Canadian Criminal Law

(6843)
Class # 2

September 14, 2023

Criminal offence provisions,

Actus Reus (the prohibited act),
and causation
Interpreting Criminal Provisions
Interpreting Provisions
• Definitions in the Code

• the doctrine of “strict

construction”

• French/English versions

• the Common law (start with the

annotations in the Code)
Interpreting Criminal Provisions

Definitions – s. 2 of the Criminal Code (and

elsewhere)

Example: “firearm”
« arme à feu »
“firearm” means a barrelled weapon from which any
shot, bullet or other projectile can be discharged and
that is capable of causing serious bodily injury or death
to a person, and includes any frame or receiver of such
a barrelled weapon and anything that can be adapted
for use as a firearm;
Interpreting Criminal Provisions

Ignorance of the law is not an excuse

Section 19 of the Criminal Code:

Ignorance of the law by a person who commits
an offence is not an excuse for committing that
offence.
It is not a defence to say “I didn’t know that
was illegal.”
 Interpreting Criminal Provisions
English and French versions are equally
authoritative
See for example R. v. Quesnelle 2014 SCC 46:

278.1 For the purposes of sections 278.2 to 278.9,

“record” … does not include records made by persons
responsible for the investigation or prosecution of the
offence.

278.1 . . . N’est pas visé par la présente définition le

dossier qui est produit par un responsable de
l’enquête ou de la poursuite relativement à l’infraction
qui fait l’objet de la procédure.
 “Strict Construction”
A truly ambiguous provision should be given the reading most
favourable to the accused.

• this may include reading defences more broadly

• as well as offences more narrowly

• (see R. v. McIntosh [1995] 1 S.C.R. 686 interpreting the former self
defence provisions (one example)).
Elements of a Criminal
Offence

Actus Reus and Mens Rea

 Elements of a criminal offence

Every criminal offence has elements that must be

proven beyond a reasonable doubt

Actus reus – physical element(s),

act that must be performed,
or omission that is proscribed, and
consequences caused by act
 Elements of criminal offence
• Mens rea – mental element, fault requirement,
state of mind

• Crime is where mens rea and actus reus meet

• Crown must prove both the mens rea and actus

reus of the offence and that they coincided in
time (See R. v. Cooper [1993] 1 S.C.R. 146)

• No singular type of fault, each offence must be

examined separately

*we will be focussing on mens rea next class

Elements of offence: actus reus

• Acts and statutory conditions - act must

be act of accused, and the kind of act
must be described in the relevant
offence provision

• Act must be committed under

circumstances or conditions specified in
offence provision

• Act must be committed in Canada (s.

6.2) – see R. v. Greco (2001) 159 C.C.C.
(3d) 146 (Ont. C.A.) and Libman v. The
Queen [1985 2 S.C.R. 178
 Actus Reus
Voluntary or Willed acts
• act must be voluntary in sense that it is
willed act of accused, (e.g. person suffering
seizure who strikes another with his arm not
guilty of willed act)
• Unless physical motion is willful, it is not
accurate to characterize it is the act of
accused
“non insane automatism example” (e.g.
sleepwalking, reaction to medication, and
extreme intoxication (R. v. Sullivan and
Chan)
 Actus reus (cont)
Actus reus can include circumstances in which
offence must take place, even a mental state (as
distinct from mens rea): for example infanticide –
see R. v. Borowiec 2016 SCC 11:

233. A female person commits infanticide when

by a wilful act or omission she causes the death
of her newly-born child, if at the time of the act
or omission she is not fully recovered from the
effects of giving birth to the child and by reason
thereof or of the effect of lactation consequent
on the birth of the child her mind is then
disturbed.
 Possession
• Act of Possession – at times, part of actus reus for offence has
inherent mental element to it, common to many offences of
“possession”
• knowledge and control are key elements of possession offence
• Constructive joint possession – knowledge and control required
under s.4(3)(b) of the Criminal Code and s. 2 of Controlled Drugs
and Substances Act
s. 4(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his
personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is
occupied by him, for the use or benefit of himself or of another
person; and
(b) where one of two or more persons, with the knowledge and
consent of the rest, has anything in his custody or possession, it
shall be deemed to be in the custody and possession of each and
 Consent as element of the actus reus
• absence of consent by victim can be an important actus reus condition
required for proof of offence, eg., assault, s.265(1)(a) defined as non-
consensual application of force

• “Consent” is complex concept, animated by statute, e.g. s.265(3) definition

of consent, s.265(4) accused’s belief as to consent, and common law

• R. v. Ewanchuk, S.C.C. (1999) – actus reus of sexual assault requires proof

of touching, sexual nature of contact, absence of consent
• no defence of implied consent to sexual assault exists in Canada – to be
legally effective, consent must be freely given

• Lack of consent is part of the actus reus, while knowledge or recklessness as to

lack of consent is part of the mens rea

• R. v. Jobidon, S.C.C. [1991] 2 S.C.R. 714 – s.265 should be read in light of

common law limitations on consent, Code provisions have not ousted
common law limitations – victim’s consent to “fair fight” did not preclude
commission of offence of assault – See also R. v. Welch (1995) 101 C.C.C.
(3d) 216
 Consent for Sexual Offences
273.1 (1) “consent” means, for the purposes of sections 271, 272 and 273,
the voluntary agreement of the complainant to engage in the sexual activity
in question.

No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or 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 or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to

engage in the activity; or

(e) the complainant, having consented to engage in sexual activity,

expresses, by words or conduct, a lack of agreement to continue to
engage in the activity.
Consent as element of actus reus –
• Consent may not be given in advance to
sexual activity while unconscious: R. v. J.A.
2011 SCC 28

• Consent may be vitiated if accused abused a

position of trust, power, or authority over
the complainant. See s. 273(1)

• Consent may also be vitiated by fraud: s.

265(3)(C). See R. v. Cuerrier [1998] 2 S.C.R.
371 and R. v. Mabior 2012 SCC 47 and R. v.
Hutchison 2014 SCC 19
Elements of an offence
De Minimis – Accused’s actions too trivial to warrant criminal
liability. Discussed in R. v. Kubassek (2004) 188 C.C.C. (3d) 307
(Ont. C.A.) and R. v. Rumo 2013 ONSC 1856

Omissions – some offences do not require positive act by

accused, but failure or omission to act, eg., failure to stop at scene
of accident, s.252, failure to provide necessaries of life, s.215

To be guilty by omission:

1) The offence must contemplate guilt for omissions;

2) The accused must be under a legal duty to do something; and

3) The accused failed to fulfill that duty by his or her omissions.

See R. v. Browne (1997) 116 C.C.C. (3d) 183

 Omissions (cont.)

Certain Criminal Code sections create legal duties, a breach of

which can constitute the actus reus of a criminal offence. For
example:

Failure to stop after accident

 320.16 (1) Everyone commits an offence who operates a conveyance and
who at the time of operating the conveyance knows that, or is reckless as
to whether, the conveyance has been involved in an accident with a
person or another conveyance and who fails, without reasonable excuse,
to stop the conveyance, give their name and address and, if any person
has been injured or appears to require assistance, offer assistance.

See also sections 215 – 219 which set out other legal duties including to
provide the necessaries of life to your children or spouse or common law
partner where they are unable to do so, to exercise reasonable skill in
providing surgical or medical treatment, to comply with an undertaking
where omitting to do so may be dangerous to life, and to take reasonable
steps to avoid bodily harm when directing work
 Assault (example of offence provision)
Assault
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.

 What are the elements of this offence?

Causation
 Causation
A determination of causation of death or bodily
harm requires a finding that the accused caused
the death of another both in fact and in law.

If causation is not proved, accused cannot be

convicted of offence that requires act to produce
prohibited consequence
 i.e., accused charged with dangerous driving
causing death might be convicted of dangerous
driving only, but acquitted of dangerous driving
causing death if there is a doubt about causation
(hard to imagine with driving offences)
 Causation
Causation involves two-stage analysis:
(1) factual causation; and (2) legal or “imputable” causation.

Factual causation is concerned with an inquiry into how the victim came to his or
her death, in a medical, mechanical, or physical sense, and with the contribution of
the accused to that result.

Was the conduct of the accused a significant contributing cause of the

prohibited consequence? R. v. Smithers [1978 1 S.C.R. 506, R. v. Nette 2001
SCC 78

The legal causation inquiry concerns itself with the question of whether the
accused should be held criminally responsible in law for the death that occurred—
a moral reaction, a value-judgment as to moral responsibility—whether, in the
circumstances, a “blameable” cause ought to be identified. This is best understood
in terms of the concept of foreseeability – was the harm occasioned a reasonably
foreseeable consequence or was it unforeseeable?
PROBLEMS: Interpreting offence provisions
Ex. # 1Criminal Negligence
S. 219 (1) Every one is criminally negligent
who
(a) in doing anything, or
(b) in omitting to do anything that it is his
duty to do,
shows wanton or reckless disregard for the
lives or safety of other persons.
Definition of duty
(2) For the purposes of this
section, duty means a duty imposed by law.
 Criminal negligence must cause death
or bodily harm
Causing death by criminal negligence
220 Every person who by criminal negligence causes death to
another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence,
to imprisonment for life and to a minimum punishment of
imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Causing bodily harm by criminal negligence

221 Every one who by criminal negligence causes bodily
harm to another person is guilty of an indictable offence and
liable to imprisonment for a term not exceeding ten years
Is criminal negligence made out?
 Accused works at an automobile manufacturing plant
where high powered air guns are used to clean debris
from newly installed engines.

 One day, in what he intends to be a prank, not thinking

it would cause any injury, he pulls down the pants of
another co-worker and shoots air from the gun into his
colleague’s rectum.

 The force of the air tears the lining of the bowel,

causing severe bleeding that ultimately results in his
colleague’s death.

 The accused is charged with criminal negligence

causing death
 Criminal negligence example, cont.
Determine
1. what is the impugned act (or is there an omission
of a legal duty to act)?

2. Does it show wanton and reckless disregard for

the lives or safety of another?

 Courts determine this in reference to whether the

act is a MARKED AND SUBSTANTIAL
DEPARTURE FROM what a reasonable person
would do in these circumstances

3. Did it cause death or bodily harm?

Ex. #2 Extortion
s. 346 (1) Every one commits extortion who,
without reasonable justification or excuse and
with intent to obtain anything, by threats,
accusations, menaces or violence induces or
attempts to induce any person, whether or not
he is the person threatened, accused or
menaced or to whom violence is shown, to do
anything or cause anything to be done.

(2) A threat to institute civil proceedings is not a threat

for the purposes of this section.
 Elements of extortion
The offence of extortion is committed when a person:
 with intent to obtain anything
(without reasonable justification or excuse)

 by threats, accusations, menaces or violence

 induces or attempts to induce any person, whether or

not he is actually threatened or menaced

 to do anything or cause anything to be done.

Is extortion made out on these
facts?
 A buys a used car from B, paying cash

 After the sale, B realizes the car is worth more than

he thought, believes that A took advantage of her, and
approaches A to ask for more $

 A refuses, telling B “a contract is a contract, a bargain

is a bargain.”

 B threatens to sue unless A pays an additional $3500.

 What if you replace “B threatens to sue A” with “B

threatens to stab A”?
Problems: causation
s. 249(4) dangerous operation
causing death
320.13 (1) Everyone commits an offence who operates a conveyance
in a manner that, having regard to all of the circumstances, is
dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a

manner that, having regard to all of the circumstances, is dangerous
to the public and, as a result, causes bodily harm to another person.

(3) Everyone commits an offence who operates a conveyance in a

manner that, having regard to all of the circumstances, is dangerous
to the public and, as a result, causes the death of another person.
 Ex. 1. Accused is charged with dangerous operation
(of a conveyance) causing death (s. 320.13)

 Paul and Gerald decide to steal a motorcycle. Paul and Gerald drive to
Leonard’s house and Paul takes Leonard’s motorcycle for a test drive,
while Gerald hides in Paul’s car, parked on Leonard’s driveway.

 Paul drives away with the motorcycle and shortly after Gerald drives away
in Paul’s car.

 Realizing he has been duped, Leonard jumps in his car to chase Gerald.
They drive at very high speeds, weaving in and out of traffic, and running
stop signs. Both speed through an intersection on a red light without
stopping or looking. Gerald barely avoids colliding with a car there but
Leonard hits one head on, killing him and the other vehicle’s driver.

 Gerald is charged with two counts of dangerous driving causing death. Is

this offence made out?
 Elements of offence
1. was the accused driving in a manner that was dangerous
to the public, in all the circumstances?

2. was the driving a marked departure from that of a

reasonable person in the accused’s circumstances?

3. Was the dangerous driving a significant contributing cause

of Leonard’s (and the other motorist’s) death?
 Ex. 2.: assault causing bodily harm
Assault
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.

Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years or an offence punishable on summary conviction and
liable to imprisonment for a term not exceeding eighteen months.
 Ex. 2. – accused is charged with
assault causing bodily harm
 Rachel and Sarah are friends.
 One day when they were walking home from work Rachel saw a large
puddle on the side of the road and thought it would be funny to surprise
Sarah by pushing her off the sidewalk into the puddle.

 Sarah fell on the ground on the road and as she was getting up a large
tree branch broke off overhead, landing on her head, causing a
concussion.

 The branch landed entirely on the road and would not have hit Sarah if
she had been standing on walking on the sidewalk.

 Is the offence of assault causing bodily harm made out?

 ABH example, cont.
1. Was there an intentional application of force on another person?

2. Was it without consent?

3. Did it cause bodily harm?

• Was it a significant contributing cause in a factual/mechanical sense?

• Was the harm occasioned a reasonably foreseeable consequence of the
impugned act?

 What if we were to change the facts to make it a very busy street, and
instead of a branch falling and hitting her head, she is struck by a car
and injured?