crimes based on a predicate offence - uvic lss | the ... - law 102 - final.docx · web viewbut this...

Sharon Zheng | LAW 102 | Spring 2012| Gerry Ferguson

EVIDENCE AND PROOFFoundation for proof of criminal justice:

1. Presumption of innocence2. Proof of GUILT, BEYOND A REASONABLE DOUBT

a. S.11(d) Charter: any person charged with an offence has the right to be presume innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal

Woolmington v. DPP 1935s.11(d) Charter:

GUILTa. [AR + MR] – [Defences]b. Burden: all crown onus, including disproving BRD relevant

defences (Woolmington)i. If intent was required Crown must prove it was intentional

(Woolmington)ii. EXCEPTIONS:

i. some defences require an “air of reality” shown by the accused first (self defence, provocation) (Woolmington)

ii. insanity: s.16 everyone is presumed sane, burden on party raising the plea on bop (violates s. 11(d) but saved by s.1 – Chaulk, Morisette)

iii. some statutory provisions (ex. Oakes reverse onus – unconstitutional)

Woolmington 1935 UK

R v. Oakes 2001 – reverse onus for PPT unconstitutional

BEYOND REASONABLE DOUBTa. Description to be articulated by judge to jury (Lifchus):

a. Standard of proof is linked with presumption of innocenceb. Burden of proof rests on the Crownc. Not based on sympathy/ prejudice, not a frivolous doubtd. Must be derived logically from the evidence/ lack ofe. Probably guilty is not sufficient, but it’s impossible to prove absolute

certainty toof. Reasonable doubt is a technical expression with special meaning in

the criminal law contextg. Not to be analogized with decisions made in everyday life or moral

choices - it’s not encountered in everyday lifeh. Shouldn’t replace “reasonable” with other terms (serious, substantial,

haunting)i. Shouldn’t talk about “sureness” before defining BRD

b. Not absolute certainty, but much closer to certainty than bop (Starr)

R v. Lifchus (1997)

Starr (2000) – describes how Lifchus should be read

ACTUS REUS1. All offences are in the CC or other statute (no CL offences)

a. Cannot be impermissively vague/ overbroadb. Cannot be retroactive (s. 11(g) Charter)

CC s.9

2. Actus Reus is the prohibited conduct:a. VOLUNTARYb. ACT or OMISSION OF A LEGAL DUTY or STATUS thatc. CAUSES PRESCRIBED HARM or OCCURS IN

PROHIBITED CIRCUMSTANCES or both3. VOLUNTARY Rabey (1980), Parks

(1992), Daviault 1


a. Acts must be voluntary (this is a fundamental principle of fairness and natl justice but not in the CC)

(1994), Stone (2000)

i. The most basic physical voluntarinessii. Even in cases of strict liability where no MR required Kilbride (NZ)

b. To be voluntary, must be able to REASON and CHOOSE (willed physical act/ omission)

c. Physical involuntariness can bei. Conscious: spasm, twitch, fall, mechanical vehicle

failure, physical impossibility to fulfill legal dutyii. Unconscious: involuntary intoxication (King),

concussioniii. NOT moral involuntariness (Ruzic – defence of

duress/ compulsion)

Bratty (1963) - the accused alleged that he killed the victim while unconscious during an episode of psychomotor epilepsy]Ruzic – duress to import heroine

4. STATUSa. Criminalizes a state of being, likely offends PFJs under s. 7

Charter5. ACT

a. One Continuous Act Theory:i. An unintentional act followed by an intentional

omission to rectify that act or its consequences can be regarded in toto (‘altogether’) as an intentional act when reality and common sense so require

6. OMISSION OF A LEGAL DUTYa. No general legal duty to be a good Samaritanb. An omission is a failure to act where the law imposes a

legal duty to actc. Specific omission offences

i. s. 50(b) - fails to report to the police a high treason [s. 46(1)] that is about to be committed

ii. s. 80 - breach of duty in regard to the care of explosives [s. 79]iii. s. 127 - failing to obey a court orderiv. s. 129(b) - omitting to assist a police officer when requestedv. s. 252(1) - failing to stop and render assistance after being involved in

an accident.vi. s. 254(5) - failing to provide a sample of your breath.

d. General Omission Offencesi. 180(2)(a): Common Nuisance: unlawful act or failure

to discharge a legal duty which endangers lives, safety, health, property or comfort of the public …

ii. 220/221: Criminal Negligence Causing Death/Bodily Harm

iii. 219: Criminal negligence: doing anything or omitting to discharge a legal duty that shows wanton or reckless disregard for the lives and safety of others

1. 219(2): Duty = any duty imposed by law2. COAs: likely statutes, CL (OCA: Thornton =

breach of CL tort duty)3. SCC: likely statutes, unsure about CL

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4. ISSUE: does this violate s. 9 of the CC? Diff provinces may have different laws! SOLUTION: write duties into the CC

e. Legal duties:

COMMON LAW

CC (1892)

1. Relationships of dependency (Popin, Nixon)

1s 215(1): duty to provide necessaries of life in relationships of dependency (Popin)(a): parent for child < 16: duty to provide necessaries of life(b): spouse / CL-partner to each other(c): to a person under your charge if that person is unable to withdraw from your charge, or to provide necessities for themselves (Nixon)s. 217:

Popin: OCA: parent has a CL duty to take rsbl steps to protect child from illegal violenceNixon: 1990 BCCA: police officer has a CL duty to provide care and protection to inmates

2. Undertaking to do something

s. 217 legal duty to DO an act one has undertaken to do, if an omission to do the act is (or may be) dangerous to life. When one seriously commits oneself to undertaking which clearly expresses intent to be legally bound, and usually but not necessarily involved being relied upon (flows from the actions of the acc and not from the relationship between the parties)Defined in Browne (1997)

Browne: 1997: failure to render assistance to drug partner when she had an overdose after he injected her w/ crack– no duty. Had undertaken to take her to the hospital when she swallowed cocaine – did not undertake a legal duty

3. Duty to use reasonable care with dangerous objects/ when performing dangerous tasks (Coyne, Cuerrier?)

s. 216: legal duty to have and to use reasonable knowledge, skill and care in: undertaking any act that may endanger the life of another person (except in cases of necessity), undertaking to administer surgical or medical treatment to another person (except in cases of necessity)

(SCC Thornton, Cuerrier? Miller in Canada?)

Coyne: NBCA: in regard to the offence of criminal negligence causing death

Thornton: 1991, ONCA: failure to disclose HIV+ when donating blood. SCC relied on s.216; CA relied on CL tort duty in criminal negl. (s219)

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7. CONCURRENCE/ CONTEMPORANEITYa. The act is not criminal unless the mind is also criminal Coke’s Institutes

(1641)b. AR and MR must be concurrent, but flexible (complete

concurrence not necessary)Fagan, Miller, Cooper, Williams

i. MR must be present at come point during the AR (between the beginning and end of the wrongful transaction) (Cooper)

ii. “One continuous act” approach: can treat separate acts/ omissions as one continuous act/ transaction even if it stretches logic a bit, so that MR exists during the continuous act

Cooper (approved Meli and Fagan) – murder by strangulation, acc only remembered wanting to hurt the victim, held guiltyMeli – man beaten and thrown off cliff, died of exposureMiller (UK) – squatter accidentally caused fire, ignored itFagan 1969 – acc involuntarily drove onto officer’s foot, then stalled in removing it

iii. Can’t stretch it too far though – act may fully be done before MR enters

Williams – failure to disclose HIV+, unknown whether victim infected before or after accused knew of his status

CAUSATION1. Crown must prove causation BRD if it’s part of the crime (not

codified)2. Factual causation: some causal link (physical fact) between

the conduct and the harm

No connection between consequence and act in:Winning 1975 (credit card), White 1910 (poison/ heart attack), Johnson 1976 (fight, uncertain who caused death)

3. Legal Causation: for criminal liability, the factual cause must reach legal causation

a. ALL CRIMES except first degree murder:i. A “significant contributing cause” (Nette)ii. Which is supposed to mean the same thing as “any

contributory cause that is beyond the de minimis range” (Smithers)

iii. NOTE: they don’t actually mean the same thing – Nette restatement of Smithers increases the standard

b. FIRST DEGREE MURDER

Blaue 1975 (UK, refusing blood transfusions after stab)Smithers 1978 (malfunctioning epiglottis after kick) Cribbin 1998 (acc beat victim, drown in own blood) Nette (95 yr old died after tied by robbers)

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i. Must be an “essential, substantial and integral part of killing the victim” (Harbottle)

ii. NOTE: substantial > significant – intuitive?

Harbottle 1993: acc helped companion confine, sexually assault and strangle victim (guilty)

c. Gunfight/ streetrace: where there is one danger and each participant bears equal responsibility for the event, there is significant contributing cause (SRJ)

d. Impaired driving: once impairment is proven, assumed that impairment contributed to the accident unless there’s another innocent explanation for the accident (White)

e. Thin skull: take your victims as you find them – not intervening cause (Smithers, Blaue)

f. Intervening cause: i. Will negate legal causation for the original act IF the

intervening cause is independent of the original act AND not acting in concert with the accused (White)

ii. Will not negate legal causation if it’s a direct result of original act (Blaue, Pagett)

iii. Special rules for homicide: certain acts don’t count as interventions

g. Remoteness: a cause might be too remote to establish criminal liability (suggested in Smithers)

SRJ – gunfight, all liable

Impaired driving a cause in White, Andrews. Not a cause in Wilmot (bike swerved in)

Smithers 1978 – malfuc epiglottis.White 1994– poisoning/ independent heart attackBlaue 1975: refusal of blood transfusions (religious beliefs) = direct result of wound caused by accusedPagett 1983 UK: A used V as shield, shot by police. A caused shooting, therefore caused V’s death.

MENS REA1. "Actus non facit reum, nisi mens sit rea" (The act is not criminal

[guilty] unless the mind is also criminal [guilty])2. MR has no settled meaning, no CC definition and is not stated as

required in the CC (but should!)a. ought not to punish the morally innocent, andb. s.7: the level of moral fault for an offence ought to be

proportionate to the seriousness and consequences of that offence

3. Shift in definition: moral blameworthiness (evil and depravity - normative) specific states of mind (descriptive)

Lord Coke, 3rd Institute (1641).

Ref re: Motor Vehicles Act, Martineau, Creighton

4. Principle of Symmetrya. There must be a mens rea element for each element of

the actus (symmetry)SSM

b. EXCEPTION - De Sousa (1991): there must be an element of personal fault, but not necessarily in regard to each and every element of AR

c. RESTRICTED to predicate offences by Creightoni. AKA the consequences need no MR. Ex:

De Sousa 1991: charge of unlawfully cauding bodily harm

Creighton 1993:

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1. assault causing bodily harm,2. aggravated assault,3. unlawfully causing bodily harm, and4. unlawful act manslaughter.

ii. Gerry: if parliament wanted to do this, they should have

unlawful act manslaughter for injecting cocaine and failing to helpMR requires foreseeable risk of harm not death

FULL MENS REA (subjective)1. INTENT

a. Defn was clarified in Buzzanga and approved by SCC in Keegstra, Chartrand:

i. DIRECT: consequences intended – regardless of whether it will certainly, probably, or possibly occur

ii. INDIRECT or OBLIQUE: some other end desired or sought, but certain or substantially certain that the proscribed consequence would be the result

b. WILFULLY = INTENTIONALLYi. Excepted in part XI of CC (s. 429-288) in which

wilfully includes intent AND recklessness where the result is likely or probable to occur (50% + 1, higher form of recklessness than normal) (Buzzanga)

c. “FOR THE PURPOSE OF” (ex. s.21(1)(b)) – INTENTIONALLY (direct and indirect!) (Hibbert, overruling Steane and Paquette)

2. RECKLESSNESSa. An act that causes harm, when you foresee that the

harm might possibly, probably or very probably occur, but with less certainty than intention

b. May be overridden by honest mistake of fact, even if unreasonable, that there was no risk

i. EXCEPT in cases of sexual assault: defence of mistake of fact is only available if the accused can prove they took reasonable steps to ascertain consent (s. 273.2) (Sansregret)

Buzzanga 1979: Francophone pamphlet distribution – acquitted, did not “intend” to promote hatred

Hibbert: lured person to be shot by friend in lobby

Paquette: felony murder

Sansregret 1985: victim agreed to sex with acc (ex) under threat of bodily harm – acc NOT reckless (changed by stat)

3. KNOWLEDGEa. Subjective knowledge of some fact or state of affairs

4. WILLFUL BLINDNESSa. Where a person who has become aware of the need for

some inquiry regarding a risk fails to inquire because they do not with to know the truth (constructive knowledge)

b. Truthfully not realizing there was a risk will negate MR (Currie)

c. CANNOT be overridden by mistake of fact – law presumed knowledge

d. Wilful blindness can be a substitute for proof of actual knowledge (Briscoe, Duong)

Currie 1975: 19yr old deposits cheque, naïve, not wilfully blind

Briscoe: gold course murderDuong: accessory post murder

CRIMINAL/ PENAL NEGLIGENCE

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1. CRIM NEG: a marked and substantial departure from the conduct of a reasonable person which shows wanton and reckless disregard for the lives or safety of others (Tutton, Waite) (set out in s. 219)

a. Only 3 offences are expressly crim neg:i. 220 – crim neg causing deathii. 221 – crim neg causing bodily harmiii. 222(5)(b) manslaughter commited by crim neg

(same as 220)b. Can be proven by EITHER subjective OR objective

disregard of an obvious/ serious risk (FJ, SC 2008)2. PENAL NEG: a marked departure from the conduct of a

reasonable person (regardless of whether there was a risk to the safety of others) (Hundal)

a. Ex. careless use or storage of a firearm (s.86(1)), dangerous driving (s.249), arson by negligence (s. 436)

b. There is only one standard (objective), not considering the personal characteristics of the accused but applying context of the surrounding incident (Hundal, Crieghton)

i. UNLESS the acc was incapable of appreciating the nature of the risk (Beatty)

Tutton: faith healers don’t give daughter insulin

Hundal 1993: dangerous driving causing death for running a red light in overloaded dump truck

Creighton: accused injects heroine into person who dies

Beatty: pick up truck crossed line into oncoming traffic – not guilty of penal neg

STRICT LIABILITY

1. Crown must prove AR, BRD and then accused is found guilty unless they can prove (BOP) that they acted with reasonal care or due diligence (SSM)

2. Charter: Violates s.11(d) due to onus shift but justified under s. 1 (Wholesale Travel, Ellis Don)

a. Allows person in the position to provide evidence, efficiency, often licenced so agreeing to be bound by the set of rules

3. MR defences still available

ABSOLUTE LIABILITY (no fault liability)

1. Crown must prove AR, BRD then liability attached2. Must be made by clear implication, based on (SSM, Levis):

a. Overall regulatory pattern of the statuteb. Subject matter of the legislationc. Importance of the penaltyd. *Precision of the language used (Levis – this one’s more

important)3. If the defence of due diligence is eliminated, then absolute

liability offence (Pontes)4. MR defences unavailable, but others are (ex. going to AR)5. If any restraint on liberty is involves (imprisonment, probation)

then violates s. 7 and likely not justifiable under s. 1 (Ref Re

SSM 1978: discharging refuse into public waterways contrary to statute – not absolute liability offence since lang didn’t support

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Motor Vehicles Act)6. Offence Act:

a. S. 6: notwithstanding any other provision in any Act, no person is liable to imprisonment for an absolute liability offence (remedy – read it out, does NOT turn into strict liability) (Pontes)

b. S. 82: no person shall be imprisoned by reason only that he/she defaults in paying a fine

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MISTAKE OF FACT1. Mistake of fact is a defence if it negates the fault (MR)2. For a subjective MR crime, must be:

a. Honest (not intentional, reckless, wilfully blind)i. Doesn’t have to be reasonable (but harder to

believe if unreasonable)3. For an objective MR crime (ex. crim neg), must be:

a. Honest and Reasonable4. Never a defence for absolute liability!

Currie – example of mistake of fact?

MISTAKE/ IGNORANCE OF LAW1. CC s. 19: Ignorance of the law is not an excuse for committing

an offence2. Rational (Jorgensen)

a. Evidential concernsb. Encouraging a socially undesirable state of mindc. Anarchy; conflict with the moral basis of lawd. Ignorance is blameworthy per se

3. It can be unjust at times though4. Exceptions/ Limitations:

a. Mistake of fact: argue that the mistake was one of mixed law and fact (ex. some courts hold bigamy is a mix)

b. Unpublished rule: defences applies to a Regulation that has not been published in the official Gazette

Jorgensen: relying on film censor review board

Statutory Instrument Act s. 11(2), BC Reg Act s. 3(2)

c. Mistake of civil law:i. A mistake as to civil law can be considered a

mistake of fact when it is an essential element of an offence under the CC (Prue & Baril)

ii. But is not a defence if the offence is under provincial law (MacDougall) or military regulation under the Defence Act (Forster) rather than the CC

iii. Note: Pontes casts doubt on this – are Prue and MacDougall irreconcilable?

1. Gerry: Pontes got it wrong: Prue & Baril – CC offence

2. MacDougall/ Pontes – provincial Motor Vehicles Act

d. Negate mens reai. Despite some judgments, mistake of law does not

negate some forms of MR like “wilfully”1. Docherty (1989 impaired care and control –

sleeping in vehicle, acquitted) decided wrongly, Gunn (obstructing po) decided correctly

ii. Gerry: an honest mistake of the law should just be an excuse – if we excuse facts why not law?

Prue & Baril: arrested under CC for driving without a valid licence due to a provincial suspension. Held: acquitted, he was not informed

Hammerbeck: taking child contrary to a custody order where the parent mistakenly believed the custody order was of no legal effect

Forster: submitted application for leave, but to the wrong place. Went on leave. Charged with a civil offence - mistake about civil

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law but no defence convicted.

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e. Officially induced mistake of lawi. First recognized in MacDougall (but not applicable

there)ii. Applied in Cancoil (OCA 1986). Limited to:

1. Regulatory statutes2. Erroneous advice must come from an official

who is responsible for the admin/enforcement of the law

3. Reliance must be reasonable4. Onus on accused, bop

iii. SCC first got the issue in Jorgensen (1995) but no ruling (Lamer alone recognized it)

iv. SCC in Levis v. Tetrault recognized the defence. Adopted Lamer in Jorgensen:

1. Excuse not justification2. Limited exception to the rule that ignorance of law is no

excuse3. Applies to regulatory offences and CC4. Onus on accused, bop (Gerry: why? Should be crown if

a true crime)5. Issue of law or mixed, so for judge to decide (Gerry:

fear running amuck - should be jury)6. If found, remedy is stay of proceedings, not acquittal

(Gerry: doesn’t make sense – should be an acquittal)v. MODERN TEST (Lamer)

1. Error of law or mixed law and fact was made2. Person who committed the act considered the

legal consequences of his/her actions3. Advice obtained came from appropriate

official:4. The advice was reasonable5. The advice was erroneous and6. The person relied on the advice in committing

the act (Gerry: and that it was reasonable for the person to rely on the advice)

f. Mistake of Law while enforcing law (Devereaux)

Levis v. Tetrault: operating mv without paying reg. fees

Devereaux – correctional officer, mistake ok under s. 25 (good faith for persons administering law)

g. Colour of right: an honest but mistaken belief that you have a right in law to do something otherwise illegal

i. Generally property offences (because property law is so complex) but could apply wherever it’s in statute

5. No charter issue: does no excuse of ignorance of the law violates s. 7? Lamer in Jorgensen: no – the exceptions are to prevent a manifestly unjust conviction

Applied in Howson

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INTOXICATION1. CL defence (s.8(3)) that is partially codified under s. 33.1

(1995 amendment in response to Daviault)2. Historically

a. Stage 1 (pre-1800s) – voluntary intoxication is no defence, wicked state in itself

b. Stage 2 (1800-1998) – Beard adopted by SCC in MacAskill, George, Leary

i. Defence for SPECIFIC INTENT crimes, if the accused is incapable of forming the specific intent required (negates MR)

ii. Note: usually predicate offences (except theft), can charge the base offence

iii. Note: does not cover anything short of incapacity (very high)iv. Gerry: should get rid of the specific/ general divide:

1. Ignores wider ratio in Beard2. Not logical or just3. Hard to determine whether an offence is general or

specificc. Specific vs. General?

i. Although unsatisfactory, according to George, “intention: acts done with the specific and ulterior motive and intention of further or achieving an illegal object, rather than acts done to achieve an immediate end

ii. If “with intent to” or “for the purpose of” – likely specific intent crime

d. Stage 3 (1988-1995) – Bernard, Daviaulti. Intoxication is a defence for specific intent crimes if the

accused incapable of forming the required intent (negates MR)ii. Intoxication is not a defence for general intent crimes UNLESS

the intoxication is so extreme as to be akin go automatism or insanity

1. Burden on accused, bop (Daviault)a. Gerry: illogical, since burden on Crown for

specific intent2. In Bernard: Dickson + 2 = abolish distinction, McIntyre

+ 1 = keep, Wilson + 1 keep except when intoxication akin to automatism

a. Wilson: denying defence of intoxication for general intent crimes where intoxication akin to insanity/ automatism would violate s. 7 and 11(d) of the Charter

b. “Surrogate MR” - cannot substitute the MR of voluntary intoxication for the crime

3. Wilson creates the 5/7! Applied in Daviault3. MODERN LAW:

a. Stage 4 (1995-Present) – CC s. 33.1i. Intoxication is a defence for specific intent crimes

if the accused incapable of forming the required intent (negates MR)

ii. Extreme intoxication akin to automatism/ insanity (Daviault Intoxication) is a defence to general intent crimes, EXCEPT for general intent crimes which involve an assault or threat of violence

1. Charter: does this violate s. 7? Saved by

Leary: charged with rape (general intent), court upheld specific/ general divide

George

Daviault: sexually assaulted elderly woman

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s.1? Gerry: likely savediii. Onus

1. Specific – crown BRD2. General – accused bop

iv. Dispensation: acquittal, but possible conviction of lesser included offence

v. NOTE:1. Applies to drugs and liquor (Curtis)2. NOT a defence to driving a vehicle (policy grounds),

does not violate charter (Penno)3. NOT a defence to mistake of fact caused by self-

induced intoxication (policy grounds) (Moreau 1986 OCA)

4. NOT a defence to objective MR crimes (ex. negligence) – reasonable person is never intoxication

MENTAL DISORDER1. CC s. 2 – mental disorder is a “disease of the mind”2. CC s. 16 – defined the legal test/ standard for the defence

UNFIT TO STAND TRIAL - PROCEDURAL1. Trial postponed if accused unfit to stand trial at the time of the

criminal proceeding2. Defn (s. 2): unable on account of mental disorder to conduct a

defence … or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature of the proceedings,(b) understand the possible consequences of the proceedings, or(c) communicate with counsel.

3. Threshold for “mental disorder” is very low, but the rest of the test is narrowly construed. According to Whittle (SCC):

a. "limited cognitive capacity to understand the proceedings and communicate with counsel"

b. it is not necessary that the accused "be capable of making rational decisions beneficial to the accused"

c. it is not necessary that the accused "be capable of exercising analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves his/her interests"

4. RULES:a. Presumed fit, burden on the party raising the issue of

unfitness, bop (crown, accused, judge)b. If reasonable grounds to believe unfit, judge orders issue

of fitness to be tried (s. 672.23)c. If unrepresented, court shall appoint counsel (s. 672.24)d. Judge may postpone trial re: issue of fitness until end of

crown’s case (at prelim hearing or trial) to ensure Crown

Whittle

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has a prima facie case (s. 672.25)i. If no case, discharged or acquitted and no fitness

hearing (s. 672.30)e. Fitness is tried by a judge at any time before the trial, and

by a judge or jury during trial (672.26)i. Issue: re jury - evidence may be prejudicial against

accusedf. If found fit, criminal proceedings will proceed (672.28)

i. Fitness can be raised again if material change in accused’s mental state during proceedings

g. If found unfit, judge postpones trial. Court may order that the accused:

i. Be detained in custody in a hospital (s. 672.54(c))ii. Discharged subject to conditions (s. 672.54(b))iii. Mandatory treatment order of 60 days (hospital or

community with medical grounds) (s. 672.58 - s. 672.62)

1. Issue: mandatory treatment?iv. (1) and (2) must be automatically reviewed every 12

mosh. If found fit at any time, trial may rebegini. If unfit and untried after 2 years, court must hold an

inquiry every 2 years to determine if there’s sufficient evidence at that time to put the accused on trial. If not, accused acquitted (s. 672.33(1) and (6))

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NCRMD – PROCEDURAL

5. Charter: CL rule allowing Crown to raise against accused’s will violates s.7, not saved (Swain)

6. Modern rule (Swain, SCC):a. Insanity defence can be raised during the trial by the

accused; orb. During the trial by the prosecutor if in the judge’s

opinion the accused has somehow put his/ her mental capacity for criminal intent in issue; or

c. By either after the trier of fact has concluded that the accused was guilty of the offence, but before a verdict of guilty is formally entered (bifurcated trail)

d. Note: infrequently litigated – usually both agree not to raise

7. Burdena. Presumption of sanity (M’Naghten, codified in s. 16(2)

and (3)):(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

b. In a bifurcated system, if crown raises then its their burden

8. Charter: SCC majority held presumption of sanity and s. 16 reverse onus violates the presumption of innocence in s. 11(d) but is saved by s. 1 (Wilson dissent says unsaved)

9. Effect: special verdict - NCRMD (not criminally responsible on account of mental disorder)

a. Historicallyi. Pre 1992 CC amendments, anyone found unfit to stand trial or

NCRMD was automatically confined indefinitely at pleasure of LG (s. 542(2))

ii. SCC held that violated s. 7 and not saved by s. 1 of Charter (Swain) – no rules of due process, just advice from Patient’s Review Board

b. MODERN LAW:i. In response, 1992 enacted s. 672.45 - 672.54: court

holds disposition hearingii. Considers (1) need to protect public (2) mental

condition of accused (3) reintegration of accused (4) other needs of accused (s. 672.54)

iii. The NCRMD or unfit person is:1. Released (discharged) unconditionally;

Swain

Winko – Charter challenge

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2. Released (discharged) upon conditions of supervision; or

3. Detained in custody in a hospital (b) and (b) are “subject to appropriate

conditions” Subsequent decisions made by indep

review board (s. 672.47) – rules of due process and subj to judicial review

iv. Treatment can only be ordered with accused’s consent (s. 672.55)

v. Right to review every 12 mos/ upon request (671.81-82)

c. Note: defence tends to avoid NCRMS (unsure of dispositions) but crown may find it better protects the public

10. Charter: the new provisions do not violate s. 7 and s. 15 Charter rights (Winko)

a. No automatic indefinite detentionb. Balances fair treatment of NCRMS person and public

safetyc. Involves a hearing and imposition of least onerous

conditions of the 3d. No Review or forced treatment, court and review board

decisions appealable

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NCRMD – SUBSTANTIVE1. About the same as in 1892 (CL test in M’Naughten), just a

change in language2. CC s. 16 – No person is criminally responsible for an act

committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

TEST:3. STEP 1: “DISEASE OF THE MIND” – was there a mental

disordera. From Simpson (OCA) and Cooper (SCC)

i. Legal term – given a defn by the courts, not the medical profession

ii. Expert medical evidence is not determinative – issue for judge/jury to decide

b. Low threshold (Cooper): embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however

i. (1) self-induced states caused by alcohol or drugs (Bouchard-L), as well as

ii. (2) transitory mental states such as hysteria (ex. a high degree of shock) or concussion"

c. Note: not serious impairment – impairment is sufficient4. STEP 2 BRANCH 1: “APPRECIATE THE NATURE AND

QUALITY” of the act/omissiona. Not just “know” (bare cognitive state in M’Naughten) -

“appreciate” is different :i. Emotional as well as intellectual awareness of the impact/

consequences and ability to perceive, estimate and understand the consequences and results of a physical act (Cooper)

ii. SCC limited this in Kjeldsen and Abbey:1. MODERN LAW: "appreciate" only requires

that the accused know the nature of his act and its physical consequences. The emotional component dispensed with (Kjeldsen)

a. Closing it to psychopaths!2. “Appreciate” only requires appreciating the

physical consequences which are an essential element of the definition of the offence – does not include a delusion which renders accused incapable of appreciating penal conseq (Abbey)

iii. NOTE: attempts at expansion1. OCA has since tried to expand it again (Kirkby, Swain)2. QCA tried to expand it, but SCC limited it. SCC however

found insanity under Branch 2 (Landry)5. STEP 2 BRANCH 2: “WRONG” – knowing that it was wrong

Bouchard-Lebrun: brutal assault during psychotic state after ecastasy pills, SCC held not a disease of the mind

Kjeldsen – psychopath

Abbey – astrotravelled

Landry – thought he was god, friend was Satan. Held insane but under Branch 2

Chaulk: claimed paranoid psychosis for entering house and bludgeoning occupant to death

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a. Note: psychotics will generally fall hereb. Historically: wrong = incapable of knowing that his/her act was legally

wrong (contrary to law) not morally wrong (Swartz 1976)i. Dickson dissent: someone who kills knowing it’s legally wrong

but thinks it’s due to a divine order and therefore not morally wrong should be found insane

c. MODERN LAW: wrong = morally wrong in the circumstances according to the moral standards of society, and not simply “legally wrong” (Chaulk & Morisette)

i. Insane if he/she is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society

ii. Whether the accused lacked the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether or not to do it (Oommen)

6. CRITICISMSa. S.16 based only on cognitive impairment (ability to reason,

understand). Does not include volition impairment (ability to control behaviour) due to disease of the mind (ex. irresistible impulse excluded) (Borg)

i. NCRMD covers capacity to REASON, but not capacity to CHOOSE!

7. No MR due to mental disorder short of insanity?a. Some cases suggest evidence of mental disorder should be

considered re: whether the crown has proven MR BRD

Oommen – paranoid delusion victim was coming into his house to kill him. Held insane

AUTOMATISM1. CL defence (not codified), authorized under s. 8(3) of the CC2. Automatism is unconscious, involuntary behaviour, the state

of a person who, though capable of action, is not conscious of what he Is going – the mind doesn’t know what’s being done (Rabey 1980 adopting R v. K, OCA 1971)

3. MODERN LAW: Unconscious means impaired consciousness, not total unconsciousness. Therefore automatism is “a state of impaired consciousness in which an individual, though capable of action, has no voluntary control over that action” (Stone 1999)

4. Effect: negates VOLUNTARINESS - an essential element of the AR

a. Therefore the voluntariness rather than consciousness is the key element (Stone)

5. Burden: the accused is presumed to have acted voluntarily, has the burden on bop (Stone)

a. Evidentiary burden stays the same (air of reality) for trial judge to instruct jury (Fontaine)

b. NOTE: does this reverse onus apply to all defence claims of involuntariness or just involuntariness in cases of automatism? Ex. spasm, twitch, falls

c. Gerry: should be limited to automatism18


6. Procedural (Stone):a. Accused MUST make an assertion of involuntariness and

MUST call expert evidenceb. Expert evidence is not sufficient if it’s based only on the

assumption that the accused’s account is truthful/ accurate, without other supporting evidence of automatism

c. Matter of law, 1) if accused lays proper evidentiary foundation, trial judge must decide whether 2) evidence supports insane automatism or non-insane automatism

7. Dispensation: acquittala. Issue: should this be qualified, like NCRMD?

8. TEST/ PROCEDURE:a. Is there evidence to establish on a bop that conduct was

unconscious/ involuntary?b. What caused it? A question of mixed law and fact for the

judgei. Disease of the mind go to insanity defence

1. Sleepwalking post-Stone (Campbell, Luedecke)2. Psychomotor epilepsy (Sullivan UK 1983)3. Psychological blow arising out of ordinary

stresses/disappointments is due to internal/psych weakness (Rabey)

ii. Intoxication go to intoxication defenceiii. Other non-insane automatism

1. Concussion from physical blow to the head (Bleta, SCC 1964)

2. Extraordinary psychological blow leading to shock/dissociation (Rabey) – ex. after seeing a love one murdered/ killed in accident. But flexible in Graveline

3. Sleepwalking pre-Stone (Parks)4. Unexpectedly falling asleep while driving due to

undiagnosed chronic insomnia (Jiang BCCA 2007)5. Stroke (Hill v. Baxter UK 1958)6. Hypoglycaemia (Quick and Paddison UK 1973)7. Involuntary intoxication (King)8. Eplileptic fit – maybe (Hill v. Baxter)

iv. FACTORS to apply in assessing a claim of automatism (Stone):

1. Severity of triggering stimulus2. Corroborating evidence of bystanders3. Corroboration medical history of automatistic like

dissociative states4. Presence/ absence of motive5. Relationship between trigger of automatism and victim

of violencev. NOTE: prima facie conditions leading to automatism

is a disease of the mind - only in rare cases is automatism not caused by mental disorder (Stone)

c. In determining whether insane or non-insane, apply (Stone):

In order of time:

King – drunk driving after dentist, involuntary

Rabey – Man hits girl with rock from geology lab after finding she thinks nothing of him romantically

Parks – sleepwalking drove 23km killed mother in law, almost killed father in law

Stone – long drive with wife, marital problems, heating argument, stabs wife to death

Luedecke (post stone) – sleepwalker consented to NCRMD after applying Stone

Graveline (post stone) – court accepts a shove/ abusive language as non-insane automatism for psychological blow in context of battered spouse

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i. The Internal Cause Factor1. Internal – insane. External – non-insane

ii. The Continuing Danger Test1. Dickson dissent in Rabey, picked up in Parks – internal/

external isn’t that useful in many cases, better to look at transient/ persistent in determining whether insane

2. Pragmatic test – whether accused is a continuing danger (offence is likely to reoccur). If yes insane. If no automatism

a. This is how Parks was found non-insane automatism

iii. Policy Concerns1. Fear of fabrication2. Public disillusionment by outright acquittal3. If verdict of acquittal doesn’t allow for

subsequent monitoring/controld. Gerry: dislikes (iii) - should just change the dispensation to

be more like NCRMDe. Whether the accused actually suffered from the conditions

and their effect on the accused’s mind is question of fact (jury) (Stone)

9. Note: amnesia AFTER the event is NOT automatism

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PROVOCATION1. Coded! CC s. 232. Partial defence

a. Only a defence to murder (not even attempted murder) (Campbell)

b. If it is proven, effect = murder reduced to manslaughter (s. 232(1)) NOT acquittal

2. Procedure (232(3)): (b) and (c) are left to triers of fact, judge likely define (a) since legal defn

a. Arises after the Crown has established AR and MR – therefore does not negate intent to kill (AR) – did intent, just in a state of rage due to insult (Cameron)

b. In some cases, if insufficient to prove provocation, may nonetheless undermine the necessary MR (Nealy 1986, but has been thrown into doubt by Parent, SCC 2001)

3. Burden: accused must raise an “air of reality” (some evidence of all three elements), then judge puts it to the jury. Crown must prove BRD no provocation (Thibert)

4. Rationale:a. Law recognizing leniency for the human frailty of losing

one’s temper and reacting violently to sudden provocation5. ELEMENTS (s.232(2)):

a. Accused must be provoked by a wrongful ACT of INSULT;b. Wrongful act or insult must be sufficient to DEPRIVE AN

ORDINARY PERSON OF THE POWER OF SELD-CONTROL (objective test); and

c. The accused must him/herself be acting in response to the wrongful act or insult ON THE SUDDEN and before there is time for his/her PASSION TO COOL (regain self control) (subjective test)

6. DEFN: WRONGFUL ACT OR INSULT (easy to meet)a. “Injurious contemptuous speech or behaviour, scornful

utterance, or action intended to wound self-respect; and affront; indignity” (Thibert)

i. s. 232(3): NOT provocation if the victim had a legal right to do the act (Haight)

1. “Legal right to do” is something sanctioned by law (ex. execution of lawful warrant, self defence) (Thibert, Tran)

2. Just because insults are not specifically prohibited does not mean they’re a legal right (Thibert)

3. Entering into a new relationship is not a wrongful act/ insult (Tran)

ii. s. 232(3): NOT provocation if accused incited victim in order to give the accused an excuse to cause bodily harm/ death

7. DEFN: DEPRIVE AN ORDINARY PERSONa. Whether an ordinary person may have lost the power of

Thibert – accused kills wife’s lover in parking lot

Tran – husband suspected estranged wife in new relationship, unlawfully entered her apt, found her in bed with another man, kills him and GBH her

Hill – homosexual lovers, claim of unwanted sexual advance

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self-control under such provocative circumstances (Carpenter)

b. OBJECTIVE reasonable person test – what does that include?

c. Historically:i. Ordinary/ reasonable person has normal temperament/ self-

control (Hill)ii. General characteristics (not particular ones) relevant to the

gravity of the wrongful act or insult may be considered (ex. race is racial slur) (Hill)

iii. Young age is relevant to degree of self-control expected of an ordinary person (Hill)

1. BUT this doesn’t mean that the trial judge MUST tell the jury what specific attributes to ascribe to the ordinary person (assumed jury would naturally ascribe age/ sex to the ordinary person) (Hill)

a. Gerry: disagrees

d. MODERN LAW:i. Ordinary person must be of the same age/ sex, and

share other factors as would give the act/ insult a special significant (Thibert)

ii. Can consider background of the relationship between deceased and accused, incl earlier insults to determine if if the accused was in fact provoke (Thibert)

iii. Cultural background can be taken into account in the “ordinary person” to assess GRAVITY of the wrongful act/ insult wrt a person from the same culture, but not relevant in determining DEGREE of self-control (Nahar, overrules Ly)

1. Subject to (iv)! Not if something is more insulting because of the cultural notion that women are inferior to men (Humaid)

iv. Still not mandatory for judge to articulate those specific attributes to jury (Hill)

v. As a matter of crim law policy, the ordinary person can’t be fixed with beliefs that are irreconcilable with fundamental Canadian values (Humaid)

1. That women are property, homophobia (discussed in Tran)

vi. Context is important (Tran) and different than individualization (not okay)

1. Ask how the ordinary person might react in

Nahar – Sikh man stabs wife (smoked, drank, socialized with other men)

Humaid: man stabbed wife 17 times on street, provoked by “little pill” suggesting infidelity

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the relevant context8. DEFN: SUDDENNESS

a. Must “strike upon a mind unprepared for it” or “take by surprise”, NOT give time to brood on the matter (Tran)

9. NOTE: why don’t we abolish provocation and just accept it as a mitigating factor in sentencing (like NZ, Tasmania)? Murder in Canada has mandatory minimum of life imprisonment

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SELF DEFENCE1. Primarily under CC s. 34-372. 34(1) Apprehending harm to self, not death/ GBH

a. Still available in cases where the accused actually killed/ causes GBH, as long as they did not apprehend/ intend it (Pawliuk, Baxter)

3. 34(2) Apprehending harm to self, death/ GBH (Pawliuk)a. Subjective/ objective

i. All elements have a subj / obj component (Cinous)ii. There must be an air of reality to all components

before putting it to juryiii. The “kill or be killed” belief of a self-styled criminal

is not reasonable (Cinous)iv. Courts are more lenient towards inmates facing

threats of violence in prison (McConnel, Plain, LaKing, Raphael)

b. S. 34(2) expressly states it only applies when D/GBH is actually caused (the case in Cinous, Peel) but it likely applies even when it isn’t caused (Gerry: drafting error). Literal interpretation 37

c. Applies whether or not the accused intends death/ GBH (Pintar, Pawliuk agrees)

4. 35 Provocationa. Limited usefulness (mostly covered by 34(2) and more

onerous than that)b. Intended for cases of provocation, but 34(2) held (in literal

interpretation) to apply to cases of provocation (McIntosh)i. Gerry: incorrect!

5. 37 Defence of self and of othersa. 3rd party defence: “anyone under his protection” is given a

wide meaning: “anyone who requires protection which the accused may be able to provide” (Webers)

b. Gap-filler: only when 34 and 35 don’t applyi. Ex. reasonable fear of D/GBH, tried to fire gun at V

but misses. A charged with attempted murder6. Excessive force in self-defence

a. Force permitted under 34(1) + 37 < 34(2) + 35b. 34(1) + 37 proportionate force requirement - “no more

force than necessary”:i. Test: whether a reasonable person would believe

the force was no more than necessary1. If mistaken about the force needed, mistaken

perceptions about the circumstances are okay provided the mistakes are reasonable (Kong, 2006)

c. S. 34(2) + 35 more subjective – allows deadly force if:i. The accused reasonably apprehends D/GBH/

believes, on reasonable grounds that they can’t

Pawliuk – V running to acc with gun, acc thought he was going to shoot him, he accidentally shot victim

Cinous – participating in robbery, feared death (snapping of glove etc.), shot co-robber at service station

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otherwise preserve themselves from D/GBHii. The force can be more than actually necessary if the

accused reasonably believed it was necessary (Baxter)

d. If accused more force than justified under s. 34-37, then criminally liable for excess force: CC s. 26

e. NOTE: No partial defence for excessive use of force in self-defence reducing murder to manslaughter (Faid)

7. Retreat?a. S. 35 – duty on initial aggressor to retreat as far as

feasible firstb. S. 34 and 37 – no retreat requirement

i. But may support reasonableness of self-defence, ex. in 34(2)(b) (Malott SCC 1998, Proulx, Druken, Cinous)

c. No obligation to retreat from one’s home (Jack, Irwin, Lavallee SCC 1990)

8. Intoxication?a. Intoxicated person can rely on self-defence if their beliefs

are reasonable (Reilly v. The Queen)9. Subjective factors? Mental impairment?

a. Diminished intelligence of an accused should be taken into account in applying 34(2) in deciding whether the accused’s apprehensions and beliefs were reasonable

b. Ex. Asperger’s taken into account re reasonable apprehension of D/GBH (Kagan)

c. Courts open to modified test – accused’s background/ experience/ some characteristics

10. Imminent?a. The court historically read in the requirement of

immanency, but not actually present, and found it not formally required (but perhaps useful) in Lavallee, cited in Petel

11. NOTE: currently, there are bills introduced to revise self-defence provisions, and expand citizen’s arrest rights – will likely pass

12. Domestic violence: broadening 34(2) (Lavallee - Wilson)a. Traditionally, 34(2) is for a single interaction where

assault is occurring/ imminentb. SCC extending “reasonable apprehension” and

“reasonable ground for belief” to be based on her own experience (a reasonable battered spouse)

i. Battered spouse must actually fear for her life (rather than anger, jealousy) – high standard

c. Contextual approach: history, circumstances, perceptions of the accused (Petel)

d. Procedure (Malott)- once the defence is raised, jury should Mallot: battered wife

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be informed (from Lavallee):i. Why an abused woman might remain in an abusive

relationship (expert evidence may help)ii. Nature/ extend of the violence in the relationship

and effect on accusediii. Accused’s ability to perceive danger from her

abuser – “under reasonable apprehension of D/GBH” does not require apprehension of imminent danger

iv. Whether the accused believe on reasonable grounds that she could not otherwise preserve herself form D/GBH

e. How can we prevent the “syndromization” of the archetypical battered woman?

i. Heureux-Dube in Malott: legal inquiry must focus on the reasonableness of her actions in the context of her personal experiences/ experiences as a woman, not on her status as a battered woman under the “battered woman syndrome”

f. This has not been extended beyond the context of a battered spouse – ex. to a man who shot a male friend in a strained relationship (Charlebois)

Lavalle: battered wife, get into fight at party, hides in closet, shoots spouse

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DURESS

21-22. A person is a party to an offence and guilty of that offence if he or she

(a) actually commits it,(b) aids someone else to actually commit it,(c) abets (encourages) someone else to actually commit it,(d) counsels, procures or incites someone else to actually

commit it.

1. An excuse, does not negate mens rea (Hibbert, overrules Paquette)

2. Onus: air of reality by defendant, Crown must prove BRD3. CC s. 17 – principal offenders

a. Applies to principal, unless the offence is one of the 22 excluded offences

i. The 22 offences may be challenged as unconstitutional

b. 17. A person who commits an offence(1)under compulsion by threats of immediate death or

bodily harm*Requires threats of bodily harm (but not serious bodily harm)

(2)from a person who is present when the offence is committed is excused for committing the offence

(3)if the person believes that the threats will be carried out and

(4)if the person is not a party to a conspiracy or association whereby the person is subject to compulsion,

(5)but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm,

Hibbert – lured person to lobby to be shot

Paquette – felony murder

Ruzic – under duress smuggled drugs into Canada

Hebert – perjury – not accepted

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arson or an offence under sections 280 to 283 (abduction and detention of young persons)

c. *Applies subjective testd. Immediacy and presence requirements held

unconstitutional (Ruzic)e. Duress will not succeed if there were reasonable

alternative open (based on the accused’s circumstances and his ability to perceive a reasonable alternative) (Hebert)

4. CL via s. 8(3) (Paquette, Mena, Ruzic) – secondary offenders to any offence (including murder - Paquette, overrules Carker) and principal offenders for non s.17 excluded offences (Ruzic)

a. FACTORS:i. Accused must be subject to threat of *death or

serious injury to self or another person, threat of harm need not be immediate but “close temporal connection between threat and harm threatened” required (Ruzic)

* Requires threats of D/ serious injuryii. Accused must commit the offence solely as a result

of the threat – believe that the threat will be carried out

iii. Threat must be of such a gravity that it may well cause a reasonable person in the same situation to respond by committing the offence (mixed subj/obj)

iv. Accused must not have safe avenue of escape (Ruzic, Hebert) – subj/obj

v. Accused must not be a voluntary member of a crim association whereby he knew that he may be subject to compulsion by threats

b. *Applies modified objective test5. Battered woman?

a. Traditionally battered women’s claims of duress have been rejected by courts (Martha Shaffer) – judges sceptical about whether duress really present/ the woman had alternatives. Martha: duress should be reformulated to consider this

6. Issues: sometimes hard to distinguish aider/abetter v. co-perpetrator

7. NOTE: this means when a principal is charged with an offence

Carker – prison riot, instructed to break up his cell

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not listed in s.17, can ignore s.17 and go to CL (as in Ruzic)

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HOMICIDE

10. Causation Rules for Homicide: The Criminal Code has expressly dealt with several causation issues in regard to murder and manslaughter:

s. 222(1), 5(c) & (d) - causation re the offence of homicides. 224 - prevention of death by proper treatments. 225 - when immediate cause of death is proper or improper treatments. 226 - acceleration of deaths. 227 - death within a year and a day [repealed in 1999]s. 228 - no person causes death of a human being solely by influence on the mind (i.e.

scaring someone to death) except where a person causes the death of a child or a sick person by wilfully frightening him/her (see s. 222(5)(d)).

Degrees of Causal Connection: Keeping in mind this cautionary note, the following Chart may give you some relative sense of these three concepts (although it could be readily argued, for example, that my suggestion that "insignificant" cause is "5 or less" on the Chart is too high or too low an estimation).

0 No causal connection at all. No factual cause, therefore no criminal liability for that harm.

5 Factual Cause, but no Legal Cause: From 1 to 5 is a factual cause, but not a legal cause because the connection is "insignificant, trivial, de minimis”: Smithers

6 Legal Cause: At 6 and above, the factual cause is now a legal cause (because it is now above trivial or de minimis). [In Nette, the majority held that legal cause can be described as "a significant contributing cause". Query: Does "significant contributing cause" sound like a higher test than "more than an insignificant cause"?]

25- Significant Cause: Perhaps anything above 25 or 30 30 If you focus on the words “significant cause” as suggest in Nette, rather than

“beyond de minimus, as in Smithers, you are probably inclined to look higher up the chart than 6, perhaps something like 25 or 30.

40 Substantial Cause: Perhaps anything above 35 or 40.(This is the test for 1st degree murder under s. 231(5) and (6): Harbottle)

51 Main or Primary Cause

100 Sole Cause

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Charter Considerations and Review

The Minimum Constitutional Standards for Mens Rea/Fault

1. STIGMA OFFENCES -- SUBJECTIVE MENS REA

There are some offences, "though few in number", which due to the severity of the stigma or penalty attached to them, require subjective mens rea as the minimum mens rea in order not to violate principles of fundamental justice. So far, the S.C.C. has identified murder, attempted murder and theft as such special offences: Vaillancourt and Martineau [RBHS: 482]. Crimes against humanity or war crimes have now been added to that list in Finta. It now appears unlikely that there will be many more, if any, offences added to the list of "stigma crimes which constitutionally require subjective mens rea."

2. TRUE CRIMES -- MUST BE CRIM/PENAL NEG, OR FULL MENS REA

Objective mens rea for Criminal Code or penal offences (except the stigma offences) is constitutionally valid. However, the objective mens rea must in general be more than civil negligence (i.e. "any" departure from the standard of care of a reasonable person). The objective standard must involve at least penal negligence which means a "marked" departure from the standard of care of a reasonable person: Creighton [RBHS: 466]. This position has been recently articulated by the S.C.C. in a series of cases:

(i) Dangerous Driving - s. 249 of the CodeIn Hundal [RBHS: 485], the S.C.C. held that dangerous driving involves an objective test, not a subjective test. The objective test does not violate the Charter. The objective test requires "a marked departure" from the conduct of a reasonable person in the circumstances.(ii) Careless Use of a Weapon - s. 86(1) of the CodeIn Gosset and Finlay [RBHS: 483], the S.C.C. held that the mens rea involved in "careless" use of a firearm [formerly s. 86(2)] is objective, not subjective. The objective test is "penal" negligence (not "civil" negligence) and penal negligence requires "a marked departure" from the conduct expected of a reasonable person in the circumstances.

3. ABSOLUTE LIABILITY OFFENCES -- NO IMPRISONMENT

Absolute liability offences which involve the possibility of imprisonment, or other loss of liberty, as a penalty violate s. 7 of the Charter, and are not saved by s. 1 of the Charter: Ref. re s. 94(2) Motor Vehicle Act [RBHS: 395]. In order to prevent any Provincial offences which are classified as absolute liability offences from being declared unconstitutional under the S.C.C.'s ruling in the Re s. 94(2) case, the B.C. legislature amended the Offence Act to add s. 4.1 [now s. 6] and s. 72 [now s. 82]. Section 4.1 states that notwithstanding any other provision in any Act, no person is liable to imprisonment for an absolute liability offence. Section 72 states that no person shall be imprisoned by reason only that he/she defaults in paying a fine. See R. v. Pontes [RBHS: 400].

Crimes Based on a Predicate Offence

There are some crimes where the underlying crime can become more serious as being aggravating by worse circumstances. In these case, having mens rea for the actus reaeus of

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the lower crime, that will be sufficient to act as actus reus of the greater offence (constitutionally justified)

(iii) Unlawfully Causing Bodily Harm - s. 269 of the CodeIn De Sousa [RBHS: 483], the S.C.C. held that there is no requirement that the accused subjectively foresee that bodily harm will arise from his/her unlawful act or omission. The Supreme Court held that objective foreseeability of the risk of bodily harm, coupled with the fault requirement of the underlying unlawful act satisfies the principles of fundamental justice under s. 7 of the Charter.(iv) Aggravated Assault - s. 268(1) of the CodeIn R. v. Godin (1994), 89 C.C.C. (3d) 574, the S.C.C. in a brief oral judgment held that the offence of aggravated assault under s. 268(1) of the Code which is committed by anyone "who wounds, maims, disfigures or endangers the life of another", does not require subjective intent (or recklessness) to wound, maim, disfigure or endanger. The S.C.C. held that the consequences (i.e. wounding, maiming etc.) need not be foreseen. The S.C.C. said that this decision flows from its decisions in De Sousa and Creighton.(v) Unlawful Act Manslaughter - s. 222(5)(a) of the CodeIn Creighton [RBHS: 457], the S.C.C. held that unlawful act manslaughter does not require subjective foresight of death. In fact, the majority (5 to 4), per McLachlin J. held that it does not even require objective foresight of death, only objective foresight of the risk of bodily harm which is neither trivial nor transient, coupled with the fault requirement for the underlying unlawful act. [Lamer C.J.C., for the minority, would have required objective foresight of death (not simply bodily harm) as the minimum constitutionally required mens rea for manslaughter.]

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