MOGLA

| CRIM W17

MENS REA

1. Silent on MR?
2. If silent: criminal or regulatory offence? fed/prov leg, penalty, purpose (regulate/absolute prohibition)
3. Criminal offence (+ silent on MR), presume full/subj MR; burden to prove MR rests on Crown
4. If it is a regulatory offence (+ silent on MR), presume SL; Crown proves AR BARD, D must prove on BOP
they exercised DD or reasonable reliance on a mistaken fact (Sault St. Marie)
5. Burden of proof
6. Defences

NOT SILENT, INTENTION/WILLFULNESS

The provision is not silent on mens rea. It requires the Crown to prove __________.

INTENTION
Where a provision requires the proof of intention or willfulness, the crown may prove this by
establishing either:
a. Direct intent: that the accused consciously or deliberately intended to bring about
the prohibited consequence
b. Indirect intent: that the accused intended to do one thing but subjectively foresaw
that a prohibited consequence was certain/substantially certain to follow from it.
(Buzzanga)

Thus, in this case, ___________________ <apply facts>

Where a criminal offence contains a specific term or phrase, such as ‘intent,’ this will
generally exclude lower forms of MR (ie. unless the statute provides otherwise). (Buzzanga)

SILENT – CRIMINAL, FULL SUBJECTIVE

The provision is silent on MR.

We must decide whether it is a criminal or regulatory defence in order to determine which

presumptions about fault should apply.

The fact that it appears in a criminal law statute gives rise to a presumption that it is a
criminal offence. (Prue, Buzzanga)

This presumption is further supported by the test in Wholesale Travel:

• The offence contemplates absolute prohibition on _______

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• Conviction carries a significant penalty of ________
• It is found within a federal statue exercising other criminal law powers

If an offence is criminal and silent on MR, it gives rise to a presumption that it requires full
MR, which means anything from intent to recklessness. (Buzzanga)

<Redefine intent if you haven’t already>

Recklessness is a subjective form of NR in which a person is aware of a risk (of a prohibited

result) but decides to take it. (Sansregret)

Wilful blindness is a form of MR in which a person becomes aware of the need for some
inquiry but declines to make it (or is ‘deliberately ignorant’). (Sansregret, Duong, Briscoe)

Therefore, the Crown in this case must prove BARD that the accused did _____ intentionally,
knowingly, was willfully blind, or was reckless as to this fact.

SILENT – REGULATORY, STRICT LIABILITY

The provision is silent on MR.

We must decide whether it is a criminal or regulatory offence in order to determine which

presumptions about fault should apply.

To decide this, we apply the test in Wholesale Travel:

• Appears in a provincial statute (suggesting it’s not criminal)
• Predominant purpose: regulation of a risk or the prevention of harm to public welfare
through the requirement to abide by a minimum standard of care or conduct
• Carries a relative low penalty or stigma

A regulatory offence that is silent on fault gives rise to a presumption that is a strict liability
offence. (Sault Ste. Marie)

In this case, the Crown is required to prove only the AR and negligence is inferred from this
in the absence of proof on the part of the accused (on a balance of probabilities) that they
took reasonable care to avoid the prohibited consequence or acted under a reasonable
mistake of fact. (Sault Ste. Marie)

Thus, if the Crown proves the AR BARD, the accused would have to prove, on a balance of
probabilities, that they either _______ < reasonable steps for prevention> or reasonably
believed that ________.

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PARTICIPATION OFFENCES

22, COUNSELLING, OFFENCE IS COMMITED

ISSUE: Can a PF case be established against X for counselling Y contrary to s. 22 of the CC?

Sub-Issue 1: Can the AR of 22 be made out?

Rule: The AR for 22 is: active inducement or encouragement to do an act that is an

offence + the offence being committed OR an offence that is RF from the act
counseled

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 22 be made out?

Rule: The MR for 22 is a knowledge/intention that the offence be committed OR

intentionally inciting an act w/ objective foresight that the offence would be
committed.

Conclusion: The MR can (not) be established.

CONCLUSION: Therefore, a PF case can (not) be established against X for counselling Y. As X

has been found to have been counselling Y, they will be held as a party to Y’s offence of ___.

464, COUNSELLING, OFFENCE IS NOT COMMITED

ISSUE: Can a PF case be established against X for counselling Y contrary to s. 22 of the CC?

Sub-Issue 1: Can the AR of 464 be made out?

Rule: The AR for 464 is: active inducement OR encouragement of commission of a CO

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 22 be made out?

Rule: The MR for 464 is: intent that the offence counselled be committed OR
knowingly counseling when aware of an unjustified risk that the offence is likely to be
committed. (Hamilton)

Conclusion: The MR can (not) be established.

CONCLUSION: Therefore, a PF case can (not) be established against X for counselling Y.

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22, COUNSELLING, OFFENCE IS COMMITED

ISSUE: Can a PF case be made out against X for counselling Y contrary to s. 22 of the CC?

Sub-Issue 1: Can the AR of 22 be made out?

Rule: The AR for 22 is: active inducement or encouragement to do an act that is an

offence + the offence being committed OR an offence that is RF from the act
counseled

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 22 be made out?

Rule: The MR for 22 is a knowledge/intention that the offence be committed OR

intentionally inciting an act w/ objective foresight that the offence would be
committed.

Conclusion: The MR can (not) be established.

CONCLUSION: Therefore, a PF case can (not) be established against X for counselling Y.

465, CONSPIRACY

ISSUE: Can a PF case be established against X for conspiracy contrary to s. 465 of the CC?

Sub-Issue 1: Can the AR of 465 be made out?

Rule: The AR for 465 is: fact of the agreement between the accused & 1 or more
persons to commit an offence + the intention on the part of at least 2 or more of the
parties (including the accused) to carry out the planned offence (Dynar)

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 465 be made out?

Rule: The MR for 465 is: accused’s intention to enter the agreement + their intention
to put the common design into effect

Conclusion: The MR can (not) be established.

CONCLUSION: Therefore, a PF case can (not) be established against X for conspiracy.

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24(1) ATTEMPTS

ISSUE: Can a PF case be established against X for attempted X contrary to s. 24(1) of the CC?

Sub-Issue 1: Can the AR of 24(1) be made out?

Rule: The AR for 24(1) is: going beyond mere preparation to commit the offence
(Deutsch). An act goes ‘beyond mere preparation’ in law when a person takes the first
step toward committing the offence after preparation is complete. (Cline)

As this is a qualitative assessment, the Court must look to the relative proximity of the
steps taken to complete the offence in terms of time, location, & acts to be completed
to determine whether it was beyond mere preparation. (Deutsch)

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 24(1) be made out?

Rule: The MR for 24(1) is specific intent to commit the predicate offence. (Ancio)

Where an offence might require a lesser form of MR to obtain a conviction for the
complete offence, a conviction for attempting to commit an offence will require
nothing less than the intention to carry out the complete offence (Ancio, Williams)

Conclusion: The MR can (not) be established.

CONCLUSION: Therefore, a PF case can (not) be established against X for attempted X.

21(1) PARTIES

ISSUE: Can a PF case be established against X as a party to Y contrary to s. 21(1) of the CC?

Sub-Issue 1: Can the AR of 21(1)(b or c) be made out?

21(1)(b), Aiding
Rule: The AR for 21(1)(b) is: doing or omitting to do something to assist in the
commission of an offence (Briscoe)

21(1)(c), Abetting
Rule: The AR for 21(1)(c) is: encouraging another to commit the offence

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 21(1)(b or c) be made out?

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21(1)(b), Aiding
Rule: The MR for 21(1)(b) is: an intent to assist the principal in committing the offence
+ knowledge of the type of offence the principal intends to commit (but not the
precise manner). (Briscoe) Briscoe is the highest authority available on establishing the
elements of MR.

When it comes to the distinguishing between purpose and desire, Hibbert provides the
highest authority and states that regardless of a person’s desire for the outcome,
them deliberately carrying out an act is sufficient to establish their intent.

21(1)(c), Abetting
Rule: The MR for 21(1)(c) is: intentionally or knowingly encouraging a person to
commit the offence.

Conclusion: The MR can (not) be established.

CONCLUSION: Therefore, a case can (not) be established against X for being a party to Y.

21(2) COMMON INTENT

ISSUE: Can X be convicted of common intent contrary to s. 21(2) of the CC?

Sub-Issue 1: Can the AR of 21(2) be made out?

Rule: The AR for 21(2) is: formation of an intent in common + to carry out an unlawful
purpose + to assist each other in carrying it out + the offence being carried out or any
RF offence (or lesser included offence)

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 21(2) be made out?

Rule: The MR for 21(2) is: an intention to carry out the unlawful purpose + to assist the
other person(s) therein + knowledge or objective foreseeability that the (actual)
offence would be carried out

Conclusion: The MR can (not) be established.

CONCLUSION: Therefore, X can (not) be convicted of common intent contrary to s. 21(2).

23, ACCESSORY AFTER THE FACT

ISSUE: Can X be convicted as an accessory after the fact, contrary to s. 23 of the CC?

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Sub-Issue 1: Can the AR of 23 be made out?

Rule: The AR for 23 is: receiving, comforting, or assisting a fugitive.

It will not suffice to prove that acts of assistance had the effect of helping a fugitive
escape. The Crown must prove that they were done for this purpose (McVay)

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 23 be made out?

Rule: The MR for 23 is: subjective knowledge that the fugitive has been a party to an
offence + assisting the fugitive for the purpose of helping them escape. Willful
blindness is a valid substitute for knowledge (Duong)

Conclusion: The MR can (not) be established.

CONCLUSION: Therefore, X can (not) be convicted as an AATF contrary to s. 23.

HOMICIDE

229(B), ACCIDENTAL MURDER

ISSUE: Can a PF case be established against X for the murder of Y contrary to s. 229(b) of the
CC?

Sub-Issue 1: Can the AR of 229(b) be made out?

Rule: The AR for 229(b) is: while intending to cause the death of one human being,
accidentally causing death to another.

The test for causation here is a ‘significant & contributing cause.’ (Smithers, Nette)

At CL, a person is presumed to have acted voluntarily, or to have ‘intended the natural
and probable consequences of their actions.’ (Bernard, Daviault)

Conclusion: The AR can (not) be established BARD.

Sub-Issue 2: Can the MR of 229(b) be made out?

Rule: The MR for 229(b) is meaning to cause death or meaning to cause bodily harm
that one knows is likely to cause death.

‘Likely’ here means probable, not simply a possibility, a risk, or a chance. (Roks)

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The SCC in Briscoe held that wherever knowledge is an element of an offence, willful
blindness can substitute for it.

Willful blindness is a form of MR in which a person becomes aware of the need for
some inquiry but declines to make it (or is ‘deliberately ignorant’) (Sansregret, Duong,
Briscoe)

The elements must be proven BARD.

Conclusion: The MR for 229(b) can (not) be established BARD.

CONCLUSION: Therefore, a PF case can (not) be established against X for the murder of Y.

231, FIRST DEGREE

*NB: elements of murder must be made out first!*

Issue: Can X be charged with first-degree murder?

Rule: First degree murder occurs when: [PICK APPLICABLE SUBSECTIONS]

i. Under s. 231(2), murder is first degree murder where it is planned and deliberate.
- Planned means a ‘calculated scheme or design’ though either can be simple.
A murder may be ‘planned’ even if it is immediately carried out (Widdifield)
- Deliberate means ‘slow in deciding,’ ‘considered,’ or ‘not impulsive’
(Widdifield)
- Murder can be ‘planned & deliberate’ even where it entails a plan to inflict
bodily harm w/ knowledge that it is likely to cause death. (Nygaard)

ii. Under s. 231(3), murder is planned and deliberate when it has been contracted (to
murder, assist, or counsel) in consideration for money/something of value.

iii. Under s. 231(4), murder is first degree where it is committed against a PO acting in the
course of their duties. This provision requires the Crown to prove that the accused had
knowledge of the facts in the provision, that is, that the victim was a PO & that they
were acting in the course of their duties. (Collins)

iv. Under s. 231(5), murder will be first degree if death is caused “while committing” a
series of offences including sexual assault and unlawful confinement. In these cases,
the victim of the murder need not be the victim of the listed offence. (Russell)

Section 231(7) states that murder that is not first degree is second degree.
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Conclusion: If this was murder, it would be _______ degree murder.

222(5)(A), UNLAWFUL ACT MANSLAUGHTER

ISSUE: Can the Crown establish a PF case against X for unlawful act manslaughter, contrary to
s. 222(5)(a) of the CC?

Sub-Issue 1: Can the AR for unlawful act manslaughter be established?

Rule: The AR for 222(5)(a) is an unlawful act that causes the death of a human being.

The unlawful act in this case is Y, contrary to s. __

The AR for Y under s. __ is ______.

The test for causation here is the one in Smithers and Nette: a cause beyond the de
minimus or a ‘significant contributing cause.’

At CL, a person is presumed to have acted voluntarily, or to have ‘intended the natural
& probable consequences of their actions.’ (Bernard, Daviault)

Application: <was Y a significant & contributing cause to their death?>

Conclusion: AR can (not) be established BARD.

Sub-Issue 2: Can the MR for unlawful act manslaughter be established?

Rule: The MR for 222(5)(a) is the MR for the unlawful act + objective foresight of non-
trivial bodily harm. Foreseeability of the risk of death is not required. (Creighton)

The MR for the unlawful act in this case, Y, is ______.

In criminal offences involving an objective form of fault, courts apply a ‘modified

objective test,’ which asks whether the risk raised by the conduct at issue would have
been foreseeable to the RP in the same circumstances of the accused – but without
the RP sharing the personal characteristics of the accused, such as age, education &
experience. (Creighton)

Conclusion: The MR can (not) be made out BARD.

DEFENCES

SELF-DEFENCE

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Issue: Can P rely on self-defence?

Rule: The new self-defence provisions in s. 34 of the Code function as a full defence
(acquittal) to any offence committed with the purpose of defending or protecting oneself or
another from the use or threat of force, if the act committed in defence is reasonable in the
circumstances.

The defence is now set out in s. 34(1), containing the following elements:
- Committing an offence where
o The accused reasonably believes that force, or a threat of force, is being
used/made against them or another;
o The act constituting offence is committed for purpose of defending or
protecting self/another;
o The act committed is reasonable in the circumstances

S. 34(2) sets out factors for assessing whether the act was ‘reasonable in the circumstances,’
but the list is not exhaustive. They include the nature of the force or threat; the availability of
alternative means of responding; imminence; size, age, gender, and physical capabilities of
the parties; past history and nature of their relationship; and proportionality between force
used and force or threat defended against.

The accused must raise an air of reality for each element of the defence and the Crown must
prove BARD that one or more elements do not apply (there is no reasonable possibility that it
is made out).

Conclusion: P can (not) rely on self-defence.

MENTAL DISORDER

ISSUE: Can the accused rely on the defence of mental disorder?

Sub-Issue 1: Is the accused fit to stand trial?

Rule: The accused, Crown or the court at any time during a criminal prosecution prior
to the verdict, raise the issue of the accused’s fitness to stand trial. The accused is
presumed to be fit, unless satisfied on a balance of probabilities that they are not. The
persuasive burden rests on the party raising the claim, s. 672.22.

As per s. 2 of the Code, a person is “unfit to stand trial” where “on account of mental
disorder, [she is unable to] conduct a defence at any stage of the proceedings before a

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verdict is rendered or to instruct counsel to do so, in particular, unable on account of
mental disorder to:

a) Understand the nature or object of the proceedings,

b) Understand the possible consequences of the proceedings, or
c) Communicate with counsel

To be fit under s.2, the accused need only possess a limited cognitive capacity to
understand the process and to communicate with counsel, and does not need to be
capable of making rational, beneficial decisions to him. (Whittle)

A person found unfit can be tried at a later time, if they are later found to be fit. If the
Crown seeks to preserve the status of a prosecution while waiting for the accused to
become fit, the Crown must establish a PF case for the offence every two years. (s.
672.33)
A person unfit to stand trial is remanded to the Review Board for a disposition hearing
under s. 672.54. If the Court finds a person is not likely to ever become fit to stand trial
and does not pose a significant threat to public safety, the court may grant a stay of
prosecution.

Conclusion: X is (un)fit to stand trial.

Sub-Issue 2: Does the accused have a MD as defined by s. 2 of the Code?

Rule: The mental disorder defence is set out in s.16 and the phrase “mental disorder”
is defined in s.2 as the disease of the mind. Cooper defines the disease of the mind to
include “any illness, disorder or abnormal condition that impairs the human and its
functioning” but excludes self-induced states caused by alcohol or drugs, as well as
transitory mental states such as hysteria or concussion. The mental disorder defence
serves to exempt a person from criminal liability based on an incapacity for criminal
intent or excuse what would otherwise be a criminal offence (Chaulk)

s.16 states that a person is not to be found criminally responsible for an act/omission
committed while suffering from a mental disorder that rendered the person incapable
of appreciating the nature & quality of the act/omission OR of knowing that it was
wrong.

- Appreciating the nature & quality of the act requires not simply knowledge of
act being committed but also an ability to perceive the physical consequences,
impact or results of the act (Cooper)

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- Failing to know it was wrong means that the accused must lack an awareness
that the act was morally wrong by society’s standards (Chaulk)

The party seeking to rely on the defence must establish an AOR for each element of
the defence. Once AOR has been established, persuasive burden remains w/ the party
seeking to rely on the defence to prove that each element of the defence applies on a
BOP.

If the court (or jury) finds that the s. 16 test has been met on a BOP, the accused is
found “not criminally responsible due to mental disorder” (NCRMD) and remanded to
the Review Board for a disposition hearing under section 672.54 within 45 days.

If the judge or jury finds that the elements have not been established on a BOP, the
facts supporting the defence may still be considered in assessing whether the MR of
the offence has been established BARD.
Conclusion: The accused can (not) use the defence of MD.

CONCLUSION: P can (not) establish that they are unfit to stand trial/suffer from a mental
disorder.

REVIEW BOARD
As P has been found (unfit to stand trial or NCRMD), the Review Board must make the disposition that is the
least onerous & restrictive to the accused that is consistent with the need to protect the public and to
reintegrate the accused into society. (s. 672.54)

Rule: If in a hearing under s. 672.54, “the court or Review Board concludes that the NCR accused is not a
significant threat to the safety of the public, it must order an absolute discharge.” (Winko)

3 dispositions available to an AP found NCRMD under s 672.54:
i. an absolute discharge,
ii. a conditional discharge, or
iii. detention in custody in the hospital

A person unfit to stand trial may only be conditionally discharged or detained in hospital. This would
continue until a person is found not likely to ever become fit and the charge is stayed [s. 672.54], if the
Crown decides to stay the charge, or if the Crown fails to present a PF case at intervals of up to 2 years and
the charge is stayed by the court [s. 672.33].

While the scheme allows for indefinite detention in hospital, it is consistent w/ s. 7 & 11(d), given the
requirement for the least onerous disposition and periodic reviews of detentions or conditional discharges
at yearly intervals (or sooner). (Winko)

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