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Criminal Summary Sheet

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General Principles of Statutory Interpretation Division of Powers Vagueness, Overbreadth and Arbitrariness Presumption of Innocence Reasonable Doubt Presumption of Innocence (RevOnus & MandPresumpton) Exclusion of Evidence Obtained Contrary to the Charter Commission of an Unlawful Act – Causing Disturbance in Public Place WAS THERE POSSESSION? Possession Offences WAS THERE CONSENT TO ASSAULT? Consent Making Act Lawful Court doesn’t Concern Itself with Trifles WAS THERE AN OMISSION TO ACT? Omissions – Legal Duties to Act WAS THE ACT VOLUNTARY? Voluntariness Acting through Innocent Agent DID THE ACCUSED CAUSE THE ACT? Causation Murder s. 235(1) (pg. 10) Cases of Intervening Cause DID THE ACCUSED HAVE THE MENS REA? Mens Rea – Subjective/Objective Distinction Mens Rea – Regulatory Offences Mens Rea – Charter Standards 6 Diff Types of Faul for CC pg. 15-16 WAS THERE A DEATH? Murder and the Charter – s.229(a)(i) and (ii) & (provocation defence) Constructive Murder – s.229(c) and s.230 First Degree Murder – s.231 Subjective Mens Rea Crimes – Motive Subjective Mens Rea Crimes – Desire/Purpose Subjective Mens Rea Crimes – Recklessness or Willful Blindness Objective Fault Crimes – Criminal Negligence s.219 Marked Departure Test Crimes Based on Predicate Offences WAS THERE A SEXUAL ASSAULT? Rape and Sexual Assault Crimes of Sexual Assault Rape Shield Mistaken Belief in Consent Mistake of Fact Mistaken of Law (Distinguish between Mistake of Fact and Law pg 29) Colour of Right for Property Offences Officially Induced Error of Law Incapacity (pg. 30) Insanity Automatism Intoxication

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1 General Principles of Statutory Interpretation - pg.1  ‘Public place’ not meant to cover private places exposed to public view.
o o o R v. CLARK – Canada Wise Case – Court Found the accused was not in a public place when he was sitting in the passenger seat of a car Muraca Case – Taxi was not a public place once it had been hired by Muraca b/c the public no longer had access to it

Strict Interpretation - pg.1  An ambiguous term should use context that favours the accused (including bilingual legislation)
o R v. GOULIS – Ontario

There is difficulty in defining the beginning and end of an assault as required by the statute, the actions constituted one continuous sequence of events. 2 mins between sexual assault and murder was enough to remove simultaneous requirement of statute. It was a continuous act.
o R. v. PARE – Canada

The term ‘adapted’ in statute does not require a device to be altered. Courts may resort to strict construction of penal statutes where ordinary principles of interpretations do not resolve an ambiguity.
o R v. MAC – Ontario

Division of Powers - pg.2  Legislation to control firearms within federal jurisdiction as its aim is to enhance public safety
o REFERENCE RE: FIREARMS ACT – Canada

Vagueness, Overbreadth and Arbitrariness - pg.2  Criminal Charges can be challenged an declared unconstitutional for vagueness, overbreadth and arbitrariness (in s. 7 of the Charter) o the Court is reluctant to find laws too vague. Vague Law: prevents citizens from realizing when he or she is in an area of risk for criminal reason.  ‘In the public interest’ is too vague that no one knew how to respond to it.
o R v. MORALES – Canada

The vast restrictions of sexual offenders is overbreadth legislation. Applies to too many people and too many places for an indefinite period of time and no possibility of review  the overbreadth violates s. 7 of the Charter
o o o R v. HEYWOOD – Canada Sharp Case- when legislation is overbroad, able to strike it down or remove just the offending part of the legislation, or add to the legislation Moralis Case – dealt with provisions that stated a person could be denied bail if its in the public interest – ruled to be too vague by the SCC

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Spanking legislation is not too vague to find correct amount of force o Wilson says it is too vague The nature of the legal system is areas of uncertainty exist where the judges need to clarify on a case-by-case basis.
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CANADIAN FOUNDATION FOR CHILDREN, YOUTH & THE LAW v. CANADA (ATTORNEY GENERAL) – Canada Types of Offences:  Indictable: most serious. accused can decide to be tried by jury alone or a judge and jury  Summary convictions: less serious. max 6 months jail time and $2000 fine.  Hybrid: Crown elected or dual defences

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o Device used by Crown to force confessions. We have to decide whether to proceed by indictment or summary conviction (probably absolute discharge)  so you convince them to plea guilty and you get a summary conviction

Presumption of Innocence - pg.3  Golden Thread Theory established: Burden of proof on Crown and proof beyond reasonable doubt that they are not innocent
o WOOLMINGTON v. D.P.P. – Britain

Reasonable Doubt - pg.3  Crown has to exceed burden regardless of lack of credibility of defence witnesses. If there is any reasonable doubt in any area including that of credibility of witnesses, the Crown has not proven BARD.
o R. v. S. (J.H.) – Canada

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Not guilty does not necessarily mean the person didn’t commit the offence, it just means the Crown failed to fulfill its burden of proof.
o R. v. MULLINS-JOHNSON – Ontario

The burden of beyond a reasonable doubt does not mean to absolute certainty. If there is reason to doubt – you must acquit!
o o R. v. LIFCHUS – Canada R. v. STARR – Canada

Proof Beyond a Reasonable Doubt is closer to absolute certainty than to Balance of Probabilities

Presumption of Innocence - pg.4  Reverse onus on accused to prove he was not trafficking is against the right to be presumed innocent  Oakes Test on whether violative law is reasonable: 1. The objective of the law limiting the Charter right must be of sufficient importance to warrant overriding it (this always passes in Criminal Law) 2. The means chosen to achieve the objective must be reasonably proportional to the objective and the effect of the law. In determining proportionality: a. Rational Connection: Must be rational connection between measure limiting the Charter right and the objective b. Minimal Impairment: The means should impair the right as little as possible (least intrusive as possible) MAIN ONE FOR CRIM!! c. Overall Proportionality: There must be proportionality between the negative (deleterious) effects of the law that limit a right and the sufficiently important objective.
 o R. v. OAKES – Canada Curtis Case (1998) o s. 215 of CC – Failure to provide necessities o Reverse onus struck down – violation of presumption of innocence (s. 11(d)) – not saved by s. 1 o INSTEAD: create a mandatory presumption that would require the accused to probably raise a reasonable doubt

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A mandatory presumption (not reverse onus) doesn’t impose a burden of proof but rather imposes an evidentiary obligation and all the accused must do is raise a reasonable doubt. The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt. 2

v.1-22.2 of CC). o R. BUHAY – Canada   Rights can be violated but only if the state can justify it Criminals escaping justice and unlimited police ability would both in their own way bring administration of justice into disrepute so they must be weighed against each other. must ask whether it will put justice system into disrepute o R. etc)  s. DOWNEY – Canada for Mandatory Presumption: words like “absent evidence to the contrary” for Reverse Onus: words like “must establish” “proof of which relieves on the accused” Exclusion of Evidence Obtained Contrary to the Charter .pg.11 – criminal offence to be part of a criminal organization 3 .3 o o o R. Purpose of legislation is NOT to protect individuals. 467. LOHNES – Canada VICARIOUS RESPONSIBILITY  not based on fault. v.6  Merely making someone upset does not constitute a public disturbance but rather there must be externally manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place. employee-employer relationship  a person can be guilty of an offence even with no wrongful act. 22.5  With improperly obtained evidence. based on relationship to the person who caused the harm o ex. o R. but the public.pg. or intention on their part  corporations cannot be held criminally responsible (s. but corporations can be held responsible for the people in the organization who make decisions that violate the law (Senior CEOs. DUGUAY – Ontario Commission of an Unlawful Act – Causing Disturbance in Public Place . v. v.

6    There must be some act of control.4 WAS THERE POSSESSION?  Possession must have control. CHALK – Ontario Morelli Case. Knowledge does not need to be direct evidence and can be established circumstantially. TERRENCE – Ontario Constructive possession can be inferred from the circumstantial evidence. o o R. merely viewing on a web browser from a remote location does not show intention to control 4 . PHAM – Ontario   Innocent possession is only when someone has possession for the sole purpose of destroying it Control amounts to the power and authority over the item whether it is exercised or not. R. Make a logical inference. but someone else maintains possession over it Possession Offences . o R. along with knowledge and consent.pg. v. but did not have on his hard drive. v. v. there must be knowledge and some measure of control over the item in the attributed premises. – Alberta Knowledge and consent are integral elements of possession. No need to prove that the accused was aware the matter was illegal.guy searched materials. 4(3) o Actual Possession o Constructive Possession: you ask someone to keep something. as where there is power to consent there is equally the power to refuse. you have SOME control over it. s. o R. intent and knowledge. to establish possession o Here there was no CONTROL over the marijuana in the car o MARSHALL v.

265). CUERRIER – Ontario   To constitute a crime at some point the actus reus and the mens rea or intent must coincide.pg. v. or a risk of harm. R. Consent Making Act Lawful . JOBIDON – Canada Consensual sexual activity can be a crime if it does not have a “social purpose” Victim cannot consent to the infliction of bodily harm upon themselves unless the accused is acting in teh course of a generally approved social purpose while inflicting the harm. The crown will have to prove this beyond a reasonable doubt. consent is not obtained when it is by     (a) application of force. e. it will suffice to prove the actus reus higher level assault offence.8  Supreme Court almost invented the offense of street fighting – a victim can’t consent to the infliction of bodily harm unless it is within a socially approved purpose (only applies to adults). to the complainant as a result of that dishonesty. o Welsh Case 1995 Cannot consent to death inflicted upon you – s. o R. (c) fraud where there is some element of danger. (b) threats or fear of the application of force to the complainant or a to a person other than the complainant. (2) there was a harm. (3) the complainant would not have consented but for the dishonesty by the accused.5 WAS THERE CONSENT TO ASSAULT?  For Assault: o If the Crown proves actus reus of the predicate offence (s. not telling them your food is gross). 14 It is an offence to aid someone in attempt to commit suicide – s. v. but need not be reasonable. so the accused must subjectively have believed that there was consent (from Pappajohn).g. it now becomes assault as there is no longer consent (doesn’t like majority creating common law offence) WILSON LIKES THIS DISSENT   o R. the mens rea for the predicate offence must be present. o For mistaken belief as to consent. argues that expanding the scope of the criminal provision is not necessary as once the victim went unconscious or rendered unable to defend oneself. 265(2) of the criminal code. or (d) the exercise of authority. – Canada Fraud should only vitiate consent if there is a significant risk of serious harm The fraud must be not only dishonest but also lead to a deprivation Dissent L’Heureux Dube: Any fraud or dishonest conduct vitiates consent Fraud can vitiate consent when:    o (1) the accused committed an act that a reasonable person would see as dishonest. v. (However there might be additional requirements) o The assault must be committed with intent.  Dissent: Sopinka J. The accused wilful failure to disclose his status to complainant before engaging in unprotected sex constituted fraud vitiating consent. it must be honest. R. o Was there consent or an honest mistaken belief in consent? Consent negates the act requirement for assault under s. 241         All elements of the actus reus must be present for a conviction regardless of the fraudulent consent Is it just a collateral matter or is it fraud and go to the nature and character or the act? o BOLDUC and BIRD v. 265 o Pursuant to s. WILLIAMS – Canada 5 .

pg. but even if you HAD called it would have taken 15-20 mins for the fire to be put out. Thornton . 5. v. would weight little or nothing on the public interest. however did not state. v. v. KUBASSEK – Ontario WAS THERE AN OMISSION TO ACT?  Five different areas to find a duty: (s. Peterson son neglected old father) Did you undertake lawful act that may endanger the life of another person. v. by a reasonable interpretation of their decision to preferentially use criminal code/statute to find criminal duty and not common law. it constituted a continual act of assault o FAGAN v. 3. v. 217 R. v. R. o R. 216 R.A.pg. the act has to be characterized as an irregularity of very slight consequence which if continued in practice. rather. and the ppl died within 5 minutes of the fire – no factual causal link b/c loss would have occurred either way) Omissions – Legal Duties to Act . Moore and R. MILLER – Britain There is a common law legal duty to identify yourself to police and an omission to do so is obstructing an officer Wilson dissent correct: A person is not guilty of the offence of obstructing a police officer merely by doing nothing. v.s. If the accused was not arrested. Did you undertake an event and therefore have to finish it (s.6 Court doesn’t Concern Itself with Trifles . o still remains the rule that a citizen can be uncooperative as he pleases provided he does not impede the administration of justice by giving false information to police o MOORE v. COMMISSIONER OF METROPOLITAN POLICE – Britain     Omission can constitute an offense if you create a dangerous situation and fail to act in any way to diminish the effects. o R.blood)) Common law duty to Act (This is objectionable!) (R. unless there is a legal duty to act. THORNTON – Ontario (s.  Trial judge dismissed b/c it was minor. Browne but court found no duty there because no clearly made intent to form a binding duty page 17. there was no statutory duty to identify himself or common law duty to do so.  The court found that the crime was not an omission to move the car.) Causal duty to rectify a situation that you created (R. if you start a fire and you didn’t call. An omission can therefore be an actus reus for a criminal conviction. – Canada   C.215 . o R. Miller started fire didn’t put out) Caretaker (s. 4.217 create duty) 1.e. 215 R. Hayes)  Need a casual connection  Need to prove the failure to act factually caused the loss (i. Crown needs to find duty. v.: Legal duty for the purpose of criminal law can be found in either statute or common law SCC: Court implied. 216 CC) 6 . breach of that duty and must show that it was because of the breach that caused the loss. but gave absolute dischrage  The court did not decided upon whether de minimis is a valid defence. you must use reasonable knowledge skill in doing so (s. ONT CA found guilty.10  Mens rea can be superimposed upon an existing act to qualify for concurrence  Assault requires proof beyond a reasonable doubt of intent to create an unconsented touching and therefore you can’t commit an assault through an omission.10  To be trifling. 2. v. even where no prior legal duty of care exists.

Two way to access the trigger: (A) internal cause (disease of mind) (B) external cause (psychological blow): o Test is a contextual objective test meaning we will compare the accused’s reaction to a reasonable person in the circumstances. we can still keep an eye on them. v. expert evidence of that fact. Note that the ordinary stresses of everyday life will not count.7   Police have to follow all procedure before finding omission that constitutes obstruction of justice Ancillary powers doctrine: court must determine whether conduct falls under general scope of duty imposed by statute or common law on police and then whether it is a justifiable use of powers associated with that duty weighed against any interfering individual liberty interests. If there is enough evidence then the judge gets to decide to leave mental or non mental with the jury. The jury does not get to decide which one it will pick. o could also argue common law duty to render assistance to fellow citizens whom you have a relationship & are clearly dependent on you for assistance o For serious offences. v.217: everyone who undertakes to do an act with binding intent is under a legal duty to do it if an omission to do the act is or may be dangerous to life. If evidentiary burden is met then the judge decides if the evidence is sufficient to put it to the jury (sufficient that jury could find involuntarism). whether there was a marked departure from that of a reasonable person s. o Where you have a dissociative state from an emotional shock caused by some extraordinary external event which might reasonably be presumed to effect the average normal person then you have external automatism (Rabey)  Step Two: o o 7 . 215(c)  mandatory presumption o R. need a high threshold – a mere expression of words or deeds indicating a willingness to do an act does NOT meet that threshold o before CRIMINAL NEGLIGENCE: there had to be an “undertaking clearly made and with binding intent” o R. and coborating evidence. BROWNE – Ontario   There is a legal duty to take care of elderly parents that cannot care for themselves Court in this case looked at objective gross negligence test. In determining whether it is mental or non mental there are 3 general factors: (1) Nature of the trigger that set out the automatic state. the judge decides for them. HAYES – Ontario  Pursuant to s. v. Crown must still prove that the act was voluntary BARD The evidence you can rely on is the assertion of the accused. PETERSON – Ontario WAS THE ACT VOLUNTARY?  Voluntariness is part of actus reus and distinct from mens rea o voluntariness has nothing to do with the consequence of the action o mens rea – has to do with foresight of consequences  Step One: o o o Accused must meet evidentiary burden. They need to show an air of reality to rebut the presumption of voluntariness on BOP. There is presumption for mental automatism because of the consequences. o R.

Michael – Canada 8 . If a person has the intention to murder and sets off a series of events that results in the intended death. v. R. RYAN – Australia An act can only be voluntary if there was some other course of action available to the accused The Crown must show that it was the conduct of the accused that brought on the prohibited consequences (the guys ticket was lost) o KILBRIDE v. o R. v. conscious act to have the essential actus reus to commit an offence It is the conduct of the appellant following the coincidence of occupancy and knowledge that counts. which is part of the actus reus component of criminal liability o R. don’t require total unconsciousness to have involuntariness. the state of a person who. o R. STONE – Canada R. if he acts to get either himself or the gun out of the car there is no voluntary act. is not conscious of what he is doing o RABEY v. v. SWABY – Canada An act will be voluntary if the accused is voluntarily and willingly places himself in a situation and a foreseeable involuntary action takes place (guy shoots clerk and says it was reflex) o R. the voluntary movement of your body.pg. though they may not have actually committed the murder – still may be responsible o R. need to establish on a BoP o o o R. or if the trigger will re occur (likely of reaccurance) (3) Policy Consideration Voluntariness . PARKS – Canada Automatism is a state of impaired consciousness. involuntary behaviour. A reflex action is involuntary and therefore lacks voluntariness and actus reus Must have voluntarily. v. KING – Canada Automatism is unconscious. v. If using automatism as a defence.13  Part of actus reus and distinct from mens rea fault element. WOLFE – Ontario There must be a voluntary act in order to have the requisite intention. v. It is the will to act. though capable of action. v. LUCKI – Saskatchewan R.            There can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision.pg.15  An action perpetrated through the innocent should be viewed as an action of the accused. LAKE – New Zealand Acting through Innocent Agent . – Canada Automatism is part of the voluntariness requirement. v.8 (2) Continuing danger to the public as in a history of attacks.

and integral part of the killing of the victim. substantial. Can’t just be a party.first degree murder for any other section. The courts are not very sympathetic to the initial person. Was there legal causation: should the conduct that amounted to this result be punished by the law. must play a part in the death – set a higher standard for causation as it relates to first degree murder – has to be a substantial and integral cause. o SMITHERS v.pg. The event would not of occurred BUT FOR the actions of the accused. 2. 231(5)). need to show the action of the accused continued to be a significant contributing cause to the outcome. R.  One who assaults must take their victim as they find them  Court used the “thin skull” test from civil law however Wilson feels this was unnecessary as the attacker should of reasonably foreseen a person might have a condition and therefore it satisfies the two step factual and legal causation test. The second cause has to be so big that it overwhelms and makes meaningless the first offence (see that in bingapore) Causation . outside conditions will not be enough to break the chain of causation A person who assaults someone and causes injury will be responsible for their death even if they refuse to get treatment. 231(5) only!!: o o The acts of the accused must form an essential. BLAUE – Canada 9 . the test is Nette Test – significant contribution o Now it is MORE difficult to prove causation 1. o for every other causation discussion (than s.  Harbottle (1st degree murder) s. (modifying language not threshold) o As the law of manslaughter stands. – Canada   As long as accused’s actions continue to be a substantial cause at the time of death. Was the ultimate injury REASONABLY FORESEEABLE st  Smithers Test (Threshold Approach)(does not apply to 1 degree murder)(implies factual causation): o Were the actions of the accused a contributing cause of death beyond a de minimums range (not trifling or trivial)? o Even if death is unexpected and unforeseeable there can still be causation because the thin skull rule says take your victim as you find them.  Nette Test (modification of Smithers): o Were the acts of the accused a significant contribution to the death of the victim. in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory and the unlawful act is a significant contributing cause to the victims death. v.  Intervening causes: o The correct approach is still the test for nette.15  If you make any contribution above de minimis along the causal chain then you can be liable for that loss.9 DID THE ACCUSED CAUSE THE ACT?  Traditional Test: Was there factual causation: Did the action physically result in that consequence. (Mormon girl refused to get blood transfusion) o R. simply being a party is not enough. if a person commits an unlawful dangerous act.

231(5) if the crown has established beyond a reasonable doubt that:  (1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime. TALBOT – Ontario Sinclair Man CA o Factual and Legal causation has been rolled into one: Was there a significant contribution? o Guys beat up.  (2) the accused was guilty of the murder of the victim. Legal Causation: is concerned with whether the accused person should be held responsible in law for the result.10   Need a substantial contribution of causation for 1st degree murder that is a result of another offence Substantial cause test: accused may only be convicted of 1st degree murder as a result of another crime if the Crown establishes that the accused has committed an act which is of such a nature that it must be regarded as a substantial and integral cause of the death.)– Alberta 10 . HARBOTTLE – Canada Fatima Case ONT CA confirmed that to use substantial test. later the guy was run over by a car. a significantly contributing cause can be one that exacerbates an existing condition. Accused may be found guilty of 1st degree murder for s. o o R. The low threshold of Smither’s test is made up in sentencing discretion (before Nette) o R. Original guys found guilty b/c they had a significant contribution to the guy’s death Kippax Case 2009 Ont SCJ o break up the factual and legal causation o but say test for factual causation: was it a significant cause? o Legal causation: should this person been held morally responsible – is it fair? Kreeba Case o Wilson says court erred in saying Nette was a test for more than the di minimus causation for homicide – it said it was significant    Causation doesn’t upset the fundamental principles of justice in the Charter. Result would not have happened but for the conduct of the accused.(D. v. v. o R. NETTE – Canada   For Legal Causation. Was there a sufficient nexus of proximity between the events and was it reasonably foreseeable.  (5) the crimes of domination and murder were part of the same transaction. (not whether there was a contribution beyond the de minimis range).  (3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim. thereby accelerating death o R. 231(5)     Factual Causation: is concerned with how the victim came to his or her death taking into account the contribution of the accused. v. Smither’s test for legal causation (for all charges not 1st degree murder) is whether there was a significant contributing cause. F.  (4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim. needs to be first degree murder pursuant to s. v.L.

225(a). o Presumption arises that mens rea is present but it can be rebutted by showing due diligence. a marked departure from the conduct of a reasonable person. o R.11 Cases of Intervening Cause . The only increased requirement is the objective foresight of harm. albeit that some other cause of death is still operating. SMITH – Manitoba     The act of the appellant causing injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because some third party is negligent. Ie. o THE QUEEN v. (usually attract civil action but won’t attract criminal action.” o Predicate Offence: Crown must prove the actus reus and mens rea for the predicate offence – if that is proven it is imported for that of the offence. or lack of voluntariness compared to reasonable objective standard.  If at the time of death the original wound is still an operating cause and a substantial cause. then the presumption is strict liability. o Criminal negligence: causing death is gross negligence but is a marked and substantial departure from the conduct of a reasonable person. Even if you didn’t cause the original wound but accelerate the death. you will still be held responsible. More than simple negligence. dangerous driving.pg. burden on accused to show they acted as a reasonable person o Gross negligence: Law has moved toward this starting point for most criminal code offences (not subjective mens rea). Unlawful act manslaughter s. MENEZES – Ontario DID THE ACCUSED HAVE THE MENS REA?  Objective Negligence: o Simple negligence: Is the failure to act as a reasonable person without foreseeing the possible consequences of your action. Wanton and reckless disregard for the safety of others. look at two-step test: o factual legal component of causation. unlawfully causing bodily harm. 11 . was it a significant contribution??  To break the chain of causation it must be shown that the second cause was so overwhelming as to make the original wound merely part of the history. Even more outrageous conduct that is just short of intent to kill. aggravated assault. o R. BINGAPORE – Australia The accused’s withdrawal was an independent factor which can be reasonably said to sever the causal link that ties the accused to the prohibited result. should. Ie. o Key words: “Ought to have known. There must be a clear gross negligence in order to diminish causation. failure to provide necessaries. dangerous driving causing death.  Strict Liability: o If it’s a public welfare offence. not criminal code infraction but maybe under provincial legislation such as highway traffic act) – strict liability offence. then the death can properly be said to be the result of the wound.18  For third party contribution. v. v. Crown has to show fault element for original offence and then show there was objective foresee ability of the risk of bodily harm in the context of the prohibited act that was neither transient nor transitory.

or thought there was consent in sexual assault. v. however Wilson and SCC decisions like Creighton continue to exhibit a move towards a presumption of objective fault (gross negligence) for silent Code offences. knowingly foresee the possible consequences and do it anyway. purposely. Therefore if any ambiguity arises. o Wilful Blindness: usually occurs when someone is in possession in something illegal. knew. and did this accused refrain from knowing the truth and go ahead anyway. SCC has never straight out said this presumption has changed. Crown not liable to show intent or that didn’t act as a reasonable person. was reckless or wilfully blind to the risk of the prohibited consequences – unless the code is specific on which one  If the Code is silent say “in the past there was a presumption that all Code offences had a subje ctive fault element. the Goulis case established that any vagueness in a statute is to be interpreted in favour of the accused. we should adopt subjective fault at a minimum (note: this is not what the SCC has been doing) o Mens Rea – Subjective/Objective Distinction . (POLEWSKY)  Subjective Mens Rea: o Key words: “With intent. MARIE / BEAVER case support this presumption. didn’t see them as substantially certain. based on Goulis. Wilful blindness is sufficient subjective fault for a conviction. wilfully blind. must have subjective fault (murder. theft. v. SAULT STE. you are guilty o An absolute liability offence with ANY possibility of jail time will offend s. knowingly. deliberately” o Offences which stigmatize and identify someone as clearly being a criminal. Requires proof that the accused was subjectively aware of the prohibited risk and was reckless as to whether the consequences occurred. Absolute liability offence is constitutional if the chance of going to jail in default of payment was remote. o Crown must prove subjective mens rea of accused – that he/she intended. there is no mental element for these offence. An objective test requires a marked departure (simple negligence) from the standard of care of a reasonable person The potential harshness is lessened by the consideration of certain personal factors. knew. but took an unreasonable risk.19     The test for dangerous driving is an objective one and concerns what the accused should have known and foreseen the consequences.12 Once it is proven that the accused did it. offences against humanity.pg. Absolute Liability with jail time will be read as strict liability (R. wilfully. possession offences) o Intention: a person foresees and directs their mind to the consequences of their actions and desires the consequences or substantially certain they will happen. if crown proves you did the act. HUNDAL – Canada This has been overturned by Creighton Case – no incorporation of subjective factors 12 . Mix between subjective and objective. reckless. However. 7 of the charter. sexual assault.” Note. the legal proof of burden shifts to the accused to show that they acted with due diligence (as a reasonable person would have) to a balance of probabilities. in our discussion of statutory interpretation. o Recklessness: Foresees the consequences. A subjective test seeks to determine what was actually in the mind of the particular accused at the moment of the offence. didn’t desire them. assault. Cancoil). break and enter.  Absolute Liability: o Crown must only prove actus reus. o o R. Did this accused have their suspicions arise.

you can reasonably infer subjective awareness by the conduct of the accused. did they foresee them subjectively? o Now. actually held) – Subjective. Crown must prove subjective fault BARD. Crown Prove BARD. we did have a lot of offences including a few criminal where you could be held responsible for acting reasonably Mens Rea – Regulatory Offences . “Honest and Reasonable Belief” – objective 13 . actually held – subjective fault  Traditional approach has subjective fault with full mens rea as an essential ingredient unless Parliament makes it very clear otherwise. – Canada   Strict Liability is now the starting point for all faults in non-criminal code offences Three categories of fault for offences:  Mens rea proved by the prosecution beyond a reasonable doubt – offences must consist of intent. Even prior to evolution. The accused can avoid liability by proving he acted with due diligence and he took all reasonable care which a reasonable man might have been expected to take in the circumstances.pg. just that they intended to do something and that it was against the law o R. Simple negligence – need to prove on balance of probabilities that they acted reasonably. R.13   Court must subjectively infer intentions from the conduct of the accused The test is whether the accused subjectively appreciated that certain consequences would follow from his or her acts. This involves an objective standard of what a reasonable person would have done in the situation. v. “Honest belief. look at conduct and negligence. recklessness. v. v. ORTT – Ontario It’s easier to convict now. Assessed on a balance of circumstantial evidence  Crown has to prove BARD that the accused had the requisite intention o R. No malice. MULLIGAN – Ontario  Good example of traditional approach: a man is usually able to foresee what are the natural consequences of his acts. Just need to show the accused was aware of the physical reality of consequences and foresaw some likelihood of the occurrence  3. THEROUX – Canada   Probability of harm may be so great that it compels inference that the accused actually intended to do the harm (guy stabbed wife repeatedly and said he was just trying to hurt not kill) o R.  there was either full mens rea offences or absolute liability at this point. not whether the accused believed the acts or their consequences to be moral.  Strict Liability Offences – Crown proof of act is all that is required. or knowledge based on an inference from the nature of the act committed. since Charter. so it is reasonable to presume that he did foresee them and intend them. Even when they do. it is much easier to prove subjective fault o historically. because:  1.20 (Provincial and Federal Legislation not CC) DEFENDANT not ACCUSED  Honest Belief – subjective fault  Honest and Reasonable belief – objective  Honest belief. A lot of offences do not require proof of subjective fault  2. used to be accused was aware of potential consequences. o BEAVER v.

it has a clause in wording reversal of onus of proof as a result of strict liability clause. o R. and to have accepted certain terms and conditions of entry. v. or in other words. MARIE – Canada . Fault is presumed from proof of the prohibited result and the onus shifts to the defendant to establish reasonable care on a balance of probabilities. unnecessary noise.accused has to prove 14 .  Mens Rea – Charter Standards . CITY OF SAULT STE. o R. ** if CC. v. 7! o REFERNCE RE SECTION 94(2) OF THE MOTOR VEHICLE ACT (B. then you can go to jail  could NOT be absolute liability then! Violation of s. 69 and s. the more unreasonable that the accused actually believed what he is trying to believe he believed.21  Any offence that has incarceration as a penalty cannot be an absolute liability offence  In Ontario. All that must be proved is the doing of the prohibited act – these are offences strictly prescribed by the legislature in statute. 7 or s. WHOLESALE TRAVEL GROUP INC. v.14 s. v. CANCOIL THERMAL CORP.C. burden of proof on accused to show on a balance of probabilities that they acted as a reasonable person reversal of onus of proof as reverse onus clause – legislative mandate. If offence is constituted as Strict Liability. CHAPIN – Canada KANDA CASE: o Offences in which mens rea – knowingly permit o Strict liability offence – make an unreasonable noise. Change to strict liability so defence could be due diligence. Simple negligence: the failure to act as a reasonable person in which the accused has to disprove the fault. – Canada A public welfare offence which is not criminal in the true sense is a strict liability offence An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances.) – Canada    Due to the possibility of incarceration. the more unreasonable the evidence. having an absolute liability offence offends s. etc o Absolute liability offence – it is NOT a defence that the person exercised due diligence to avoid or prevent.7 of the Charter. Simple negligence and the accused has the burden of proof to show on a balance of probabilities that they acted with due diligence. – Ontario     A due diligence defence is all that is required in the case of a regulatory offence Strict liability offences do not infringe either s. you can start with the assumption that the fault element is objective and will be strict liability. The regulated person chose to enter the regulated field and accordingly can be taken to have known of... o R. unreasonable amount of smoke. 11(d) of the Charter. 70 of Ontario Provincial Legislation  if guilty and do not pay a fine. but Wilson DISAGREES. 265(4): evaluate the reasonableness of the evidence. Need to prove on a balance of probabilities that you acted reasonably – show due diligence o R.create Strict Liability Offences       Conviction of a regulatory offence imports a significantly lesser degree of culpability than conviction of a true crime Licensing Justification: people who engage in economic and social activity that is subject to government regulation have assumed the responsibility to meet the regulatory requirements. that he was in no way negligent.  Absolute Liability Offences – offences where it is not open to the accused to exculpate themselves by showing he was free from fault. in most cases. ** If it’s not a CC offence. s. Stuart will say start with subjective.pg.

Clear Language offences: o words like wilfully. with purpose  2. Crown would have to prove subjective fault BARD o intention.15        CONSTITUTIONALLY VALID o R. Offences with a special stigma o SCC made up – parliament treat these as highest level offence and require subjective fault o Murder. fault element was recklessness – would have to show that accused subjectively foresaw the consequences and took an unreasonable risk o Criminal Negligence – first move away from subjective to objective fault  o Offensive manslaughter:  if you were drunk or had a mental disorder not serious enough for insanity where you could not form intention to kill someone  NOW: most CC offences are objective fault offences: marked departure and marked and substantial departure from the conduct of a reasonable person – Crown has to prove this BARD o Dangerous Driving causing Death – marked departure from conduct of reasonable person 6 Different Types of Fault Requirement in the Criminal Code  1. intentionally. due diligence is not an offence so AL. 7 similar to William Cameron Trucking Case o Wilson argues: shouldn’t it not be allowed an AL offence if it takes away your livelihood? o R. but not possible incarceration so no violation of s. Couple exceptions that limited to criminal negligence causing bodily harm o until recently. etc  2. London v Polwesky (2005) o Ont CA – speeding could be AL offence even though could go to jail if default payments on tickets o WILSON SAYS THIS IS WRONGLY DECIDED o CORPORATION OF THE CITY OF LONDON v. purposefully. sexual assault and theft  3. WHOLESALE TRAVEL GROUP INC. TRANSPORT ROBERT – Ontario Criminal acts must be of such a poor nature that it is considered breach of duty to the public and deserving of punishment Crown still must prove BARD the elements of the actus reus in these offences o R. v. deliberately.– Canada Absolute liability offences do not offend the liberty of the accused b/c of no jail time. POLEWSKY – Ontario If non-CC offence. wilful blindness  knowingly. recklessness. offences against humanity. v. v. Offences which have been found by the courts to require proof of subjective fault 15 . knowingly. start with Strict Liability  check if it can move up to subjective fault o level of proof would escalate (from balance of probabilities to BARD) o Provincial law offence that is moved to mens rea offence (subjective – includes words like “everyone who with intent” or “wilful” or “intention”) o Crown will have to prove BARD for actus reus and BARD for the establishment of subjective fault Used to only be two types of fault in CC  1. BEAUCHAMP – Ontario Absolute liability offence is constitutional if the chance of going to jail in default of payment was remote.

Predicate Offence Situations o situation where: if A causes B scenario o Unlawful Act. or o Was the murder set out in the code as a 1st degree for being a particular victim. Criminal Negligence/gross negligence? o causing bodily harm o fault requirement: marked and substantial departure from how a reasonable person would act  5. then it is manslaughter either through unlawful act manslaughter [s. (a)(ii) meant to cause bodily harm that was likely to cause death. culpable homicide  less than murder – moreso manslaughter o as per Martineau – you cannot be convicted for murder in Canada unless accused can foresee consequence of death o What if the result of a provincial or federal Act – then it cannot be a Strict Liability or Absolute Liability offence  Wilson says however. we should not treat it like that b/c we are not dealing with offence of provincial statute.  If not.  (1)It is a murder if as per s. but now deal with a criminal offence for the CC o Crown has to prove BARD that this person exhibited a marked departure from the conduct of a reasonable person WAS THERE A DEATH?  Person commits murder where “means” to cause death or “means” to cause bodily harm that he “knows” is likely to cause his death.  (2) To find 1st degree Murder You Should Ask: o Was the murder planned and deliberate look for words “calculated” “considered not impulsive” or “planned”. Offences of Penal Negligence o includes offences which the Court have determined do not require subjective fault:  dangerous driving  failure to provide necessaries  Arson  careless use of firearm  unlawful act causing bodily harm(?) o fault element for offences – marked departure from conduct of a reasonable person  6. or o Was the murder during the course of an indictable offence 16 .the accused (a)(i) meant to cause the death. and is “reckless” whether death ensues or not (Simpson)  Two step process – Was there a murder.222(5)(a)] or criminal negligence causing death [s. that even though you’re dealing with offences of provincial statute. murder 3 Types of Objective fault in CC  4. but killed person B. (b) meant to kill person A. 229 . and it is still a culpable homicide.222(5)(b)]. possession.16 o based on Precedent – assault. then was there a first/second degree murder. (c) for some unlawful purpose meant to cause harm that he knows would cause death.

17  s. victim slipped and impaled himself o if the accused saw the risk of the deceased could die from injury.230 . sexual assault with a weapon. Infanticide Murder and the Charter – s.only available for a charge of murder. 230 . 229(a)(2) – need to prove likely knew.  If you commit culpable homicide it must be one of 3 things:  1.  Constructive Murder – s.232 . s.23  Murder s.pg. 225(5)(b) – culpable homicide is committed when death is caused by criminal negligence Note s. Note that the standard here for criminal negligence is objective – a marked and substantial departure from the reasonable person. (c) wilfully stopped the breath of human for listed offence     If it is not possible to show murder under s. Foresaw death and likelihood it would happen. EDELENBOS – Ontario Patterson Case o second degree murder – guy pulled out knife to defend himself. kidnapping.24  s.229(a)(i) and (ii) . you won’t be charged with murder but rather manslaughter. b. or omit to do something that it is your duty to do. a. hostage taking. robbery. v. 229  2. 229 or s. R. 229(a)(1) o murder if you intend to kill someone and you are successful – you wanted death to occur and it did  Murder under s. Murder – s. aggravated sexual assault. that could constitute likelihood for s. 229(a)(2) o also convicted of murder even when you did not intend to kill that person. but the act was caused by CRIMINAL NEGLIGENCE. sexual assault. 219 – you are criminally negligent when you do. highjacking. Note that “duty” means duty imposed by law.pg. assaulting a cop. If a reasonable person would have lost control in the circumstances. Note s. 229(c) 17 . c. Manslaughter  3. Means more than a remote possibility o R. Defence of Provocation .229(c) and s.s. escape from prison. 230. AND (a) the accused meant to cause bodily harm for the purpose of committing or escaping from the listed offence. 229(a)(2). – Ontario   Crown is obliged to prove the accused’s subjective intent to cause bodily harm that was likely to cause the victim’s death The difference between knowing that death is “likely” and that death is “possible” distinguishes murder from manslaughter.It’s murder if the culpable homicide was committed during one of the following offences: high treason. it is “unlawful act manslaughter”. (b) used stupefying force that causes death for listed offence. but you intended to cause bodily harm that you knew was likely to cause death (subjective test) o Martineau – subjective foresight of death  Must be subjective foresight of death in both cases o the accused must be shown BARD to have foreseen that death as a likely consequence  Comes from Martineau decision  Culpable homicide must have a subjective fault element o SIMPSON v. Note that the crown will have to prove that this negligent act CAUSED the death.

229(c) was unconstitutional because of the term ought to have known. that the murder was planned and deliberate  Deliberate: means it involves deliberation and it was not impulsive. SMITH – Saskatchewan   Requisite intent to cause grave bodily injuries that are known to likely cause the death of the victim can be 1st degree murder You can be convicted on first degree murder on basis of bodily harm likely to cause death as long as the bodily harm was contemplated beforehand. intend for explosion. v.25  First degree murder must have. Subjective Knowledge that death is likely to occur – waiving gun around o (if drunk.R. Struck down s.e.7 of the Charter as it does not have the adequate mens rea as there has to be a minimum subjective mental state for an offense relative to the harm caused. s. however court removed that phrase. the probably just manslaughter) o Just b/c victim died. R.  Planning: arranged beforehand and requires forethought pursuant to some scheme or design.  s. v. NYGAARD AND SCHIMMENS – Canada 18 . police officer. He had an unlawful object (to kill someone) and the Crown was able to satisfy a jury that he knew death was likely to occur – subjective foresight of death o R. – Canada o      Conviction of murder requires there to be a subjective foresight of death The stigma attached to murder and the punishment are of a nature that nothing less than subjective foreseeability is required. J. o R. – Ontario Creeda Case Shand Case to prove s. Conviction of Murder  2. DOES NOT mean appellant knew it was likely! TWO-STEP PROCESS:  1. 229(c) Jan 2011 o 1. A jury could infer that he could have anticipated the gun fight and decided to participate. v.pg. made a diversion at one end of town for friends can rob on other side of town (explosion) – guilty of murder under this section o “ought to have known” is gone as per Martineau otherwise it would infringe on s. it was impulsive o R. beyond a reasonable doubt. kill someone else.S. killing someone during particular offences. 229(a)(2)) o R. v. unlawful object other than the death of the victim or cause of bodily harm to the victim (theft) o 2. 11 (d)  now it is subjective foresight of death Constructive murder goes against s. (s. MARTINEAU – Canada Causation has a factual legal component. 230(d) o VAILLANCOURT v. 231(2)  planned and delivered. etc  dangerous act is SEPARATE from death of individual o 3. First or Second Degree? o Murder = life in prison o first degree – parole in 25 years o second degree – parole in 10 years usually  First Degree Murder – s.231 . It has to be an unlawful object which is an indictable offence which requires subjective fault mens rea  intend to commit robbery. etc o in this case didn’t plan to kill. contract kill. 7 and s.18 anyone for an unlawful object and you know it is likely to cause death – would be murder o i.

s.26  Motive is not part of the fault.27  The situation must go beyond where you necessarily desired something to occur but must have subjective foresight of the consequences.  Purpose does not equate to desire. you must intend to have possession and that your possession must. in fact. regardless of whether he or she desired them. ARKELL – Canada **Used to start at subject fault to secure a conviction for CC offences.Death Caused by committing certain offences o this section only comes into play when it has been proven BARD o o   It can be 1st degree murder if while committing an enumerated predicate offence you end up killing the victim. they just don’t “desire” it to happen o R. the provision should be interpreted in such a manner as will not contravene the Charter R. v. WILSON would suggest that you now start at Penal Negligence (marked departure) Subjective Mens Rea Crimes – Motive . 231(4) s. However. v. COLLINS – Ontario Preveost Ont CA 1988 – police officer on lunch  Zuber J held he was still on duty. be dangerous to public peace o 2. 231(5) o R. you have to intend to have possession. 231(5). HIBBERT – Canada   Court split over hybrid fault or subjective fault for meaning of dangerous purpose What does Possession with a purpose dangerous to the public mean? o 1. R. but it is not anterior intention (rationale) o LEWIS v. – the fact that he thought it was joke was irrelevant – he should have had intention – he intended the consequence that was prohibited o R.pg.  tradition definition of intention: accused foresaw the consequences and desired those consequences to occur o “on purpose” is synonymous with “intention” regardless of desire o they cause it on purpose. Motive is important for proving defense. – Canada     Saying it is a joke may negate the proof of intention for the offence notion of defense of a prank. just b/c he was eating does not mean he was removed from s.pg. in order to have the necessary fault.19   Accused must know victim was police acting in their duties to offend s. you must be intending to use the weapon for the particular purpose of creating a danger for the public 19 .231(4)(a) Where a statutory provision is open to two interpretations. the reason is not the same thing as intention  the reason you committed a particular offence is not the same thing as your intention to engage in criminal activity. but rather than it being factual to present danger. a person who consciously performs an act knowing the consequences that will flow from it “intends” these consequences or causes them “on purpose”. v. v. MATHE – British Columbia No intent to actually acquire prostitution services the reason he did it has an impact on whether or not he had intent o Pake Case Subjective Mens Rea Crimes – Desire/Purpose .

 Willful Blindness – did the accused subjectively have a suspicion. but does not always mean recklessly Intention is where you want it to happen or foresee with substantial certainty that it will occur. but rather that you intended the possession to be dangerous to the public peace and there was substantial certainty that danger was created R. 267 and s. KERR – Canada o     Willfully could mean intentionally. 268 of CC  no mention of knowledge or intention o R v E(A) 2000 Ont CA  mental element of assault causing bodily harm is satisfied by proof that the accused was reckless as to whether or not his acts caused harm  a CC offence has to be prove by subjective fault. o not enough that the consequences are highly probable. or that you intended to bring danger. v. What about a situation where you have to prove knowledge? o You can prove knowledge by actual knowledge or by willful blindness o Can you show knowledge by showing that the person was reckless?  Stuart – Yes  Wilson – NO  Can you prove subjective fault through intention and recklessness . wouldn’t be enough that it would factually bring a danger.pg. must intend to have possession. v. takes a deliberate and unjustifiable risk of bringing it about. THEROUX – Canada Offence of Assault: o Cases involve s. v. o R.     The fact that the accused may have hoped the consequences would not take place provides no defence Recklessness: can the Crown prove that he foresaw the consequences and took an assumption of risk? Can prove objective fault through recklessness (when the accused had subjective foresight) and then took an unreasonable assumption of risk  FUSION OF OBJECTIVE AND SUBJECTIVE Recklessness can be found instead of intention if the accused could foresee the consequences. but deliberately close their mind to the possibility of making further inquires.20 o 3.probably o R.28  Recklessness – subjective foresight of consequences in a situation where the accused knew the consequences were likely to occur. but can be proven by either proving intent or that they were reckless o Williams  mental element for aggravated assault is the mental element of assault coupled with the objective foresight of harm  can prove subjective fault through proof of intention or recklessness ** IF Legislation has intent: need to prove knowledge o if it has knowledge: prove that actual knowledge of wilfully blind o if silent but requires subjective fault: can prove either by intention or recklessness   20 . BUZZANGA and DUROCHER – Ontario Subjective Mens Rea Crimes – Recklessness or Willful Blindness . nevertheless. be cognizant that those consequences were likely to occur and took an unreasonable risk anyway. it has to be substantially certain Recklessness is a state of mind of foreseeing that a conduct may cause the prohibited result but.

STILL DOESNT MATTER THOUGH. 3.219 . R. CURRIE – Ontario   He was an accessory after the fact s. – Canada     Wilful blindness was present because accused deliberately refrained from making further inquiries even though his suspicions had been aroused The accused is not going to succeed of a reasonable person would have known that the situation was suspicious. Briscoe Case 2010 o Wilful Blindness is distinct from recklessness. o R. they remained suspicious and BARD that they refrained from making further inquiries despite the suspicion o The test is Subjective – but we use the reasonable person (objective test) to help decide whether the person deliberately remained ignorant or not. 23(1) Where an accused chooses to make no inquiries. preferring to remain “deliberately ignorant” is equal to actual knowledge – both are subjective. If the court proves you were wilfully blind  they treat it as actual knowledge o SANSREGRET v. the accused was suspicious of the authenticity of the cheque.30  If the Offence is Criminal Negligence 1. accused must deliberately omit to make further enquiries The fact that a person ought to have known that certain facts existed does not constitute knowledge for the purpose of criminal liability. When the accused’s “suspicion is aroused an d deliberately chooses not to make inquiries” Stuart says this equals to deliberate ignorance which equates to intention. 219 “anyone is criminally negligent who in act or omission shows a 2. BLONDIN – British Columbia    For wilful blindness. STILL WILFULLY BLIND o R. In this case.pg.21 o Proving Knowledge:  cant convict someone on the basis the person ought to have known or should have known  have to prove that they actually knew or that they had deliberately refrained from finding out the truth  Wilful blindness arises where a person who has become aware of the need for some inquiry and declines to make the inquiry because he does not wish to know the truth and prefers to remain ignorant. wanton and reckless disregard for the lives and safety of others” Establish the act/omission of the accused Establish causation (Smithers/Nette test from causation section) 21 . sufficiently blameworthy to justify the imposition of criminal liability Speculation as to what the accused would have learned had he chosen to make the necessary inquiries is irrelevant.  Objective Fault Crimes – Criminal Negligence s. it involves no departure from the subjective inquiry of the accused’s state of mind. Has been defined under s. o R. and does not by itself form a basis for the application of the doctrine of wilful blindness. v. DUONG – Ontario Legassy Case o argue no wilful blindness b/c he had made inquiry to confirm of his suspicion that the cars were stolen o Finding that the accused took reasonable steps would be inconsistent with the conclusion that they were wilfully blind o Crown would have to prove BARD that despite the inquiry made in light of suspicions. v. It substitutes actual knowledge when knowledge is necessary for the charge. but deliberately avoided knowing the truth – wilful blindness. v.

ANDERSON – Canada 22 . Inadvertence is the same as negligence. failing to direct your mind and take an unreasonable risk. Note that McLachlin says in Creighton that you can infer the fault element from the actus reus. SPARLING – Canada       Any mistaken belief which could afford a defence for criminal negligence would have to be reasonable Proof of conduct which reveals a marked and substantial departure from the standard which could be expected of a reasonably prudent person in the circumstances will justify a conviction of criminal negligence. however. changes criminal negligence charges form subjective to objective! o R. such as Beatty. Recent decision. An objective test must be used in determining criminal negligence.      Advertence is the same as recklessness. 4. A marked and substantial departure from the standard of a reasonable person. that Beatty was not a negligence offence and therefore since the SCC has not made a clear statement regarding the distinction between act and fault. Note. It is the conduct of the accused. fault element for criminal negligence is marked and substantial departure o O’GRADY v. TUTTON and TUTTON – Canada Mental element in criminal negligence is the minimal intent of awareness of the prohibited risk or wilful blindness to the risk Objective fault can be found in the conduct of the accused. This is established in accordance with the definition of criminal negligence in s. This seems to be the more logical way to approach fault. – Canada Impugned conduct is a marked departure from the standard is central to both the objective and subjective approaches The greater the risk created. the failure to direct your mind to the consequences. have made a clear distinction between the fault and act requirements.22 Establish that the act/omission was grossly negligent. which is examined. o R. Newer cases however have said you cannot infer fault from conduct!!! o WAITE v. we aren’t sure if this proposition applies to offences outside of dangerous driving. the easier it is to conclude that a reasonably prudent person would have foreseen the consequences. v.  For criminal negligence causing death the actus reus is negligent conduct. not his intention or mental state.conduct that shows a wanton and reckless disregard for the lives and safety of others. R. Because the actus reus is also determined on whether or not the accused acted reasonably. 5. BARD burden on Crown. You establish that whatever the person did meets that definition to establish the guilty act and then you ask whether that negligent conduct is a marked and substantial departure from what a reasonable person in the circumstances would do to establish the mens rea. v. 219 of the code .

 for PENAL negligence – the Crown must prove BARD that there was a marked departure  o R. you can assume fault from the act It is only when there is a “marked departure” that the conduct demonstrates sufficient blameworthiness to support a finding of penal liability. should not be accounted for as this creates a fluctuating standard.. insert the reasonable person into the particular fact scenario. it may be a relevant consideration in assessing the reasonableness of his conduct. If an accused has an honest and reasonably held belief in the existence of certain facts. Personal characteristics. what would a reasonable person in similar circumstances would have been aware of the risk and danger? In the CC. etc)     If the conduct shows a marked departure from that of a reasonable person. HUNDAL – Canada Modified Objective Test: o Not a pure reasonable person. v.e road conditions)     Predicate offence with negligence must also be read as requiring a “marked departure” from the norm Lamer: Human frailties or any enhanced foresight which may affect the capacity of an accused to recognize the risks of unlawful conduct may be considered The reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of his membership in a group with special experience or knowledge McLachlin: Everyone should be judged on the same objective standard as the other approach waters down the standard to create a subjective approach o o R. o o R. gender. we know there are two levels of objective fault  fault element for criminal negligence – marked and substantial departure  fault element for other offences with negligence – marked departure  R v JF o 23 . v. CREIGHTON – Canada overturns Hundal with its modified objective test  do NOT take into account subjective factors  The only exception is IF there is a incapacity to appreciate the quality of conduct  usually this means insanity. regardless of knowledge/expertise treated the same  Lamer J: says we SHOULD incorporate subjective feature beyond the control of individual person (age. unlike the context of the events surrounding the incident.23 Marked Departure Test .  The operation of a motor vehicle is automatic and with little conscious thought and therefore inappropriate to apply a subjective test in determining guilt.simple negligence is fine for Statutory offences though  Objective mens rea should be considered in the context of all the events surrounding the incident. but taking into account the actual activities/event that took place o look at the circumstances (i.31  Delorey Case – NSCA o Guy charged with dangerous driving causing death and dangerous driving causing bodily harm o Court held: in order to constitute a sufficient level of fault there needs to be a marked departure from what a reasonable person would do o needs to be more than just simple negligence for CC offences . but can also refer to illiteracy  Wilson finds baffling: same person.pg. v. BEATTY – Canada Look at more than just the conduct of the individual: we ask.

R.24 Crimes Based on Predicate Offences . To be convicted under a predicate offence.33 (unlawful act. Establish BARD objective forseeability of the risk of bodily harm which was neither trivial nor transitory (Creighton). R.pg. Establish the Actus Reus of the underlying offence 3. is still significant! o  24 . aggravated assault. for the culpable homicide:  Crown will have prove BARD that there was a marked departure with regard to the prohibited activity set out in the provincial legislation o     Unlawful act manslaughter requires objective foreseeability of the risk of bodily harm in the context of the dangerous act For unlawful act manslaughter Crown has to show:  (1) Fault for the underlying offence  (2) Objective foreseeability of the risk of bodily harm (not death) which is neither transient nor transitory in the context of the dangerous act. ex. the fault element must be a marked departure from that of a normal person with the onus on the Crown. 269 of CC – unlawful act causing bodily harm **On Exam: if someone charged with unlawful act. and  (2) prove that the non-trivial bodily harm caused by the underlying unlawful act was objectively foreseeable. Foreseeability of the risk of death is not required. causing death. 6. even for penal negligence. Establish that the act was objectively dangerous ( De Sousa).DeSousa) 2. unlawful acts causing bodily harm. v. )  If the Offence is unlawful act culpable homicide (Predicate Offence) 1. culpable homicide and unlawful act strict liability o Burden of proof on accused to show on a balance of probabilities that acting reasonable o Crown has to prove BARD the offence of manslaughter o Westeray Mining Case  someone violated provincial legislation  Crown must prove actus reus BARD  they accused must prove on balance of probabilities reasonable person (simple neg)  Then. the prosecution must:  (1) satisfy the mental element requirement of the underlying offence. v. If the fault for the underlying offence is strict liability you must bump it up to penal negligence (Creighton)  marked departure 4. 225(a) – unlawful act causing death  unlawful act – trafficking **McLachlin suggests that once you prove actus reus you can convict without any real issue of mens rea o Wilson disagrees – the fault element. Establish the fault of the underlying offence based on penal negligence (unless the underlying offence has an original higher fault form. regardless if it is usually a simple negligence offence. j-walk is not predicate offence b/c arguably not objectively dangerous     Underlying offence to count as the unlawful act must have an objective foresight of bodily harm For a predicate offence crime. then leave it) 5. Determine the underlying offence (cannot be an absolute liability offence. If the Crown uses an objective predicate offence. CREIGHTON – Canada  s. DeSOUSA – Canada  s. Only offences prohibited by federal or provincial legislation can be used as a predicate offence and they cannot be an absolute liability offence. the harm caused must have sufficient causal connection to the underlying offence committed.

264 – Criminal Harassment **Wilson: If the predicate offence involves carelessness. (subjective) – s. or being reckless of or wilfully blind to.  s. not that they intended a sexual nature (Daviault).2(e). General intent means Crown only needs to show accused intended what they did.1. 273. power or authority s. 273. The Actus Reus is established by the proof of three elements: (1) Touching: determined objectively.273.25   There does not need to be perfect symmetry between fault for an act and intention to its consequences You can be held responsible for consequences which you did not intend or even reasonably objectively foresee. negligence (strict liability or marked departure) then you could use a provincial offence o a predicate offence involving negligence must be read as requiring a marked departure o for any offence. 273(2) s. 25 . There need only be a sufficiently blameworthy element in the actus reus to which the culpable mental state attaches.2(b)  Note that this applies to age for statutory rape as well. v. R. culpable homicide is AT LEAST marked departure o  WAS THERE A SEXUAL ASSAULT? s.1 are factors of things that might vitiate consent B. Mens Rea for sexual assault is general intent/subjective fault (Darrach) (1) Crown proves that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. 273(1) and s.  s. Prior activity or in a situation where the victim says stop s. if it is being used as a predicate offence. KRUSHEL – Ontario  s. Ewanchuk has established that the complainant must communicate consent. there must be proof BARD of marked departure o minimal fault element for predicate offence of unlawful act.273. (2) The mens rea has two elements:  intention to touch and  knowing of.1.No means no. crown must prove actions were voluntary (2) The sexual nature of the contact: determined objectively accused doesn’t have to intend the touching to be sexual (Litchfield/ Chase) (3) The absence of consent: determined subjectively and determined by reference to the complainants subjective internal state of mind towards the touching at the time it occurred (Jensen). Defences To Sexual Assault (1) Honest but Mistaken Belief :  You must ask did the accused take reasonable steps to determine if the complainant had actually communicated consent. 273.2 – instances with no consent: won’t be consent when victim is incapable or giving consent OR when the accused induces victim by abusing trust. a lack of consent on the part of the person touched C. 265(4). 273(2) – argue mistake of fact – I thought she was communicating consent (Crown must prove BARD that accused didn’t take reasonable steps in the circumstances to get consent) A.2(a) – Honest belief cannot arise out of (i) self-induced intoxication or (ii) reckless or wilful blindness. s.

276 of the CC – limits evidence of the complainant’s past sexual activity . R.pg. a reasonable observer would deem the sexual integrity of the victim to have been violated  Would a reasonable person viewing this situation conclude that sexual assault occurred?  The general intent or purpose of the person committing the act may also be a factor in considering whether the conduct is sexual. o R. K. v. o R.pg. R.Cases are between State and Defendant – the person who was raped is no longer involved once complaint is made Rape Shield . CHASE – Canada  There does not need to be sexual gratification of the accused in order for there to be sexual assault o R. or passisivity (Ewanchuck) (5) Under s. DARRACH – Canada Rape and Sexual Assault . ambiguous conduct (Cornejo).  An accused person who seeks to rely upon a defense of mistake of fact must.s. 278(2) – O’Connor Applications – need to prove the evidence is significant to be admitted . establish that his mistake was reasonable as well as honest. v.V.ban publication of identity of plaintiff .B.34  There must be an air of reality in order to further a mistake of fact defence  The test to be applied is that there must be in the record some evidence which would convey a sense of reality in the submission. 486(3). Some factors are (1) the part of the body (2) nature of the touching (3) situation in which it occurred (4) words and gestures that accompanied the touching. Rape Shield Provision: s.  Reasonableness is important – but it matters whether or not the accused is telling the truth  Crown must prove BARD that reasonable steps were not taken o PAPPAJOHN v.Vital Impact Statements: allow ppl to vent but have no role in sentencing or decision . – Canada   Accused cannot be wilfully blind or reckless to the violent way in which consent was acquired Consent can be withdrawn at any time o SANSREGRET v.s. – Canada Crimes of Sexual Assault . (3) Note that you can use insanity as a defence.s. objectively. You cannot find Honest but Mistaken Belief on basis of silence. – Canada 26 . v.26 (2) Air of Reality (Cornejo):  If there is claim of mistaken belief which was determined subjectively you must ask if there is an air of reality to the defence.1 – it is no defence that the person consented to the activity if they are under 16 years of age.  To establish AOR you must ask if the evidence shows objectively that the complainant communicated consent through words or actions.36  Past sexual history is not admissible unless the interests of justice will be defeated  The evidence of past sexual history can be admissible but it has to be absolutely heard or the interests of justice will be defeated.pg. 486 – can exclude members of the public from the Court Room .150. in order to succeed. or non self induced automatism (4) Note that there is no defence of implied consent.35  An assault is sexual if.

and  (iii) the absence of consent (subjective of the victim as the victim must not believe she is consenting to the act). Need an air of reality. 265. Not a defence to say I thought there was consent  The accused did NOT take reasonable steps in the circumstances to ascertain the complainant was consenting o HOWEVER. CORNEJO – Canada Bad Defences: o 1. if one of these three situations. Do not go to the mens rea discussion unless there is an absence of victim consent. a lack of consent on the part of the victim. or being reckless of or willfully blind to.27   R v MFW: o 12 yr old spanked by step-father in mall o CJC Fraser: if there is an interference.  (ii) sexual nature of the contact (objective). and you have an HONEST belief that there was consent then this is a good offence o The Crown must prove BARD that the accused did NOT take reasonable steps in the circumstances FOR DEFENCES ASK: 1. o R. How does the defence operate? Does it seek to negate actus reus? Does it seek to negate mens rea? 27 .  The Mens Rea is: subjective intention to touch and a knowing of. etc. v. What are the elements of the particular defence? (what needs to be proven) 2. The reason you thought there was consent b/c of self-induced intoxication  b/c you were drinking – no defence  Crown will try to prove you were drunk o 2. Where the accused belief of consent arouse from the accused  self-induced intoxication (s. EWANCHUCK – Canada   Cannot use mistaken but honest belief in consent defence unless the accused takes reasonable steps to obtain consent.b – you can commit an assault by attempting or threatening to apply force to an individual – even if an interference stopped it before the assault happened Mistaken Belief in Consent .  There is no defence of implied consent as a belief that silence. The evidence must show that accused believed the victim communicated consent to engage in the sexual activity. with the sexual integrity of the individual it will be sexual assault (no need for sexual gratification) Richetts Case: o s.1  extreme intoxication not a defence anymore)  recklessness or wilful blindness as to whether or not there was consent o 3. taking into account all the circumstances of age. passivity or ambiguous conduct constitutes consent is a mistake of law and provides no defence.36  The evidence must show that accused subjectively believed the victim communicated consent to engage in the sexual activity  For sexual assault the Actus Reus is:  (i) touching (objective).pg. v. 231.1. o R.

 Where it is an objective offense. KUNDEUS – Canada Fontaine Case o tried to take the intent to kill himself and transfer to intent to kill the passenger in his car o BUT. v. v. 150(1) – in general it is not a defence that the person under 16 years of age gave consent if you knew they were under 16  At 16 you cannot give consent to sexual activity  s.   With the potential for life imprisonment. the mistake is evaluated subjectively and need merely be honestly held. Wilson likes: Dissent by Laskin J: cannot be convicted is mens rea relates to one crime and actus relates to another b/c that would disregard the requirement of an appropriate mens rea – this is more persuasive o R. the mistake has to be honest and reasonable. “honest belief in an innocent state of affairs” = subjective evaluation of mistake. the mistake must be both honest and reasonable. When mandated by legislation (unlawful act causing death) it is allowed***   28 . Honest belief.37 (attacks the mens rea)  Must be a reasonably held belief in an innocent state of affairs o Crown has to prove BARD the opposite  Mistake of Fact is a negation of mens rea  Where it is a subjective offense. McLEOD – British Columbia      The court used the intent to commit rape with the actus reus of the charged offence. with onus on the accused to show that due diligence was taken and there was still a mistaken fact. an offence cannot be absolute liability as to not allow for a mistake of fact When one is dealing with the potential for life imprisonment it is not good enough to rely on intuition and speculation about the potential deterrent effect of an absolute liability offence. actually held. so you cannot transfer intention ***transfer of intention does not get used often – the courts are very uncomfortable with it. if not that charge then it would have been rape. o R. suicide is not criminal offence. v. The accused cannot use the defence of mistake of fact because his mind was not totally innocent. o R. 150(1-4): a mistaken belief that the person was older than 16 can be a defence if the accused can show took all reasonable steps to ascertain the age of complainant  (Crown would have to prove BARD that they didn’t take said steps)   An accused must intend all the essential elements (assaulting a police officer) of a subjective offence (in this case have to prove guy intended to hit a police officer BARD) The Essence of the Offence Test: The new approach is that the accused only must make a mistake as to the essence of the particular offence charged  you have to show that the person intended the specific actus reus of the offence o R. R. v.28 Mistake of Fact .pg. o Reasonable = objective  Where it is a strict liability offence. with reasonableness only relevant to an assessment of credibility. HESS. LADUE – Yukon Trafficking a drug thinking it was another still results in a conviction for the drug you actually had due to transferred intention. The court held that the mens rea should be considered in its widest sense and sufficient to find that he knew the substance was a narcotic. NGUYEN – Canada  s. v. What a reasonable person in their place in those circumstances would have thought. they transferred the intent for one offence to the act of a related offence.

(not knowing pointing a gun at someone is a criminal offence)    An ignorance of the law should be limited to the legislation for which you have made a mistake The existence of a suspension of a driving licence is a question of fact. v. It does not matter if your mind is completely innocent or not. (absolute discharge in lieu of conviction) o R. BARIL – Canada Colour of Right for Property Offences . CAMPBELL AND MLYNARCHUK – Alberta PEA Case o Accused argued he should be given the defence of “officially induced error” b/c of an official authority (duty counsel) told him to do it o General recognition that if you own lawyer told you to do it. it can be a mitigating factor in the sentencing of the individual. consequence or significance of those facts.39  “Colour of right” must be specifically mentioned in the statutory offence  Treated as a mistake of fact defence       Colour of right will arise where the accused has an honest belief in a lawful interest of property that is the subject matter of an alleged theft (i. gun loaded or not) Mistake of Law: the legal relevance.pg.pg. you had an honest belief it was actually yours) BUT. it is not a defence Distinguishing Mistake of Law and Fact . the accused’s mistake as to the legal consequences of the original conviction and therefore a mistake of law o R. PRUE. this is not a legal belief” – Aren’t Abo Claims equal to legal property interests? Yes? Officially Induced Error of Law . Law is an “idea” in the minds of men.pg. ESOP – Britain   Mistake of law. v. v. o R. DOROSH – Saskatchewan Colour of right needs an honest belief based on a mistake of fact or law. DRAINVILLE – Ontario Wilson says: this is one of the most offensive claims he’s aware of. if you had an honest belief that you had legal justification to do it  acquittal o R.e. including court rulings and legal advice. However.40  Officially induced error of law exists as an exception to the rule that ignorance of the law is not an excuse  The accused must prove 6 elements for officially induced error:  (1) that an error of law or of mixed law and fact was made  (2) the person who committed the act considered the legal consequences of his or her actions  (3) advice obtained came from an appropriate official 29 .38 TRY TO CONVERT MISTAKE OF LAW TO OF FACT – Courts accept this better  Ignorance of the law is no defence. provides no defence. however. v.29 Mistaken of Law . not morality Civil disobedience is not a defence but may mitigate sentence. v.e.39 Mistake of Fact: make a mistake that facts exist when they don’t or saying that facts do not exist when they do – making a mistake on something that can be perceived by your senses (i. It is saying “you honestly believed that you were asserting a claim to Abo title.pg. R. HOWEVER. v. simply believing your actions are justified is NOT an excuse o R.

Then you apply the defence of insanity o it acts to negate the mens rea . 2629-4470 QUEBEC INC. It is necessary to establish the objective reasonableness of the advice and the reliance on the advice.  If your found unfit to stand trial. it results in a verdict of not criminally responsible due to mental disorder and then the accused is subject to a mental health centre possibly indefinitely (committed to the pleasure of the Lieutenant Governor). o (2) Every person is presumed not to suffer from a mental disorder until the contrary is proved on the balance of probabilities o (3) The burden of proof is on the party that raises the issue.THIS IS HOW WILSON LIKES IT  s. – Canada   Incapacity . o the position and role of the official who gave the information. o LEVIS (CITY) v. you will not stand trail again. TETREAULT. Various factors will be taken into consideration in the course of the assessment including: o the efforts made by the accused to obtain information.30  (4) advice was reasonable  (5) advice was erroneous  (6) person relied on the advice in committing the act. If you are found insane. o Before a Fitness Hearing – there has to be a demonstration of the actus reus of the offence by the Crown o “Fitness Hearing” decides whether or not someone is fit to stand trial  “Insanity” – defence negating fault b/c of insane mental state at the time of the offence o can have someone who is fit to stand trial but was “insane” at time of offence or vice versa 30 .2.  Defence that negatives the fault element. o Usually results after the Courts have decided whether or not guilty of the offence by proving both actus reus and mens rea – then the defence of insanity is used  If successful.  “Fit to Stand Trial” – mental state at the time of trial.pg. and some courts will say they should prove the fault element as well . but can also act in cases where the act and fault have not been made out. it is possible later you can be found fit and then come back to stand trial. LEVIS (CITY) v.41 BIFURCATED APPROACH: . Crown must established the actus reus at least.pg.1. before you talk about insanity. o the clarity or obscurity of the law.41  Young Offenders Act governs the trials of children over the age of 12 but under the age of 18  Under the age of 12 – cannot be held criminally responsible (can deal with them other ways)  At age 18 can be held criminally responsible as an adult Insanity .16 of the Criminal Code Defence of Mental Disorder – disease of the mind: o (1) 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.

that act will result in the death of a human being. excluding self induced states caused by alcohol or drugs. in choking) without necessarily having the capacity to appreciate that. – Canada       Lack of feelings or remorse for an act caused by a disease of the mind is not a valid defence under section 16. disorder or abnormal condition which impairs the human mind and its functioning.A. o KJELDSEN v.. the Crown can then say it was actually insanity o If accused starts to entertain evidence of mental insanity. does not mean they meet the legal requirement for insanity Disease of the mind embraces any illness. v.31  Has to be a determination that there is a disease of the mind and then either one of: o Person rendered incapable of appreciating the nature and quality of the act. R.  Use it sparingly and when confident that your client is insane or was at time of offence and only for veryyy serious offences: o Otherwise could be sentenced to lieutenant governor for the rest of their life o Crown COULD use it to discredit your client’s “sanity” in front of jurors and make them think this weirdo is definitely capable of the crime  M’Naghten test: The test is that a criminal defendant is considered to have been insane at the time of an act if he or she did not know right from wrong or did not understand the nature and quality of the act because of a disease of the mind. o COOPER v. or o Person rendered incapable of knowing that the act was wrong. Crown can raise insanity to say that it is not automatism o After the judge has found a finding of guilt.e. An accused may be aware of the physical character of his action (i. R. Just because there is a disease of the mind at the time of the offence.  The Crown can bring insanity if: o If accused raises automatism.16. FREEMAN – U. in nature and quality. it does not mean the person meets the legal test of an incapability of appreciating the nature and quality of the act. Need a mental disorder – disease of the mind – anything that impairs human mind in its function (not alcohol induced or concussion induced) THEN YOU GO TO STEP 2: o 2. – Ontario 31 . o Broad definition that had nothing to do with science – no room for partial psychosis o o U. old test  NOW YOU NEED: o 1. as well as transitory mental states such as hysteria or concussion. the Crown can add to the evidence to bring forth a mental disorder defence o Crown is servant of the court and should bring evidence of insanity in front of the court if it has any.S.S. Need a disease to cause  a) Incapable of appreciating the nature and quality of the nature of an act  b) Renders you incapable of knowing what you did was wrong  The Current state of the law: the word wrong means either legally or morally wrong Just because someone has a disease of the mind. Only emotional disturbances caused by a disease of the mind that are so severe as to deprive the accused of the use of his understanding at the time of the act can be considered under s.

CHAULK – Canada   Insanity inquiry should focus not on general capacity to know right from wrong but on the ability to know that a particular act was wrong in the circumstances. but capable of knowing the nature and quality of the act and knew it was contrary to law and they were capable of making appropriate moral decisions (satisfies both branches of the two-branch test – so no defence of insanity) o R. W. Bifurcated Approach: used as an effort to combat the Crown’s attempt to bring up insanity defence often  could still bring the question of your client’s state of mind into issue in front of jurors Wilson thinks this is reprehensible (Guy Paul Morin Case) o R. v. v.(J. he is guilty.pg. he knew it was against the law. LANDRY – Canada Dennis Case (guy convinced co-workers out to get him):  He knew what he was doing. v. MAILLOUX – Canada  Permanent damage as a result of substance abuse can be considered a disease of the mind o Automatism . SWAIN – Canada R. ABBEY – Canada “Know” in the insanity defence can mean the accused did not know the act was legally wrong or morally wrong The Current state of the law: the word wrong means either legally or morally wrong o R. v.  Removes the requirement of the voluntary act. it results in an acquittal (Non-Insane Automatism)  To be non-insane automatism. v.M. OOMMEN – Canada Accused not criminally responsible if they thought the killing was against the law but was the right thing to do (he thought he was God) o o R.44  There is a presumption of voluntariness b/c person at the time of the alleged offence was unconscious  The party who raises the defence must prove automatism on a balance of probabilities. v.) – British Columbia    The Crown can only raise insanity after it has first proved the actus reus of the offence The Crown could adduce evidence of insanity during the trial if the accused put his or her mental state in issue.32  The court held that if the accused appreciated the physical consequences of his acts. but lacked the capacity to know the difference between what was right and what was wrong in the moral sense Leigh Case: (Greyhound)  found fit to stand trial  Was schizophrenic – had a delusion and Court found he did not appreciate the act he committed was morally wrong at the time of the killing o  Insanity not available if the accused has the ability to access their acts rationally and know that society would view them as morally wrong o Had a disease of the mind. o R. they are in an unconscious state while committing the act  If the automatistic state was caused by a disease of the mind then it is insane automatism and your defence is still section 16. v. accused must prove on a BOP all three:  The condition is non-permanent 32 . regardless if he appreciated the penalty or not (he thought he was protected by external force) o  R. The presumption is that all automatistic behaviours are cause by a disease of the mind (Insane Automatism)  If the automatism is not caused by a disease of the mind then it is non-insane automatism and if successful.

hypo/hyperglycaemia cases. it is considered a disease of the mind. v. (Continuing danger theory – any condition that could significantly likely recur and is likely to present a recurring danger to the public should be treated as insanity)  A psychological blow that is so extraordinary that it may have caused the ordinary person to enter into a dissociative state is an external factor and not a disease of the mind (concussions. The internal cause theory suggests that a condition stemming from the psychological or emotional makeup of the accused should lead to a finding of insanity (favoured by Canada). STONE – Canada There is an evidentiary burden to show automatism before it can be charged to the jury. Then you have a legal burden to establish it on a balance of probabilities. v. (Internal cause theory – a condition stemming from the internal or emotional makeup up the accused. should lead to insanity. GRANT – British Columbia (he knew he wasn’t supposed to drive. etc) o R. etc  if not disease of the mind and expert evidence gave virtual certainty that it would not happen again b/c now you were aware of your condition – then not guilty) A dissociative state is caused by some extraordinary external event which may reasonably affect an average normal person. The continuing danger theory holds that any condition likely to present a recurring danger to the public should be treated as insanity. o R. The legal burden in cases involving claims of automatism must be on the defence (accused) to prove involuntariness on a balance of probabilities. without reference to their subjective makeup. o o R. pneumonia. involuntary intoxication. Taylor Case Ont Sup Ct 2008 o Charged with dangerous driving causing death o Was unconscious and therefore not criminally responsible – was found to be not-guilty automatism. but did) Accused can be found to be at fault for their own unconscious state. the starting point is the presumption that it is a disease of the mind. then the defence of sane automatism is available. FONTAINE – Canada R. especially with sleepwalking 33 .)  There is no likelihood of recurrence. The normal everyday disappointments and stresses of life don’t count as external factors that explain the malfunctioning of the mind and take it out of the “disease of the mind” category. (some external causes would be hearing your kid’s dead. not disease of the mind If the malfunction’s source was primarily caused by the person’s internal state. now it probably would be found to be though. strokes. courts err on the side of caution and lean towards it being a disease of the mind. v. If there is an unconscious state. o R. RABEY – Canada        It is appropriate in many cases to apply both the internal/external and continuing danger tests to the accused’s condition for a finding of disease of the mind (sleepwalking). or killing someone’s kid. carbon monoxide poisoning.33  The cause is a primarily external. PARKS – Canada  sleep-walking not found to be a disease of the mind.      If you claim automatism then you are presumed to suffer from a mental disorder until proven sane. v. infections if enter into state of deliria. rather than some external factor such as a concussion. v.

Robbery. s.pg.  If it does not interfere with bodily integrity. v.  If it interferes with the bodily integrity of another person. Care and control of vehicle while impaired  (2a) If it is a specific intent offence. Assault. 33. v. Robbery will become theft. and the resulting risk should have been within the defendant’s contemplation.  (2b) If it is a general intent offence.34    Court found that sexsomnia was a disease of the mind and therefore the accused should be found not criminally responsible due to mental disorder If you have an unconscious state caused by intoxicants. such as sexual assault.7 of the Charter. PRESCOTT – Ontario Intoxication . o R. and use intoxication defence again – Courts might not allow it (similar to when you know you have epilepsy. there has to be ingestion. However. Ex.  If it is extreme intoxication. Murder. Ex.33. and still do)  With General Intent Offences or not specific intent offences: your defence is not available and the existence of your intoxicated state will establish the necessary fault and you will be found guilty  With general intent offences. s.1 can probably be challenged because R. Manslaughter  Specific intent is such that the intent to do more than just accomplish the act but also involves an ulterior motive. aiding and abetting and attempted crimes.1 of the Criminal Code will not allow a defence of even extreme automatism. etc): the accused just needs to raise an evidentiary basis (evidentiary burden). the charge will become manslaughter which is general intent. mens rea can be established by merely showing voluntary intoxication 34 .  (3) In order for there to be self induced intoxication. then it must be determined if it offence that interferes with the bodily integrity of another person (assault or manslaughter). then extreme intoxication akin to automatism is a defence as it negates voluntariness.  If accused is charged with murder and an intoxication defence is successful. v. LUEDECKE – Ontario Combination of drugs and alcohol can be an external cause of non-insane automatism if its effects are not reasonably foreseeable to the accused o R. robbery. then the Crown has to prove the requisite fault element of the offence  If the accused’s defence succeeds. accused must know or ought to have known about the intoxicant. Daviault. specifically said that anything like s. aren’t supposed to drive. break and enter. it will probably be an acquittal due to the negation of voluntariness due to automatism. the accused will be convicted of a lesser included offence  but if you offend again. there courts are going to lean towards labelling it intoxication.33. voluntary advanced intoxication is available as a defence.46  (1) Is the offence and General Intent or Specific Intent offence? the distinction is:  General intent is such that the intent is solely to do with the act and there is no ulterior motive necessary.  Merely advanced intoxication provides no defence. cannot use intoxication as a defence and b/c of this.  With Specific Intent Offences (such as murder. essentially proves fault of the offence  Be wary of the Crown bringing up defence of intoxication for such offences to essentially prove fault  In offences of general intent.1 is inconsistent with s.

1 of the Criminal Code. cannot be found guilty o but s. Your defence of mistake of fact becomes a defence of mistake of intoxication. drunk driving).cannot use defence of intoxication  There is a defence of intoxication for general intent offences where the accused is extremely drunk such that it is akin to automatism. v.1 Wilson suggests: create an offence of being drunk and dangerous with penalties   There are three levels of intoxication that can be used as a defence  First. there is mild drunkenness. Even if offence is sexual assault. o R. but such a defence would be extremely rare and. non-assaultive types of offences. then the Crown must prove BARD that you did have the specific intent to commit the offence or you will be found not guilty of that offence and convicted of a general lesser offence (murder – manslaughter) o R.e. Murder).e. by operation of s. then cannot be crime & cannot substitute the voluntary act of being intoxicated to the voluntary act of sexual assault. i. limited to non-violent. which negates voluntariness and thus is a complete defence to criminal responsibility (doesn’t matter if it’s absolute. 33. still need a minimal mental element. which induces relaxation of both inhibitions and socially acceptable behaviour. PENNO – Canada **see lecture notes pages 105-107 for situations which you may or may not be held criminally culpable** 35 . DALEY – Canada   Dangerous Driving: o At common law. not allowed for sexual assault and therefore you would be guilty!  Second. 33. Accused does not have to prove advanced intoxication – just raise a reasonable doubt as to whether or not you had the specific intention (if there is reasonable doubt. to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. v. strict liability or even sexual assault according to SCC and common law).1 modifies common law and takes away defence of automatism when there is an assaultive element o Question becomes: does dangerous driving necessarily fit within the parameters of s. BERNARD – Canada  sexual assault .35  We should recognize extreme intoxication as a defence to general intent offences because it renders a person akin to automatism. o R. you will be found not-guilty)  Third. Crown will argue: you did not have an honest belief – you thought this b/c you were intoxicated. o Criminal Code – Section 33. 33.1? The court is not going to allow a defence of drunkenness for specific intent offences when the offence involves drunkenness as an essential element (i. o R. intoxication to the point where the accused lacks the specific intent.. DAVIAULT – Canada  Removes the defence of unconscious act due to voluntary extreme intoxication for offences that have an element of assault or any other interference or threat of interference with the bodily integrity of another person. v. but I honestly thought the complainant conveyed consent and this was not b/c I was drinking. no voluntary act.e. If you can raise the evidentiary burden. Section 7: if someone not acting voluntary. (i. SCC: Even though there may be a logical inconsistency. For sexual assault – Yes I was drinking. Assault. v. there is extreme intoxication akin to automatism. there is advanced intoxication. we don’t think you will be able to use impairment as a defence to being impaired while driving.

Moreover. including the nature. the trier of fact should be satisfied on the basis of all the evidence. driving in a manner that was “dangerous to the public. Second modification: allows for the consideration of external factors when objectively evaluating the conduct of the reasonable person. C. F. condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at the place” B.) seems to be rejecting Creighton and possibly Hundel too b/c they don’t infer mens rea. Note: McLachlin still follows Creighton and thinks that we can still infer MR. The Mens Rea: The trier of fact must also be satisfied BARD that the accused’s objectively dangerous conduct was companied by the required mens rea. Note that the majority in Beatty (Charron J. This suggests that there might be a difference b/t marked departure and marked and substantial departure. the trier of fact must be satisfied that a reasonable person in similar circumstances (icy roads) ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.is that it is a marked departure (substantial) departure from the standard of care that a reasonable person would observe in all of the circumstances. having regard to all the circumstances. I. (THIS HAS SINCE BEEN CONFIRMED IN JF) D. Note that Beatty confirms and clarifies the modified objective test from Hundel which was also clarified in Creighton. including evidence about the accused’s actual state of mind. Professor Wilson says there is no difference b/t criminally negligent driving and dangerous driving. The problem is that the fault element for dangerous driving is marked departure but the fault element for negligence is marked and substantial departure. Actus Reus: The trier of fact must be satisfied BARD that viewed objectively the accused was. if an explanation is offered by the accused. that the conduct amounted to a marked departure from the standards of care that reasonable person would observe in the accused circumstances.36  If the Offence is Dangerous Driving (DD) (not sure if this applies to any other offences other than DD) A. 36 . As of today. then in order to convict. the conduct of a reasonable driver in icy conditions. if any. the test is: first modification . E.e. This suggests that we may have yet another level of objective fault. In making the objective assessment. in the words of the section.

37 FLOW CHART 1. Fault established? 1. Consent d. Mens Rea a. Provincial Offence – start at strict liability b. Fault:  Subjective or Objective? a) Subjective: i. Simple negligence or Penal and criminal negligence 37 . recklessness or willful blindness b) Objective: i. Causation – intervening causes 3. Voluntariness e. Can it move up or down? –jail? –language c. Act or Omission – duty c. reverse onus) 2. Actus Reus a. Intention. Standard of Proof (mandatory presumption. Read Criminal Code provision – what is required b.

v.38 Subjective Fault: Term Wilful Blindness (lowest subj. never presumed R. recklessness is objective Subjective test – Did the accused know what was likely to happen? Intention will always work for knowledge – if you intend it.C. if you intend A and B is a natural consequence of A. Buzzanga & Derocher – wilfully is the same as intent. Davis – Overturns Sansregret on issue of recklessness Recklessness Knowledge R. and that recklessness will not work for importing drug offences R. to its current form R. v.) R. 21(1)(b) – parties to an offence – means ‘intent’ R. Hibbert – the word ‘purpose’ in s. v. Steane – intention must be proved. you have knowledge Subjective test – Did the accused deliberately intend the prohibited consequences to happen? Watch for the word ‘wilfully’ – means intention If code says with intent Cases Defining/Supporting Sansregret v. It is NOT should they have asked questions Subjective test – did the accused know the act was likely to cause the prohibited consequences but proceeded anyway? Sometimes code specifies type of recklessness In the U. but deliberately close their mind to the possibility. but this is weird and causes problems. – definition given by S. v.C. v. v. then you intend B also 38 . v. v. there is no should – it’s subjective R. – suggests that recklessness would not negate mistaken belief of consent.) What is the test? Subjective test – did the accused have a suspicion. R. R. Sandhu – wilful blindness is the same as knowledge Buzzanga Sansregret v.K. Duong – If the code refers to knowledge you are limited to knowledge/intention not recklessness. but with knowledge you can use wilful blindness because with WB you could have learned if you tried Intention (highest subj. Currie – trial judge used should. as long as accused is aware that it may cause R. Sandhu – erroneously holds that recklessness is negligence and objective.