew or ought to have known that the commission of the offence would be a
  probable consequence is a party.
 s.24  attempts: if someone has intent to commit an offence and does or omits to do something for the purpose
  of carrying out his intention is guilty of an attempt.
 s.239  attempt to commit murder (where a firearm is used, there is a minimum of 4 years).
 s.463  attempts, accessories: provisions applying in respect of persons attempting or who are accessories after
  the fact to the commission of offences.

R. v. Logan, [1990] S.C.C.
Facts: Accused performed a robbery where a person was shot and severely injured. Neither did the shooting. The trial
Judge instructed that there could be convictions under s.21( 2) if Crown established beyond a reasonable doubt that
the accused knew or ought to have known that someone would probably shoot with the intention of killing. Court of
Appeal allowed appeals for convictions for attempted murder & substituted convictions for robbery. Crown appealed.
Held: Lamer: “[T]he question whether a party to an offence had the requisite m/r to found a conviction pursuant to
s.21(2) must be answered in two steps. Firstly, is there a minimum degree of m/r which is required as a principle of
fundamental justice before one can be convicted as a principal for this particular offence?…Secondly, if the
principles of fundamental justice do require a certain minimum degree of m/r in order to convict for this offence, then
that minimum level of m/r is constitutionally required to convict a party to that offence as well.” The words “or ought
to have known” should be inoperative when considering under s.21( 2) whether a person is a party to any offence
where it is a constitutional requirement for a conviction that foresight of the consequences be subjective. {Lamer says
that Parliament may, however, enact provisions requiring different levels of guilt for principal offenders & parties
 any crime where m/r is present for the completed crime but the perpetrator only “comes close” is an attempt.
 p.875: Lamer recognises there are few offences where the objective component of s.21(2) will restrict s.7 rights. It
    is an open question whether crimes like sexual assault are like murder in that fundamental justice requires a
    minimum constitutional m/r (then the ought to language of s.21(2) would be ineffective) or whether there could
    be a subjective m/r for the principle and an objective one (from s.21( 2)) for the party.

          5.         The Mens Rea for the Crime of Manslaughter and other “Predicate Offences”

 s.222(5)(a) a person commits culpable homicide when he causes the death of a human by an unlawful act.
 s.232 circumstances where murder may be reduced to manslaughter.
 s.234 manslaughter is culpable homicide that is not murder or infanticide. s.236  sentencing for
              (a)       The Application of the Charter
 at present the S.C.C. has required subjective m/r for murder (Martineau), attempted murder (Logan), accessory
  liability to an offence constitutionally requiring a subjective test (Logan), and war crimes and crimes against
  humanity (R. v. Finta, [1994] S.C.C.). There has also been obiter recognition in Vaillancourt & Martineau that
  theft requires subjective m/r.
 the S.C.C. has decided that the stigma necessary to require subjective m/r does not follow from a conviction of
  unlawful act causing bodily harm (DeSousa) or manslaughter (R. v. Creighton)
 Provincial Courts of Appeal have been unreceptive to Charter arguments to entrench subjective tests
                                                  Fault for Crimes
                                                                                    Offences based on predicate
        Subjective m/r                               Objective                                offences
(aware of risk, all individual factors)     (marked departure from objective              (objective foresight of harm, no
                                            norm, no individual factors short of        individual factors, no marked limit,
    e.g. murder, assault, b&e, theft,                   incapacity)                         except for predicate offence)
          possession offences
                                           e.g. dangerous driving, careless firearms,      e.g. unlawful act manslaughter,
                                                 failure to provide necessaries            unlawfully causing bodily harm,
                                                                                                  aggravated assault
 where definitions of the offence include a clear m/r word (intentionally, wilfully, or knowingly), Parliament has
  made its choice of the subjective test clear.
 where the definition contains no m/r words, and there is no language indicating the crime is to be interpreted as
  one of objective negligence, it should be interpreted as an offence of subjective m/r. (Beaver, Pappajohn, and
  Sansregret are still authoritative.)
 on the authority of Creighton and DeSousa there are some offences based on predicate offences where the fault
  requirement regarding the consequence of the underlying offence is much reduced but constitutional. In unlawful
  act causing harm (DeSousa), manslaughter (Creighton), and aggravated assault (Godin), the unlawful act is
  interpreted to require objective foresight of harm. DeSousa also held that the unlawful act must be a provincial or
  federal offence, that the fault for this predicate offence must be proved and that this cannot be absolute liability.
  Only when the predicate offence is one of negligence must the gross departure limit be applied.

R. v. DeSousa, [1992] S.C.C.
Facts: Accused was in a fight at a party & threw a bottle which broke against the wall, a fragment striking a
bystander. Accused was charged with unlawfully causing bodily harm (s.269). He brought a motion to have s.269
declared of no force because of the Charter’s s.7. N.B. an assault is not an essential element of the offence (this
would be s.267(1)(b))
Held: A provision should not be interpreted to lack any element of personal fault unless the statutory language
mandates such an interpretation in clear and unambiguous terms. The mental element of s.269 is composed of 2
separate requirements: (i) the metal element of the underlying offence; (ii) the additional fault requirement supplied
by the wording of s.269, also to be satisfied. As a matter of statutory interpretation, underlying offences of absolute
liability are excluded from forming the basis for a prosecution under s.269, and the concept of “unlawful” as it is used
in s.269 does not include any underlying offence of absolute liability. In addition to the mental requirement for the
underlying offence, “in accordance with the English law and in furtherance of the developing Canadian case law, the
most principled approach to the meaning of ‘unlawful’ in the context of s.269 is to require that the unlawful act be
at least objectively dangerous. Objective foresight of bodily harm should be required for both criminal and non-
criminal unlawful acts which underlie a s.269 prosecution. The act must be both unlawful…and one that is likely
to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or
transitory. No principle of fundamental justice prevents Parliament from treating crimes with certain consequences
as more serious than crimes which lack those consequences. [p.486]…One is not morally innocent simply because a
particular consequence of an unlawful act was unforeseen by that actor. In punishing for unforeseen consequences the
law is not punishing the morally innocent but those who cause injury through avoidable unlawful action.”
 Sopinka defines an unlawful act as (i) a federal or provincial offence; (ii) not an offence of absolute liability; (iii)
    “objectively dangerous”. He held that this was not a crime where the stigma required subjective foresight (p.484).
 DeSousa and Creighton are a kind of retreat from Logan, Martineau, and Vaillancourt.
 the accused also argues that s.7 requires subjective foresight of all consequences which comprise part of the a/r
    (he asks for a symmetry between the act and the consequence. Sopinka says this may apply in some situations,
    but not all and is certainly not a constitutional rule. (p.486: if appellant is correct, many statutes are
R. v. Creighton, [1993] S.C.C.
Facts: Accused says the offence of manslaughter is unconstitutional because it requires only foreseeability of the risk
of bodily harm and not foreseeability of death.
Held: The Court splits 5-4, Lamer for reasonable foresight of death, and McLachlin, with the majority, for bodily
harm. Lamer’s holds that manslaughter is unconstitutional because (i) the gravity/seriousness of the offence (and the
stigma) require a minimum m/r of foreseeability of death; (ii) considerations of symmetry between the element of
mental fault & the consequences of the offence mandate this conclusion. McLachlin answers this by saying that the
most important feature of the stigma of manslaughter is the stigma which is not attached to it. It is not murder, and the
person convicted did not intend to kill someone: the very act of calling the killing manslaughter indicates that it is less
blameworthy than murder. The stigma attached to manslaughter is an appropriate stigma. Secondly, manslaughter
carries with it no minimum sentence, so the punishment is not disproportionate to the moral blameworthiness: this is
appropriate because the offence can occur in a wide variety of circumstances and the penalties must be flexible.
Thirdly, the principle that those causing harm intentionally must be punished more severely than those causing harm
unintentionally is strictly observed in the case of manslaughter. Regarding symmetry of the fault and the
consequences, McLachlin says that when the risk of bodily harm is combined with the established “thin skull”
principle, the distinction between appreciation of the risk of bodily harm and the risk of death disappears. “When
considering the constitutionality of the requirement of foreseeability of bodily harm, the question…is whether the
fundamental principle of justice is satisfied that the gravity and blameworthiness of an offence must be commensurate
with the moral fault engaged by that offence. Fundamental justice does not require absolute
symmetry…consequences, or the absence of consequences, can properly affect the seriousness with which Parliament
treats specified conduct.”
 the unlawful act here was trafficking (the accused injected cocaine into the victim & in s.2 of the Controlled
    Drugs and Substances Act, the definition of ‘trafficking’ included ‘administering’.)
 all Judges agreed that only objective foresight was needed (not subjective), but they disagree to in what this
    objective foresight consists. The majority holds the same result as in Smithers.
 it is very hard to measure stigma (the editors call it an “unruly concept”)
 there is a problem with the idea that “stigma” can determine between whether the objective foresight is one of
    death or of bodily harm; how can it help?; does this judgment help us decide? Stigma is so imperfect a concept
    that it doesn’t help, although it is now the main vehicle in declaring statutes constitutional or unconstitutional. It
    seems a shaky reed upon which to make these decisions because it is not measurable [discretion of Judges?]

R. v. Godin (1993), S.C.C.
Facts: The N.B.C.A. held that the offence of aggravated assault required proof that the consequences (to wound,
maim, disfigure, or endanger life) were intended. They distinguished DeSousa and said that there would have to be
subjective foresight of the forbidden acts. the S.C.C. reversed this decision, but did not fully justify its position.
Held: Intent was not required respecting the consequences; the fault element was objective foresight of bodily
 The editors say “bodily harm” may have been a slip of the tongue because the express m/r required for assault
    under s.265(1) is applying force intentionally, with no mention of bodily harm. They also say that the effect of
    Godin is that the crime of aggravated assault has been added to the uncertain list of so-called predicate offences
    for which the fault requirement is much reduced. (p.500)
 there are 4 m/r standards that could be applicable to the consequence:
      1. the lowest form  no m/r & absolute liability if force is intentionally applied.
      2. objective foreseeability of harm  DeSousa and Creighton.
      3. objective foreseeability of wounding, etc.
      4. subjective foreseeability of bodily harm.
 the S.C.C. chose 2, citing DeSousa and Creighton.

           6.         Criminal Negligence

 there are many crimes in the Code where Parliament has said expressly that the m/r is objective, measured by the
  standard of the reasonable person (e.g. s.86, careless handling of a firearm). It is still Parliament’s job to define
  the elements of the offence, and it is up to the Courts to determine the constitutionality.
 in Creighton, the Court said that objective m/r for manslaughter was okay.
 in Logan, objective foresight under s.21(2) was said to be invalid in certain circumstances.
 the issue with Criminal Negligence (s.219) is “conflicting and complex”; is it objective or subjective m/r?

R. v Tutton and Tutton, [1989] S.C.C.
Facts: Accused were charged with manslaughter respecting the death of their 5-year-old son. It was alleged that they
had caused the death by criminal negligence through omitting to provide him necessaries of life. The son had been
 diagnosed as a diabetic and the parents were advised of his need to have insulin on a daily basis. They were members
of a religious sect that believed in faith healing. On one occasion the mother ceased administering insulin because she
believed that her son was being healed through the power of the Holy Spirit. His health immediately failed, and the
parents were strongly advised to continue with the insulin. The did, but the mother received a further vision from God
which she believed advised her that her son was in fact cured. She stopped the insulin “by God’s authority”. The son
rapidly became ill and died shortly after being admitted to hospital. The statute in question is similar to the common
nuisance statute in Thornton in that it speaks of a duty to (i) act or (ii) avoid omission. This case involved the
omission to provide the necessaries of life (s.215 was then the basis for the ‘duty imposed by law’.)
Held: There was an inconclusive 3-3 split as to the test for criminal negligence. Wilson supported the subjective test
because if the standard is objective, we will be punishing someone without a guilty mind. “[My colleagues] have, in
effect, held that the crime of criminal negligence is an absolute liability offence. Conviction follows on proof of
conduct which reveals a marked and substantial departure from the standard expected of a reasonably prudent person
in the circumstances regardless of what was actually in the accused’s mind at the time the act was committed.”
McIntyre supported the objective test: it doesn’t matter what the Tuttons were actually thinking, it is whether the
reasonable person would be aware of this risk. Regarding mistake of fact, he says Pappajohn does not hold for
offences resting upon the concept of negligence, where an unreasonable though honest belief would be negligently
held. (contra Wilson pp.467-468)
 if the subjective route is taken, criminal negligence becomes a species of recklessness.
 p.460 McIntyre is concerned with a subjective test taking criminal negligence too close to murder’s intent and
    holds that it is the conduct, not the intention which is examined. Wilson is more to the point here (p.466) where
    she says that intent is different from recklessness.
 the law was a mess at the time of this decision (some decisions were subjective, some objective). The real culprit
    here is the language of the statute s.219. McIntyre emphasises “shows” (being an objective word) whereas
    Wilson emphasises “wanton or reckless” (suggesting a subjective standard). Wilson says (p.464) that faced with
    such ambiguity, the Court should give the interpretation most consonant with the text and purpose of the provision
    as well as (where possible) the broader concepts and principles of the law.
 Parliament should clarify this but has not (they are “lazy with Criminal Law”); defining “criminal intent” could
    also have solved problems like in Steane or Buzzanga.
 to create an objective standard, Parliament could change the language to say “shows a marked departure from
    the standard of reasonable care.” (the language from Creighton)
 criminal negligence causing death does not have to be a “severable” unlawful act (whereas unlawful act
    manslaughter obviously must).
 the difference between the subjective and objective tests is not so different in practice. Subjective requires
    knowledge of the risk and proceeding anyway. Objective is never 100% objective: it is “subjectivised” by
    investing the reasonable person with the knowledge of the facts at hand (also, if an accused has an honest and
    reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the
    reasonableness of his conduct. {he gives the example of a welder on p.461the test is not done in a vacuum, and
    the 2 tests are close.}
 Wilson says that introducing subjective elements into objective standards risk being over-inclusive (mandating a
    lowering of the objective standard on a characteristic by characteristic basis) and risk the danger of being under-
    inclusive for those accused who have idiosyncrasies that cannot be articulated ex ante into the necessarily limited
    list of personal characteristics which can be grafted on to an objective standard.
 however, in this case, if a jury believes the Tuttons, its likely that they would be acquitted under a subjective test
    but convicted under an objective one.
 Lamer takes the objective approach, but qualifies this by saying that a “generous allowance” must be given for
    factors particular to the accused. {this brings the test within a fingernail of the subjective test}
 also notice that religious freedom cannot be claimed with something where physical harm is involved.

 the tests are more similar than Wilson thinks because of the usual dearth of direct evidence of the accused’s state
  of mind. As per McLachlin in Théroux, “the Crown [need not] provide the trier of fact with a mental snapshot.”
  Also, recklessness is difficult to determine on a strictly subjective basis (see Stewart p.540).
R. v. Anderson (1990), S.C.C.
Facts: Accused was charged with criminal negligence causing death when he ran a red light and killed another driver.
The trial Judge stated that neither the m/r nor the consequences of the manner of driving were material in the
Held: As the risk of harm increases, the significance of the distinction between the objective & subjective approaches
decreases. A finding that the impugned conduct is a marked departure from the standard is thus central to both the
objective and subjective approaches. The conclusion that there was a wanton or reckless disregard for the lives and
safety of others must be drawn from the conduct which is alleged to be a marked departure from the norm. If an
objective standard is used, this is determined on the basis of the state of mind of an ordinary prudent person in the
circumstances. If the subjective standard or its refinement are applied, the conclusion must be drawn from the
conduct of the accused. In this case, the conduct relied on is (a) the combination of drinking & driving, and (b) the
breach of the traffic light violation. The trial Judge concluded that the conduct was not a marked departure from the
norm. Here, the degree of negligence proved against the appellant was not increased by the fact that a collision
occurred and death resulted. If driving and drinking and running a red light was not a marked departure from the
standard, it did not become so because a collision occurred. The acquittal of the trial Judge was restored.
 if Lamer’s objective test were used, would we look at the reasonable actions of a thoughtless/distracted person?
    His argument carried to the extreme would give the same results as the subjective test. This is what McLachlin
    and La Forest say we can’t do (in Creighton) {although a case following McLachlin has taken mental incapacity
    into account when defining the standard.}
 Sopinka (delivering the judgment here) is not so convincing in trying to bridge the decisions in Tutton.

R. v. Creighton, [1993] S.C.C.
Facts: Accused injects cocaine into another person who subsequently dies. The Crown argued that the accused was
guilty of manslaughter as the death was the direct consequence of that unlawful act (administering the drug was
trafficking). The Court divided 5:4 whether personal factors could be considered in applying an objective standard.
Held: McLachlin (majority) Considerations of principle and policy dictate the maintenance of a single, uniform legal
standard of care, subject to one exception: incapacity to appreciate the nature of the risk. This is not to say that the
question of guilt is determined in a factual vacuum because the legal duty of the accused is particularised in
application by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite
care. Lamer refers to Gosset [where a cop killed a black guy] and says that the reasonable person will be invested
with any enhanced foresight by membership in a trained group {a higher standard}.
 McLachlin is being consistent, limiting the exception to capacities, but it seems unreasonable to ignore the fact in
    Gosset that it was a cop. Frailties are a different issue, but you can’t help taking enhancements into account.

          7.         The Mens Rea Controversy in Sexual Assault

 s.271 is a combination of the old Rape and Indecent Assault provisions. Now, there is a 3-tiered approach with
  s.271, 272, and 273. It is one crime with 3 different degrees.
 there are 3 big questions:
    1. what is the m/r? (Pappajohn and Sansregret)
    2. what is the a/r?
    3. what evidence is necessary to raise the mistake of fact defence (the “air of reality”)

Pappajohn v. R., [1980] S.C.C.
Facts: Appellant was charged with rape with his real estate saleswoman. The accused did not say mistake of fact, but
that she did consent. Before the trial Judge instructed the jury, his counsel argued that on the facts, the trial Judge
should put the defence of mistake of fact to the jury. He appeals on the ground that this was not done.
Held: McIntyre (majority): Where the trial Judge is asked to put a specific defence to the jury, he must consider
whether the evidence is sufficient. Here, the stories of the accused and the complainant are diametrically opposed. It
is not for the trial Judge to weigh them and prefer one to the other. There must be some evidence beyond the mere
assertion by counsel for the appellant of belief in consent. This evidence must appear from or be supported by
sources other than the appellant in order to give it any air of reality. In Plummer, [where the accused entered a room
where he was unaware a rape had just occurred. He was intercourse with the complainant who submitted without
protest because of continued fear] and in Morgan [where the complainant’s husband invited others to have
intercourse with his wife and that her show of resistance would be a sham] there was evidence, but not in the case at
bar. Dickson (dissent): The m/r must be proved with respect to all circumstances and consequences that form the a/r.
In a case of alleged rape, where a fact or circumstance is not known to, or is misapprehended by, the accused, leading
to a mistaken but honest belief in the consent of the woman, his act isn’t culpable in relation to that element of the
offence. A man should be punished only where he proceeds with an act of violation in knowledge that consent is
withheld, or in a state of recklessness as to whether willingness is present. Intention to commit the act of
intercourse, and to
 commit that act in the absence of consent, are 2 separate & distinct elements of the offence. Mistake is a defence
where it prevents an accused from having the m/r which the law requires. Mistake of fact is more accurately seen as a
negation of guilty intention than as the affirmation of a positive defence. It avails to an accused who acts innocently,
& nonetheless commits the a/r of an offence, and is a defence in the sense that it is raised by an accused. The defence
cannot be restricted to those situations in which the belief has been induced by information from a 3 rd party. The
defence is available only where there is sufficient evidence presented by an accused. An honest belief need not be
reasonable, but it is proper for the trial Judge to tell the jury that “if they think the alleged belief was unreasonable,
that may be 1 factor leading them to conclude that it was not really held; but they must look at the facts as a whole”.
 the evidence of folded clothes, etc. only goes to consent here, and not to mistake of fact.
 Dickson and McIntyre only disagree on whether the defence applies to the facts of the case at bar.
 Martland agrees with McIntyre, but dissents on whether the mistake has to be reasonable (he thinks it does.)
 Dickson acknowledges policy concerns (p.531) regarding reasonableness of mistake, but says “ traditional m/r”.
 the idea that the unreasonableness can be evidence that the belief was not honestly held is now codified (s.265(4)).
 to make m/r objective is an exception.

 Pickard: argues against Dickson’s position on mistake (which is taken to present the Court’s position on the issue)
  in that, because rape can be committed recklessly, an unreasonable mistake can be reckless in the sense of
  unacceptably careless with respect to the well-being of others. The act of penetration cannot be done other than
  intentionally, so recklessness can speak then only to the defendant’s relationship to the inculpatory circumstances.
 Stewart: argues that Pickard’s thesis ignores that the general approach to m/r is subjective. She ignores that her
  approach involves an objective standard, is preoccupied with developing a notion of culpability for the purposes
  of conviction without relating this to the question of penalty, and does not adequately demonstrate that her
  offence-by-offence model has advantages outweighing the disadvantages of departing from the search for sound
  principles. It is indeed true that recklessness in criminal law has been interpreted in the objective sense (usually
  involving a concept of gross negligence). The better view: insist that general principles be asserted in sexual
  assault context.

Sansregret v. R., [1985] S.C.C.
Facts: Appellant was told to leave from his lover’s house. He broke in days later, & in order to calm him down she
held out some hope of reconciliation and they had intercourse. She reported this to the police, asserting rape. The
appellant’s probation officer became involved & asked the complainant not to press charges. About a month later, the
appellant again broke into the house, picked up a butcher knife and came into the bedroom. The complainant said she
was in fear for her life and sanity, pretended again that there was some hope of reconciliation and they again had
intercourse. She swore that her consent was solely for the purpose of calming him down, to protect herself. The trial
Judge found that the appellant did not enter the house with intent to make a sexual assault and honestly believed that
the complainant was giving a free and genuine consent. The appellant was convicted of rape in the Court of Appeal
and appealed to the S.C.C. asserting that the defence of mistake of fact is open to an accused and that it is honesty,
not reasonableness of such a belief that is determinative.
Held: Pappajohn, Morgan, and Plummer do not cover a charge like here where consent is assumed from the outset
and only its nature (whether it was freely given or procured by threats) is in issue. Here, where the accused asserts an
honest belief, it must encompass not only the fact of consent, but also that it has been freely given & not procured by
threats. {The m/r for this charge is knowledge that the consent was given because of threats or fear of bodily harm, or
recklessness as to its nature. (p.546)} “Recklessness, to form a part of the criminal m/r, must have an element of the
subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the
result prohibited by the criminal law, nevertheless persists, despite the risk…it is in this sense that the term
‘recklessness’ is used in the criminal law, and it is clearly distinct from the concept of civil negligence.” There was an
abundance of evidence before the trial Judge upon which a finding of recklessness could have been made. There was
also evidence from which one can infer that the accused knew of the rape complaint from the 1 st incident. The trial
Judge’s application of the defence of mistake of fact would be supportable were it not for the fact that the trial Judge
found in addition that the appellant had been wilfully blind…this would preclude the defence and lead to a different
result. A finding of recklessness here could not override the defence of mistake of fact (the mere honesty of the belief
will support the ‘mistake of fact defence’, even where it is unreasonable.) On the other hand, where wilful blindness
is shown, the law presumes knowledge. To proceed w/ intercourse in these circumstances constitutes self-deception to
the point of wilful blindness. The trial Judge erred giving effect to the defence where wilful blindness was found.
“This is not to be taken as a retreat from the position in Pappajohn that the honest belief need not be reasonable. This
case rests on a different proposition. Having wilfully blinded himself to the facts before him, the fact that an accused
be enabled to preserved what could be called an honest belief…will not afford a defence because…he is fixed by law
with actual knowledge and his belief in another state of facts is irrelevant.”
 this is similar to Currie (p.435), in that the trial Judge speaks both of wilful blindness and (most unreasonable)
    honest belief. These are contradictory.
 mistake of belief is fine, but there has been no mistake if wilful blindness (Pappajohn is still upheld though).
 Parliament enacted s.273(2) to overrule Pappajohn requiring that the accused act reasonably (a retreat from basic
    Criminal Law principles to make conviction easier)
      Q: Is the stigma for this crime great enough so that we need a subjective m/r here? Nothing is said about
marked departure [what is required for criminal negligence] with respect to “reasonable steps”. Maybe it will be
read in, or maybe a subjective element will be snuck in through the words “circumstances known to the accused at the
time” (as in Tutton and Creighton).
 maybe it would be smarter for Parliament to create a separate offence of “Negligent Sexual Assault” with a lower
    maximum (this may save its constitutionality).

 Manson: criticises McIntyre’s conclusion that mistaken belief cannot exonerate in cases of wilful blindness. “[A]
  finding of honest belief can arise only if the accused has resolved the question…albeit erroneously, and there is no
  room any longer for a question of wilful blindness or recklessness. The former is an honest but mistaken belief
  …while the latter is a strong suspicion—deliberately unconfirmed.”

R. v Chase, [1987] S.C.C.
Facts: Respondent seized the complainant and grabbed her breasts, and was charged with sexual assault.
Held: “Sexual assault is an assault within any one of the definitions of the Criminal Code which is committed in
circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in
determining whether the impugned conduct has the requisite sexual nature is an objective one: ‘Viewed in the light of
all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer’. The part of the
body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the
act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by
force will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from
the evidence, may also be a factor. If the motive of the accused is sexual gratification…it may be a factor in
determining whether the conduct is sexual. Implicit in this view…is the notion that the offence is one requiring a
general intent only. To put upon the Crown the burden of proving a specific intent would go a long way toward
defeating the obvious purpose of the enactment. Moreover, there are strong reasons in social policy which would
support this view.” Here, grabbing the complainant’s breasts clearly constituted an assault of a sexual nature.

R. v. Bulmer, [1987] S.C.C.
Facts: Complainant, prostitute, is frightened into performing sexual acts with 3 accused. She denied giving consent
and receiving payment. There was no physical violence other than the various sexual acts. Accused said that there
was consent, and, in the alternative, that there was an honest but mistaken belief in consent. The trial Judge instructed
that the belief had to be both honest and reasonable.
Held: McIntyre: The trial Judge must ask: “In all the circumstances of this case, is there any reality in the defence?”
He must consider all the evidence, all the circumstances. The statement of the accused alleging a mistaken belief will
be a factor but will not by itself be decisive, and the defence can be sometimes put even in its total absence. The first
step is to decide whether the question should be put to the jury. This is where the “air of reality” test is applied. The
second step requires the trial Judge to explain the law to the jury, review the relevant evidence, and leave the jury
with the question of guilt or innocence. The jury should be told that the belief, if honestly held, need not be based
on reasonable grounds. s.265(4) does not change the law as applied in Pappajohn, but simply makes clear that in
determining the issue of the honesty of the asserted belief, the presence or absence of reasonable grounds are relevant
factors. Lamer (concurring): There must be some evidence supporting the defence before it is to be put to the jury.
However, “in my view the issue of mistaken belief in consent should also be submitted to the jury in all cases where
the accused testifies at trial that the complainant consented” [emphasis added]. This is because even if the jury
believes the complainant, the accused’s assertion cannot be disposed of completely unless consideration is then given
to his/her being honestly mistaken in believing that there was consent.
 McIntyre holds that if the accused and victim have diametrically opposed versions, it must be decided which
    version is believed. The question is “was there consent or not” and there is no room for middle ground.
 regarding what evidence is needed to raise the defence, Lamer’s position here (that if the accused takes the stand
    & claims it, this is enough) is now the law, although he is in dissent here.

 with the decision in R. v. Osolin, [1993] S.C.C., there are likely to be many more decisions where an acquittal is
  based on mistaken belief. Cory expressly rejected the McIntyre view that there must be a source of evidence other
  than the accused. “What is required is that the defence of mistaken belief be supported by evidence beyond the
  mere assertion of a mistaken belief.” There was also a clear 5:3 majority for the proposition that the defence may
  be available even where the complainant and the accused relate diametrically opposed versions of the facts.
 in R. v. Park (1995), S.C.C., the Court decided that the diametrically opposed versions were factors in
  determining whether the defence should be left with the jury but did not preclude the defence from being
  considered. For there to be an ‘air of reality’, the totality of the evidence for the accused needed to be reasonably
  & realistically capable of supporting that defence. This amounted to something more than a bare assertion, & the
  principle considerations are the complainant’s actual communicative behaviour, & the totality of the admissible &
  relevant evidence explaining how the accused perceived that behaviour to communicate consent. L'Heureux-Dubé
  also held that it is not necessary for an accused to allege a “belief” in consent, as opposed to asserting the
  presence of consent itself.
 Editors: so long as the crime requires knowledge, a mistake as to an essential ingredient, a belief in circumstances
  that would render the accused’s actions innocent in the eyes of the law, is a complete defence. “Honest” is
  tautologous because it is impossible to have a “dishonest belief”—they either believed or they didn’t. The focus
  must be on the accused’s belief. The courts profess that the mistake need not be reasonable but will deny the
  defence a place in the trial if they decide that the circumstances surrounding the incident do not give an air of
  reality to the defence. Is this giving with the left & taking with the right?
 the new s.273.1 seeks to define consent in the case of sexual assault, but is not expressly exhaustive. The new
  consent provisions seem adequately drafted and a welcome assertion of the “No Means No” philosophy.
 in R. v. M. (M.L.), [1994] S.C.C., the accused was charged with sexual assault for acts with his stepdaughter.
  Neither party spoke during the encounters and there was no evidence of any objection. The complainant explained
  her silence by saying that she was “scared”. The trial Judge convicted, but the Court of Appeal ordered a new trial
  on the basis that s.265(3) did not apply to vitiate consent and that the complainant must be shown to have offered
  some minimal word or gesture of objection. Sopinka restored the conviction. The judgment was oral, brief, and
  cryptic, but the Court decided that taking into account all the circumstances, including the evidence of the
  complainant which was accepted by the trial Judge, there was evidence upon which a properly instructed jury
  could convict. The Court of Appeal had erred in holding that the victim’s lack of resistance equated consent. The
  decision could stand for an interpretation that s.265(3) is not exhaustive.
 s.273.2 creates special limits on the mistake of fact defence and Parliament has reversed the substantive (but not
  the evidentiary) ruling in Pappajohn. The accused still has to pass the air of reality test, but this has been relaxed
  in Osolin. This defence will now never be open where his mistaken belief arose from self-induced intoxication,
  recklessness or wilful blindness, or, most importantly, where he did not take reasonable steps in the circumstances
  known to him to ascertain that the complainant was consenting. (The exclusion of recklessness or wilful blindness
  is difficult to fathom: Sansregret points out that if there was an honest belief, there could not be recklessness since
  there would be no awareness of the risk of consent. The same is true of wilful blindness.)
 for 4 possible Charter challenges to this substantive regime, see p.585.

          8.         Strict and Absolute Liability

 before Sault Ste. Marie, the Courts had to choose between full subjective m/r or absolute liability (no m/r).

R. v. City of Sault Ste. Marie, [1978] S.C.C.
Facts: The City was charged that it caused/permitted/did discharge or deposit materials into Cannon Creek, violating
s.32(1) of Ontario Water Resources Act. The question was whether m/r was required.
Held: Dickson discusses policy reasons regarding m/r versus absolute liability on pp.321-322. In conclusion on
p.329, he says that there should be a 3rd alternative to normal m/r offences and the mere showing of a/r. This is the
middle ground of negligence, and he calls it strict liability: “Offences for which there is no necessity for the
prosecution to prove the existence of m/r; the doing of the prohibited act prima facie imports the offence, leaving it
open to the accused to avoid liability by proving that he took all reasonable care.” {the burden is put on the
accused on the balance of probabilities to prove that he wasn’t negligent}
 a public welfare offence usually exists outside the Code in provincial or federal legislation. They relate to
   activities which can be carried on lawfully, but when unlawful pose a danger in some way to the public.
 the Code’s presumption of m/r is displaced when the crime is one of public welfare (it is then either negligence
   [strict liability] or absolute liability).

R. v. Chapin, [1979] S.C.C.
Facts: Accused goes duck hunting and, unknown to her, there is grain all around the pond. It is unlawful to hunt
migratory birds w/in ¼ mile of a place where bait has been deposited from s.14 of the Migratory Birds Regulations.
Held: This is not a “crime in the true sense” because violation is punishable upon summary conviction, and not by
indictment. There is an absence of the usual m/r signals “wilfully” or “with intent”; it seems clear that the offence is
designed to protect migratory birds from indiscriminate slaughter for the general welfare of the public. This is not
absolute liability: although summary conviction, the penalties are not minimalthe respondent says that these
support the full m/r position, they certainly support the prima facie classification of strict liability {the Court stated
in Sault Ste. Marie that public welfare offences would prima facie be in the category of strict liability} The best
defence of the Crown to shift this to absolute liability would be to suggest that allowing the defence of reasonable
care would considerably weaken the enforcement (but problems that may be encountered in enforcement are a very
unsure guide). Dickson also looks at the practicality of a hunter having to search a circular area with diameter of ½
mile for illegal bait, bearing in mind the terrain over which hunting is done and the fact that hunters often get into
position before first light. Here, on the evidence it would have been unreasonable to convict the respondent & the
appeal is dismissed.
 stigma language appears heremost public welfare offences should allow at least negligence.
 these cases do not require “marked departure”.
 remember from Kilbride v. Lake that even a/r offences have the defence of no volition (if the act is not voluntary,
    there is no a/r). There is also room for other defences.

                                               Summary: Regulatory Offences
  Express fault requirements                        Strict Liability                          Absolute Liability
       Crown must prove fault                  Crown proves act. Accused must prove              Crown proves act.
                                                          due diligence.
 it would appear that all provincial offences, and federal offences which do not incorporate Criminal Code
  standards, may be safely categorised as regulatory. Courts should give full expression to any express legislative
  fault requirement. In the case of all other regulatory offences, where the liberty interest is engaged, the Court
  should read in a defence of due diligence. Absolute liability offences should thus be very rare.

                 (a)            The Impact of the Charter

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.) (1986), S.C.C.
Facts: The Lieutenant-Governor of BC referred s.94(2) of the Motor Vehicle Amendment Act to the S.C.C. for a
judgment on its constitutionality under the Charter. It was an absolute liability offence with stiff fines & the
possibility of imprisonment.
Held: With regards to s.7 of the Charter, imprisonment deprives persons of their liberty. The combination of
imprisonment & of absolute liability violates s.7 and can only be salvaged if the authorities demonstrate under s.1
that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic
society, under the circumstances, a justified reasonable limit to one’s rights under s.7 {these circumstances are
exceptional and include such things as natural disasters, the outbreak of war, and epidemics}.
 Parliaments can make absolute liability offences whenever they want & could graft m/r onto public welfare
    offences, but in most cases, Judges must interpret from silent statutes.
 Lamer decided here that under the Charter, Courts can review substantive (and not just procedural) content. This
    is the “father of Vaillancourt”
 because of the liability of imprisonment, Court effectively says that it must be at least strict liability (category 2).
                                                         REVIEW CLASS
 recklessness as m/r: if explicitly said in the statute
                             if the statute is silent, the general rule is intention & recklessness
                             in Buzzanga, “wilfully” meant intention only (p.422)
                             in Blondin “knowing” included recklessness, but in Sandhu it did not
                           Pappajohn applied the general rule stated in Buzzanga
                           Théroux said the m/r for fraud was knowingly/recklessly
                           if the statute uses explicit words such as “knowing”, it seems to exclude recklessness

 factual causation:      there must be evidence that the act of the accused did contribute (beyond a reasonable
  doubt) to the caused injury [like a “but for” test]. This is a condition for finding causation [it must be beyond the
  de minimus range].
 legal causation:        once factual causation is established, is it legally sufficient to amount to cause at law [there
  are issues of whether the accused should be held liable for the result]. This builds on factual causation.

 if we accept criminal negligence as objective (obiter in Creighton), the standard is marked departure, something
  greater than ordinary negligence. In strict liability, the issue is different, simply the failure to show due diligence.

 from Harbottle, the standard for causation for murder 1 is higher (it is implicit in the decision that murder 2 is the
  same as manslaughter.

 the DeSousa and Creighton standards together apply to manslaughterobjective foreseeability of bodily harm.

   Martineau, Vaillancourt, and Logan state that as a constitutional rule, if the base crime requires subjective m/r
    (because of fundamental justice), so does the predicate offence. [Logan was an attempt: the “stigma” was said to
    be the same for attempted murder.]

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