Crim Final Short Summary

Offences

Charge Test (cases & statute)

Assault S 265:
(1) A person commits an assault when
(a) Without the consent of another person, he applies force
intentionally to that other person, directly/indirectly

Fault requirement: intentional (applies to all assaults)

Act requirement: absence of consent (see Consent)

Homicide See Causation

S 222:
(1) A person commits homicide when, directly/indirectly, by any means,
he causes the death of a human being
Culpable Homicide S 222(5): “a person commits culpable homicide when he causes the death of
a human being,
(a) By means of an unlawful act,
(b) By crim negligence,
(c) By causing that human being, by threats/fear of violence/by
deception, to do anything that causes his death, or
(d) By wilfully frightening that human being, in the case of a
child/sick person

Manslaughter:
S 234: “Culpable homicide that’s not murder/infanticide is manslaughter”
Murder Fault requirement:
Intentional murder
S 229(a): “Culpable homicide is murder where the person who causes the
death of a human being
(i) Means to cause his death/
(ii) Means to cause him bodily harm that he knows is likely to
cause his death & is reckless whether death ensues/not”
*Accused must have knowledge that unlawful act would cause death

Transferred intent:
S 229: Culpable homicide is murder
(b) Where a person meaning to cause death to a human
being/meaning to cause him bodily harm that he knows is likely
to cause his death, & being reckless whether death ensues/not, by
accident/mistake causes death to another human being,
notwithstanding that he doesn’t mean to cause death/bodily
harm to that human being

*Recklessness isn’t the fault requirement for murder

 R v Martineau: principles of fundamental justice under s 7 require subjective
foresight of death for a murder conviction
1st Degree Murder 1. Is the accused guilty of murder?
2. If yes, should it be classified as 1st degree murder?

Murder is elevated when:

1. It’s “planned & deliberate” – s 231(2)
R v Smith:
Planned means “arranged beforehand”, “the result of a
scheme/design previously formulated/designed by the accused”
Deliberate means “considered not impulsive”
R v Banwait:
Deliberate means “carefully thought out, not haste/rash”, “slow in
deciding”, “cautious”
2. The victim is an on-duty police officer – s 231(4)
R v Collins: requires subjective awareness/perception of risk of the
victim’s occupation
3. It occurs “while committing” specified offences of illegal domination
– s 231(5)
R v Paré: “while committing” doesn’t need to mean “simultaneous”,
can use “single transaction”

Stricter approach to causation for s 231(5). See R v Harbottle on p 9

1st Degree Murder (s Stricter causation test:
231(5)) R v Harbottle:
“Committed an act/series of acts which are of such a nature that they must
be regarded as a substantial & integral cause of the death” (substantial cause
test)
Acts must be “essential, substantial & integral part of the killing”
Sexual Assault Act:
Non-consent is a circumstance element (See Consent)
R v Ewanchuk:
1. Touching
2. Of a sexual nature
3. Absence of consent (defence of consent)

Fault:
R v Ewanchuk:
1. Intention to touch
2. Subjective awareness of non-consent (defence of mistaken belief in
consent)

S 271: sexual assault

S 272: sexual assault w/ a weapon
S 273: aggravated sexual assault

See R v Chase for def’n (p 19)

Crim Negligence S 220: “Every person who by crim negligence causes death to another
Causing Death person is guilty of an indictable offence & liable”

See Causation & Crim Negligence

Fault: objective (“marked & substantial departure”)

Assault Causing See Causation
Bodily Harm
ON (& others): harm must be reasonably foreseeable
Aggravated Assault S 268(1): “Every 1 commits an aggravated assault who wounds, maims,
disfigures/endangers the life of the complainant”

See Causation

R v Godin:
1. An assault that wounds, maims, disfigures/endangers life and
2. Objective foreseeability of bodily harm (from Creighton)
Willful Damage to See Causation
Property
Arson See Causation
Crim Negligence See Causation & Crim Negligence
Causing Bodily
Harm S 221: “Every 1 who by crim negligence causes bodily harm to another
person is guilty of an indictable offence & liable to imprisonment for a term
not exceeding 10 yrs

Fault: objective (“marked & substantial departure”)

Dangerous Driving See Causation
Causing Bodily
Harm (/Death) R v Hundal:
Fault: objective but on modified objective standard

See R v Beatty (p 17)

Impaired Driving S 255(2)
Causing Bodily
Harm (/Death) See Causation
Fraud R v Theroux:
1. Actus reus:
a) Deceit
b) Deprivation
2. Mens rea:
a) Intentionally committing the deceitful act
b) Subjective awareness that the deprivation could follow as a likely
consequence
Breach of Trust R v Boulanger: requires subjective fault
The accused must’ve acted w/ the intention to use their public office for a
purpose other than the public good, for example, for a dishonest, partial,
corrupt/oppressive purpose
Failing to Provide Fault: objective
the Necessaries of
Life
Dangerous Driving R v Hundal:
Fault: objective but on modified objective standard

s 249(1)(a)
“Every1 commits an offence who operates a motor vehicle in a manner
that’s dangerous to the public, having regard to all the circumstances,
including the nature, condition & use of the place at which the motor
vehicle is being operated & the amt of traffic that at the time is/might
reasonably be expected be at that place”

See R v Beatty (p 17)

Endangering Fault: objective
Aircraft Safety
Operating While S 253
Impaired
Unlawful Act S 222(5)(a): “a person commits culpable homicide when he causes the death
Manslaughter of a human being, by means of an unlawful act”

Fault: less than murder (see R v Creighton on p 18)

Careless Use of S 86
Firearm
Fault: objective
Escape & Being at S 145(1)(a)
Large W/o Excuse
o Act: escape
o Circumstance: being in lawful custody
o Fault: intention to escape from lawful custody
Offences Relating to S 129
Public/Peace Officer
R v Moore: s 129 is worded broadly enough to be able to be done by
omission
Crim Negligence S 220
Manslaughter
Attempted Murder Fault: same as murder & requires subjective mens rea by Charter
Child Abandonment S 218 Every1 who unlawfully abandons/exposes a child who’s under the
age of 10 yrs, so that its life is/is likely to be endangered/its health is/is
likely to be permanently injured,
(a) is guilty of an indictable offence & liable to imprisonment for a
term not exceeding 5 yrs/
(b) is guilty of an offence punishable on summary conviction & liable
to imprisonment for a term not exceeding 18 months

Fault: subjective

R v ADH: p 14
Willful Promotion of S 319
Hatred
Theft S 322
 Careless Driving (p S 130 of the Hwy Traffic Act:
12) “Every person is guilty of the offence of driving carelessly who drives a
vehicle/street car on a hwy w/o due care & attn./w/o reasonable
consideration for other persons using the hwy & on conviction is liable to a
fine of not < $400 & not more than $2K/to imprisonment for a term of not
more than 6 months,/to both, & in addition his/her license/permit may be
suspended for a period of not more than 2 yrs”

R v Beauchamp: express fault requirement

Fault: objective standard

Drug Trafficking R v Blondin: knowledge that substance is a narcotic
Assault W/ Intent to Specific intent
Resist Arrest

Issues

Issue Test (cases & statute)

Voluntariness R v Rabey: “no act can be a crim offence unless it’s done voluntarily”
(p 6)
Causation (p 8) Requires factual & legal causation (R v Nette):

Factual causation: but-for test

Legal causation: whether the person should be held responsible in law; consider
intervening causes here

R v Nette: “significant contributing cause”

Special causation rules related to homicide (see p 8)

R v Blaue & Queen v Bingapore: examples of s 224

R v Smith: example of s 225

Intervening See R v Maybin:
causes (p 9) 1. Reasonable foreseeability
2. Independent act

Never applies in following situations regarding homicide:

S 224: death that might have been prevented
S 225: death from treatment of injury
S 226: acceleration of death
Consent (sexual S 273.1(1): “subject to subsection (2) & subsection 265(3), “consent” means, for the
assault) purposes of ss 271, 272 & 273, the voluntary agreement of the complainant to
engage in the sexual activity in question”

Consent is vitiated:
S 265(3): “for the purposes of this section, no consent is obtained where the
complainant submits/doesn’t resist by reason of
 (a) The application of force to the complainant/to a person other than
the complainant;
(b) Threats/fear of the application of force to the complainant/to a
person other than the complainant;
(c) Fraud; or
(d) The exercise of authority”
S 273.1(2): “no consent is obtained, for the purposes of ss 271, 272 & 273, where
(a) the agreement is expressed by the words/conduct of a person other
than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by
abusing a position of trust, power/authority;
(d) the complainant expresses, by words/conduct, a lack of agreement
to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity,
expresses, by words/conduct, a lack of agreement to continue to
engage in the activity”

Mistaken belief in consent defence:

S 265(4): “where an accused alleges that he believed that the complainant
consented to the conduct that is the subject-matter of the charge, a judge, if
satisfied that there is sufficient evidence & that, if believed by the jury, the
evidence would constitute a defence, shall instruct the jury, when reviewing all
the evidence relating to the determination of the honesty of the accused’s belief,
to consider the presence/absence of reasonable grounds for that belief”
S 273.2: where belief in consent isn’t a defence
“It’s not a defence to a charge under s 271, 272/273 that the accused believed that
the complainant consented to the activity that forms the subject-matter of the
charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness/willful blindness; or
(b) the accused didn’t take reasonable steps, in the circumstances known
to the accused at the time, to ascertain that the complainant was
consenting”
Only applies in situations of ambiguity (see R v Davis)
R v Ewanchuk: additional limitations on mistaken belief (see p 21)
Consent Consent is vitiated:
(assault 1. S 265(3): “for the purposes of this section, no consent is obtained where
generally) the complainant submits/doesn’t resist by reason of
(a) The application of force to the complainant/to a person other than
the complainant;
(b) Threats/fear of the application of force to the complainant/to a
person other than the complainant;
(c) Fraud; or
(d) The exercise of authority”

R v Jobidon: consent vitiated under common law for when serious hurt/bodily
harm is both caused & intended
 Can be vitiated thru fraud (see p 4)
R v Cuerrier: significant risk of serious bodily harm
R v Mabior: realistic possibility of transmission of HIV
R v Hutchinson: example of Cuerrier test outside of STIs

Mistaken belief in consent defence:

S 265(4): “where an accused alleges that he believed that the complainant
consented to the conduct that is the subject-matter of the charge, a judge, if
satisfied that there is sufficient evidence & that, if believed by the jury, the
evidence would constitute a defence, shall instruct the jury, when reviewing all
the evidence relating to the determination of the honesty of the accused’s belief,
to consider the presence/absence of reasonable grounds for that belief”
Intoxication S 33.1: self-induced intoxication can’t be a defence to an offence against the
bodily integrity of another person

Bodily Harm S 2: “any hurt/injury to a person that interferes w/ the health/comfort of the
person & is more than merely transient/trifling in nature”

See R v Moquin on p 3 for examples

Omission No crim liability except where there’s legal duty.

Requirements for liability in omissions:

1. The offence is 1 that’s capable of being done by omission
2. The accused was under a legal duty to act under 1 of: the Code, another
statute (federal/provincial)/the common law

Statute provisions for legal duty (see p 5)

R v Peterson: def’n of under your charge under s 215

R v Browne: def’n of undertaking under s 217

R v Moore: common law duty to identify to police (reciprocal duty)

Subjective Fault R v Beaver: all drug offences requires subjective fault
(p 14)
R v ADH: all crim offences presume subjective fault unless Code says otherwise

Can be any of intention (R v Buzzanga & Durocher), recklessness (R v

Sansregret)/wilful blindness (R v Sansregret & R v Briscoe) unless Code specifies
Regulatory R v Soo: default is strict liability (due diligence)
Offences
Due diligence has standard of “departure” w/ reverse onus

R v Wholesale Travel Group: differences b/w regulatory & crim offences

Crim S 219 “Every1 is criminally negligent who in doing anything/in omitting to do
Negligence (p anything that it’s his duty to do, shows wanton/reckless disregard for the
16) lives/safety of other persons”
“For the purposes of this section, duty means a duty imposed by law”
 R v F(J): “marked & substantial departure”
Objective Fault R v Creighton: “marked departure”
Mistake S 19: “ignorance of the law by a person who commits an offence isn’t an excuse
for committing that offence”
Age (p 22) S 13: “no person shall be convicted of an offence in respect of an act/omission on
his part while that person was under the age of 12 yrs”
Mental S 16(1): “no person is criminally responsible for an act committed/an omission
Disorder (p 22) made while suffering from a mental disorder that rendered the person incapable
of appreciating the nature & quality of the act/omission/of knowing that it was
wrong”

S 2: “‘Mental disorder’ means a disease of the mind”

Cooper v R: def’n of disease of the mind (p 23)
Automatism (p Rabey v R:
23) 1. Is the condition the accused claims to have suffered a disease of the mind?
2. Does the evidence establish that the accused was in that state at the time of
the offence?

Disease of the mind:

See R v Stone for holistic approach
Can see readings notes on R v Luedecke for clarification on Stone