CRIMINAL LAW OUTLINE

Cases Notes

INTRODUCTION

General Principles #1
 actus non facit reum, nisi mens sit rea – “an act does not become
guilty unless there is a guilty mind” – intent and act must coincide
 Defences (justifications, excuses, exemptions) eliminate or reduce
blameworthiness
Legality #2
 Rule of Law - Nullum Crimen Sine Lege, Nulla Poena Sine Lege – no
crime without law and no punishment without law
Frey v. Fedoruk [1950] S.C.R. 517, 10 C.R. 26, 97 C.C.C. 1.  Legislativity - Law is established by Parliament
 F/I: “Peeping Tom” – accused’s actions not a criminal offence
 Rule: An act must be contrary to law in order to be a crime. There
can be no punishment except that provided for by law.
R v. Jacob (1996), 4 C.R. (5th) 86, 112 C.C.C. (3d) 1 (Ont C.A.).  Certainty – issue of statutory interpretation
 F/I: Girl walks bare-breasted in Guelph – what is an indecent act?
 Rule: An act is indecent if it breaches the community standard of
tolerance – ie. it goes beyond what Canadians will abide other
Canadians doing or seeing.
R. v. Heywood, [1994] 3 S.C.R. 761 (S.C.C.)  Specificity – Void for:
 F/I: Sex offender taking pictures at playground – are vagrancy  Vagueness – not well defined, unclear if it applies to facts
provisions too broad for purpose?  Underinclusiveness – opposite of vagueness – too narrow
 Rule: A provision will be deemed unconstitutionally broad if it  Overbreadth – means to achieve purpose of statute are too broad
restricts liberty to a degree that is excessive in comparison with the
objective of such restrictions
R. v. Pharmaceutical Society (Nova Scotia), [1992] 2 S.C.R. 606,
15 C.R. (4th) 1, 74 C.C.C. (3d) 289 (S.C.C.)
 F/I: Accused charged with conspiracy to prevent/lessen competition
unduly – was ‘unduly’ too vague
 Rule: An unintelligible provision gives insufficient guidance for
legal debate and is therefore unconstitutionally vague

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Cases Notes

 Clarity
 Strict Construction – if statute is ambiguous, choose option most
beneficial to accused
 Courts now purposive first, strict construction as last resort
 Validity – constitutional under Charter and division of powers
 Non-Retroactivity – conduct must be unlawful at time it took place

THE ACT ELEMENT (ACTUS REUS)

R v. Jobidon [1991] per Sopinka J. (dissenting)
R v. Jobidon [1991] (S.C.C.).
 F/I: Consensual fight, punched in head after unconscious – what
limits are there to consensual assault?
 Rule: Consent is vitiated (ie. rendered ineffective) between adults
when there is an intention to apply force causing serious hurt or non-
trivial bodily harm to each other in the course of a fistfight or brawl.
Bolduc and Bird v. R. [1967] (S.C.C.)
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Introduction #3
 Definition – elements of prohibited act – conduct, circumstances,
consequences - commission and omission
 Volition – must be voluntary act
 Causation – act must cause prohibited consequences
Definition of the Act – Consent as a Circumstance #3
 Is consent relevant circumstance of the actus reus?
 Expressly included (eg. Assault s.265) or implied (eg. B&E s.348)
 Expressly (eg. Sex Offences s.150.1) or impliedly (eg. Possession
of drug) excluded
 Distinction – consent part of actus reus vs. consent part of mens rea
 Actus – subjective – in mind of victim
 Mens – honest belief in consent by accused, subjective or
objective depending on fault required for offence
 Exceeding the scope of consent – is act beyond that to which victim
has consented?
 Judicial limitation of scope of consent – does act exceed that to which
judicial policy allows consent?
 Vitiation of “apparent” consent – duress, fear, fraud
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Cases Notes

 F/I: Dr examines patient with buddy – does fraud vitiate consent?  Eg. s.265(3) re assaults, s. 273.1(2) re sexual assaults
 Rule: Consent obtained under false pretences is still valid if the acts  Note: Bolduc may have been decided on too narrow a definition
committed remain within the scope of the consent granted. Consent is of “nature and quality of the act” – likely nature of “intern”
vitiated by fraud as to the nature and quality of the act. should have been considered
R v. Cuerrier (1998) (S.C.C.).
 F/I: Has HIV, has sex without warning partner – does nondisclosure
vitiate consent?
 Rule: A consent that is not based upon knowledge of the significant
relevant factors is not a valid consent
Definition of the Act – Acts of Omission #4
 Introduction
 Legal inaction – failing to do something one has a legal duty to do -
equally criminal as doing a ‘bad’ act
Fagan v. Commissioner of Metropolitan Police [1968] (Eng C.A.)  Commission – exclusion of omissions?
 F/I: Parks on cop’s foot, won’t get off – omission or continuing act?  Continuing act – gets around wording that suggests commission only
 Rule: A continuing act is criminal if the act constitutes the actus reus
of a criminal offence and mens rea is coincident with the actus reus at
any time during its continued existence.
R. v. Miller [1983] (H.L.)
 F/I: Asleep, causes fire, ignores fire - does a willful or reckless
omission to abate a fire caused by one’s actions constitute arson?
 Rule: The willful or reckless omission to fulfill a duty in relation to
an act that constitutes the actus reus is an offence the same as if one
had willfully or recklessly committed the act
R. v. Thornton [1993] (S.C.C.)  Omissions – Express or Implied
 F/I: Knowingly donates HIV positive blood – is there a duty/from  Duty & Omission - eg. s.215 provide necessaries of life
where/s.9 – no common law duty as basis of omission  Commission or Omission – eg. s.219 criminal negligence
 Rules:  Unclear – not expressly stated but open to argument
 Willful or reckless omission to perform a legal duty is an offence if the  Note duty from s.216
omission reasonably endangers the life of another person
 UNCLEAR DECISION on duty arising from statute or common law

R. v. Moore [1979] (S.C.C.)

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Cases Notes

 F/I: Bicyclist fails to stop for police, charged with obstruction –

where is legal duty to stop – existing or judicially created?
 Rule: “Implied” or “reciprocal” duty (bad law??)
R. v. Browne (1997), 116 C.C.C. (3d) 183 (Ont.C.A.)  Duty to rescue – no common law duty to rescue a stranger
 F/I: Drug dealers swallow, fail to vomit-up, says will take to hospital
but doesn’t – did the undertaking give rise to a duty?
 Rule: No legal duty is imposed upon a person who undertakes to do
an act that, if omitted is or may be dangerous to life, unless the person
enters into a binding undertaking, generally from which reliance can
reasonably be said to have been placed
People v. Beardsley (1907), 113 N.W. 1128 (Mich.S.C.)
 F/I: Guy, girl drink, girl takes morphine & dies, no rescue – duty?
 Rule: A criminal omission upon which a conviction for manslaughter
is based must arise from a legal (vice moral) duty imposed by contract
or common law (No common law duty to rescue a stranger)
Kilbride v. Lake, [1962] N.Z.L.R. 590 (N.Z.S.C.) Definition of the Act – Volition #5
 F/I: Safety warrant blows off parked car – omission by driver?  Act must be voluntary – must be conscious act of the accused
 Rule: A person cannot be held criminally responsible for any act or  Not liable for forces beyond control of the actor:
omission unless it was done or omitted in circumstances where there  Not liable for omission if impossible to perform duty
was another course open to him – otherwise it is involuntary  Involuntary reflex actions vs voluntary, spontaneous reactions
Wolfe (1975) (Ont. C.A.)
 Bar owner punched by patron, hits patron with phone, ruled
involuntary (bad example – judge too lenient? mens rea vice actus?)
R. v. Ryan (1967), 40 A.L.J.R. 488 (Aust. H.Ct.)
 F/I: Misguided man robs gas station to invest money for Mom, startled
by attendant & shoots by reflex, man dies – voluntary act?
 Rule: If accused puts himself in a situation where he poses a danger,
and he knows this, then a reflex action that causes harm is a voluntary
act if it is a probable and foreseeable consequence of the situation
Rabey v. R. (1980) (S.C.C.), R. v. Parks (1992) (S.C.C.) and R. v. Stone  Automatism – two options: disease of mind or involuntary act
(1999) (S.C.C.) – to be addressed next term
R. v. Daviault (1994) (S.C.C.) – see Intoxication below
Definition of the Act – Causation #6
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Cases Notes

 Did conduct cause prohibited consequence? If not, no actus reus.

Smithers v. R. [1978] (S.C.C.)  Basic Principles and Application
 F/I: Fight after hockey, kick to stomach, death by vomiting - did  Factual cause – ‘but for’ or ‘material contribution’ test
accused’s kick cause the death of the deceased?  Acceleration of imminent death is factual cause – s.226
 Rule: To prove culpable homicide, the Crown must prove beyond a  Legal or Imputed cause – was chain of causation broken? Options:
reasonable doubt only that the act contributed to death, outside the de  None – ‘but for’ is sufficient
minimis range  Minimally Significant – beyond de minimis
R. v. Cribbin (1994) (Ont. C.A.)  Substantial – clearly weighty relative to other factors
 F/I: Accused punched/kicked, partner attacked, victim dies – what  Foreseeability – conduct gives rise to foreseeable consequence
proof of causation is required to prove manslaughter?
 Rule: “If a person commits an unlawful dangerous act, in  Do NOT confuse Harbottle test for sentencing in murder with test for
circumstances where a reasonable person would have foreseen a risk causation – Smithers test applies to causation
of bodily harm which is neither trivial nor transitory, & the unlawful
act is at least a contributing cause of the victim’s death, outside the de
minimis range, then the person is guilty of manslaughter.”
 Comments: Smithers standard constitutional under Charter; S.C.C.
cited with approval in R. v. Nette
R. v. Nette [2001] (S.C.C.)
 F/I: Woman tied-up during robbery, later asphyxiates – what is
standard for imputed cause?
 Rule: Smithers standard applies to all homicides; Harbottle standard
pertains to moral blameworthiness or responsibility, not causation
 Comment: Disagreement over terminology to apply to Smithers test
Smithers v. R. [1978] (S.C.C.)  Common Causation Problems
 Rule: “Thin skull” rule applies – take victim as is  Application of “thin skull” rule
R. v. Blaue [1975] (Eng. C.A.)  Special statutory provisions for homicide – s.222(5) (vs. s.228)
 F/I: Victim stabbed in sexual assault, refused transfusion on religious  s.224 – Failing to resort to proper treatment
grounds, died – did refusal break chain of causation?  s.225 – Death from treatment
 Rule: “Thin Skull” rule applies to the whole person, not just the  Note: s.224 + 225 together overcome Jordan – inflexible in
physical person – take victim as is both mentally and physically Canada compared to U.K.

R. v. Smith [1959] (Eng. Cts.-Mar. App. Ct.)

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Cases Notes

 F/I: Bayonet fight, incorrect treatment, victim dies – break of chain

of causation?
 Rule: Original wound still operative cause of death – medical
treatment did not displace wound as cause of death but only reduced
likelihood of deceased’s survival
The Queen v. Bingapore (1974-5) (S.Aus.S.C.)
 F/I: Injury in fight, treated, leaves hospital too soon, returns & dies –
break of chain of causation?
 Rule: Fight injury still operative cause of death – deceased’s conduct
only caused a loss of possible opportunity to avoid death
R. v. Jordan (1956) (Eng. C.A.) [Not sure of Facts]
 F/I: Stabbing in café fight, wound almost healed in hospital, wrong
treatment, dies – break of chain of causation?
 Rule: The healing wound was the setting for the negligence and is
thus not the legal cause of death – no causation – original wound no
longer operative (opposite of R. v. Smith) – “very exceptional”
Beaver v. R. [1957] (S.C.C.). THE FAULT ELEMENT (MENS REA)
 F/I: Brother sold drugs to cops, accused is accomplice, honest belief
substance was not a drug – what is effect of honest mistake of belief? Introduction and Burden of Proof #7
 Rules:  Fault required as aim of criminal law is to punish, not compensate
 No possession in law of forbidden substance without knowledge  Crown has burden of proof
of the character of the forbidden substance  To establish subjective (actual) awareness, may make reasonable
 Mens rea is an essential element of any criminal offence, unless (objective) inferences from the evidence
Parliament in statute excludes it, either expressly or by necessary  Presumption for “real” crimes is subjective mens rea
implication
Degrees of Fault
 Subjective – state of mind of accused
 Intention/Knowledge – “on purpose”, knowledge of
circumstances, desire or know with reasonable certainty that
consequences will result from act
 Recklessness – advertence to risk that consequences or
circumstances probably/possibly will result, but acting anyway
 Wilful Blindness – performing act while deliberately shutting
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Cases
R. v. Creighton, [1993] (S.C.C.) – constructive manslaughter
R. v. City of Sault Ste. Marie [1978] (S.C.C.) – strict liability
R. v. City of Sault Ste. Marie [1978] (S.C.C.)
 F/I: City hires dump operator, river polluted - does the offence
charged require mens rea or is it an absolute liability offence?
 Rule: Public welfare offences should, prima facie, be considered
offences of strict liability, unless specifically addressed otherwise by
the enacting legislature
Reference Re s.94(2) of the Motor Vehicle Act (B.C.) (1986), (S.C.C.)
 F/I: Absolute liability offence with potential imprisonment - is
absolute liability with mandatory imprisonment unconstitutional?
 Rules:
 An absolute liability offence violates s.7 of the Charter if and to
the extent that it has the potential of depriving a person of life,
liberty or security of the person
 Administrative expediency only justifies under s.1 of the Charter
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
eyes to need for further inquiry because you don’t want to know
of the consequence or circumstances – “deemed knowledge”
 Modified (Individualized) Objective – reasonable person standard
applied to individual accused – did this accused act unreasonably –
also did accused have capacity to meet reasonable standard?
 Objective – advertence in circumstances where reasonable person
would have been aware – NOT state of mind of accused
 Marked Departure – beyond ordinary reasonable standard
 Ordinary – reasonable person standard
 Strict Liability – reasonable person standard with reverse burden
of proof
 Absolute – no fault element – guilty by fulfilling actus reus alone
Applying Degrees of Fault
 Explicit in offence – “intending to”, “wilfully”, “knowing that” – eg.
Theft s.322.(1), Robbery s.343, Possess Stolen Property s.354.(1)
 Fault requirements may differ for different elements of the actus reus
 Precedent and Common Law Presumptions
 Charter requirements
Fault for Public Welfare Offences #7
Strict Liability
 Regulatory offences – objective negligence standard with reverse
burden of proof
Charter Minimum for Regulatory Offences
 Absolute liability unconstitutional with penal sanctions
 Strict liability and reverse onus upheld under Charter
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Cases Notes

an offence that combines absolute liability and imprisonment in

exceptional circumstances, eg. natural disasters, war
R. v. Wholesale Travel Group Inc. [1991] (S.C.C.)
 Facts: False advertising under Competition Act
 Issues:
 Is the distinction between regulatory and criminal offences
constitutionally valid?
 Is the reverse burden of proof for regulatory (strict liability)
offences, which violates Charter s.7, justifiable under s.1?
 Rules:
 Criminal and regulatory offences are justifiably different, are
essential to the proper functioning of society, and justify different
standards of fault
 Reverse burden of proof for regulatory offences is constitutional
under the Charter
Intention and Knowledge #8
 Intent/Knowledge higher form that Recklessness or Wilful Blindness
 Courts now presume full subjective mens rea unless offence
specifically excludes Recklessness and/or Wilful Blindness
Intending vs. Risking
 Intention/Knowledge = definite choice
 Recklessness = may not know or desire consequence, do know of risk
of consequence, act despite known risk
 Wilful Blindness = intentional choice not to inquire further
Lewis v. R. [1979] (S.C.C.). Motive vs. Mens Rea
 Facts: Mailed bomb, argues he didn’t know it was a bomb  Motive is distinct from mens rea
 Rule: No requirement to charge jury on motive if motive is not  Motive may be relevant evidence for making inferences regarding
material (to proof of identity) actus reus (issues of identity) or mens rea (eg. intention), sentencing
 Comment: Mens rea – Did you intend (know/were reckless
to/wilfully blind to) the consequences of your act? Motive – Why did
you do the act? Why did you intend the consequences of your act?
R. v. Mathe (1973) (B.C. C.A.).

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Cases Notes

 Facts: Drunk, initiates bank robbery as a joke

 Rules:
 Evidence that yields both an inference of guilt and one of
innocence is insufficient to prove guilt beyond a reasonable doubt
 If ulterior intent is an element of the offence, it must be proven
beyond a reasonable doubt by the Crown
 Comment: “Ulterior Intent” – to do X, for prohibited purpose Y, to
achieve M (motive) – Y is ulterior intent
R. v. Steane [1947] (C.C.A.). Duress/Lack of Desire vs. Intention
 Facts: Accused of acting with intent to assist enemy.  Duress (next term) like motive – reason for your intentional act –
 Rule: Where a specific intent is an element of the offence, the Crown defence despite mens rea being present
must prove that intent  May be relevant to mens rea – fuzzy line
 Comment: Knowledge of consequences with substantial certainty
and intent are indivisible
R. v. Hibbert, [1995] (S.C.C.).
 See Notes – Motive, Intent & Knowledge, pp.478-508
 Two meanings for “purpose:” A) “on purpose” (i.e deliberate, with
intent) B) goal/objective/desire to be attained
 For purposes of acts or omissions made with the purpose of aiding a
party to an offence, “purpose” is defined as “intent,” not “desire”
R. v. Buzzanga and Durocher (1979) (Ont. C.A.). Acting with Knowledge of Consequences
 Facts: Anti-Franco poster to motivate building of French school  Intention – two forms:
 Rule: One intends a particular consequence either when one’s  Direct – desire to bring about consequence
conscious purpose is to bring it about, or when one foresees that the  Indirect – choose to act, regardless of desire, but knowing
consequence is certain or substantially certain to result from one’s consequence is virtually certain to result – advertence to result
conduct and chooses so to conduct oneself, regardless of this  Different from recklessness:
certainty  Indirect intent – substantial certainty of consequence
 Recklessness – consequence is highly probable
 (ie. Intent - advert to result vs. Recklessness - advert to risk)

R. v. Docherty (1989) (S.C.C.). Mistaken Belief

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Cases
 Facts: Drunk, in car, honest belief car was inoperative
 Rule: Where knowledge is itself a component of the requisite mens
rea, the absence of knowledge provides a good defence
R. v. Theroux [1993] (S.C.C.).
 Facts: Contractor puts uninsured deposits at risk
 Rule: Mens rea for fraud is subjective awareness that act could
deprive another or put their property at risk – personal feeling as to
morality or honesty of the consequences is irrelevant
R. v. Blondin (1971) (B.C. C.A.).
R. v. Blondin (1971) (B.C. C.A.).
 Facts: Transport hash in scuba tank
 Rule: Wilful blindness can substitute for intention or knowledge as
the mens rea for unlawful importation of drugs.
R. v. Currie (1975) (Ont. C.A.).
 Facts: Cashed stolen cheque for stranger, fraudulent endorsement
 Rule: Constructive knowledge does not apply to wilful blindness –
that a person “ought to have known” is not enough – must actually
choose not to learn in order to remain ignorant
R. v. Duong (1998) (next page)
R. v. Duong (1998) (Ont. C.A.).
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
 Knowledge of circumstance may be absent due to mistaken belief
 Mistake of law not normally a defence, but is when actus reus of
offence is itself the breaking of a law, thus knowledge is relevant
Recklessness and Wilful Blindness #9
Recklessness
 Acting with knowledge of an unjustified degree of risk as to elements
of the actus reus of the crime – advertence to unjustified risk
 Eg. s.229(a)(ii) murder – cause harm with risk of death & reckless as
to death resulting, s.354 advert to risk property is stolen, s.433-434
arson, s.733(a) aggravated arson
Degree of Risk
 Subjective – what risk was accused aware of, not what risk should he
have been aware of (objective)
 However, test for whether degree of risk was unjustified is objective
 Distinction between mistake as to degree of risk vs. mistake as to
materiality of actus requirements – eg. per Blondin – advertence to
risk of importing narcotics, or only to risk of illegal importation of
other substances?
Wilful Blindness as Recklessness [see NOTE]
 Still have subjective fault if you suspect risk and shut eyes to it –
suppress a suspicion of risk
 Honest mistake of fact can defeat recklessness but not wilful
blindness – turn away mind, refuse to decide suspicion
 Can apply to both mens rea and actus reus
 Must be subjective – deliberate closing of mind after suspicion – not
mere failure to think at all or to think properly
 NOTE: Prof Esau suggests Wilful Blindness is a form of recklessness,
but the law says it is deemed knowledge.
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Cases Notes

 Facts: Sheltered murder suspect, knew in trouble but not murder

 Rules:
 Where the Crown proves existence of a fact in issue and
knowledge of that fact is a component of the fault requirement (ie.
mens rea) of the crime charged, wilful blindness as to the
existence of that fact is sufficient to establish a culpable state of
mind
 Liability turns on the decision not to inquire once real suspicions
arise and not on the hypothetical result of inquiries which were
never made
Sansregret v. R., [1985] (S.C.C.).
 Facts: Forcibly detains & rapes ex-girlfriend, thinks she consents
 Rule: Wilful blindness arises when a person is aware (substantially
certain) of a need to inquire but declines to inquire in order not to
learn the truth
R. v. Sandhu (1989) (Ont. C.A.). Wilful Blindness as Knowledge
 Facts: Heroin in jacket lining, suspicious but didn’t know narcotic  One of most problematic aspects of subjective mens rea is to
 Rule: Wilful blindness is not an extension of recklessness – wilful determine whether intention or knowledge is exclusively required,
blindness can equate to actual knowledge, while recklessness cannot thus recklessness or reckless knowledge is insufficient
R. v. Duong (1998) (Ont. C.A.).  Wilful blindness = deemed actual knowledge (whereas recklessness
not enough)
Negligence #10
Negligence as Mens Rea
 Negligence can be fault element in relation to a circumstance or
consequence in the actus reus – objective standard of reasonableness
 Crown must prove beyond reasonable doubt that accused failed to
meet objective standard – not strict liability with reverse onus
 Eg. s.290(2)(a) …based on reasonable grounds…
Negligence as Actus Reus
 Actus reus is negligence – failure to meet objective standard
 Eg. s.86(1) careless use of firearm, s. 79-80 reasonable care in handling explosives,
s.249 dangerous operation of motor vehicle, s.436 arson by negligence
Negligence as both Actus and Mens
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Cases
R. v. Anderson (1990) (S.C.C.).
 Facts: Drunk, twice legal limit, no effects, runs red light, kills person
 Rule: Whether subjective or objective, Crown must prove marked
departure from norm based on conduct of accused – results of
conduct are not relevant to this determination
R. v. Tutton and Tutton, [1989] (S.C.C.).
 Facts: Diabetic son, believe God cured him, cease medication, dies
 Rule: N/A (3:3 split on objective vs. subjective standard)
R. v. Waite, [1989] (S.C.C.).
 Facts: Drunk, plays “chicken” with hayride, hits 5, kills 4
 Rule: Mens rea in criminal negligence is the minimal intent of
awareness of the prohibited risk or wilful blindness to the risk - less
than “a deliberate and wilful assumption of the risk”
 Comment: Indecisive – no change from Tutton
R. v. Creighton, [1993] (S.C.C.).
 Facts: Accused injects victim with cocaine, victim dies
 Rule: Reasonableness to be found in circumstances, not individual
peculiarities – no exceptions other than incapacity to appreciate risk
Smithers v. R. [1978] (S.C.C.)
R v. Jobidon [1991] (S.C.C.)
R. v. Wholesale Travel Group Inc. [1991] (S.C.C.)
R. v. Hess and Nguyen (1990) – statutory rape struck down
R. v. Vaillancourt (1987) & R. v. Martineau (1990) – s.230 felony
murder and s.229(c) unlawful object murder struck down
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
 If actus is negligence, mens may be same – inferred from actus
 Not necessarily so – can have negligent actus and subjective mens
Example – Criminal Negligence (s.219-222) #10
Actus Reus of Criminal Negligence
 Actus reus is negligence – any act or omission done ‘badly’ enough
 Offence arises from the consequences
 Given sweeping potential, courts have set marked departure standard
 Where do you draw the line – eg. Anderson
Subjective or Objective Mens Rea?
 First step – prove actus reus on objective marked departure standard
 Next – subjective mens rea or objective mens rea? S.C.C. uncertain!
 Note: For recent comment, see annotation to R. v. Menezes by Don
Stuart in (2002) 50 C.R. (5th) 345
If Objective Fault, Should Standard be Individualized?
 Creighton – only limit is capacity – no individualization
Constitutionality of Negligence Standard #10
 Presumption is subjective mens rea per Beaver, Sault Ste Marie
 Parliament may legislate objective fault standard
 Constitutionality is on a case-by-case basis
 No absolute liability with penal sanction per BC Motor Vehicle Ref
 Predicate Offence/Constructive Liability – require degree of fault (eg.
subjective) for underlying offence (eg. assault) but can punish harder
with lessor or even no fault requirement to consequences (eg. death)
 If absolute liability is unconstitutional, does this apply to predicate
offences/constructive liability? – Frequently “no”
 Objective fault is constitutional for regulatory offences – is it for real
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Cases Notes

crimes? – Frequently “yes”

 Murder clearly requires subjective foresight of death
 When actus is negligence (eg. Criminal Negligence Causing Death),
standard for actus is marked departure, subsequently standard for
“causing death” is ordinary objective standard
R. v. DeSousa (1992) Constitutionality of Objective Fault (for Negligence) #11
 Offence: s.269 Unlawfully Causing Bodily Harm  Manslaughter:
 Rule: Mens rea requires objective foreseeability of bodily harm, not  No need to foresee death – “thin skull” rule lives in criminal law
absolute liability – act must be “dangerous”  No requirement for symmetry between mens rea and each element
R. v. Hundal (1993) of the actus reus
 Offences: s.249 Dangerous Driving, Dangerous Driving Causing  Unlawful act cannot be absolute liability, must be marked
Bodily Harm, Dangerous Driving Causing Death departure standard if based on negligence
 Rule: Mens rea requires marked departure from reasonable standard  Act must be dangerous – objective risk of causing bodily harm (but
and objective foreseeability of bodily harm or death not necessarily death)
R. v. Creighton, [1993] (S.C.C.).
 Facts: Accused injects victim with cocaine (Trafficking), victim dies
(Unlawful Act Manslaughter)
 Rule: Mens rea requirement for manslaughter is objective
foreseeability of risk of bodily harm that is neither trivial nor
transitory
Notes – Subjective and Objective Mens Rea Text pp.545-586
R. v. Gossett (1993) (S.C.C.) – as per Creighton
R. v. Naglik (1993) (S.C.C.)
 Offence: s.215 Failure to Provide Necessaries of Life
 Rule: Mens rea is objective standard
R. v. Finlay (1993) (S.C.C.)
 Offence: s.86(2) Careless Storage of Firearm
 Rule: Mens rea is objective standard – marked departure
R. v. Godin (1994) (S.C.C.)
 Offence: s.268(1) Assault Causing Bodily Harm
 Rule: Mens rea is objective foresight of bodily harm

R. v. Darrach (1998) (Ont. C.A.)

For: Criminal Law, Professor Esau p.13 of 26
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Cases
 Offence: s.273.2(b) Aggravated Sexual Assault
 Rule: Accused cannot argue honest belief in consent if the accused
did not take reasonable steps in the circumstances known to the
accused at the time to ascertain that the complainant was consenting
R. v. Ewanchuk, [1999] (S.C.C.).
 Facts: Job interview, man touches woman sexually, woman says
‘no’, says she is afraid, man continues then stops
 Rule: Not open to accused to believe the complainant's statement of
lack of consent, but imply consent through the complainant's conduct
anyway ("implied consent") – 'no' means 'no'
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
Mens Rea in Sexual Assault #12
Actus Reus
 Crown must prove no consent – s.273.1
 Consent is subjective in mind of complainant – did she voluntarily
and willingly agree
 Consent is affirmative – not lack (ie. silence, passivity) of non-
consent – ie. consent = ‘yes’, anything else is ‘no’ or ‘ask further’
 Actual consent or no consent – no such thing as implied consent
(based on complainant’s conduct while ignoring express ‘no’)
 However, consent may be express or implied from conduct (but only
in absence of a verbal ‘no’)
 Consent is voluntary – not based on fear, abuse of authority, etc
Mens Rea
 Crown must prove accused knew of or was reckless or wilfully blind
to the reality of non-consent
 Defence of honest mistaken belief changed to honest belief that
consent was communicated
 3-point Test:
 Air of Reality – some evidence of ambiguity, reasonable grounds
are relevant per s.265(4) (but not determinative/necessary)
 Reasonable Steps to Ascertain Consent – s.273.2(b) – honest
belief irrelevant unless accused has taken reasonable steps (ie.
objective standard) to ascertain if complainant is consenting
 Legally Irrelevant Mistakes – s.273.1(2) establishes
circumstances for which honest mistakes of fact are irrelevant –
eg. capacity to consent, one cannot consent for someone else
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Cases Notes

R. v. King [1962] (S.C.C.) Intoxication #13

 Facts: Man drugged at dentist, drives car, has accident
 Rule: Involuntary intoxication, without knowledge of the effects of
the intoxicant, is a defence
 Note: Defence should have been applied to actus reus (volition issue)  Distinguish voluntary and involuntary intoxication (R. v. King)
and not to mens rea (capacity issue)
R. v. Beard (1920) (H.L.)
 Facts: Drunk workman rapes, accidentally strangles 13 yr old girl, no  Intoxication originally an aggravating feature
intent to kill
 Rule: Intoxication is only a defence to a crime of specific intent
R. v. George (1960) (S.C.C.) [applies Beard]
R. v. Leary (1977) (S.C.C.) [applies Beard]
R. v. Bernard, [1988] (S.C.C.).
 Facts: Party, forced sex, assaulted & threatened to kill victim, but  General vs Specific intent upheld in Bernard
could play records, walk straight
 Rule: Leary rule sustained – evidence of intoxication to be withheld
for offences of general intent as it cannot raise reasonable doubt.
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Introduction
 Must distinguish intoxication sufficient to remove cognition from
intoxication that removes inhibitions
 Can affect actus reus (volition) or mens rea (capacity)
 Policy issue – substitution of fault - voluntary intoxication substitutes
for mental element of crime, allows blameworthiness – is this fair (ie.
is fault for intoxication proportionate to fault for offence?)
 Normal effect is to reduce specific intent offence to lesser included
general intent offence (eg. murder to manslaughter, robbery to aslt)
Traditional Position
 Drunkenness becomes defence for murder – mercy for death penalty
 Beard actually said “if so drunk that mens rea for rape was in
question (ie. no capacity to form mens rea), then may have a defence”
 Misinterpreted - intoxication is only defence for specific intent crimes
 Beard Rules:
 Intoxication may cause insansity (very rare)
 Intoxication may be a defence to specific intent crimes
 Makes no sense – s.273.2(a)(i) – mistake of fact by intoxication not a
defence but other stupid, sober excuse might be
Post-Charter Modifications
 Dickson – Substitution of fault violates Charter
 McIntyre – Traditional approach is fine
 Wilson – Accused has general intent unless capacity affected
 Extreme intoxication now defence to general intent crime (mens or
actus), but reverse onus on balance of probabilities
 Makes little sense for objective fault/strict or absolute liability
offences – no mens (capacity) argument, why not substitute voluntary
intoxication for voluntariness of actus?
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Cases Notes

 Defence limited by s.33.1 – not applicable re bodily integrity

R. v. Daviault, [1994] (S.C.C.).  For specific intent – issue is whether mens rea was present, not
 Facts: Alcoholic sexually assaults woman in wheelchair, blood whether accused had capacity to form required mens rea
alcohol 0.4 to 0.6 (normally fatal), remembers nothing
 Rule: Leary rule is flexible – allows evidence of intoxication to go to
trier-of-fact in general intent offences only if it shows extreme
intoxication involving an absence of awareness akin to insanity or
automatism – may raise reasonable doubt in those circumstances.
Otherwise, evidence of intoxication to be withheld as it cannot raise
reasonable doubt.
R. v. Robinson, [1996] (S.C.C.).
 Facts: Victim mouths-off, hit with rock, stabbed, accused drunk
 Rule: Issue to be decided for intoxication is not only the accused’s
capacity to form specific intent but (either alone or along with
capacity) determination of whether the accused actually formed the
required specific intent in light of the intoxication
Reform?
 Always substitute and leave issue for sentencing?
 Not relevant to negligent fault, always relevant to subjective fault, add
crime of dangerous intoxication?
Criminal Code Provisions of Note
 s.9 – no common law offences
 s.14 – no consent to death
 s.33 – limitations on self-induced intoxication as a defence
 s.216 – duty of persons undertaking acts dangerous to life
 s.217 – duty of persons undertaking acts

For: Criminal Law, Professor Esau p.16 of 26

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Cases Notes

Second Term
Cooper v. R. (1979) (S.C.C.). Incapacity #16
 Facts: Borderline insane man strangles girl after refusal for sex Immaturity
 Rule: Test is whether the accused, at the time of the offence, by  Under age 12 – exempt criminal liability, 12-17 – YOA (soon YCJA)
reason of disease of the mind, was unable fully to appreciate not only Mental Disorder (Insanity)
the nature of the act but the natural consequences that would flow  Sick, no choice of action – should not be punished
from it … was the accused deprived of the mental capacity to foresee  Volitional impairment – know it’s wrong, disorder drives you to
and measure the consequences of the act? commit offence – NOT a defence in Canada
Kjedlson v. R., [1981] (S.C.C.)  Normative impairment – know what you are doing, but lost ability to
 Rule: Defence of insanity does not extend to one who has the tell right from wrong – “normative character of act” – defence
necessary understanding of the nature, character and consequences of  Cognitive impairment – problem perceiving physical reality –
the act at the time of commission, but lacks appropriate feelings for defence
the victim or lacks feelings of remorse or guilt for the act, even  s.16 is key:
though such lack of feeling stems from “disease of the mind”  Must have mental disorder – disease of mind (per s.2 CC)
R. v. Abbey, [1982] (S.C.C.).  Disorder so severe as to incapacitate person:
 Rule: If accused appreciates his act is wrong, it is of no relevance  Appreciation of nature and quality of act
that he does not appreciate that penal consequences attach to it  Knowledge of right vs. wrong
 Note: “While punishment may be a result of the commission of a  Crown cannot raise unless:
criminal act it is not an element of the crime itself”
 Prove guilt first
R. v. Chaulk, [1990] (S.C.C.).
 Defence puts mental state in issue
 Rule: If disease of the mind causes a person to believe that an act
 Standard is balance of probabilities
that is illegal is nevertheless morally right, then the person qualifies
for a defence of insanity  Onus on party asserting mental disorder
R. v. Oommen, [1994] (S.C.C.). Disease of Mind
 Rule: Issue is not whether accused has a general capacity to tell right  Legal concept, not medical
from wrong but whether the accused has the ability to know that a  “Wide and liberal” definition based on policy concerns
particular act was wrong in the circumstances Nature and Quality of Act
R. v. Swain, [1991] (S.C.C.).  Cognitive ability to appreciate elements of actus reus, including
 Rules: conduct, circumstances, consequences
 Crown may only independently raise the issue of insanity after the  Not a lack of care – psychopath
trier of fact had concluded the accused was otherwise guilty  Not delusion over lack of punishment
 Evidence of mental disorder short of a full-blown insanity Knowledge of Right vs. Wrong
For: Criminal Law, Professor Esau p.17 of 26
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Cases Notes

defence may be admitted on the issue of mens rea  Not limited to ability to know whether legally wrong but rather is act
morally wrong according to dominant moral code of society
Evidence of Mental Disorder and Mens Rea
 Evidence inadequate to establish incapacity can still cast doubt on
subjective mens rea
R. v. Stone, [1999] (S.C.C.). Automatism #17
 Facts: Wife abuses husband visiting sons, husband stabs 47 times Introduction
 Rules:  Automatism means involuntary act – no actus reus
 Party asserting involuntariness must prove on balance of  Automatism:
probabilities  “Unconscious involuntary behaviour, the state of a person who,
 Automatism presumed to arise from disease of the mind unless though capable of action, is not conscious of what he is doing. It
evidence indicates otherwise means an unconscious, involuntary act, where the mind does not
 Holistic approach (full policy considerations) to apply to disease go with what is being done”
of the mind inquiry  “A state of impaired consciousness, rather than unconsciousness,
Rabey v. R., [1980] (S.C.C.). in which an individual, though capable of action, has not
 Facts: Guy reads note from girl, hits her with rock in hallway voluntary control over that action”
 Rule: Automatism arises from an internal disease of the mind, not an  Compare automatism vs. post-event amnesia
external “psychological blow” Was Accused in State of Automatism?
R. v. Parks. [1992] (S.C.C.).  Dissociative state or somnambulism vs. uncontrolled rage
 Facts: Stressed-out sleepwalker drives to in-laws, assaults/kills  Uncontrollable vs. uncontrolled bodily movements
 Rule: Somnambulistic automatism can be either insane or non-insane  Evidential burden on accused – air of reality
automatism, depending on evidence of case and policy considerations  Evidence sufficient that jury could find (on balance) lack of
(“continuing danger” and “internal cause”) voluntary control
 Expert evidence required
 Veracity of accused vs. other factors – severity of stimulus,
witnesses, medical history, motive, was trigger also victim?
Mental Disorder or Non-mental Disorder Automatism?
 Potential state control vs. full acquittal
 Somnambulism is non-insane automatism
 Per Stone, presumption of insane automatism
 Holistic test:
 Internal Cause Factor – “psychological blow” cases – sufficient to
For: Criminal Law, Professor Esau p.18 of 26
By: Jay G. Simpson, L01 13 Aug 02
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Cases
R. v. Morgentaler, Smoling and Scott, [1985] (Ont. C.A.).
 Facts: Perform abortion, contrary to Criminal Code
 Rule: As minimum, necessity relies on the accused, in good faith,
considering the situation so emergent that failure to terminate the
pregnancy immediately could endanger life or health and upon any
reasonable view of the facts compliance with the law was impossible
R. v. Dudley and Stephens (1884), 14 Q.B.D. 273 (C.C.R.).
 Facts: Shipwrecked sailors in rowboat kill and eat cabin boy
 Rule: Saving one’s own life is not justification for murder (ie. not
provocation and self-defence)
Perka v. R., [1984] (S.C.C.).
 Facts: Drug smugglers ship founders, drugs brought ashore
 Rule: Necessity justifies “non-compliance in urgent situations of
clear and imminent peril when compliance with the law is
demonstrably impossible” – “normative involuntariness”
 Imminent peril or danger
 Accused must have no reasonable legal alternative to course of
action taken
 Harm inflicted must be proportional to harm avoided
R. v. Latimer (2001), 39 C.R. (5th) 1, 150 C.C.C. (3d) 129 (S.C.C.).
 Facts: Mercy killing of disabled daughter by father
 Rules:
 Test for imminent peril and existence of available legal
alternatives is modified objective test
 Test for proportionality of harm inflicted to harm avoided is
objective test
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
cause dissociative state in ordinary person?
 Continuing Danger Factor – policy issue – treat recurring danger
as disease of the mind
 Other Policy Factors
 Reverse burden of proof to prove non-insane automatism
Defences: Justifications and Excuses #18
 Common law defences still available, can be developed – ss.8,9 CC
Necessity
 Committing a crime in an emergency situation to save yourself or
someone else
 Based on normative involuntariness
 Imminent – urgent peril – on verge of occurring, virtually certain
 No reasonable legal alternative
 Proportionality – harm done cannot be greater than harm avoided
 Modified objective test for peril and alternative
 Objective test for proportionality
 Must be air of reality to each part for defence to go to jury
 Party claiming necessity must show prima facie case (evidential
burden); Crown must prove defence does not apply
 Illegal conduct or negligence – if accused knew or ought to have
known peril would arise but chose to continue, then perhaps they
should not be able to use the normative involuntariness argument
 Necessity is full defence, even to absolute or strict liability
 Necessity is an excuse
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Cases
R. v. Carker (No.2), [1967] (S.C.C.).
 Facts: Inmate breaks sink during prison riot, claims duress
 Rule: Duress may be claimed when there is an immediate threat of
death or grievous bodily harm to the actor and the person making the
threat is present at the time of the offence
 Note: R. v. Ruzic ruled part of s.17 unconstitutional under s.7 of
Charter – no longer requirements for immediacy or for person
making threat to be present
R. v. Paquette, [1977] (S.C.C.).
 Facts: Person killed in robbery, wheel man charged as party
 Rule: s.17 does not apply to parties to an offence – it only applies to
persons who actually commit the specified offence (principals)
R. v. Hibbert, [1995] (S.C.C.).
 Facts: Accused meets friend in lobby so another can shoot him
 Rules:
 Duress does not ordinarily negate mens rea – it operates as an
excuse
 Duress may apply if accused has no safe avenue of escape – no
reasonable legal alternative
 Modified objective standard used to determine whether safe
avenue of escape was available
R. v. Ruzic, [2001] (S.C.C.).
 Facts: Imports drugs due to threat to mother in Former Yugoslavia
 Rules:
 Duress is a valid excuse for a morally involuntary criminal act
 Immediacy and presence requirements of s.17 of Criminal Code
are unconstitutional
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
Duress #19
 Committing a crime under compulsion by threats of severe harm
 Duress considered after establishment of physically voluntary actus
reus and mens rea
 Duress is an excuse – principles of fundamental justice (s.7 Charter)
extend to not punishing for acts that are morally involuntary
 s.17 Criminal Code
 Requirements:
 Subjective belief of threat of death or bodily harm
 (Immediacy and presence) (in CC but unconstitutional)
 No safe avenue of escape (modified objective test)
 Not applicable to excluded offences
 Confined to principals – parties rely on common law
 Common Law Duress
 Generally same as s.17 except:
 Applies to parties
 No excluded offences
 Objective (vice subjective) belief of threat of death or
substantial bodily harm (vice just bodily harm)
 For parties – vitiates doing act “for purpose of” aiding or abetting
[s.21(1)] or “intent in common” [s.21(2)]
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Cases
R. v. McIntosh (1995) (S.C.C.).
 Facts: Tries to get amp back, fight, guy with amp killed
 Rule: s.34(2) can be used for initial aggressors vice s.35
R. v. Cadwallader, [1966] 1 C.C.C. 380 (Sask. Q.B.).
 Facts: Father to kill son, son shoots father 5 times on stairs
 Rules:
 Test for justifying degree of force is whether the accused used
more force than he on reasonable grounds believed necessary
 Accused has evidentiary burden – Crown retains criminal burden
of proof
R. v. Pintar (1996) (Ont. C.A.).
 Facts: Disturbance on porch, previous threats, owner gets gun, kills
 Rule: A narrower provision regarding self-defence should not be put
to the jury if there is an air of reality in the evidence for a wider
provision
R. v. Deegan (1979), 49 C.C.C. (2d) 417 (Alta. C.A.).
 Rule: Self-defence does not require retreat prior to use of force, but a
failure to retreat is relevant evidence to consider the reasonableness
of the accused’s actions
R. v. Bogue (1976), 30 C.C.C. (2d) 403 (Ont. C.A.).
 Facts: Man assaults woman, intervention, threat, woman kills man
 Rule: Test for s.34(2) is whether accused caused death or grievous
bodily harm under a reasonable apprehension of death/GBH
(objective test) and whether accused believed on reasonable and
probable grounds that he could not otherwise prevent death or
grievous bodily harm to himself (modified objective/objective-
subjective test)
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
Self-Defence #20
 Complete defence
 Self-defence vs. ex post facto unlawful revenge and unlawful pre-
emptive strikes
 All tests based on sober accused – not while intoxicated
 Focus on moral blameworthiness or justification for the act
s.34(1)
 Defence against unprovoked attack
 Defender unlawfully assaulted (reasonable belief thereof –
modified objective test - Petel)
 Defender did not provoke attack
 Defender does not intend to cause death or grievous bodily harm
 Defender uses no more force than is necessary
 Test is reasonable proportional use of force – modified objective test
(Cadwallader)
 Could apply to manslaughter if no intent to cause death/GBH
s.34(2)
 Defence against unprovoked attack
 Defender unlawfully assaulted (reasonable belief thereof –
modified objective test - Petel)
 Defender caused death or grievous bodily harm
 (Whether or not there was intent – Pintar)
 Defender had reasonable apprehension of death or GBH
 Defender had reasonable belief there were no alternatives
 Test is reasonable apprehension + no reasonable alternative –
modified objective test
 Key provision – don’t use rest if 34(2) can apply
Problems
 Could pass 34(1) and fail 34(2) – eg. “thin skull”
 Could fail 34(1) and pass 34(2) – eg. disproportional force
 Gap – neither 34(1) nor 34(2) apply – eg. intend to kill but miss (37?)
 Can use more force yet have easier test – 34(2) vice 34(1)
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Cases
R. v. Lavallee, [1990] (S.C.C.).
 Facts: Battered wife syndrome, no imminent threat, shoots back head
 Rules:
 Self-defence for battered wives must take into account individual
circumstances and experience, as established by expert evidence,
in assessing reasonableness of actions
 Self-defence does not necessarily require an immediate threat
R. v. Petel, [1994] (S.C.C.).
 Facts: Druggies forcefully use home, homeowner shoots druggies
 Rule: Question is not “was the accused unlawfully assaulted” but
“did the accused reasonably believe, in the circumstances, that she
was being unlawfully assaulted?”
R. v. Malott, [1998] 1 S.C.R. 123, 121 C.C.C. (3d) 456 (S.C.C.).
 Facts: Abused spouse, kills husband, stabs girlfriend, claims BWS
 Rule: Jury charge must direct jury to consider accused’s perceptions
in light of her experience and knowledge of the deceased’s behaviour
 [Key Obiter] - Legal inquiry must focus on the reasonableness of
woman’s actions in the context of her personal experiences, and her
experiences as a woman, not on her status as a battered woman -
woman’s perspective must be infused into objective standard
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
s.35
 Self-defence after accused provoked initial attack or was aggressor
 Irrelevant – initial aggressor can use 34(2) per McIntosh
 Requires retreat if reasonably possible
Self-Defence – Battered Woman’s Syndrome #21
 No need to believe attack is imminent if, through “cycle of violence,”
the accused can predict seriousness and probability of attack – limited
scope for “pre-emptive strike”
 Imminence is evidence of reasonable apprehension
 Psychological “captive-helpless” state – feel unable to leave batterer
– psychologically incapable of escape – goes to reasonable belief of
no alternative
 Not a “gimme” – must focus on reasonableness of actions in context
of accused’s personal experiences, including as a woman, but not on
status as a battered woman
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Cases
R. v. Hill [1986] (S.C.C.).
 Facts: Accused 16, stabs homosexual, claims unwanted advance
 Rule: Test for first stage of provocation defence is objective, but
general characteristics relevant to the provocation in question are to
be ascribed naturally by the jury to the ordinary person
R. v. Thibert, [1996] (S.C.C.).
 Facts: Husband tries to get wife back, boyfriend taunts & gets killed
 Rules:
 Test for whether jury to be charged on provocation is whether
there is any evidence upon which a reasonable jury acting
judicially and properly instructed could find provocation
 Test is modified objective test with significant (but perhaps not
all) context and/or control factors
R. v. Cameron (1992), 12 C.R. (4th) 396, 71 C.C.C. (3d) 272 (Ont. C.A.).
 Facts: Accused convicted of second degree murder
 Rule: Provocation does not negate mens rea – it reduces to
manslaughter homicides committed with the mens rea necessary to
establish murder
R. v. Nealy (1986), 54 C.R. (3d) 158 (Ont. C.A.).
 Facts: Bar fight over sex with girlfriend, horny guy gets killed
 Rule: If provocation not conclusive, evidence of it may nevertheless
be relevant to the mens rea inquiry
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
Provocation #22
 Partial excuse – reduces murder to manslaughter – s.232
 Accused has evidential burden (air of reality) – Crown must disprove
 “Heat of passion” – lose control due to human frailty – less
blameworthy
 Debatable – no reduction for mercy killing, excess force in self-
defence
 “Objective” test – would reasonable sober person (with general
characteristics of accused – Hill) have lost control in same situation?
 Context vs. Control factors:
 Context – relevant attributes of accused to be considered during
“objective” test – eg. race for racial slur
 Reality is modified objective test
 Control – personal attributes should not apply – self-control
should be completely objective standard of reasonable person
 Age should be an exception – but age is context – Hill
 Thibert – unclear if factors are context or control
 Smith (2000) (H.L.) – personal attributes (depression) also
went to control – emerging modified objective standard
 Did accused actually kill in heat of passion – subjective test
 Provocation and reaction must be sudden, however can be “straw that
broke the camel’s back”
 Act that provokes does not have to be unlawful
 “Roll-up” – evidence insufficient to prove provocation can be rolled-
up with evidence of intoxication, self-defence to cast doubt on mens
rea for murder (specific intent to kill)
 R. v. Parent (2001) S.C.C. – anger alone, short of provocation, is
insufficient to cast doubt on mens rea for murder
 “Ordinary person” is sober – intoxication is not relevant – goes to
independent defence of intoxication
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Cases
Dunlop and Sylvester v. R., [1979] (S.C.C.).
 Facts: Gang rape by bike gang during initiation
 Rules:
 Aiding and abetting requires an act that encourages the principal
offender, facilitates the commission of the offence, or prevents or
hinders interference with its accomplishment
 Must take active steps by word or action, with intent to aid or abet
– unintentional encouragement is not aiding and abetting – must
know/understand offence and intentionally/wilfully assist or
encourage its commission
R. v. Kulbacki, [1966] 1 C.C.C. 167 (Man. C.A.).
 Facts: Girlfriend drives dangerously, car owner fails to stop her
 Rule: A person in authority who omits to act, and whose omission
encourages the commission of an offence, is guilty of aiding and
abetting the commission of that offence
R. v. Logan (1990) (S.C.C.)
 Rule: Party liability cannot be constructive for murder – must have
subjective foresight of the probability of death
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
Participation in Crimes #23
 Distinguish independent offence related to involvement (eg. s.23
Accessory after the fact) vs. party (s.21(1) Aiding and Abetting,
s.21(2) Common Intention, s.22 Counselling)
 Party is convicted of the target offence
 Separate actus reus and mens rea for party offence and target offence
 For party to be found guilty, perpetrator must have done the actus
reus of the target offence (even if not convicted)
 Defences (eg. necessity, duress) apply
Aiding and Abetting
 Can be by omission, but only if legal duty to act
 Must be more than mere presence or passive acquiescence
 If present at scene with prior knowledge, may establish prima
facie actus reus, may be left with jury to decide
 Mens rea:
 Knowledge of perpetrator’s intended offence
 Can include subjective recklessness, wilful blindness
 Specific intent to aid or abet the perpetrator
 Different from motive
 Specific intent offence – intoxication, honest mistake of fact defences
 Require subjective mens rea, even if target offence is absolute or
strict liability
Common Intention
 Actus reus is common intent to assist each other – agreement
 Can be constructive – A+B agree to do X, B does Z while doing X, A
is party to Z if A knew or ought to have known A would probably
commit Z in course of doing X
 Doesn’t apply to murder – constructive murder is unconstitutional
 Objective test unconstitutional for specific-intent crimes
Counselling
 Can be constructive as per Common Intention (above) – same
limitation regarding murder
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CRIMINAL LAW OUTLINE
Cases Notes

Accessory After the Fact

 Same mens rea requirement as aiding and abetting (above)
R. v. Ancio, [1984] (S.C.C.). Inchoate Crimes – Attempts (s.24) #24
 Facts: Accused takes shotgun to kill wife’s boyfriend, hit by chair  Attempt requires subjective mens rea, even if target offence is strict
 Rule: Mens rea for attempted murder is a specific intent to kill or absolute liability – specific intent to do target offence
(cannot have reckless attempt)  No recklessness or negligence
United States v. Dynar, [1997] (S.C.C.).  Specific intent offence – intoxication, honest mistake of fact defences
 Facts: Legally impossible attempt to launder money  No constructive or reckless attempt murder – must intend to kill
 Rule: Impossibility of execution is never a defence to inchoate  Actus reus – at least one step of perpetration – beyond preparation
liability in Canada – ie. “s.24(1) draws no distinction between  Consider nature and quality of act in relation to actus reus of
attempts to do the possible but by inadequate means, attempts to do completed offence
the physically impossible, and attempts to do something that turns out  Determine mens rea first, then determine if actus reus is present
to be impossible ‘following completion’” – all are criminal attempts  Impossibility not a defence – only imaginary crime
R. v. Sorrell and Bondett (1978), 41 C.C.C. (2d) 9 (Ont. C.A.).  Defence of abandonment in some U.S. jurisdictions, but no clear
 Facts: Plan to rob chicken store, closed early, crooks leave authority for it in Canada
 Rules:
 When the preparation is fully complete and ended, the next step
done by the accused for the purpose and with the intent of
committing an offence constitutes an actus reus sufficient in law
to establish a criminal attempt to commit that crime
 Unequivocal act test is insufficient
R. v. Deutsch, [1986] (S.C.C.).
 Facts: Advertisement for sales job involving sex, no job offer
 Rules:
 Accused may still have one or more acts to do, and these may be
separated by an intervening period of time, in order to complete
the offence and yet may be guilty of an attempt
 Relative proximity may make act an attempt that otherwise
appears only to be preparation, but act of commission does not
lose its character as actus of attempt due to significant delay

For: Criminal Law, Professor Esau p.25 of 26

By: Jay G. Simpson, L01 13 Aug 02
CRIMINAL LAW OUTLINE
Cases
R. v. Celebrity Enterprises Ltd. (No.2) (1997) (B.C. C.A.).
 Facts: Conspiracy, attempt to corrupt public morals
 Rule: An unlawful purpose must be a purpose which is unlawful by
the law of Canada – ie. it must be something of which a person can be
convicted
 Note: Actus reus for conspiracy is an agreement to effect an unlawful
purpose
R. v. Gralewicz, [1980] 2 S.C.R. 493, 54 C.C.C. (2d) 289 (S.C.C.).
 Facts: Conspiracy to prevent participation in union activities
 Rule: For purposes of a conspiracy, an unlawful act or purpose is
only one prohibited by statute
R. v. Dungey (1979), 51 C.C.C. (2d) 86 (Ont. C.A.).
 Facts: Lawyer accused of attempting billing fraud on Legal Aid
 Rule: There is no such offence as an attempt to conspire to commit a
substantive offence
For: Criminal Law, Professor Esau
By: Jay G. Simpson, L01
Notes
Inchoate Crimes – Conspiracy (s.465(1)) #25
 Independent actus reus and mens rea from target offence
 Can be guilty of conspiracy even if target offence not committed or
even attempted – agreement itself is crime
 Actus reus is agreement to commit an unlawful act (target offence)
 “Unlawful purpose” is criminal act – statutory offence
 Mens rea is intention to agree plus specific intention to put common
design into effect (ie. commit crime) – subjective test for both
 Undercover police officer – no specific intent – no conspiracy
 Conspiracy from other statutes than Criminal Code may apply other
than subjective mens rea
 No such offence as an attempt to conspire
 Consider s.464 Counseling an offence
 Impossibility and abandonment not defences
Counseling a crime that is not committed
 Actus reus – to procure, solicit or incite someone to commit offence
 Solo offence – person counseled can reject idea, yet counseling
offence remains – no reliance on agreement, etc
 Mens rea – counselor intends person counseled will do crime
 Counseled person’s intentions are irrelevant
 Impossibility and abandonment not defences
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