Introduction

In this chapter we look at examples of some offences. It is important when reading to keep in
mind the actus reus and mens rea and to try to identify these elements in each offence discussed.
Properly identifying the full actus reus and mens rea of an offence is essential to building either a
prosecution or a defence case. The first consideration in planning any defence strategy would be
whether or not it can be argued that the accused did not commit the actus reus or have the
necessary mens rea.
Violent Offences Homicide Homicide is defined in section 222 of the Criminal Code1
(the Code). A person commits
homicide when, directly or indirectly, by any means, he causes the death of another person.
Homicide is either culpable or non-culpable or, in simpler terms, criminally blameworthy or non-
blameworthy. Non-culpable homicide is not an offence and would include situations such as a
soldier killing an enemy during a war or a death resulting from a traffic accident where the
victim failed to stop at a red light and the other driver could not avoid hitting the victim’s car.
Culpable homicide is an offence, and the person causing death is held criminally
accountable. According to sections 222(5)(a) to (d) of the Code, a person commits culpable
homicide when he causes the death of another person
(a) by means of an unlawful act; (b) by criminal negligence; (c) by causing that human being, by
threats or fear of violence or by deception, to do anything that causes his death; or (d) by wilfully
frightening that human being, in the case of a child or sick
person. There are three forms of culpable homicide: murder, manslaughter, and infanticide.
Murder
Murder is the most serious type of culpable homicide. Section 229 sets out the circum-stances
when culpable homicide is murder, and these are: • when the person who causes the death means
to do so; • when the person who causes the death means to cause bodily harm and knows the act
is likely to cause death; and
• when the person causes the death while committing a criminal act, although there was no plan
to cause death while committing the offence.
In other words, the accused must voluntarily do something to cause the death of
the victim (the actus reus) and one of the required mental elements listed above (the mens rea)
must be present. However, if the accused tries to kill a particular person butinstead accidentally
kills someone else, she will still be guilty of murder even though she did not intend to kill the
person who died.2 Section 231 classifies murder into two types for the purpose of determining
what
sentence should be applied upon conviction. This section does not create an offence, but deals
only with the nature of the punishment that will be meted out. Murder is
either first-degree or second-degree. Murder is first-degree when the victim’s death “is planned
and deliberate.” In addition, if the victim is a police officer or any other law enforcement agent
listed in section 231(4), or if the death occurs during the commis-sion of, or attempt to commit,
any of the offences listed in section 231(5), including a hijacking of a plane, a sexual assault, or a
kidnapping, then the offence is first-degree murder. Murder that is not first-degree is considered
to be second-degree. In other words,
if the Crown can prove that the accused committed murder in accordance with sec-tion 229, but
cannot prove beyond a reasonable doubt that the murder was planned and deliberate, then the
accused will be convicted of second-degree murder and sentenced accordingly. There is a
mandatory sentence of life imprisonment for murder. The minimum
penalty for first-degree murder is life imprisonment without eligibility for parole for 25 years.
For second-degree murder, the minimum time to be served in prison without parole eligibility is
10 years, and can be as high as 25 years.3
Manslaughter Manslaughter is a culpable homicide that is not murder or infanticide.4
This means that
once it has been proved that a death is culpable homicide under section 222(5), it must be
determined whether it is murder, manslaughter, or infanticide. If the death does not meet the
requirements of murder, section 229, or infanticide, section 233, it will be manslaughter under
section 234. The Crown may be able to prove beyond a reason-able doubt that the death of the
victim was culpable homicide but cannot prove beyond a reasonable doubt that the accused had
the mens rea for murder. In such a case, the judge might find the accused guilty of manslaughter
or instruct the jury to consider manslaughter as a verdict. The sentence for manslaughter is
provided in section 236. The maximum sentence
is life imprisonment, and if a firearm is used in the commission of the offence, there is a
minimum sentence of four years in prison. This is a different sentence from that for murder. The
minimum and only sentence for murder is life imprisonment as set out in section 235.
Infanticide
Infanticide, the final type of culpable homicide, is defined in section 233. It occurs when a
mother, suffering from the effects of giving birth so that her mind is disturbed, causes the death
of her newly born child by a wilful act or omission. “Newly-born child” is defined in section 2 as
a child under one year old. Under section 237, the sentence is up to five years’ imprisonment.
Assault
There are several criminal offences involving assault. The basic offence and the defin-ition of
assault are contained in section 265.
265(1) A person commits an assault when (a) without the consent of another person, he applies
force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an
act or a gesture, to apply force to another person, if he has, or causes that other person to believe
on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly
wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or
begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a
weapon, threats to a third party or causing bodily harm and aggravated sexual assault. (3) For the
purposes of this section, no consent is obtained where the complainant submits or does not resist
by reason of (a) the application of force to the complainant or to a person other than the
complainant; (b) threats or fear of the application of force to the complainant or to a person other
than the complainant; (c) fraud; or (d) the exercise of authority.
(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 and 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 or absence of reasonable grounds for that belief.
This offence, sometimes referred to as simple assault or common assault, requires
the intentional application of force, directly or indirectly, to another person without consent.
Assault may also occur when there is an attempt or threat to apply force. The attempt or threat
may occur by an act or a gesture. However, the potential victim of the attempt or threat must
have reasonable grounds for believing that the accused is able to carry out the assault. Therefore,
someone joking that he will punch out his friend if the friend gets an “A” in his criminal law
examination is unlikely to be charged or convicted of assault unless the friend actually believes
that an assault will occur. The final manner of committing assault provided in the section
requires proof that
the accused physically confronted, stopped, or begged from the victim while openly wearing or
carrying a weapon. The wearing of a weapon while engaged in the described activities involves
an implied threat. The application of force in violation of section 265(1)(a) does not need to
involve
any strength or power. Any unwanted touching of the victim could lead to a conviction under this
section, including spitting on them. The lack of consent is a crucial element of the actus reus of
this offence, not the level of force used. The mens rea is “inten-tionally.” However, see the
discussion on recklessness in Chapter 5. Consent
Consent must be informed and freely given under section 265(3). To be freely given, the consent
must not simply be the result of submission or failure to resist or protest the touching due to fear,
fraud, or the exercise of authority. The exercise of authority encompasses both those
circumstances in which someone gives consent as a result of being ordered to do so by someone
who has obvious power over them, and those situations in which there is an imbalance of power
in the relationship, such as between a psychiatrist and his patient.5
Informed consent involves an understanding of the risks
of consent. For instance, a doctor must properly explain the dangers or risks of medical treatment
to a patient to make the patient’s consent valid. Issues of consent most often arise in the context
of consensual fights or sporting
activities that involve physical contact. The consent may be implied in these circum-stances. For
instance, two people in a bar begin to argue. One says to the other, “You want to take this
outside?” This is generally regarded as an invitation to fight and if the other person takes up the
challenge and goes outside to engage in a fight, he will likely be viewed as having implied his
consent. Likewise, hockey often involves a lot of physical contact between players. Players are
giving implied consent to this contact when they participate in a game. However, when the
consent is implied in a fight or sporting activity, the courts have
placed limits on the level of force to which the victim consented. If the force used in a situation
is excessive, the courts will likely find that the victim did not consent to that extent of bodily
contact. For example, in a hockey game, if a player takes off his gloves and hits another player
over the head from behind, the courts have determined that the victim did not consent to that
level of force. Generally speaking, if the physical force is outside the rules of a game and beyond
the risks normally associated with the manner in which the game is played, the courts will find
that there was no consent. In cases that involve a consensual fight, in addition to section 265, the
courts apply
a common law rule that the consent of an adult to engage in such a fight is vitiated or negated
when the accused has applied force that was intended to cause serious harm or injury to the
victim. It is important to note that section 265(2) provides that the definitions of assault in
the section apply to all forms of assault, including sexual assault, assault causing bodily harm,
etc.6
Penalties for Common Assault
The penalty for the offence of common assault is not found in section 265, but rather in section
266. This is a hybrid offence (or Crown option offence), which means that the Crown may elect,
or choose, the procedure to be followed in prosecuting the offence. (See Chapter 11 of this text
for a discussion of the procedure for prosecuting various classifications of offences.) If the
Crown chooses to use the procedure for prosecuting an assault charge as a more serious offence,
the maximum penalty is five years in prison. On the other hand, if the Crown decides to proceed
by way of
5 In the case of R v Saint-Laurent (1993), 90 CCC (3d) 291, the court determined that a patient
did not freely con-sent to having a sexual relationship with her psychiatrist because of the
overwhelming imbalance of power in the relationship.
6 See Criminal Code, ss 267, 268, 270, 271, 272, and 273 for other forms of assault.
hybrid or Crown option offences offences that may be prosecuted as either summary conviction
offences or indictable offences, at the choice or election of the Crownsummary conviction
procedure, the method used for the prosecution of a less serious offence, the penalty is the
general penalty for summary conviction offences: a fine of up to $5,000 or a maximum of two
years less a day in prison, or both.
Property Offences
Offences involving property make up the vast majority of offences listed in the Code. In this
section we will focus on theft and break and enter.
Theft Section 322 states:
322(1) Every one commits theft who fraudulently and without colour of right takes, or
fraudulently and without colour of right converts to his use or to the use of another person,
anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the
owner of it, or a person who has a special property or interest in it, of the thing or of his property
or interest in it; (b) to pledge it or deposit it as security; (c) to part with it under a condition with
respect to its return that the person who parts with it may be unable to perform; or (d) to deal
with it in such a manner that it cannot be restored in the condition in which it was at the time it
was taken or converted.
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move
or to be moved, or begins to cause it to become movable. (3) A taking or conversion of anything
may be fraudulent notwithstanding that
it is effected without secrecy or attempt at concealment. (4) For the purposes of this Act, the
question whether anything that is converted is taken for the purpose of conversion, or whether it
is, at the time it is converted, in the lawful possession of the person who converts it is not
material. (5) For the purposes of this section, a person who has a wild living creature in captivity
shall be deemed to have a special property or interest in it while it is in captivity and after it has
escaped from captivity.
Theft is one of the most commonly charged property offences. The actus reus of the
offence requires taking or fraudulently converting someone else’s property. A person converts
property when she uses another person’s property for her own purposes as though she were the
true legal owner, thereby depriving the rightful owner of his use of the property. The act of
converting is called conversion. An example of converting or conversion would be the borrowing
of a friend’s laptop computer with her permission while she was away on vacation, setting it up,
and then refusing to return it to the friend at the end of the loan period. The initial borrowing
does not involve conversion or theft because it was done with the rightful owner’s permission.
The act of borrowing was entirely legal. The conversion occurs when the borrower refuses to
give the laptop back. However, “borrowing” someone else’s property without permission may be
illegal and may be regarded as theft depending on the circumstances. The mens rea of theft or
conversion must involve the intention to fraudulently
deprive another person of his property. It need not be an intention to permanently deprive the
other person of use of the property. A temporary deprivation would be enough. The person who
is deprived of use of the property also need not be the legal owner. A person who has a “special
interest” in the property, while not the legal owner, may also be a victim of theft. A “special
interest” might be held by a renter of the property. In addition, the person taking or converting
the property to her own use must do
so without colour of right. The term “colour of right” refers to a situation in which a person
honestly believes that she has a legal right to the property. For the accused to be convicted of
theft, the Crown must prove that the accused knew, or should have known, that she had no legal
right to the property in question. For instance, if the accused found a used leather chair on the
side of the road, she might believe that the chair had been abandoned and take it home to use in
her family room. She would be acting under “colour of right” if it were reasonable to believe that
the chair actually had been abandoned, even if it had not and had fallen off the back of a moving
van and the true owner was searching for it. On the other hand, if the bank made an error and
incorrectly deposited $60,000 in the accused’s account and she withdrew it before the bank
realized the mistake it had made, she would be convicted of conver-sion unless she could
establish that she had some legitimate reason for believing that the money was hers, which would
be unlikely in such circumstances. Section 334 provides different penalties depending on
whether the value of the
property taken or converted exceeds a value of $5,000. Theft of property valued at over $5,000 is
an indictable offence, liable for punishment for a term of up to 10 years. Theft of property valued
at $5,000 or less is a hybrid offence, subject to Crown elec-tion to be prosecuted as either an
indictable offence or a summary conviction offence. See Chapter 11, pages 118 to 121, for a
discussion of the classification of offences and various modes of prosecuting. Theft of property
worth over $5,000 is commonly referred to as “theft over” and theft of $5,000 or less as “theft
under.”
Taking a Motor Vehicle Without Consent Section 335 presents the offence of taking a motor
vehicle without consent. This offence is often referred to as joyriding and it is included in the
Code along with other offences that resemble theft:
335(1) Subject to subsection (1.1), every one who, without the consent of the owner, takes a
motor vehicle or vessel with intent to drive, use, navigate or operate it or cause it to be driven,
used, navigated or operated, or is an occupant of a motor vehicle or vessel knowing that it was
taken without the consent of the owner, is guilty of an offence punishable on summary
conviction. (1.1) Subsection (1) does not apply to an occupant of a motor vehicle or vessel who,
on becoming aware that it was taken without the consent of the owner, attempted to leave the
motor vehicle or vessel, to the extent that it was feasible to do so, or actually left the motor
vehicle or vessel. (2) For the purposes of subsection (1), “vessel” has the meaning assigned by
section 214.
colour of right a person honestly believes that they have a legal right to the property in
questionThis is an offence that often involves accused who are young persons. The actus
reus must involve taking the vehicle “without the consent of the owner.” Occupants of the
vehicle may also be charged under this section if they knew it was taken without the owner’s
consent or did not try to leave the vehicle when they became aware that it was taken without
permission. The mens rea does not require the intent to keep the car or vessel or to deprive the
rightful owner of its use. Rather, the intent must be to drive, use, navigate, or operate it or to
cause any of these actions to happen. Under many circumstances, the offence of taking a car
would amount to theft over,
but this section allows the police to lay a more minor charge when circumstances warrant. Such
circumstances might involve a group of teenagers taking one of their parents’ cars without
permission and driving around for fun. The parent discovers the car missing and, thinking it was
stolen, calls the police, who apprehend the teens in the car before they cause any damage. Since
section 335 creates a summary conviction offence, which carries a much less harsh sentence than
a more serious indictable offence, the police may, in circumstances such as these, choose to lay a
charge under this section. (An in-depth discussion of the differences between summary
conviction offences and indictable offences can be found in Chapter 11 of this text.) Joyriding is
not the same as theft because the intent is different. A person who takes a vehicle without consent
is not intending to deprive the rightful owner of the vehicle. With joyriding, the intent is merely
to drive or use the vehicle for a period of time.
Lesser and Included Offences lesser and included offence
an offence that includes all the elements of a less serious offence
A lesser and included offence is not an offence on its own, but is an offence for which the actus
reus and mens rea are included in a more serious offence. In other words, an “included” offence
is part of a more serious offence. The more serious offence must contain all the elements of the
less serious offence. There are several ways in which a lesser offence may be included in a more
serious
offence. First of all, the Code may specifically provide that certain offences are lesser and
included offences. For example, section 662(3) of the Code specifically includes manslaughter or
infanticide as a lesser and included offence of the offence of murder. Another way for an offence
to be an included offence is where the Code section
that creates the offence is worded in such a manner that it includes the commission of another,
less serious offence. For example, assault in section 265 is a lesser and included offence within
the offence of assault causing bodily harm created by section 267 of the Code:
267. Every person ... who, in committing an assault, (b) causes bodily harm to the
complainant, ...
In order for the accused to be convicted of assault causing bodily harm, the Crown
must prove beyond a reasonable doubt that she committed all the elements of an assault, as
defined in section 265. She must have intentionally applied force to another person without their
consent. Then, to prove assault causing bodily harm, the Crown must establish beyond a
reasonable doubt that she caused bodily harm to the victim while committing the assault. Bodily
harm has a very specific meaning within section 2of the Code, and if the Crown cannot prove
that the harm suffered by the victim meets that precise definition, then the accused may only be
convicted of the lesser and included offence of common assault. The latter carries a much less
serious penalty than does assault causing bodily harm. Finally, section 660 provides that the
offence of attempt is an included offence in
the complete offence that was charged. If, at trial, the Crown can prove all the ele-ments of an
attempt, but not that the offence was fully completed, then the accused may be convicted of an
attempt even though she was charged with the fully completed offence and not an attempt.
Section 606(4) of the Code provides that an accused may plead not guilty to the
offence with which she is charged, but guilty to any other offence arising out of the same
transaction, whether or not it is an included offence. This can only be done with the consent of
the prosecutor. For instance, using the charge of assault causing bodily harm as an example,
during plea discussions, an accused who has been charged with assault causing bodily harm may
offer to plead guilty to common assault. If the prosecutor agrees, the guilty plea to the lesser
included charge will go before the court.
Some Additional Criminal Offences
Many federal statutes create criminal offences, and some of those may carry a max-imum
imprisonment penalty of six months or less. Licensed paralegals may represent clients when they
are prosecuted summarily. Two statutes in particular, the Controlled Drugs and Substances Act7
and the Cannabis Act,8 while both containing major indict-able offences, also have some
summary offences. There is further discussion of this topic in Appendix A, which addresses the
scope of practice of paralegals