THE ELEMENTS OF A CRIMINAL or REGULATORY OFFENCE Ch.

. 4 The physical elements or actus reus of the offence: The act that must be performed, or omission that is proscribed, the circumstances or conditions in which the act must occur, and any consequence that must be caused by the act; and The mental or mens rea elements of the offence. In Canadian law, the mental elements normally describe the actual or subjective state of mind of the accused such as intent, or planning and premeditation, or recklessness, or knowledge, or willful blindness.

It is becoming increasingly common, however, to produce offences that have an objective mens rea, such as negligence. Objective mens rea is determined not according to the state of mind of the accused (the subject), but according to what a reasonable person in the position of the accused would have known or foreseen. As a general proposition of interpretation, a true crime will be interpreted as requiring subjective mens rea unless it is clear that Parliament wished to impose objective liability. The Actus Reus a. General: i. The act must be of the . Canadian law doesnt recognize vicarious liability (except in corporate liability). ii. The act must also be the kind of act described in the relevant provision. iii. The act must be committed under the circumstances or conditions specified in the offence. 1. EG: cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s. 348 (1) (a) unless he breaks and enters something that qualifies as a place according to the Criminal Code, with the relevant mens rea. iv. Act must be voluntary willed act of the .

I.

b. Act of Possession: The actus reus of possession crimes have an important mental element to the actus reus.
The actus reus/mens rea divide is not clear with Possession. i. R v. York: Manual Possession. trying to dispose of stolen vans 1. RULE: Personal possession = accused person exercises (1) physical control over a

prohibited object (2) with full knowledge of its character, and where there is some evidence to show the accused person took custody of the object willingly (3) with intent (mental element) to deal with it in some prohibited manner. ii. R v. Marshall & R v. Terrence: Constructive Joint Possession. Passenger in car with marijuana
present.

1. RULE: "The 'knowledge and consent' which is an integral element of joint possession in s. 5(2) must be related to and read with the definition of 'possession' in the previous s. 5 (1) (b). It follows that 'knowledge and consent' cannot exist without the co-existence of some measure of control over the subject-matter. Although Marshall certainly had knowledge of the presence of the marihuana he had no control, right to control, nor did he consent to its presence. iii. R v. Pham: Possession of items in residence. Whether had knowledge & control over drugs found
in bathroom while she was not present. 1. RULE: Joint Possession = In order to constitute joint possession pursuant to section

4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. 2. HELD: The finding of knowledge in a criminal trial need NOT be supported by direct evidence it may be found by the introduction of circumstantial evidence. Even further, an inference of knowledge can be made if, as is the case, narcotics are found in plain view, and the accused is occupying the premises. 1

c. Consent as Element of Actus Reus: Question of absence of consent by the victim is an important actus reus
condition that must be present for offences to occur. i. R v. Jobidon: Fist fight allegedly consented to by both parties. Can you consent while unconscious? Must lack of consent be proved as an element of the crime? 1. RULE: Majority rejects the argument that since the deceased consented to the fight,

no assault occurred. He argues the absence of consent is not an element of the AR in cases where adults intentionally apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. - S.265(3) does not deal with consent in a comprehensive way, and the common law maintains authority on the issue of consent, since consent functions as a defense. Thus, policy reasons lead to the conclusion that consent is vitiated (legal validity is destroyed) in fist fight situations. ii. R v. J.A.: Whether consent for the purposes of sexual assault required victim to be conscious throughout the sexual activity. 1. RULE: The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. 2. The only question for the actus reus is whether the complainant was subjectively consenting in her mind. The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established. iii. R v. Cuerrier: Fraud nullifying consent. Non-disclosure of HIV status to partners. 1. ISSUE: (1) Would the actions of the accused be seen as dishonest by the reasonable
person? (2) Did the dishonesty result in significant risk of serious bodily harm?

2. RULE: It is not necessary, when considering whether consent is vitiated under s 265(3)
(i.e. consent vitiated by fraud), to consider whether the fraud relates to the nature and quality of the act; all that is required is a fraud and a casual connection between that fraud and the submission or failure to resist What is fraud? It involves: (i) DISHONESTY (determined objectively, ask whether there is deliberate deceit or non-disclosure of the HIV disease; note that the dishonest actions must relate to the obtaining of the consent); and (ii) DEPRIVATION (namely significant risk of serious bodily harm) The greater the risk of deprivation, the higher the duty of disclosure and since the failure to disclose HIV-positive status can lead to a devastating illness with fatal consequences, there exists a positive duty to disclose

d. Causation: Where the relevant offence prescribes a consequence that must occur before the offence is
complete. If causation is not proved, cannot be convicted of an offence that requires his act to produce a prohibited consequence. i. R v. Menezes: Criminal negligence charge based on death occurring from car racing. 1. 2 part Causation Test: Factual Causation (how the victim came to death - medical, mechanical, physical sense, and the s contribution + Legal Causation (whether the result can be fairly imputable to the .) a. Factual Causation: The test is this: Was the conduct of the accused a significant contributing cause of the prohibited consequence? (even if not the sole cause of death) i. Established by the BUT FOR TEST ii. If the act of the accused is too remote to have caused the result alleged, causation is not established. b. Legal Causation: Determining who among those who have factually contributed to an event should be held legally responsible for that event a moral reaction, a value-judgment.

i. Causation expresses an element of fault. That, together with the requisite mental element, is in law sufficient to base criminal responsibility. ii. Contributory negligence does not negate causation/criminal responsibility (Menezes) iii. Improper medical treatment does not usually break the chain of causation: s 225 Code ii. R v. Nette: Thin Skull Rule Robbing 95 year old. 1. Think Skull Rule: must take the victim as you find them. Harshness of rule is mitigated by asking if the accused had the requisite mens rea for the offence charged, which consists of "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act" 2. RULE: Smithers Causation test for Homicide still applicable: Whether s actions are a significant cause of the s death. The must be the cause of death beyond de minimus. a. For 1st Degree, use Hardbottle causation test: Whether s actions are a substantial cause of death which is higher degree of legal causation. Greater moral blameworthiness. iii. R v. Williams: Where Crown cannot prove that the prohibited consequence occurred, the accused cannot be convicted. 1. Aggravated assault is an offence based on proof of certain consequences. Crown must establish all of the elements of an assault, plus the aggravating circumstance (in this case, endangers the life of the complainant). Crown unable to prove the endangerment of life, and therefore unable to prove every element of the actus reus. iv. Intervening Cause 1. From R v. JSR: An intervening, independent act by a third party that is a more direct cause of a victim's death than the prior act of an accused may sever the legal causal connection between that victim's death and the prior act of the accused even though the prior act remains a factual or "but for" cause of the victim's death. a. Acts by a third party who is not acting independently but is acting in furtherance of a joint activity undertaken by the accused and that third party will not sever the legal causal connection.

e. Omissions: Some offences can be committed by a showing that failed to act, or omitted to act. To be
guilty by omission: i. TEST: 1. Offence must contemplate guilt for omissions, 2. must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and 3. Omission in question must be a failure to fulfill that legal duty.

ii. R v. Moore: Ran red light on bike. Didnt give PO his ID. 1. RULE: 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. iii. R v. Peterson: This case centers on sec. 215(1) (c) of the CC, which imposes a duty on adult children to take care of their parents of whom they are in charge of. didnt provide necessities of life to father. The pre-existing relationship of father/son created the legal duty. 1. RULE: - s 215(2): Subsection 215(2) imposes liability on an objective basis. The offence
is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other, without lawful excuse.

2. For sub (2), the personal characteristics of the accused, falling short of capacity to
appreciate the risk, are not a relevant consideration. The objective basis of liability includes an assessment of whether the person in charge could have acted other than as he or she did.

iv. R v. Browne: Charged with death by failing to render assistance & take friend to hospital on time.
No pre-existing relationship created a legal duty here. 1. RULE: Based on the charge, to find a legal duty, a finding of undertaking must be first established. Before someone is convicted of recklessly breaching a legal duty generated by his/her undertaking, that undertaking must have been clearly made, and with binding intent. Nothing short of binding commitment can give rise to the legal duty contemplated by sec. 217. 2. ANALYSIS: When no pre-existing relationship creates a legal duty, the first question to ask in the analysis of whether there was an omission, is to first determine whether there was an undertaking. Only if there is an undertaking in the nature of a binding commitment, can a legal duty to act arise. II. Subjective Mens Rea a. Generally: i. Subjective mens rea is normally gleaned circumstantially, including by using the common sense inference that persons usually intend the natural consequences of their acts (e.g. Daviault) ii. Use the mens rea provided for in the relevant provision, as construed according to relevant criminal law principles iii. If an offence specifies the relevant state of mind, then only that state of mind will suffice (e.g. assault requires intentional touching, and not simply reckless touching) iv. If a true crime is silent as to the mental state and the offence requires a consequence, it is implied that intention or recklessness in bringing about the consequence will suffice - In what follows, the most common mental states are illustrated and identified b. Intention and Ulterior Mens Rea i. must have the very intention required by the relevant provision. ii. R v. Vandergraff: intended to throw pb jar on ice, but didnt intend to make contact w/, so no assault. 1. RULE: For assault, the intent that must be established is the intention to apply force,

directly or indirectly, to another person. Without proof of an intention to apply force to the complainant or to another person, there cannot be a conviction for an assault. iii. R v. Murray: Did attorney hold Bernardo tapes w/ the intent to willfully obstruct justice? 1. RULE AR: The actus reus issue, is whether Murray's action in secreting the videotapes had a tendency to obstruct the course of justice. 2. RULE MR: Wilfully constitutes the mens rea - is the act is done for the purpose of obstructing the course of justice. This is a specific intent Crown must prove he intended to obstruct the course of justice iv. R v. J.S.R.: Gangs start shooting at each other from across the road. In the exchange several people
are shot and a 15-yr old girl dies. R (JS) is not the shooter of the 15 year older girl, but was exchanging fire with the other shooter. 1. RULE AR: Causation for the purpose of determining criminal liability for homicide is not, limited to the direct and immediate cause. Section 222(1) of the Criminal Code provides: A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. "But for" the decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms. Creba would not have been killed. 2. RULE MR: s. 229(c) is that the offender knows that the act or acts that are done for the purpose of the unlawful object are likely to cause death, notwithstanding he desires to effect his object without causing death or bodily harm to any human being. This creates a requirement for the subjective foresight of death by the offender. 3. Analysis:

a. For a unlawful object - killing the northbound shooter; b. Did anything - willingly engaged in a frenzied shootout, discharging his firearm numerous times into a busy street teeming with people; c. That he knew was likely to cause the death of a human being (other than his intended target) - discharging his firearm numerous times into a street filled with people; d. Caused the death of a human being - substantially contributed to Ms. Creba's death by engaging in a mutual gunfight.

c. Subjective MR w/ Objective Features i. Generally: Some criminal offences use standards to define criminal conduct (e.g. dishonest;
sexual etc). Its not required that have subjective appreciation that relevant criminal standard has been met. E.g. An accused can commit fraud even if he does not appreciate that the relevant transaction was dishonest ii. R v. Theroux: Fraud. 1. RULE AR: The actus reus of fraud is established by proof of a prohibited act, be it an act of deceit, falsehood or other fraudulent means, and by proof of deprivation caused by the prohibited act (which may consist in actual loss or the placing of the victim's pecuniary interests at risk). 2. RULE MR: To determine mens rea of fraud, ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation). 3. ANALYSIS: Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the deprivation or was reckless as to whether it would occur. The accused's belief that the conduct is not wrong or that no one will in the end be hurt affords no defence to a charge of fraud. iii. R v. Chase: Can be convicted of Sexual Assault even though didnt touch genitals? 1. Sexual Assault is a General Intent crime Crown need only prove intended to touch . 2. RULE: The test to determine whether the assault is sexual is an objective one, viewed in light of all circumstances is sexual assault visible to reasonable person. 3. RULE: The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. d. Recklessness i. Generally: Recklessness is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act, the prohibited consequence will be brought about. 1. Differs from negligence which can apply even if the actor does not personally see the risk, provided a reasonable person would have. 2. Recklessness is a subjective mens rea with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking (Reasonable person standard). 3. Application: Recklessness will apply where the provision creates a consequence, but does not require some more limited kind of mens rea.

ii. RULE from Briscoe: Recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it.

iii. R v. Buzunga & Derocher: Two accused printed anti-French pamphlets (with knowledge it would incite hatred against the French) but with the intention of helping/ rallying the French people. 1. For willfully, does the Crown have to prove Intention? Recklessness? Knowledge? Willfully = Intention Intention fulfilled where accused:
a. Purposely bringing about consequence

b. Acts with knowledge that the consequence will result. By this, the accused acted willfully.
e. Knowledge i. Generally: must generally know that the conditions of the actus reus exist. EG - cant be convicted of assaulting a police officer, if doesnt know victim is PO. Presumed knows of the relevant conditions, unless the accused presents a mistake of fact defence. In the sexual offence, mistake of fact defence is limited (NO mistake of fact for consent). ii. R v. Ewanchuk: Van rape - used mistake of fact defense for consent. Ct didnt accept. 1. RULE AR: Sexual assault is a crime of general intent. Crown only prove that intended to touch the complainant in order to satisfy the basic mens rea requirement. 2. The AR of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the 's actions were voluntary. 3. RULE MR: The MR of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. No defence of implied consent to sexual assault exists in Canadian law. iii. R v. Levigne: Luring a child online. Statutory presumption of knowledge, 172.1(3).

f. Willful Blindness (akin to Knowledge) i. Generally: Willful blindness is related to but distinct from recklessness. It is a subjective state of
mind, requiring that the accused personally sees the risk of a fact, but then willfully avoids confirmation so as to be able to deny knowledge. This concept fits best when used as a substitute for knowledge. ii. R v. Currie: tried to cash stolen forged cheque. 1. RULE: If had his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. Crown must prove, beyond a reasonable doubt, that the s suspicion was aroused, not whether it should have been aroused. iii. R v. Vinikurov: V, owner of store, received stolen property, which he said he didnt know was stolen. PRINCIPLE: Willful blindness is imputed knowledge, and will fulfill the MR

requirement. 1. PROOF: Crown must prove that the accused knew that the property was stolen. When the
term "knowingly" is used, the reasonable person standard will not satisfy the mens rea requirement. 2. RULE: Court can find willful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. 3. Willful blindness will suffice because it is the equivalent of actual knowledge. Recklessness is not and, accordingly, is insufficient. iv. R v. Briscoe: B charged w/ murder for driving murderer to scene & standing by watching. 1. The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) of the Criminal Code has two components: intent and knowledge. 2. INTENT: Crown must prove that the intended to assist the principal in the commission of the offence. It is not required that the accused desired that the offence be successfully committed.

3. KNOWLEDGE: In order to have the intention to assist in the commission of an offence,

the aider must know that the principal intends to commit the crime, although he or she need not know precisely how it will be committed. It is sufficient that he/she, armed with knowledge of the principal's intention to commit the crime, acts with the intention of assisting the principal in its commission. 4. RULE: Willful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. Willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. III. Objective Mens Rea & True Crimes a. Generally: For crimes using objective fault as the mens rea, penal negligence - a more restricted form of negligence - is generally required. i. EXCEPTION: is with predicate offences, those aggravated forms of offence that apply when serious consequences result, and that include within their elements another complete but lesser offence, a predicate offence. ii. For predicate offences the consequence need not be brought about by penal negligence. It is enough if the accused commits the underlying or predicate offence, and that the aggravated consequence that has been thereby caused was objectively foreseeable. b. R v. Martineau: FACTS: M and T set out armed knowingly going to commit a crime; M thought it would only be a break and enter. Tremblay killed two people after robbing them and their house. Is the offence of constructive murder unconstitutional? i. s 230 expressly removes from the Crown burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. This section stands as an anomaly as regards the other murder provisions. ii. It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. S 230 (a) and (c) are invalid. Morally innocent should not be punished - (Vaillancourt principle)

c. R v. Creighton: Defines unlawful act and criminal negligence manslaughter. C injected Ks veins w/ crack
resulting in her death. J found death constituted manslaughter either on the ground that it was caused by an unlawful act, or on the ground that it was caused by criminal negligence. i. MANSLAUGHTER: 2 requirements are constant: (1) conduct causing the death of another person; and (2) fault short of intention to kill. The MR requirement of foreseeability of harm (rather than death) is appropriate b/c killing is less blameworthy than murder. ii. That fault may consist either: in committing another unlawful act which causes the death, or in criminal negligence. The structure of the offence of manslaughter depends on a predicate offence of an unlawful act or criminal negligence, coupled with a homicide. iii. Unlawful act manslaughter - The unlawful act must be: 1. AR: objectively dangerous (i.e. one that is likely to subject another person to danger of harm or injury and a non-absolute liability offence) (R v DeSousa) 2. MR: there must be intent to commit this underlying act 3. MR: as well objective foreseeability of the risk of bodily harm that is non-trivial a. Did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If YES - the necessary moral fault is established and convicted. If not, must be acquitted. [NOTE: Personal factors are not relevant in this assessment, except on the question of whether the accused possessed the necessary capacity to appreciate the risk]. Principle that law will not convict morally innocent. iv. Criminal negligence manslaughter - Criminal negligence manslaughter requires: 1. AR: an act that exhibits a marked departure from the standards of a reasonable person in all of the circumstances (i.e. the definition of criminal negligence in s 219 must be satisfied) AND

2. MR: objective foreseeability of the risk of non-trivial bodily harm (foreseeability of

death is not required) a. Did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? Same analysis as above.

d. R v. Beatty: Defines the elements of the dangerous operation of a motor vehicle offence, s 249). B charged
w/ dangerous operation of a motor vehicle causing death. B says I just lost consciousness momentary a few seconds. i. AR: was driving dangerously, in light of all the circumstances, which is what is required in s 249 to satisfy the actus reus. ii. MR: Whether the manner of driving, viewed on an objective basis, constitutes a marked departure from the norm of a reasonable person in circumstances of the . Difference b/w civil and penal negligence- momentary lapse insufficient to support objective standard- acquitted.

e. R v. DeSousa: Defines the elements of the offence of unlawfully causing bodily harm, s 269. in fight
where bystander was injured when a bottle allegedly thrown by broke & struck bystander i. To be brought within the ambit of s 269, the accused must have committed an: 1. underlying unlawful offence that is objectively dangerous (i.e. one that is likely to subject another person to danger of harm or injury and a non-absolute liability offence), and 2. MR: intent to commit the underlying offence 3. AR: have caused (i.e. for liability to be imposed for unlawfully causing bodily harm, the harm caused must have sufficient causal connection to the underlying offence committed) 4. AR: bodily harm to another person as a result of committing that underlying offence which is neither trivial nor transitory) 5. MR: while having objective foresight of bodily harm ii. Note this bodily harm will in most cases involve an act of violence done deliberately to another person. iii. No const requirement for intent to extend to consequences of unlawful acts in punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful acts. IV. Regulatory Offenses a. Generally: Regulatory offences can be full mens rea offences just as true crimes are, but a clear indication that mens rea isrequired is needed before regulatory offences will be interpreted as having mens rea elements. They are presumed to be strict liability offences (offences that can be committed by simple, non-penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction). Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant actus reus is proved, provided this is clearly what the legislators intended when establishing the offence. b. R v. Sault Ste. Marie: Three categories of offences: i. True Crimes: Offences in which MR, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. 1. Criminal offences fall into this category 2. Wilfully, with intent, knowingly, intentionally

ii. Strict Liability Offences: Offences in which there is no necessity for the Crown to prove the
existence of MR; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. 1. Prosecution must prove AR beyond a reasonable doubt; must establish defence of reasonable care - what a reasonable man would have done in the circumstances. 2. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

3. Public Welfare offences fall into this category EG: traffic infractions, sales of impure food,
violations of liquor laws. iii. Absolute Liability Offences: It is not open to the accused to exculpate himself by showing that he was free of fault. Primary considerations in determining whether the offence falls into this category: 1. The overall regulatory pattern adopted by the Legislature 2. the subject matter of the legislation & the importance of the penalty 3. and the precision of the language used 4. So look at the statute first to see if it expressly provides for absolute liability > For strict liability offences-->Must first determine if its a public welfare offence

iv. CASE: For this case, there is no presumption of full mens rea, because (a) this is a public welfare
offence; (b) it comes from a provincial statute. 1. Also, it was provincial legislation and thus could not be a true crime. The words knowingly or willfully were not included. 2. The present case concerns the interpretation of two troublesome words frequently found in public welfare statutes: cause and permit. These two words are troublesome because neither denotes clearly either full mens rea nor absolute liability. 3. The words cause and permit, fit much better into an offence of strict liability than either full mens rea or absolute liability. Therefore, proof of the act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care.

c. R v. Chapin: Duck hunting without knowing trap set by park officials.

i. What category of offense is it? 1. It is NOT a mens rea (true crime) offence. Absence of signals connoting mens rea such as wilfully or with intent. 2. It is NOT an absolute liability offence: Language is straightforward, No person shall. Not a strict prohibition, rather a hunt controlled within certain limits as to season, methods, etc 3. It IS a strict liability offence: Because its a public welfare offence, prima facie falls into this category. Further, it is a classic example of an offence in the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent.

d. Refence re Section 92 Motor Vehicle Act BC: Absolute liability and imprisonment cannot be combined). Is the relevant section of the Motor Vehicle Act in contravention of s 7 of Charter? i. A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent
that it has the potential of depriving of life, liberty, or security of the person. Obviously, imprisonment (including probation orders) deprives persons of their liberty. The combination of imprisonment and of absolute liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one's rights under s. 7. ii. An absolute liability, which makes a person liable for an offence whether or not they took steps not to be at fault, violates the principles of fundamental justice. Therefore, any possibility of a deprivation of life, liberty, or security of person from an absolute liability offence offends the Charter. It is only through reasons of public interest can such offences be saved through section 1 of the Charter. iii. The Crown failed to show that the public interest of ridding the roads of bad drivers could be proportional to the limiting of people's rights by imprisoning them

e. R v. Cancoil Thermal: (If a regulatory offence is intended to be one of absolute liability based on an analysis
of the wording of the offence, AND if that offence has as a potential punishment of imprisonment, then a court must interpret that offence to be one of strict liability to make it conform to the Charter) i. Offences of absolute liability that are punishable by imprisonment violate sec. 7 of the Charter. In order not to violate it, they must be treated as strict liability, and offer the defence of due diligence. Recognized a defense of officially induced error for criminal and regulatory offenses.

f. R v. Raham: Stunt driving is NOT absolute liability offense, b/c jail time is possible. i. In Sault Ste. Marie, at pp. 1325-26, Dickson J. recognized three categories of offences, one
requiring mens rea, consisting of a positive state of mind, a second requiring proof of the doing of a prohibited act and leaving it open to the accused to avoid liability by showing he took all reasonable care to avoid committing the prohibited act (strict liability), and a third, offences of absolute liability where a conviction follows proof of the commission of the prohibited act. ii. The analytical template described in Sault Ste. Marie sets out four "primary considerations" to be used when determining the proper categorization of an offence: 1. the overall regulatory pattern of which the offence is a part; 2. the subject matter of the legislation; 3. the importance of the penalty; and 4. the precision of the language used. iii. 2 methods of determining whether an offence is one of absolute liability. First, as suggested in Sault Ste. Marie, supra, regard may be had to the overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used. iv. Second, the availability of a due diligence defence must be considered. An absolute offence denies an accused the opportunity to put forward a defence of due diligence. Conversely, in order for an offence to be one of strict liability, the defence of due diligence must be available.

g. Levis v. Tetrault: (Illustration of due diligence defence failing) Convicted of motor vehicle related offences not paying registration fee. Postal service did not deliver the notice of registration renewal.
i. Regulatory/public welfare offences usually fall into the category of strict liability offences. As a general rule, in accordance with the common law rule that criminal liability ordinarily presupposes the existence of fault, they are presumed to belong to the intermediate category (strict liability). ii. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. iii. Due diligence? did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizens civic duty to take action to find out what his or her obligations are. ** Regulatory Offence Framework Answer ** STEP 1: What category of offence is this? - Classifying the offence into one of the 3 types identified in R v Sault Ste Marie is a matter of statutory interpretation: (1) Is the offence a TRUE CRIME or a REULGATORY/PUBLIC WELFARE OFFENCE? (a) If its a true crime, then theres a presumption that its a full mens rea offence, and, to rebut the presumption, you would have to establish why it should not be a mens rea offence (by analyzing the language of the offence): (i) If committing the offence is punishable upon summary conviction and not indictment, this is suggestive of a regulatory offence, and not a true crime (R v Chapin)

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(ii) if the offence comes from a provincial statute, this leans toward it being a regulatory offence and not a true crime (R v Sault Ste Marie)] (b) If its a public welfare offence (which, on the exam, it is likely to be), then there is a presumption that the offence is a strict liability offence [Note: such offences relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like] -- On exam, it will likely be presumed to be a public welfare offence, and prima facie a strict liability offence. But you always go through each category and analyze whether the offence belongs in it: (2) Is it a MENS REA offence? Look for the words like willfully, knowingly, with intent, intentionally etc. But words like cause or permit do not indicate a mens rea offence (R v Sault Ste Marie). If not, consider the next question (3) Is it a STRICT LIABILITY OFFENCE (R v Sault Ste Marie). Look at the wording of the statute, its purpose, and see if the public interest is the focus here; if it is, then the strict liability presumption will arise. (4) Is it a ABSOLUTE LIABILITY offence? Consider the overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used. There must be CLEAR proof of legislative intent for it to be an absolute liability offence. E.g. in R v Chapin, look at whether there is a STRICT prohibition of the relevant act in that case, there were certain limits placed on hunting, but it was not an all or nothing prohibition, so that pointed towards it not being an absolute offence E.g. in R v Chapin, there was a serious penalty, which pointed towards it not being an absolute liability offence Note: If a regulatory offence is intended by Parliament/Legislature to be one of absolute liability, and that offence has as a potential punishment imprisonment, then a court must interpret the offence to be one of strict liability to make it conform to the Charter (R v Cancoil Thermal) STEP 2: Should the accused be convicted of the offence? (1) If the offence is one of: a. Strict liability: Then the proof of the act prima facie imports the offence, but the accused may avoid liability by proving that he took all reasonable care (i.e. the defence of due diligence). That is, the prosecution must prove the act beyond a reasonable doubt, and the accused can attempt to prove the due diligence defence on a BoP. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED] Passivity cannot amount to due diligence (Levis v Tereault) b. Mens rea: Then the prosecution must prove the prohibited act and the relevant mental state B/R/D. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED] c. Absolute liability: Then proof of the act imports the offence, and there is no defence of due diligence. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED]

V.

Extensions of Criminal Liability INCOHATE CRIMES = Specific Intent (VA & here) a. Aiding & Abetting: i. Generally: 1. Can be convicted for aiding (physically supporting) or abetting (encouraging) the accused to commit the offence. 2. Can be convicted for not only the offences they intended to aid or abet, but also another offence, provided that it is a foreseeable outcome of the offence they did intend to aid or abet ii. Section 21. CCParties to an Offence 21. (1) Every one is a party to an offence who: 1. actually commits it; 2. does or omits to do anything for the purpose of aiding any person to commit it; or 3. abets any person in committing it.

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iii. 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. iv. R v. Dunlop & Sylvester: Mere presence, and passive acquiescence, at the scene of a crime is not sufficient to ground culpability for A & A. Some ACTIVE steps must be taken. HOWEVER, presence at the commission of an offence CAN be evidence of A or A if accompanied by other factors such as prior knowledge of the principal offenders intention to commit the offence 1. Facts: Complainant raped by 18 men, while she was being held by 2. She pointed to

Dunlop and Sylvester as two of the men who raped her. 2. RULE: Mere presence, and passive acquiescence, at the scene of a crime is not sufficient
to ground culpability. Some active steps must be taken by word or action. 3. RULE: Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement 4. RULE: A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended. One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape.

v. R v. Logan: Analyzes the constitutionality of s 21(2) common purpose liability in relation to the
offence of attempted murder. Requires subjective mens rea for attempted murder & aiding. During robberies, clerk shot and injured. Constitutionality of s. 21(2) allowing conviction based on outcome of crime that ought to have known could happen. 1. RULE: The mens rea for attempted murder cannot, without restricting s. 7 of the Charter, require less than subjective foresight of the accused -- the mental element required of a murderer under s. 212(a)(i). 2. RULE: When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder. 3. The words "or ought to have known" are inoperative when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder. Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose. vi. R v. Briscoe: 13-yr old girl brought to golf course, raped and murdered. B watched. 1. RULE MR: The aider or abettor must also have the requisite mental state or MR. S. 21(1) (b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime. MR requirement reflected in the word purpose under s. 21(1)(b) has two components: intent and knowledge. 2. RULE INTENT: For the intent, purpose in s. 21(1)(b) should be understood as essentially synonymous with intention. The Crown must prove that intended to assist the principal in the commission of the offence. 3. RULE KNOWLEDGE: In order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. b. Counseling i. Generally: can be convicted of counseling offences, whether or not the offences counseled are actually committed. If the accused counsels another person to commit an offence, and the offence is committed, then s 23 (Accessory After the Fact) operates. If the offence isnt committed, then s 464 operates.

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ii. R v. Hamilton: Defines elements of Counseling. H offered for sale access to a credit card number
generator. Hamilton charged under s. 464(a) in four separate counts, with counseling the commission of indictable offences that were not in fact committed. 1. RULE AR: The actus reus for counseling is the active inducement of the commission of a criminal offence. 2. RULE MR: The mens rea consists of nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counseling: must be shown that either intended that the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of s conduct. c. Attempts i. Generally: Not all crimes need to be complete before an offence arises. There is (1) the discrete offence of counseling, (2) the offence of conspiracy in which the agreement to commit a crime is a crime, and (3) there is liability for attempting to commit an offence. The fact that an offence is legally impossible (Factual Impossibility in VA) in the factual circumstances is no defence to an attempt charge, but it is not an offence to try to commit an act you believe is an offence, when it is not actually an offence. (Legal Impossibility in VA = Defense). ii. Conspiracy s. 465 1. AR: The agreement to commit the offence. 2. MR: The intention to agree & intention to commit the offence (purpose to commit offence in the future; knowledge that the offence will occur in the future (put agreement into effect) 3. Impossibility: Impossibility of completion of conspired offence due to real state of affairs no defence - what matters is what accused believed. 4. Double-Up: You cannot double up inchoate offences, there is no attempt to conspire. iii. Attempts s. 463. Every one who, having 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. 1. AR: The first step out of preparation and into commission satisfies AR. The line b/w preparation and first step of commission is difficult to discern. 2. MR for Attempted Murder is subjective intent to kill: Purposely killing w/ Knowledge that death will result. The Constitutionally required MR for Attempted Murder is nothing less than the subjective foresight of death -- knowledge that death will result. Again, intent also a constitutional requirement. 3. Impossibility: AR and MR of Attempt can be satisfied even where the completion of the offence is impossible. After Dynar, liability for inchoate offences turns on what the accused believed the material facts to be, not what they actually were. If you intend to commit an offence, take the first step in committing that offence, regardless of whether your beliefs are correct or not you are guilty. The only caveat is that the offence has to be real -- no imaginary impossibilities.

iv. R v. Ancio: For one to be guilty of an attempt, they must intend to commit the completed offence,
and to have some act toward the accomplishment of that objective; e.g. for murder, there must be the intent to kill. FACTS: broke into wifes apt. w/ a loaded gun; dude throws chair at him and gun goes off. 1. As with any crime, to be convicted of an attempt, the Crown must prove mens rea, that is, the intent to commit the offence in question, and the actus reus, that is, some step towards the commission of the offence attempted beyond mere acts of preparation 2. Here, the completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. Mens rea for an attempted murder cannot be less than the specific intent to kill. 3. MR for attempted murder is the specific intent to kill. An attempt to murder, aimed at the completion of the full crime of murder, should not have an intent lesser than that of murder

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v. R v Deutsch: How to distinguish between attempts & mere preparation AR of attempt. posted
ads for a secretary. indicated job required sexual intercourse with clients to conclude contracts. Generous salary was promised. 1. There is no clear line between attempt and preparation. The difference between attempt and preparation is qualitative, involving the relationship between the nature and quality of the act in question and the nature of the complete offence: a. Define the nature of the actus reus of completed offence. b. Consider factors of proximity (how close was the completed offence?): Time, location, and acts under the control of the accused. 2. guilty of attempting. If had the necessary intent to persuade the women to seek employment that would require them to have sex, then the holding out of large financial rewards during the interview, in which the necessity of having sex was disclosed, could constitute the actus reus of an attempt to procure. There would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment.

vi. R v. Dery: No such offence as attempting to conspire 1. D convicted of attempting to conspire to commit theft, and of attempting to conspire to
unlawfully possess proceeds. No evidence that either accused had taken any steps to carry out the proposed theft. In the absence of a proven agreement, the judge quite properly felt bound to acquit the accused of the conspiracies charged. On each count, however, he convicted both co-accused of attempting to conspire, which he believed to be an included offence.

VI.

Corporate & Association Liability - See ss 22.1, 22.2 a. Generally: Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the actus reus alone, there is no need to use any legal devises to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do NOT apply to regulatory offences. For true crimes, the Criminal Code sets out standards for corporate and association liability b. Section 22.1 Applies to objective fault or negligence offences where an association is charged only look at conduct of corporation. An organization is party to an offence if: i. One or more of the corporations representatives alone or together do, or fail to do, anything that amounts to an offence of negligence on their part, WHILE acting within the scope of their authority; AND ii. Conduct of one or more senior officers of the organization responsible for the aspect of the organizations activities that is relevant to the offence. His conduct must amount to an marked departure from what would reasonably be expected to prevent a representative from being a party to the offence. c. Section 22.2 Applies to offences other than negligence-based offences True Crime. An organization is a party to an offence if, with the INTENT at least in part to benefit the organization, one of its senior officers: i. Is a party to the offence (i.e. the non-negligence offence), while acting within the scope of their authority; OR ii. Directs the work of other representatives of the organization so that they do or fail to do things that are the external circumstances of the offence charged OR iii. Fails to take all reasonable measures to stop a representative of the organization, whom the senior officer knows is (or is about to be) a party to the offence, from being a party.

[Note: for s 22.1, in addition to any mental element that must accompany the external circumstances, the acts or omissions of the senior officer, the Crown must prove that a senior officer had the ulterior intent, at least in part, to benefit the organization by the prohibited conduct] - Section 22.2 applies to subjective mens rea offences charged against an association

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- See DEFINITIONS of organization, representative and senior officer: s 2 VII. Defenses a. Mental Disorder i. s. 16(1) puts forth MNaughten Right/Wrong Test (mental disorder caused such defect of reason that didnt know actions were illegal) & MPC Test (mental illness caused substantial

impairment of the ability to appreciate the wrongfulness of the act) 1. Incapable of knowing it was wrong: Incapability of knowing the act was wrong
extends past apprehending right and wrong in the abstract; it includes being able to rationally apply the knowledge. 2. Incapable of appreciating the nature & quality of the act: If s appreciation extends past knowledge of the act (e.g. choking) to appreciation of the consequences, impact, and result (e.g. that this choking will result in unlawful murder) will be found to have appreciated the nature and quality of the act.

ii. Burden of Proof: Once the evidence is sufficient to indicate that an accused suffers from a
condition which could in law constitute disease of the mind, the judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed-, on a balance of probabilities. BOP on . iii. Mental Disorder Definition s. 2: 1. Disease of the mind -- embraces any illness, disorder, or abnormal condition which impairs the human mind and its functioning, EXCLUDING however, self-induced states caused by alcohol or drugs, AS WELL AS transitory mental states such as hysteria or concussion. (R. v. Cooper) 2. Disease of the mind contains a substantial medical component as well as a legal or policy component. (R v. Parks) a. Medical component = the medical opinion as to how the mental condition in question is viewed or characterized medically. b. Legal or policy component relates to: (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder; & (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered state. Two distinct approaches to the policy component in automatism cases: i. Any condition likely to present recurring danger should be treated as insanity. Purpose of the insanity defence has always been the protection of the public against recurrent danger. ii. Condition stemming from the internal make-up of the accused, rather than external factors, should lead to a finding of insanity. iv. R v. Cooper: Nature & Quality. Definition of mental disorder that was modified by R v. Parks. Mere KNOWLEDGE of nature and qualify of an act does not equal APPRECIATION estimation and understanding of the nature and consequences of that act 1. Was the AT THE TIME of the offence by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the NATURAL CONSEQUENCES that would flow from it? 2. To know the nature and quality of an act may mean merely to be aware of the physical act. - using his hands to choke the deceased, he may have known the nature and quality of that physical act of choking. 3. But to appreciate may involve estimation &understanding of the consequences of that act. It is entirely different to suggest, however, that in performing the physical act of choking, appellant was able to appreciate its nature and quality in the sense of being aware that it could lead to or result in her death. In the opinion of the medical expert who testified at the trial, the appellant could have been capable of intending bodily harm and of choking the girl, but not of having intended her death.

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v. R v. Kjeldson: (Psychopathy or sociopathy doesnt leave you incapable of appreciating nature and
quality of act). K claimed to be psychotic and incapable of emotionally appreciating the significance of his act. Can psychopathy be exempted by s 16, within the words incapable of appreciating the nature and quality of an act or omission? 1. RULE: Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people. vi. R v. Oommen: Right from Wrong. O suffered from paranoid psychosis & shot woman thought was conspiring against him. Did he have the capacity at the relevant time to know the difference between right and wrong? 1. RULE: The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. 2. TEST: Did the accused lack the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not? 3. in this case accepted society's views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances of the case.

b. Voluntary Acts Negativing the Actus Reus & Automatism i. Generally: It is the voluntariness concept = defence of automatism. s physical motions were
not culpable where they are not voluntary or thought-directed or conscious, as in the sleep-walking case of R. v. Parks. ii. Reserved to unusual cases where some disconnect b/w actions of and his conscious will. Automatism divided into 2 categories: insane (or mental disorder) automatism and noninsane (non-mental disorder) automatism. Where a court finds insane automatism the real defence it is applying is mental disorder, since an accused person who is automatistic because of a disease of the mind cannot appreciate the nature and quality of his act or have the capacity to understand that the act is wrong. If the defence that applies is non-insane automatism, a complete acquittal is appropriate. iii. R v. Swaby: An otherwise criminal act cannot be said to be voluntary unless the person is given reasonable time to avoid committing the act. Charge in question: being an occupant of a motor vehicle knowing there was present a restricted weapon for which no occupant held a permit. told J that he had a gun. stopped car, handed J the gun, and instructed him to dispose of it. 1. RULE: Crown has to prove the coincidence of occupancy of car & knowledge of gun was attributable to something amounting to voluntary conduct on the part of , as voluntary conduct is a necessary element of criminal liability. 2. RULE: If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. 3. It cant be said that the coincidence of knowledge & occupancy amounted to voluntary conduct on the part of the driver. It is the conduct of the driver following the coincidence of occupancy and knowledge that counts, and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle, there is no voluntary act for the criminal law to punish. iv. R v. Parks: Sleepwalking case. New test for disease of the mind. Look at both medical/expert evidence and legal/policy considerations, namely continuous danger and internal cause theories, to determine whether the automatism defence can succeed. While sleepwalking, P killed mother & father in law. Is this case of sleepwalking disease of mind or non-insane automatism (acquit)? Decided by Judge if it is a disease of mind. 1. Disease of the mind contains a substantial medical component as well as a legal or policy component. a. Medical component = the medical opinion as to how the mental condition in question is viewed or characterized medically.

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b. Legal or policy component relates to: (a) the scope of the exemption from
criminal responsibility to be afforded by mental disorder; & (b) the protection of the public. i. Any condition likely to present recurring danger should be treated as insanity. ii. Condition stemming from the internal make-up of the accused, rather than external factors, should lead to a finding of insanity. 2. ANALYSIS: Sleepwalking is not a disease of mind, but instead non-insane automatism b/c it wont likely reoccur. Relevant policy issue: recurring danger none in this case. v. R v. Stone: Leading case on the automatism defence- no mental disorder, bad trigger. S stabbed wife after she made nasty comments about him. S said he had a whooshing sensation come over him. Brought up automatism defense. 1. Claims of automatism must be on the defense to prove involuntariness on the balance of probabilities. 2. Law presumes people act voluntarily in order to avoid placing the onerous burden of proving voluntariness beyond a reasonable doubt on the Crown. Automatism, they assert, is easily feigned and all knowledge of its occurrence rests with the accused. This necessarily requires the trial judge to begin from the premise that the automatism is caused by a disease of the mind, and then look to the evidence to determine whether it convinces him that the condition is not a disease of the mind. In raising the defense of automatism, the defense must: a. Make an assertion of involuntariness, and b. Call expert psychiatric and/or psychological evidence confirming that assertion. 3. HELD: Judge found that only the non-insane automatism defence applied; however, the triggering effect for Stone was not something that would reasonably be expected from a normal person. Defence should fail b/c normal person would not have shifted into a state of automatism as the result of the wifes taunts. vi. R v. Fontaine: F killed man whom he believed had a contract to kill. He asserts that at the time of the shooting he was in a psychotic state. Before a judge & jury, F pleaded mental disorder automatism. Several psychiatrists gave evidence. Judge refused to put this defence to the jury on the ground that the required evidential foundation had not been laid. Held: Unconstitutional- gets rights to put on defense. 1. Evidential burden question of law, is for the Court to determine. Persuasive burden question of fact, is for the jury to decide. In the case of reverse onus defences, such as automatism, it is the accused who bears the persuasive and the evidential burdens. Reverse onus defences will therefore go to the jury (be in play) where there is any evidence (probative opinion of a qualified expert) upon which a properly instructed jury could reasonably decide the issue (air of reality). It was held that all the accused has to do is put forward evidence on balance of probabilities capable of supporting the defence. ** Final Non-insane/insane Automatism Defence Framework ** (as per Parks; Stone; Fontaine) STEP (1): Is there a proper foundation for a finding of automatism? The law presumes people to act voluntarily, so must rebut presumption of voluntariness (Parks; Stone) To do so, must show that there is an air of reality to the defence, namely that there is some evidence with which a properly instructed jury could reasonably, on account of that evidence, conclude in favour of . (Fontaine) Note that the evidence must be supported from psychiatric expert evidence (Stone) STEP (2): If Step # 1 satisfied, the trial judge determines whether the condition alleged is mental disorder or non-mental disorder automatism (i.e. which defence should be left with the jury): Judge to start from proposition that condition is disease of mind, and asks whether evidence takes it out of category Judge should consider the following:

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(a) Internal cause factors: If the condition stems from an internal cause - condition is a DOM (Note: if not internal cause, still may be DOM) Nature of the alleged trigger - judge must consider the nature of the trigger & determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state. (b) Continuing danger factors: Any condition which is likely to present a recurring danger to the public should be treated as a Disease of the Mind (Parks) Consider expert evidence Consider medical history/psychiatric history Consider likelihood of triggers occurring (c) May consider other policy factors where first two inconclusive Policy concerns assist judge in answering whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code. Policy considerations include: Reputation of administration of justice Ease of feigning (faking) Ensuring public safety STEP (3): Available Defences for trier of fact to consider (a) Non-insane automatism? If not disorder, Q is whether the defence has proven that the accused acted involuntarily. Here, jury may be instructed to consider things such as (Stone factors): o Whether there is a motive for crime ie, A motiveless act will generally lend plausibility to an accuseds claim of involuntariness o Severity of triggering stimulus o Corroborating medical history o Whether the trigger is the victim o Corroborating evidence of a bystander - which reveals that the accused appeared uncharacteristically glassy-eyed, unresponsive and or distant immediately before, during or after the alleged involuntary act

(b) Insane automatism? If the trial judge concludes that the alleged condition is a disease of the mind, only mental
disorder automatism will be left with the trier of fact. The case will then proceed like any other s. 16 case-Under s. 672.54, an accused who receives this qualified acquittal may be discharged absolutely, discharged conditionally or detained in a hospital. INTOXICATION General intent the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. A person is presumed to have intended the natural and probable consequences of his actions. - Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. (Daviault) - The mens rea in most cases can be inferred from the actus reus itself: a person is presumed to have intended the natural and probable consequences of his actions. - In cases where accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, Crown may meet this evidentiary obligation respecting the necessary blameworthy mental state of the accused by proving the fact of voluntary self-induced intoxication by drugs or alcohol. The reckless behaviour in attaining the level of

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intoxication affords necessary evidence of a culpable mental condition. (Bernard) Policy grounds = cant intoxicate yourself; commit a crime, and then use your intoxication as a defence.

Specific intent involves the performance of the actus reus, coupled w/ an intent or purpose going beyond the mere performance of the questioned act (e.g. assault with the intent to maim or wound). Where, a case which involves a crime of specific intent, 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. General Intention Offences 1. assault (s. 266) 2. arson causing bodily harm (s. 433) (Bernard) 3. break enter and commit (s 348(1)(a)) 4. sexual assault (rape) (s 271) 5. manslaughter
***Note: this categorization assumes voluntary

Specific Intention Offences 1. assault w/ intent to resist arrest (s. 270(b)) 2. arson w/ intent to defraud (s 435) 3. break enter w/ intent to commit (s 348(1)(b)) 4. touching for a sexual purpose (s 151) 5. murder 6. theft 7. attempted assault, break and enter, sexual assault, etc

c. Intoxication Defenses Simple & Extreme i. General Intent Offenses & Intoxication 1. R v. Bernard: Sexual assault causing bodily harm is a general intent offence, and therefore Simple Intoxication doesnt work as a defence. charged w/ sexual assault causing bodily harm. asserts that his drunkenness caused him to attack the complainant. a. Majority was of the opinion that the defense of simple intoxication was not available to a crime of general intent. Since sexual assault causing bodily harm is a crime of general intent, then the defense was not available. b. In cases involving general intent, the Crown will be able to establish the accuseds blameworthy mental state by inference from his acts. c. General intent offence (i.e. the mental element is the intent to commit the assault). Rule recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self-control leading to the commission of a crime, are not morally innocent, and are, indeed, criminally blameworthy. 2. R v. Daviault: (Extreme Intoxication) D sexually assaults crippled old lady. Can a state of drunkenness which is so extreme that is in a condition that closely resembles automatism or a disease of the mind constitute a basis for defending a crime which requires not a specific but only a general intent? a. Mental element of general intent offences minimal- simply an intention to commit the sexual assault or recklessness as to whether the actions would constitute assault. Where intoxication is so extreme, an essential element of the offence, voluntariness, is not present. Cant hold someone morally at fault w/ absence of voluntariness-- a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Court noted

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that this defence would only be available in rare cases, essentially where the accused was an automaton. b. To use defence of extreme intoxication, you need: i. Expert evidence (that the accused was in a state of automatism or insanity) ii. Accused must prove, with that expert evidence alongside any other evidence that, on a balance of probabilities, he was in an extreme state of intoxication. BUT see s. 33.1 of CC (enacted in response to Daviault):

Extreme intoxication is NOT a defence to any offence which involves assault as an element or involves interfering, or threatening to interfere, with a persons bodily integrity, whether or not that person, by reason of the intoxication, lacked the general intent or voluntariness required for the offence So, the defence of EI after Daviault is available for all general intent offences except for assault, sexual assault, or interference w/ bodily integrity of another (basically any violence or threats of violence)

ii. Specific Intent Offenses & Intoxication 1. Generally: Simple intoxication defence operates only if proof of intoxication helps leave the judge/jury in reasonable doubt over whether formed the relevant mens rea - the formation of the specific intent. 2. Even if not guilty of a specific intent offence b/c of intoxication, can still be convicted of a lesser included general intent offence (e.g. murder => manslaughter, e.g. assault with intent => assault) 3. R v. Robinson: (Two step process when dealing with offences of specific intent) killed a man but claimed to have acted w/o intent because intoxicated. Specific intent tp be
proved for murder is intent to kill w/ the foresight of death.

4. RULE: Trier of fact only need to find that the accused did not have the mens rea (i.e. intent in fact) for the offence, and if not found, do not need to inquire about capacity to have intent. The inquiry is in the actually state of mind and not the capacity to have a state of mind. 5. If a drunkenness raised a reasonable doubt as to whether in fact possessed the requisite specific intent, the was entitled to be acquitted even if there was no doubt that the possessed the capacity to form a requisite intent. a. J must be satisfied that the effect of the intoxication was such that its effect might have impaired the accuseds foresight of consequences sufficiently to raise a reasonable doubt. b. J then instructs jury that the issue before them is whether the Crown has satisfied, Beyond a Reasonable Doubt that had the requisite intent (e.g. for murder the issue is whether intended to kill or cause bodily harm with the foresight that the likely consequence was death) d. Self Defense i. There are 4 separate but potentially overlapping statutory defence: s 34(1), 34(2), 35 and 37.
Provocation defined in s. 36. ii. S 34(1): Unprovoked 1. When unlawfully assaulted w/o being provoked [Remember: the elements of an assault as
per s 265 must be met for the accused to rely on this sub section]

2. Accused may repel force by using force if the force uses: a. Is not intended to cause death or GBH (even if it results in death/GBH) b. Is no more than necessary to defend himself i. Note: An unlawful assault against accused need not actually occur; it is
sufficient that accused reasonably believed that an assault has occurred (R v Cinous)

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iii. S 34(2): Causing GBH or Death (provoked or unprovoked) 1. When unlawfully assaulted, whether provoked or unprovoked, and , to repel the
assault, intends to cause death or GBH to another

2. is justified in causing death or GBH a. in response to the assault only if: i. causes death or GBH under a reasonable apprehension of his own
death or GBH from the violence with which the original assault was made; and ii. believes, on reasonable, grounds, that there are no alternatives to killing or causing GBH in order to preserve himself b. Note: i. Each of the above element (3 elements) has a subjective and objective component: first, inquire about subjective beliefs of the accused; second, ask whether those perceptions are objectively reasonable ii. Unlike s 34(1) which speaks to the issue of intent, s 34(2) does not. The plain wording of s. 34(2) reveals that the provision is triggered when a person who has been unlawfully assaulted causes death or grievous bodily harm in repelling the assault. By necessary implication, Parliament's silence may be taken to mean that s. 34(2) is meant to apply to accused persons who intend to kill or cause grievous bodily harm, as well as to those who do not have such intent, but who do in fact cause death or grievous bodily harm (Pintar) iv. S 35: (provoked) 1. Applies either where provoked an assault him by another (buts become less important since 34(2) incorporates provoked assaults. justified only if force used: a. Under the reasonable apprehension of death or GBH from the person who he has assaulted/provoked b. In the belief, on reasonably grounds, that its necessary to preserve himself from death or GBH c. declined further conflict and quitted or retreated from it as far as it was feasible to do before the necessity of preserving himself from death or GBH v. s 37: This is used only where other provisions dont apply vi. R v. Pintar: Explains the relationship between ss 34(1) and (2) and the general approach to using the various defences. P started seeing Rs (victims) wife. R made known he wanted to kill P. R enters Ps home, takes swing at P, and P punch and knocked R to floor. After more threats to Ps life, P shot and killed R. Self defense? 1. Issue 1 - The TJ erred in failing to leave the single transaction option to the jury i.e. J broke the action into 3 specific events, but from the illegal entry to the shooting can be viewed as one transaction. The error takes on special significance in respect of s. 34(2) since that provision formed the essence of the appellant's claim to self-defence. 2. Issue 2 - Unlike s 34(1) which speaks to the issue of intent, s 34(2) does not. The plain wording of s. 34(2) reveals that the provision is triggered when a person who has been unlawfully assaulted causes death or grievous bodily harm in repelling the assault. By necessary implication, Parliament's silence may be taken to mean that s. 34(2) is meant to apply to accused persons who intend to kill or cause grievous bodily harm, as well as to those who do not have such intent, but who do in fact cause death or grievous bodily harm 3. Issue 3 - In order for the appellant to succeed on s. 34(2), it was necessary that the jury believe or have a reasonable doubt that at the time of the shootings, the appellant genuinely believed on reasonable grounds, that he was in grave danger from the violence with which Ross and Gill pursued their attack upon him, and that his use of deadly force in response to that attack was necessary.

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vii. R v. Cinous: (Shows how the defence in s 34(2) has subjective and objective elements). C heard that
M and Y wanted to kill him. When met up, M and Y were acting suspicious. While driving, C pulled over to & shot M. C said this was an instinctive reaction to a situation of danger. 1. Elements of the defence: Each of the three elements have both a subjective and objective component. These three elements must be real as perceived by the accused (subjective) and be reasonable (objective). 2. Application: 3. Unlawful assault? Would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances. There is an air of reality to the subjective component of the defence as there is direct evidence on the accuseds beliefs, in the form of the accuseds testimony. 4. Reasonable apprehension of death or GBH? Yes. s testimony is he feared a deadly attack. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Y and M were armed, the rumors of a plan to assassinate him, the suspicious behavior, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger. 5. Reasonable belief of no reasonable alternatives to killing? It must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. There is an air of reality to the accuseds claim that, at the time he shot the victim, he actually believed that he had no alternative. The accuseds extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a mere assertion of the element of the defence. However, the belief that the accused had no other option but to kill must have been objectively reasonable. Here, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives. Conviction upheld. viii. R v. Lavallee: W kills boyfriend after history of abuse. Criminal Provision: s. 34(2) (Self-Defence causing death) Not guilty b/c s. 34(2) self-defence can be retooled to work in the context of BWS. 1. Requirements of SD for accused with Battered Wife Syndrome: a. Existence of an unlawful assault; b. A reasonable apprehension of a risk of death or grievous bodily harm; c. Reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. 2. Definition of what is reasonable must be adapted to the circumstances of a battered woman 3. The killing must occur when there is a Reasonable Apprehension of Death. The temporal requirement that the apprehension of death must be immanent must be relaxed in cases involving battered womans syndrome. 4. Jury must ask: Whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by the batterer that night except by killing him first was reasonable. e. Necessity i. Generally: The defence of necessity permits the conduct of the accused to be excused where its elements are met. The defence is heavily circumscribed. ii. R v. Latimer: D killed 12-year old daughter who had severe cerebral palsy. must establish the existence of 3 elements: 1. Imminent peril or danger: Disaster must be imminent, or harm unavoidable and near it isnt enough that peril is foreseeable or likely, it has to be on the verge of transpiring (e.g., here, didnt face peril, and Ts ongoing pain didnt constitute emergency. Ts proposed surgery did not pose an imminent threat to her life, nor did her medical condition. Wasnt reasonable for to form belief that further surgery amounted to imminent danger.) 2. No reasonable legal alternative to the course of action: Ask, given that the accused had to act, could he nevertheless realistically have acted to avoid peril or prevent harm without breaking the law? (e.g., had at least one reasonable legal alternative to killing daughter: he could have struggled on, by helping T to live & minimizing her pain)

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3. Proportionality between the harm inflicted and the harm avoided (e.g., here, leaving
open the question of whether the proportionality requirement could be met in a homicide situation, the harm inflicted in this case was immeasurably more serious than the pain resulting from Ts operation which the accused sought to avoid.) What standard to employ? For the first 2 of the 3 elements, a modified objective test is employed (i.e. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person, including his ability to perceive the existence of alternative courses of action). Proportionality, must be measured on an objective standard. - Can be invoked: To negate prima facie intent of mens rea, Under S 17 CC for Principals Under common law for Parties S17- limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. Common Law frees duress from the constraints of immediacy and presence. The elements include: 1. A threat to the integrity of the person: The law includes a requirement of proportionality between the threat and the criminal act to be executed. The accused should be expected to put up a normal resistance to the threat. 2. The threat must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. Although the threat need not be immediate, there must be a close temporal connection between the threat and the harm threatened (i.e. the threat had to be a real threat affecting the accused at the time of the offence). 3. Threats need not be made by a person who is at the scene of the crime (no presence requirement) a. A modified objective test is employed: It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person, including his ability to perceive the existence of alternative courses of action R v. Hibbert: S. 17 Duress. H went w/ M at the time M shot F. H punched in the face by M as a way of forcing H to help find F. H helped get M down from his apartment. 1. MR Questioned: The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an offence. 2. RULE: A person who commits a criminal act under threats of death or bodily harm may be able to invoke an excuse based defence (s 17 if Principal, CL if party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea. 3. ANALYSIS: The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress. 4. An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress. Rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent. The question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account (modified objective standard). R v. Ruzic: Scope and constititutionality of the defence of duress. brought cocaine through border. Said man in Belgrade threatened to hurt s mother if didnt bring drugs. Successfully challenged the constitutionality of s. 17 under s. 7 of Charter, raised the common law defence of duress and was acquitted. 1. Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable. The plain meaning of s. 17 is quite

iii.

f. Duress
i.

ii.
iii.

iv.
v.

vi.

vii.

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restrictive in scope. The phrase present when the offence is committed, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. 2. The immediacy and presence requirements, taken together, clearly preclude threats of future harm. While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations. The under inclusiveness of s. 17 infringes s. 7 of the Charter. g. Provocation applies only to Murder. Reduces charge to Manslaughter when elements are met. i. 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. ii. (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. iii. R v. Tran: D killed wife & boyfriend in bed in his former house after surrendering house to her. 1. Ct: Once it is established that the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control, the inquiry turns to a consideration of the subjective element of the defence, which is whether the accused acted in response to the provocation and on the sudden before there was time for his or her passion to cool? 2. Personal circumstances may be relevant to determining whether the accused was in fact provoked -- the subjective element of the defence -- but they do not shift the ordinary person standard to suit the individual accused. Conduct here doesnt amt to insult within s.232, and nothing sudden about it (D suspected wifes relationship.)

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