The Actus Reus (Physical) Requirement for Criminal Liability

Criminal Law Summary – Final Exam Professor Sklar By H.G. The Actus Reus (Physical) Requirement for Criminal Liability ______________________________________________ 3 C. Causation ___________________________________________________________________________ 3 Smithers v. R. (1978) – Intervening Cause/Thin Skull___________________________________________ 3 R. v. Michael (1840) – Innocent Agent _______________________________________________________ 3 R. v. Blaue (1975 U.S.) – Thin Skull _________________________________________________________ 3 R. v. Smith – Original injury is an operating and substantial cause. ________________________________ 4 R. v. Harbottle – Restrictive test of substantial cause for murder __________________________________ 4 The Basic Subjective/Objective Distinction _____________________________________________ 4 R. v. Hundal – Subjective v. objective test ____________________________________________________ 4 R. v. Théroux – Def’n of subjective test ______________________________________________________ 5 R. v. Mulligan (1976) – Inference of intent ____________________________________________________ 5 R. v. Ortt (1969) – No presumption of intention ________________________________________________ 5 The Mens Rea (Mental State) Requirement for Criminal Liability ____________________________________________ 4 B. C. Mens Rea Offenses versus Strict and Absolute Liability Offenses (“Public Welfare”/”Regulatory”) ___________________________________________________________________ 5 Beaver v. R. – Possession needs awareness of character of substance ________________________________ 5 R. v. Pierce Fisheries – Typical regulatory offence (absolute liability) _______________________________ 5 R. v. City of Sault Ste. Marie – Strict liability for some regulatory offences __________________________ 6 R. v. Chapin (1979) – Typical regulatory offence (strict liability) __________________________________ 6 1. Charter Limitations ______________________________________________________________ 6 Reference re: S.94(2), B.C. Motor Vehicle Act (1986) – No imprisonment for absolute liability crimes ____ 6 D. Intention (Knowledge & Desire) _______________________________________________________ 6 R. v. Steane (1947 UK) – Duress precludes intent ______________________________________________ 6 R. v. Hibbert (1995) – Duress does not raise M/R requirement to desire _____________________________ 7 R. v. Buzzanga & Durocher – Wilful = subjective intention (minimum is knowledge) _________________ 7 R. v. Lewis (1979) – Motive does not = intention _______________________________________________ 7 The M/R for the Several Forms of Murder ______________________________________________ 8 R. v. Simpson – Subjective M/R for murder ___________________________________________________ 8 Vaillancourt v. R. – Objective foreseeability of death required for murder ____________________________ 8 R. v. Martineau – Subjective foreseeability of death required for murder _____________________________ 8 R. v. Smith, 1979 – Impulsive intent insufficient for Murder 1 ____________________________________ 8 R. v. Nygaard, 1989 _____________________________________________________________________ 9 Recklessness & Wilful Blindness ______________________________________________________ 9 Sansregret v. R. – Def’n of WB _____________________________________________________________ 9 R. v. Currie – Wilful blindness is subjective M/R _______________________________________________ 9 R. v. Jorgensen – Obscene videos case _______________________________________________________ 9 R. v. Blondin (B.C.) – Recklessness sufficient for importing narcotic _______________________________ 9 R. v. Sandhu (Ont.) – WB is minimum M/R for importing narcotic _______________________________ 10 R. v. Duong (Ont.) – WB in accessory after the fact ____________________________________________ 10 Charter Impact on Substantive Criminal Law ________________________________________ 10 1. Murder________________________________________________________________________ 10 2. Unlawfully Causing Bodily Harm _________________________________________________ 10 3. Unlawful Act Manslaughter ______________________________________________________ 10 4. Aggravated Assault _____________________________________________________________ 10 R. v. DeSouza – Unlawfully causing bodily harm _____________________________________________ 10 E. F. G. R. v. Creighton – M/R for manslaughter ____________________________________________________ 11 R. v. Krushel – Elements of criminal harassment ______________________________________________ 11 H. Criminal Negligence ______________________________________________________________ 11 R. v. Tutton & Tutton ___________________________________________________________________ 11 R. v. Waite ____________________________________________________________________________ 12 R. v. Creighton ________________________________________________________________________ 12 The Mens Rea for Sexual Assault _____________________________________________________ 12 R. v. Chase ____________________________________________________________________________ 12 R. v. Ewanchuck (1999) SCC – Elements of sexual assault ______________________________________ 13 R. v. Pappajohn ________________________________________________________________________ 13 Sansregret v. R. ________________________________________________________________________ 13 The Offence of Sexual Assault__________________________________________________________________________ 12 I. 2 The Actus Reus (Physical) Requirement for Criminal Liability C. Causation Not every crime requires a prohibited result – no causation inquiry in these cases. (Thornton – s. 180(a) endangering was enough, no one had to be injured.) Smithers v. R. (1978) – Intervening Cause/Thin Skull Facts: After a hockey game, Acc & deceased argued, with Acc threatening to get him later. 45 minutes later, Acc chased him and began punching him. Though he was being restrained, he managed to kick deceased in the stomach. Deceased vomited, and due to aspiration, died. Issue: Did kick cause vomiting? Did vomiting cause death? Ultimately, did assault cause death? Discussion: (Dickson) Expert evidence need not conclusively establish a causal link. Causation beyond a reasonable doubt is question for judge/jury. If causal link is established between kick & vomiting, epiglottal malfunction contributing to death does not prevent manslaughter conviction. Even if unlawful act alone would not have caused death, it‟s still a legal cause if it contributed to death.  Dickson took effort to distinguish this case from those where remoteness would be superimposed on a thin skull situation - said that had there been another intervening event, the chain of causation would be too attenuated. Causation problem because faulty epiglottis seems to intervene between assault and death. His own body is directly causally related to death. Justice/Fairness: foreseeability of intervening factor ought to be considered in determining whether Acc should be responsible (here it doesn‟t seem to have been). Smithers is still problematic because manslaughter requires at least intent to cause serious bodily harm that is likely to cause death. Is serious harm even objectively foreseeable from a kick in the stomach? R. v. Michael (1840) – Innocent Agent Facts: Acc instructed her baby‟s caregiver to administer a medicine to the baby, which was in fact poison. The caregiver‟s child, of his own volition, administered the substance and the baby died. Held: Acc is guilty of murder. Ratio: Acc‟s intention continued and was realized. R. v. Blaue (1975 U.S.) – Thin Skull Facts: Acc stabbed deceased. She refused blood transfusion that would have saved her life. She died. Issues: Did her refusal cause her death? What is the relationship between the stabbing and her death? Discussion: Her refusal of transfusion was a cause of death, but that didn‟t absolve Acc for his contribution. Acc takes victim as he finds her, including her religious beliefs. The fact that deceased didn‟t act to prevent her own death doesn‟t break causal link between stabbing & death. s. 224: Death which might have been prevented – person causes death notwithstanding that death from that cause may have been prevented by resorting to proper means (confirms causal link in Blaue). Intent to kill often overcomes causation problems, as in Blaue. 3 R. v. Smith – Original injury is an operating and substantial cause. Facts: In the course of a fight, Acc stabbed the deceased in the back, piercing his lung and causing hemorrhage. This was followed by a series of mistakes (dropping him, wrong medical treatment, etc.) Discussion: Causation of death issue. At the time of death, the original wound is seen as still an operating & substantial cause. Had the subsequent causes made the original wound merely their setting or part of the history, then death would not flow from the wound. It was found that in the interim between the stabbing and death, given the circumstances, there was no time for careful examination.  My opinion: since intention to kill can be inferred from use of weapon, an analogy can be drawn to Michael, where Acc intended death, set in motion events and result materialized. s.225: Death from treatment of injury – causal link not broken with improper treatment applied in good faith. R. v. Harbottle – Restrictive test of substantial cause for murder Facts: Acc and his companion, following a sexual assault, discussed how they would kill the victim. Then Acc held her so she couldn‟t struggle while companion strangled her. Issue: Is Acc‟s participation such that it could be characterized as 1 st degree murder? Discussion: (Cory) A restrictive test of substantial cause is applied due to gravity of crime & sentence. Actions of Acc must form an essential, substantial & integral part. Test for causal link much more rigorous for murder than for manslaughter (the contributing cause just outside de minimus range). s.231 (5): Hijacking, sexual assault, kidnapping – murders committed during the commission of enumerated offenses are elevated to Murder 1. (Still must prove intent for kill for murder.) Court of Ontario has held that test for causal link for Murder 2 is Smithers test (contributing cause outside de minimum range), not Harbottle test (contributing cause substantial & integral). The Mens Rea (Mental State) Requirement for Criminal Liability B. The Basic Subjective/Objective Distinction Subjective states of mind (the basis of most criminal liability – „faulty‟ states of mind):  Intention  Willful blindness  Recklessness Objective state of mind (awareness/intention are irrelevant)  Negligence (different from civil liability) R. v. Hundal – Subjective v. objective test Discussion: (Cory) Subjective test: determine what was actually in the mind of the Acc at moment of offense, whether he intended, knew or foresaw the consequences. Test of negligence is objective: was there a departure from the standard of care of the reasonable person? 4 R. v. Théroux – Def’n of subjective test Discussion: Except for negligence etc. cases, mens rea is a subjective test, concerned with whether Acc intended or was reckless as to consequences of actions, whether he appreciated them as a possibility. Sometimes subjective awareness of consequences can be inferred from the act itself. R. v. Mulligan (1976) – Inference of intent Discussion: (Martin) Intention is determined on the whole of the evidence, the Acc‟s acts, utterances and all other circumstances. Sometimes the probability of harm resulting from the act is so great that an inference of intention to produce consequences can be made. R. v. Ortt (1969) – No presumption of intention Discussion: Juries should not be charged that Acc is PRESUMED to have intended the natural consequences of his actions. Presumption suggests that Acc has onus to rebut, which is not true. Juries may be told that they may make reasonable inferences about natural consequences of actions (and all surrounding circumstances). C. Mens Rea Offenses versus Welfare”/”Regulatory”) Strict and Absolute Liability Offenses (“Public Beaver v. R. – Possession needs awareness of character of substance Facts: Acc sold drugs to police officer, claims to have believed the substance was actually sugar of milk. Issue: Does Opium & Narcotic Drug Act define possession as absolutely liability offense? (No mens rea requirement?) What about selling the substance? Discussion: (Cartwright) If Parliament wants to remove M/R requirement, the statute must be clear and explicit about it. Possession is the only „public welfare‟ offense carrying a mandatory prison sentence. However, the statute is clear that „representing‟ the substance to be a drug qualifies for trafficking, whether or not the substance is actually a drug. Held: Acquitted of possession. Convicted of trafficking. Dissent: (Fauteux) Parliament has demonstrated the intention to be exceptionally vigilant and firm in controlling drugs, and measures are generally directed at possession. The plain words of the statute indicate absolute liability. It is a public welfare offense. Possession is actually a „true crime‟ rather than a regulatory offense, according to Cartwright. R. v. Pierce Fisheries – Typical regulatory offence (absolute liability) Facts: Acc contravened the Fisheries Act by having some undersized lobsters on his premises, without being aware of it. Issue: Can he be guilty without M/R? Discussion: (Ritchie) Distinction is made between offences of a „truly criminal nature‟, which presume a requirement of M/R, and statutory offenses, which are not criminal in any real sense, created in the public interest. This statute was enacted to protect lobster beds from depletion and contains no reference 5 to knowledge/intent. In these cases, it would be impossible to prove intent. Furthermore, there is no stigma attached to these quasi-criminal offenses. Dissent: (Cartwright) The rule from Beaver applies: no possession without knowledge of character of substance. Also, absolute liability must be explicit in statute. A regulatory offence can become M/R offence if words like „knowingly‟, „wilfully‟, „intend‟ appear in statute. R. v. City of Sault Ste. Marie – Strict liability for some regulatory offences Discussion: (Dickson) Acc charged under Ontario Water Resources Act for pollution. The pollution resulted from garbage disposal through a contractor, and Acc denies having M/R to accompany “causing/permitting pollution,” the A/R. The court creates 3 rd category for regulatory offences, „strict liability‟, where Crown doesn‟t have to prove M/R, but burden is shifted to Acc to prove due diligence. So Crown proves A/R beyond reasonable doubt; Acc establishes they were not negligent on balance of probabilities. Held: New trial ordered so Acc can raise defence. Proving M/R for regulatory offences is very difficult. Strict & absolute liability for convenience of enforcement. Are we punishing morally innocent? R. v. Chapin (1979) – Typical regulatory offence (strict liability) Facts: Acc hunting ducks claims to have been unaware of grain nearby. Migratory Birds Regulation makes it unlawful to hunt migratory birds within a quarter km of bait. Violation can lead to fine or imprisonment. Issue: What category of offence is this? Held: Strict liability. She has defence of due diligence available to her. Ratio: (Dickson) - Not a M/R offence – no language of state of mind; goal is to preserve ducks for general welfare. - Not absolute liability – possible sentence of imprisonment; there is no prohibition on hunting. - Strict liability – penalty is small fine; she has the defence of reasonable care. 1. Charter Limitations Reference re: S.94(2), B.C. Motor Vehicle Act (1986) – No imprisonment for absolute liability crimes Issue: Does impugned section which makes driving without a license an absolutely liability offence offend s.7 of Charter? Discussion: (Lamer) The penalty for violation is imprisonment, which violates s.7 for absolute liability offences. A fundamental principle of criminal justice is that the morally innocent not be deprived of liberty. Legislation explicitly categorized this as absolute liability offence – s.7 gives court power to make substantive review of law. D. Intention (Knowledge & Desire) R. v. Steane (1947 UK) – Duress precludes intent 6 Facts: Acc lived in Germany when was broke out. He was arrested and performed broadcasts for the Germans. He is charged with intending to assist the enemy and doing acts to assist the enemy. He claims to have acted out of fear for his family and his own safety (he had endured assaults). Discussion: The jury was not properly charged when they were told that a man is taken to intend the natural consequences of his acts, and were not reminded of his defence of duress. They may have understood that to mean that intension MUST be inferred from his actions. When a person is under the power of others, that inference isn‟t available. Knowledge that propaganda broadcasts would assist the enemy was defeated by his innocent intention to protect himself and his family. It seems that where duress is involved, knowledge is not sufficient intent - requires desire (direct intention).  This is not a consistent interpretation of M/R. Usually knowledge (indirect intention) that actions will cause prohibited results is sufficient intent. Confused intent with motive, as well as with duress. R. v. Hibbert (1995) – Duress does not raise M/R requirement to desire Facts: Fearing for his own life, Acc brought victim over to the man who then shot him. Acc charged with s. 21(1)(b), doing something with the purpose of aiding a person to commit an offense. Issue: Did Acc intend to aid in the murder? Discussion: This clarifies Steane. Duress does not negate M/R (which requires knowledge, not desire), but it can be a defense. R. v. Buzzanga & Durocher – Wilful = subjective intention (minimum is knowledge) Facts: Acc distributed pamphlet with inflammatory incitations against the French community. They claim it was to oppose the apathy developing towards French language issues and to create a controversy. They are charged with „wilfully promoting hatred‟, s. 319(2). Discussion: When M/R element isn‟t explicitly defined or dispensed with for an offence, the normal requirement is intention or recklessness. Since „wilful‟ is included in offence, M/R is limited to the intention to promote hatred. The greater the likelihood that a consequence will result, the easier it is to infer intention, though it remains a subjective inquiry. s. 319(2) does not require any harm to result – the fact that no one acted on the pamphlet doesn‟t mean it didn‟t promote hatred. Trial judge erred in equating desire to cause controversy with the will to promote hatred. Reckless: person foresees that action MAY cause the result and takes deliberate and unjustifiable risk anyway; the degree of likelihood that person foresaw is anything less than certainty (anywhere between 0 and 100% chance). R. v. Lewis (1979) – Motive does not = intention Discussion: Acc claims not to have known that the package he mailed to deceased contained a bomb. Intention does not = motive. M/R does not involve motive. It‟s legally irrelevant to criminal responsibility, but relevant as EVIDENCE of (or lack of) intent, among other things. 7 E. The M/R for the Several Forms of Murder R. v. Simpson – Subjective M/R for murder Discussion: Jury was mischarged as to requisite intent for murder. Judge incorrectly summarized s.229(a)(ii) as intending to cause bodily harm that he…OUGHT to have known was likely to cause death. While this objective basis may be evidence of Acc did know, the requisite intent is actual knowledge, subjective. s.686: even when jury is mischarged, conviction may be upheld if conviction would be inevitable without the error. Vaillancourt v. R. – Objective foreseeability of death required for murder Facts: Acc & an accomplice plan to carry out a robbery agreeing not to use guns. Accomplice brings a gun and Acc insists that he unload it. It wasn‟t fully unloaded and was used to kill someone during the robbery. Acc claims to have believed the gun to be unloaded. Acc is charged with murder through the combination of s.21(2), common intention of parties to an offence, and (old code) 215(d), death caused while committing a enumerated offence if a weapon is involved (constructive murder). Issue: Constitutional validity of 215(d) alone and in combination with 21(2), under Charter. Held: 215(d) alone is not valid. Appeal allowed, new trial. Ratio: (Lamer) Proof that Acc performed act in 215(d) substitutes for proof of subjective foresight or even objective foreseeability of likelihood of death. Under Re: Motor Vehicle Act, minimum mental state of at least objective foreseeability is required where imprisonment is sentence. Substituted element must be the equivalent of requiring the objective foreseeability of death. Under 215(d), jury could convict of murder without being satisfied that Acc had minimum mental state. Infringes Charter ss.7 & 11(d). R. v. Martineau – Subjective foreseeability of death required for murder Facts: After a B&E and robbery, Acc‟s companion shot and killed the two occupants. Acc claims that he thought it would only be B&E. Under combination of ss.230(a) and 21(2), Acc convicted of 2 nd degree murder, overturned at appeal for reasons given in Vaillancourt. Crown appealed. Discussion: (Lamer) Minimum mental element for murder raised to subjective foresight. It‟s the only state of mind morally culpable enough to warrant the stigma & punishment of murder. Deterrence isn‟t sufficient purpose to save it under s.1 of Charter because convicting persons of murder who had no intention or foresight of death is not necessary. Manslaughter carries range of sentence that can better respond to cases lacking subjective foresight. 230(a) is unconstitutional. Appeal dismissed. Concurring: (Sopinka) This case is governed by Vaillancourt, which is enough to dismiss this appeal. Court should not address subjective foresight because it‟s unnecessary to decide this case. Dissent: (L‟H-D) Test of objective foreseeability of death does not offend principles of fundamental justice. It‟s constitutionally permissible to define the mental element for murder with reference to intention to harm the victim with death resulting, and Parliament has that prerogative. Social stigma problem is overstated. R. v. Smith, 1979 – Impulsive intent insufficient for Murder 1 Facts: Acc & deceased have an argument. Acc shoots deceased in the shoulder, who ran away. Acc shot again, felling the deceased. Acc approached where deceased was lying and shot him in the head. 8 Issue: Is this murder sufficiently planned and deliberate to be Murder 1? Held: No. Convicted of Murder 2. Ratio: This was definitely intentional murder, but it was impulsive, not planned. Sklar believes it was wrong for judge to suggest Murder 1 to jury. Remember Oslin, „air of reality‟. R. v. Nygaard, 1989 Facts: Acc kills victim with two strong swings to the head with a baseball bat. Discussion: (Cory) S.229(a) (ii): Intent to cause grave and serious bodily harm, such that Acc knew it was likely to cause death, and being reckless as to whether death ensues, is sufficient for murder. Deliberately causing bodily harm that one knows is likely to cause death and persisting despite the risk is just as morally culpable as specifically intending to kill. F. Recklessness & Wilful Blindness Sansregret v. R. – Def’n of WB Recklessness: subjective awareness (suspicion) of risk that a result prohibited by criminal law could be brought about, but persisting in conduct anyway. Wilful Blindness: recklessness + deliberately failing to inquire because of desire not to know the truth. R. v. Currie – Wilful blindness is subjective M/R Facts: Acc charged with unlawfully & knowingly uttering a forged document with intent to use it as if it were genuine. Discussion: (Martin) Trial judge erred in finding wilful blindness because he OUGHT to have made inquiries; that‟s an objective standard. Offence requires knowledge. Def‟n of WB: Acc is „put on notice‟ but declines to make further inquiries because he doesn‟t want to know; he is deliberately ignorant. WB = recklessness + the DECISION not to discover the facts. WB is as blameworthy as knowledge, usually equated to knowledge. R. v. Jorgensen – Obscene videos case Issue: Did Acc „shut his eyes‟ because he strongly suspected that looking would fix him with knowledge? Held: No evidence that Acc had any knowledge or suspicion beyond the fact that the videos were about sex. Disagreement about whether recklessness is sufficient M/R for importing a narcotic. R. v. Blondin (B.C.) – Recklessness sufficient for importing narcotic Facts: Acc imported scuba tank which was found to contain 23 lbs of hash. Issues: Minimum M/R for importing a narcotic, regarding existence and nature of substance. 9 Discussion: 1) Recklessness is minimum standard of M/R for this offence. 2) Proof of knowledge that substance is merely unlawful to import is insufficient for this offence. Crown must prove that Acc knew/ was reckless that substance was a narcotic. According to Blondin, knowledge, WB and recklessness all suffice as M/R for importing a narcotic. (Remember, recklessness doesn‟t require a strong suspicion: 1-99% chance.) R. v. Sandhu (Ont.) – WB is minimum M/R for importing narcotic Facts: Acc‟s luggage & wallet were found to contain heroine. Acc claims to have been totally ignorant of it. Discussion: Trial judge erred in instructing jury that recklessness was sufficient M/R for this offence. Wilful blindness is minimum requirement. Controversy between Blondin and Sandhu re: minimum M/R requirement for importing narcotic not resolved. R. v. Duong (Ont.) – WB in accessory after the fact Discussion: Acc charged with „accessory after the fact‟ to murder, s. 23(1): „knowing a person is party to an offence, receives…that person to enable him to escape.‟ - Acc allowed suspect to stay with him. Acc knew he was a suspect and didn‟t inquired, allegedly because he thought Acc wouldn‟t tell him. - Guilt turns on decision not to inquire, not on hypothetical result of inquiries never made. G. Charter Impact on Substantive Criminal Law 1. 2. 3. 4. Murder Unlawfully Causing Bodily Harm Unlawful Act Manslaughter Aggravated Assault R. v. DeSouza – Unlawfully causing bodily harm Facts: During a fight, the Acc threw a bottle against the wall and struck a bystander with glass. Discussion: Acc challenged s.269 under the Charter because it does not require subjective M/R for causing bodily harm. - It is constitutionally sufficient that the mental element of underlying offence not be absolute liability; it must be prov or fed offence, and this unlawful act must be likely to injure someone – objective foresight of bodily harm. There is no constitutional requirement of subjective M/R for dangerous consequences of culpable acts. Court couldn‟t charge Assault causing bodily harm here because there was no intent to assault the victim. (There is no CML rule of transfer of intent with assault, as there exists with murder.) Some crimes have traditionally been defined as not requiring subjective M/R for every element of A/R, such as those with predicate offences. 10 Martineau: Subjective M/R cannot be done away with for murder. R. v. Creighton – M/R for manslaughter Facts: Acc injects drugs into deceased, resulting in death. The predicate offence is trafficking. Issue: Is objective test for manslaughter reasonable foresight of DEATH or of BODILY HARM? Held: Bodily harm, which is neither trivial nor transitory, in the context of a dangerous act. Ratio: The stigma and range of sentence attached to manslaughter are appropriate to require objective foresight of bodily harm. By definition, it‟s an unintentional crime. This follows the thin skull rule: the perpetrator who undertakes unlawful, dangerous conduct, which may foreseeably injure others, is responsible for consequences, even death. Dissent: The stigma and possible life imprisonment require objective foresight of death. Had the Dissent in Creighton been the majority, this would have contradicted Smithers and Jobidan, and would have limited/eliminated the thin skull rule in criminal law. R. v. Krushel – Elements of criminal harassment Discussion: Challenge to s.264, criminal harassment, because of lack of M/R requirement for consequences of reasonable fear. It doesn‟t require intent to cause fear. - The M/R requirement is intention to engage in prohibited conduct with knowledge/recklessness that victim is harassed by it. Foresight of causing fear is not required to hold victim responsible. - 2 A/R requirements: 1) conduct of following, besetting, etc. + 2) causing fear. - 1) requires subjective M/R; 2) requires no M/R - There must be a causal link between 1) and 2). Aggravated Assault: s. 268, offence with a predicate – underlying offence of assault with objective foresight of wounding, maiming, etc. This follows thin skull rule (without death). H. Criminal Negligence s. 219: doing something, or omitting to do what is one‟s duty, showing wanton or reckless disregard for safety/health of others. R. v. Tutton & Tutton Facts: Parents charged with manslaughter, with criminal negligence as predicate offence, through omitting to provide necessaries of life, s.215. They withheld insulin from their son, believing that god cured him, and he died. The mother had withheld insulin once before and was warned by doctors. Issue: Whether test for M/R behind criminal negligence, conduct showing „wanton/reckless disregard for life/safety‟, is subjective or objective. McIntyre: Objective. Negligence is the opposite of thought-directed action. The purpose of the provision is to restrain conduct and results, to punish consequences of mindless action. Surrounding circumstances are still considered, as well as Acc‟s perception of facts, such as with defence of mistake of fact (to assess reasonableness of conduct). However, as opposed to Pappajohn, honestly held belief must be reasonable. Wilson: Subjective. Absent a blameworthy state of mind, Acc would not deserve sentence and stigma of manslaughter. “Wanton/reckless disregard” requires some degree of advertence to risk. In some cases, this may be inferred from conduct. The subjective test is superior to altering the objective test for every 11 Acc. Personal characteristics would only be relevant as related to whether Acc was aware or wilfully blind as to the RISK. - Honestly held mistaken belief: should be same test as Pappajohn. Some people can‟t meet reasonableness standard. Controversy re: subjective/objective state of mind for criminal negligence not resolved in Tutton, court split 4/4. This case has no precedent value on that issue. McIntyre focussed on “shows”; Wilson focussed on “wanton/reckless”. She argued that where there is ambiguity, we must interpret according to principles of criminal law, where the standard is subjective M/R, and the exception is objective M/R. R. v. Waite Facts: Acc killed 4 people on a hayride with his car. Discussion: (Wilson) Trial judge erred in instructing jury on mental element of criminal negligence, saying „a deliberate & wilful assumption of risk‟. That onus on the Crown is too high. M/R is awareness of prohibited risk or wilful blindness. R. v. Creighton Issue: Whether personal factors of Acc can be considered in applying objective standard. McLachlin: Principle and policy dictate a single, uniform standard of care with one exception: incapacity to appreciate nature of risk. Lamer: Question becomes: would reasonable person in position of Acc have been capable of foreseeing the risk? In determination of what is reasonable, the skill/expertise of Acc may be considered. If a reasonable person with frailties of Acc would have perceived the risk, Acc must be convicted. Human frailties defined as personal characteristics habitually affecting Acc‟s awareness of circumstances which create risk; traits beyond control of Acc. The Offence of Sexual Assault I. 5 issues: 1. 2. 3. 4. 5. R. v. Chase Issue: The definition of the crime of sexual assault. Discussion: It‟s an assault committed in circumstances of a sexual nature, where sexual integrity of victim is violated. - The test as to the sexual nature of the assault is objective: Would a reasonable observer think it is sexual? The Mens Rea for Sexual Assault A/R: lack of consent: Ewanchuk, s.271.1/ 265.3 A/R: sexual contact: Chase M/R: knowledge or reckless as to non-consent: Pappajohn/ Sansregret (+ M/R for assault) mistaken belief in consent, s.273.2 does mistake have to be reasonable? 12 - Needs general intent only, not intent to have sex or sexual contact. R. v. Ewanchuck (1999) SCC – Elements of sexual assault Facts: Acc invited 17 year old girl into his trailer to „look at his artwork‟. He initiated several touching incidents, each progressively more intimate. She said no on each occasion, and he would stop, but then persist again. Acc was acquitted at trial, relying on the defence of „implied consent‟, which is not available to assault cases. Complainant said she was afraid but actively projected a relaxed and unafraid visage. Held: Convicted Discussion: There are 3 elements of A/R for sexual assault: contact, sexual nature of contact, absence of consent. The sexual nature of contact is determined objectively. The Crown need not prove M/R with regards to sexual nature. General intent: the Crown need only prove that Acc intended to touch the complainant (to satisfy the „assault‟ requirement). There is a defence of mistake of fact for Acc who honestly believed that complainant had consented to contact, which is effectively a denial of M/R. It does not impose burden on Acc. - In the context of a sexual assault, „consent‟ as part of the A/R refers to whether the complaining was subjectively consenting (or whether her consent was vitiated by fear, etc.). „Consent‟ as part of the M/R of the Acc refers to whether he believed that complainant had communicated consent to engage in the sexual activity in question (not just that she wasn‟t saying no). The minimum standard is recklessness as to nonconsent. - Honest mistaken belief in consent is limited. It isn‟t supported by silence, passivity or ambiguous conduct. Once a woman has expressed unwillingness, there needs to be a clear and unequivocal (and unvitiated yes before resuming sexual contact. - In this case, the Acc stopped every time the complainant said no. He was fully aware that she was not consenting. R. v. Pappajohn Issue: Should defence of mistake of fact with regards to belief in consent of claimant be allowed? Majority: No. Acc only claimed consent, no evidence about mistake. Issue is only consent or nonconsent. Acc‟s evidence regarding behaviour of victim does not suggest possibility that she may not be consenting. If it‟s necessary to charge the defence in this case, it would be necessary to charge it in every case of sexual assault. Dissent: 1) M/R of rape: intention/recklessless applied to all elements of crime, including lack of consent. 2) If sufficient evidence is presented in testimony of Acc or circumstances, a mistaken belief in consent is an available defence. 3) Whether there are reasonable grounds for mistaken belief must be considered to determine whether it was honestly held, but it need not be reasonable. 4) Circumstances in this case provide sufficient evidence for charge to jury on defence of mistake of fact. Sansregret v. R. Facts: On 2 occasions, Acc threatens victim who consent to sex out of fear. Issue: Was Acc aware that consent was obtained through fear? Can he raise defence of mistaken belief of consent? 13 Discussion: Trial judge made 2 irreconcilable findings: Acc was wilfully blind to victim‟s non-consent; Acc honestly believed she was freely consenting. WB fixes Acc with knowledge in law. Belief in another set of facts is not open as a defence to Acc. No room for defence of mistaken belief in consent. Acc claimed to have an (unreasonable) belief in consent. SCC changed facts of case: that Acc‟s parole officer informed him of first assault charge. s.273.2: Acc must take reasonable steps in circumstances to ascertain if the woman is consenting. There is no more unreasonable mistaken belief in consent. Sometimes asking isn‟t even sufficient, if there is reason to believe that she will say yes out of fear. - This provision does not offend the Charter. 14