Criminal law course outline
Content
Suzanne Amiel Winter 2010
Criminal Law Prof. Payam Akhavan
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CRIMINAL LAW SUMMARY
PART I. Introduction ........................................................................................................................................ 5
Why Do We Punish Criminals? ................................................................................................................................. 5
Jeremy Bentham, “An Introduction to the Principles of Morals and Legislation” ............................................................ 6
HLA Hart, The Concept of Law, “Varieties of Rule-Scepticism” ................................................................................................ 6
Michel Foucault, Discipline and Punish, I. The Body of the Condemned .............................................................................. 6
Immanuel Kant, The Metaphysics of Morals, “On the Right to Punish and Grant Clemency” ..................................... 6
Jonathan Rosen, “Grace, Punishment, and the Torah” .................................................................................................................. 7
Why Do People Commit Crimes? ............................................................................................................................. 8
Mathews & Springen, “Secrets of a Serial Killer” ............................................................................................................................ 8
Bernadette McSherry, “Men Behaving Badly: Current Issues in Provocation, Automatism, Mental Impairment
and Criminal Responsibility” ................................................................................................................................................................... 8
Soreff & Bazemore, “Examining Phrenology” ................................................................................................................................... 8
Jeffrey Rosen, “The Brain on the Stand” .............................................................................................................................................. 9
PART II. Basic Principles and Considerations ........................................................................................ 9
Constraints on the Power of the State to Punish: The Principle of Legality ............................................ 9
Codification of the Criminal Law ....................................................................................................................................... 10
Frey v. Fedoruk (1950 SCC) ................................................................................................................................................................... 10
Jobidon v. The Queen (1991 SCC) ....................................................................................................................................................... 10
Amato v. the Queen (1982 SCC) ........................................................................................................................................................... 11
Retroactivity .............................................................................................................................................................................. 11
Payam Akhavan, “The Origin and Evolution of Crimes Against Humanity” ..................................................................... 11
Stephanie Palmer, “Rape in Marriage and the European Convention on Human Rights: CR v. UK and SW v.
UK” .................................................................................................................................................................................................................... 12
Certainty & Specificity v. Vagueness & Overbreadth ................................................................................................ 12
R. v. Heywood (1994 SCC, Cory J.) ...................................................................................................................................................... 13
R. v. Nova Scotia Pharmaceutical Society (1992 SCC) ............................................................................................................... 13
Canadian Foundation for Children, Youth and the Law v. Canada (A.G.) (2004 SCC) ................................................. 13
What Type of Conduct Should the State Punish? The Harm Principle .................................................... 14
Case Study #1: Sexuality ....................................................................................................................................................... 14
R. v. Butler (1992 SCC) ............................................................................................................................................................................. 14
Cossman & Bell, Bad Attitudes on Trial ............................................................................................................................................ 15
R. v. Sharpe (2001 SCC) ........................................................................................................................................................................... 16
R. v. Labaye (2005 SCC) ........................................................................................................................................................................... 16
Case Study #2: Marijuana ..................................................................................................................................................... 17
R. v. Malmo-Levine & Caine (2003 SCC)........................................................................................................................................... 17
Case Study #3: Hate Speech ................................................................................................................................................ 18
R. v. Keegstra (1990 SCC) ....................................................................................................................................................................... 18
R. v. Zundel (1992 SCC) ........................................................................................................................................................................... 18
Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future Injustice?” .................. 19
PART III. The Material Element of the Crime: Actus Reus ................................................................ 19
Acts, Omissions, and Status .................................................................................................................................... 20
Voluntariness............................................................................................................................................................................. 20
R. v. Ruzic (2001 SCC, LeBel J.) ............................................................................................................................................................. 20
Contemporaneity ..................................................................................................................................................................... 20
Fagan v. Commissioner of Metropolitan Police (1969 England Court of Appeal) ......................................................... 20
R. v. Miller (1982 England Court of Appeal) .................................................................................................................................. 21
R. v. Cooper (1993 SCC) ........................................................................................................................................................................... 22
Acts v. Omissions ..................................................................................................................................................................... 22
Moore v. The Queen (1979 SCC) .......................................................................................................................................................... 22
R. v. Thornton (1991 OCA) ..................................................................................................................................................................... 23
Suzanne Amiel Winter 2010
Criminal Law Prof. Payam Akhavan
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Crimes of Status ........................................................................................................................................................................ 24
R. v. Terrence (1983 SCC) ....................................................................................................................................................................... 24
Causation ...................................................................................................................................................................... 24
Smithers v. the Queen (1978 SCC) ...................................................................................................................................................... 25
R. v. Cribbin (1994 OCA) ......................................................................................................................................................................... 25
R. v. Nette (2001 SCC) .............................................................................................................................................................................. 26
Intervening Causes .................................................................................................................................................................. 26
R. v. Menezes (2002 Ont. Sup. Ct. of Justice) .................................................................................................................................. 27
R. v. Reid and Stratton (2003 NSCA) ................................................................................................................................................. 27
PART IV. The Mental Element of the Crime: Mens Rea ...................................................................... 28
The Presumption of Innocence ............................................................................................................................. 28
Heikki Pihlajamaki, “‘Swimming the Witch, Pricking for the Devil’s Mark’: Ordeals in the Early Modern
Witchcraft Trials” ....................................................................................................................................................................................... 28
Woolmington v. D.P.P. (1935 House of Lords) .............................................................................................................................. 28
Constitutional Considerations of Fault .............................................................................................................. 29
R. v. Durham ................................................................................................................................................................................................. 29
R. v. Finta (1994 SCC) ............................................................................................................................................................................... 30
Prosecutor v. Tadic, Sentencing Judgment ..................................................................................................................................... 30
The Hierarchy of Culpable States of Mind ......................................................................................................... 31
Intention and Knowledge........................................................................................................................................ 31
Intent v. Motive ......................................................................................................................................................................... 31
R. v. Lewis (1979 SCC) ............................................................................................................................................................................. 32
Special v. General Intent ....................................................................................................................................................... 32
R. v. Steane (1947 England Court of Criminal Appeal) .............................................................................................................. 33
R. v. Hibbert (1995 SCC).......................................................................................................................................................................... 33
R. v. Buzzanga and Durocher (1979 OCA) ....................................................................................................................................... 34
R. v. Theroux (1993 SCC) ........................................................................................................................................................................ 35
Prosecutor v. Tadic, paras. 238-272 of Main Judgment ............................................................................................................ 35
Prosecutor v. Jelisic ................................................................................................................................................................................... 35
Recklessness and Wilful Blindness ..................................................................................................................... 36
Recklessness .............................................................................................................................................................................. 36
R. v. Cooper (1993 SCC) ........................................................................................................................................................................... 36
Wilful Blindness ....................................................................................................................................................................... 37
R. v. Sansregret (1985 SCC) ................................................................................................................................................................... 37
R. v. Duong (1998 OCA) ........................................................................................................................................................................... 38
Prosecutor v. Blaskic ................................................................................................................................................................................ 38
Jenny S. Martinez, “Understanding Mens Rea in Command Responsibility” ................................................................... 38
Criminal Negligence .................................................................................................................................................. 38
R. v. Tutton and Tutton (1989 SCC) ................................................................................................................................................... 39
R. v. Gingrich and McLean (1991 OCA) ............................................................................................................................................. 40
R. v. Hundal (1993 SCC) .......................................................................................................................................................................... 40
R. v. Creighton (1993 SCC) ..................................................................................................................................................................... 41
Strict Liability and Absolute Liability ................................................................................................................. 42
Beaver v. the Queen (1957 SCC) .......................................................................................................................................................... 42
R. v. Pierce Fisheries Ltd. (1970 SCC) ............................................................................................................................................... 43
R. v. Wholesale Travel Group (1991 SCC) ....................................................................................................................................... 43
R. v. City of Sault Ste. Marie (1978 SCC) ........................................................................................................................................... 44
Reference re Section 94(2) of the B.C. Motor Vehicle Act (1985 SCC) ............................................................................... 45
R. v. Pontes (1995 SCC) ........................................................................................................................................................................... 45
R. v. Transport Robert (2003 SCC) ..................................................................................................................................................... 46
R. v. Wholesale Travel Group Inc. (1991 SCC) ............................................................................................................................... 46
Don Stuart, “R. v. Transport Robert: is the Sault Ste. Marie Approach to Regulatory Offences About to
Disappear?” ................................................................................................................................................................................................... 47
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Criminal Law Prof. Payam Akhavan
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PART V. Specific Crimes: Homicide and Sexual Assault ................................................................... 47
Homicide ....................................................................................................................................................................... 47
Second-Degree Murder ......................................................................................................................................................... 47
R. v. Simpson (1981 OCA) ....................................................................................................................................................................... 48
R. v. Cooper (1993 SCC) ........................................................................................................................................................................... 48
R. v. Fontaine (2002 MCA) ..................................................................................................................................................................... 49
R. v. Tennant and Naccarato (1975 OCA) ........................................................................................................................................ 49
R. v. Vasil (1981 SCC) – n.b. pre-Charter .......................................................................................................................................... 50
R. v. Vaillancourt (1987 SCC) ................................................................................................................................................................ 50
R. v. Martineau (1990 SCC) .................................................................................................................................................................... 51
First-Degree Murder ............................................................................................................................................................... 52
R. v. Widdifield (1961 OSC) ................................................................................................................................................................... 53
R. v. Nygaard ................................................................................................................................................................................................. 54
R. v. Collins (1989 OCA) .......................................................................................................................................................................... 54
R. v. Russell (2001 SCC) ........................................................................................................................................................................... 55
R. v. Arkell (1990 SCC) ............................................................................................................................................................................. 55
R. v. Luxton (1990 SCC) ........................................................................................................................................................................... 56
“Criminal law and cases of HIV transmission or exposure” .................................................................................................... 56
R. v. Sullivan (1991 SCC) ......................................................................................................................................................................... 56
Margaret Somerville, “New Life Matters” ........................................................................................................................................ 56
Joyce Arthur, “Fetal Homicide Laws Are Not the Answer” ...................................................................................................... 56
Manslaughter ............................................................................................................................................................................. 57
R. v. Creighton (1993 SCC) ..................................................................................................................................................................... 57
Sexual Assault ............................................................................................................................................................. 58
Margaret J. McGregor et al., “Why don’t more women report sexual assault to the police?” ................................... 58
What Is Sexual Assault? ......................................................................................................................................................... 58
R. v. Chase (1987 SCC) ............................................................................................................................................................................. 59
Mistake of Fact as a Defence to Sexual Assault ............................................................................................................ 59
Pappajohn v. The Queen (1980 SCC) ................................................................................................................................................. 59
Osolin v. The Queen (1993 SCC) .......................................................................................................................................................... 60
Sansregret v. The Queen (1985 SCC) ................................................................................................................................................. 61
The Rape Shield Laws ............................................................................................................................................................ 61
R. v. Seaboyer (1992 SCC) ...................................................................................................................................................................... 61
R. v. Darrach ................................................................................................................................................................................................. 62
R. v. Ewanchuk (1999 SCC) .................................................................................................................................................................... 63
Sexual Assault in International Perspective ................................................................................................................. 64
Prosecutor v. Kunarac (ICTY) ............................................................................................................................................................... 64
International Committee of the Red Cross, “Congo Kinshasa: The Hidden Battlefield” video................................. 65
Institute for War and Peace Reporting, “International Justice Failing Rape Victims” ................................................. 65
PART VI. Forms of Participation ............................................................................................................... 65
Participation ................................................................................................................................................................ 65
s. 21(1)(a) – Actual Commission ....................................................................................................................................... 66
R. v. Thatcher (1987 SCC) ....................................................................................................................................................................... 66
R. v. H.(L.I.) (2004 MCA).......................................................................................................................................................................... 67
R. v. Berryman (1990 BCCA) ................................................................................................................................................................. 67
s. 21(1)(b) & (c) – Aiding and Abetting .......................................................................................................................... 68
R. v. Kulbacki (1966 MCA) ...................................................................................................................................................................... 68
Dunlop and Sylvester v. The Queen (1979 SCC) ........................................................................................................................... 68
s. 21(2) – Common Intention .............................................................................................................................................. 69
R. v. Kirkness (1990 SCC, Wilson J.) ................................................................................................................................................... 69
R. v. Logan (1990 SCC) ............................................................................................................................................................................. 69
Prosecutor v. Tadic, paras. 185-220 .................................................................................................................................................. 70
Jens David Ohlin, “Group Think: The Law of Conspiracy and Collective Reason” ......................................................... 70
s. 22(1) – Counselling ............................................................................................................................................................. 71
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Criminal Law Prof. Payam Akhavan
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R. v. Lacoursiere (2002 QCA) ................................................................................................................................................................ 71
Accessory After the Fact ....................................................................................................................................................... 72
R. v. Camponi (1993 BCCA) ................................................................................................................................................................... 72
Inchoate Crimes .......................................................................................................................................................... 72
1. Attempt ................................................................................................................................................................................... 73
R. v. Cline (1956 OCA) .............................................................................................................................................................................. 73
Deutsch v. The Queen (1986 SCC) ...................................................................................................................................................... 73
R. v. Ancio (1984 SCC) .............................................................................................................................................................................. 74
R. v. Logan (1980 SCC) ............................................................................................................................................................................. 74
United States v. Dynar (1997 SCC) ..................................................................................................................................................... 74
2. Incitement .............................................................................................................................................................................. 75
Ford v. The Queen (2000 OCA) ............................................................................................................................................................ 76
R. v. Janeteas (2003 OCA) ....................................................................................................................................................................... 76
R. v. Hamilton (2003 ACA) ..................................................................................................................................................................... 77
R. v. Gonzague (1983 OCA) .................................................................................................................................................................... 77
Mugesera v. Canada (Minister of Citizenship and Immigration) (2005 SCC) ................................................................. 78
3. Conspiracy ............................................................................................................................................................................. 79
United States v. Dynar (1997 SCC) ..................................................................................................................................................... 79
Steven J. Schulhofer, “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the
Criminal Law” .............................................................................................................................................................................................. 79
Corporate Liability .................................................................................................................................................... 80
“The Corporation: Monstrous Obligations” .................................................................................................................................... 80
The Old Common Law of “Directing Minds” ................................................................................................................. 80
Canadian Dredge and Dock Co. v. The Queen (1985 SCC) ....................................................................................................... 80
R. v. Waterloo Mercury Sales Ltd. (1974 Alberta District Ct.) ................................................................................................ 81
R. v. Safety-Kleen Canada Inc. (1997 OCA) ..................................................................................................................................... 81
The New Corporate Liability ............................................................................................................................................... 81
T. Archibald, K. Jull, and K. Roach, “The Changed Face of Corporate Criminal Liability” ........................................... 82
Sanford Lewis, “The Bhopal Chemical Disaster: Twenty Years Without Justice” .......................................................... 83
PART VII. Grounds for Exclusion of Criminal Liability ..................................................................... 83
Intoxication .................................................................................................................................................................. 84
Director of Public Prosecution v. Beard (1920 House of Lords) ........................................................................................... 84
R. v. Robinson (1996 SCC) ...................................................................................................................................................................... 85
Lemky v. The Queen (1996 SCC) ......................................................................................................................................................... 86
R. v. Seymour (1996 SCC) ....................................................................................................................................................................... 86
R. v. Penno (1990 SCC) ............................................................................................................................................................................ 86
R. v. George (1960 SCC) ........................................................................................................................................................................... 86
Bernard v. The Queen (1988 SCC) ...................................................................................................................................................... 86
R. v. Daviault (1994 SCC) ........................................................................................................................................................................ 87
Self-Defence ................................................................................................................................................................. 89
Introduction ............................................................................................................................................................................... 89
People v. Goetz (1986 New York Court of Appeals) ................................................................................................................... 89
Section 34(1) & 34(2) ............................................................................................................................................................ 90
R. v. Bogue (1976 OCA)............................................................................................................................................................................ 90
R. v. Pawliuk (2001 BCCA) ..................................................................................................................................................................... 91
Gary T. Trotter, “R. v. Pawliuk: Further Efforts to Clarify Self-Defence” ........................................................................... 92
The Air of Reality Test for Self-Defence.......................................................................................................................... 92
R. v. Cinous (2002 SCC) ........................................................................................................................................................................... 92
Some Sidenotes on Self-Defence ........................................................................................................................................ 93
Reilly v. The Queen (1984 SCC) ........................................................................................................................................................... 93
R. v. Faid (1983 SCC) ................................................................................................................................................................................. 94
Self-Defence and Domestic Violence ................................................................................................................................ 94
R. v. Lavallee (1990 SCC) ........................................................................................................................................................................ 94
R. v. Malott (1998 SCC) ............................................................................................................................................................................ 95
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Criminal Law Prof. Payam Akhavan
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R. v. Pétel (1994 SCC) ............................................................................................................................................................................... 95
Kathleen M. Heide, “Why Kids Kill Parents” ................................................................................................................................... 96
Duress ............................................................................................................................................................................ 96
Hibbert v. The Queen (1995 SCC) ....................................................................................................................................................... 97
Paquette v. The Queen (1976 SCC) ..................................................................................................................................................... 97
R. v. Ruzic (2001 SCC) .............................................................................................................................................................................. 98
Payam Akhavan, “Should Duress Apply to All Crimes?” ........................................................................................................... 99
Prosecutor v. Erdemovic (1997 ICTY) ........................................................................................................................................... 100
Necessity ..................................................................................................................................................................... 101
Morgentaler v. The Queen (1975 SCC) .......................................................................................................................................... 101
R. v. Morgentaler et al. (1985 OCA) ................................................................................................................................................. 102
Perka v. The Queen (1984 SCC) ........................................................................................................................................................ 102
Latimer v. The Queen (2001 SCC) .................................................................................................................................................... 103
Provocation ................................................................................................................................................................ 103
R. v. Hill (1986 SCC) ............................................................................................................................................................................... 104
R. v. Thibert (1996 SCC) ....................................................................................................................................................................... 105
Provocation and Intent ........................................................................................................................................................ 105
R. v. Campbell (1977 OCA, Martin J.A.) .......................................................................................................................................... 105
R. v. Cameron (1992 OCA, Doherty J.A.) ........................................................................................................................................ 106
R. v. Parent (2001 SCC, McLachlin C.J.C) ....................................................................................................................................... 106
Critique of Provocation ....................................................................................................................................................... 106
Payam Akhavan, “The Privileging of Anger in Canadian Criminal Law: Should the Defence of Provocation be
Abolished?” ................................................................................................................................................................................................ 106
Matthew A. Goldstein, “The biological roots of heat-of-passion crimes and honor killings” ................................ 108
Response: Mohammed I. Khalili, “A Comment on Heat-of-Passion Crimes, Honor Killings, and Islam” .......... 108
Marianne Moore, “Is it really so different for girls? Challenging misconceptions about young offenders and
aggression” ................................................................................................................................................................................................. 108
PART I. INTRODUCTION
Criminal law = complex process starting with the decision of a legislature to define something as prohibited
Criminal law in Canada is enacted by the federal Parliament under s. 91(27) CA1867
Criminal laws try to prevent harm coming to people or property; they also proclaim standards of socially
acceptable behaviour
Criminal laws are designed primarily to denounce and punish inherently wrongful behaviour and to deter
people from committing crimes or engaging in behaviour that presents a serious risk of harm
The Charter pervades the whole of the criminal law, especially s. 7
WHY DO WE PUNISH CRIMINALS?
Why do we bother having police, huge institutions for criminal trials, penitentiaries to hold people
convicted?
Reason #1: Deterrence
We punish criminals because we do not want them or others to commit crimes in the future
o Utilitarian logic (instrumental reasoning)
This assumes that all people are rational actors who make rational choices, rather than emotional choices
Reason for the rise of utilitarian theory in criminal law: people were beginning to resist the physical
punishment of criminals (see Foucault)
o The utilitarians saw punishment as just as evil as the crime – it is an act of vengeance; so they sought to
modernize the approach by making it a cost-benefit analysis for the social good
o Movement away from retribution towards deterrence
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Criminal Law Prof. Payam Akhavan
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Jeremy Bentham, “An Introduction to the Principles of Morals and Legislation”
The Properties of Useful Punishment
Quantity of punishment must not be less than the profit of the offence because then crime will still pay;
but it shouldn’t be more, either (because then it’s just being thrown away, and sometimes requires resources)
o The point of punishment is that it be efficient
So punishments should be variable (in time, quantity); should also be “equable” – i.e. variable so that they
punish all people in the right amount
N.B. taken to its extremes, however, deterrence theory can likely justify anything – for example, the guilt of
the accused would be irrelevant as long as their punishment discouraged future criminality
o This is the consequence of the lack of moral component to this theory
Critique: is punishment really what deters us from committing crimes? Or is rather habitual lawfulness –
we do not commit harm to others because we feel it is wrong to do so, not because we might be punished
HLA Hart, The Concept of Law, “Varieties of Rule-Scepticism”
In every legal system, large space is left to the discretion of courts in rendering initially vague standards
determinate this does not mean that rules do not exist
In some spheres of conduct, obvious that people conduct their behaviour by reference to rules, and
would justify their behaviour/criticize others by reference to that rule (ex. stopping at a red light)
Sceptics often believe that rules do not exist simply because they are not perfect this view is too absolutist
Most judicial decisions (which are what sceptics say are the true source of rules, if any exist), are reached by
the judge’s genuine effort to conform with rules written
Is this the case with criminal law? We obey it habitually and criticize others when they do not.
Two types of deterrence:
o A. Individual: a person will not want to suffer punishment again, so they will hopefully not commit
anymore crimes
o B. Societal: basically, are making examples of others
Societal deterrence used to be achieved by means of the spectacle of punishment occasioned on the
criminal – nowadays, punishment is totally invisible (all we see is the trial)
Michel Foucault, Discipline and Punish, I . The Body of the Condemned
Description of the public torture of a murderer – incredibly bloody and gruesome (1757)
Description of a prisoner’s timetable – incredibly regimented: rise in the morning, wash, eat, work for nine
hours, wash, eat sleep (every minute accounted for) (1837)
Two different penal styles – disappearance of torture as a public spectacle due to a process of
humanization? Or because of other reasons?
Reason #2: Moral Blameworthiness
We punish criminals for committing crimes because they have done something morally blameworthy and
society must punish this conduct on principle
The intent/state of mind of the criminal is key here – have they intended/chosen to do something that invites
societal disapprobation? If so, they must be punished. This is a moral theory.
o N.B. In classical criminal law, intention (mens rea) was secondary – the act (actus reus) was primary
o Now we focus much more on the guilty mind as a justification for punishment
o We are assumed to choose how to act – if we choose wrongly, we are morally responsible
Immanuel Kant, The Metaphysics of Morals, “On the Right to Punish and Grant Clemency”
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Criminal Law Prof. Payam Akhavan
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Right to punish is the ruler’s right against a subject to inflict pain upon him because he committed a crime
Punishment by the state must always be inflicted on a criminal because he has committed a crime –
never as a means to promote some other good for the criminal themselves or society
o This would be treating humans as means rather than ends in themselves
o Criminal must be previously found punishable before any thought can be given to drawing good out of
his punishment for himself or society
How much should people be punished? Governed by the principle of equality punishment must fit the
crime exactly (strict law of retribution)
o So it must vary according to the crime and the particular offender
o Ex. The punishment for murder must be death, because only then is there a likeness between the crime
and the punishment
No one can submit to punishment willingly – they submit to punishment because they have willingly
perpetrated a punishable act
Jonathan Rosen, “Grace, Punishment, and the Torah”
All the major religions emphasize that mercy is better than revenge – but Judaism also sees value in justice
that is what an “eye for an eye” has been interpreted as meaning by the rabbis
o Punishment should not be disproportionate to the crime
This sounds a lot like retribution – i.e. we punish criminals out of a spirit of revenge; but retribution was
also a means of social control (see immediately below)
Reason #3: Punishment Is an Instrument of Control
Punishment is a means of maintaining social order
Modern Marvels video – Early Execution
Conflict in society threatens to destabilize it – so codes of conduct are developed
The contravention of these codes resulted in a need for punishment
Ancient Rome developed the idea of making capital punishment a public spectacle or popular entertainment
What is wrong with harsh punishment if it achieves the intended result of maintaining social order?
o Ex. Singapore canes people for vandalism; as a result, there is no vandalism in Singapore
Reason #4: Incapacitation of Criminals
Punishment (especially imprisonment) has the effect of removing dangerous people from society
Reason #5: Rehabilitation of Criminals
Does our system of justice really rehabilitate criminals and make them see the error of their ways?
Unlikely. Most likely makes them worse than when they went in
Note: The Role of State v. the Role of Community
In our society, formal institutions and norms retrain criminal behaviour; in other cultures, this is done by
being a member of a group
o Ex. Aboriginal sentencing circles
The State is impersonal and its response to crime is not based on emotion or notions of kinship
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Criminal Law Prof. Payam Akhavan
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WHY DO PEOPLE COMMIT CRIMES?
The criminal law assumes the autonomy of the individual – we each have the power to make choices for
ourselves. This concept of choice is central to the criminal law.
o The criminal law assumes that people commit crimes because they have chosen to do so
o If someone chooses to commit a crime, then they are morally blameworthy for making that poor choice
There are defences in law based on automatism and mental disorder – because these people cannot truly
be said to have made a choice to act in a criminal fashion therefore, they are not morally blameworthy
enough to punish
o N.B. Just because you are a psychopath and cannot distinguish between right and wrong doesn‘t mean
you do not exercise moral choice: you may not think it‘s wrong to kill, but you still understand the
consequences of your actions
Mathews & Springen, “Secrets of a Serial Killer”
Jeffrey Dahmer = the average serial killer: white, male, middle-aged, totally rational but totally insane
o Does society have an adequate way of handling people like Dahmer?
Insanity defence is problematic – is generally a contest of psychiatrists
o First allowed in 1843 McNaughton case: established that guilt implies the ability to distinguish right
from wrong
o Has been broadened to the control standard: was criminal able to stop himself?
Insanity plea is a defence of last resort, but plays an important role in the morality involved in criminal law
Anger can sometimes be so intense as to amount to automatism; the perpetrator can no longer have been said to
have made a meaningful choice to act in a criminal fashion. This is problematic, because our cultural
assumptions about anger mean that men often benefit from this defence while women do not:
Bernadette McSherry, “Men Behaving Badly: Current Issues in Provocation, Automatism, Mental
Impairment and Criminal Responsibility”
Female victims of homicide are most likely to have been killed by a male intimate partner or ex-partner
(often with a history of physical abuse)
o In these cases that go to trial, provocation is one of the most commonly argued defences
Provocation
o Recognizes that an individual may be pushed to lose self-control
o Defence exists to distinguish between intentional killings and unpremeditated murder committed in an
extreme emotional state
o But why should killing in anger be tolerated? Involves cultural assumptions that unruly women are
somehow blameworthy or partially deserving of their own deaths
Automatism recognizes there may be a lack of will involved in a murder
Mental Impairment (ex. depression) focus is on whether the individual’s ability to reason was impaired
by their disease of the mind, such that they did not know the nature of the act or that it was wrong
Should men be excused for homicide based on the foregoing defences of mental states?
Akhavan on McSherry:
The assumption in the defence of provocation is that the men lost control and therefore are less blameworthy
for the acts they perpetrated in that state
Provocation is generally not a full defence, but a factor in mitigating punishment
Is the fundamental assumption of the criminal law (that how humans act is a product of free choice) erroneous?
Do the chemical structures of our brains dictate our actions?
Soreff & Bazemore, “Examining Phrenology”
Phrenology was a pseudoscience that purported to infer a person’s personality traits from the shape of their
head – was eventually recognized to be quack medicine
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Criminal Law Prof. Payam Akhavan
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But has influenced current neurology and neuroscience; pioneered the subsequently confirmed idea that
specific areas in the brain have specific functions (i.e. that the human brain controls human behaviour)
Also suggested the notion that you could determine criminality on the basis of physical characteristics
Jeffrey Rosen, “The Brain on the Stand”
Should criminals be absolved of their crimes because of brain defects (ex. a cyst pressing on the place that
allows them to distinguish right from wrong, trauma causing them to act differently)?
o Should judges and juries be defining the normal/properly working brain?
o Isn’t all behaviour caused by our brains? Wouldn’t this mean all behaviour could potentially be
excused?
Neuroscience is having its biggest effect in death-penalty litigation – if not at trial, in sentencing
submission of brain scans to show defendant couldn’t help themselves because of neurological impairment
This line of thinking could radically alter the way we think about criminal law – perhaps we should
abandon the idea of retribution (the idea that people should be punished because they freely chose to
act immorally)
Lie detectors could become way more accurate, and thus more intrusive: may raise questions of self-
incrimination and privacy, challenge freedom of thought
May be able to detect who is predisposed to violence; may be able to screen jurors for bias
o People may be required to have their brains scanned – if show a troubling proclivity, may be seen as a
defect that can be fixed
But a lightbulb going off in your brain doesn’t mean it’s related to a particular output – these developments
may not be best used to predict future criminality/behaviour
Neuroscience points two ways: absolve individuals of responsibility for acts they‟ve committed, and
place individuals in jeopardy for acts they haven‟t yet committed, but might someday
The idea of holding people accountable for their predispositions rather than their actions challenges the
central idea of Western criminal law: you are responsible for what you do, not what you think
We are going to have to make a decision about the skull as a privacy domain
Akhavan on Rosen
If it becomes possible to determine someone‘s propensity to criminal behaviour by a physical examination
(ex. a brain scan), what should the State do with that information?
Nothing: crime is the price we have to pay for living in a free society
o N.B. the safest countries are ruled by totalitarian governments
o It is easy to reject this invasion of privacy in a society such as Canada, where we are relatively safe
Would we give the same answer if we lived in a crime-ridden and dangerous place?
Use it to protect society: maybe people do not actually exercise moral choice and their conduct is dictated by
their brain chemistry
These questions require us to think about the balance between individual liberties (of the general population,
including criminals) and the rights of potential victims
o We believe people should not be wrongfully convicted, or pre-emptively convicted
o But we also believe people should not be harmed by criminals, and have a right to safety
PART II. BASIC PRINCIPLES AND CONSIDERATIONS
CONSTRAINTS ON THE POWER OF THE STATE TO PUNISH: THE PRINCIPLE OF LEGALITY
(NULLEM CRIMEN SINE LEGE)
The Principle of Legality
We confer on the State the power to punish people in order to enforce the criminal law
The counter-balance to this power is there should be no crime without a law proscribing the criminal act
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o Principle of legality = nullem crimen sine lege = no crime without law
The principle of legality covers retroactivity (cannot create a criminal law that criminalizes behaviour that
was done when there was no law against it) and specificity (cannot create a criminal law that is vague or
overly broad)
The basic principle is that of notice: have to tell people what is not legal so they can avoid doing it
o But is the principle of notice largely a fiction?
o People are presumed to know the law; ignorance of the law is never an excuse for criminal action
Kafka, The Trial
K. is arrested in the morning in his home; his arresting officers won‘t tell him what agency they are from,
why he is being held, or anything at all except that he‘s under arrest
The guards say that their office does not arrest innocent people, so there mustn‘t be a mistake; their office
guards guilty people until trial that is the law
o K. says he doesn’t know that law
o Guards reply that that is too bad; and ask him how he can proclaim his innocence if he doesn’t
know the law?
Codification of the Criminal Law
The principle of legality is a relatively new development.
Our criminal law in Canada is codified (process beginning in 1867) – clarified and updated the law with a
view to greater serving the principle of legality
CML offences were abolished in 1953; CML defences are still available
s. 9 CCC Notwithstanding anything in this Act or any other Act, no person shall be convicted […]
(a) of an offence at common law
s. 8(3)
CCC
Every rule and principle of the common law that renders any circumstance a justification or excuse
for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence
under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with
this Act or any other Act of Parliament.
No common law offences:
Frey v. Fedoruk (1950 SCC)
Issue: Should judges declare acts to be crimes (ex. peeping tom)? Holding: No.
Reasoning (Cartwright J.):
If conduct (even violent or antisocial conduct that tends to create further violence as retribution) could be
treated as criminal even though it is not otherwise criminal, great uncertainty would result
o Judges should not declare acts criminal which haven‘t already been declared criminal
Would give too much discretion to the judge to decide, according to his individual view, if an act was a
disturbance of the tranquillity of people (and as such tending to provoke physical reprisal).
Ratio: Judges will no longer declare acts to be criminal offences.
Casebook Commentary: This case decided to place the protection of the individual from the risk of oppression
above the protection of the state from the risk of disorder
Use of the common law as an interpretive guide is permitted:
J obidon v. The Queen (1991 SCC)
Issue: Does the common law still apply to interpret codified criminal offences? Holding: Yes, with dissent.
Reasoning:
Majority (Gonthier J.):
All criminal offences in Canada are now codified (s. 9); but that does not mean that the common law
no longer illuminates these definitions
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o The basic premises of our criminal law (the necessary conditions for criminal liability) are presently
left to the cml
s. 8 says that cml still applies to the extent that it is not inconsistent with the Criminal Code (defences)
The courts must therefore also be permitted to use pre-existing cml rules/principles to give meaning to an
existing defence (i.e. explain its boundaries, when it will/will not apply) as long as no explicit statutory
language has displaced the cml
In this case, the defence of consent to assault is not applicable
Dissent (Sopinka J.):
Criminal law is codified: judiciary is constrained by the wording of sections defining criminal offences is
important that there be certainty in determining what conduct constitutes a criminal offence
The effect of the majority‘s approach is to create an offence where one does not exist under the CCC, by the
application of the cml to restrict the defence of consent to assault
Ratio: Judges can use the common law to interpret the codified offences and defences.
Common law defences are still applicable in Canada:
Amato v. the Queen (1982 SCC)
Issue: Do common law defences still apply in Canada, even though common law offences don‘t?
Holding: Yes. And judges may develop them.
Reasoning (Estey J.):
It‘s impossible to foresee all the various combinations of circumstances which may happen, although they
may constitute a justification or excuse for commission of a crime
So need to allow judges the leeway to develop the common law defences
Ratio: Common law defences are still available in Canada, and judges may further develop them when
appropriate.
Retroactivity
s. 11(g)
Charter
Any person charged with an offence has the right […]
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it
constituted an offence under Canadian or international law or was criminal according to the general
principles of law recognized by the community of nations
art. 15 Int’l
Covenant
on Civil &
Political
Rights
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence, under national or international law, at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence
was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition
of the lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognized by the community of nations.
Note the reference to “general principles of law recognized by the community of nations” – can these principles
pass the test of specificity and certainty? Their generality is a bit problematic. This phrase comes from the
definition of crimes against humanity, war crimes, and genocide and arose after WWII (see Akhavan).
After WWII, there were no laws against what the Nazis had done. But the international community had to
characterize their egregious conduct as criminal – this violated the principle of nullem crimen sine lege in order
to serve the higher dictates of morality.
Payam Akhavan, “The Origin and Evolution of Crimes Against Humanity”
The prohibition on crimes against humanity is one of the fundamental norms of international law
o A prohibition of crimes against humanity is an expression of moral outrage at conduct that so shocks
the conscience of mankind that its repression becomes a matter of concern to the international
community
But it has always has a tenuous existence as a norm of positive law
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It emerged as a norm of international law in 1945 – war crimes didn‘t cover what the Nazis did (because
only covered atrocities v. other countries‘ citizens, not one‘s own citizens)
o No clear statement of the juridical basis upon which crimes of humanity rest
o Violate the principle of nullem crimen sine lege
But the sheer magnitude of the Holocaust prompted the Allied Powers to dispense with strict positivism
had to criminalize Nazi conduct
There is an uneasy encounter between positive law and moral outrage here – the indeterminacy of crimes
v. humanity is troubling, considering the extreme moral stigma associated with it
These were the laws enacted to deal with situations such as WWII:
s. 4(3)
Crimes
Against
Humanity
and War
Crimes Act
"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture,
sexual violence, persecution or any other inhumane act or omission that is committed against any civilian
population or any identifiable group and that, at the time and in the place of its commission, constitutes a
crime against humanity according to customary international law or conventional international law or by
virtue of its being criminal according to the general principles of law recognized by the community of
nations, whether or not it constitutes a contravention of the law in force at the time and in the place of
its commission.
"genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable
group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according
to customary international law or conventional international law or by virtue of its being criminal according
to the general principles of law recognized by the community of nations, whether or not it constitutes a
contravention of the law in force at the time and in the place of its commission.
"war crime" means an act or omission committed during an armed conflict that, at the time and in the place
of its commission, constitutes a war crime according to customary international law or conventional
international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in
force at the time and in the place of its commission.
Stephanie Palmer, “Rape in Marriage and the European Convention on Human Rights: CR v. UK and SW v.
UK”
Old common law rule: a husband could not be guilty of raping his wife; implied consent to sexual relations
was built into the structure of marriage itself
1991 House of Lords confirmed that rape by a husband of his wife was always a criminal offence
o Criticism: they created a retrospective crime in breach of the principle of legal certainty
Court of Appeal/House of Lords the rule no longer accords with social consensus or legal reality of
woman’s position in the marriage
Appeal by the husbands of the two cases to the European Court of Human Rights – Court concluded
unanimously that there was no breach of the Convention a rape is a rape, regardless of the relationship
between offender and his victim
o In fact, this change in the law accords more with human rights than the change violates them
o It was reasonably foreseeable the marital immunity from rape charges would be dismantled
Akhavan on Palmer:
The problem in this case was twofold:
o CML creation of a criminal offence
o Retroactive application of that offence to acts perpetrated when it was not an offence
Does this move violate the principle of legality? Or is it justified because the common morality of the time
suggests that rape of one‘s wife is absolutely a crime (cf. general principles approach from international law)
Certainty & Specificity v. Vagueness & Overbreadth
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The law must be certain (lex certa); criminal laws must be sufficiently specific to allow citizens to discern
from reading the legislation the conduct that is expected of them
o All the while leaving space for interpretation of course – the law must apply to a broad range of
circumstances
Vagueness: if a criminal law is too vague, it will be deemed unconstitutional because it is an arbitrary
intervention with individual liberty
Overbreadth: any criminal law that covers more than it needs to will be unconstitutional as well, because it
unduly limits the rights of citizens for no purpose
R. v. Heywood (1994 SCC, Cory J .)
This case discusses vagueness and overbreadth
Overbreadth and vagueness are different concepts:
o The meaning of a law may be unambiguous therefore, the law will not be vague
But it still may be overly broad
o If the meaning of a law is vague, it is therefore also overly broad because ambit of its application
is difficult to define
Both vagueness and overbreadth are the result of a lack of sufficient precision by a legislature in the means
used to accomplish an objective
o Vagueness: the means to achieve the objective are not clearly defined
o Overbreadth: the means are too sweeping in relation to the objective
Analysis of overbreadth:
o Looks at the means chosen by the state in relation to its purpose
o Are those means necessary to achieve the state objective? If State, in pursuing a legitimate objective,
uses means which are broader than necessary to accomplish that objective, principles of fundamental
justice will be violated because the individual’s rights will have been limited for no reason
R. v. Nova Scotia Pharmaceutical Society (1992 SCC)
This case discusses vagueness
Vagueness of a law can be grounds for unconstitutionality under s. 7 or s. 1 (to be justifiable, limits on
Charter rights must be “prescribed by law”)
Fair notice to the citizen – has 2 aspects:
o 1. Formal aspect of notice: acquaintance with the actual text of a statute
This concern has been more or less set aside by the common law maxim: ―ignorance of the law
is no excuse‖ (s. 19 CCC: “Ignorance of the law by a person who commits an offence is not
an excuse for committing that offence.”)
Fair notice may not be considered to have been given when enactments are in somewhat general
terms, in a way that does not readily permit citizens to be aware of their substance
o 2. Limitation of law enforcement discretion: a law must not be so devoid of precision in its content
that a conviction will automatically arise out of a decision to prosecute for the offence
Canadian Foundation for Children, Youth and the Law v. Canada (A.G.) (2004 SCC)
This case discusses vagueness.
Facts: s. 43 CCC authorizes the use of force ―by way of correction toward a pupil or child … if the force does
not exceed what is reasonable under the circumstances.‖ I.e. it is a defence to the charge of assault.
Issue: Is s. 43 CCC vague? Holding: No, with dissent.
Reasoning:
Majority (McLachlin C.J. + 6): provision is not vague
A law is unconstitutionally vague if it does not provide an adequate basis for legal debate and analysis
o Legal dispositions delineate a risk zone
o If law does not sufficiently delineate any area of risk, or risk zone is not intelligible vague
A law must set an intelligible standard for the citizens it governs and the officials who must enforce it
o A vague law prevents the citizen from realizing when he/she is entering an area of risk for criminal
sanction
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o It also makes it hard for police/judges to determine whether a crime has been committed puts too
much discretion in the hands of police
The standard a law sets out can be determined by reference to its language (ex. reasonableness), social
consensus; CJ also considers Canada‘s treaty obligations, expert evidence
o Concludes that s. 43 is not vague by circumscribing it very tightly
o Not sure where she gets the authority to do this – she says it‘s not vague by making it not vague
how could citizen/police have known this is what she would do with it? The question is not can the
law be made specific, but whether it is specific enough on its face
She says that vagueness is not argued on the basis of whether a provision has been interpreted consistently in
the past, but whether it is capable of providing guidance in the future (but one would think inability to
interpret it consistently in the past is strong evidence that it can‘t provide guidance in the future)
Dissent (Arbour J. + 1): provision is vague
CJ restrictively interprets the defence of correctional force – this is inconsistent with the role of courts vis-à-
vis criminal law it is neither the historic nor the proper role of courts to enlarge criminal responsibility by
limiting defences enacted by Parliament (in fact, it‘s the opposite: to interpret criminal offences restrictively)
o Courts are prohibited by s. 9 CCC from creating new common law offences
J. thinks that majority totally rewrites the law – interpret it before they assess its constitutional validity to
make it conform to the Constitution
The restrictions the majority puts on s. 43 have not emerged from existing case law – are far from self-
evident and would not have been anticipated by parents, teachers, police
Ratio: Courts can interpret provisions restrictively so that they are not found unconstitutionally vague.
WHAT TYPE OF CONDUCT SHOULD THE STATE PUNISH? THE HARM PRINCIPLE
Until recent times, State engaged in legal moralism used criminal law to police the morality of citizens
o For example: outlawing pornography
The prevalent theory today is the harm principle a person can do whatever they want as long as it
doesn‘t harm or threaten to harm others (protection of individual autonomy)
o The question then, of course, is what is harm?
Not: the harm principle is utilitarian – but it is used to justify legislation that is based on moral intuition
Case Study #1: Sexuality
Adult Pornography:
R. v. Butler (1992 SCC)
Facts: Accused operated a shop selling porn. Was accused of 77 counts of violating s. 163 CCC (outlawing the
production/dissemination of obscene material).
Issue: Does s. 163 unduly inhibit freedom of expression, as protected by s. 2(b) of the Charter? Holding: No.
Reasoning (Sopinka J.):
In order for material to qualify as “obscene”, the exploitation of sex must be its dominant characteristic
AND that exploitation must be undue
What is “undue” exploitation of sex? What is “undue” is determined by the “community standard of
tolerance” test: this involves a consideration of what Canadians would not abide others seeing because
it is beyond the common standard of tolerance to let them see it (doesn’t matter what Canadians think is
right for themselves to see – this is a matter of taste)
o Have to consider the degree of harm that may flow from Canadians’ exposure to the material
o The harm associated with pornography is that it might predispose people to antisocial behaviour
o Antisocial behaviour in this context is conduct which society formally recognizes as
incompatible with its proper functioning
Pornography is divided into three categories:
o 1. Explicit sex with violence – will almost never be tolerated
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o 2. Explicit sex without violence which is degrading/dehumanizing – if the risk of harm is substantial,
will not be tolerated
o 3. Explicit sex without violence that is neither degrading nor dehumanizing – generally tolerated
Goal of s. 163 is not to police morality – this objective is no longer defensible within the criminal law
But Parliament still has the right to legislate on the basis of some fundamental conception of morality
for the purposes of safeguarding the values which are integral to a free and democratic society
The overriding objective of s. 163 is not moral disapprobation but the avoidance of harm to society
Ratio: Common morality of Canadians is still relevant to interpreting the criminal law.
Akhavan on Butler:
Pornography that is harmful to others (via being watched by an individual) is decided to be illegal
o The harm is that the images may encourage people to act in an antisocial manner by normalizing such
conduct
Note that this decision tells responsible adults what they can and cannot watch because they cannot be
trusted to make good choices once they have been negatively influenced
The court partially justifies its reasoning with the fact that the violence depicted in pornography is generally
perpetrated against women and contributes to endemic violence against them in society
The prohibition of “obscene materials” used to very much be bound up with policing morality, and not with
preventing harm to others. To a certain extent, it still is:
Cossman & Bell, Bad Attitudes on Trial
Roots of contemporary obscenity law in Canada lie in 19
th
-century England: R. v. Hicklin defined obscenity:
“whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are
open to such immoral influences and into whose hands a publication of this sort may fall”
o Intended to protect the morals of women, children, working-class men (not seen as a problem for
middle-, upper-class men) these groups were seen as irrational by nature and unable to resist the
corrosive influences of sexual materials
o Was to promote a public morality based on Victorian discourse of sexuality as dangerous
Early Canadian criminal prohibition of dissemination of obscene materials did not define obscenity – courts
adopted the Hicklin test sexual representations in any form were considered to be immoral by this test
The suppression of obscene literature was part of the more general agenda of policing sexual morality
– part of the social purity movement emphasis on domestic virtues (home, family parenthood)
1959 CCC defined obscenity as follows (unchanged in current CCC): “any publication a dominant
characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following
subjects, namely, crime, horror, cruelty and violence shall be deemed to be obscene”
o R. v. Brodie (Lady Chatterley’s Lover case): Judson J. determined that prevailing community
standards are relevant in determining whether the publication in question is obscene
o Community-standards test came to dominate as the test for obscenity (seen as a general average of
community thought) necessarily arbitrary and subjectively determined by the judiciary
1960s came to distinguish private and public morality from one another – the only censorship which should
be allowed is that which prevents harm coming to others (harm principle)
1970s/80s emergence of the anti-pornography feminist movement – argued that acts of sexual violence
against women are instrumental in maintaining the patriarchal system; pornography eroticizes and
propagandizes those acts of violence
o Harm towards women replaced sexual immorality as the problem in need of redress
R. v. Butler: First constitutional challenge to prohibition on obscene materials (under freedom of expression)
o Law of obscenity is to be based on preventing harm (towards women particularly)
Effect of the Butler decision is that straight pornography is flourishing – however, any representations that
hint at alternative sexualities continue to be subject to intense scrutiny
o Butler has been mobilized to suppress gay and lesbian materials in particular
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Child Pornography:
R. v. Sharpe (2001 SCC)
Facts: S was accused of possessing child pornography. Some of it was written material of his own making and
not intended for distribution to anyone else.
Issue: Is Canada’s law banning the possession of child pornography constitutional?
Holding: Yes, subject to some interpretational caveats (with partial dissent).
Reasoning:
McLachlin C.J. + 5 for the majority:
Values in competition in this case are freedom of expression and the protection of children from harm
Most of s. 163.1(4) (prohibiting possession simpliciter of child pornography) is constitutional; although it
limits freedom of expression, such limitation is justified by s. 1 for the most part
However, it is not constitutional with respect to two categories of material:
o A person’s own writings/drawings that are not intended for distribution
o A teenager’s own material concerning him or herself alone or with a consenting partner engaging in
lawful sexual activity
The inclusion of these materials trenches on freedom of expression without significantly adding to the
protection of children
N.B. the various statutory defences to a charge of child pornography (artistic merit; education, scientific, or
medical purpose; public good) must be interpreted liberally to protect freedom of expression
L’Heureux-Dubé J. + 2 in partial dissent:
In discussing the attenuation of one’s Charter rights, must take into account the Charter rights of others
child pornography infringes on children’s s. 7 rights, s. 15 rights, right to privacy
There is evidence that written material (even if created by the accused and not intended for dissemination)
may incite the author to commit offences against children, or at least reinforce their pathology – this is
enough harm to justify criminalization
Also, teenagers should not be permitted to create a permanent record of their sexual activity – this may have
consequences they are not mature enough to understand
Ratio: Freedom of expression is interpreted very liberally by the SCC; if there is no likely harm arising out of it,
they permit the possession of a small portion of child pornography.
Akhavan on Sharpe:
The question of harm to children is at the forefront of the Court‘s discussion
With respect to the private writings, liberal respect for individual autonomy outweighs the desire to limit
child pornography
Does this decision reflect ―the community standard of tolerance‖ test? Probably not. Judges have decided
against the social consensus in this case.
Swingers’ Clubs:
R. v. Labaye (2005 SCC)
Facts: L owns a swingers’ club. Charged with keeping a common bawdy-house for the practice of acts of
indecency (s. 210(1) CCC).
Issue: Were the acts committed in his establishment acts of indecency within the meaning of the CCC?
Holding: No.
Reasoning (McLachlin C.J.):
What types of harm, viewed objectively, suffice to found a conviction of keeping a common bawdy-house
for the purposes of acts of indecency?
Conduct which fulfils two requirements beyond a reasonable doubt is outlawed:
1. By its nature, the conduct at issue causes harm (or presents a significant risk of harm) to individuals
or society in a way that undermines (or threatens to undermine) a value reflected in the Constitution
(or similar fundamental laws): for example (list not closed),
A. Confronting members of public with conduct that significantly interferes with their autonomy/ liberty
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o Idea is to protect public from being confronted with acts/material that reduce their quality of life
o There must be a risk that public will be unwillingly exposed to the conduct/material or they will be
forced to change their usual conduct to avoid exposure
B. Predisposing others to anti-social behaviour
o Does not have to be an explicit invitation to harm others; can be act/material that perpetuates negative
images of a certain group encourages disrespect of that group
C. Physically or psychologically harming persons involved in the conduct
o Consent of the participant will be important consideration here
2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society
Threshold is high – we live in a diverse society and must be prepared to be tolerant of conduct of which we
disapprove. Have to show real risks.
Has to be evaluated in light of contemporary Canadian standards
In this case, the swingers’ club does not satisfy the test – is not caught by CCC
Ratio: Conduct which is criminally indecent must by its nature threaten harm to the fundamental values of
Canadian society, to a degree which renders that harm incompatible with the good functioning of society.
Case Study #2: Marijuana
R. v. Malmo-Levine & Caine (2003 SCC)
Facts: The Narcotics Control Act prohibits the possession of marijuana; although there is no minimum sentence
for this offence, imprisonment is possible.
Issues: 1. Is the harm principle a principle of fundamental justice under s. 7 of the Charter? 2. Is the prohibition
on possession of pot constitutional? Holding: 1. No, with dissent. 2. Yes, with dissent.
Reasoning:
Majority (Gonthier & Binnie JJ. + 4):
The “harm principle” is the idea that people should not be subject to prohibitions on their behaviour
(enforced by the physical power of the State) unless that behaviour is harmful to others (or presents a
risk of harm to others) – harm to themselves is not sufficient
o Suggests that the only conditions under which an activity may be criminalized (or a person may be
imprisoned for an offence) is if that activity/offence poses a threat of harm to others
o But the grounds for interfering with human liberty have long been recognized to be more
various than the single criterion of “harm to others”
The harm principle is not a principle of fundamental justice within the meaning of s. 7 of the Charter
– is too vague; “harm” doesn‟t do any work – it is the moral conceptions underlying it that inform our
notions of what is harmful
The state may sometimes be justified in criminalizing conduct that is not harmful to others or is harmful
only to the accused (ex. seatbelt laws)
o Furthermore, in a society such as Canada, harm to oneself is often borne collectively (welfare state,
healthcare)
The protection of vulnerable groups from self-inflicted harms does not amount to legal moralism
o The protection of chronic or underage users of pot is a valid criminal law objective
However, should people convicted under these offences be subject to imprisonment? Likely not, although
the majority says this can be dealt with under sentencing and appeals of inappropriate sentences
Arbour J. in dissent (LeBel, Deschamps JJ. dissented separately):
s. 7 of the Charter requires not only some minimal mental element for offences punishable by imprisonment
also requires that the prohibited act be harmful or pose a risk of harm to others
As the trial judge found that marijuana use poses little or no risk of harm to users or others, it cannot be
punishable by imprisonment
Ratio: The harm principle is not a principle of fundamental justice; Parliament may legislate criminal law in
order to protect people from themselves where it is necessary.
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Akhavan on Malmo-Levine & Caine:
The majority decides that the harm principle is not always the test for the validity of outlawing conduct
o Harm is not a constitutional requirement for valid criminal legislation
We have plenty of crimes that do not harm others (cannibalism of the dead, cruelty to animals) – majority is
protecting these
The majority goes to lengths to show all the harm that smoking marijuana will do to you, and then says harm
isn‘t necessary anyway
The dissent says that the harm principle is a principle of fundamental justice under s. 7, and if there is no
harm threatened or caused by the conduct in question, the law is unduly limiting the freedom of the
individual and must be struck down
Case Study #3: Hate Speech
R. v. Keegstra (1990 SCC)
Facts: K was a high school professor who told his students that Jewish people are sadistic, money-loving,
power-hungry child-killers who have an international conspiracy.
Issue: Is the prohibition on hate speech so broad as to violate s. 2(b) of the Charter in a way that is not saved by
s. 1? Holding: Yes it violates s. 2(b), but it is saved by s. 1 (with dissent).
Reasoning:
Dickson C.J. for the majority:
• Hate propaganda is harmful to target group members and threatens a harmonious society
• The mens rea of this offence (s. 319(2)) requires that it be „wilful‟ promotion of hatred
• Mens rea requires more than mere negligence or recklessness, therefore reduces scope of the section
[because we don’t want to catch instances Buzzanga]
• Risk of hatred caused by hate propaganda is very real therefore do not need proof of actual hatred to justify
its prohibition under s. 1
• Finds that reverse onus (i.e. making the accused prove that their statements are “true” as a defence rather
than making the Crown have to prove they are false beyond a reasonable doubt) infringes presumption of
innocence (s. 11(d)) but that it’s justified under s. 1
• Wilful promotion of hatred is hostile to Parliament’s aims [you’ve got to prove what you’re saying is
actually true, has historical truth, etc]
McLachlin J. + 2 in dissent:
• Found s. 319(2) infringed freedom of expression and was not justified under s.1 because it prohibits all
public speech that is hateful
• Creates a chilling effect on people who would like to express themselves
• Not clear that it provides an effective way of curbing hatemongers; may actually promote their cause by
garnering media attention and making them martyrs
Reverse onus not justified, doesn’t buy argument that it would be difficult/impossible to get a conviction
otherwise, says burden should be on state because it has superior resources.
Ratio: It is valid for Parliament to prohibit hate speech in a broad manner because it negatively affects the
targeted groups.
Akhavan on Keegstra:
Hate speech could incite people (in this case, the students) to hatred or violence
So it is the risk of harm presented by the act which justifies its prohibition
R. v. Zundel (1992 SCC)
Facts: Z published a book denying the occurrence of the Holocaust. Charged under s. 181, the dissemination of
false statements likely to injure or cause mischief to the public interest (“false news” provision).
Issue: Does the false news provision violate freedom of expression?
Holding: Yes, not saved under s. 1 (with dissent).
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Reasoning:
Majority (McLachlin J. + 3):
To permit the imprisonment of people (or even to threaten people with imprisonment) on the basis that they
made a statement which 12 people deem to be “false” and “mischievous” to some undefined public interest
is to stifle a whole range of speech
The false news provision was first enacted in 1235, to avoid slander of nobles
Under the doctrine of no shifting purposes, it cannot now be interpreted to protect minority groups from hate
speech – this is an outright redefinition of the prohibition and the nature of the activity prohibited
Other provisions are meant to prohibit hate speech – they deal with it more fairly and more effectively
The broad reach of this provision interpreted as a prohibition of hate speech is not restrained enough to
constitute a valid criminal law; it would also have a chilling effect on valid expression
Dissent (Cory & Iacobucci JJ. + 1): interpret s. 181 as a hate speech provision and thus find it acceptable
Ratio: The false news provision is struck down.
Akhavan on Zundel:
The book was not hate speech; did not say anything against Jewish people – it just denied the occurrence of
a historical event
o So Zundel could not be charged with hate speech; had to be charged with spreading ―false news‖
Case Study #4: Cannibalism
Antrophagus article: the victim consented to being cannibalized – is it really a harm that he got what he
wanted and was killed and eaten?
We do not want consensual murder within society – is opposed to its proper functioning
What are community standards of what constitutes “harm” in situations of inverted morality?
Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future Injustice?”
Have the International Criminal Tribunals of Yugoslavia/Rwanda proved to be an effective instrument for
preventing further interethnic mass violence? They have vindicated victims/punished offenders.
The threat of punishment has a limited impact on human behaviour in a culture already intoxicated with
hatred and violence; in these contexts, violent behaviour that is normally characterized as deviant becomes
vaunted as the ultimate in national or racial loyalty (inverted morality)
o Cannot hope to stop these things once they’ve started – must focus on prevention of new future
conflicts or the rekindling of old conflicts
Human rights abuses on a massive scale do not occur on their own – they are engineered by social and
political elites, to serve their own purposes
Punishment can alter the incentive structure facing these particular leaders whose goal is generally the
acquisition of power (penalty = power will be taken away shortly, followed by international humiliation)
o In pre-conflict scenarios, may discourage decisions to foment ethnic hatred
o In post-conflict scenarios, leaders may be incapacitated outright (fugitive, arrested)
The punishment of massive human rights abuses by international criminal tribunals also undoes the culture
of impunity that prevailed within the global arena previously
o The expression of social disapproval through the legal process may influence moral self-conceptions
so that illegal actions will not present themselves as real alternatives to conformity
o Progressive entrenchment of habitual lawfulness can occur among a wider portion of the population,
not just its leaders
ICTY/R can perhaps function at the level of leaders and public to discourage the perpetration of
genocide/mass ethnic violence
PART III. THE MATERIAL ELEMENT OF THE CRIME: ACTUS REUS
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ACTS, OMISSIONS, AND STATUS
The actus reus is the physical element of the crime: it is the conduct prohibited by the offence
ACTUS REUS + MENS REA = CRIME
A person can only be convicted of a crime if they perform a culpable act with a culpable mental state
o Requirement for a “culpable act” = actus reus
If there is no act involved in the description of an offence, we are getting close to punishing people for status
(for who they are) or for bad thoughts
o Even inchoate crimes involve an actus reus
Voluntariness
To prove actus reus, only need to prove that the prohibited conduct was committed, and that it
was voluntary.
Criminal liability cannot be attributed to a person unless that person is responsible for his/her acts
Responsible agency means the person voluntarily performed the prohibited act; conscious control of
action is essential to voluntariness
o There is some mental element in the actus reus of the crime
An act can be involuntary for physical or for mental reasons
o Physical: automatism negates the actus reus
o Mental: duress negates the mens rea
The action is physically voluntary, but morally involuntary because person has no real choice
R. v. Ruzic (2001 SCC, LeBel J .)
Criminal responsibility should only be ascribed to acts that result from the choice of a conscious mind and
an autonomous will; should attach only to people who knew what they were doing and willed it
The element of voluntariness overlaps both with actus reus and mens rea
It is a basic principle that absence of volition in respect of the act involved is always a defence to a crime
Principle of voluntariness has constitutional status – it would infringe s. 7 of the Charter to convict an
accused who was not acting voluntarily a fundamental aspect of the actus reus would be absent
The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental
organizing principle of our criminal law
Cannot punish a person whose actions were involuntary in the physical OR the mental sense (i.e. if the
accused did not have any realistic choice)
Contemporaneity
In order for the actus reus to constitute a crime, it has to be contemporaneous with the mens rea.
A criminal offence cannot be proved unless the element of fault and the actus reus coincide
The principle of voluntariness is a principle of fundamental justice (s. 7 Charter). No statement of
comparable clarity has been made concerning the principle of contemporaneity.
Fagan v. Commissioner of Metropolitan Police (1969 England Court of Appeal)
Facts: F got pulled over; policeman asked him to pull up closer to the curb than he had. F accidentally drove
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onto the officer’s foot and then refused to get off for a while, turning off the car – finally turned the car back on
and got off the cop’s foot.
Issue: Did the prosecutor prove the facts which in law amount to an assault? Holding: Yes, with dissent.
Reasoning:
Majority (James J.):
The problem:
o The initial mounting of the foot cannot be an assault, because it was an accident no mens rea
o The subsequent harmful intent is not accompanied by any harmful action by F no actus reus
o So the actus reus and the mens rea at no point coincide in time
o The actus reus of the offence of assault cannot be constituted by an omission (failing to get off cop’s
foot) must be a positive action
Court gets around this by saying that it is not necessary that mens rea should be present at the
inception of the actus reus it can be superimposed upon an existing act
o I.e. the act of driving onto the officer’s foot was continuing, and F developed the requisite mens rea
while it was continuing
o However, the subsequent inception of mens rea cannot convert an act which has been completed
without mens rea into an assault (i.e. cannot accidentally drive onto the officer’s foot and then get off
when he asks you to, and be secretly happy about having done it, and then be charged with a crime)
Dissent (Bridge J.):
After F drove onto officer’s foot, he did absolutely nothing which could constitute the actus reus of the crime
Bridge J reluctantly dissents and quashes F’s conviction for assault.
Ratio: Mens rea does not have to be present at the inception of the actus reus; it is sufficient for the requirement
of contemporaneity that mens rea be developed while the actus reus continues.
Akhavan on Fagan:
In order to justify their decision, the court distinguishes between continuing acts and complete acts
This reasoning is a bit artificial, and this case critiques it as such:
R. v. Miller (1982 England Court of Appeal)
Facts: M was squatting. Lit a cigarette and fell asleep. He woke up, saw that his mattress had caught on fire, and
didn’t do anything about it. He just moved to another room and fell back asleep. Charged with arson.
Issue: Were the mens rea and the actus reus sufficiently contemporaneous to satisfy the constitution of the
offence of arson? Holding: Yes.
Reasoning (May L.J.):
Reconsideration of Fagan:
o Justice and good sense required that F not be permitted to escape liability simply because the last
thing that happened in the relevant story was an omission on his part
o There was a substantial element of adoption by F, at the later stage, of what he had done before
o F‟s conduct can and should have been looked at as a whole the whole contained both actus
reus and mens rea which were sufficiently coincident to render F guilty of assault
o Do not have to resort to the artificial reasoning of the Fagan court
An unintentional act followed by an intentional omission to rectify that act or its consequences can be
regarded on the whole as an intentional act
In this case, M’s failure to extinguish the fire had a substantial element in it of adoption of what he had
unintentionally done earlier (i.e. set the fire)
Ratio: An unintentional act followed by an intentional omission to rectify the act can be an intentional act.
Commentary: Appeal to HoL dismissed. Lord Diplock said that a failure to act can give rise to criminal liability
Akhavan on Miller:
It‘s common sense to look at the act as a whole; do not have to come up with a theory to explain when an
accidental action is transformed into a criminal one
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R. v. Cooper (1993 SCC)
Facts: C was highly intoxicated; got angry with his girlfriend, grabbed her by the throat and shook her. Blacked
out and strangled her to death.
Issue: Did the culpable state of mind sufficiently coincide with the culpable act to constitute the crime of
murder? Holding: Yes, with dissent.
Reasoning:
Majority (Cory J.):
Not always necessary for the guilty act and the intent to be completely concurrent (ex. Fagan)
Agreement with James J. in Fagan that an act (actus reus) which may be innocent or no more than careless
at first can become criminal at a later stage when the accused acquires knowledge of the nature of the act and
still refuses to change his course of action
C was aware, before he blacked out, of the strangulation. He simultaneously intended to do her bodily harm,
and knew it was likely to cause her death.
o It is sufficient that the intent and the act of strangulation coincided at some point
o Not necessary that the requisite intent continue throughout the entire two minutes required to cause
the death of the victim
Dissent (Lamer C.J.): The intention to cause bodily harm by no means leads to the conclusion that the accused
knew that the bodily harm was likely to cause death this aspect is essential to the finding of guilt of murder
(would be enough for manslaughter, though)
Ratio: It is not necessary that the mens rea continue throughout the entire actus reus.
Akhavan on Cooper:
The SCC takes a practical approach and looks at the transaction as a whole – it is sufficient that the accused
had the adequate mens rea at one point in the transaction
The majority and the dissent seem to disagree on the facts – the majority thinks Cooper knew the
strangulation was likely to cause her death before he blacked out; dissent doesn‘t think Cooper knew his
actions were probably going to kill her until after he blacked out
Acts v. Omissions
There can be criminal liability for an omission if there was a common law or statutory duty to act.
Action
Most offences require proof of some positive act (ex. stealing, driving, trespassing)
Positive action is thus the ―verb‖ in the definition of criminal liability
Inaction
A failure to act can also constitute the actus reus of criminal offences
Legislature has identified specific circumstances in which doing nothing is sufficiently harmful in itself to
merit criminalization – ex. criminal negligence
The law can also impose a duty of positive action criminal sanction for failure to fulfil that duty
o Omissions are culpable if there is a duty to act
Does the duty to act have to be statutory or can it be common law? It can be common law (see Thornton)
Liability for inaction should not be generalized for reasons of policy
Statutory duty to act:
Moore v. The Queen (1979 SCC)
Facts: M rode his bike through a red light in front of a motorcycle cop. Cop went after M and repeatedly ordered
him to pull over. M consistently told him to eff off. M charged with obstructing a peace officer in performance
of his duty. Under BC Motor-Vehicle Act, cyclists do not have a duty to pull over and identify themselves – only
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operators of motor-vehicles do. Another provision in that act provides that cyclists have the same rights and
duties as drivers of vehicles.
Issue: Did M’s omission to pull over and identify himself constitute the violation of his legal duty to do so?
Holding: Yes, with dissent.
Reasoning:
Majority (Spence J.):
Moore was under same statutory duties as the driver of a vehicle; his omission to fulfil his duty to pull over
when asked amounts to obstruction of a police officer
Dissent (Dickson J.):
A person is not guilty of the offence of obstructing a police officer merely by doing nothing, unless
there is a legal duty to act
Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at
common law or is imposed by statute
No statutory duty of a cyclist to ID himself; no common law duty to identify oneself to the police (not a legal
duty, although we may have a moral/social duty to do so)
The criminal law is no place in which to introduce implied duties, unknown to statute and common
law, breach of which subjects a person to arrest and imprisonment
Ratio: Omission to act in a particular way gives rise to criminal liability only where there is a duty to act in that
way imposed by statute or common law.
Akhavan on Moore:
The majority violates rules of statutory interpretation in order to say that Moore had a statutory duty to pull
over and identify himself
o They rely on a general provision (cyclists have same rights/duties as drivers) rather than a specific
provision (only drivers have a duty to pull over)
o In their minds, they are filling a legislative gap
But the dissent sees no statutory duty, no common law duty, no implied duty the criminal law is not a
place to read in implied duties (principle of legality at work here)
Common law duty to act:
R. v. Thornton (1991 OCA)
Facts: T had AIDS, and was aware. Also knew it is transmitted via blood. Donated blood to the Red Cross
knowing he could infect people this way. Charged with committing a common nuisance under s. 180 of the
CCC: “every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and
thereby a) endangers the lives, safety, health, property, or comfort of the public.”
Issue: Under s. 180 of the CCC, can a legal duty arise from the common law? Holding: Yes.
Reasoning (Galligan J.A.):
T attacked his first-instance conviction on the basis that although his conduct may be morally reprehensible,
it did not constitute an offence known to the law
CCC does not make it an offence to knowingly donate contaminated blood – nor does any other statute
so T is not guilty of any “unlawful act” (i.e. doing it is not prohibited)
o Did he then fail to discharge a legal duty? No statute specifically imposes a legal duty to refrain from
donating contaminated blood
So the issue is this: can a legal duty be one that arises at common law? J. decides yes.
J. reasons by analogy to the treatment of “duty imposed by law” (in the CCC definition of criminal
negligence), which has been decided to include duties imposed by the common law
o While the words “legal duty” are not the same as “duty imposed by law” they mean the same thing
so therefore, the meaning given to “duty imposed by law” should be given to “legal duty.” So a legal
duty includes one which arises at common law.
So is there a duty at common law to refrain from donating contaminated blood to a blood bank? Yes.
General duty to refrain from actions that would cause foreseeable harm to others.
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Doesn’t matter that this act didn’t cause any harm because Red Cross caught that it was contaminated
o There was a risk it would cause people harm (general public, Red Cross workers) because their
screening process is not perfect
T had sufficient knowledge of the possible consequences of his action had mens rea too
Ratio: An omission to do what one has a legal duty, under the common law, to do, can give rise to criminal
liability.
Commentary (Casebook):
Disagreement with this decision. As a matter of principle, it seems that criminal liability for common
nuisance should be limited to instances where Parliament has created a statutory duty
Only this conclusion is consistent with the abolition of common law crimes and the principle of legality
Akhavan on Thornton:
The positive act was giving the Red Cross blood infected with HIV
The omission was not telling them the Red Cross he was HIV-positive
Was there a duty to tell the Red Cross that he was HIV-positive? Yes. The common law duty of avoiding
conduct that one foresees could harm another seriously
Does finding the duty to act in the common law violate the principle of legality? Violate the rule that there
are no common-law crimes anymore?
This is perhaps a teleological interpretation of the law – the court sees Thornton‘s act as blameworthy, and
so they must find a way to punish it
Crimes of Status
In some offences, the actus reus consists essentially of status or some specific state of affairs
Such offences are rare; this is a good thing, because they come close to punishing a person for what they are
or, rather than for voluntary acts of commission or omission
o Ex. being in a country without papers, participating in a terrorist organization, possession
R. v. Terrence (1983 SCC)
Facts: T was found in a car which was stolen. Charged with possession of stolen goods.
Issue: Was T in possession of the car? Holding: No.
Reasoning (Ritchie J.):
One of the essential elements of possession is a measure of control – T was a passenger in the car
Did not ―possess‖ the stolen car, so cannot be charged with possession
Ratio: In order to be guilty of possession, do not just have to have the thing – have to exercise a measure of
control over it.
CAUSATION
An unlawful act causes a prohibited consequence when it was a contributing factor beyond the de
minimis range: i.e. it was a “not trivial” or “not insignificant” (significant) cause of what occurred.
Note: there is disagreement as to whether “not insignificant” and “significant” cause means the same thing.
Not every crime requires proof of causation:
o Many offences are defined in such a way that they are complete on completion of the act or omission;
there is no required consequence of the act/omission (ex. drunk driving)
o Many other offences require a specific element of causation of a consequence (ex. murder)
Where there is a requirement of causation, must be some form of proximity between the cause and the effect
N.B. There is a distinction between the medical (factual) cause of death and the legal cause of death
o Factual causation = scientific, objective
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o Legal causation = takes into account levels of moral blameworthiness
Smithers v. the Queen (1978 SCC)
Facts: S was the leading player on his midget hockey team. His team was playing the vic’s – vic insulted S (who
is black) with racial slurs and both were kicked out of the game. After the game, S went up to the vic, punched
him twice in the head, and then kicked him hard in the stomach. Vic died within minutes from aspirating his
vomit. Shown by expert evidence at trial that this is extremely rare. S is charged with manslaughter.
Issue: Did S cause the vic’s death? Holding: Yes.
Reasoning (Dickson J.):
Factual causation is different from legal causation
Factual causation is a physical determination if A caused B – lay/expert evidence is helpful here
All the Crown is required to establish for legal causation is that the kick was at least a contributing
cause of death, outside the de minimis range
One who assaults another must take his victim as he finds him (thin skull rule)
Ratio: The requirement for causation in homicide is that the accused’s act be at least a contributing cause of
death, outside the de minimis range.
Akhavan on Smithers:
There is no need for the kick to be the sole cause of death, as long as it is beyond the de minimis range
The test for when an act legally causes a consequence = was it a contributing cause beyond the de
minimis range?
o Cribbin/Nette try to further explain this test so that it is useful to juries making decisions
o How does the ―de minimis‖ range translate into plain English? The act (here, the kick) does not need to
be the sole cause, as long as it is not a trivial cause
R. v. Cribbin (1994 OCA)
Facts: C punched the victim in the face and kicked him in the leg. C’s friend, Reid, then attacked the victim
(punching him and kicking him) and robbed him. They drove away, leaving the victim there unconscious and
bleeding. Victim drowned in his own blood.
Issue: Is the Smithers test unconstitutional? Holding: No.
Reasoning (Arbour J.A.):
Smithers: any unlawful act that was at least a contributing cause of death outside the de minimis range is
sufficient to engage criminal liability for homicide
o C submits that this test sets the causation threshold for homicide too law – infringes s. 7
Harbottle: causation requirement which must be met before a person guilty of murder can be found guilty of
first degree murder is higher. Perpetrator’s act must have been a substantial cause of the victim’s death.
o Should the causation requirement for homicide in general be this “substantial cause” test?
The causation requirement is a principle of fundamental justice, like the doctrine of mens rea
ensures the morally innocent are not punished.
o The law should not hold a person criminally responsible for consequences that cannot or should
not be attributed to him or her
o This is the requirement of legal causation, as apart from factual causation the question is
whether the factual result of his or her actions can be fairly imputed to the accused
The Smithers test is not unconstitutional – it fulfils the requirement that those convicted of homicide are
morally blameworthy
Ratio: The Smithers test applies for causation in all homicide.
Akhavan on Cribbin:
The line between assault and manslaughter is at issue here
N.B. that the causation requirement is the same for manslaughter as it is for murder causation of death
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R. v. Nette (2001 SCC)
Facts: N and another broke into a 95-year-old woman’s house, hog-tied her, gagged her, robbed her, and left her
there. She died and was discovered two days later.
Issue: What is the standard for legal causation in second-degree murder? Holding: The Smithers test, variously
interpreted by the majority and the concurrence (5-4).
Reasoning:
Majority (Arbour J. + 4):
In determining whether a person can be held responsible for causing a particular result (in this case,
death), it must be determined whether that person caused the result in both fact and law
o Factual causation is concerned with a medical, mechanical, physical inquiry into how the victim
came to their death (question of whether the accused can be held responsible)
o Legal causation (imputable causation) is concerned with the question of whether the accused
should be held responsible in law for the death that occurred
Smithers standard: accused‟s act must be beyond de minimis or more than a trivial cause [of death]
o This is the only standard of causation for homicide offences
o The use of the Latin or the double negative (“not insignificant”) is confusing to the jury
o May be preferable to rephrase the standard of causation: “significant contributing cause”
o It is the same standard as before, Arbour J. claims, just framed positively for clarity
Harbottle standard (for a person accused of participation in a killing; this is the standard required to raise the
participating accused’s culpability to first degree murder under s. 231(5) of the CCC): the accused must play
a very active role. His actions must form an essential, substantial and integral part of the killing of the
victim. Is generally referred to as the “substantial cause” test.
o This standard is much higher than the Smithers standard
o Raises the standard for first-degree murder when the accused is a participant, because there is an
increased stigma/sentence on conviction for first degree murder
o Did not raise the standard of causation that applies to all homicide offences
o The standard that applies to general homicide offences is that articulated in Smithers
Concurrence (L’Heureux-Dubé J. + 3):
The Smithers standard: a contributing cause [of death] that is not trivial or insignificant
o This is the generally authoritative test of causation for all criminal offences [including homicide]
Majority proposes to reformulate the Smithers test as “a significant contributing cause” – this changes
the substance of the test and the concurrence opposes this change
The reformulation would call for a more direct causal relationship than the existing test, thus raising
the standard from where it currently stands
The causation test, as articulated in Smithers (“de minimis”) – and clarified in English as a non-trivial or not
insignificant cause – remains the law
Ratio: The Smithers test applies as the general standard for legal causation in all criminal offences, including all
forms of homicide. However, it has been variously phrased as a not trivial or not insignificant cause
(concurrence) or a significant contributing cause (majority).
Akhavan on Nette:
Has the Smithers test been abandoned by the SCC, which has raised the bar in this case by requiring the
accused‘s act to be ―a significant cause‖? Or has it just clarified what de minimis means?
o The majority claims it is the latter
Intervening Causes
The author of a not insignificant contributing cause can be exonerated from criminal liability for
the effect if there was an intervening cause that broke the chain of causation between their act
and the prohibited consequence.
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R. v. Menezes (2002 Ont. Sup. Ct. of J ustice)
Facts: M and the deceased were involved in a street race. The deceased slammed into a utility pole and died. M
claims he eased off on his accelerator and slowed down about a kilometre before this happened.
Issue: Was there an intervening cause between M’s actions of being in the street race and egging on the
deceased and the deceased’s death? Holding: Yes.
Reasoning (Hill J.):
If the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and
exonerate the accused from any responsibility for the consequence (R. v. Nette)
o Do independent factors exist which might reasonably be said to sever the link that ties the
accused to the prohibited result?
o Or is the chain unbroken with the effect of the accused‟s actions subsisting up to the happening
of the event or consequence?
o Is there a supervening cause such as to insulate the accused from the legal consequences flowing from
the death?
An intervening act may be the withdrawal or abandonment by the accused of involvement in the dangerous
enterprise requires more than a change of heart; requires communication or timely notice of intention to
abandon the common pursuit; requires positive action by the accused
In this case, M eased off his accelerator and gave the deceased notice that he was backing off from the race –
the deceased, as an independent agent, then chose to maintain excessive speed
o His death is therefore the result of independent actions
Ratio: An intervening cause between the accused’s actions and the prohibited consequence can exonerate the
accused from criminal liability.
Akhavan on Menezes:
This case borders on the edge of unfair; even if the accused hadn‘t taken his foot off the accelerating, can he
really have been said to have caused the other racer‘s death?
The proximity of cause here is a question of the degree of moral blameworthiness of the accused
This type of reasoning is based on a policy objective of discouraging drag-racing
o This sort of analysis would not be as readily acceptable in a trial for a more serious crime than
dangerous driving causing death (e.g. murder)
R. v. Reid and Stratton (2003 NSCA)
Facts: Reid and Stratton got into a fight with MacKay – S and M exchanged punches, and fell to the ground. S
got M in a headlock, and R kicked him a few times. M stopped moving and S let him go. A few other people
around administered CPR; as a result of this botched rescue attempt, M aspirated vomit and died. The expert
opinion is unanimous that the crappy CPR was the sole cause of M’s death.
Issue: Can R and S’s actions still be considered as causing M’s death? Holding: New trial ordered because the
trial judge’s instructions to the jury were insufficient on the point of intervening causes. It is suggested that R
and S will almost surely be acquitted at this new trial.
Reasoning (Saunders J.A.):
An intervening act breaks the chain of causation; interrupts the original infliction of injury; some
other act has intervened before death. The question before the jury is whether the initial injury can
still be viewed as a significant contributing cause of death.
Jury must be satisfied beyond a reasonable doubt that the acts of the accused are so connected to the
prohibited consequence that they can be said to have had a significant causal effect which continued up to
the time of the prohibited result [in this case, death]
Ratio: Intervening causes break the chain of causation so that the acts of the accused are no longer linked to the
prohibited consequence with which they are charged.
Akhavan on Reid & Stratton:
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The beating does not have to be the sole cause of death, but it does have to be a not insignificant cause of
death
The beating was beyond the de minimis range of causal factors – if it had not been, that would be where the
analysis stops
o The CPR only becomes relevant once it is decided that the act after which it occurred is significant
enough to attract criminal liability
o Only once something is a cause can there be an intervening cause between it and the effect
PART IV. THE MENTAL ELEMENT OF THE CRIME: MENS REA
THE PRESUMPTION OF INNOCENCE
The burden on the Crown to prove the guilt of the accused beyond a reasonable doubt is one of the most
important safeguards in the criminal justice system
o The accused does not have to prove their innocence; State has to prove their guilt for a conviction
o Accused, to exonerate themselves, need only raise a reasonable doubt as to their guilt
s. 11(d)
Charter
Any person charged with an offence has the right […]
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal
There was not always this presumption of innocence; in early modern times, there was often a presumption
of malice and the accused had to prove their innocence
Heikki Pihlajamaki, “„Swimming the Witch, Pricking for the Devil‟s Mark‟: Ordeals in the Early Modern
Witchcraft Trials”
Difficult cases were left to God: He showed people the truth, by ordeal
o Ordeals were always the last resort, when all other means of proof had been exhausted
Swimming a witch: throwing her into water with her hands tied to her feet and seeing if she sinks or floats
(sinks innocent; floats guilty)
Pricking for the devil’s mark: search for a mark left by the Devil’s claws on his servant’s body
Ordeals were abolished in 1215; movement to an inquisitorial procedure needed full proof, either a
confession or at least 2 eyewitnesses
o Depended on torture for its success (to get confessions); needed a minimum of proof to allow torture
The history of the law of proof is often presented as a move from “irrational” proofs (such as ordeals) to
“rational proofs”
o However, ordeals had a resurgence during the early modern witch hunts, marring this progression
o This is because witchcraft was particularly hard to prove – so ordeals were a popular way to produce
additional evidence which help accusations acquire additional evidentiary weight
Formula for Conducting the Ordeal of Boiling Water
If person is innocent, their hand will be unscathed by the water because God will save him from the harm
The presumption of innocence is actually relatively new:
Woolmington v. D.P.P. (1935 House of Lords)
Facts: W’s wife left him. He went to where she was staying with a gun and she ended up dying of a gunshot
wound. His story is that he went to scare her into coming back by threatening to commit suicide if she didn’t; the
gun went off by accident and she was killed. Crown obviously says W murdered her. Trial J. directed the jury
that if the Crown had shown that the wife died at W’s hands, the burden of proof lay upon W to show that he did
not do so with any malice or it was an accident.
Issue: Did the trial judge misdirect the jury? Holding: Yes, conviction quashed.
Reasoning (Viscount Sankey L.C.):
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The statement of the law on which the trial J rested his directions is: when it has been proved that one
person’s death has been caused by another, there is an assumption that the act of the person causing the
death is murder. The onus is upon the accused to show that his act did not amount to murder.
The HoL interprets this solely to mean that if it is proved that the conscious act of the accused killed the
victim, and no other evidence appears in the case, he may be convicted
This statement of the law is not meant to ever lay the burden of proof on the accused: the prosecution
must prove the guilt of the accused, the accused must not prove his innocence
o It is sufficient for the accused to raise a doubt as to his guilt – does not have to satisfy the court/
jury of his innocence
Ratio: Prosecution has the burden of proving beyond a reasonable doubt every element of every crime for which
they wish to obtain a conviction. The accused never has to prove their innocence; they merely have to raise a
reasonable doubt as to their guilt.
Akhavan on Woolmington:
The standard which the trial judge applies is that once the physical element of the crime is established, the
mental element (malice) is assumed (this was the instruction to the jury)
o The burden of proof is therefore on the accused to show that he did not kill his wife maliciously
The presumption of innocence dictates that the Crown has to prove that the accused‘s defence (i.e. that it
was an accident) is not plausible – accused does not have to prove it was plausible
This case is from 1935 – this is how recent the presumption of innocence is
The presumption of innocence is constitutionally enshrined in the Charter – there is no criminal liability
unless the Crown proves mens rea beyond a reasonable doubt
CONSTITUTIONAL CONSIDERATIONS OF FAULT
It is also a constitutional requirement that a person be morally blameworthy (i.e. have committed some fault)
before they be deprived (or potentially deprived) of their liberty (R. v. Pontes)
o Is based on s. 7 of the Charter:
s. 7 Charter Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
The general requirement under s. 7 is that there must be a correspondence between the state of mind of
the accused and the gravity of the crime (a proportionality)
o The gravity of the crime is measured by the stigma attached to conviction and its associated penalty
Short of the really really bad ones (murder, crimes v. humanity, etc.), something less than subjective fault
will suffice for most criminal offences
R. v. Durham
(Arbour J.A.)
Not all criminal offences carry the same amount of stigma
The stigma is proportional not only to the gravity of the conduct and its consequences, but to the level
of fault (represented by the mental element) with which the act was performed
It is constitutionally impermissible for Parliament or courts to treat as murder conduct devoid of the essential
characteristic upon which the stigmatization of murderers came to be based – the moral turpitude represented
by the intention to kill
In the same way, if it is his dishonesty that stigmatizes the thief, Parliament will not be permitted to brandish
as a thief someone who has not been shown to be dishonest (unless permitted by s. 1 of the Charter)
The mere stigma of criminal conviction is not enough to ground the requirement for subjective mental
elements in all offences, however
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R. v. Finta (1994 SCC)
Facts: Accused was charged in Canada with crimes against humanity (constituted by unlawful confinement,
robbery, kidnapping, manslaughter) because he was a senior officer at a concentration camp in Hungary.
Issue: Can an accused be convicted of crimes against humanity with the simple mens rea for the underlying
offences? Holding: No, need proof of further subjective mens rea with respect to the crime v. humanity (one
proportional to the stigma associated with being convicted of crimes v. humanity) [with dissent].
Reasoning:
Majority (Cory J.):
A crime against humanity is something different from the underlying offences which constitute it
o The cruel actions which are the essential elements of the offence have to be undertaken in pursuance
of a policy of discrimination or persecution of an identifiable group or race
A crime against humanity is therefore more grievous than manslaughter or kidnapping on its own
So there needs to be a further element of blameworthiness in order to convict someone of CAH.
R. v. Vaillancourt
o For certain crimes, because of the special nature of penalties/stigma attached to conviction, the
principles of fundamental justice require a mens rea reflecting particular nature of the crime
o The question will be: is the conduct sufficiently blameworthy to merit the punishment and
stigma that will ensue upon conviction for that particular offence?
Have to take into account not only the stigma/punishment resulting from the accused’s conviction for the
domestic offences here, but also the additional stigma of a conviction for CAH
The degree of moral turpitude that attaches to crimes v. humanity exceeds that necessary for domestic
offences of manslaughter, etc.
Dissent (La Forest J.):
A mens rea need only be found in relation to the individually blameworthy elements of a CAH
One convicted of murder can face additional stigma because their actions were particularly heinous – but our
system doesn’t take account of the additional public disapproval over and above that imposed by the law
Ratio: The greater the stigma attached to the crime, the stronger the requirement of subjective mens rea is.
Akhavan on Finta:
The court decides that the mens rea for a crime against humanity (in addition to the requisite mens rea for
the underlying offence) is knowledge by the accused that this particular act of violence was part of systemic
violence against a particular group
There must be an additional element of moral blameworthiness for the additional element of stigma that goes
with a crime against humanity
N.B. the SCC has since overruled itself on this point
Should sentencing depend on the mens rea or the physical act? Disagreement here in International Court:
Prosecutor v. Tadic, Sentencing J udgment
Should the court take into account that a crime against humanity is a more serious crime than a simple war
crime in its sentencing? Yes.
A crime which is more grievous should entail a more serious penalty
Prosecutor v. Tadic, Separate Sentencing Opinion of Judge Robinson
Robinson J would have imposed the same sentence for the war crimes as for the crimes v. humanity
Sees no reason that crimes against humanity are more serious than war crimes; furthermore, for sentencing
purposes, there is no justification for imposing a more serious penalty on crimes against humanity when both
crimes have precisely the same factual bases
The gravity of a crime is determined by the intrinsic nature of the act itself, not by its classification
Purpose of the creation of the “crime against humanity” was to fill a gap in the war crimes (to cover heinous
atrocities perpetrated by a group/govt against its own people, rather than nationals of another country)
o The acts proscribed as crimes against humanity are the same acts proscribed as war crimes
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For sentencing purposes, the relevant comparison is not between classifications/nomenclature; rather, the
comparison should be between the specific acts that constitute the specific crimes
Would also be practically difficult to implement such an approach; a crime against humanity would call for
maximum sentence, but that would mean imposing a lighter sentence on a war crime in which there were no
mitigating factors this is artificial and removed from the facts of each case
THE HIERARCHY OF CULPABLE STATES OF MIND
*Subjective states of mind look at what was actually going on the mind of the accused
*Objective states of mind look at what would have been in the mind of the reasonable person, i.e. what
should have been in the mind of the accused
The Criminal Code is a codification of the common law – and the CML uses words inconsistently and
interchangeably: the words intention, purpose, desire, motive, will, all mean different things in different
contexts
Have to go to the Code and read the description of the offence, and interpret the state of mind thereby
required for a conviction
INTENTION AND KNOWLEDGE
The culpable state of mind of intention is formed by the accused’s particular desire to achieve the
prohibited ends of his or her unlawful act.
The culpable state of mind of knowledge is formed by the accused’s ability to foresee the natural
and likely consequences of his or her unlawful act.
Intent v. Motive
Above this Line: Subjective*
Below this Line: Objective*
Regulatory Offences (Mala
Prohibita)
True Crimes (Mala in Se)
Intention
Knowledge
Recklessness
Wilful Blindness
Criminal Negligence
Strict Liability
Absolute Liability
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Intention is not the same thing as motive
Take the following example: 2 people commit two separate robberies of a depanneur. 1 robs the dep to
support a cocaine habit, and the other robs the dep to feed his kids
o Is the reason the person commits the crime relevant to the mens rea? NO.
o Both intended to commit robbery and carried out the act of robbery. It does not matter why they did it
Motive only becomes important at the level of sentencing can be an aggravating or a mitigating factor
R. v. Lewis (1979 SCC)
This case is about the difference between intention and motive.
Facts: Accused was charged with murdering two people. The victims received an electric kettle in the mail, in
which there was a bomb. Crown argued that the accused either made the bomb and mailed it, or at least mailed
the package knowing there was a bomb inside it.
Issue: What is the difference between intention and motive?
Reasoning (Dickson C.J.):
The mental element in criminal law (the mens rea) is concerned with intent, not motive
o By intent, mean the exercise of free will to use particular means to produce a particular result
o By motive, mean that which precedes and induces the exercise of the will
Motive is ulterior intention; the intention with which an intentional act is done
Intention relates to means; motive relates to the end
If the accused causes an actus reus with mens rea, he is guilty of the crime and it is entirely irrelevant
to his guilt that he had a good motive
o The mother who kills her imbecile and suffering child out of motives of compassion is just as guilty of
murder as is the man who kills for gain
Motive is always relevant as evidence; the existence of a motive makes it more likely that the accused in
fact did commit the crime – people do not usually act without motive
o Similarly, proved absence of motive is always an important fact in favour of the accused
But motive is no part of the crime and is legally irrelevant to criminal responsibility – not an essential
element of the prosecutor’s case as a matter of law
Ratio: Motive is why someone has the will to do something; intention is the will to do it. Motive has nothing to
do with mens rea.
Akhavan on Lewis:
This case deals with motive v. intention
Motive is important in 2 respects:
o 1. Evidence of culpability
o 2. Sentencing
But motive is irrelevant to mens rea (although it is sometimes used to describe special intent)
There is one exception: where motive is built into the description of the crime
Special v. General Intent
Sometimes a distinction is made between special intent (dolus specialis) and general intent (dolus
generalis)
The civil law more often makes this distinction – the CML does not really accept these as two distinct
categories that it uses (although cf. the theory on the defence of intoxication)
Special intent: have to desire the particular consequence of your action
o Is a higher standard than mere knowledge of the foreseeable consequences of your action
o Adds an intention to bring them about
General intent: have only to know about the foreseeable consequences of your action – do not have to
desire them, just knowingly bring them about
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R. v. Steane (1947 England Court of Criminal Appeal)
Facts: S is charged with “doing acts likely to assist the enemy with the intent to assist the enemy”. Was an actor,
and was forced by the Nazi government to help create film propaganda. S is claiming the defence of duress: said
that the Nazi government was going to send his wife/children to a concentration camp if he did not cooperate.
Issue: Did S intend to assist the enemy? Holding: No.
Reasoning (Lord Goddard C.J.):
Crown argues that the accused must have intended the natural consequence of his act (i.e. by assisting the
enemy he must have intended to do so)
Not the case. Where the essence of an offence or a necessary constituent of an offence is a particular intent,
that intent must be proved by the Crown just as much as any other fact necessary to constitute the offence
The wording of the regulation (“with the intent to assist the enemy”) shows that it is not enough to prove that
the accused did an act likely to assist the enemy; have to prove that he did it with the particular intent
specified in the regulation
Before any question of duress arises (duress being an excuse), jury must be satisfied that the accused had the
intention which is required by the regulation not the case here.
Ratio: Where special intent is required by the statute, the person must not only know the consequences of his
acts, but desire them.
Akhavan on Steane:
The accused did not have the specific intent to assist the enemy – he had the general knowledge of the
foreseeable consequences of his act, however (i.e. he knew his acts were likely to assist the Nazis)
o But the definition of this crime makes that insufficient for a conviction also needed to desire the
consequences of his action (which he did not)
The defence of duress can be an excuse, or it can negate mens rea in this case, it negates mens rea
o The defence of duress cannot normally negate mens rea unless there is a specific intent requirement to
the crime
In these cases, the defence of duress successfully put forth means the crime was never
consummated (because there is no mens rea, an essential element of the crime)
Steane had KNOWLEDGE, but not INTENTION – is not enough here
“Purpose”
R. v. Hibbert (1995 SCC)
Facts: Victim was H’s friend. H went with the killer to vic’s apartment building; H called the vic down to the
lobby. The killer then shot the vic. H is charged with doing acts for the “purpose of aiding and abetting.” H is
claiming duress.
Issue: Does “purpose” in the section prohibiting aiding an offence mean desire or intent? Holding: Intent.
Reasoning (Lamer C.J.C.):
A person who carries out the actus reus of the criminal offence in response to a threat of death or serious
bodily harm will not necessarily lack the mens rea for that offence
In general, a person who performs an action in response to a threat will know what he or she is doing, and
will be aware of the probable consequences of his or her actions.
Whether or not he or she desires the occurrence of these consequences will depend on circumstances
The existence of threats clearly has a bearing on the motive underlying the decision to act
The provision in question uses the word “purpose”: it is impossible to ascribe a fixed meaning to the term
o can mean immediate intention (“on purpose”)
o or can mean ultimate end one wishes to achieve (“my purpose”) purpose here equals desire
The court interprets the section in question – which says “for the purpose of aiding” – as not requiring that
the accused actively view the commission of the offence he or she is aiding as desirable in and of itself
o As a result, the mens rea for aiding under this section is not susceptible as being “negated” by
duress – it can only be excused
o Whether duress can negate or excuse mens rea in an offence depends on the structure of the
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offence in question – whether or not the mental state specified therein is such that the presence
of coercion logically has a bearing on the existence of mens rea
Ratio: In order to be guilty of aiding someone commit an offence, you do not have to specifically desire the ends
which come about as a result of that help; just have to know about and foresee the consequences of your help.
Akhavan on Hibbert:
The case hinges on the meaning of ―purpose‖ – either desire, or knowledge
If purpose means desire, that would mean that the requirement for mens rea is not fulfilled where the
accused is genuinely opposed or indifferent to the act committed with their help
There is no need for desire in aiding and abetting, the court decides; just knowledge
“Wilfully”
R. v. Buzzanga and Durocher (1979 OCA)
Facts: B&D published an inflammatory pamphlet saying, essentially, that the French minority in Essex County
should be exterminated. They were charged with wilfully promoting hatred against francophones. Ironically,
B&D are francophone; they published the pamphlet in order to stir up the French minority to act to protect
themselves and their culture.
Issue: What does wilfully mean?
Reasoning (Martin J.A.):
The word wilfully does not have a fixed meaning; but in this case, it means with the intention of
promoting hatred (and does not include recklessness)
No mental element is expressly mentioned in the section on the wilful promotion of hatred
o But mens rea is nonetheless required; the inclusion of an offence in the CCC must be taken to
import mens rea in the absence of a clear intention to dispense with it
o The general mens rea which is required (and suffices for most crimes where no mental element
is mentioned in the definition of the crime), is either the intentional or reckless bringing about of
the result that the law, in creating the offence, seeks to prevent
But not this crime: the use of the word “wilfully” indicates Parliament’s intent to limit the offence to the
intentional promotion of hatred
So. Is a consequence intended if it is not desired?
o Some hold that a consequence is not intended unless it is desired
Foresight of the certainty of the consequence is not synonymous of the intention to produce it
o Others say that it is not important if the actor desired the relevant consequence; they say that it is
whether the actor decided to bring it about (even though it may have been distasteful to him)
The intent to produce a consequence is presumed from foresight of the certain result arising
from one’s conduct
Generally, a person who foresees that a consequence is (substantially) certain to result from their act
(which they may do in order to achieve some other purpose) intends that consequence
But not in this case: an intention to create uproar is not the same as an intention to promote hatred – it’s an
error to equate them need a new trial
Ratio: Wilfully means different things. But generally, someone does something wilfully when they act a certain
way and can foresee that some consequences will certainly arise from that act. Those consequences were
wilfully brought about.
Akhavan on Buzzanga & Durocher:
The court decides the accused are not guilty of wilfully promoting hatred because their ultimate purpose was
not to promote hatred, but to actually get Franco-Ontarians to defend their rights
In order to fulfil the mens rea requirement, the intent here had to be special intent (the court doesn‘t use this
word, however) the accused had to desire the result which came about (promoting hatred), not just
foresee it
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R. v. Theroux (1993 SCC)
Facts: T was accused of fraud under s. 380(1) of the CCC. He accepted deposits from investors and told them he
had deposit insurance; he did not.
Issue: What is the necessary mens rea for fraud? Holding: Subjective knowledge of the dishonest act and the
consequences of that act.
Reasoning (McLachlin J.):
Mens rea refers to the guilty mind, the wrongful intention of the accused. Its function in the criminal law is
to prevent the conviction of the morally innocent.
o Mens rea is typically concerned with the consequences of the prohibited actus reus.
The test for mens rea is generally subjective; it is not whether the reasonable person would have
foreseen the consequences of the prohibited act. It is whether the accused subjectively appreciated that
certain consequences would follow from his/her acts.
Fraud: the prohibited act is deceit, falsehood, some dishonest act. The prohibited consequence is deprivation
of another of his property (may consist of merely placing someone’s property at risk)
Mens rea consists in the subjective awareness that one was undertaking the prohibited act which could have
as a consequence deprivation to someone.
Where the conduct and knowledge required by these definitions are established, the accused is guilty
whether he actually intended the prohibited consequence or whether he was reckless as to whether it would
occur or not
The accused’s belief that no one will be hurt in the end affords no defence to the charge of fraud
Ratio: The mens rea of fraud is subjective foresight that deprivation could result from one’s act of deceit.
What is the mens rea required for crimes against humanity? Is motive relevant?
Prosecutor v. Tadic, paras. 238-272 of Main J udgment
Trial chamber decided that in order to convict an accused of crimes against humanity, the prosecution had to
prove the existence of an armed conflict and a nexus between the acts in question and the armed conflict
o Nexus = crimes against humanity had to occur in the course or duration of an armed conflict
o The act must not be unrelated to the armed conflict
Perpetrator must know of the broader context in which the act occurs
The act must not have been carried out for the purely personal motives of the perpetrator
This is incorrect.
The acts of the accused must comprise part of a pattern of widespread/systematic crimes directed against a
civilian population (doesn’t have to be an armed conflict, but it can be)
o The accused must have known that his acts fit into such a pattern
Crimes against humanity can be committed for purely personal reasons, provided that the two
conditions above are met (crimes committed in the context of systematic crimes v. civilian population,
accused knew his acts fit into this pattern)
Personal motive are irrelevant with regard to the constituent elements of crimes against humanity
o Personal motives are generally irrelevant in criminal law (except at sentencing)
Akhavan on Tadic:
Is motive relevant to crimes against humanity? No. The standard is not intent to contribute to the armed
conflict, it is KNOWLEDGE of the armed conflict in which one‘s act takes place.
Crimes against humanity are not special-intent crimes
What is the mens rea for genocide? Is motive relevant?
Prosecutor v. J elisic
The mens rea of genocide is the special intent to destroy, in whole or in part, a national, ethnic, racial, or
religious group as such
The trial chamber said that the accused did not have this special intent – he was just a sadist
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Doesn’t matter if he is a sadist, says Court of Appeal, as long as he applied his sadism to the systematic
destruction of Muslims – which he did, or the trial chamber could reasonably have concluded he did
Akhavan on Jelisic:
Genocide is a special-intent crime – an opportunistic crime would not qualify for genocode have to intend
to commit mass murder for the purpose of extermination of a group
Jelisic was a sadistic camp guard who openly boasted about how many Muslims he had killed
The trial chamber said he did not commit genocide because he committed the underlying crimes for the
purpose of domination, lust for power
o But the trial chamber thereby confuses motive and special intent
All the special intent for genocide requires is the desire to bring about the destruction of a group – does not
matter WHY one wants to destroy the group
RECKLESSNESS AND WILFUL BLINDNESS
Recklessness and wilful blindness are two forms of subjective mens rea or fault that are thought to be
extensions of the core standards of intention and knowledge
o Recklessness is the extension of intention
o Wilful blindness is the extension of knowledge
Recklessness
The culpable state of mind of recklessness is formed when the accused knows of the risk that
certain consequences will arise from his or her act, and yet proceeds in the face of that risk.
The subjective state of mind for recklessness is knowledge of the risk that certain consequences may
result from one’s act, and persistence despite the risk
o It is different from the state of mind of knowledge because knowledge entails straight foreseeability of
the consequences of one‘s act (not foreseeability of the risk of consequences)
Recklessness has also been difficult to distinguish from negligence: what if the person did not foresee the
risk at all? Can we convict them because they ought to have foreseen the risk?
o No. They are stupid, but cannot convict, because recklessness is a subjective standard. They have to
have foreseen the risk and persisted regardless (R. v. G. [2003 England House of Lords]).
R. v. Cooper (1993 SCC)
Facts: Cooper blacked out from alcohol consumption and strangled his girlfriend to death. Charged with murder.
Issue: Was C reckless as to the consequences of infliction of bodily harm upon the vic? (No holding in excerpt).
Reasoning (Cory J.):
It is not sufficient for someone to simply foresee a danger of death (arising from their bodily harm of the
victim) have to foresee the likelihood of death flowing from the bodily harm he is occasioning the vic.
The intent that must be demonstrated in order to convict someone under the “reckless” section of culpable
homicide is:
o Subjective intent to cause bodily harm
o Subjective knowledge that the bodily harm is of such a nature that it is likely to result in death.
Ratio: The standard for the mens rea in murder, where the mental state alleged is recklessness, is higher than
with other offences: death must be foreseeably LIKELY.
Akhavan on Cooper:
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Murder is a particularly serious charge; the standard for the culpable mental state of recklessness becomes
not foreseeability of the risk of death and persistence despite that risk, but foreseeability of the likelihood of
death and persistence despite that probability.
This is a higher standard of recklessness, because the charge is so serious
Wilful Blindness
The culpable state of mind of wilful blindness is formed when the accused knows that he or she
should make further inquiries about something, but deliberately chooses not to do so in order to
avoid knowledge of certain relevant facts.
The subjective state of mind required for wilful blindness is deliberate ignorance; the accused has to have
knowledge of circumstances that puts him on notice that he needs to inquire further about something,
and yet he purposely fails to do so
Wilful blindness is different from criminal negligence, because:
o Criminal negligence says ―you should have known‖
Is objective
o Wilful blindness says ―you know you should have known, you had reason to know, but you didn‘t
bother to find out‖
Is subjective
N.B. the defence of mistake of fact (I thought things were X, but they were Y) does not excuse wilful
blindness, because the mistake of fact is therefore made on purpose (see Sansregret)
R. v. Sansregret (1985 SCC)
Facts: S was charged with sexually violating the vic after breaking into her home, assaulting her, and terrorizing
her. Vic became compliant with the accused to ensure her safety. Accused at trial raised the defence of mistake
of fact in consent – i.e. he claimed he honestly thought she wanted to have sex with him.
Issue: Was the accused wilfully blind as to the vic’s lack of consent? Holding: Yes.
Reasoning (McIntyre J.):
Recklessness is when someone sees the risk that his conduct could bring about a result prohibited by
criminal law, but nevertheless persists. I.e. the person takes the chance that they break the law.
o Involves knowledge of a danger or risk and persistence in the course of conduct
o The culpability in recklessness is justified by consciousness of the risk and proceeding in the face of it
Wilful blindness arises when a person who has become aware of the need for some inquiry declines to
make that inquiry because he does not wish to know the truth – would prefer to remain ignorant
o Culpability in wilful blindness is justified by the accused’s fault in deliberately failing to inquire
when he knows there is a reason for inquiry
o Wilful blindness is equivalent to knowledge
o This doctrine is of narrow application; a court can properly find wilful blindness only where it can
almost be said the defendant actually knew – he suspected the fact, he realized its probability, but
he refrained from obtaining confirmation because he wanted to be able to deny knowledge
S was wilfully blind here; he knew he should inquire into the nature of the vic’s consent, but he didn’t
Ratio: Wilful blindness is equivalent to knowledge. Arises when the person suspects the facts that would have
created knowledge, but deliberately refrains from confirming them.
Akhavan on Sansregret:
Common sense says that no one could have thought this sex was consensual – but the standard of mens rea is
subjective have to show that this accused knew it was non-consensual in order to convict him
It is difficult to demonstrate subjective knowledge – so lower standards of mens rea exist to help the Crown
o Considering the circumstances, the accused had reason to inquire further into his victim‘s consent
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o But he did not make that inquiry – and therefore the knowledge he deliberately avoided is imputed to
him
Mistake of fact is not a defence here (―I thought she was consenting‖) because the accused is making the
mistake of fact on purpose (you didn‘t ask if she was consenting so you could keep thinking she was)
A person is wilfully blind when they almost knew
R. v. Duong (1998 OCA)
Facts: D harboured a murderer (L) in his apartment. He had heard about the killing in the media and knew L was
“in trouble for murder.” Was charged with being an accessory after the fact of murder.
Issue: Was D wilfully blind to the fact that L was wanted for murder? Holding: Yes.
Reasoning (Doherty J.A.):
In order to prove that someone was an accessory after the fact (of an offence), Crown must prove that the
alleged accessory knew that the person they assisted was party to that offence
o Wilful blindness will suffice.
Deliberately choosing not to know something when given reason to believe further inquiry is necessary
can satisfy the mental element of the offence
o Where the Crown proves the existence of a fact in issue (ex. L is a murderer); and when knowledge of
that fact is a component of the fault requirement of the crime charged (ex. accessory after the fact);
wilful blindness as to the existence of that fact is sufficient to establish a culpable state of mind
o The standard is still subjective.
Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that
suspicion, is equated in the eyes of the criminal law with actual knowledge
There is no need for the accused to have the means to verify the accuracy of his or her suspicions
o What is being punished here is the decision not to inquire once suspicions arise – not the hypothetical
result of those inquiries
Ratio: Wilful blindness is equivalent to knowledge in the criminal law. Arises when someone suspects a fact but
deliberately does not inquire to confirm it because they do not want to know.
Akhavan on Duong:
There is an element of deliberation here that distinguishes wilful blindness from criminal negligence
o There is a conscious decision not to know with wilful blindness; with criminal negligence, there is just
sheer ignorance – no suspicion of the fact which one does not know and no decision not to know it
There is a wilful blindness standard in command responsibility:
Prosecutor v. Blaskic
The mens rea for command responsibility is actual knowledge OR information which would oblige the
commander to conduct further inquiry
Commander has a duty to prevent (future violations by his subordinates) and a duty to punish (past
violations by his subordinates) – if he is wilfully blind to either, will be found guilty
Jenny S. Martinez, “Understanding Mens Rea in Command Responsibility”
There has been a variety of views articulated by international tribunals as to what the mental state required
for command liability is
o A consensus has emerged that liability can be imposed for a leader’s failure to act in the context of
actual knowledge by subordinates
The finding of actual knowledge can be based on express evidence OR an inference of
knowledge based on the widespread nature of the offences
o Almost all cases have also suggested that even in the absence of proof of actual knowledge, a
culpable failure to obtain information about the conduct of subordinates might suffice
CRIMINAL NEGLIGENCE
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Section 7 of the Charter requires, as a principle of fundamental justice, that there be proportionality
between the mental fault of the accused and the gravity of the crime with which they are to be convicted
o There are two elements to the gravity of the crime:
1. Stigma
2. Penalty
The standard of civil negligence is: when a person does not act as the reasonable person would in the
circumstances
The standard for criminal negligence is when the accused’s behaviour shows a marked departure
from the standard of behaviour of the reasonable person.
We do not know if proof of criminal negligence requires proof of mens rea on an objective or a
subjective standard (SCC continues to split on the decisions)
o Objective standards of fault focus on what the accused ought to have thought or contemplated about his
actions, as opposed to what he actually did think about
The way the gap may be bridged is as follows: by particularizing the reasonable person test to take into
account the age, education, and socio-economic class of the accused
o The court must ask: was it reasonable for THIS person to do what they did in the circumstances?
The more ―true‖ the crime, the more particularized and in concreto the reasonable person test must become
in order to be constitutionally valid
o Or at least this is the approach being taken in practice in light of the lack of guidance by the SCC
R. v. Tutton and Tutton (1989 SCC)
Facts: Two parents, the Tuttons, were accused of causing the death of their five-year-old son. Their son was a
diabetic; but they refused to give him his insulin, because they believed in faith healing.
Issue: Is the test for criminal negligence subjective or objective? Holding: Split 3-3 (new trial ordered).
Reasoning:
McIntyre J. + 1: objective test for criminal negligence
In deciding if someone has shown wanton or reckless disregard for the lives or safety of other persons,
the authorities dictate an objective test
o It is the conduct of the accused, as opposed to his intention or mental state, which is examined
What is made criminal in the crime of ―criminal negligence‖ is negligence; negligence is the opposite of
thought-directed action – the use of the word negligence precludes the element of positive intent to achieve
a given result
What is punished is the consequences of mindless action, not the state of mind
o In criminal cases, the act coupled with the intent is punished
o In criminal negligence, the act which exhibits the requisite degree of negligence is punished
The test for criminal negligence is that of reasonableness – proof of conduct which reveals a marked and
significant departure from the standard which could be expected of a reasonably prudent person in the
circumstances will justify a conviction of criminal negligence
Lamer J.:
Agreement with McIntyre J. subject to the following: when applying the objective norm, generous allowance
must be made for factors which are particular to the accused (ex. youth, mental development, education)
Wilson J. + 2:
Disagreement that criminal negligence only requires breach of an objective standard and no degree of guilty
knowledge by the accused
What is prohibited is not negligence simpliciter, but criminal negligence – this requires the Crown to
prove advertence or awareness of the risk that the prohibited consequences will come to pass
The failure to give any thought to whether there is a risk or not cannot be substituted for a mental
state of recklessness
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Ratio: Court splits over whether the test for criminal negligence is subjective or objective.
Commentary:
The split is reiterated in R. v. Waite (1989 SCC): Wilson J. revises her position downwards, and says that the
―mental element in criminal negligence is the minimal intent of awareness of the prohibited risk or wilful
blindness to the risk‖ – just need awareness of the risk, and the reasonable person test is applied
Akhavan on Tutton:
Was it foreseeable that the kid would die?
o Objectively: Yes
o Subjectively: No, not if you believe, as the Tuttons did, in faith-healing.
Wilson & Co. JJ. do not feel comfortable convicting the Tuttons of manslaughter with the mental fault of
just being stupid enough to believe in faith healing – there is no maliciousness in that
o Wilson J. focuses on the requirement of ―recklessness‖
o The Tuttons did not see any risk which they proceeded in the face of; they were not aware they were
taking any risk
The objective test of McIntyre J. shifts away from a mens rea analysis towards an actus reus analysis the
punishment is particularly for committing a mindless action; to require mens rea is at odds with the nature of
the crime
o Focus on ―negligence‖
R. v. Gingrich and McLean (1991 OCA)
Facts: M, the president of a trucking company and G, the truck driver, were charged with criminal negligence
causing death. A truck‘s brakes failed and caused a fatal car accident. G had been experiencing increasing brake
problems over several days.
Issue: Is the test for criminal negligence subjective or objective? Holding: Objective.
Reasoning (Finlayson J.A.):
The crime in criminal negligence is negligence; no need to import the concept of subjective intent in order to
obtain a conviction.
The crime is the regular old civil negligence; it‘s just elevated to a crime by the magnitude of wanton and
reckless disregard for the lives and safety of others shown by the accused
Ratio: The test for criminal negligence is objective.
Note: the OCA goes with McIntyre J.’s objective standard.
R. v. Hundal (1993 SCC)
Facts: H charged with dangerous driving causing death. H, driving an overloaded dump truck, ran a red light and
killed someone in the intersection. H thought light was orange; he thought it was too dangerous to try to stop.
Issue: How should the objective test of criminal negligence be applied?
Reasoning:
Even though the test for dangerous driving is objective, it remains open to the accused to raise a
reasonable doubt as to whether a reasonable person would have been aware of the risks attending the
accused’s conduct
Objective test should not be applied in a vacuum, but rather in context of events surrounding incident
As a general rule, personal factors do not need to be taken into account
Akhavan on Hundal:
Dangerous driving is a semi-regulatory offence – so the objective standard applies
Personal factors especially do not need to be taken into account with driving, because it is a licensed activity
If this were a subjective test, the truck driver could say that he did not know about the risk that he could kill
someone by doing this, and he would be acquitted
But because this is an objective standard, the court tells the accused that he SHOULD have known about the
risk and altered his behaviour accordingly
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o His good faith can be taken into account at sentencing
R. v. Creighton (1993 SCC)
Facts: Accused shot up his girlfriend with cocaine and she died. He is charged with unlawful act manslaughter.
Issue: How much should the objective test for criminal negligence be personalized to the accused?
Reasoning:
The Court Agrees on:
The mens rea of a criminal offence can be either subjective or objective (subject to the principle of
fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty)
o An objective fault requirement is constitutionally sufficient for some offences
Subjective mens rea requires that the accused intended the consequences of his acts; or, knowing the
probable consequences of his acts, he proceeded recklessly in the face of the risk
o The requisite intent/knowledge can be inferred from what the accused says about his mental state, or
indirectly from the act and its circumstances
o In either case, the inquiry is concerned with what was actually going on in the mind of this particular
accused at the time in question
Objective mens rea is not concerned with what the accused intended or knew. The mental fault lies in a
failure to direct the mind to a risk which the reasonable person would have appreciated
o Objective mens rea is concerned with what should have been in the accused‘s mind (but was not) had
the accused proceeded reasonably
Those who cause harm intentionally should be punished more severely than those who cause harm
inadvertently
o Acts of ordinary negligence may not suffice to justify imprisonment
o The negligence must constitute a ―marked departure‖ from the standard of the reasonable person to
justify criminal liability
Lamer C.J. in dissent:
For offences which prohibit a consequence, and the consequence is the essence of the offence, mens rea
must be proven in relation to that consequence
o So in manslaughter, consequence is death; mens rea must be reasonable foreseeability of death (not
just bodily harm) [n.b. this is not the accepted standard for manslaughter at all – this is the standard
for second-degree murder]
An accused can only be held to the standard of a reasonable person if the accused was capable, in the
circumstances of the offence, of reaching that standard
o Have to pay attention to any human frailties which might have caused the accused to be
incapable of foreseeing what the reasonable person would have foreseen
o If the standard were totally inflexible, the people who couldn‘t reach the standard would be subject to
absolute liability
o The RP standard can go up or down, in light of the accused‘s experience
This is still not a subjective test; it is the reasonable person with the frailties (or advantages) of the
accused – if they would have foreseen the risk, and the accused did not, the accused will be convicted
Only the frailties that affect the accused‘s capacity to appreciate the risk in question are relevant – should be
characteristics which the accused cannot control
McLachlin J. for the majority:
McLachlin disagrees with the Chief Justice on a central point: the CJ personalizes the objective test too
much. She would see a more limited space for taking into account the personal mental or psychological
frailties of the accused.
The law can hold people who engage in risky activities to a minimum standard of care; but the law
should not punish the morally innocent
o The criminal law should maintain a single, uniform legal standard of care for objective-mens
rea offences, subject to one exception:
Incapacity to appreciate the nature of the risk which the activity in question entails
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Personal characteristics are only relevant insofar as they establish incapacity
Provided capacity to appreciate the risk is present, frailties serve as no excuse for criminal conduct
o May be important in sentencing
Ratio: The required mental state for manslaughter is objective foreseeability of bodily harm which is neither
transient nor trivial – personal factors may not be taken into account to decrease the standard.
Akhavan on Creighton:
Everyone – majority and dissent – agrees that the standard to be applied to the accused is objective
But the dissent‘s objective standard for criminal negligence is too high – by personalizing the test too much,
the dissent lowers the minimum standard of care (thereby raising the standard for being found guilty of
criminal negligence)
The majority (McLachlin J.) would prefer a more in abstracto reasonable person test
STRICT LIABILITY AND ABSOLUTE LIABILITY
Strict liability and absolute liability are objective states of fault – the focus is on the prohibited act, not the
mens rea (state of mind) with which the accused perpetrated the act
Strict Liability: the standard is the plain negligence standard (not criminal negligence) any departure from
reasonable behaviour will engage strict liability
The defence to the commission of a strict-liability regulatory offence is due diligence
The Crown proves the accused committed the actus reus, and then the burden of proof shifts to the defendant
to exonerate themselves by showing they did their due diligence
Imprisonment is possible for a strict liability offence, because there is fault on the part of the accused in
their negligence (lack of due diligence)
An accused will be convicted of a strict liability offence if the Crown proves their commission of
the actus reus beyond a reasonable doubt, and the accused is not able to prove he or she was duly
diligent, on a balance of probabilities.
Absolute Liability: proof that the accused committed the actus reus beyond a reasonable doubt is dispositive of
their guilt – there is no defence to an absolute liability offence
There is no fault requirement for an absolute liability offence
Imprisonment is therefore impossible as a penalty upon conviction of an absolute liability offence
o If there were, it would violate s. 7 of the Charter (proportionality between fault and gravity of crime)
An accused will be convicted of an absolute liability offence if the Crown proves their commission
of the actus reus beyond a reasonable doubt. There is no possible defence.
Courts were always uncomfortable with allowing people to be imprisoned without a guilty state of mind, even
before the enactment of the Charter:
Beaver v. the Queen (1957 SCC)
Facts: Beaver was charged on two counts under the Opium and Narcotic Drug Act: for having a drug in his
possession, and for selling what either was/was represented to be a drug (both have a mandatory prison
sentence). Beaver said he thought the heroin he sold the undercover cop (as heroin) was icing sugar.
Issue: Is Beaver‘s lack of knowledge relevant? Holding: Only for the possession charge, with dissent.
Reasoning:
Cartwright J. for the majority:
The majority refuses to interpret the statute as manifesting Parliament‘s intention to create a crime of
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absolute responsibility (no necessary mens rea) and attach a mandatory prison sentence
So they interpret the possession prohibition as requiring knowledge that you‘re possessing a drug in order to
be convicted for possession
So the majority quashes the possession conviction
But the sale conviction is affirmed, because even if Beaver didn‘t know he was selling heroin, he represented
his product as heroin – that‘s the mens rea required by the statute
Fauteux J. for the dissent:
The object of the Act is to prevent the harm caused to society by an uncontrolled traffic in drugs, by rigidly
controlling possession of drugs
On the plain, literal, and grammatical meaning of the words of the statute, there is an absolute prohibition to
be in possession of drugs, whether you know they are drugs or not
o It‘s severe, but it is manifestly the intent of Parliament
o The enforcement of the Act‘s provisions may in exceptional cases lead to injustice
Ratio: Even before the Charter, courts were hesitant to send people to jail without requiring some mens rea first.
Akhavan on Beaver:
Majority reads in minimal mens rea requirements to the statute; dissent does not like this: says if Parliament
wishes to create an absolute-liability offence, it can (remember, this is before the Charter)
This case also occurred before the Charter: note Cartwright J.’s consistency with Beaver
R. v. Pierce Fisheries Ltd. (1970 SCC)
Facts: Accused brought in 50-60,000 lbs. of lobster; had 26 undersized lobsters in the whole lot. Did not know
they had them. Was acquitted on the charge of fishing undersized lobster. Appeal.
Issue: Is the accused liable for violating the regulation? Holding: Yes, with dissent.
Reasoning:
Ritchie J. for the majority:
This regulation should be understood in accordance with its language – no need for mens rea
Accused had undersized lobster; accused is guilty.
Cartwright C.J. for the dissent:
There can be no possession without knowledge of the character of the forbidden substance
The accused had no knowledge, factually or inferentially, that any of the lobsters were undersize
This leads to a finding of not guilty
Ratio: Not all offences require mens rea.
Akhavan on Pierce Fisheries Ltd.:
This case is to be distinguished from Beaver because there is no stigma associated with catching undersized
lobsters (at least not compared with dealing drugs)
So it‘s much more acceptable to have an absolute liability offence in this context
But is it fair? The fishermen in question did not even know they had the undersized lobsters in their
possession
o The aim is to incentivize them into ensuring they don‘t catch undersized lobsters, on purpose or even by
accident to do their due diligence
The fines for breaking these regulatory rules need to be harsh in order to deter the undesirable conduct
Why do we have regulatory offences?
Regulatory offences prohibit actions which are not wrongful in themselves; they are unlawful simply
because they are prohibited
Regulatory offences exist to allow the State to regulate particular activities in the public interest
Description of the development of regulatory offences, as opposed to “true criminal offences”:
R. v. Wholesale Travel Group (1991 SCC)
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The essential distinction between regulatory offences and true criminal offences is the removal of the
requirement of mens rea from the former
o Acts/actions are criminal when they constitute conduct that is, in itself, abhorrent to the values of
human society (so it must be prohibited)
Directed to punishing past harm; is value-oriented
o Some conduct is prohibited not because it is inherently wrongful, but because it is in the public
interest to regulate the activity in this way
Directed to preventing future harm; is results-oriented
Not the same degree of moral blameworthiness as true crimes
Regulatory legislation is the primary means used by the government to implement public
policy – regulation is essential for our protection and wellbeing as individuals and as a society
Sault Ste. Marie not only affirmed the distinction between regulatory and criminal offences, but it
subdivided regulatory offences into categories of strict and absolute liability: recognized strict liability
as a middle ground between full mens rea and absolute liability
o Where the offence is one of strict liability, the Crown doesn‘t have to prove either mens rea or
negligence – only have to prove beyond a reasonable doubt commission of the prohibited act
o However, it is open to the defendant to avoid liability by proving on a balance of probabilities that all
due care was taken
o The hallmark of the strict liability offence is the defence of due diligence available to accused
This is the case that created strict liability offences:
R. v. City of Sault Ste. Marie (1978 SCC)
Facts: City was charged with illegal dumping in a river.
Issue: Is the offence strict liability or absolute liability? Holding: Strict.
Reasoning (Dickson J.):
There has been a tendency in past cases to see only two kinds of offences: full mens rea or absolute liability
o It is time for the courts to seek a middle position which still fulfils the goals of public welfare
offences without punishing the entirely blameless
o This middle position is an offence which does not require full mens rea; but the accused can
exonerate himself by proving he was not negligent
o In this middle-position offence, the prosecution does not have to prove mens rea (almost impossible in
regulatory offences), only actus reus (beyond a reasonable doubt); the accused has to come forward
with proof (on a balance of probabilities) of due diligence
There are three categories of offences now:
o 1. True Criminal Offences (full mens rea): in order to obtain conviction, prosecution must prove
beyond a reasonable doubt that the accused committed the culpable act AND that the accused
possessed some positive blameworthy state of mind such as intent, knowledge, or recklessness.
o 2. Strict Liability: no necessity for the prosecution to prove mens rea. They have to prove actus reus,
beyond a reasonable doubt.
It is open to the accused to avoid liability by proving that he took all reasonable care – that he
exercised due diligence
This involves consideration of what a reasonable man would have done in the circumstances
o 3. Absolute Liability: The prosecution has to prove actus reus beyond a reasonable doubt. It is not
open to the accused to exculpate himself by showing that he was free of fault.
Offences of absolute liability are those for which the Legislature has made clear that guilt follow proof of the
proscribed act alone
o The overall regulatory pattern, the subject matter of the legislation, the importance of the penalty, and
the precision of the language used will all be primary considerations in determining whether the
offence falls into the absolute-liability category
Ratio: There now exists a third type of offence – strict liability.
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This is the case that says absolute liability offences and imprisonment are incompatible:
Reference re Section 94(2) of the B.C. Motor Vehicle Act (1985 SCC)
Facts: s. 94(2) of the BC Motor Vehicle Act creates an absolute liability offence – if a person is driving with a
suspended license, they are liable to a minimum prison sentence of 7 days, regardless of whether or not they
knew their license was suspended.
Issue: Is this legislation constitutional? Holding: No.
Reasoning (Lamer J.):
A law that has the potential to convict a person who hasn‘t done anything wrong offends the principles of
fundamental justice
o If imprisonment as available as a penalty, the law violates the person‘s s. 7 rights
Absolute liability and imprisonment cannot be combined – even if the imprisonment is only possible
and not mandatory is still a violation of s. 7.
o N.B. even probation (without imprisonment) would violate s. 7
Ratio: An absolute liability offence cannot give rise to a possible prison sentence because it would thereby
violate s. 7 of the Charter.
Akhavan on B.C. Motor Vehicle:
The Court says that it is against a principle of fundamental justice to allow a prison sentence without fault
And the court cannot interpret the offence as strict liability instead if there is no ambiguity in the statute
they must strike it down
Follow-up to B.C. Motor Vehicle:
R. v. Pontes (1995 SCC)
Facts: BC government, in response to Reference re s. 94(2) of the BC Motor Vehicle Act, repealed that section.
Issue: Does the remaining section still create an absolute liability offence? Holding: Yes, with dissent.
Reasoning:
Cory J. for the majority:
Any provincial regulatory offence providing for a term of imprisonment must make a defence of due
diligence available to the accused
These sections still eliminate the defence of due diligence; would be unconstitutional if there were not other
legislation prohibiting that an absolute liability offence give rise to a prison sentence (which there is)
Gonthier J. for the dissent:
The section is now a strict liability offence because the defence of due diligence is available
The legislature has not used language of sufficient precision to make it clear that the offence now created is
to be of absolute liability
Ratio: An absolute liability offence will be unconstitutional if it is possible that the accused will be sentenced
with imprisonment upon conviction.
How do you know what kind of offence you’re dealing with?
An offence is an absolute liability offence when the Legislature clearly states that it is absolute
liability, or that the defence of due diligence is not available to the accused.
- Sault Ste. Marie
An offence is a strict liability offence when:
1. The Legislature does not clearly state that it is absolute liability, or
2. The Legislature does not clearly state that the defence of due diligence is not available to
the accused, or
3. There is a possibility of imprisonment upon conviction (n.b. when the possibility of imprisonment is
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combined with a clear statement that the offence is absolute liability, such a provision must be struck down, not
interpreted as strict liability)
- Sault Ste. Marie / B.C. Motor Vehicle
Further Constitutional Considerations of Absolute and Strict Liability
Absolute liability:
R. v. Transport Robert (2003 SCC)
Facts: s. 84.1(1) of Ontario‘s Highway Traffic Act provides that an owner and operator of a commercial vehicle
are guilty of an offence when a wheel comes detached from the motor vehicle while it is on the highway;
provides that due diligence is not a defence; imposes a fine as a penalty.
Issue: Can the legislature create an absolute liability offence that imposes a high fine on the convicted?
Holding: Yes.
Reasoning (The Court):
The accused argue that this provision violates s. 7 (security of the person) and s. 11(d) (presumption of
innocence).
It does not violate s. 11(d): this section of the Charter only prohibits the reversal of the burden of proof of a
fact that is an element of the offence
o This section does not say anything about the elimination of an element (such as mens rea)
It does not violate s. 7 by removing a due diligence offence – the stigma attached to conviction and the
mental stress imposed by the fine are not so extreme as to engage s. 7 rights
Ratio: An absolute liability offence is constitutional if its penalty is a high fine (unaccompanied by
imprisonment).
Strict liability:
R. v. Wholesale Travel Group I nc. (1991 SCC)
Facts: The accused corporation was charged with false advertising under the Competition Act. It is a strict
liability offence – accused can exonerate themselves with proof of due diligence on a balance of probabilities.
Issue: Does the offence violate s. 7 or s. 11(d) of the Charter? Holding: No, with dissent.
Reasoning:
Lamer C.J for the majority on s. 7: no violation
The accused argued that a conviction for false advertising creates enough stigma (of dishonesty) that it
requires a mens rea component in order to be proportional
Vaillancourt: the principles of fundamental justice dictate that negligence is the minimum fault
requirement where an accused faces possible imprisonment upon conviction (except for certain
offences such as murder – higher fault requirement)
o The standard here is negligence
Cory J. for the majority on s. 11(d): no violation
There are reasons for ascribing a different content to the presumption of innocence in a regulatory context
o If the Crown were required to disprove due diligence beyond a reasonable doubt, it would be
impossible to convict for regulatory offences – lack of enforcement
o This would prevent the government from implementing public policy through regulation
o Only accused will be in a position to bring forward evidence relevant to the question of due diligence
No violation of s. 11(d)
Lamer C.J. for the dissent on s. 11(d): yes violation
Because the accused needs to prove due diligence on a balance of probabilities in order to exonerate
themselves, a court that is not convinced on a balance of probabilities must convict
But it is possible a court may not be convinced on a balance of probabilities that the accused was duly
diligent but still has a reasonable doubt as to whether the accused was actually negligent
o This court has to convict despite a reasonable doubt as to the guilt of the accused
o This violates the presumption of innocence
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Cannot be saved under s. 1
Ratio: Minimum fault requirement for penalty of imprisonment is negligence; in strict liability offences,
negligence is the standard. Accused bears burden of having to prove his due diligence in order to exonerate
himself.
Commentary: In R. v. Ellis-Don Ltd., OCA accepted the argument based on Lamer C.J.‘s reasoning that strict
liability offences violate the presumption of innocence by forcing the accused to raise more than a reasonable
doubt as to their due diligence (they have to prove it on a balance of probabilities). This holding was overturned
on appeal to the SCC.
Don Stuart, “R. v. Transport Robert: is the Sault Ste. Marie Approach to Regulatory Offences About to
Disappear?”
Sault Ste. Marie held that there was no point in punishing where due diligence had been taken – so it
is assumed that unless the Legislature says otherwise, offences are strict liability (not absolute)
BC Motor Vehicle held that an offence cannot be absolute liability when it threatens the liberty interest
protected by s. 7 with imprisonment or probation Pontes upheld this ruling
Transport Robert held that there was no violation of s. 7 by an absolute liability offence which did not admit
of a possibility of imprisonment
o But there is a strong argument that they do – why punish someone who has taken all reasonable
measures to guard against what occurred?
o Punishment is not justly imposed in these cases – threat to the security interest
o If due diligence was not taken, then imprisonment should be available as a penalty
Author seems to be arguing for doing away with absolute liability altogether in favour of strict
liability
PART V. SPECIFIC CRIMES: HOMICIDE AND SEXUAL ASSAULT
HOMICIDE
Section 222 of the Criminal Code defines homicide in general:
s. 222 CCC (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a
human being.
Kinds of homicide
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(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.
[…]
Second-Degree Murder
The actus reus for second-degree murder is the causation of death to a human being. The mens rea
for second-degree murder is intent to kill or intent to cause bodily harm that the accused knows
is likely to result in the victim’s death.
Murder is the paradigmatic true crime – the gravest crime that exists in our society; highest stigma and
highest punishment attend it
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o Both second-degree murder and first-degree murder carry a mandatory sentence of life imprisonment
With second-degree murder, the trial judge may set parole ineligibility between 10 to 25 years
With first-degree, parole ineligibility must be set at 25 years
An act must first be judged to be murder in general before it is decided to be first- or second-degree murder
This section creates the substantive offence of murder:
s. 229 CCC Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless
whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that
he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or
mistake causes death to another human being, notwithstanding that he does not mean to cause death or
bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to
cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his
object without causing death or bodily harm to any human being.
s. 229(a)(i) the mens rea requirement is special intent: the accused wanted to kill that person (see
Simpson)
s. 229(a)(ii) the mens rea requirement is either knowledge or recklessness (see Cooper)
s. 229(b) the mens rea requirement is special intent, knowledge, or recklessness with respect to
another person, not the one the accused ends up killing (―transferred intent‖) (see Fontaine)
s. 229(c) the mens rea requirement is hotly debated: is it knowledge or objective foreseeability? All
felony-murder provisions are plagued by constitutional questions concerning the standard of intent.
Section 229(a) – intentional or reckless killing
R. v. Simpson (1981 OCA)
Facts: S attacked and tried to kill two girls in one night.
Issue: Were the trial judge‘s instructions to the jury right? Holding: No.
Reasoning (Martin J.A.):
The trial judge, in paraphrasing s. 229(a)(ii), did not say that the culpable state of mind was that the accused
meant to cause bodily harm that he knew was likely to cause death (which is the right construction)
o Rather he said that the culpable state of mind was that the accused means to cause bodily harm that he
knows or ought to know is likely to cause death
Liability under this section is subjective – to use ―ought to know‖ makes the liability objective
Ratio: Murder is a subjective-intent crime: have to show the accused did know that the bodily harm he was
occasioning the victim was likely to cause death, not that he should have known.
Section 229(a)(ii) – reckless killing
R. v. Cooper (1993 SCC)
Facts: C was highly intoxicated; got angry with his girlfriend, grabbed her by the throat and shook her. Blacked
out and strangled her to death.
Issue: What is the culpable state of mind necessary for a conviction under s. 229(a)(ii)?
Reasoning (Cory J.):
The nature of the intent required to secure a conviction under s. 229(a)(ii) is: the intent to cause bodily
harm of such a grave and serious nature that the accused knew that it was likely to result in the death
of the victim
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o The aspect of recklessness is almost an afterthought
o One who cases bodily harm that he knows is likely to cause death must, of necessity, be reckless
as to whether death ensues or not
N.B. It is not enough that the accused simply foresees the danger of death; the accused must foresee a
likelihood of death flowing from the bodily harm that he is occasioning the victim
So the Crown has to prove two mental elements to secure a conviction of second-degree murder:
o 1. Subjective intent to cause bodily harm
o 2. Subjective knowledge that the bodily harm is of such a nature that it is likely to result in death
In this case, it is open to the jury to infer that by seizing the victim by the neck, Cooper intended to cause her
bodily harm that he knew was likely to cause her death (because he knew breathing is essential to life and
therefore that strangulation would likely kill her)
Ratio: The intent required for second-degree murder is intent to cause bodily harm and knowledge that the harm
is severe enough to likely result in death.
Section 229(b) – transferred intent
R. v. Fontaine (2002 MCA)
Facts: F was intent on committing suicide – he deliberately drove his car into oncoming traffic and killed two of
his passengers, but not himself.
Issue: Is F guilty of second-degree murder under s. 229(b)? Holding: No.
Reasoning (Steel J.A.):
Murder is a crime of specific intent; by virtue of s. 229(b) of the Criminal Code, a person will be
deemed to have that specific intent when, intending to kill one person, he mistakenly kills another
The question here is whether the accused in this case, intending to kill himself, can have that intent
transferred to the other people he killed instead
Some cases have interpreted ―cause death to any human being‖ as including oneself as a human being
o This could result in a person being convicted of murder for trying to commit suicide
o But suicide is no longer a crime in the CCC
Suicide differs conceptually from murder – murder is the intentional killing of “another”
o Suicide is not seen as a morally blameworthy act any longer – it is rather an act of desperation
o People who try to commit suicide do not need punishment and stigma, they need treatment
To equate the mens rea for suicide with that for murder would offend the principle that people should
only be subject to the penalty/stigma of criminal liability when they act in a morally blameworthy way
Ratio: The intent to commit suicide cannot be ―transferred‖ to the accidental killing of others in order to convict
the accused of second-degree murder.
Section 229(c) – unlawful object
R. v. Tennant and Naccarato (1975 OCA)
s. 229(c) grounds liability for murder on an objective test holds the offender guilty of murder if, for an
unlawful object, he does anything he knows or ought to know is likely to cause death and thereby
causes death
The imposition of liability for murder on an objective basis is an anomaly – generally requires proof of a
subjective state of mind
o Where liability is imposed on a subjective basis, what a reasonable man ought to have anticipated is
merely EVIDENCE from which an inference may be drawn that the accused anticipated the same
consequences
o Where liability is imposed on an objective basis, what a reasonable man should have anticipated
constitutes the basis for liability
If the accused:
o Had the capacity to form the intent necessary for the unlawful object;
o Had knowledge of the relevant facts which made his conduct such as to be likely to cause death;
o He is guilty of murder if a reasonable man should have anticipated that such conduct was likely to
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cause death
***CAUTION: This interpretation is to be questioned, post-Charter and -Vaillancourt
Section 229(c) – unlawful object
R. v. Vasil (1981 SCC) – n.b. pre-Charter
Facts: V set fire to his girlfriend‘s house. He was drunk at the time, and said he just wanted to ruin her things.
Instead, he ended up killing her two children, who were asleep in the house at the time.
Issues: 1. What constitutes an unlawful object? 2. Is the accused‘s drunkenness relevant?
Holding: 1. An offence requiring mens rea. 2. Yes.
Reasoning (Lamer J.):
The unlawful object contemplated by s. 229(c) is an offence which, if prosecuted, would amount to an
indictable offence requiring mens rea
o Here, the wilful desctruction of property is mischief, which is a mens rea offence
This section is meant to charge with second-degree murder anyone who takes a chance with the life of
others by choosing dangerous means to an unlawful end
o J. does not think that this includes one who could not realize that he was taking such a chance with the
life of others because he could not – given his drunken ignorance of surrounding circumstances –
foresee the dangerousness of the means he chose
o This section legislates an objective standard (and the reasonable man is never drunk), so drunkenness
should technically not be relevant to the knowledge of the accused
But J. cannot agree with this determination; the criminal law has evolved and does not like to convict people
of murder without subjective intent
Ratio: See the Court moving away from objective standards of mens rea where murder is concerned.
Constitutional Considerations and Second-Degree Murder
The felony-murder provisions have been the subject of substantial controversy – the way they convict for
murder on the basis of a seemingly lesser intent does not sit well with the Charter
Note that this case is constantly cited for its proposition that conviction for certain crimes carries such severe
stigma/penalty that they require subjective mens rea:
R. v. Vaillancourt (1987 SCC)
Facts: V and his accomplice committed an armed robbery of a pool hall. V was armed with a knife and his
accomplice was armed with a gun. V thought the gun was unloaded. V stayed near the front of the pool hall,
while the accomplice went to the back. The accomplice ended up shooting a client.
Issue: Is the felony-murder provision [s. 213(d) – no longer in force] constitutionally valid? Holding: Insofar as
it permits a person to be convicted of murder without subjective foresight of death, no (with dissent).
Reasoning (Lamer J.):
The section allows for a conviction for murder when the accused ―knew or ought to have known‖ what he
was doing was likely to cause death – this is an objective foreseeability requirement (i.e. negligence)
Parlimant has full legislative power with respect to the criminal law – but it has been restricted by the
Charter: under s. 7, if a conviction (given its stigma/penalty) will result in a deprivation of the life, liberty or
security of the person of the accused, then Parliament must respect the principles of fundamental justice
In some crimes where stigma/penalty is lower, something less than subjective foresight of the result
may suffice for the imposition of criminal liability
But there are a small number of crimes where, because of the special nature of the stigma attached to
a conviction therefor, and the penalties thereby available, the principles of fundamental justice
require a mens rea reflecting the particular grievous nature of the crime
o Ex. murder, theft
Only with a special mental element can culpable homicide be treated as murder; it is that special mental
element that creates the moral blameworthiness that justifies the stigma and sentence attached to a murder
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conviction
Felony-murder provisions allow an intention remote to murder be treated as an intention to commit
murder, with all the attendant consequences – if Parliament wishes to deter people from committing crimes
with firearms, it can criminalize possession of firearms, increase sentences for manslaughter with a weapon
Ratio: It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof
beyond a reasonable doubt of the accused‘s subjective foresight of death.
Akhavan on Vaillancourt:
The main issue is the objective versus the subjective test of foresight of the likelihood of death – know v.
ought to know
o The court sticks with the subjective test for murder cannot convict someone for murder when they
did not actually know or foresee that death could result from their actions
This may water down deterrence: but we should call theft, theft, and keep murder separate. If we want to
deter theft, we can increase punishment for that crime.
N.B. McIntyre J. dissented on the basis of parliamentary sovereignty – if Parliament said it wanted an
objective standard, it may do so
R. v. Martineau (1990 SCC)
Facts: M and his accomplice T were going to commit a B&E (or so M thought). After stealing what they came
for, T shot the entire family because they had seen his face. M did not know T was going to do this.
Issue: Is s. 230(a) [another felony-murder provision] unconstitutional? Holding: Yes, with dissent.
Reasoning:
Majority (Lamer C.J.):
This section defined as murder a situation in which a person causes the death of a human being while
committing or attempting to commit a wide range of listed offences
o It defines such conduct as murder whether or not the person means to cause death or knew that
death was likely to ensue from the bodily harm they committed to facilitate the offence/flight
afterwards
o Removes the Crown‘s burden of proving the accused had a subjective foresight of death
Murder conviction carries with it the most severe stigma and punishment of any crime in our society
The principles of fundamental justice require, because the special nature of the stigma/penalties available for
murder, a mens rea reflecting the particular nature of the crime
o Stigma and ‗punishment must be proportionate to the moral blameworthiness of the offender‘
This section violates the principle that punishment/stigma must be proportionate to the moral
blameworthiness of the offender
o Those causing harm intentionally should be punished more severely than those causing harm
unintentionally
Criminal liability for a particular result is not justified except where the actor possesses a culpable mental
state in respect of that result
Parliament can deter felony-murder by imposing very stiff sentences for bodily harm leading to death during
the commission of a separate offence
Dissent (L‘Heureux-Dubé J.):
Those who oppose felony-murder provisions place too much emphasis on mens rea at the expense of the
actus reus – both are essential elements of the crime, and the appropriate level of stigma or penalty should be
a function of both, not just mens rea
This is an ―egriegous example of misplaced compassion‖ – the people convicted under felony-murder
provisions are intentionally committing unlawful acts and intentionally causing bodily harm (that is
objectively foreseeable will lead to death) in the furtherance of that illegal goal
o There is already a double mens rea requirement
The stigma in these cases is not much less for a conviction of manslaughter than for murder; and the (maybe
shorter) duration of the imprisonment will not attenuate the stigma
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Ratio: A murder conviction requires proof of subjective foresight of death.
Commentary:
None of the constitutional judgments address s. 229(c), but the validity of the section‘s objective arm is
seriously in doubt – but it has not been formally struck down so it is technically operative
Parliament has responded to court‘s decisions in this area by enacting a number of minimum sentencing
provisions which have passed constitutional muster
This decision has been held to create three factors for examining the constitutionality of a criminal offence
under s. 7 of the Charter (see Creighton):
o Is the STIGMA proportionate to the moral blameworthiness of the offence? (gravity of the offence)
o Is the PENALTY proportionate to the mens rea requirement? (gravity of the offence)
o In general, those causing harm intentionally must be punished more severely than those causing harm
unintentionally
Akhavan on Martineau:
What is so bad about calling something murder on the basis of objective foresight?
When people commit home invasions, we should probably do everything we can to deter violence in the
course of that crime
We should also punish them strongly when that violence occurs
How is it against the principles of fundamental justice to hold people responsible for the situations that they
create by unlawful means?
This is basically what the dissent is saying.
The answer is basically that Canada strongly protects the rights of the accused
First-Degree Murder
s. 231 CCC 231. (1) Murder is first degree murder or second degree murder.
Planned and deliberate murder
(2) Murder is first degree murder when it is planned and deliberate.
Contracted murder
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is
committed pursuant to an arrangement under which money or anything of value passes or is intended to pass
from one person to another, or is promised by one person to another, as consideration for that other‘s
causing or assisting in causing the death of anyone or counselling another person to do any act causing or
assisting in causing that death.
Murder of peace officer, etc.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is
first degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff‘s officer or other person
employed for the preservation and maintenance of the public peace, acting in the course of his duties;
(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of
a prison, acting in the course of his duties; or
(c) a person working in a prison with the permission of the prison authorities and acting in the course of
his work therein.
Hijacking, sexual assault or kidnapping
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is
first degree murder in respect of a person when the death is caused by that person while committing
or attempting to commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
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(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
Criminal harassment
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder when the death is caused by that person while committing or attempting to commit an offence
under section 264 and the person committing that offence intended to cause the person murdered to fear for
the safety of the person murdered or the safety of anyone known to the person murdered.
Murder — terrorist activity
(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first
degree murder when the death is caused by that person while committing or attempting to commit an
indictable offence under this or any other Act of Parliament if the act or omission constituting the offence
also constitutes a terrorist activity.
Murder — criminal organization
(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first
degree murder when
(a) the death is caused by that person for the benefit of, at the direction of or in association with a
criminal organization; or
(b) the death is caused by that person while committing or attempting to commit an indictable offence
under this or any other Act of Parliament for the benefit of, at the direction of or in association with a
criminal organization.
Intimidation
(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first
degree murder when the death is caused by that person while committing or attempting to commit an offence
under section 423.1.
Second degree murder
(7) All murder that is not first degree murder is second degree murder.
First-degree murder was introduced into the Criminal Code in 1977
***The mens rea for second-degree murder and first-degree murder is the same: intent to kill or
knowledge that your conduct is foreseeably likely to cause death
s. 231(2) Planning and deliberation
s. 231(3) Hits
s. 231(4) If you kill these enumerated people, murder is first degree whether you planned it or not
o But you must KNOW that they are one of these people in order to be convicted under this section
s. 231(5) If you kill in the course of committing these crimes (with the necessary intent), murder is
automatically first degree
o Compare this section with s. 229(c): the difference is that s. 229 only talks about causing death for any
unlawful object, while s. 231 says ―murder‖ so it has to be decided that the homicide is murder first,
and then the court will see if it occurred in the course of one of these specific crimes
s. 231(2): Planned and Deliberate
R. v. Widdifield (1961 OSC)
(see also R. v. More, which says essentially the same thing about “deliberate”)
―Planned‖ means: calculated scheme or design which has been carefully thought out, and the nature and
consequences of which have been considered and weighed
o Does not mean the plan needs to be a complicated one – might be very simple
o The time involved developing the plan is important; not the amount of time that lapses between
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creating the plan and carrying it out
―Deliberate‖ means: considered, not impulsive. Slow in deciding, cautious.
o The accused has taken the time to weigh the advantages and disadvantages of his intended action
R. v. Nygaard
It is possible for murder to be classified as first-degree on the basis of the secondary intent in s. 229(a)(ii) – a
reckless intent killing
There is no doubt that a person can plan and deliberate to cause terrible bodily harm that he knows is likely
to result in death
The most important section is s. 231(2), the requirement for planning and deliberation first degree murder
is murder in cold blood; exhibits a greater degree of moral turpitude; so it is punished more severely
Why do we punish the other categories of first degree murder so severely? Mostly for purposes of deterrence
s. 231(4): Murder of a Police Officer
R. v. Collins (1989 OCA)
Facts: C shot a police officer on duty at close range. The accused argued that the predecessor of s. 231(4) is
unconstitutional for infringing s. 7 of the Charter because an accused could be convicted of first-degree murder
without the need to prove planning and deliberation.
Issue: Is. s. 231(4) unconstitutional? Holding: No.
Reasoning (Goodman J.A.):
The accused relies on Vaillancourt – there needs to be proportionality between the stigma/penalty for the
crime and the moral blameworthiness of the accused
o Says that there is more stigma associated with a conviction for first-degree murder, but no additional
mens rea required under this section (when compared with second degree murder), because there is no
planning and deliberation
o So there is no proportionality between the crime of killing a police officer without planning and
deliberation and the higher stigma/punishment of first-degree murder
In this case, the argument with respect to stigma/penalty is misplaced
o Before an accused can be convicted of first-degree murder, the Crown must prove all the elements
required for second-degree murder
o The stigma of a murder conviction (carrying with it a mandatory life sentence) attaches
regardless of whether it’s for second- or first-degree
This section does not create the substantive offence of murder; it is a sentencing provision that
classifies different kinds of murders as first- or second-degree in order to impose higher or lower sentences
Murder has already been found once recourse to this provision is had – it is already clear that the accused
had the intent necessary for murder
The distinctions in s. 231 classify murder not on the basis of intent, but on the basis of 1) planning and
deliberation, 2) identity of the victim, 3) the nature of the offence being committed at the time of the murder
The rationale behind s. 231(4) is to provide additional protection to the persons designated while
acting in the course of their duties
o Their occupations are extremely dangerous and Parliament saw fit to provide additional
deterrence to potential murderers with the imposition of a higher sentence for their murder
The accused has to know that the person they are killing is a police officer – is an essential element of
the crime so there must be mens rea with respect to it
o The Crown must prove that the murderer had knowledge of the identity of the victim as one of
the persons designated in the section and that such person was acting in the course of his duties
(or was reckless to such identity/acts of the victim) further element of knowledge required
than for second-degree murder
If no knowledge were required on the part of the accused, there would be no additional deterrent effect and
no increased moral blameworthiness to justify the higher sentence
Ratio: s. 231(4) does not create the substantive offence of murder (ss. 229, 230 do that); it is a sentencing
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provision that classifies some murders as first-degree and some murders as second-degree.
s. 231(5): “While Committing”
R. v. Russell (2001 SCC)
Facts: The accused was charged with first-degree murder on the basis that he caused death to one of his victims
while forcibly confining another. He tied and gagged his girlfriend to her bed, raped her, and then went
downstairs to the basement and beat and stabbed the deceased to death (???).
Issue: Do the victim of the murder and the victim of the enumerated offence have to be one and the same?
Holding: No.
Reasoning (McLachlin C.J.C.):
Provision does not state that victim of murder and victim of the enumerated offence have to be the same
R. v. Paré(Wilson J.): The organizing principle of s. 231(5) is that the offences listed are all offences
involving the unlawful domination of people by others
o Where a murder is committed by someone already abusing his power by illegally dominating another,
the murder should be treated as an exceptionally serious crime
o A death is caused ―while committing‖ an offence enumerated where the act causing death and the acts
constituting the offence all form part of one continuous sequence of events forming a single
transaction
It is the continuing illegal domination of the victim which gives continuity to the sequence of
events culminating in murder
The murder represents an exploitation of the position of power created by the underlying
crime and makes the entire course of conduct a “single transaction”
The Court in Paré seems to say that the victim of the murder and the victim of the enumerated offence must
be the same – but they were not dealing with a multiple-victim case, and they were also dealing with a
situation in which the murder took place just after the sexual abuse
References to the single victim in that case reflects its particular facts – Court in Paré did not have to rule on
whether or not more than one victim could be involved their remarks should not be taken as doing so
―While committing‖ or ―attempting to commit‖ requires the killing to be closely connected, temporally or
causally, with an enumerated offence
o As long as that connection exists, it is immaterial that the victim of the killing and the victim of the
enumerated offence are not the same
Ratio: Under s. 231(5), the victim of the murder and the victim of the offence do not have to be the same.
Commentary: The additional element of culpability that justifies categorizing this offence as first degree murder
instead of second degree murder is the element of domination. As long as there is a temporal and causal
connection between the unlawful domination and the murder, it‘s enough to bump up the crime to murder one.
R. v. Arkell (1990 SCC)
This case is a constitutional challenge to s. 231(5)’s predecessor
Facts: A killed the victim during the course of a sexual assault.
Issue: Is s. 231(5) unconstitutional for violating s. 7? Holding: No.
Reasoning (Lamer C.J.C.):
Again, s. 231 does not create the substantive offence of murder; it is a sentencing provision that classifies
murders into first-degree (parole ineligibility for longer) and second-degree (less long)
A conviction under s. 231 first requires the Crown prove that the accused committed murder (simpliciter, not
yet classified) with subjective intent – so they have already been found guilty of the worst crime that exists
in our Criminal Code
s. 231 represents a decision by Parliament to impose a more serious punishment on those found guilty of
murder while committing certain listed offences
o Found these so threatening to the public that they warranted exceptional penalties
The moral blameworthiness of the act is clearly proportional to the stigma/punishment; the people
convicted under s. 231(5) are illegally dominating another and then they use that position of power to
kill them
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Ratio: s. 231(5) passes constitutional muster.
R. v. Luxton (1990 SCC)
This case is a constitutional challenge to s. 231(5)’s predecessor
Facts: L killed the victim while forcibly confining her.
Issue: Is s. 231(5) unconstitutional for violating s. 7? Holding: No.
Reasoning (Lamer C.J.C.):
Same reasoning as above in Arkell.
The imposition of a sentence which is partly punitive but is mainly imposed for the protection of the
public accords with the fundamental purposes of the criminal law generally and sentencing in
particular the protection of society
In a rational system of sentencing, the respective importance of prevention, deterrence, retribution, and
rehabilitation will vary according to the nature of the crime and the circumstances of the offender
It is consistent with the individualization of sentencing that those who have killed with subjective foresight
of death while also committing an enumerated offence are subject to higher punishment
Ratio: Interesting statements about sentencing.
Interesting Issues Connected to Murder:
“Criminal law and cases of HIV transmission or exposure”
People who have HIV and are aware of this fact can be charged with first degree murder or aggravated sexual
assault for having unprotected sex with others who they have not told about their HIV status
Conviction will follow upon proof beyond a reasonable doubt that the victims were placed at ―significant risk‖ of
bodily harm (contraction of HIV) – can be evaluated in terms of condom use and viral load of the accused at the
time of the intercourse
R. v. Sullivan (1991 SCC)
Can a half-born foetus be the victim of criminal negligence causing death? No, says the Court.
The foetus must be totally outside the mother‘s body before it becomes a person (although it does not have to be
breathing or circulating blood independently)
Margaret Somerville, “New Life Matters”
It is not presently a crime when a foetus is killed or injured
Our moral intuition is that killing a pregnant woman is somehow worse (or at least that is the moral intuition of
most Canadians)
Should there be a law protecting foetuses?
o SCC has consistently ruled that a foetus is not a protectable human being; CCC holds that a child is only a
person once it is born alive
o So there cannot be a law protecting foetuses in this state of affairs
Pro-choice activists oppose recognition of harm to unborn babies for the purposes of crime punishment because it
is seen as a backdoor into criminalizing abortion
Joyce Arthur, “Fetal Homicide Laws Are Not the Answer”
When pregnant women are assaulted or killed, it is a domestic violence issue and needs to be dealt with as such
o Domestic violence against women increases during pregnancy
What are needed are better measures to protect women from domestic violence
Foetal homicide laws completely sidestep the issue – are being used by anti-abortion activists as a backdoor to
giving foetuses a form of legal personhood (and from there re-criminalize abortion)
Foetal homicide laws gives foetuses their own rights, separate from those of the mother
o Means these rights can be invoked against the mother, and that is what they are most often used to do
therefore compromise women‘s rights
o Have been used to criminalize women who use drugs/abuse alcohol while pregnant, women who refuse a
necessary C-section, women who fail to leave abusive partners
The best way to deal with the killing of a pregnant women is to treat it as an aggravating factor in sentencing
The best way to protect a foetus is to guarantee pregnant women full rights and access to social services (drug
rehab programs, battered women‘s shelters, etc)
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Manslaughter
The actus reus for manslaughter is assault that causes death to a human being. The mens rea is
subjective intent to commit bodily harm that is neither transitory nor trivial.
The mens rea for manslaughter is: subjective intent to commit bodily harm – there is no intention to bring
about death or any knowledge that death is foreseeable (death might not even be objectively foreseeable)
o The bodily harm cannot be transitory or trivial
Compare manslaughter and second-degree murder
o The actus reus is the same for both: occasioning someone bodily harm that causes death
o Mens rea for second-degree murder: intent to cause bodily harm that the accused knows is likely to
cause death
Mandatory life sentence, minimum 10 years of no-parole eligibility
o Mens rea for manslaughter: intent to cause bodily harm that is neither transient nor trivial
Because of this lesser mens rea, manslaughter has no minimum sentence, and there is a maximum
sentence
R. v. Creighton (1993 SCC)
Facts: Accused shot up his girlfriend with cocaine and she died. He is charged with unlawful act manslaughter.
Issue: What is the fault requirement for unlawful act manslaughter?
Holding: Objective foreseeability of bodily harm (as opposed to death) that is neither transitory nor trivial.
Reasoning (McLachlin J.):
The accused has challenged whether manslaughter is constitutionally valid under s. 7 – must analyze
according to the framework set out in Martineau for determining whether the required mens rea is
proportional to the gravity of the crime
1. Stigma proportional to moral blameworthiness
o Most important feature of the stigma of manslaughter is the stigma which is NOT attached to it
o CCC confines manslaughter to non-intentional homicide
o A person convicted of manslaughter did not intend to kill someone; he or she is not a murderer
o The conduct is blameworthy and must be punished, because the death may arise from negligence or as
an unintended result of a lesser unlawful act
But its stigma does not approach that for murder
o Terrible consequence of death demands some stigma/punishment, but not equivalent to murder
2. Penalty proportional to moral blameworthiness
o Manslaughter has no minimum sentence
o This is appropriate because it can occur in a wide variety of circumstances and the court needs
flexibility in sentencing
o The sentence can be and is tailored to suit the moral blameworthiness of the offender
3. Those who cause death intentionally (murderers) are treated more harshly than those who cause death
unintentionally (manslaughterers)
Death is a finality; must preserve the test that provides the greatest degree of deterrence foreseeability of
bodily harm test the harshness of the test is mitigated by the flexibility in sentencing
A person who engages in dangerous conduct that breaches the bodily integrity of another and puts that
person at risk may properly be held responsible for the unforeseen death of that person
The criminal law must reflect not only the concerns of the accused, but also the concerns of the victim
Ratio: The fault requirement for manslaughter is the objective foreseeability of bodily harm that is neither
transient nor trivial.
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A complex question: when can second-degree murder be reduced to manslaughter? The defences such as
intoxication and provocation are fairly difficult. See below.
SEXUAL ASSAULT
Introduction
Sexual assault is a very serious crime – carries with it a maximum of 10 years of imprisonment
o There are higher sentences available for aggravated sexual assault and sexual assault with a weapon
Under the common law, the only form of sexual assault that existed was rape; it was narrowly defined as
vaginal penetration
o There were also a lot of prejudices exhibited in the common law – ex. marital rape was not a crime
Sexual assault as a crime has undergone serious reform since 1983 – have expanded the definition of what is
sexual assault, have tried to protect the complainant from the worst excesses of the process
o The procedural considerations have had a huge impact on the substantive law:
Sexual assault is one of the most underreported crimes: women rarely come forward – why? Fear
of the public nature of testifying, misconceptions about the nature of the crime, etc
Margaret J. McGregor et al., “Why don‟t more women report sexual assault to the police?”
An estimated 94% of sexual assaults are never reported
Police involvement in cases has actually decreased over time
Women who have been raped by someone they know and those who have no physical injuries are less likely
to involve the police
Misconception that there should be physical violence inflicted by a stranger for a rape to be ―genuine‖
Factors that affect likelihood to report: presence of physical injury, knowing the assailant, socioeconomic
status
One way to encourage women to come forward is by shielding them from inappropriate questions and
inquiries into their personal life upon investigation/testimony
A big concern in legislating on sexual assault and evidence of sexual assault is the balancing of the victim’s
rights with the rights of the accused rights to a fair trial and to present a full defence
What Is Sexual Assault?
The actus reus of sexual assault is sexual touching without the victim’s consent.
The mens rea required for sexual assault is intention to touch the victim, knowing of, or being
reckless or wilfully blind to her lack of consent.
The central concept with sexual assault is consent
o The only difference between lawful sexual conduct and unlawful sexual conduct is consent
Lack of consent is part of both the actus reus and the mens rea of sexual assault
o Cf. other crimes: we do not ask if the victim of murder or assault consented – these acts can never be
lawful. Sexual conduct can be lawful in a way that bodily harm causing pain or death can never be.
The actus reus of sexual assault: non-consensual sexual contact
o The question of whether the victim DID or DID NOT in fact consent is analyzed here
The mens rea of sexual assault: intent to touch someone non-consensually
o Knowledge of the sexual nature of the contact is not required; needs to be objectively observable,
however
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When is assault sexual assault?
R. v. Chase (1987 SCC)
Facts: C was the 15-year-old victim‘s neighbour. He molested her by touching her breasts.
Issue: What kind of assault constitutes sexual assault?
Reasoning (McIntyre J.):
Sexual assault is an assault which is committed in circumstances of a sexual nature, such that the sexual
integrity of the victim is violated
The test to be applied to determine whether the impugned conduct is of the requisite sexual nature is an
objective one: viewed in light of all the circumstances, is the sexual or carnal context of the assault
visible to a reasonable observer?
o Part of the body touched, the nature of the contact, the situation in which it occurred, the words
and gestures accompanying the act, and all other surrounding circumstances will be relevant
o The intent or purpose of the person committing the act may also be a factor to consider
Ratio: The test is objective: would a reasonable person consider the assault sexual assault?
Mistake of Fact as a Defence to Sexual Assault
The defence of mistake of fact is available to the accused when he held an honest but mistaken
belief in the victim’s consent to the sexual activity. This belief need not be reasonable.
Sexual assault is of course a subjective mens rea offence
The big question with respect to the defence of mistake of fact in the context of sexual assault is:
o What if the accused had an honest but unreasonable belief in the victim’s consent?
Since sexual assault is a true crime, we cannot apply an objective test of criminal negligence (i.e. convict on
the basis of what the accused should have known)
So if the accused had an honest but unreasonable belief in the victim‘s consent, this negates the mens rea
required for the crime and entitles the accused to an acquittal
The requirement for the ―honesty‖ of the belief means that an accused cannot be wilfully blind to the
victim‘s lack of consent and still use mistake of fact as a defence
o I.e. Wilful blindness to lack of consent is sufficient mens rea for sexual assault
Pappajohn v. The Queen (1980 SCC)
Facts: The accused was selling his house. The victim was a real estate agent. They got drunk over a business
lunch and went to his house. Three hours later, she ran out of the house, naked and with her hands tied behind
her back. Her clothes were folded, her necklace had been taken off in the living room, none of her clothes were
damaged, no evidence of struggle, no physical injuries. The complainant says she never consented. The accused
said she consented throughout and that the bondage was part of the consensual sexual activity. The trial judge
did not direct the jury to consider mistake of fact as a defence.
Issue: Should the trial judge have directed the jury to consider the accused‘s defence of mistaken belief in
consent? Holding: No, with dissent.
Reasoning:
Dickson J. + 1 for the dissent:
Intention or recklessness needs to be proved in relation to all the elements of the offence of sexual assault,
including lack of consent
Mistake of fact is a defence that avails an accused who acts innocently: an accused who commits the
actus reus of the offence pursuant to a flawed perception of the facts
o Is a negation of the guilty intention
o Entitles the accused to an acquittal
In cases of sexual assault, the defence should exonerate the accused when the accused honestly believed
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there was consent on the part of the woman
Does the honest belief in consent have to be based on reasonable grounds?
o No. An honest and unreasonable belief in consent will exonerate a defendant
o Sexual assault is a true crime; need to have intention/knowledge/recklessness with respect to every
aspect of it – the intent of the accused must be to have sex with a nonconsenting woman
There is no such intent when the accused holds an honest but unreasonable belief in her consent
To crimes of mens rea, mistake of fact simpliciter is a defence; to crimes of negligence, mistake of fact
is only a defence if the mistake was a reasonable one to make
o Here, the mistaken belief in consent does not have to be a reasonable one to make
o The subjective mind of the accused is what we need to consider here – inappropriate to import an
objective standard
Although, this point is kind of theoretical only; practically speaking, the accused‘s statement that he was
mistaken as to consent is unlikely to be believed unless it is reasonable
If there is some evidence to convey an ―air of reality‖ to a defence of mistake as to consent, the jury must be
instructed to consider that plea
In this case, plenty of evidence in the folded clothes, the lack of injuries, etc to lend an air of reality to the
accused‘s defence – trial judge should have ordered the jury to consider it
McIntyre + 4 for the majority:
Before any obligation arises to put defences, the trial judge must have some evidence upon which the
defence can rest some evidence apt to convey an air of reality to the argument
The evidence doesn‘t exist here – the complainant and the accused have completely opposite stories
o If it were necessary here to charge the jury with respect to mistaken belief, it would be necessary in all
cases where the complainant denies consent and the accused asserts it
To require the putting of the alternative defence of mistaken belief in consent, there must be some evidence
beyond the mere assertion of belief in consent by the accused – the evidence must be supported by sources
other than the accused to give it an air of reality
Ratio: The jury must be instructed to consider the defence of mistaken belief in consent in sexual assault cases
when there is an ―air of reality‖ to the argument.
3 years later, this section was enacted: the judge becomes a filtering mechanism for the defence of mistake of
fact – the relevant test is still the “air of reality” test (see below under defences and also Osolin)
s. 265(4)
CCC
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.
Post-reform:
Osolin v. The Queen (1993 SCC)
A trial judge must instruct the jury only on those defences for which there is a real factual basis
o Only if there is “an adequate and evidentiary foundation for the defence”
No requirement that there be evidence independent of the accused in order to have the defence put to the jury
(cf. McIntyre in Pappajohn) – just need evidence beyond mere assertion of mistaken belief
Dissent (Cory J.): It is not possible for the defence of mistaken belief in consent to have an ―air of reality‖
when the complainant and the accused have given diametrically opposed versions of the facts
o Only arises when the accused and the complainant tell essentially same story and interpret it
differently
Majority (McLachlin J.): It is still possible for the defence of mistaken belief in consent to have an air of
reality when the victim and the accused tell divergent stories concerning consent
Akhavan on Osolin:
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An air of reality to a defence means there is an adequate and evidentiary foundation for the defence
For mistake of fact to have an air of reality in the context of sexual assault:
o We do not need the accused‘s testimony to have corroboration from outside sources
o But the court is still split as to whether there can be an air of reality when the victim and the accused tell
two totally opposite stories
Sansregret v. The Queen (1985 SCC)
Facts: The accused twice broke into his ex-girlfriend‘s house and threatened her with weapons; sexual
intercourse took place both times. After the first time, she called the police and stated she was raped; they called
the ex-bf‘s probation officer and therefore the vic chose not to pursue the charges. The second time, he
threatened her with a knife, hit her, told he would have killed her if he found her with someone else; she tried to
calm him down by talking to him and finally engaging in sex with him.
Issue: Is the defence of mistaken belief in consent (mistake of fact) available? Holding: No.
Reasoning (McIntyre J.):
The trial judge found that the accused honestly believed the victim was consenting; so on the basis of
Pappajohn, she felt as though she had to acquit
Not so. The accused was wilfully blind to whether or not the victim consented – he knew she had
charged him with rape in similar circumstances he should have done more to ascertain her consent
o As the accused was deliberately ignorant, the law will presume knowledge (of lack of consent)
This is not a retreat from the holding in Pappajohn that the honest belief in consent doesn‘t have to be
reasonable to afford the accused a defence
o An accused who forms an honest although unreasonable belief in consent will still benefit from the
defence of mistake of fact
But where an accused blinds himself to the existing facts, he can‘t then use mistake of fact as a defence
Ratio: If an accused is wilfully blind as to the consent of the victim, he will not benefit from the defence of
mistake of fact.
Akhavan on Sansregret:
Mistake of fact is a defence to intent/knowledge/recklessness states of mind; but it doesn‘t work where the
Crown has gone with wilful blindness
o Because the mistake of fact is then due to the wilful blindness – the defendant deliberately created a
situation of mistake of fact
Summary of Mistake of Fact: The defendant can claim that he honestly thought the victim was consenting. This
belief does not need to be reasonable – the standard is subjective. However, the trial judge only puts the defence
to the jury if it has an air of reality. This is a more objective test. This defence will not hold if the accused did not
take reasonable steps to ascertain the victim‘s consent (see below).
The Rape Shield Laws
In most sexual assault situations, the accused is known to the victim; it is unlikely there are other witnesses;
it is always the word of the victim v. that of the accused
o So what circumstantial evidence is appropriate to allow?
In 1983, Parliament brought in laws protecting sexual assault complainants from questions about their prior
sexual conduct or reputation at trial – said they were prima facie inadmissible for irrelevance
But the laws were contested for excluding evidence that could be probative of the accused‘s innocence
R. v. Seaboyer (1992 SCC)
Facts: Parliament enacted rape-shield provisions. They excluded all evidence concerning the complainant‘s
sexual history. Their constitutionality was challenged as infringing s. 7 and s. 11(d) of the Charter.
Issue: Are the rape shield provisions unconstitutional? Holding: For the most part, yes (with dissent).
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Reasoning:
McLachlin J. + 6 for the majority:
The goals of the legislation (the avoidance of unprobative and misleading evidence, the encouraging of
reporting sexual assault, protection of security/privacy of witnesses) are admirable and not to be questioned
but these provisions overshoot the mark
They exclude evidence which may be relevant to the defence, and whose probative value is not outweighed
by the potential prejudice to the trial process
o May be relevant to the defence of mistaken belief in consent, especially
L‘Heureux-Dubé + 1 for the dissent:
Sexual assault is vastly underreported; these measures are not too extreme in light of their goals.
Ratio: The rights of the accused must be balanced with those of the victim/society in enacting rape shield
legislation.
After the SCC struck down the rape shield laws in Seaboyer, Parliament enacted Bill C-49, a much more
elaborate scheme to protect the complainant and thereby encourage reporting – became s. 276
s. 276 CCC 276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection
160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in
sexual activity, whether with the accused or with any other person, is not admissible to support an inference
that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
Parliament also enacted more stringent standards to ensure the consent of all people to sexual activity
s. 273.2
CCC
273.2 It is not a defence to a charge under section 271, 272 or 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 or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time,
to ascertain that the complainant was consenting.
Both of these provisions were challenged in the following case:
R. v. Darrach
Facts: Parliament responded to Seaboyer with Bill C-49, which provides in s. 273.2(b) that mistaken belief in
consent is not a defence to a charge of sexual assault where the accused did not take reasonable steps, in the
circumstances known to the accused at the time, to ascertain that the complainant was consenting. It also
provides in s. 276(1) that evidence of previous sexual history is not admissible where it is led to prove the
increased likelihood that the victim consented or to discredit her.
Issue: Are these sections unconstitutional? Holding: No.
Reasoning:
Ontario Court of Appeal [1998] (Morden A.C.J.O.): s. 273.2(b)
This provision does introduce an objective component into the mental element of of sexual assault
o But the objective component is modified
o It is partially subjective, in light of the circumstances known to the accused at the time
o The subjective mens rea component of the offence remains largely intact
The question is whether the defendant – properly attentive to the issue of consent (i.e. not wilfully blind) –
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could have honestly concluded that the complainant consented to the sexual activity
It‘s unlikely that a man who has sexual intercourse with a woman who has not consented is morally innocent
if he has not taken reasonable steps to ascertain that she was consenting
Supreme Court of Canada [2000] (Gonthier J.): s. 276(1)/(2)
It is impermissible to lead evidence of a complainant‘s sexual history when it is used to support the
inferences that she was more likely to have consented to her attacker, or that she is less credible
o These are the ―twin myths‖
o They are not relevant; are improper lines of reasoning; they are not probative of consent or credibility
and can severely distort the trial procedure
o No accused has the right to lead irrelevant evidence – this provision does not infringe the accused‘s
right to a fair trial (to make full answer and defence)
Evidence of sexual history is admissible to substantiate other inferences; defence needs to submit a written
affidavit, after which the judge will hold a voir dire
o The complainant‘s privacy and dignity are protected by this procedure which also protects the
accused‘s right to make full answer and defence
o The accused has no right to procedures that only take his interests into account
Court can also exclude, in addition to irrelevant evidence, evidence that is more prejudicial than probative
Ratio: The rape shield provisions are constitutional.
Akhavan on Darrach:
s. 273.2(b) imposes an affirmative obligation on the part of the accused, if he has raised mistaken belief in
consent as a defence, to show that he took reasonable steps to ensure the consent of the woman
o Is an objective analysis, but done in concreto. It says that the accused must be subjectively aware of
certain circumstances; then moves on to an objective analysis of what a reasonable person in those
circumstances would have done
o Is only a slight relaxation of the subjectivity of the mens rea required for sexual assault
Why are the provisions excluding evidence necessary? Can‘t we count on judges to exclude irrelevant
evidence? Not always.
R. v. Ewanchuk (1999 SCC)
Facts: Complainant is 17. She met the accused E at the mall – he offered her and her friend jobs. Interested, she
gave him her number. He called, they met, and he brought her into his trailer; she thought he locked the door.
They massaged one another; every time the accused made sexual advances, complainant said no. He ground his
pelvic area against hers; she did not react or reciprocate. He stopped every time she said no – she said no four
times. She pressed charges. The trial judge acquitted on the defence of ―implied consent.‖ Court of Appeal
upheld the conviction.
Issue: Is the accused guilty of sexual assault? Holding: Yes.
Reasoning:
Major J. + 5:
Generalities
Having control over who touches one‘s body and how lies at the core of human dignity and autonomy
Actus reus of sexual assault = unwanted sexual touching
o Established by proof of three elements:
1. Touching
2. Sexual nature of contact (determined objectively)
3. The absence of consent (determined subjectively, with reference to complainant’s
internal state of mind towards the touching when it occurred)
Mens rea of sexual assault = intention to touch (intent does not have to be intent to touch sexually),
knowing of or being reckless to or wilfully blind to a lack of consent by the person being touched
Implied Consent
Trial judge erred – the defence of implied consent does not exist in Canadian law; it does not matter if the
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complainant‘s conduct could be objectively construed as constituting consent – it is the subjective lack of
consent on the part of the complainant that counts
o The only evidence of this state of mind is the complainant‘s testimony
o Credibility of this testimony may be weighed in light of all the circumstances
Actus Reus: Effect of the Complainant’s Fear on Her Consent
Consent must be freely given to be legally effective – consent given under fear or duress is ineffective
Have to examine the choice the complainant believed she was facing: there can be no consent if the
complainant believed she was choosing between permitting herself to be touched sexually or risked
being subject to the application of force
o If she thought she had only two choices – to comply or be harmed – the law will deem an absence of
consent and the third component of actus reus of sexual assault is fulfilled
The complainant‘s fear need not be reasonable, nor communicated to the accused
Mens Rea: the Limits of the Defence of Mistake of Fact
Defence of mistake of fact (mistaken belief in consent) removes culpability for those who honestly but
mistakenly believed that they had consent to touch the complainant is a denial of mens rea
To succeed, the evidence must show that the accused believed that the complainant communicated consent
to engage in the sexual activity in question
o It is not a defence for the accused to say that the complainant wanted the accused to touch her but
expressly didn‘t say so
o The complainant has to have said “YES” either through her WORDS or her ACTIONS
Silence, passivity, or ambiguous conduct do not constitute consent in law
And once a woman says no, the other person will have to obtain a clear yes (by either words or
actions) in order to continue
o Continuing sexual contact after someone has said no is reckless conduct which is not excusable
Application To This Case
Accused knew complainant had said no – he never re-established consent before continuing physical contact
There is no air of reality to the defence of honest but mistaken belief in consent
L‘Heureux-Dubé J. + 1, concurring:
One of the Court of Appeal judges basically suggested that the complainant was more likely to say yes
because she was of questionable moral character (McClung J.A., ―bonnet and crinolines‖)
These kinds of comments help reinforce myths that under such circumstances that the complainant is less
worthy of belief or more likely to consent to sexual activity
o Is patently not a reasonable line of logic
Complainants should be able to rely on an impartial judiciary, unbiased by assumptions about women and
sexuality
Ratio: To succeed on the defence of mistake of fact, the accused must show that they believed that the
complainant communicated consent to engage in the sexual activity in question.
Akhavan on Ewanchuk:
N.B. In a case of ambiguity, the burden is on the accused to make sure the woman is consenting (s. 273.1(e))
The concurrence sees sexual assault as a human rights issue for the woman
o This is interesting, because it is normally the human rights of the accused that are cited in criminal law
The concurrence explains why it‘s necessary for Parliament to micromanage the use of evidence of a
complainant‘s sexual history to make sure it‘s appropriate because judges cannot be trusted to do so
o Judges also have preconceptions about women, sexuality, and sexual assault (not just juries)
o We cannot assume our judges are going to get it right
Sexual Assault in International Perspective
Prosecutor v. Kunarac (I CTY)
The Definition of Rape
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Appellant accused says that the definition of rape should be sexual penetration with two extra factors: force
or threat of force and continued and genuine resistance by the victim
o This is strongly rejected – called ―absurd‖
The Appeals Chamber wants to emphasize that force is not an element of the actus reus of rape – it may
nullify any apparent consent, but not all rapes have to have an element of force in order to qualify
The circumstances of this appeal (victims held in military camps and detention centres) are almost
universally coercive – true consent will not be possible
In some jurisdictions, the legislature has created a strict liability offence: if a prison guard has sex with an
inmate, regardless of consent, it‘s unlawful
o Recognition of the coercive circumstances that nullify consent
Coercive circumstances present in this case made consent impossible – conviction on that count is upheld
Akhavan on Kunarac:
Women in detention camps were systematically raped
When a woman in detention/concentration camp has sex with a prison guard, is it automatically sexual
assault? She cannot truly consent because of the power imbalance
o Perhaps she‘s doing it to get more food, to get protection – but has she consented or not in this case?
This isn‘t necessarily sexual assault, but it IS unlawful – blanket prohibition on guards having sexual
interaction with the inmates, particularly to avoid this issue
International Committee of the Red Cross, “Congo Kinshasa: The Hidden Battlefield” video
Mass rape has become a weapon to destabilize society in the Congo armed conflict – to terrorize local
populations into fear/submission
Women are raped and assaulted on their ways to work, in the fields – after which they are no longer able to
go to the fields, the market, etc severe economic, as well as physical consequences of the assault
These rapes take place with complete impunity – there is no risk the perpetrators will be caught or punished
Institute for War and Peace Reporting, “International Justice Failing Rape Victims”
Rape, sexual slavery, and forced prostitution have always been factors in armed conflict
o There is a sense of permissiveness in combat – soldiers can do whatever they want
o It is used as a way to terrorize communities and implement a political tactic
International tribunals for war crimes have broken ground by characterizing rape as an act of genocide, or a
crime against humanity
o They have also defined rape broadly, as ―a physical invasion of a sexual nature, committed on a
person under circumstances which are coercive‖
Charges have also included sexual slavery, forced prostitution, forced pregnancy, forced sterilization in
crimes v. humanity
o Definition of enslavement = ―a person owning sexual access to a victim‖
The actual number of convictions is very small – huge obstacles to prosecuting rape as an international crime
o Was often not included in the indictments
o May not be considered, in the culture at issue, as a serious crime
The system has also not been ideal in its protection of witnesses – has been substandard, both at
investigation and at trial
Progress has been made – the legislation is there, and people are beginning to recognize rape as a free-
standing serious charge that requires special procedures
But still many backwards views of the crime and of the victims left to deal with
PART VI. FORMS OF PARTICIPATION
PARTICIPATION
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Participation concerns situations in which more than one person commits a crime
s. 21 CCC Parties to offence
(1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to
assist each other therein and any one of them, in carrying out the common purpose, commits an offence,
each of them who knew or ought to have known that the commission of the offence would be a
probable consequence of carrying out the common purpose is a party to that offence.
s. 22 CCC Person counselling offence
(1) Where a person counsels another person to be a party to an offence and that other person is
afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding
that the offence was committed in a way different from that which was counselled.
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the
other commits in consequence of the counselling that the person who counselled knew or ought to have
known was likely to be committed in consequence of the counselling.
Definition of “counsel”
(3) For the purposes of this Act, ―counsel‖ includes procure, solicit or incite.
There are four modes of participation:
o Actual commission s. 21(1)(a)
o Aiding and abetting s. 21(1)(b) & (c)
o Common intention s. 21(2)
o Counselling s. 22
s. 21(1)(a) – Actual Commission
Principals:
R. v. Thatcher (1987 SCC)
Facts: Mr. Thatcher and his wife went through an ugly and drawn-out divorce. His wife was shot at through the
window of her home during this mess, and sustained a serious injury – never found out who did it, but she gave
up custody rights to T after it happened. Two years later, she was found beaten and shot to death in her garage.
An eyewitness saw a man leaving the garage after hearing a woman scream, although he did not think it was Mr.
Thatcher (whom he knew). Mr. Thatcher is accused of either murdering his wife or having someone else do it for
him. The trial judge did not charge the jury separately on the Crown‘s two theories (personal commission by T,
or hired thug).
Issue: Does the jury have to be unanimous as to the way in which the victim was killed? Holding: No.
Reasoning (Dickson C.J.C.):
s. 21(1) CCC is designed to make the difference between aiding and abetting and personally
committing an offence legally irrelevant
o Either mode of committing the offence is equally culpable
o Whether a person personally commits or only aids and abets, he is still guilty of that particular
offence (in this case, murder), and not some separate offence
o This contrasts with CCC provisions relating to accessories after the fact or conspirators, which create
distinct offences for involvement falling short of personal commission of the crime
Ratio: The jurors do not have to all agree as to whether the accused personally committed the offence or aided
and abetted the person who did; the distinction between the two is legally irrelevant.
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Akhavan on Thatcher:
Do the jurors have to be unanimous as to whether T is a principal or a participant?
o No. Either way, T is guilty of the crime of first-degree murder, because if he got someone else to do it,
he shared their intent
How problematic is this conclusion at the stage of sentencing? If there is no decision as to how the accused
participated, then how can the court decide the appropriate sentence?
R. v. H.(L.I .) (2004 MCA)
Facts: The accused and his brother, and some of their friends, beat up the victim badly. The accused personally
kicked/punched the victim several times, and jumped on his stomach/face/chest twice. The victim died. The trial
judge focused on whether or not the accused had been a significant causal factor in the victim‘s death.
Issue: Was the trial judge‘s focus the correct one? Holding: No.
Reasoning (Freedman J.A.):
The judge focussed on causation and whether the accused‘s conduct was a contributing cause of death
o This was the wrong focus: the issue was not whether his actions were a contributing cause of death,
which usually implies an intervening act
This is a participation case – do not need to determine that the accused’s actions were the sole or
contributing cause of the victim’s death (implication being, as long as one of the group‘s actions were a
cause of death beyond the de minimis range)
o Causation would be proved if the jury was satisfied that the victim died from the assault and the
accused participated, assisted, or abetted in that assault
Where the accused is legally considered to have caused the victim‘s death by virtue of s. 21, then causation
is conclusively established unless there is an intervening event breaking causation
o Without evidence of such an intervening event, if the accused has either factually or legally (by s. 21)
caused the victim‘s death, no need to examine causation further; no need to decide whether the
accused‘s action was a significant contributing cause
As long as the jury is satisfied that the accused participated in the beating, and had the requisite intent for
murder, he would be guilty of second-degree murder
Ratio: The relationship between causation and participation is as follows: if an accused is charged with
participation, Crown does not have to prove that accused was a sole cause or even a ―not insignificant‖
contributing cause. Crown has to prove that the accused assisted/aided/abetted with the group that caused the
actus reus.
Akhavan on R. v. H.:
It doesn‘t matter who landed the fatal blow – all the participants are parties to the offence, because they have
a shared intent the group caused the death, and they all had the necessary state of mind, so they are all
responsible for the crime
R. v. Berryman (1990 BCCA)
Facts: B worked in a passport office. She gave passport information that she knew was fake and would not be
checked to an innocent agent, who made the passport according to the specifications in the document. B is
charged with forgery.
Issue: Even though B did not make the fake passport herself, can she be charged with aiding and abetting
forgery or forgery simpliciter? Holding: Yes, she can be charged with forgery (not with aiding and abetting).
Reasoning (Wood J.A.):
Trial judge cannot find B was a party to the offence because there was no principal committing the offence
of forgery for her to aid and abet
In English common law, the person who caused a crime to be committed by means of an innocent agent was
considered to be a principal in the first degree
o Did the doctrine of innocent agency survive the codification of Canadian criminal law?
Yes, it falls under s. 21(1)(a) ―actual commission‖ included in this notion is the idea that a person who
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commits an offence by means of an innocent agent is deemed to be the actual perpetrator
o The act of the agent is the act of the perpetrator
Trial judge was right in not convicting B of aiding and abetting because the innocent agent was not
committing forgery – but could have convicted B as a principal offender under s. 21(1)(a) CCC
Ratio: The doctrine of innocent agency applies in Canada today under s. 21(1)(a) of the CCC (actual
commission of the crime). For the purposes of criminal liability, the innocent agent‘s act is attributed to the
person who caused them to do it.
s. 21(1)(b) & (c) – Aiding and Abetting
R. v. Kulbacki (1966 MCA)
Facts: The accused K is charged with dangerous driving; he wasn‘t actually driving the car. He let his 16-year-
old girlfriend drive and push it to 90 mph on a back road. He didn‘t do anything to stop or prevent her from
driving this way. It was his car.
Issue: Is K guilty of aiding and abetting dangerous driving? Holding: Yes.
Reasoning (Miller C.J.M.):
The defence: K did not participate in the commission of the crime – how to hold him liable?
Court: failure to even protest is equivalent to encouragement and is fatal to his defence
He was the owner of the car; as such, he is in control of the car; he had the authority to tell her to stop
driving like that but he didn‘t
Ratio: One can aid and abet by omission as well as by positive acts of assistance/encouragement.
Commentary:
Court‘s decision rests on the faintly articulated premise that an adult person is under a legal duty to ensure
the safe operation of the vehicle
Failure to prevent/stop the commission of the offence is tantamount to participation in the offence by aiding
or abetting
Dunlop and Sylvester v. The Queen (1979 SCC)
Facts: A 16-year-old was gang-raped by a motorcycle gang of which the accused are members. They were
present at the scene of the crime, delivering beer. They did not rape her. They did not help her either.
Issue: Are the two accused guilty of aiding and abetting? Holding: No.
Reasoning (Dickson J.):
A person is not guilty because he is present at the scene of a crime and does nothing to prevent it
If there is no evidence of encouragement by him, a man’s presence at the scene of a crime will not
suffice to render him liable as an aider and abettor
Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other
factors: such as -
o Prior knowledge of the principal offender‘s intention to commit the offence
o Attendance for the purpose of encouragement
Ratio: Mere presence at the scene of a crime does not amount to aiding and abetting.
Commentary:
Cf. R. v. Salajko – accused witnessed a gang-rape but stood by with his pants down. He was acquitted of
aiding and abetting. SCC in Kirkness said it was wrongly decided – this is encouragement, which amounts to
a substantial contribution to the crim
R. v. Popen: when the accused has a right to control the actions of another and deliberately refrains from
exercising it, his inactivity may be positive encouragement to the other to perform an illegal act and qualify
for aiding and abetting
There is a distinction between encouragement as aiding and abetting and encouragement as counselling
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o Counselling happens before the crime, and the counsellor is generally not present when the crime is
being committed as the accused is therefore more removed from the scene of the crime, there is a
higher standard of persuasion/encouragement necessary for a conviction as a counsellor
o Encouragement as aiding and abetting happens at the scene of the crime there is more proximity to
the crime itself, so the standard for what constitutes ―encouragement‖ attracting criminal liability is
lower
s. 21(2) – Common Intention
This provision is for crimes that occur in the course of other crimes
o The common intention refers to the main crime
o The participation is imputed with respect to the secondary crime
Great case, pay careful attention:
R. v. Kirkness (1990 SCC, Wilson J .)
To establish liability under s. 21(2) ―common intention‖:
o 1. The first step in establishing liability under s. 21(2) is to show that the accused formed an
intention in common with others to carry out an unlawful purpose and to assist them in achieving
that purpose need SHARED INTENTION and some form of ASSISTANCE
It is sufficient that such intention arise just prior to or at the time of the commission of offence
Common intention is usually implied from the facts, not explicit
o 2. Section 21(2) of the CCC deems a party criminally liable for the acts of the principal offender when
the accused knew or ought to have known of the probable commission of the acts which constitute
the offence. There are two elements to this branch:
The commission of the ultimate offence has to be probable
The accused must know or ought to have known of this probability
The defence available to people accused of common intention is “abandonment”
o The accused may absolve himself of criminal liability for the acts of the principal if he can show that
he abandoned his purpose to assist in the commission of a criminal offence
o Need something more than a mere mental change of intention, or a physical change of place by those
who wish to dissociate themselves from the crime
o There must be timely communication of the intention to abandon the common purpose from
those who wish to dissociate themselves from the contemplated crime to those who desire to
continue in it
Such communication (verbal or otherwise) must serve unequivocal notice on the other party to
the common unlawful cause that if he proceeds, he does so on his own
The issue is always the quality of the withdrawal
The difference between s. 21(1) and s. 21(2) is as follows:
o 1 makes parties to the offence those who commit it or aid and abet in its commission
o 2 covers the case where, in the absence of aiding/abetting, a person becomes party to an offence
committed by another that he knew or ought to have known would be the probable consequence of
carrying out their common unlawful intention
Provides for liability in cases of consequential offences which resulted from the
perpetration of the original offence
R. v. Logan (1990 SCC)
Facts: L & others were accused of robbing a Becker‘s, and number of other offences relating to the robbery,
specifically wounding the cashier badly. L charged with attempted murder under s. 21(2).
Issue: Does the objective arm (―ought to have known‖) of s. 21(2) apply to attempted murder? Holding: No.
Reasoning (Lamer C.J.):
Ontario Court of Appeal: if s. 21(2) were to permit a conviction of a party for attempted murder on the basis
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of objective foreseeability, that would be a conviction obtained on a lesser degree of mens rea than is
required for the principal
o Contrary to the principles of fundamental justice
The objective of this section is to deter joint criminal enterprises and to encourage people who do
participate to discourage their associates from going beyond the original offence
o This is a legislative objective of sufficient importance to override the rights of the accused under s. 7
of the Charter
But infringes those rights too much when it operates with respect to an offence which carries severe stigma
and there is a constitutionally required minimum degree of mens rea
o Cannot be justified under s. 1 with respect to these few offences (the Vaillancourt offences)
Ratio: The objective part of s. 21(2) (―ought to have known‖) does not apply to people accused of being parties
to offences of murder, attempted murder under the common intention rule – although it applies to people accused
of being parties to lesser offences by the operation of common intent.
See this international perspective on common intention and group crimes:
Prosecutor v. Tadic, paras. 185-220
Issue: can the accused by held criminally responsible for killing five men even though there is no evidence
that he personally killed any of them?
The foundation of criminal responsibility is the principle of personal culpability – no one can be held
criminally responsible for acts or transactions in which he has not personally engaged or participated
This ―participation‖ includes contributing to the commission of crimes by a group of persons executing a
common criminal purpose
o Although only some members may physically perpetrate the criminal act, the contribution of the other
members of the group is often vital in facilitating the offence
o The moral gravity of such participation is no less than those carrying out the offence
The Tribunal recognizes three categories of this type of liability:
o All co-defendants possess the same criminal intention, which is carried out with varying degrees of
participation
Is sometimes framed in terms of causation – necessary that the accused have formed a link in
the chain of causation, but does not have to be the sole of even a significant cause
Need knowledge on the part of the accused as to the intended purpose of the criminal enterprise
o Concentration camp cases – members of military or administrative units, generally with authority
group of persons acting pursuant to a concerted plan
o Common design to pursue one course of conduct where one of the perpetrators commits an act
which, while outside the common design, was nevertheless a natural and foreseeable consequence
of the effecting of the common purpose
Need: intent to participate in the common criminal design, and foreseeability of the other
criminal acts committed in the course of executing the design
Ex. In removing people from their village by setting fire to their houses, is foreseeable some
will be killed
See this academic discussion of crimes of common intention like those in s. 21(2):
Jens David Ohlin, “Group Think: The Law of Conspiracy and Collective Reason”
N.B. The author uses ―conspiracy‖ to mean common intention that is carried out in practice – is
participation, rather than the bare inchoate offence
Pinkerton liability (SCC 1946): a conspirator‘s actions may be attributed to all the members of a conspiracy,
subjecting them to criminal liability for the substantive crimes of their co-conspirators
Author argues that the conspiracy’s collective intention provides the mens rea for the co-conspirator’s
substantive offence – the “group will”
Conspiracies and Group Rationality
Broadest possible solution to Pinkerton riddle (how to attribute criminal actions of 1 group member to other
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members of group?) is to abolish conspiracy and inchoate offences and return the criminal law to its
individual focus
o This is not helpful: the new form of criminal behaviour is collective. Ex. genocide, organized crime,
financial crimes
Groups have a rationality that is separate from the rationality of the individuals making it up – group
decisions supersede individual choices, even in the face of disagreement – reason is collectivized
o Group decisions are enforced on individual dissenters; the previous decisions of the group inform the
choices of individual participants
This group rationality is the mens rea that is sufficient to support vicarious liability for crime
s. 22(1) – Counselling
R. v. Lacoursiere (2002 QCA)
Facts: L (such a superstar) was talking to his friend about how broke they both are. It came up that L‘s
grandmother keeps a lot of cash in her apartment – L mentioned he‘d like to steal it, but he can‘t because it‘s his
grandmother. His stellar friend offered to do it for him and split the money with him. L told him to wait for his
go-ahead, because he didn‘t want his grandmother to be there. L later called his friend and told him he didn‘t
want to go through with it anymore. His friend did it anyway, while the grandmother was there.
Issue: What kind of infraction is L correctly charged with, and is the defence of abandonment available to him?
Holding: Common intention and yes.
Reasoning (Proulx J.C.A.):
This could be a common intention (s. 21(2) – would make L guilty of robbery) or conspiracy (s. 465 – would
make L guilty of conspiracy) or counselling (s. 22(1) if crime consummated – would make L guilty of
robbery; or s. 464 if crime not consummated – would make L guilty of incitement).
Conspiracy
Conspiracy is
o An agreement between at least two people
o That have the intention to participate together
o To commit an illegal act
The illegal act does not have to occur in order for conspiracy to be consummated
The defence of abandonment is not available in conspiracy
Counselling
Is more than a recommendation – is it active encouragement of the other to commit a crime
Must have an intention to influence the other, to convince them – it‘s the element of persuasion that makes
this head of criminal liability different from common intention
In This Case
This was a common intention, not a situation of counselling – it was the friend who proposed the plan, not L.
L abandoned the common intention to commit a crime and communicated that abandonment to his friend,
and is therefore not to be convicted of robbery
Ratio: All these different types of participation can coexist.
Akhavan on Lacoursiere:
The test for counselling is that the alleged counsel be some form of persuasion – cannot just give someone
an idea have to actively encourage them to carry it out
Is this problematic? Shouldn‘t people be responsible for themselves, and know right from wrong?
o Counselling exists as a crime because we do not want people to abuse their influence over others
The mens rea for counselling is: the accused has to have seriously intended for the other to commit the
crime, or it has to have been subjectively foreseeable that the other would carry it out as a result of the
counselling
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If the other does not commit the crime you counsel, you are still guilty of incitement (s. 464) – but you are
not charged with the substantive offence you counselled (which is what happens with counselling under s.
22)
Accessory After the Fact
Being charged with being an accessory after the fact is different from the other forms of participation,
because the crime has already been committed
s. 240 CCC Every one who is an accessory after the fact to murder is guilty of an indictable offence and liable to
imprisonment for life.
See also s. 463.
R. v. Camponi (1993 BCCA)
Facts: Gee killed May in Camponi‘s presence. She then cleaned the blood off Gee‘s knife, wiped the
fingerprints off the evidence, put it all in a bag and threw it away. She washed Gee‘s clothing to remove the
blood spatter. Gee‘s second degree murder charge was stayed because his confession was ruled inadmissible.
Issue: Can Camponi still be charged with accessoryship after the fact even though the principal offender has not
been convicted? Holding: Yes.
Reasoning (Wood J.A.):
There are separate offences for the charge of accessory after the fact to murder (s. 240, max sentence = life)
and accessory after the fact to other crimes (s. 463, max sentence = 14 years)
To prove someone was an accessory after the fact, Crown must show:
o Actus reus:
Conduct on the part of the accused which had the effect of receiving, comforting, or assisting a
person
That person must have been party to the offence with respect to which the accessoryship is
alleged
o Mens rea:
Intention with respect to the conduct alleged
Knowledge by the accused that the person committed the offence
Ulterior purpose/desire/intention to help the person escape (?)
The principal offender does not have to have been convicted (or even found) in order for the accessory
to be tried and convicted. That common law rule was overruled by statute.
Ratio: For someone to be charged with being an accessory after the fact, the principal offender doesn‘t have to
have been convicted already.
Akhavan on Camponi:
In the case of s. 240, the intention of the accused has to specifically be to comfort/receive a person who has
committed murder
o The definition of ―murder‖ here is a bit looser than the legal definition – is more the common-sense
definition of murder
If the accessory thought the person they harboured only committed manslaughter, that would actually
constitute a defence to a charge under this section (although maybe not s. 463)
Wilful blindness is important to the mens rea of accessoryship – see Duong.
INCHOATE CRIMES
Inchoate offences are offences which create criminal liability for incomplete crimes
o We are here criminalizing conduct that has yet to harm anyone – does this violate the harm principle?
The threat of harm has been held to be enough to satisfy it
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Three inchoate offences of general application in Canadian criminal law:
o 1. Attempt
o 2. Incitement (also called counselling)
o 3. Conspiracy
The substantive offences are not or do not have to be completed in order for people to be charged with the
above offences of attempt, incitement, or conspiracy
1. Attempt
The mens rea for attempt is the same mens rea required for the completed offence. The actus reus
of attempt is any step beyond mere preparation to commit the crime.
For attempted crimes, the mens rea is the same as the completed offence, but the actus reus has not been
completed, obviously
o The difference between an attempt and the full offence = actus reus
The structure of the Criminal Code with respect to attempts is as follows:
o s. 24 defines attempts generally
o s. 463 sets out the penalties for attempts
o s. 239 sets out the separate penalty for attempted murder
s. 24 CCC (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose
of carrying out the intention is guilty of an attempt to commit the offence whether or not it was
possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not
mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a
question of law.
The intent alone is not enough – the person accused of an attempt has to do or omit to do something to carry
out his intent
o Mere preparation is not enough either there must be the next step
See the following cases on the actus reus and mens rea of attempt:
The actus reus of attempt:
R. v. Cline (1956 OCA)
Vexed question with attempt is whether a particular act is an act of preparation only or is an actual attempt
Some propositions accepted by the judge:
o There must be mens rea and also an actus reus to constitute a criminal attempt, but the criminality of
the misconduct lies mainly in the intention of the accused (the mens rea)
o The actus reus must be more than mere preparation to commit a crime
o When the preparation to commit a crime is in fact fully complete, the next step done by the accused
for the purpose and with the intention of committing a specific crime constitutes an actus reus
sufficient in law to establish a criminal attempt to commit that crime
Deutsch v. The Queen (1986 SCC)
Facts: Accused put a job ad out for a secretary – three women applied for the job and were told that they would
be expected to have sex with clients in order to conclude contracts, for which they would be paid.
Issue: Does this constitute an attempt to procure? Holding: Yes.
Reasoning (Le Dain J.):
The application of the distinction between preparation and attempt must be left to common sense
Consideration must be given to: nature and quality of the act in question, and the nature of the complete
offence, as well as the relative proximity of the act in question to what would have been the complete
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offence (in terms of time, location, and acts under the control of the accused remaining to be accomplished)
In this case, all the women had to do was accept the jobs – putting the ad in the paper, offering them money
in order to have sex with clients, is clearly more than preparation to procure is an attempt
Ratio: There is no hard rule for distinguishing preparation from attempt to commit a crime.
The mens rea of attempt (specifically attempted murder):
R. v. Ancio (1984 SCC)
Facts: A wanted to speak to his estranged wife – so naturally he broke into her apartment with a loaded sawed-
off shotgun. The man living with A‘s estranged wife came to investigate, threw a chair at A – struggle ensued
during which the gun went off. A was charged with attempted murder.
Issue: Is the mens rea for an attempt the same as the mens rea to commit the substantive offence, or is it
something less? Holding: It‘s the same.
Reasoning (McIntyre J.):
The intent to commit the desired offence is a basic element of the offence of attempt – intent is the most
fundamental component and the crucial criminal element of attempt
What is the intent required for an attempt to commit murder?
o The mens rea for attempted murder cannot be less than the specific intent to kill
Ratio: The required mens rea for attempted murder is the specific intent to kill (the same mens rea as is required
for murder).
Commentary:
Mens rea for attempted murder is the same as that for murder subjective intent. They are equally morally
blameworthy, so the stigma is the same
Is the punishment therefore the same? No. There is no minimum penalty for attempt (the maximum is life).
Why is there not the same punishment? Because it‘s not actually just the mens rea that we punish – it‘s
partially the harm actually inflicted that justifies the punishment
R. v. Logan (1980 SCC)
Facts: L was accused of robbing a Becker‘s, and number of other offences relating to the robbery, specifically
wounding the cashier badly. L charged with attempted murder under s. 21(2).
Issue: What is the necessary mens rea for attempted murder? Holding: Subjective foresight of death.
Reasoning (Lamer C.J.):
Ancio established that a specific intent to kill is the mens rea required for a principal on the charge of
attempted murder
But it did not consider whether this was a constitutional requirement or not: the question now before the
court is whether the principles of fundamental justice require a minimum degree of mens rea in order to
convict an accused of attempted murder
The minimum mens rea for murder is the subjective foresight that the death of the victim was likely to ensue
from the accused‘s actions
It would be logical if attempted murder had the same mens rea as murder, because the only difference is
whether the person succeeds or not
But logic does not suffice to make something a constitutional requirement: when deciding if the same
minimum mens rea applies to attempted murder, have to consider the stigma associated with a conviction
and the penalties available (Vaillancourt)
Stigma associated with a conviction for attempted murder is severe – both the murderer and the attempted
murderer are branded as having the same killer instinct
And the usual penalty for attempted murder is very severe
So the mens rea for attempted murder cannot, without infringing s. 7 of the Charter, require of the accused
less of a mental element than that required of a murderer (i.e. subjective foresight of consequences)
Ratio: Required MR for attempted murder = MR for murder = subjective foresight of death.
Possible defence to attempt?
United States v. Dynar (1997 SCC)
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Facts: U.S. wants Canada to extradite Dynar for criminal prosecution in the States. In order to do so, Canada has
to ensure that what Dynar did would also constitute a crime in Canada (principle of ―double criminality‖). Dynar
unknowingly set up a deal to launder drug money for someone who was in fact a federal agent.
Issue: Does impossibility constitute a defence to a charge of attempt or conspiracy? Holding: No.
Reasoning (Cory & Iacobucci JJ.):
The crime of attempt consists of an intent to commit the completed offence together with some act that
is more than merely preparatory in furtherance of the attempt
o Mr. Dynar intended to commit the money-laundering offences and he took steps to realize his
intention that went beyond preparation
The defence stated that it was legally impossible for Mr. Dynar to have completed the offence, because the
money wasn‘t actually drug money – it was legitimate government money
o They say that s. 24(1), when it says that impossibility is not a defence, only refers to factual
impossibility this is legal impossibility
I.e. Even if the offence had been completed, no crime would have been committed
The distinction between the factually impossible and the legally impossible is not tenable
o In both cases, the defendant‘s criminal intention is thwarted only by an attendant circumstance over
which he has no control (the legitimacy of the source of the money)
o Even if the defendant believes something which isn‘t true, which makes his act not a crime, it‘s not
truth that matters it‘s the belief
o The belief is what creates the mens rea – the truth of the matter only affects the actus reus, which in
crimes of attempt isn‘t fully completed anyway
Only attempts to commit imaginary crimes fall outside of the law of attempt – i.e. if I think smuggling sugar
is a crime I‘m not actually intending to do anything illegal, so the law has no interest in discouraging it
o The law IS interested in discouraging money-laundering, and it is unlikely that Dynar‘s next client
will be the government
The law of attempt is only engaged when the mens rea of the completed offence is present entirely and the
actus reus of it is present in an incomplete but more-than-merely preparatory way.
Ratio: The actual impossibility of completing the attempted offence (in fact or in law) is not a defence to the
charge of attempt.
2. Incitement
The actus reus of incitement is the act of counselling another to commit a crime. There is a dual
mens rea requirement for incitement: 1. Intent to counsel, and 2. Intent that the crime counselled
actually be committed.
Criminal liability for incitement/counselling exists in two forms in Canadian law:
o 1. Incitement of an offence that is actually committed – mode of participation in the commission of
the offence because the inciter causes the commission of an offence through another person (s. 22)
o 2. Incitement of an offence which is not committed – independent offence of inchoate liability (s. 464)
s. 464 Except where otherwise expressly provided by law, the following provisions apply in respect of persons who
counsel other persons to commit offences, namely,
(a) every one who counsels another person to commit an indictable offence is, if the offence is not
committed, guilty of an indictable offence and liable to the same punishment to which a person who
attempts to commit that offence is liable; and
(b) every one who counsels another person to commit an offence punishable on summary conviction is, if
the offence is not committed, guilty of an offence punishable on summary conviction.
What do you need for a conviction of incitement?
o 1. Counselling
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Must be both the act of counselling (persuasion)
And the intent to counsel
o 2. Intention that the offence actually be committed
The actus reus of incitement is even more minimal than for attempt – is mere words this is criminal
liability for utterance
o So the mens rea requirement is quite exacting
Compare incitement to the different forms of participation we have seen/will see:
Ford v. The Queen (2000 OCA)
Facts: Ford convinced Doe to kill Martin Bidwell because MB was going to testify against Ford in his trial for
robbery charges. Ford offered Doe money, he showed him where MB lived, suggested how Doe could do it, and
showed Doe escape routes. Doe tried to kill MB, but failed. At trial, the jury convicted Ford of incitement, but
acquitted him on conspiracy to commit murder and attempted murder charges (via aiding & abetting).
Issue: Is the jury‘s verdict on conspiracy and attempt inconsistent with its verdict on incitement?
Holding: No, conviction upheld.
Reasoning (MacPherson J.A.):
If the same basic ingredients are common to both charges, and the jury‘s verdicts are violently at odds, the
conviction must be quashed
o The onus is on the appellant to show that no reasonable jury who had applied their minds to the
evidence could have arrived at that conclusion
The Relationship between Incitement, Aiding and Abetting, and Conspiracy
Conspiracy: involves an agreement between two persons to do something – agreement is key
Counselling: involves one person urging another to do something – no need for agreement
F can be convicted of attempted murder by party liability – by aiding and abetting
o Aid = help or assist a person; can aid without being present when the crime is committed
o Abet = support, encourage, instigate, promote, or procure the crime to be committed; can abet without
being present when the crime is committed
o The definition for ―counselling‖ is similar: procure, solicit, or incite
Counsel: advise or recommend
Procure: instigate, encourage, persuade
Solicit: entreat or urge another to do something
Incite: urge, stir up, stimulate
o But these two offences are not fully the same
To be guilty of aiding and abetting, there must be some actual participation or assistance rendered –
person must associate themselves with the criminal venture by participating in it and trying to make it
succeed, or actively encouraging that to occur
The offence of counselling is limited to oral encouragement of the accused
Ratio: Incitement, aiding and abetting, and conspiracy are all separate offences with different requirements; but
they can overlap in certain cases.
The mens rea of incitement:
R. v. J aneteas (2003 OCA)
What is the mental state required for the crime of counselling an indictable offence that is not committed?
Counselling is a dual mens rea offence:
o First mens rea = intent to counsel the offence (difficult to distinguish from actus reus)
o Second mens rea = intention that the offender actually carry out the offence
The inciter must have as his purpose the commission of the principal crime
An intention to bring about the criminal result is of the essence of incitement
The debate is whether the counsellor must intend the commission of the offence counselled or whether his
recklessness as to whether the offence is committed or not will suffice
o Recklessness is not enough, says the court must have full intention that the crime be committed
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o Criminal liability should only apply to acts intended to further crimes or known as certain to do so – it
should not be incurred for acts which are merely very likely to do so
Reasons for rejecting recklessness as a standard
o Do not want criminal liability to attach to instances of counselling that are casual/accidental
o Lowered standard of recklessness may catch some legitimate undercover crime investigation
techniques that involve encouragement of crime
There are some who maintain that the mental element for incitement should be lower than that required for
the other inchoate crimes (attempt – intention to commit desired offence; conspiracy – intention to commit
the offence that forms the subject of agreement) because counselling is more dangerous
o Cannot change your mind and withdraw on your own
o Encouragement of another means that the counsellor loses some control and may be rendered
incapable of withdrawing support
o Judge doesn‘t find this distinction between conspiracy and incitement convincing – still may
embolden the other to commit a crime and thus lose ability to withdraw/control the situation
R. v. Hamilton (2003 ACA)
Facts: H stole a bunch of files and sold them online – knew they included instructions on how to commit credit
card fraud; they also included instructions on how to make bombs and explosives.
Issue: Is H guilty of incitement? Holding: No.
Reasoning (Conrad J.A.):
The actus reus is fulfilled – the files encouraged or actively promoted that others commit the crimes of
making explosives or credit card fraud
But the mens rea is missing – H did not intend for people to commit these crimes, and mere recklessness is
not enough
The danger of using a lesser standard of subjective mens rea (such as recklessness or wilful blindness instead
of subjective intent or knowledge of consequences that are certain) lies in the nature of s. 464
o The conduct it prohibits is counselling a crime that is not committed
o There is no detrimental consequence from the performance of the actus reus
o This means that the counsellor’s state of mind is the sole factor that determines whether his or
her conduct is criminal
o In such a situation, the most demanding standard of subjective mens rea should apply
The standard is intent – and the person guilty of incitement intends that the substantive offences
counselled be committed (or knows with certainty they will be committed as a result of counselling)
Ratio: The requisite mens rea for the crime of incitement is subjective intention that the person counselled
commit the counselled crime.
Abandonment as a possible defence to incitement? No.
R. v. Gonzague (1983 OCA)
Facts: G had a window-cleaning business. Roy used to work for him, but started up his own business competing
with that of G. G met Charbonneau in a bar and mentioned that he had a couple of guys coming down from
Montreal to take out R; C, a friend of R‘s who didn‘t want him to be hurt, offered to kill R for G instead. He
went to the police. G later told C to forget it. G is accused of incitement.
Issue: Is abandonment a defence to incitement? Holding: No.
Reasoning (Martin J.A.):
Incitement is committed when one person counsels, procures, or commands another to commit a crime
whether or not the other actually commits it
o Any persuasion or encouragement (including a threat) is sufficient
A person can escape complicity in the crime they have incited by clearly withdrawing their assent
before it is committed; but he remains liable for any previous incitement
Renunciation of the criminal purpose does not constitute a defence to a charge of incitement
Ratio: Abandonment of the criminal purpose is not a defence to a charge of incitement.
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The Criminal Code prohibits the incitement of specific things:
Mugesera v. Canada (Minister of Citizenship and Immigration) (2005 SCC)
Facts: In 1992, M made a speech in Rwanda about how Tutsis and moderate Hutus should be exterminated.
Rwandan authorities issued a warrant for his arrest; he fled the country. He applied to immigrate to Canada, and
was accepted. The Minister of Citizenship and Immigration found out about the warrant for his arrest, and
commenced proceedings to deport M and his family on the basis that M committed criminal acts.
Issue: Did M‘s speech constitute an incitement to murder, hatred, and genocide, and a crime against humanity?
Holding: Yes – M and his family should be deported to Rwanda.
Reasoning (Joint Reasons for Judgment by 8 judges of the SCC):
Incitement to Murder
Charge under s. 464 of the CCC – offence to counsel another person to commit an offence, even if the
offence is not in the end committed
The offence of counselling requires that the statements, viewed objectively, actively promote, advocate, or
encourage the commission of the offence described in the statements
Actus Reus – the criminal act will be made out where the statements are, objectively speaking:
o Likely to incite
o Made with a view to inciting the commission of the offence
Mens Rea – the required mental element is intention that the offence counselled be committed
M told his listeners that they faced either exterminating the Tutsi or being exterminated by them – and M
knew his speech would be taken as an incitement to commit murder, which is enough to infer his intention
that it do so
M is guilty of incitement to murder (but not being a party to murder [i.e. counselling a completed offence]
because cannot prove the causation between his speech and the murders subsequently committed by his
audience)
Incitement to Genocide
s. 318(1) of the CCC makes it a specific offence to advocate genocide
Does not require proof that genocide has actually occurred – it‘s incitement itself which is the crime; is
punishable by virtue of the criminal act alone irrespective of the result
o Incitement remains a crime regardless of whether it has the effect it was intended to have
Actus reus: act of incitement must be 1. direct (in the context) and 2. public
Mens rea: 1. intent to directly prompt or provoke another to commit genocide and 2. intent to commit
genocide oneself (i.e. to destroy in whole or in part any identifiable group)
M is guilty of this as well – his speech was public, the incitement to genocide was direct, and as he was
aware of the context in which he was making his speech, the court may infer his intent to commit genocide
and to incite the others to do so as well
Incitement to Hatred
s. 319 CCC makes it a specific offence to incite hatred (hatred = emotion of an intense and extreme nature
that is clearly associated with vilification and detestation)
The offence does not require proof that the communication caused actual hatred
Actus Reus: according to the understanding of a reasonable person in the context, the communication
expressed hatred (focus on social and historical context of speech‘s audience)
Mens Rea: the speaker must desire that the message stir up hatred
M‘s speech obviously expressed hatred of Tutsis and moderate Hutus (repeatedly called them ―inyenzis‖, or
cockroaches); and considering the circumstances, can infer his intent to stir up hatred in the crowd
Crimes Against Humanity
The question here is whether counselling murder or inciting hatred or genocide constitutes one of the
underlying acts required for a crime against humanity
The court concludes that it constitutes ―persecution‖ in the degree of gravity and context sufficient to make it
a crime against humanity
Ratio: Incitement of specific things are particularly prohibited in the CCC; furthermore, incitement can
constitute a crime against humanity if the context warrants the gravity of that charge.
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3. Conspiracy
The actus reus of conspiracy is the fact of agreeing with another to commit a crime (no act in
furtherance of the crime is required). The mens rea requirement for conspiracy is the genuine
intention to participate in the agreement.
A conspiracy exists when two or more people agree to commit a criminal offence
The offence of conspiracy is complete upon their agreement
N.B. the defence of abandonment is not available for conspiracy because the agreement itself is the crime
s. 465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of
conspiracy:
(a) every one who conspires with any one to commit murder or to cause another person to be murdered,
whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of
imprisonment for life; […]
(c) every one who conspires with any one to commit an indictable offence not provided for in
paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to
which an accused who is guilty of that offence would, on conviction, be liable
United States v. Dynar (1997 SCC)
Issue: Does impossibility constitute a defence to a charge of conspiracy? Holding: No.
Reasoning (Cory & Iacobucci JJ.):
We have criminalized conspiracy because two or more persons working together can achieve evil
results that a person working alone cannot – the potential scale of injury to society is greater
o In society’s best interests that law enforcement be able to intervene before the harm occurs
A conspiracy consists in the agreement of two or more to do an unlawful act. So long as such a design rests
in intention only, it is not an offence. When two agree to carry it into effect, the very plot is an act in itself
that is punishable with criminal liability
o It is not necessary that there be an overt act in furtherance of the conspiracy
The actus reus = the fact of agreement between two or more people to commit a crime
The mens rea = each of the conspirators must have a genuine intention to participate in the agreement
(a person cannot be a conspirator if they merely pretend to agree)
Defence of impossibility (either legal or factual) is inapplicable to a charge of conspiracy
o ―Impossibility of execution is never a defence to inchoate liability in Canada‖
Since the crime of conspiracy only requires an intention to commit the substantive offence, but not the
commission of the offence itself, it doesn‘t matter that, from an objective point of view, commission of the
offence may be impossible
o Conspiracy is a crime of intention – it is the subjective point of view that matters
o The intention of the conspirators remains the same, regardless of the circumstances that make the
realization of that intention impossible
Ratio: The defence of impossibility does not apply to conspiracy (or attempt) because it is a crime of intention.
See this academic critique of the different treatment of inchoate crimes and completed offences:
Steven J. Schulhofer, “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the
Criminal Law”
The criminal law attributes major significance to the harm actually caused by a defendant’s conduct, as
distinguished from the harm intended or risked
But many factors completely outside knowledge/control of defendant may determine the ultimate result
Accordingly, the difference in legal treatment would seem inconsistent with the purposes of the criminal
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law, such as deterrence, rehabilitation, isolation of the dangerous, and punishment of moral blameworthiness
Emphasis on the harm can be understood as a vestige of the criminal law’s early role as an instrument of
official vengeance
o The degree of punishment is linked to the amount of damage done rather than the intention of the
actor can only be justified in terms of a crude retaliation theory
But revenge has been widely rejected as a legitimate purpose of the criminal law
The reasons for equal treatment of acts that have the same intention and foreseeable consequences are:
o Punishment in accordance with moral fault
o General deterrence of the population at large
o Reformation and isolation of dangerous offenders
The degree of harm caused is not a consideration for any of these objectives – intent is
CORPORATE LIABILITY
You obviously cannot put a corporation in prison; they are only susceptible to fines. So why do we call the
negligent/purposely illegal things they do ―crimes‖?
o Imposes a level of stigma on their actions chances the image of the corporation, which is a business
asset and affects consumer goodwill
o Both the stigma and the imposition of fines functions as a deterrent to the corporation to engage in
illegal activity that harms people
Why do we target the corporation as opposed to the individuals who run it? The corporation does not
actually exist – it‘s an abstract notion. The people who run it actually make the decisions leading to the
criminal activity
“The Corporation: Monstrous Obligations”
The corporation is just a legal structure – it doesn‘t mean anything to say that it has ―moral responsibility‖
But the people who work in that corporation do have moral responsibility
There is a distinction between the institution and the individuals who work there; the institution may be
monstrous, but does not mean that the individuals are
o Do the individuals become monstrous by virtue of their participation?
o Well, individual liability (white-collar crime) is much more difficult to prove than corporate liability
o Are we purposely shielding individuals from liability because of their lack of proximity to the crime?
o Perhaps we want to encourage business, because it is a legitimate activity
In 2003, the law on corporate liability was fundamentally altered by statutory amendments found in ss. 22.1
(criminal negligence), 22.2 (subjective intent offences) of the CCC
Has replaced the common law of ―directing minds‖ with a broader concept of ―senior officer‖
N.B Corporations are not protected by s. 7 of the Charter
o They therefore cannot challenge the fact that they are subject to vicarious liability for subjective
criminal offences
The Old Common Law of “Directing Minds”
A ―directing mind‖ of a corporation is someone who makes corporate policy rather than just carries it out
Canadian Dredge and Dock Co. v. The Queen (1985 SCC)
Reasoning (Estey J.):
The amenability of a corporation to prosecution depends on the type of offence with which they are charged
Absolute liability offences: corporations and individual persons stand on the same footing in the face of such
a statutory offence – liability is primary
Strict liability offences: corporation/natural person are in same position – liability not vicarious but primary
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Offences Requiring Mens Rea:
o We attribute liability to the corporation on the basis of the doctrine of directing mind (also called
identification) is a very limited version of vicarious liability
Cf. US uses full vicarious liability, so that the corporation is held responsible for any
criminal act committed by an employee in the course of his employment
This flings the net a bit too wide – the corporation is held responsible in the absence of any
negligence or moral turpitude
o The identity doctrine merges anyone to whom is delegated governing executive authority of the
corporation into one entity – the conduct of (any element of) that entity is attributed to the corporation
o The outer limit of the delegation doctrine is reached when the directing mind ceases completely to act
in the interest of the corporation
R. v. Waterloo Mercury Sales Ltd. (1974 Alberta District Ct.)
Facts: A used-car sales manager turned back the odometers of 26 cars he was selling for the accused
corporation.
Issue: Is the manager a ―directing mind‖ of the corporation such that the corporation is rightly held criminally
responsible for his fraudulent actions? Holding: Yes.
Reasoning (Legg D.C.J.):
The manager was not a lesser employee
It was the corporation‘s policy to delegate to the manager all matters relating to the used car operation – they
delegated their directing will to him he thereby became a directing mind
The fact that the president of the company had no knowledge of his manager‘s actions affords the
corporation no defence
Ratio: The manager is here held to be a directing mind of the corporation – therefore, the corporation is rightly
held criminally responsible for his actions.
R. v. Safety-Kleen Canada I nc. (1997 OCA)
Facts: The driver of a waste management company knowingly gave false information to a government
environmental officer.
Issue: Can the corporation be held responsible for the act of its agent? Holding: No.
Reasoning (Doherty J.A.):
Iacobucci J. in Rhone:
o The inquiry demanded by the identification theory must be whether the impugned individual has been
delegated the ―governing executive authority‖ of the company within the scope of his or her authority
o One must determine whether the discretion conferred on an employee amounts to an express or
implied delegation of executive authority to design and supervise the implementation of
corporate policy rather than simply to carry out such policy
o The court must consider who has been left with the decision-making power in the relevant sphere of
corporate activity
In this case the driver had wide discretion in his geographical area of work – but he had no authority to
devise or develop corporate policy so he was not a directing mind; so no liability for the corporation
Ratio: A ―directing mind‖ of a corporation has the power to develop and oversee the implementation of
corporate policy; only the conduct of a directing mind can be identified with the corporation such that the latter
is rightly held criminally responsible.
The New Corporate Liability
The doctrine of ―directing minds‖ has been significantly expanded
The impetus for these amendments are situations like the Westray mining accident – 26 miners were killed a
result of the negligence of managers
Definitions “organization” means
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(a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or
(b) an association of persons that
(i) is created for a common purpose,
(ii) has an operational structure, and
(iii) holds itself out to the public as an association of persons
“senior officer” means a representative who plays an important role in the establishment of an
organization’s policies or is responsible for managing an important aspect of the organization’s
activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief
financial officer
“representative”, in respect of an organization, means a director, partner, employee, member, agent or
contractor of the organization
s. 22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the
offence if
(a) acting within the scope of their authority
(i) one of its representatives is a party to the offence, or
(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it
had been the conduct of only one representative, that representative would have been a party to the
offence; and
(b) the senior officer who is responsible for the aspect of the organization‘s activities that is relevant to the
offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in
the circumstances, could reasonably be expected to prevent a representative of the organization from being a
party to the offence.
s. 22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an
organization is a party to the offence if, with the intent at least in part to benefit the organization, one of
its senior officers
(a) acting within the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting within the scope of their
authority, directs the work of other representatives of the organization so that they do the act or make
the omission specified in the offence; or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does not
take all reasonable measures to stop them from being a party to the offence.
T. Archibald, K. Jull, and K. Roach, “The Changed Face of Corporate Criminal Liability”
Introduction
The Westray mine explosion in 1992 was caused by the mining corporation‘s lack of compliance with health
and safety regulations; manslaughter charges were laid against two Westray managers, but were acquitted
The reforms to corporate liability were a reaction to this disaster – Bill C-45 revolutionizes corporate
criminal liability is largely an expansion of such liability
This reform was overdue – the common law concept of a ―directing mind‖ has become outdated by the
advent of new forms of organic management, outsourcing, etc.
The Changes
1. Expanded Definition of “Organization”
o New law extends beyond the corporate world to include all ―organizations‖/―associations of persons‖
o Could include governmental institutions, charitable organizations, possibly organized criminal gangs
2. Expanded Definition of “Representative”
o Organizations are now held responsible not only for what their senior officers do, but also for their
―representatives‖ can be agents, or even sub-contractors
3. New Definition of “Senior Officer”
o No longer have to prove policy-setting capacity – just have to show that the person controlled a
significant portion of the operation of the organization
o Widens liability beyond the boardroom, to encompass purely operational activities
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4. Subjective Intent Offences
o The organization is guilty if the senior officer has the necessary intent, but gets someone else to carry
out the physical act (s. 22.2(b))
o The government‘s legislation can spread the stigma of serious convictions to the entire corporation
o Problematic? To extend the notion of ―senior officer‖ to management at the operational level seems to
fit better with crimes of negligence than with crimes of subjective intent – is problematic where the
crimes are very serious (ex. murder)
o s. 22.2(c) is a combination of subjective and objective factors – requires seniors officers not only to
stop themselves, but to take all reasonable measures to actively stop someone else from acting
Assumption is that senior officers know what conduct is criminal and what isn‘t
Assumption also that they have enough control over employees, and more problematically,
contractors, to stop the conduct
[cf. command responsibility]
5. Negligence Offences
o Have to prove both the negligence of the employee who committed the act, and the failure of the
senior officer to take all reasonable precautions to prevent that negligence
Authors submit that these provisions often require corporations/senior officers to show that they have
exercised due diligence – mixes up regulatory offences and criminal offences
Is organizational liability progressive? We thereby motivate corporations to act correctly.
Or does it shield individual corporate officers by aiming the hit at the company rather than the officer?
Would convicting the managers serve the purposes of criminal liability? Punishment of their moral
blameworthiness, deterrence of other managers
Example of a situation that corporate liability was designed to deter/punish:
Sanford Lewis, “The Bhopal Chemical Disaster: Twenty Years Without Justice”
December 2, 1984 in Bhopal, India, Union Carbide‘s factory released a gas on the surrounding city which
caused:
o 3000-8000 deaths that night
o 20,000 deaths total since then
o Contamination of the groundwater
o Increased rates of cancer, TB, deformed and handicapped children
o Survivors‘ inability to work (cannot perform physical labour due to medical conditions)
The plant was not following safety protocol; none of its safety systems were operating the night of the
disaster were either not working, substandard, or turned off to save money
India laid criminal charges against UC and its CEO; CEO got out on bail, left the country, and refused to
answer every subsequent summons
India sued UC civilly – settled for about $500 per person, which many have still not yet received (and is
totally inadequate)
PART VII. GROUNDS FOR EXCLUSION OF CRIMINAL LIABILITY
Note: to get to the step of invoking a defence, the accused needs to have already been found to have
committed the actus reus with the necessary mens rea
There are two categories of defences that we‘ll be looking at: justifications and excuses
o They are both affirmative types of defences, because they DO NOT negate mens rea
1. Justifications (ex. self-defence)
o They do not negate mens rea
o But they do negate the moral blameworthiness: a morally blameworthy act is made morally blameless
by a justification
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o It is considered that, in the circumstances, the actus reus coupled with the mens rea were morally
justifiable
2. Excuses (ex. duress)
o The criminal action was not morally justifiable, but it was morally involuntary
N.B. physical involuntariness is different from moral involuntariness physical involuntariness
negates the actus reus; moral involuntariness excuses the crime
o Doesn‘t negate the mens rea, but excuses having had it
o The conduct is still morally blameworthy
These are full defences to conviction, not mitigating factors at sentencing
o Some defences just reduce the charge (partial defences – ex. provocation)
Note that there are still common law defences and the CML plays a very important role in defining the scope
of defences
A defence will only be put to the jury if it has an air of reality:
o The air of reality test is a filtering mechanism: the trial judge will only instruct the jury on a defence if it
is plausible enough (i.e. has this ―air of reality) – but it is quite a low threshold
o The accused has to show that there is some evidence that he, the accused, has raised, such that a
jury properly instructed and acting reasonably, would acquit him on its basis
o Note: there must be an air of reality in relation to every single requirement for the defence
INTOXICATION
Intoxication does not really fit into the above categories; it is quite conceptually flawed
The issue is: to what extent should voluntary, self-induced intoxication by alcohol or another drug afford a
defence to an accused? Are you capable of forming an intent in an advanced state of intoxication?
If the accused‘s actions are truly involuntary, the logic of the law seems to compel an acquittal
o N.B. we‘re not talking about the extremely advanced state of intoxication akin to automatism – we‘re
talking about a state short of that
Perhaps the law should deny the accused a defence for reasons of policy
o Could substitute the fault of being so intoxicated that the accused did not know what they were doing
for the fault element as defined in the particular offence
Note that the distinction between specific and general intent exists only for the purpose of determining
whether there is or is not a defence of intoxication at common law
Director of Public Prosecution v. Beard (1920 House of Lords)
Reasoning (Lord Birkenhead):
Until early 19
th
century, voluntary drunkenness was never an excuse for criminal misconduct
o This was based on the principle that a man who by his own voluntary act of consumption destroys his
will power should not be better situated with respect to a criminal charge than a sober man
o The rigidity of this rule was relaxed throughout the nineteenth century
Now the rule is that where a specific intent is an essential element of the offence, evidence of a state of
drunkenness rendering the accused incapable of forming such an intent should be taken into account
in the mens rea analysis
Drunkenness is not an excuse for the crime; the state of drunkenness might be incompatible with the actual
crime charged and therefore negative the commission of the crime by the accused
Three categories of drunkenness and criminal charges:
o 1. Insanity produced by drunkenness is a defence to the crime charged – i.e. temporary madness
relieves criminal responsibility, regardless of the cause [automatism – see Daviault]
It‘s a defence
o 2. Evidence of drunkenness rendering the accused incapable of forming the specific intent essential to
constitute the crime should be considered in the mens rea analysis
I.e. it can be a defence to crimes of special intent
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o 3. Evidence of drunkenness falling short of proved incapacity (to form the specific intent necessary to
constitute the crime) does not rebut the presumption that a man intends the natural consequences of
his acts
It‘s not a defence to crimes of general or special intent
Ratio: If someone gets so drunk as to be incapable of forming the specific intent required for the crime with
which they are charged, intoxication is a defence to criminal liability because it negates mens rea.
Commentary: there is a difference between ―incapacity to form intent‖ and ―absence of intent‖; Beard is talking
about the effect of drunkenness on capacity to form intent.
Akhavan on Beard:
Note that intoxication is the only area of the common law where the difference between special and general
intent has an effect
o Remember, special intent is not only the intention of an action, but a desire of a particular consequence
of that action, a particular purpose
o General intent is just knowledge of the foreseeable consequences of your actions
Intoxication is decided to be a defence to special intent crimes, but not general intent crimes
o Does this make sense? Not really. Either you have the mens rea necessary to constitute the crime, or
you don‘t – it‘s pretty black and white.
The distinction between special and general intent crimes with respect to intoxication is not a principled
distinction it is purely a question of policy
o We do not want people to get drunk and therefore be absolved of everything they do as a result
o This is a view of intoxication that sees it as a voluntary assumption of risk – people are responsible for
the things they do when they are the ones who put themselves in a state to do them
The requirement of mens rea is a stumbling block to the full application of the risk theory – so we
compromise: we say that at some level, intoxication itself is culpable and so it is not a defence to general
intent crimes; but it is a defence to special intent crimes
This case rejects the Beard approach: the emphasis on capacity to form intent rather than actual intent
R. v. Robinson (1996 SCC)
Facts: R killed a man who he and his friends were drinking with, and allegedly offended R. R claimed to have
killed him without intent because he was intoxicated.
Issue: Is the Beard test unconstitutional? Holding: Yes.
Reasoning (Lamer C.J.C.):
Beard (incorporated in Canada in MacAskill): evidence of intoxication is to be considered by a jury only
when its effect was to render the accused incapable of forming the requisite intent
This rule violates ss. 7 and 11(d) of the Charter because they create the possibility of a form of constructive
liability outlawed in Vaillancourt
o The Beard rules say that if a jury is satisfied that despite the accused‘s intoxication, he was still
capable of forming the requisite intent, they must convict (because intoxication is not a defence)
o However, it is still possible that the evidence of intoxication raised a reasonable doubt in their minds
as to whether the accused possessed the requisite intent (even though he was capable of forming it)
o The Beard rules therefore put an accused in jeopardy of being convicted despite a reasonable doubt
existing in the minds of the jury on the issue of actual intent
Are the restrictions imposed on ss. 7 and 11(d) of the Charter by the Beard test justified under s. 1?
o Failure of the proportionality prong – there is more than minimal impairment here, because could just
require that the jury be satisfied on actual intent (and forget capacity)
Before a trial judge charges a jury on the defence of intoxication, judge must be satisfied that the
effect of the intoxication on the accused’s ability to foresee consequences was sufficient to raise a
reasonable doubt must make sure the jury focuses on the accused’s actual intent, intent in fact
Ratio: The Beard test for when the intoxication defence is available is unconstitutional.
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This case dealt with the possibility that the defence of intoxication could be abused by instituting an “air of
reality” test in order for the defence to be put to the jury:
Lemky v. The Queen (1996 SCC)
R. v. Seymour (1996 SCC)
The threshold for putting the defence of intoxication to the jury must be evidence sufficient to permit a
reasonable inference that the accused did not in fact foresee those consequences because he was drunk
Evidence of intoxication which fails to demonstrate incapacity may still lend an “air of reality” to the
argument that the accused did not know that death was likely to ensue from his actions
Sidenote:
R. v. Penno (1990 SCC)
Intoxication is clearly excluded as a defence to a crime in which part of the actus reus is intoxication (such
as impaired driving)
Intoxication and specific intent:
R. v. George (1960 SCC)
Facts: G got extremely drunk and blacked out. He violently assaulted an elderly man and stole $22 from him. He
states that he ―came to‖ and was hitting someone but didn‘t remember much about it.
Issue: Was the accused so drunk that he was unable to form the intent to commit i) robbery and ii) common
assault? Holding: i. Yes. ii. No.
Reasoning:
Ritchie J.:
A distinction must be drawn between ―intention‖ as applied to acts done to achieve an immediate end and
acts done with the specific and ulterior purpose of furthering or achieving an illegal object on the other hand
o The latter involve the mental process of formulating a specific intent
Common assault is not a specific intent crime; robbery, by contrast, requires presence of specific intent
Fauteux J.:
A general intent is sometimes the only intent required to constitute a crime; other times, in addition to
general intent, there is a specific intent attending the purpose of that criminal act that is required
The accused did not have the capacity to form the specific intent to commit robbery; but that does not mean
he could not form the intent requisite for common assault
o Almost impossible not to be able to have the requisite intent for common assault – would need to
be in a state bordering on insanity
Accused should be found guilty of common assault
Ratio: Extreme drunkenness provides a defence to crimes of specific intent, but generally not crimes of general
intent.
Intoxication and general/specific intent:
Bernard v. The Queen (1988 SCC)
Facts: B forced the complainant to have sex with him while he was drunk; he hit her in the head, face. His
argument was that he was too drunk to know what he was doing; as soon as he realized, he stopped.
Issue: Is B guilty of sexual assault? Holding: Yes.
Reasoning:
Note: Leary v. The Queen establishes that the (no longer extant) offence of rape is an offence of general intent
for which voluntary intoxication is no defence.
McIntyre J. (+ 1):
There has long been a distinction between offences which require proof of specific intent and those which
only require proof of general intent
o General intent offence: the only intent involved relates solely to the performance of the act in question
with no further ulterior intent or purpose
o Specific intent offence: involves the performance of the actus reus, coupled with an intent or purpose
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going beyond the mere performance of the questioned act
o This distinction forms the basis of the defence of drunkenness
Drunkenness in a general sense is not a true defence to a criminal act
o But if a case involves a crime of specific intent, and the accused is so affected by intoxication that he
lacks the capacity to form the specific intent required to commit the crime charged, it may apply
o The defence has no application to offences of general intent, however
The basis of this distinction (i.e. the inapplicability of the defence to crimes of general intent) is probably
policy; the policy is that society condemns those who render themselves incapable of self control by the
voluntary consumption of alcohol
CJ (in dissent) says that evidence of drunkenness should be a relevant consideration in determining whether
the accused had the mens rea for any offence (specific or general intent)
o McIntyre J. disagrees – the effect of this conclusion would be that the more drunk a person gets, the
greater the chances the defence of intoxication will exonerate him
Leary rule doesn‘t relieve the Crown of its obligation of proving mens rea in a general intent offence
o Requisite state of mind can be proved in two ways:
1. Can infer mens rea from actus reus: people are presumed to intend the natural and probable
consequences of their actions
2. In cases where the accused was so drunk as to raise doubt as to the voluntary nature of
his conduct, Crown can meet its evidentiary obligation to prove the mental state of the
accused by proving the fact of voluntary self-induced intoxication
Evidence of self-induced intoxication is evidence of a guilty mind
If the person got themselves so drunk they didn’t know what they were doing, the
reckless behaviour exhibited in doing that affords the necessary evidence of
culpable mental condition
The result is that for accused charged with general intent crimes, the defence of
voluntary drunkenness is not available
Wilson J. (+ 1):
Is ―less confident‖ about McIntyre J.‘s proposition that self-induced intoxication can substitute for the
mental element required to be present at the time the offence was committed
A person should not be exposed to deprivation of liberty unless the Crown proves the existence of a
blameworthy state of mind
Doesn‘t mean that those who get so drunk they are incapacitated are ―morally innocent‖
But they still have the right to be protected against punishment that is disproportionate to their crime and
degree of culpability
o Especially if the consequences of their becoming drunk were not intended or foreseen
Wilson J.’s approach: preserve the Leary rule in a more flexible form: allow evidence of intoxication
to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication
involving an absence of awareness akin to a state of insanity or automatism
Dickson C.J.C. (+ 2):
The effect of Leary is to impose a form of absolute liability on intoxicated offenders – treats the deliberate
act of becoming intoxicated as culpable in itself and punishes it with a penalty measured by the unintended
consequences of becoming intoxicated
Ratio: The defence of intoxication is not available for crimes of general intent unless the intoxication amounts to
a state of automatism.
See the adoption of Wilson J.’s approach in this case about extreme intoxication and general intent:
R. v. Daviault (1994 SCC)
Facts: Accused is a chronic alcoholic. After getting extremely drunk, he sexually assaulted an elderly woman.
His blood alcohol ratio was high enough to put a normal person in a coma or kill them. Expert testimony stated
that the accused would have no awareness of his actions and no memory of them.
Issue: Is the defence of intoxication available for the crime of sexual assault, a crime of general intent?
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Judicial History: Trial judge acquitted on the basis that he had a reasonable doubt as to whether the accused
possessed the minimal intent necessary to commit the offence of sexual assault, because of his extreme
intoxication. QCA overturned and convicted the accused on the basis that intoxication is not a defence to a
general intent offence such as sexual assault.
Holding: The defence is available when the intoxication is so extreme to amount to automatism acquittal.
Reasoning:
Cory J. (+ 5) for the majority:
The mental element of an offence is central to the crime; in general intent offences, the intent is minimal, but
it still exists
o The substituted mens rea of intention to become drunk cannot establish the minimal mens rea to
commit (sexual) assault [overturning McIntyre J. in Bernard]
ss. 7 & 11 of the Charter require a limited exception to be made to the Leary rule evidence of extreme
intoxication akin to automatism/insanity is to be considered in determining whether accused possessed
the minimal mental element for crimes of general intent [Wilson J.’s approach in Bernard]
o This is a middle path: does not completely exclude such evidence, which violates the Charter; does
not always allow such evidence, which is unnecessary and against precedent (Bernard)
o But is reasonable: only those who can demonstrate that they were so intoxicated as to be in a state
akin to automatism can expect to raise a reasonable doubt as to their ability to form the minimal
mental element required in a general intent offence
Sopinka J. (+ 2) for the dissent:
Leary should be followed, not overruled; drunkenness is not a defence to a crime of general intent
This rule is supported by sound policy considerations: society is entitled to punish people who render
themselves so intoxicated as to pose a threat to its members
The rule does permit the accused to be convicted despite a reasonable doubt as to their intention to perform
the actus reus – but this does not violate the Charter or any fundamental principles of natural justice
Those who commit sexual assault while drunk deserve the stigma and the punishment they get – and their
intoxication can be taken into account at sentencing
Ratio: Evidence of extreme intoxication amounting to automatism may be submitted as a defence to a crime of
general intent.
Akhavan on Daviault:
This advanced state of extreme intoxication is a defence to ALL crimes, not just special intent (general too)
SCC says they do not want to substitute the mens rea associated with getting this drunk for the mens rea
associated with a substantive offence
Parliament responded with Bill C-72
Bill C-72, An Act to Amend the Criminal Code: “Self-Induced Intoxication”
Became s. 33.1 of the Criminal Code in 1995:
s. 33.1 1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced
intoxication, lacked the general intent or the voluntariness required to commit the offence, where the
accused departed markedly from the standard of care as described in subsection (2).
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care
generally recognized in Canadian society and is thereby criminally at fault where the person, while in a
state of self-induced intoxication that renders the person unaware of, or incapable of consciously
controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the
bodily integrity of another person.
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes
as an element an assault or any other interference or threat of interference by a person with the bodily
integrity of another person.
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Makes it so that it is no defence to a crime of general intent involving the violation of physical integrity of
another that a person was so drunk that they were unable to form the basic intent required
o If they ―departed markedly‖ from the standard of care
The state of the law is now more confusing than ever – there are three variations on the defence of
intoxication:
o 1) Common law rule restricting the defence of intoxication to offences of specific intent
continues to apply (Bernard)
o 2) Defence of extreme intoxication amounting to automatism applies to offences of general intent
(Daviault) requires expert evidence
o 3) s. 33.1 of the Criminal Code denies the defence of extreme intoxication amounting to
automatism to any offence of general intent that involves interference or the threat of
interference with the bodily integrity of another person
Provided that at the relevant time the act was performed in a state of intoxication that
shows a marked departure from the standard of reasonable care
The theory underlying this section is the substitution of one standard of fault for another
There have already been constitutional challenges to this provision – no court has yet declared it invalid and
the SCC hasn‘t ruled on it yet (although it‘ll happen soon)
SELF-DEFENCE
Every system of justice has a mechanism by which a person has the right to defend themselves from harm
When is it permissible for an individual to use force to defend and protect him/herself?
Note that the language of victim/offender completely breaks down in the context of self-defence
Introduction
People v. Goetz (1986 New York Court of Appeals)
Facts: Goetz was riding the subway when four young black men approached him and asked him for five dollars.
Goetz responded by shooting all four (none died, but were seriously injured). He claimed he thought they were
going to hurt him.
Issue: Is subjective perception of a need for self-defence available as a defence?
Holding: Yes, but it has an objective component.
Reasoning (Wachtler C.J.):
Self-defence only exonerates the accused when the accused ―reasonably believes‖ that the other person is
about to kill them or hurt them badly (or commit robbery)
Was the defendant‘s conduct that of a reasonable man in the defendant‘s situation?
o Must take into account the accused‘s knowledge of circumstances, their assailant
But it isn‘t enough that the defendant only (sincerely) believed that the use of deadly force was necessary to
protect himself to prevail on a self-defence claim
o That belief has to be reasonable
To exonerate someone who uses deadly force when they unreasonably believe it is necessary to protect
themselves would be to allow citizens to set their own standards for the permissible use of force
Ratio: In New York, there is an objective component to a self-defence claim.
Commentary: The jury still acquitted the accused in the new trial, on the basis of his good-faith belief.
Campbell on Goetz:
This is a famous case of subway vigilante-ism
This was a time of extreme, racially-charged violence in NYC, especially on the subway
Goetz was actually eventually acquitted on the re-trial, and in popular culture he was dubbed a hero
The Court of Appeal here says that the conduct constituting the self-defence has to be reasonable – but in
subjective circumstances of history, society, personality
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The analysis in Canada is different, but we still have this objective-subjective analysis of the state of mind of
the accused
Section 34(1) & 34(2)
s. 34 (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling
force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more
than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the
assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence
with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or
grievous bodily harm.
s. 37 (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he
uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is
excessive, having regard to the nature of the assault that the force used was intended to prevent.
Sections 34 and 37 provide justifications for acts that would otherwise be characterized as criminal
(generally assault or homicide)
It is extremely difficult to know which section to use in each case – 34(1) or 34(2)?
Factor 34(1) 34(2)
Result** Force/assault death/grievous bodily harm
Intent** to cause death/GBH No Yes/No
Provocation Can‘t have provoked it Not relevant
Proportionality Required Not examined
Reasonable apprehension of death/GBH Not required Required
Under Assault ―Repelling force by force‖ This factor is even less present in
this section
―repelling the assault‖
Reasonable belief he/she cannot
preserve self from death/GBH
Not required Required
See also s. 37(1)
The case law has read in the requirement of imminence
o However, the definition of imminence has been broadened as of late (situations of domestic violence,
bullying, etc victim/offender may feel themselves to be constantly under threat even though in
reality they are not)
R. v. Bogue (1976 OCA)
Facts: Woman stabbed her boyfriend to death after they had a fight. Neighbours had already intervened and
called the police before she stabbed him.
Issue: What is the difference between s. 34(1) and s. 34(2)?
Reasoning (Howland J.A.):
Section 34(1) Section 34(2)
- unprovoked assault
- accused does not intend the force that he uses to
cause death/GBH
- assault can be provoked or unprovoked
- accused intentionally kills or causes GBH to
assailant
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- force used must be no more than necessary for
self-defence (proportional response)
- no requirement of proportionality between
assault and response
In s. 34(2), there doesn‘t have to be a real threat of death/GBH; and the extent of the accused‘s response
doesn‘t have to be actually necessary to repel death/GBH there just needs to be reasonable grounds to
believe both these things
In neither case is a person defending himself against attack expected to weigh exactly the necessary measure
of defensive action
Section 34(2)(b) recognizes that when a man’s life hangs in the balance, he cannot be expected to make
the same decision as he would on sober reflection
o The essential question is the state of mind of the accused at the time the force is applied in light of
that, was the force excessive?
o Should not focus on the reasonableness of the force; rather, need to focus on the reasonableness of the
accused‘s belief
Ratio: There is no proportionality requirement in s. 34(2). An accused can thus avail themselves of a self-
defence claim even if their reaction was not proportionate, provided they fulfil the other requirements of s. 34(2).
Campbell on Bogue:
The trial judge focused too much on the reasonableness of the measure of the force the person acting in self-
defence used
Proportionality is not supposed to be examined under s. 34(2)
When it is a situation of kill or be killed, someone isn‘t going to ask themselves what is reasonable or
proportional, or what is a measured response
o Humans do not think this way, and this frailty is tolerated by the court
R. v. Pawliuk (2001 BCCA)
Facts: Preyser was running towards the accused. Pawliuk knew Preyser had a gun, and saw him reach behind his
back. Pawliuk took out his own gun, waved it at Preyser so he could see it, and alleges that it discharged by
accident, killing Preyser. The trial judge only directed the jury on s. 34(2).
Issue: Should the trial judge have directed the jury on both s. 34(1) and (2)? Holding: No.
Reasoning (Ryan J.A.):
Both ss. 34(1) and (2) can apply where the accused did NOT INTEND to cause death/GBH to their assailant
i.e. s. 34(2) can still apply where there was NO INTENT to cause death/GBH to assailant
o This is a different holding from Bogue
The difference between 1 and 2 is the apprehension of the accused (the person attacked) if they
reasonably apprehended that the attack on them was likely to cause their own death/GBH, the
accused is entitled to the stronger defence in 2
R. v. Baxter: the difference between the two provisions is the INTENT (to cause death/GBH to the assailant)
– judge here rejects this approach: he follows Pintar
R. v. Pintar:
o Both 1 and 2 apply where the RESULT is death/GBH
o Both 1 and 2 apply where there is NO INTENT to cause death/GBH to the assailant
N.B. if there is intent, however, cannot rely on 1, only 2 (but the reverse is not true)
o The distinction between the subsections is: the accused’s perception of what is happening to him
when acts against his assailant (i.e. whether the accused had a reasonable apprehension of their
own death/GBH at the hands of their attacker)
o When they have this apprehension, the accused can use as much force as he reasonably believes
is required to protect himself (can include an intention to kill/cause GBH or not)
Ratio: An accused may resort to the self-defence provisions in s. 34(2) whether or not he intends to cause death
or grievous bodily harm to his assailant in the attempt to protect himself.
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Gary T. Trotter, “R. v. Pawliuk: Further Efforts to Clarify Self-Defence”
Inconsistencies in Section 34
Subsection 1 does not correspond directly to subsection 2 – intent is mentioned in 1, but only causation of
D/GBH is mentioned in 2
o Does 1 apply when D/GBH is caused?
o Does 1 apply when D/GBH is intended?
Baxter (Martin J.A.)
TJ concluded that the outcome of D/GBH for the assailant distinguished between 1 and 2 not the intent of
the accused or the degree of harm s/he apprehended
Martin J.A. suggested that the words ―who causes death or grievous bodily harm‖ should be read as ―even
though he intentionally caused D/GBH‖
o 1 is applicable when D/GBH is caused but not intended
o 2 is applicable even when D/GBH is caused AND intended
Subsequent application of this decision turned Martin J.A.‘s qualification that 2 is applicable even in the face
of intent to really hurt/kill the assailant into a condition precedent for its application (i.e. must intend to
really hurt/kill the assailant in order to benefit from 2)
Pintar (Moldaver J.A.)
Inconsistency created by the subsequent interpretation of Baxter: if access to 2 is conditioned by an intent to
kill, people who intend to cause D/GBH to their assailant are in a better position than those who do not
intend to do so (because 2 is a broader defence no proportionality requirement)
o Puts a premium on higher degree of moral blameworthiness
Moldaver J.A. goes back to Martin J.A.‘s original interpretation: intent is not required for 2, but 2 can apply
even in the presence of intent
The distinguishing factor between 1 and 2 in this case seems to be the outcome of the defensive action – if
the assailant was really hurt or killed, 2 applies
Pawliuk (Ryan J.A.)
Both 1 and 2 can apply if there is no intent to cause D/GBH
The focus of the choice between 1 and 2 should be the accused’s reasonable apprehension of their own
D/GBH at the hands of the assailant
This solves the anomalies of looking at s. 34 any other way: previously, courts anomalously said that the
accused is entitled to a broader defence if they 1) provoked the attack, 2) intended to cause their assailant
D/GBH, 3) did in fact cause their assailant D/GBH
Now, the difference in reach of the two provisions depends on whether a person reasonably thinks that
their life is in danger when they do, the law permits a more robust reaction
If the jury has a reasonable doubt as to whether the accused feared for their life/bodily integrity, then the
broader defence in s. 34(2) applies
The Air of Reality Test for Self-Defence
R. v. Cinous (2002 SCC)
Facts: C was part of a computer-stealing ring. He heard rumours that his two fellow thieves – Mike and Ice –
were planning to kill him. On the night in question, Mike and Ice came to C‘s apartment. They were acting very
suspiciously; they did not take their coats off, and were whispering to each other. Once in the car, they were
uncharacteristically silent. Mike kept putting his hand inside his coat, which in gang culture indicates that
someone is armed. One of them put on latex gloves. They stopped at a gas station – C went inside to pay, and
when he came back out, he shot Mike in the head. He claims self-defence – he says it would never occur to him
to call the police for help.
Issue: Does the defence of self-defence have an air of reality in this case such that it ought to have been put to
the jury? Holding: No, with dissent.
Reasoning:
McLachlin C.J. & Bastarache J. + 2 for the majority:
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For a defence to be put to the jury, must have an “air of reality”: is there evidence on the record upon
which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true?
o The air of reality test applies to every element of the defence: i.e. every element must have an air
of reality or the defence will not be put to the jury
o Credibility is not an issue in an air of reality analysis; if jury were to accept the construction of the
evidence that is most favourable to the accused, would they be able to reasonably draw the inference
that the defence holds?
There are three elements of a self-defence claim under s. 34(2) (Pétel):
o 1. The existence of an unlawful assault
Does not have to actually exist at the moment of reaction
Question to ask: did the accused reasonably believe that s/he was being unlawfully assaulted?
o 2. A reasonable apprehension of a risk of D/GBH to oneself
o 3. A reasonable belief that it is not possible to preserve oneself from D/GBH except by killing the
adversary
Each of these three elements has a subjective and an objective component – the accused’s belief
(subjective), and the reasonableness of belief (objective)
1. Air of Reality of the Existence of an Unlawful Assault
o Subjective: C definitely believed he was about to be killed
o Objective: was it a reasonable belief? Yes, it is possible a reasonable jury could conclude so on the
basis of the evidence.
2. Air of Reality of the Reasonable Apprehension of Risk of D/GBH
o Already concluded that C believed he was about to be killed
o Was it reasonable? Could be reasonable to think so, yes.
3. Air of Reality of the Reasonable Belief in the Absence of Alternatives
o C definitely subjectively believed he had no other choice
o But this was not a reasonable belief – even though he personally never called the police, this is
unreasonable in a situation such as his; he also could have run away
o As there is no air of reality to this element of the defence, the defence as a whole has no air of reality
and should not be put to the jury
Self-defence is supposed to be a justification for a last resort – there were other options available to C
Binnie J. (concurring): C wishes the court to step into his shoes – but they cannot take a fully subjective
view of what is right to do in a situation would mean the court would have to ―accept as reasonable a
sociopathic view of appropriate dispute resolution‖
Ratio: In order to be put to the jury, every element of the defence of self-defence has to have an air of reality.
Commentary: How valid is it that the court will not accept that it was reasonable for C to believe that he had no
alternatives – in his version of society, he is not safe in jail, out of jail, he has nowhere else to go. Arbour J.
dissented and said that it is invalid to withhold the defence on the basis of policy reasons – should put the
defence to the jury and see if they believe that the accused reasonably believed that he had no other way out.
Some Sidenotes on Self-Defence
The relationship between intoxication and self-defence:
Reilly v. The Queen (1984 SCC)
The statutory requirement of reasonableness is what distinguishes the defence of self-defence (s. 34(2)) from
that of mistake of fact
o An honest, unreasonable belief in facts which are not true can be a defence to criminal liability (if
those facts are antithetical to the formation of the necessary mens rea)
o Intoxication is relevant to this inquiry, because court is concerned with honest beliefs
In self-defence, intoxication cannot induce a mistake which is based upon reasonable and probable grounds
– a reasonable man is in full possession of his faculties
This does not mean the defence in s. 34(2) is unavailable to an intoxicated person – a drunk person may still
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form a reasonable belief, but they do so despite their drunkenness
Evidence of intoxication therefore has no relevance to the defence found in s. 34(2)
Is the defence of self-defence still available when the killing has resulted from the excessive use of force? No.
R. v. Faid (1983 SCC)
Can the excessive use of force in self-defence reduce a murder charge to a manslaughter charge?
No, it‘s incompatible with the construction of s. 34
Once a jury reaches the conclusion that excessive force has been used, the defence of self-defence has failed
already (no proportionality?)
Does not follow that the verdict must be murder – even though the accused doesn‘t have a justification in
self-defence, does not mean they had the intent necessary for murder
o If they didn‘t have the requisite intent, then the appropriate charge is manslaughter
Self-Defence and Domestic Violence
R. v. Lavallee (1990 SCC)
Facts: L was battered by the victim for four years. During a party at their house, he gave her a gun and said he
would kill her if she didn‘t kill him. He turned around, and she shot him in the back of the head.
Issue: Is evidence of ―battered woman syndrome‖ admissible at trial? Holding: Yes.
Reasoning (Wilson J.):
Expert evidence on the psychological effect of battering on wives/common law partners must be relevant
and necessary in cases such as the one at bar
o How can mental state be appreciated without it?
The battering relationship is subject to many myths/stereotypes (woman can leave, if she doesn‘t, the abuse
is not that bad or she enjoys it) expert evidence can help dispel these in the judge/jury
Two aspects of s. 34(2) must be considered in light of the expert evidence (both are judged on a standard of
subjective belief that is objectively reasonable – n.b. a reasonable mistake is fine to make in this context):
o 1. Reasonable Apprehension of Death (s. 34(2)(a))
Does there have to be a temporal connection between apprehension of D/GBH and the act taken
in self-defence?
This section does not stipulate a requirement of imminence, but case law has read one in
Because it wants to make sure the use of defensive force is really necessary – if there is a
significant time gap between the unlawful assault and the accused‘s response, it looks
less like self-defence and more like revenge
But the case law is based on the paradigmatic case of the one-time barroom brawl
between men of equal size and strength
In a domestic violence context, the effect of years of ongoing violence on the accused has to be
taken into account – the cyclical nature of the violence means the battered woman knows when
it is coming again (this is where the expert evidence helps – different sense of ―imminence‖ in
this context)
The battered woman has intimate knowledge as to her partner‘s violent tendencies – she
will know what makes the critical instance of abuse (the time her life is in danger)
different from the others
There is no requirement that the assault be “underway” – would be sentencing the women
to death/submitting them to grievous assault if they were required to wait until they were
certain they were in danger
o 2. Lack of Alternatives to Self Help (s. 34(2)(b))
There has to be no other way to save oneself to make a claim for self-defence – but battered
woman could always leave, no? Court says this reasoning is mistaken
There are many reasons why women do not leave abusive partners: psychological barriers, lack
of job skills, children, etc
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N.B. the fact that the accused is a battered woman does not entitle her to an acquittal for killing her abuser –
but is a factor to be taken into account when considering the reasonableness of her actions
Ratio: Expert evidence on battered women‘s psychological state is admissible on the issue of her acting in self-
defence when she killed her abuser.
Campbell on Lavallee:
Battered woman syndrome: based on the pattern of violence, a battered woman constantly perceives herself
as under threat of grievous bodily harm and constantly under assault because she knows when the next
assault is coming
The court admitted the expert evidence testifying to this syndrome because it goes to the victim‘s subjective
understanding of being under assault, and her subjective understanding of having an escape route
In the absence of expert evidence, myths about abusive relationships might carry the day in court
o Cf. Sexual assault and requirement for legislative control of use of evidence
Problems with the ―battered-woman syndrome‖?
o Pathologization of women
o Medicalization of a social issue – ―syndrome‖
o Genderization of the issue – makes abuse a ―women‘s‖ issue and makes a special rule in criminal law
just for women
o Is it ripe for abuse? We do not want wives killing husbands with impunity but BWS is evidence,
not a defence
o Requires that the woman who puts forward this evidence make herself out to be psychologically
trapped in her relationship, as opposed to trapped because of external circumstances lack of money,
lack of community acceptance of leaving, kids, fear of retaliation
R. v. Malott (1998 SCC)
Facts: M was severely, severely abused and beaten for 19 years. Her husband used to force her to make dinner
for him and his girlfriend. One night, when they went to the drugstore but it was closed, M shot her husband in
fear of what he would do out of anger – he died. She then continued on to reload the weapon, hail a taxi, go to
her husband‘s girlfriend‘s place, and shoot her too (the girlfriend didn‘t die, the charge is attempted murder).
Issue: How is the expert evidence that is admissible concerning battered women‘s syndrome to be used?
Reasoning:
Major J. for the majority:
The expert evidence is useful in determining:
o The lack of alternatives – why women stay in abusive relationships
o The nature and extent of the violence to which the woman was normally subject
o The accused‘s heightened ability to perceive danger from her abuser
o Her reasonable perceptions as to the situation; her danger, her options
L‘Heureux-Dubé concurring: just some general thoughts on this type of evidence
Evidence on battered woman’s syndrome is not limited to relevance only in self-defence cases – maybe
relevant in provocation, necessity, duress
Concerns about this type of evidence – has it led to further, new stereotyping of the battered woman?
o She is helpless, dependent, passive, victimized (―syndromization‖ of the battered woman)
o Legal debate shifts to her personal inadequacies rather than the objective rationality of her actions
o Women who do not fit into this rubric (are professionals, who have fought back, etc) may still
therefore be treated unfairly by judge/jury
LHD mentions that she does not wish to exclude abused men with her language – but they are markedly less
common, and also have different considerations to take into account it would be imprudent to generalize
Ratio: Expert evidence on battered woman‘s syndrome can serve many functions in the trial.
Commentary: Court doesn‘t allow the defence of self-defence in this case.
R. v. Pétel (1994 SCC)
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Facts: P lived with her daughter and granddaughter. A drug dealer used to live with them, and abuse them and
threaten them. He came by with a friend one day, ordered P to measure out some drugs, threatened to kill her
daughter/granddaughter if she did not comply. P shot them both.
Issue: Are the previous threats and abuse relevant to her claim of self-defence? Holding: Yes.
Reasoning (Lamer C.J.C.):
There are three requirements for a self-defence claim:
o 1. Existence of an unlawful assault
o 2. Reasonable apprehension of death/grievous bodily harm
o 3. Reasonable belief that it is not possible to preserve oneself from harm except by killing the
adversary
In all three cases the jury must determine how the accused perceived the relevant facts and whether that
perception was reasonable
N.B. Imminence is not a requirement is just a relevant factor the jury can use to decide if the
accused’s perceptions were reasonable
The history of the relationship and prior threats form an integral part of the circumstances on which the
perception of the accused might have been based are admissible on this point
Ratio: This is another application of Lavallee and it further dilutes the imminent-attack requirement.
Not only women are abused – lots of people are abused by those close to them. Need to be able to take this into
account when discussing self-defence:
Kathleen M. Heide, “Why Kids Kill Parents”
The children who kill their parents are almost always adolescents – they turn to murder when they think they
have no other way out
Murder weapon is generally a gun that is readily available in the house
The characteristics of kids who commit parricide:
o Are not violent, are badly abused for a long period of time, their parents are likely substance abusers
who neglect them (often mostly alcohol), they are isolated without a support network, are often
shouldering adult responsibilities within the home, they feel there is no one who can help them, they
block out the murder, they see no other choice, and are generally sorry for what they did
The real problem is chronic child mistreatment
DURESS
Duress is a defence that operates when a person is forced to commit a crime by the coercion of another
The Canadian law on duress is incredibly antiquated, and it is codified in s. 17 of the Criminal Code:
s. 17 CCC A person who commits an offence under compulsion by threats of immediate death or bodily harm
from a person who is present when the offence is committed is excused for committing the offence if
the person believes that the threats will be carried out and if the person is not a party to a conspiracy or
association whereby the person is subject to compulsion, but this section does not apply where the offence
that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual
assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible
abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault,
unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of
young persons).
The Requirements for a Defence of Duress
o 1. Imminence of the threatened harm (although this arm is struck down in Ruzic) – so is likely just the
presence of a threatened harm that is serious
o 2. Lack of avenue of escape from the threatened harm (see Ruzic and Hibbert for explanation)
o 3. Proportionality between the harm committed and the harm thereby avoided
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Duress can operate BOTH to negate mens rea and as an excuse for the crime
If the crime is one of special intent, where some specific ulterior purpose has to be in the accused‘s mind,
duress will negate the mens rea; if the crime is one of general intent where the standard of mens rea is
knowledge, duress will merely excuse the crime
o Remember R. v. Steane: duress negated the mens rea in that case, because the crime of aiding the
enemy is one of the few charges where the mental state required by the statute can be affected by the
presence of duress
o In a general crime such as robbery, which requires only knowledge of the foreseeable consequences of
the act, the fact that you have a gun to your head doesn‘t change that you know what you‘re doing and
what‘s going to result
This case explains the difference between duress as a negation of mens rea and duress as an excuse:
Hibbert v. The Queen (1995 SCC)
Facts: Victim was H‘s friend. H went with the killer to the vic‘s apartment building; H called the vic down to the
lobby. The killer then shot the vic. H is claiming duress.
Issue: Can the mens rea for party liability under the CCC be negated by duress?
Holding: Yes, but not in this case.
Reasoning (Lamer C.J.C.):
Duress provides a defence in one of two ways: 1. As an excuse or 2. By negating mens rea
A person who carries out the actus reus of an offence in response to a threat of death or bodily harm will not
necessarily lack the mens rea for the criminal act
Whether they lack the mens rea or possess the mens rea will depend on what the mental element of the
offence in question is, and the particular facts of the case
o However, situations where duress operates to negate mens rea will be exceptional because the
types of mental states that are capable of being negated by duress are not often found in the
definitions of criminal offences in the Code
In general, a person who performs an action in response to a threat will know what they are doing,
and will be aware of the probable consequences of their actions (knowledge standard of mens rea)
Whether or not he or she desires the occurrence of the consequences will depends on circumstances
In s. 21(1)(b), ―purpose‖ does not mean desire; it means intention the accused does not have to actively
desire the commission of the offence
o So this mens rea is not actually susceptible of being negated by duress
Duress can only negate mens rea when the mental state specified in the offence is such that the presence of
coercion logically can have an effect on its existence
Under duress, there is also a requirement that there be no alternate safe avenue of escape:
o Compliance with the law must be “demonstrably impossible”
o Duress can only be invoked if there is no legal way out of the situation of duress
o If the accused could have escaped without undue danger, the decision to commit an offence
becomes a voluntary one
o Whether a safe avenue of escape exists should be assessed on an objective basis, one that takes
into account the particular circumstances and human frailties of the accused
Ratio: Duress can only ―negate‖ the mens rea of an offence if the mental state required for the offence is defined
in such a way that the presence of coercion can logically affect it.
Section 17 has been decided to ONLY apply to principal offenders – the common law defence of duress applies
to parties to the crime:
Paquette v. The Queen (1976 SCC)
Facts: The principal offenders phoned P and asked him for a ride to the Pop Shoppe – once in the car, they told
him they were going to rob it. P refused to drive them there until one of the principals pulled a gun and
threatened to kill him. P drove them to the shop, stayed in the car – one of the principals shot someone. P refused
to let them back in the car. P is charged with murder under s. 21(2) CCC.
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Issue: Does s. 17 apply to accessories to crimes, or only principals? Holding: Only to principals.
Reasoning (Martland J.):
Application of s. 17 is limited to principals: the section uses the words ―a person who commits an
offence‖, not ―a person who is party to an offence‖
Not covered by s. 17, P is entitled to rely on any excuse/defence available to him at common law
o P in this case isn‘t a principal – he is an accessory to robbery and murder.
At common law, the defence of duress is available to everyone, except those who commit treason and
those who commit murder as a principal i.e. it is open to those who aid and abet murder
o Because the reasoning for not allowing a defence of duress to those who commit murder as principals
(that a person should die themselves rather than kill someone else) doesn‘t apply to accessories
o It isn‘t certain that if the aider/abettor refuses to help, the death of the victim will be averted
o It also isn‘t certain that if the aider/abettor complies, the death of the victim is sure to ensue
Ratio: Section 17 only applies to principal offenders who act under duress; it does not apply to accessories who
act under duress. The common law defence of duress is available to those who are accessories to murder.
Remember that the distinction between principals and parties is not always that clear (recall Thatcher), and it
makes a serious difference for putting forth the defence of duress
Why the distinction between principals and accessories for duress?
o If you‘re just an accessory, crime may occur anyway even without your participation
But the whole problem with duress is that it makes the acts of the person under duress morally involuntary –
they are involuntary whether or not the accused was a party or a principal
o The distinction is unprincipled and not theoretically sound
Laundry list of exceptions to section 17 might not actually be constitutional anymore, in light of this case:
R. v. Ruzic (2001 SCC)
Facts: R lived in Belgrade during the Yugoslavian war. She was approached by a member of one of the militias,
who began to harass her. He told her he would kill her mother (who lived in Belgrade) if she did not carry some
drugs to Toronto for him. She carried the drugs to Toronto and got caught in Canada. She is claiming duress.
Issues: 1. Is the principle of moral voluntariness a principle of fundamental justice under s. 7 of the Charter? 2.
Is the requirement of the imminence of the threat to the defence of duress unconstitutional?
Holdings: 1. & 2. Yes.
Reasoning (LeBel J.):
Is the Principle of Moral Voluntariness a Principle of Fundamental Justice? Yes.
The principle of physical voluntariness is a constitutional requirement for criminal liability – it would
infringe s. 7 of the Charter to convict an accused who was not acting physically voluntarily (is a fundamental
element of the actus reus which would be missing)
o Punishing a person whose actions are involuntary in the physical sense is unjust because it conflicts
with the assumption that people are autonomous and freely choosing agents
It is similarly unjust to penalize an individual who acts in a morally involuntary fashion
o A person acts in a morally involuntary fashion when, faced with perilous circumstances, she is
deprived of a realistic choice to break the law
o Her will was constrained by an external force, and so her acts cannot be attributed to her
Conclusion: although moral involuntariness does not negate the actus reus or mens rea of an offence,
it is a principle which deserves protection under s. 7
o It is a principle of fundamental justice that only voluntary conduct (both physically and
morally) attract the penalty and stigma of criminal liability
Duress, like necessity, involves the concern that morally involuntary conduct not be subject to criminal
liability so duress operates to excuse the blameworthy conduct once it has been committed
Do the Immediacy/Presence Requirements in s. 17 Infringe the Principle of Involuntariness? Yes.
A threat that is too far removed in time/space casts doubt on the seriousness of the threat and on claims of an
absence of a safe avenue of escape
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o The test for the safe avenue of escape requirement: whether the accused failed to avail himself of
some opportunity to escape or render the threat ineffective
Immediacy/presence requirements clearly preclude threats of future harm and impose obstacles to a person
claiming protection of s. 17 in a hostage or third-party situation
o But these may constrain moral voluntariness just as much as a present/imminent threat
The requirement of proximity is unconstitutional
Ratio: The principle of moral voluntariness is a principle of fundamental justice protected by s. 7 of the Charter.
The requirements for imminence of the threat/presence of the attacker in s. 17 violate this principle and are
unconstitutional.
Commentary: What is the constitutional status of the exclusions from s. 17 now that this decision has been
made? Do they maybe violate the principle of moral voluntariness required for criminal liability?
Akhavan on Ruzic:
The imminence of the harm is crucial, according to s. 17 (cf. self-defence; a requirement of imminence
always functions to restrict the scope of the defence and actions it justifies)
Rather than look at the imminence of the threat, the Court looks at whether R‘s actions were truly morally
involuntary and strike down the imminence requirement as contravening s. 7
o Someone can be acting morally involuntary even if the threat does not seem imminent
This academic critique suggests that section 17’s exclusion of a number of crimes from the ambit of the defence
of duress is theoretically unprincipled, unfounded in logic, is actually at this time unconstitutional, and
inconsistent with other laws in force in Canada:
Payam Akhavan, “Should Duress Apply to All Crimes?”
The criminal common law has been subject to serious reforms since the 19
th
century – the search for logical
consistency has been at the heart of this transformation
In Canada, the Charter has accelerated this process by enabling judicial review of the criminal law in light of
broad constitutional principles (esp. fundamental principles of justice – s. 7)
The defence of duress in Canada does not apply to 20 crimes, including murder, robbery, sexual assault,
hostage-taking, etc – see s. 17 CCC
o This is reminiscent of its early form in the English CML – did not apply to most crimes then
o But the common law has evolved in most jurisdictions to expand the defence of duress to all crimes
(often exceptions are murder and treason) – not in Canada, though
The arguments in favour of the murder exception (and critique):
o Blackwell: A person ought rather to die himself than kill an innocent (chivalry, honour)
o Pandora‘s Box argument: will open the door to criminal organizations and such excusing their
minions for committing murder by threatening to kill them if they don‘t danger to public safety
This is hardly sustainable without empirical evidence – hasn‘t happened in civil jurisdictions
(which permit the defence of duress for murder)
Plus, why should people who are not involved in crime be deprived of this defence? A person
who voluntarily puts themselves in a situation where they may be subject to duress should be
treated more harshly
o Sanctity of Human Life argument: human life is sacrosanct and the criminal law cannot condone
violating it in any circumstance
Why is murder the only exception then? Why not sexual assault – this crime is almost equally
heinous as murder
Why are principals the only ones deprived of the defence – parties to murder benefit from the
defence of duress, although the heinousness of the crime of murder is the same
o Inherent Disproportionality argument:
One necessary element of the defence of duress is that the evil that is committed as a result of
the duress be less than the evil that is thereby avoided
Some argue that taking another‘s life (to save one‘s own) is always a disproportionate remedy
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But what if it will not save the victim‘s life to sacrifice your own? The choice may also be more
complicated than your life or their life – what if it is their life or ten lives
The exception of murder in other jurisdictions, and the Canadian approach to duress (the 20 exceptions)
appears to be in conflict with the statement by the SCC in Ruzic that the stigma and penalty of criminal
liability should only apply to morally voluntary conduct
The ICC has recognized duress as a defence to all crimes, including murder, crimes against humanity, and
genocide (overruled the ICTY‘s judgment in Erdemovic, where there was a split between the common law
judges in the majority who said duress was not available for murder, and the civil law judges in the dissent
who said that it was) s. 31(1)(d) of the ICC Statute
o Canada has incorporated the ICC Statute into its domestic laws, which creates an absurdity
o Duress is available for heinous crimes such as genocide, but not robbery (s. 17 CCC)
o Compounds upon the absurdity created by the fact that s. 17 applies to principals, but not accessories
The holding in this case was overruled by the ICC’s statute, which takes the position of the dissent and has been
incorporated into Canadian law:
Prosecutor v. Erdemovic (1997 I CTY)
Facts: E was part of a combat group in the Yugoslavian war. He and his fellow soldiers were ordered to execute
1200 Bosnian men and boys by firing squad. E refused; he was told either he helped shoot the victims, or hand
his gun over and join them. He estimates that he killed about 70 of them, turned himself in after the war, and
plead guilty to his charge. He is claiming duress.
Issue: Is duress a defence available for murder? Holding: No, with dissent.
Reasoning:
McDonald & Vohrah JJ. for the majority:
The law should not be the slave of logic or moral theory – it must serve broader purposes in light of its
social, economic, and political role
o Policy is an appropriate consideration in the criminal law; do not need to accord the development of
criminal law with moral theory at every turn
There are many reasons why the law should not permit the defence of duress to the crime of murder:
o Would allow gang leaders to obviate the responsibility of gang members for the murders they commit
creates a culture of impunity
National law categorically denies the defence of duress for murder charges – international law deals with
murders of a far greater magnitude; so it cannot do less, really
o Especially since in situations of armed conflict, people are forced to commit crimes of a much greater
magnitude much more frequently
It has been argued that where the victim will die anyway, a person can‘t be asked to needlessly throw away
their life but this is the wrong question to ask
o This is a kind of proportionality inquiry, balancing the harms and benefits of committing the murder
with not committing the murder (utilitarian logic)
o Human lives cannot be balanced in this way
o And furthermore, the international criminal law is concerned with guiding the conduct of combatants
and their commanders this should be done with a bright-line rule
The issue that someone who commits a crime under duress is less morally blameworthy than someone
who commits a crime voluntarily can be dealt with at the level of sentencing
o The criminal law is not all-or-nothing – it does not have to offer either acquittal or conviction
o It can offer conviction with low or no sentence
Cassese J. dissenting:
Many civil-law countries permit the defence of duress in crimes of murder
The dissent concludes that the defence should be permitted to the accused if they can show the four
requirements: 1. Severe threat to life or limb, 2. No adequate means of escape, 3. Proportionality in the
means taken to avoid the threat, 4. The situation of duress should not have been self-induced
The third criterion (proportionality) will be the hardest to satisfy when the underlying offence is the killing
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of innocent people
o It may never be satisfied when the accused is saving his own life at the expense of the victim
Fundamental importance of human life to society/law
o But it may succeed when the victim will die regardless of whether the accused refuses to participate or
not – because then the sacrifice of his own life would serve no purpose except to set a heroic example,
which the law cannot expect or require
The law should not set intractable standards of behaviour which require the performance
of acts of martyrdom, and brand as criminal any behaviour falling below that standard
Mitigation of punishment in light of duress is not enough – no matter how much mitigation the court
allows, the fundamental fact remains that if the court finds him guilty, it regards his behaviour as criminal
and considers that he should have behaved differently
Ratio: In international law, duress is not a complete defence to a charge of murder. It will be considered at the
stage of sentencing, however.
NECESSITY
Some examples of situations of necessity:
o Alive: a rugby team‘s plane crashes in the mountains; they eat the dead corpses of their friends and
family in order to survive
o Dudley and Stephen: after a shipwreck, two sailors and a cabin boy are afloat at sea. The two sailors
kill the cabin boy and eat him. The English court trying the sailors (who survived) convicted them of
murder, and did not allow the defence of necessity to be invoked.
o The drunk man trying to get his pregnant wife to the hospital before she gave birth by driving her
there
Necessity is an example of how law has to balance human weakness/frailty with the serious punishment of
grievous acts that are anti-social
Necessity is very similar to duress, except necessity arises from circumstance and duress arises from the
threats of another person
o Necessity, also like duress, is an excuse, not a justification – deals with conduct as morally
involuntary; it does not render morally blameworthy conduct blameless
o This raises the question whether necessity ought to be treated as duress is treated
N.B. There is no provision in the CCC concerning necessity, and excluding the operation of the
necessity defence with respect to any crimes
o Will the holding in Ruzic (that no morally involuntary conduct lead to criminal liability) affect the
defence of necessity?
N.B. Necessity is one of the least developed defences in Canadian law
Requirements for Necessity (see Perka and Latimer):
o 1. Clear and imminent peril
o 2. No legal way out
o 3. Proportionality
Morgentaler v. The Queen (1975 SCC)
Facts: Dr. Morgentaler performed an abortion on a 26-year-old single woman, in contravention of the CCC
which only allowed abortions to be performed in a hospital, after being approved by a hospital committee. Dr. M
testified that he was afraid that the woman ―might do something foolish‖ if he didn‘t.
Issue: Was this a situation of necessity? Holding: No, with dissent.
Reasoning:
Dickson J. for the majority:
The defence of necessity has never been successfully raised in Canada or in England
Courts have been reluctant to recognize necessity for fear that it will be used as an excuse for wrongdoing
o The court fears opening the floodgates to numerous necessity defences
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There is a question as to whether the defence of necessity actually exists
If the defence of necessity does exist, it can go no further than to justify non-compliance with the law in
urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible
In this case, no evidence that there was no other option for Dr. M but to perform the abortion – the girl could
have gone the legal route and gotten permission from the hospital
Laskin C.J. for the dissent:
The dissent discusses how expensive it would be for the girl to have an abortion, although they recognize
that economic necessity is not sufficient – the danger must be to ―life or health‖
o Although a danger to life or health may arise out of economic circumstances, they acknowledge
The state of the girl‘s health was dire due to anxiety over the pregnancy and her inability to get an abortion
Ratio: Necessity may not even exist as a defence in Canada.
R. v. Morgentaler et al. (1985 OCA)
Facts: Dr. M and Co. were charged with conspiracy to procure a miscarriage. Claimed necessity.
Issue: Is the defence of necessity available? Holding: No.
Reasoning (The Court):
Before a defence of necessity is available, conduct of the accused must be truly involuntary.
Must be evidence that compliance with the law was demonstrably impossible, there was no legal way out
The defence of necessity is not premised on dissatisfaction with the law
Ratio: In order to successfully claim necessity, the accused needs to have had no legal way out.
Perka v. The Queen (1984 SCC)
Facts: Some drug traffickers were going from South America to Alaska by ship; a storm hit, and they took
refuge near Vancouver. They are charged with importing drugs into Canada, and they claim necessity – they
were not actually intending to import drugs into Canada, but rather the United States! In this case, the court
actually recognizes that necessity could in fact be a defence.
Issue: Is the defence of necessity a justification or an excuse? Holding: An excuse.
Reasoning (Dickson J.):
Courts appear to have assumed that the defence of necessity does exist in Canada
There is a distinction between defences which are justifications and defences which are excuses:
o Justifications: a justification challenges the wrongfulness of an action which is technically a crime
i.e. when the act is actually, in the circumstances, considered rightful
Ex. The Good Samaritan stealing a car to rush someone to the hospital
o Excuses: an excuse concedes the wrongfulness of the action but asserts that the circumstances under
which it was done are so that it shouldn‘t be attributed to the actor. We disapprove of the criminal
actions intensely, but the law will not punish them
If conceptualized as a justification, necessity would be a principle that recognizes that the law sometimes
conflicts with higher social values; that law-breaking is sometimes validly expedient
It is better conceptualized as an excuse. This way it rests on a realistic assessment of human weakness
o There are situations in which normal human instincts (of altruism, self-preservation) impel
disobedience to the law: such acts are still wrongful, but in the circumstances excusable
o ―Praise is indeed not bestowed, but pardon is‖
THE TEST FOR NECESSITY: Was the non-compliance with the law committed in an urgent
situation of clear and imminent peril where compliance with the law was demonstrably impossible?
o This test focuses on the involuntariness of the act – ensures the actor was not making a choice to
break the law, but really had no option but to do so
o 1. Urgent/imminent peril tests whether it was unavoidable for the actor to have acted at all
o 2. Demonstrably impossible tests whether there was a legal course of action not taken
There must be no reasonable legal alternative (a legal way out)
o 3. Proportionality necessity should not excuse the infliction of a greater harm than the evil which
was thereby avoided
Concurrence (Wilson J.): Necessity could be a justification where there are two conflicting duties which lie
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on a person if breaking one law was necessary in order to fulfil another legal duty, necessity could be
invoked as a justification
Ratio: Necessity as a defence is an excuse, not a justification: it does not vindicate the act committed, but the act
will not be punished.
Latimer v. The Queen (2001 SCC)
Facts: L‘s daughter had a severe form of cerebral palsy. She underwent multiple surgeries and she was in
extreme pain but unable to take pain meds because they conflicted with her other drugs. With the prospect of yet
another major surgery and no real benefit, L put her in his car and left it on with a hose running from the exhaust
into the interior. She died of carbon monoxide poisoning. L was convicted of second-degree murder and
sentenced to the mandatory life sentence, minimum ten years no parole. The trial jury had requested to
recommend 1 year imprisonment, 1 year probation.
Issue: Was the trial judge right not to put the defence of necessity to the jury? Holding: Yes.
Reasoning (The Court):
The Perka Test for Necessity, restated and explained:
o 1. There must be imminent peril or danger
Disaster must be imminent, or harm unavoidable and near; must be on the verge of transpiring
and virtually certain to occur
o 2. The accused must have no reasonable legal alternative to the course of action he or she undertook
Was there a legal way out? If there existed a reasonable legal alternative, no necessity.
The accused need not be placed in the last resort imaginable, but he must have no reasonable
legal alternative
o 3. There must be proportionality between the harm inflicted and the harm avoided
The requirement is not that one harm (the one avoided) must always outweigh the other (the
one inflicted) – the two harms must at a minimum be of comparable gravity
Requirements #1 & #2: modified objective standard objective evaluation taking into account the
situation and characteristics of the particular accused person
Requirement #3: purely objective standard community standard
In this case, there was no air of reality to any of the three requirements for necessity the trial judge was
right not to put it to the jury for consideration
o Is doubted by the court (although not ruled out) that homicide is ever a proportional harm
N.B. the SCC upholds the 10 years without parole sentence
Ratio: Perka test governs the availability of necessity as a defence.
Akhavan on Latimer:
The court sidesteps whether or not the defence of necessity applies to murder – they say murder is not likely
to meet the requirement of proportionality
o In this case, although there is no air of reality to any three of the requirements of the necessity
defence, there is especially no proportionality, says the court: the harm caused (death) was much
greater than the harm avoided (a life of intense suffering)
Is this actually true?
Is there not an air of reality to the ―lack of alternative‖ requirement? Mr. Latimer had no legal way to stop
the suffering of his child. The court cannot decide that active euthanasia is sometimes justified, however
needs to leave this issue to the Legislature
Cf. the defence of necessity and that of provocation – there is no defence of necessity allowed for murder
done out of compassion, but there is a defence of provocation allowed for murder done out of anger
PROVOCATION
Provocation is a partial defence to murder only – has the effect of reducing murder to manslaughter
o Cannot result in a complete acquittal – so is not a true ―defence‖ in this sense
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s. 232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who
committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person
of the power of self-control is provocation for the purposes of this section if the accused acted on it on the
sudden and before there was time for his passion to cool.
Questions of Fact
(3) For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he
received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing
anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to
provide the accused with an excuse for causing death or bodily harm to any human being.
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it
was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was
known to the accused may be evidence of provocation for the purpose of this section.
R. v. Hill (1986 SCC)
Facts: A sixteen-year-old boy killed his ―Big Brother‖, allegedly because the man was making advances on him.
He struck the victim to ―defend‖ himself; and then the victim told H he was going to kill him, so H killed him
first. The trial judge, in instructing the jury on the first step of the provocation test, did not say that the jury
should consider whether an ordinary person of the age and sex of H would be deprived of their self-control by
the wrongful act/insult.
Issue: Was it incumbent on the trial judge to personalize the first step of the test? Holding: The first step of the
test is meant to be personalized, yes; but Dickson J. will not complicate the task of trial judges by making them
say it – it is intrinsically personalized.
Reasoning (Dickson C.J.C.):
The defence of provocation acknowledges that human beings are subject to uncontrollable outbursts of
anger/passion which may lead them to violence law will lessen the severity of criminal liability in those
instances
The Requirements for the Defence of Provocation
1. The provoking wrongful act or insult must be of such a nature that it would deprive the ordinary
person of the power of self-control (objective arm of the test)
o The ordinary person has a normal temperament and level of self-control: this person is not
exceptionally excitable or drunk
o The jury is permitted to ascribe to the ordinary person any general characteristics relevant to the
provocation in question
o Age, sex, race all are ―ordinary‖ features which may be considered. The central criterion is the
relevance of the particular feature to the provocation in question
2. The accused must actually have been so provoked (subjective arm of the test)
o It may be that the ordinary person would be provoked, but the accused was not need to assess what
actually occurred in the mind of the accused
o Can take into account the mental state of accused, his/her psychological circumstances, tendencies, etc
3. Accused must have acted on the provocation “on the sudden” and before there was time for his or
her passion to cool (subsumed under subjective arm of test - #2)
Ratio: The objective first step of the provocation test can take into account personal characteristics of the
accused relevant to the provocation in question.
Akhavan on Hill:
The first branch of the test is objective – what would the reasonable person do?
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o It‘s interesting that we, on the one hand, are trying to make a concession to human frailty, but on the
other hand, we do not want to go too far, so we insert some objectivity into the analysis
o We do not want people to benefit from their own short tempers
But the objective standard is very personalized
R. v. Thibert (1996 SCC)
Facts: T‘s wife wanted a divorce. She was having an affair with the deceased and was leaving T for him. T
wanted to talk to his wife, but his wife refused. He brought a gun to her (and the deceased‘s) place of work. T‘s
wife still refused to talk to him alone – the deceased came outside the building to bring her back in. Started to
taunt T to shoot him – so T did.
Issue: Should the trial judge have left the defence of provocation with the jury? Holding: Yes, with dissent.
Reasoning:
Majority (Cory J.):
The Requirements for the Defence of Provocation
1. Wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of
self control (objective standard)
o “insult” = an act, or the action, of attacking or assailing; injuriously contemptuous speech or
behaviour; scornful utterance or action intended to wound self-respect; affront, indignity
o In considering the effect of the wrongful act/insult on the reasonable person, it is proper to consider
the background relationship between the deceased and the accused
o Reformulation of this branch of the test: the wrongful act or insult must be one which could, in
light of the past history of the relationship between the accused and the deceased, deprive an
ordinary person, of the same age, and sex, and sharing with the accused such other factors as
would give the act or insult in question a special significance, of the power of self-control.
2. The accused must act upon that insult on the sudden, and before there was time for his passion to cool
(subjective standard)
o ―Sudden‖ = the wrongful act must strike upon a mind unprepared for it
o The background relationship is important here too
―Legal right‖ in s. 232(3) means a right which is sanctioned by law, not something which a person may do
without incurring legal liability (i.e. it does not mean something not-illegal); the words or act put forward as
provocation do not have to be prohibited by law for the defence to succeed
In this case, there was an air of reality to the provocation defence – the trial judge should have left it with the
jury new trial ordered
Dissent: disagreed on disposition on the facts, not with the law: marital breakup is not a provocation – the
defendant knew about his wife‘s affair; she was not obliged to talk to her ex-husband if she didn‘t want to
Ratio: The ―objective‖ branch of the test for provocation is pretty subjective now.
Provocation and Intent
Issue: Does provocation as a defence vitiate or compromise the intent for murder, or does it operate outside the
scope of the positive fault requirements for murder as an independent excuse?
Holding: It is an independent excuse.
Reasoning:
R. v. Campbell (1977 OCA, Martin J .A.)
Provocation reduces murder to manslaughter notwithstanding the existence of an intent to kill
The defence of provocation exists with respect to a charge of murder even though all the elements of
the definition of murder have been established
Provocation allows for human frailty – intentional killing is less heinous when the person is out of control
than when the person is in full possession of their faculties
There may be cases where the conduct of the victim provokes in the accused a state of excitement,
anger, or disturbance so extreme that he might not contemplate the consequences of his acts or intend
to bring about those consequences
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o Provocation in this respect does not operate as a defence, but rather as a relevant item of
evidence on the issue of intent
N.B. You cannot use provocation for attempted murder, only for completed murder
R. v. Cameron (1992 OCA, Doherty J .A.)
Statutory defence of provocation does not generally negative the mens rea for murder – it partially excuses
homicides committed with the mens rea necessary to establish murder by reducing the charge to
manslaughter
R. v. Parent (2001 SCC, McLachlin C.J .C)
Intense anger alone is not sufficient to reduce murder to manslaughter – intense anger may form part of the
defence of provocation when all the requirements of that defence are met:
o 1. A wrongful act/insult that would have caused an ordinary person to lose his/her self-control
o 2. Wrongful/act insult must be sudden/unexpected
o 3. Wrongful act/insult actually in fact caused the accused to act in anger
o 4. Accused acted before having recovered his or her normal control
Anger conceivably could, in extreme circumstances, cause someone to enter a state of automatism in
which that person does not know what he or she is doing – this would negate the voluntary component
of the actus reus, and would result in an acquittal, not a reduction of the charge
Ratio: Provocation is an excuse that operates once the intent for murder has been established. Intense anger may
negative the voluntariness of the actus reus when it amounts to a state of automatism, but it does not thereby
operate as a defence, but as relevant evidence on actus reus/mental state (a substantive element of the crime).
Critique of Provocation
Payam Akhavan, “The Privileging of Anger in Canadian Criminal Law: Should the Defence of Provocation
be Abolished?”
Gendered Nature of the Defence
From its inception, provocation has been shaped by the ―paradigmatic case‖ of a husband who finds his wife
in the midst of adultery and kills her in a jealous rage
The underlying conceptions of masculine rage remain entrenched in the defence of provocation
The defence is invoked successfully far more frequently by men than by women
Provocation is concerned with values men often consider to be central to their conceptions of self-worth
Provocation is similar to ―honour killings‖ in Islamic legal culture – Iraqi and Jordanian penal codes have
provisions exempting men from penalty if they kill their wife after catching her with another man
Western culture condemns these honor killings as barbaric – and yet we have the exact same provision
allowing a man to kill a sexually disobedient female, in an altered and less honest form
Privileging Anger as an Emotion
Provocation as a defence emphasizes that the victim got what was coming to them, because they provoked
their aggressor to a high degree of anger – the provisions codifying provocation the common-law world
emphasize the ―conduct of the deceased‖
Provocation privileges anger and blames the victim
If the foundation of provocation is human infirmity, it is difficult to understand why anger should be the only
human frailty resulting in partial exoneration in criminal law
Cf. Latimer: the emotion of mercy was unworthy of law‘s compassion to human infirmity
Other jurisdictions have recognized the injustice of excluding other emotional disturbances from mitigating
criminal liability and reformed their criminal law accordingly (US, South Africa, France)
US (MPC): have enacted a wider ―extreme emotional disturbance‖/―emotional stress‖ defence that lowers a
murder charge to a manslaughter charge emotions such as grief, distress, agitation are contemplated;
focus on the defendant‘s psychological state rather than the provoking element
France/Germany: have eliminated provocation as a defence – consider it as a mitigating factor at sentencing
Canada should consider amending s. 232 to expand the scope of emotional disturbances that can lead to
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violent acts
Defence or Mitigating Factor at Sentencing?
Provocation is unlike any of the other defences: it does not negate mens rea or the voluntary aspect of actus
reus, it does not deal with conduct that is morally involuntary or morally blameless, and only applies to
homicide, and only to reduce the charge
Provocation should either be treated as a separate crime with a lower minimum sentence, or solely a
mitigating factor at sentencing (this would entail lowering the long-standing requirement of life
imprisonment for murder in Canada)
As it is now, it is artificially lowering the stigma that should be attached to an intentional killing; this
violates our conception of culpable homicide as the worst offence in our Criminal Code
R. v. Millar: without the defence of provocation, the man who killed his father who had abused him verbally,
physically, and sexually since the age of 7 would not have been able to benefit from the sentence of 3 years
probation – he would have had to go to jail for at least 25 years.
Provocation therefore plays a morally justifiable role in our criminal law system – just needs to be reformed
Author recommends we have a crime called ―murder by provocation‖, provocation not only signifying
anger, but a range of emotional disturbances
On the Basis of Criminal Law Theory
If you kill someone when extremely angry, and fulfil all the requirements for provocation, you still have the
requisite mens rea for murder
o Accused still intends to kill the victim, or occasion them serious bodily harm that the accused knows
is likely to result in their death
o This is not manslaughter.
We are allowing a high-moral-blameworthiness/stigma crime to be reduced artificially by calling it
something else
o Why do we call it manslaughter, then? Because we want accused to benefit from the lower sentence
o Provocation blurs mitigation of punishment and the decrease of moral blameworthiness
o It is a matter related to sentencing, and yet it is not discussed at the correct point in the process
A more elegant solution, theoretically at least, would be to have an offence in the Criminal Code called
―murder by provocation‖ with no minimum sentence
On the Basis of Moral Intuition
Provocation privileges male anger and rage at having their honor affronted – leaving aside for a moment the
gendered nature of this defence, does it make sense to privilege anger as an emotion that decreases criminal
liability?
o Cf. Latimer: no decrease in criminal liability on the basis of compassion
N.B. Latimer never got a pardon or any form of reprieve from his sentence – the courts and
Parliament made him serve every single day of his ten-year sentence
There are a broad range of emotions that can lead humans to lose self-control – why is anger the only one
that decreases criminal liability for murder?
o We should either have a defence based on all the extreme emotions, or none
o The argument for anger only: we are not thinking when we are angry – we just act. There is no
deterrent effect in NOT having provocation
o The argument for all: concession to human frailty
o The argument for none: we should not reward loss of self-control
Note that the defence of duress doesn‘t even apply to murder, but provocation does
o With respect to duress, humans are expected to be martyrs and saints
o With respect to provocation, we‘re expected to be uncontrolled animals, essentially
On the Basis of the Gendered Nature of the Defence
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Matthew A. Goldstein, “The biological roots of heat-of-passion crimes and honor killings”
In much of the world, men may kill their wives, daughters, sisters, etc. when promiscuous behaviour is
suspected – either with impunity or with a mitigation of sentence
This behaviour is universal among cultures; almost every culture has a legal defence based on provocation
by infidelity
Honor killings are often completely excused by governments, particularly in the Middle East
Biological roots? Located in the male sexual aggression and desire to ensure paternal certainty, perhaps
Sociological roots? Reasonable man standard, developed by male judges; social approbation of punishment
of promiscuity
Response: Mohammed I. Khalili, “A Comment on Heat-of-Passion Crimes, Honor Killings, and Islam”
The problem of honor killings has been sensationalized as a Muslim problem – is not the case
There is no support in the Koran or in the Sunna for killing an unfaithful wife or honor killings
Marianne Moore, “Is it really so different for girls? Challenging misconceptions about young offenders and
aggression”
Current research suggests that men are perpetrators of aggression, and women are victims
It suggests that men do not experience vulnerability or victimhood, while women do not experience
aggression or violent tendencies
When it is acknowledged, female aggression tends to be seen as a reaction to their victimhood
This is a study with male and female young offenders all reported being victimized by as well as
perpetrating aggression on others
All found that aggression is a result of losing control over a situation, but also a way of regaining control
All, male and female, felt positive results from their aggression – a feeling of control, self-esteem, power
But most felt that aggression was a more acceptable trait in men, rather than women, although it practice it
was accepted from both
