Criminal Law

MARKED DEPARTURE TEST

R. v. Creighton (1993) SCC
The marked departure test provided a new approach to interpreting objective crimes.  The SCC unanimously accepted Hundal that the test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person.  When objective standards of fault are used for criminal offences, something more than mere negligence is needed – this concept gave birth to the marked departure test – this was used in Finlay and Gossett.  In this case, a reasonable person would have foreseen that a cocaine injection carried the risk of bodily harm.  Creighton added a fourth criterion to three set out in Martineau (stigma, blameworthiness, intentional v. unintentional) for determining the constitutionality of mens rea.  This criterion added the Thin Skull Doctrine - if one engages in criminal behavior they are responsible for any unforeseen results of their actions.  The general rule that there be perfect symmetry between the mens rea and consequences of an offence is ideal but is not a principal of fundamental justice – there can be exceptions – manslaughter caused by an unlawful act is one of them.  This is why it is not unconstitutional that manslaughter only requires the foreseeability of bodily harm that is neither trivial nor transitory rather than the foreseeability of death.  The SCC rejected the use of the personal characteristics of the accused (Lamer’s approach from Tutton) unless those factors go to incapacity or appreciating the risk involved in ones conduct.  An objective fault element of reasonable foresight of non-trivial bodily harm was held not to violate s.7 because the same stigma as murder is not attached.

R. v. Krushel (2000) Ont. CA
Accused was charged with criminal harassment under CC264.1 and contended that there must be symmetry between the mens rea and each consequence of the offence.  This was rejected in Creighton by McLauchlin J.  There need only be a sufficient blameworthy element in the actus reus to which the culpable mental state attaches when it was asserted that foresight of the prohibited consequences of causing actual fear is not required in order to hold the accused responsible for results of his or her unlawful activity.  Therefore, there was no s.7 violation.

R. v. Godin (1994) SCC
Intent was not required respecting those consequences of wounding, maiming or disfiguring.  The fault element was deemed to be objective flowing from DeSousa and Creighton.  This decision has been criticized because it has added the crime of aggravated assault to the uncertain list of predicate offences for which the fault requirement is much reduced.

RAPE AND SEXUAL ASSAULT

In 1983, the crime of rape was replaced by a 3 tier approach to sexual assault:
s.271 – sexual assault
s.272.1 – sexual assault with a weapon
s. 273 – aggravated sexual assault (wounds, maimed)

Clark and Lewis Report (1977)
Determined that there was great need for reform of these laws because only 10% of rapes were reported and the conviction rate was only 52% compared to 82% for other indictable offences.  The purpose of the change was to shift the focus from the sexual nature of the offence to violence.  Before 1983, rape was defined as sexual intercourse (penetration was needed) with a female other than the accused’s wife.  The marital rape provision was lifted in 1983 and the section was made gender neutral.  Many years ago, rape was dealt with through economic compensation to the victim that was fixed based on the severity of the offence.  Also, the prior sexual history of the victim was fair game and the doctrine of recent complaint made it necessary for the complainant to come forward at the first possible opportunity.  Finally, the testimony of complainants had to be corroborated by experts, such as physicians.  Feminists think that women are twice victimized in the process of seeking justice – when they are assaulted and when they are brought before a “patriarchal court system.”  Studies have shown that as many as 40% of complainants have been found to have fabricated sexual assault.  In 1992, Parliament introduced an amendment that codified “no means no” in response to the controversial rape shield ruling of the SCC in Seaboyer (the exclusion of evidence under CC276 of prior sexual history of a complainant violated the accused’s right to make a full answer and defense under s.7 and 11d).  This case was surrounded by media outcry and led to Bill C-49, which enacted provisions to the CC outlining what constitutes consent.  Parliament defined consent for sexual assault as a voluntary agreement of the complainant to engage in the sexual activity in question.  Consent is said not to exist in cases where:
1.    A third party gives the consent
2.    The complainant is incapable of deciding (intoxicated, mentally incapacitated)
3.    Abuse of trust, power or authority
4.    The victim states they don’t want to do it
Bill C-49 also looked at the honest but mistaken belief in consent defense.

R. v. Chase (1987) SCC
This case surveyed the meaning of sexual assault after a young girl complained that her breasts had been touched.  The NBCA said that “sexual” should be taken to mean parts of the body, i.e. genitals.  A broader definition of the term they continued would only lead to absurd results.  In this case, there was no contact with the complainants genitals (contact was restricted to her breasts) which meant that her complaint should have been viewed as a common assault rather than a sexual assault.  The SCC restored the conviction of sexual assault due to the ample evidence that existed – breast grabbing constituted an assault of a sexual nature.  The SCC asserted that the definition of sexual assault should develop on a case by case basis.  The SCC adopted a three stage test:
1.    The test for recognition of sexual assault doesn’t depend solely on contact with specific areas of the body.
2.    Sexual assault is not confined to attacks from a member of one sex to a member of the other.
3.    New offence is truly new and does not merely duplicate the offence it replaces.
Sexual assault is a general intent offence – anything else would hamper the enforcement process (Litchfield – no need to prove specific intent re: the sexual nature of the assault seeing that it forms part of the actus reus).  Looks at whether the attack is one of a sexual nature.

R. v. Currie (1975) Ont. CA
The accused offered a forged cheque and was found guilty on the basis of willful blindness because he failed to make proper inquiries into the cheque that he ought to have made.  He was suspicious of the authenticity of the cheque but cashed it anyway.  The trial judge erred in applying willful blindness.

R. v. Blondin (1971) BCCA
Accused was acquitted of smuggling 23 pounds of drugs into Canada in a Scuba tank and the Crown appealed.  The trial judge erred in instructing the jury that B knew the substance in the tank was cannabis to find him guilty.  He should have instructed the jury that a conviction could flow from a finding of recklessness or willful blindness so long as they could at least draw the inference that he suspected that it might be a narcotic.

R. v. Sandhu (1989) Ont. CA
One pound of heroin was found in the luggage and two ounces in the wallet of the appellant.  He blamed it on a woman in India, despite the fact that his own financial situation would have precluded him from travelling to India or having the amount of cash he did on his person.  The trial judge instructed the jury that they convict on actual knowledge, willful blindness or recklessness without explaining that the first two were virtually the same.

R. v. Duong (1998) Ont. CA
D was charged with being an accessory to murder after the fact.  D knew L was in trouble when he let him stay at his apartment.  D was willfully blind to L’s murders and the trial judge did not err in instructing the jury under this head.

OBJECTIVE CRIMES
Use words such as ought to, reasonable care, good reason, reasonable ground, reasonably expected or reasonable steps.

NEGLIGENCE
Not thinking at all when one ought to have been thinking or thinking in a certain way when one ought to have been thinking differently.  This is controversial and raises the issue as to how to adjust the objective standard so it does not apply to those who cannot reasonably be held responsible for satisfying that standard while not collapsing the objective standard into subjective ones.  The offences that incorporate criminal negligence are found in CC219-222 and 234-236.

The difference between recklessness and negligence is the difference between advertence and inadvertence.

R. v. Tutton and Tutton (1989) SCC
Deeply religious parents of a diabetic five-year old child stopped giving him insulin in favour of relying on faith healing to cure him and he died.  The parents were charged with causing the death of the child by criminal negligence under CC202.1.  The issue was whether an objective or subjective test applies to criminal negligence.  Three judges favoured the subjective test (because they were concerned that use of the objective standard would amount to absolute liability thus threatening s.7 and leading to uncertainty regarding whether individual factors could be considered), 3 judges favoured the objective test, including Lamer, who added in a separate opinion that there has to be a broad allowance to factors peculiar to the accused – such as mental development or education (Creighton rejected Lamer’s approach to individualizing the reasonable person because the test ceases to be objective).  The test to be applied was whether the conduct revealed a marked or significant departure from the standard that could be reasonably expected from a reasonable and prudent person in the circumstances will justify a conviction of criminal negligence.  The application of the objective test should not be made in a vacuum – must look at accused’s circumstances –  the regular (unindividualized) objective standard would be too harsh.

R. v. Pontes (1995)
Court upheld an absolute liability offence because it didn’t threaten the s.7 liberty interest.  S.7 is not violated provided that the mens rea and penalties reflect the particular nature of the crime and its:
1.    Stigma
2.    Punishment is proportionate to blameworthiness
3.    Those who cause harm intentionally are more severely punished than those who cause it unintentionally
There is a growing consensus that there must be more than just simple negligence but rather a marked departure from the reasonable person standard in order to convict.

MANSLAUGHTER

Manslaughter depends on a predicate offence of an unlawful act or criminal negligence coupled with homicide.  It is now settled that an offence that depends on a predicate offence does not render it unconstitutional provided that the predicate offence involves a dangerous act or is not an offence of absolute liability and is not unconstitutional (DeSousa).  Two constants of manslaughter are conduct causing the death of another person and fault short of intention to kill.

R. v. DeSousa (1992) SCC
The appellant was charged with unlawfully causing bodily harm contrary to CC269.  He was involved in a fight and threw a glass bottle that hit the wall.  A piece of the glass injured a bystander.  Because this section raised the possibility of absolute liability and carried a prison term with it – violation of s.7.  This case established that in addition to the actus reus and mens rea associated with an underlying act, all that is needed to support a manslaughter conviction is reasonable foreseeability of the risk of bodily harm.  There must be a marked departure from the reasonable person standard in all circumstances.  It does not require foreseeability of death – it only need be foreseeable that the harm would be more than trivial or transitory – test of objective foresight of bodily harm.  SC found this section of the CC to be fine.

PURPOSE

R. v. Hibbert (1995) SCC
This case surveyed the meaning of “purpose” in the context of CC21.1.b.  Purpose is used in two contexts:
1.    One can speak of an actor doing something “on purpose” as opposed to by accident – purpose is immediate intention. (Intent)
2.    Purpose is also used to indicate the ultimate ends an actor seeks to achieve, which imports the idea of desire into the definition. (Desire)

KNOWLEDGE

Roach states that knowledge is a slightly lower form of subjective mens rea than intent and purpose.  Ignorance of the law is no excuse.  The Dynar case states that there are two parts of knowledge – truth and belief.  Only belief is relevant re: subjective mens rea.

WILFULLY

A requirement that the accused wilfully achieved a prohibited result imposes a high degree of subjective mens rea.  Wilfully means that an act is done deliberately and intentionally.

R. v. Buzzanga and Durocher (1979) Ont. CA
The accused was convicted under CC281.2.2 for willfully promoting hatred against French Canadians.  Two bilingual activists wanted a French-language school in their region.  They made a pamphlet to get a response from the Government, which sought to highlight anti-French sentiment in their region.  They did not wish to promote anti-French hatred or have the intent to do so for this would be to promote hatred against himself.  Willful, in this section, meant intentionally rather than accidentally.  The Ontario CA adopted the “foresight of certainty” test, meaning that it would have to have been shown that the distribution of the document was done for the purpose of promoting hatred against an identifiable group or that hatred was certain or morally certain to result.  For example, one places a bomb on a boat hoping to destroy the cargo but ends up killing passengers is willfully responsible for the deaths – foresight of certainty.

General Rule: A person who foresees that a consequence is certain or substantially certain to result from an act which they do to achieve some purpose intends some consequence; however, the accused should be allowed to raise a reasonable doubt as to whether he or she intended such consequences.

R. v. Docherty (1989) SCC
The accused pleaded guilty to a charge of care and control “over 80.”  He was found sitting in a car apparently in an intoxicated state.  He said that he was unaware that he was breaking the law since he believed that the car would not start.  The trial judge acquitted him on the ground of lack of mens rea for willfully violating his probation order of keeping the peace and behaving well. The trial judge was correct in this finding because D unknowingly violated the terms of his probation, which contravenes CC19 but was saved as an exception to that general principle.  “Where knowledge is itself a component of mens rea, the absence of knowledge provides a good defense.”  How could the accused be convicted when he didn’t know he had violated his probation order.

RECKLESSNESS

Recklessness basically follows that one is aware of a risk but proceeds anyway.  It entails a lower form of mens rea than intent.  Its purpose is to assess willfulness or knowledge.  Recklessness is reached at the point when a reasonable person would recognize the substantial risk of the consequences materializing and the consequence is less than inevitable but more than possible.  This is distinguishable from negligence whereby the only requirement is that a reasonable person in the circumstances would have recognized the risk.

R. v. Theroux (1993) SCC
T was involved in building houses and sold several residences before their completion.  T represented to the purchasers that their deposits were insured, although no such insurance existed.  When the corporation went bankrupt, many purchasers lost their deposits.  T claimed that he believed that the residences would be completed and that the purchasers would not be harmed.  The accused’s belief that his conduct was not wrong or that no-one would be hurt was no defense to a charge of fraud under CC380.1.  He knew he was placing the purchasers’ deposits at risk, even though he believed this risk would not materialize.  This case asked the question: Did the accused, given his shortcomings and strengths, foresee the consequences or circumstances of his actions? (Not whether they reasonably ought, could or should have).

R. v. Sansregret (1985) SCC
This case distinguished the concepts of recklessness and willful blindness.  They should be kept separate because they come from different mental attitudes and lead to different legal results.  Recklessness involves knowledge of a danger or risk and persistence in a course of conduct that creates a risk that the prohibited result will occur.  Willful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.  He would prefer to remain ignorant.  Willful blindness is analogous to knowledge.

FIRST DEGREE MURDER

Both first and second degree murder carry a mandatory life sentence; however, they are distinguished by eligibility for parole.  This is set out in CC231, which states that a first degree murderer, with few exceptions, cannot be released on parole until he has served 25 years.  The second degree murderer is eligible for parole after 10 years.  First degree murder is defined as “planned and deliberate” under CC231.2.  More v. R. (1963) defined “planned” as “arranged beforehand” and “deliberate” as “considered, not impulsive.”

R. v. Smith (1979) Sask. CA
The issue was whether or not there was evidence of planning and deliberation upon which the jury could properly find the appellant guilty of first degree murder.  The accused went with two others to an old farmhouse, which they vandalized.  All three had taken guns with them.  Argument between two of them resulted in one dying (shot five times).  The killing was deliberate but there was no evidence of planning.  Therefore, there were no evidential grounds for the jury being instructed on first degree murder.  On appeal to the SCC, a conviction of second degree murder was substituted.  Reynolds previously established that planning should be viewed in its everyday meaning and only occurs after the intent to murder has been formed.  For planning to exist, there must be proof that the murder was the result of a scheme or design previously formulated by the accused.  A sudden impulse without prior consideration, even though an intent to kill is proven, would not constitute a planned murder under CC231.2.

R. v. Nygaard and Schimmens (1989) SCC
Deceased purchased a stereo from N using a cheque that bounced.  N and S returned to the deceased to collect the money.  Deceased was hit by S with a baseball and died.  The issue focused on what is the specific mens rea required for 212.a.2. for which an element of planning and deliberation must be in place.  The SCC found that a vital element of the requisite intent is causing such bodily harm that the perpetrator knows is likely to cause death and persists in the assault, which is to be linked up with intent.  N and S formed the intent to repeatedly strike the victim on the head with a baseball bat realizing full well that death would probably result.

MURDER OF A POLICE OFFICER

R. v. Munro and Munro (1983) Ont. CA
Under CC 231.4, it is necessary for the Crown to prove that the offender knows that he was shooting at a police officer acting in the course of his duties.  This happened in the basement of a tavern.  The appeal was based on a claim by the accused that the trial judge should not have instructed the jury with respect to the CC provision re: murder of a police officer.  The SCC rejected this appeal on the basis that the accused must have been conscious of the risk that he was firing at a police officer – on the evidence no other conclusion could be made.

R. v. Collins (1990) Ont. CA
A police officer dressed in uniform was killed by the accused in a shopping mall.  The accused then took the officer’s gun.  Evidence from an informant was used to obtain a search warrant of the accused’s premises.  Police found guns there, including the one that was used to kill the officer.  The onus is on the Crown to prove that the accused had knowledge that the victim was a police officer acting in the course of his duties.

CONSTRUCTIVE FIRST DEGREE MURDER

R. v. Arkell (1990) SCC
The accused argued that the classification of first degree murder in CC214.5 of a murder committed in the course of committing or attempting to commit a sexual assault was a classification that violated the accused’s s.7 and 11d rights.  This was dismissed because the requirement of subjective foresight of death was met.  As a result, s.7 was not violated.

DEGREES OF SUBJECTIVE MENS REA

•    Willful Blindness
•    Intent
•    Recklessness
•    Motive

CC 148, 155, 163.2 – Parliament makes it clear what the subjective mens rea are.  Where such words don’t appear, there is a common law presumption in favour of subjective mens rea.

R. v. Lucas (1998) SCC
Cory J states that in the absence of an express legislative provision it should be presumed that proof of subjective mens rea is a requirement of criminal offences – most fair to the accused.  There is no definition of intent in the CC.  Rather, it is construed loosely as purpose, aim and actual desire (no way to come to a definitive definition).

MOTIVE

Lewis v. R. (1979) SCC
Accused appealed a murder conviction on the grounds that the trial judge failed to charge the jury on the question of motive.  An electric kettle rigged with an explosive was sent to the co-accused’s daughter, which resulted in murder.  No evidence was lead by the Crown regarding motive and the accused claimed that he was innocently duped by the co-accused into sending the package.  The SCC dismissed the appeal because motive is not part of the requisite mens rea that the Crown had to prove for murder.  The words “intent” and “motive” are frequently used interchangeably, but in the criminal law they are distinct.  The Mens Rea usually relates to intent.  INTENT – the exercise of free will to use particular means to produce a particular result.  MOTIVE – that which precedes and induces the exercise of free will.

FAULT FOR CRIMES

MURDER

It is a fundamental principle of our legal tradition that those who cause harm intentionally should be subject to greater punishment.  This is clear in cases of murder where subjective foresight of death is required before one can be labled a murderer.  As established in Creighton, the stigma or blameworthiness attached to certain crimes requires a higher mens rea.  Unlike most regulatory offences, crimes that require subjective mens rea are found to almost always violate s.7 and are not saved under s.1.     Post-Charter, Canada has a very expansive definition of murder.

Under CC229a.1.2, culpable (blameworthy) homicide is murder when a person means to cause death (intent) or causes bodily harm that he knows is likely to cause death and is reckless whether death ensues or not.  This requires the accused to have actual subjective foresight of the likelihood of causing death, coupled with the intention to cause that death – the most morally blameworthy state of mind in our system.

Simpson v. R. (1981) Ont. CA
The standard for murder is always subjective, never objective.

Vaillancourt and Martineau SCC:
Due to the stigma and the mandatory life sentence for murder, the onus is on the Crown to prove that the accused intended to cause death or knew that it was likely to occur beyond a reasonable doubt.  In these cases, the SCC struck down the constructive murder provisions that allowed an accused committing some other serious offence (robbery, sexual assault, escape and other, which includes arson, kidnapping, etc.) to be convicted of murder regardless of whether or not that person meant to cause death and whether or not they knew death was likely to occur.

Vaillancourt v. R. (1987) (SCC)
The appellant and another had intended to rob a pool hall armed with knives; however, the accomplice brought a gun with him which the appellant insisted was unloaded.  The accomplice took out three bullets and gave them to the appellant.  On the assumption that the gun was unloaded, the appellant proceeded with the robbery.  When the accomplice struggled with a patron at the hall, he discharged the gun and the patron was killed.  The appellant was charged and convicted of second degree murder.  He appealed on the basis that CC213.d and 21 combined violated his Charter rights under s.7 and 11d.  His appeal was successful because any combination of strict liability and deprivation of life, liberty or security of the person violates s.7 and is not saved under s.1.  If Parliament wishes to deter the use or carrying of weapons, it should punish the use or carrying of weapons.  There must be some special mental element with respect to death before a culpable homicide can be treated as murder – proof beyond a reasonable doubt of subjective foresight.  In addition, Lamer found a violation of s.11d.  An accused cannot be found guilty of murder absent proof beyond a reasonable doubt of that element.  Conviction with absence of proof beyond a reasonable doubt infringes s.7 and 11d.

Acid Test: Would it be possible for a conviction of murder to occur under s.213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to occur?  If Yes – violation of s. 7 and 11d.

R. v. Martineau (1990) SCC
Accused and cohort robbed deceased.  Cohort brought rifle along and accused brought a pellet gun.  Cohort killed two occupants of a mobile home.  Accused had no intention to kill the victims.  Court of Appeal said the constructive murder provisions violate s.7 and 11d and are not saved by s.1.  The appeal was dismissed and the conviction quashed because the stigma attached to murder requires that the accused be shown to have guilty knowledge reflecting the particular nature of the crime.  The effect of 213 was to violate the principle of proportionality between the moral blameworthiness of the offender and the punishment meted out to him.  A conviction of murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death.  Therefore the objective component of CC229.c could not be saved under s.1.

Meiler (1999) Ont. CA (ignores the above ruling of the SCC re: constructive murder)
Accused carried a loaded gun with the intention of killing a particular person but in a struggle the gun discharged and accidentally killed another person.  This case has been criticized for resurrecting the unconstitutional CC229.c (constructive murder).  This decision was criticized on grounds that CC229.c should be limited to a person who has subjective awareness of likelihood of the victim’s death.

SCC has been clear that the subjective requirement of foresight is only to be used in association with some offences (those that carry stigma), not everywhere as Lamer suggests.  Murder, attempted murder and war crimes are the only CC crimes that require subjective fault.

Beaver v. R. (1957) SCC
This is the leading case for mens rea re: drug offences.  The accused believed he was selling sugar, not heroin.  The SCC found him Beaver to be possession, which substantiates the notion that there is no possession without knowledge of the character of the forbidden substance.

R. v. Pierce Fisheries Ltd. (1969) Nova Scotia CA
PFL was charged with fishing undersized lobsters in contravention of the Fisheries Act.  The issue focused on whether the crime was one of absolute liability in view of the lack of an express mens rea.  This case involved no stigma.

R. v. Hickey (1976) Ont. CA
In defending himself, a truck driver by claiming an honest but mistaken belief that he did not exceed the speed limit.  The CA found that this was a crime of absolute liability under which reasonable mistake of fact is not a defense.

R. v. Sault Ste. Marie (1978) SCC
SSM was charged with discharging materials that impaired the water quality.  The actual polluting had been conducted by a Cherokee Disposal Company, which was hired by SSM to do the dumping.  A municipality cannot slough off responsibility by contracting out because it is in a position to control who it hires through contract provisions or municipal bylaws.  The recognition of public welfare offences brought a shift in focus from that of the individual interests to those of protecting public/societal interests.  The court drew the distinction between what are truly criminal and regulatory offences.  There were compelling grounds for the recognition of three categories of offences rather than the traditional two of absolute and strict liability.  The three were:
1.    Mens Rea Offences - Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, had to be proved by the Crown through inferences from the act committed or additional evidence.  Criminal in the true sense.
2.    Strict Liability Offences - Strict liability offences in which there was no necessity for the prosecution to prove the existence of mens rea, the doing of the prohibited act prima facie importing the offence and leaving it open to the accused to avert liability by proving that he still took reasonable care.  This was the new category created in SSM in which public welfare offences, in the absence of the magic words of criminal liability, fall.  Due diligence defense applies in this context.
3.    Absolute Liability Offences - Offences of absolute liability exist where it was not open to the accused to exculpate himself by showing that he was free of guilt.  This is viewed as the most efficient way to ensure compliance with minor regulatory legislation and the benefits achieved through them are said to outweigh the by-product of punishing those who may be morally innocent.
When the fault element is negligence, the accused must prove that he took all reasonable care and due diligence to avoid liability.

R. v. Chapin (1979) SCC
Mrs. Chapin was arrested by a conservation officer for baiting waterfowl with grain for the purposes of shooting them in contravention of the Migratory Game Birds Act.  It was not a mens rea offence (i.e. a crime in its true sense).  The SCC determined this was a case of strict liability rather than absolute liability because the accused was permitted to absolve herself of responsibility by showing she took the care a reasonable person in the circumstances.  If this was post-Charter, it could not have been an absolute liability offence because the legislation included a sentence that gives rise to the possibility of a deprivation of liberty contrary to s.7 of the Charter.

Motor Vehicle Reference (1986) SCC
This case dealt with the issue of mens rea and absolute liability offences.  The SCC found that a law enacting an absolute liability offence violates s.7 of the Charter – only if and to the extent that it has the potential of taking away the liberty of the accused.  This could only be saved if it were justified under s.1.  Lamer made it clear that few instances would garner s.1 acceptance.  Among these were natural disasters, the outbreak of war or administrative expedience.  The SCC considered.  The SCC determined that absolute liability offences are more palatable in relation to corporations regarding the environment and other sensitive areas.  The only defenses that might apply to absolute liability relate to incapacity or automatism.

R. v. Wholesale Travel Group (1991) SCC
WTG was charged with false advertising under the federal Competition Act.  It offered vacations at “wholesale prices” that were marked up from wholesale.  The accused claimed that the subjective standard should apply due to the stigma that would flow from a conviction; however, the SCC found that the stigma for misleading advertising is not the same as, for example, theft in Vaillancourt.  Such a conviction regarding false advertising would only carry the stigma of carelessness.  Court found that negligence was sufficient and that it would be up to Parl. to decide whether a higher fault element is necessary.  The reverse onus (accused having the persuasive burden to discharge) for proving a due diligence defense in regulatory offences was deemed constitutional.  In dissent, Lamer thought the reverse onus was unconstitutional.  Iacobucci J. found that the reverse onus provision violated s.11d but was saved under s.1.  Cory J. found no violation of s.11d.  The justification of the reverse onus in this case rests on the characterization of the offence as regulatory.

Summary: Regulatory Offences
1.    Express Fault Requirements – Crown must prove fault
2.    Strict Liability – Crown proves act.  Accused must prove due diligence
3.    Absolute Liability – Crown proves act

R. v. Creighton
The accused and deceased were drinking together and the deceased consented to the accused injecting her with cocaine.  He put her on the bed, came back 7 hours later, then called 911.  There is a good quote from this case regarding the requirements for s.7 of the Charter.
1.    The proper interpretation of CC222.5.a (unlawful act of manslaughter) requires the Crown to prove that the accused had committed an unlawful act which caused the death of the deceased;
2.    The unlawful act must be one that is objectively dangerous (reasonable person standard;
3.    That the fault requirement of the predicate offence extend to offences of absolute liability was in existence;
4.    That a reasonable person in the position of the accused would foresee that the unlawful act would give rise to harm.

R. v. Cribbin (1994) Ont. CA
The accused had dished out a preliminary beating on the deceased, which was followed up by a much more severe one from his friend.  The deceased drowned in his own blood and the accused was found guilty of manslaughter.  Arbour J. found that the law should not hold people criminally responsible for things that cannot be attributed to them.  The Ont. CA dismissed the claim that the de minimus test in Smithers was too broad and too vague.  Any risk that the de minimus could engage criminal responsibility of the morally innocent was removed by the additional fault requirement of objective foresight of bodily harm required for the unlawful act of manslaughter.  The CA found that the de minimus causation test and the thin skull rule are both consistent with the principles of fundamental justice.   Criminal causation is a legal rule based on the concept of moral responsibility rather than mechanical scientific formulas.  One can be convicted of manslaughter for playing more than a minimal role in death, even if death was not reasonably foreseeable.

R. v. Harbottle (1993) SCC
The accused held the victim’s legs to prevent her from kicking and struggling while his friend strangled her.  Was the accused’s participation such that he could be found guilty of first degree murder under CC214.5.  Murder in the first degree requires that the actions of the accused must form a substantial, essential and integral part of killing the victim.  The substantial causation test requires the accused to play an active, usually physical role in the killing.  The court rejected an even more stringent causation test that would require the Crown to show that the accused’s acts were a physical cause of death because it would lead to impractical and non-purposive distinctions.

R. v. Smith (1959)
A fight between two soldiers led to a stabbing that caused a pierced lung and hemorrhaging, which resulted in death.  The death occurred after the victim was brought to the medical station, having been dropped over fences numerous times.  Upon arrival, the medical staff ignored him.  If he had been treated immediately, his chances of recovery would have been 75%.  It was held that the death resulted from the original wounds, thus making the accused responsible for murder.

Factual and Imputable Causes
The most common test for factual cause is the but for test – has there been proof beyond a reasonable doubt that the consequences wouldn’t have followed but for the act of the accused.  If yes, the accused’s act was a factual cause of the consequences.  For example, in Johnson the accused hit the deceased on the head with a rifle 11 days before death; however, the deceased had sustained other hits to the head during this 11 day period.  Therefore, the Crown could not satisfy the but for test.  Imputable cause is descriptive of the true nature of the inquiry that arises after the but for test, which sifts out cases with no preliminary proof of factual causation.

THE FAULT REQUIREMENT (MENS REA OR NEGLIGENCE)

Mens Rea – subjective test
This often refers to words like intent, recklessness, willful blindness or knowledge.  It focuses on the mental state of the accused and requires proof of a positive state of mind.

Negligence – objective test
In determining this, no individual factors can be taken into account except for issues of mental incapacity.  Given this, there is no need to answer for the intent of the accused.  This test looks at what the accused ought to have known by measuring the conduct of the accused against the expected conduct of the reasonable person.

MENS REA
Mens rea is the fundamental concept in criminal law that one cannot be held criminally liable if there was no guilty mind directing the impugned act or omission; however, there is no single mens rea definition that covers every crime in existence.  Instead, words like intent or willful appear in the CC.  The mental element is to vary with the different nature of different crimes.  The mens rea tends to be concerned with the consequences of the prohibited acts reus.  The fault jurisprudence is a mix of common law and statutory standards.  In addition, there is a constitutional requirement for fault for anything that effects or threatens the Charter liberty interest.  The largest debate regarding fault is whether the approach should be subjective or objective.  Subjective fault requires the Crown to establish that the accused subjectively had the guilty knowledge (operates to prevent the conviction of an accused that lacks the knowledge and foresight that a reasonable person would have.  Objective fault requires only that a reasonable person in the accused’s position would have had the required guilty knowledge or would have acted differently.  Common law presumptions of mens rea (Sault Ste. Marie) require that Parl. clearly state when it does not desire subjective mens rea when enacting an offense.

Rodriguez v. British Columbia (SCC) (1993):
Rodriguez suffered from ALS and wanted assistance in committing suicide if she couldn’t do it herself when the time came.  CC241.b prohibited assisted suicide and imposed a 14-year sentence.  She wanted to control the circumstances, timing and manner of her death.  The SCC found that the Criminal Code provision did infringe upon her right to security but it was not contrary to the principals of fundamental justice.  This decision was based on the notion that human life must be respected.  The SCC also found that her s.15 rights were infringed but were justified under s.1.

VOLUNTARINESS:
Judicial reasoning follows that there is no criminal liability for involuntary acts.  For example, a finding of automatism can result in a finding of no actus reus or mens rea.  The SCC has built a voluntariness requirement into the actus reus and has developed significant jurisprudence in the area of automatism and related issues.  Rabey defines automatism as “unconscious, involuntary behavior, the state of a person who, though capable of action, is not conscious of what he is doing.”  In Parks, La Forest defines automatism as occupying a unique place in our criminal law system…”although spoken as a defense, it is conceptually a subset of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability.”  Not all offences require mens rea.  Some require a reduced element of fault, while others, such as regulatory offences, maintain no elements of fault.  The danger inherent in using the term “automatism” is that it is a legal term that carries with it medical connotations.  This was seen in Stone, in which voluntariness becomes blurred with the defense of insanity.  In cases involving an epileptic seizure or spasm, volition is not present.

HLA Hart “Acts of Wills and Responsibility”
“Involuntary conduct involves a defect much more basic than a mere lack of awareness of circumstances or consequences involving an inability to control actions.”  This approach has not been accepted because it would threaten to widen the exemption afforded in present law.

CAUSATION:
Most CC offences require that the actus reus must cause certain consequences.  The CC contains no special principles regarding causation.  Proximate cause is a search for the conditions immediately antecedent to and cocomitant with the effect.  There is a distinction at law between proximate and remote causes.  The Crown will be required to prove both factual and legal causation beyond reasonable doubt.  Canadian criminal law takes an unstrict approach to causation and allows a person to be held liable for causing consequences – even if those consequences are caused in part by the victims peculiar and perhaps unforeseeable vulnerabilities.

R. v. Michael (1840) Eng.
A woman was charged with the willful murder of her son after she gave a bottle of deadly poison to the child’s nanny with the intention that she should administer it to the child.  The nanny was simply an “unconscious agent” and the mother was the imputed murderer of the child.

Smithers v. R (1978) SCC
This case involved a rough hockey game that culminated in the ejection of the accused and deceased.  The accused made threats that he was going to get the deceased.  After the game, the accused approached the deceased, punched him, then kicked him hard in the stomach, causing the deceased to gasp for air and die.  The act was unlawful, self defense did not apply and the issue was whether the accused caused the death.  The issue of causation is for the jury, not the experts or the judge.  A malfunctioning epiglottis in part caused the death; however, the thin skull doctrine applies in the criminal context too.  The kick was “at least a contributing cause of death outside the de minimus range.”  Three important determinations derived from this decision:
1.    The factual determination of causation is to be made by the trier of fact by considering all evidence, both expert and lay;
2.    The accused’s act need merely be a contributing cause outside the de minimus range;
3.    A well recognized principal in tort – one who assaults another must take the victim as they are found…thin skull.

R. v. Blaue (1975) CA
The accused entered the deceased’s house and asked for sex.  She refused.  He stabbed her four times, once piercing her lung.  She lost much blood but refused to undergo a blood transfusion at the hospital due to her faith as a Jehovah’s Witness.  She would not have died had she taken the blood.  The accused argued that he didn’t cause the victim’s death.  Rather, he claimed that her death resulted from her refusal to take the transfusion.

R. v. F.(D.L.) (1989) Alta. CA
The accused was charged with dangerous driving under CC249.1, which resulted in injury to a pedestrian.  At trial, the judge found that it was the accused’s failure to see the jaywalker rather than the dangerous driving that caused the injury.  Under this section, the driving must demonstrably influence the actual injury accident beyond serving as its backdrop.  The distinction would not be a real issue in the majority of prosecutions but in cases involving parallel or competing causes of an injury accident, one of which may be quite external to the conduct of the accused, it can arise.  The offence was proven based on the fact that the driver should have seen the complainant.  McClung saw the Smithers test as too lax and comes to the conclusion that the impugned cause must be real and truly contributing to the injury.

Duty
R. v. Miller (1983) HL
The accused was drunk and fell asleep with a cigarette in his hand.  He awoke to smoke from his mattress, which had been set ablaze by the cigarette.  Instead of extinguishing the fire, he simply moved to another room and continued to sleep.  The fire spread and his house was destroyed.  This was viewed as one continuous act.  Lord Diplock concluded that the accused should be held responsible for an omission to act where it was held that there was a duty to act.  This case extended the common law duty to act.

Duty
Moore v. R. (1979) SCC
Moore was charged with obstructing a peace officer in the performance of his duty by failing to stop for him under CC129.  Under s.58 of the Motor Vehicle Act, there is a statutory duty to stop a motor vehicle for a police officer when requested or to state one’s name and address correctly for the officer.  The majority sided with the officer and found that Moore was under a duty to provide information and the officer was under a duty to collect it; however, in dissent, Dickson J. wrote there is no common law duty to identify oneself to police and no statutory duty existed because a bicycle is not a motor vehicle.

Duty
R. v. Thornton (1991) Ont. CA
The accused donated blood to the Red Cross with full knowledge that he was HIV positive and was charged under CC180 for committing a common nuisance, which follows that commits a common nuisance when they fail to discharge a legal duty and thereby endanger others.  The trial judge found a duty within CC216, which states that everyone who undertakes to administer medical treatment…does so under a legal duty to use reasonable knowledge, skill and care in so doing.  The trial judge found that the accused, given the context, was involved in a medical procedure.  Thornton’s appeal was dismissed because the court found a common law duty to refrain from conduct which one foresees could cause serious harm to another.

Duty
R. v. Thornton (1993) SCC
The SCC dismissed Thornton’s appeal as well on the basis that CC216 imposed upon the accused a duty of care in giving blood, which was breached by his failure in disclosing his HIV status.  The court read CC216 literally and, in so doing, established a new wider measure for responsibility for omissions.  The court never addressed CC9.  This common nuisance endangered the life, safety and health of the public and the accused was therefore properly convicted of committing a common nuisance.

R. v. Browne (1997) Ont. CA
The accused and deceased were partners in drug dealing.  The deceased swallowed a bag of cocaine to avoid police detection during a strip search, failed to vomit it up and later died of an overdose.  At trial, the judge found that the accused was guilty of criminal negligence involving death under CC219 by failing to discharge a legal duty, which derived from his undertaking to save her life.  On appeal, the court found that the trial judge had erred in law in finding a legal duty under CC217.  Merely saying “I’ll take you to the hospital” did not constitute an undertaking creating a legal duty under CC217 and there was no evidence that taking her to the hospital by taxi instead of calling 911 resulted in a significantly slower arrival.

People v. Beardsley (1907) Mich. SC
A drunken man was said at trial to owe his girlfriend, a morphine addict, a legal duty, the omission of which involved criminal liability.  This court determined otherwise and concluded that no such legal duty is created based upon a mere moral obligation.

Fundamental Justice
Fundamental justice, a crucial element of s.7, is a qualifier rather than a distinct protected interest.  R. v. Whyte (1999) SCC, established the test for a violation of s.7.
1.    Has the applicant suffered a real or imminent deprivation of life, liberty and security of the person or a combination of these interests?
2.    Is the deprivation serious enough to attract Charter scrutiny?  At this stage, the principles of fundamental justice must be defined.
3.    Is the deprivation in accordance with the principles of fundamental justice?
If a breach of the principles of fundamental justice occurs, then it is necessary to look at whether it is justified under s.1; however, the SCC has made it clear in the past that anything that breaches s.7 is probably not justifiable.

Reference Re Section 94(2) of the Motor Vehicle Act (BC) (SCC) (1985):
Under this legislation, it was an offence, punishable by fine and imprisonment, to drive while suspended.  This was an absolute liability offence, which meant did not consider whether the driver was aware of the suspension.  The concept of absolute liability, to the extent that it had the potential of depriving life, liberty and security of the person, offended s.7.  This limit was not justified under s.1 because the benefit of punishing bad drivers did not outweigh the risk of imprisoning innocent people.  This legislation offended the principles of fundamental justice and would bring the administration of justice into disrepute.

R v. Morgentaler (SCC) (1988):
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person.  The regime put in place by the Criminal Code was inconsistent with the aspirations of women and, in some circumstances, posed a direct threat to their health.  CC251 caused a delay in the procurement of an abortion, or made an abortion completely inaccessible, which caused severe stress to those affected and represented a major interference with a woman’s body.  Imposing state control on a woman’s capacity to reproduce also constituted a violation of security of the person.

R. v. Terrence (1983) SCC
This case involved a stolen car.  Terrence was invited to go for a ride in the car, which he thought belonged to the brother and law of the person who had stolen the car.  During the ride, they were chased by the OPP and Terrence jumped out of the car and attempted to flee.  Terrence was charged with constructive possession of a stolen vehicle under CC3.4.b.  The SCC found that an important element of possession under this CC section is a measure of control, which an unwitting passenger would not have.

Re Chambers and the Queen (1985) Ont. CA
Boyfriend was staying a girlfriend’s apartment where drugs were found.  The occupancy of the room by the girlfriend was not necessarily evidence of possession.  CC3.4 states that “where one of to or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody or possession of each and all of them.”  Consent in the meaning of this section requires a measure of control.  She was found guilty because she had the power to either consent or withhold her consent to her room being used to store cocaine and had knowledge of her boyfriend’s use of her room.

Consent
R. v. Jobidon (1991) SCC
A bar room fight culminated in the death of one party, after Jobidon delivered a flurry of blows to the head of the then unconscious victim.  The accused was charged under CC265, which states that “a person commits an assault when without the consent of another person, he applies force intentionally to that other person.”  The trial judge found that both parties had consented to a fair fight, no intention to kill or cause serious bodily harm existed and the accused did not intentionally exceed the consent he was given because the final blows were struck under the reasonable but mistaken belief that the victim was still capable of returning to the fight.  Gonthier J. found that under CC14, no-one can consent to death and that the common law has always recognized limits on consent to assault.  In the Attorney Generals Reference (1980) Eng CA, it was found that “consent is no answer to a charge of assault when serious hurt or non-trivial harm is intended or caused.”  The SCC found that public policy supports this position and that it has the jurisdiction to impose policy based limits on the defense of consent.  Why?  Although CC9 states that all criminal defenses are defined in the CC, CC8.3 states that common law defenses have been preserved.  The SCC determined that “where adults intentionally apply force that causes serious harm or non-trivial bodily harm to each other in the course of a fist fight or brawl, consent is vitiated.”  Canadian courts have been divided on the issue of fights.  Man., NS, Ont. and Sask. are all of the view that consent to intentionally inflicted harm in a fight nullifies consent, while NB and Alta. support the opposite view.  Sopinka J. dissented on the basis that there is no evidence in the clear language of CC265 that Parliament intended to eliminate consensual fights.  Therefore, the majority had, in effect, created an offence, thus intruding in the affairs of Parliament.  Exceptions to the application of Jobidon include that the common law rules don’t effect freely given consent to rough sporting, as long as the application of force is within the rules of the game (important social value) and don’t apply to regular schoolyard scuffles.

Vitiation of Consent by Fraud
Bolduc and Bird v. R. (1967) SCC
Bolduc was a doctor and allowed Bird, a nightclub musician, to enter the examination room with him, posing as a medical intern.  Bolduc first obtained the consent of the lady they would be examining by intimating to her that Bird was a medical intern.  At no time did Bird touch the patient.  Her consent was indeed vitiated by the fraudulent manner in which it was obtained.  Hall J. found that the actions of the parties did not amount to indecent assault under CC141.1 because she got the medical treatment that she had expected all along.  Bird was a “peeping tom” but this act was not prohibited under the CC because this section focused on loitering rather than peeping.  Fraud was not to the nature and quality of the act but rather to the identity of the medical intern.  It is a matter of common sense that consent obtained via fraudulent means is vitiated.

Vitiation of Consent by Fraud
R. v. Currier (1998) SCC
Currier was HIV positive and advised to use condoms when engaging in sexual activity and to inform all prospective sexual partners of his condition.  He didn’t listen and engaged in consensual unprotected sex with the complainant, who claimed that she would not have consented had she been informed.  Cory J. found that fraud can include non-disclosure of important facts.  In this context, without disclosure there is no true consent.  The common law recognizes that deception as to sexually transmitted disease carrying a high risk of infection, constituted fraud vitiating consent to sexual intercourse.  In this case, consent was vitiated because it related to the nature of the act and identity of the partner.  The laws must change to adapt to the changing moraes of society.

OMISSIONS
There is a principle at common law that criminal responsibility for omissions is limited to cases where there is a legal, not merely a moral duty to act.  The Good Samaritan illustrates the moral principle.  Some statutes impose a duty to act and courts often expect people to take reasonable steps to undo potential harms caused by their own actions.  The French Penal Code and the Quebec Civil Code both impose a moral duty to help someone in need.  An omission or failure to act will generally only form the actus reus of a criminal offence when an individual has a specific legal duty to act.

Fagan v. Commissioner of Metropolitan Police (1968) Eng. CA
The driver of a car accidentally parked his vehicle on top of the foot of a policeman and left it there.  The wheel coming to rest on the foot of the officer happened without there being a mens rea and there was no act thereafter that could be considered an actus reus.  Fagan’s omission in not removing the car as quickly as requested did not constitute an assault; however, he knowingly allowed the vehicle to remain on the officer’s foot for awhile, which was sufficient to constitute the continuing actus reus of the assault. It was defined as one long continuous act that, at some point, involved the actus reus and mens rea.