Criminal Law Exam Notes (Canada) 2023 PDF

Criminal Law Examination Study Notes (for personal use) Canadian Criminal Law Study Notes Disclaimers These notes are based on the updated NCA syllabus, revised for 2022. These notes have been compiled utilizing a variety of sources (prescribed textbooks, online legal websites – CanLII and Lexum, case law, scholarly articles, wiki, etc.). You are expected to purchase a copy of the suggested text as per the NCA recommendation and to cross- reference. Practice due diligence. Hours have been spent editing and reviewing the notes to ensure accuracy. Nonetheless, human error is always possible. As such, if a mistake or spelling error is found, please inform me immediately so that the appropriate adjustment(s) can be made. The information herein does not constitute legal or other professional advice. You have purchased notes for your personal use only (personal non-commercial use). They are to be utilized solely to prepare and study for the NCA examinations. The study notes herein are not to leave your possession under any circumstances and are not to be shared or distributed in any fashion or form. The study notes are not intended to replace your own studying. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 0 Criminal Law Examination Study Notes (for personal use) Table of Contents GENERAL OVERVIEW AND PRELIMINARY MATTERS……………….……….……………..2 1. The Sources of Criminal Law……………….…….………..……………………………..2 2. The Power to Create Criminal Offences and Rules of Criminal Procedure……………....3 3. The Procedural Classification of Offences………….……….………..…………………..6 4. Interpreting Criminal Provisions……………….……….………………………………....7 THE ELEMENTS OF A CRIMINAL OFFENCE………………………….……….………………12 5. The Actus Reus...……………………….………..……….……………….………….….12 6. Subjective Mens Rea...……….……………….……………………….…….………..….19 7. Objective Mens Rea....……….………………………...…………….……………….….29 8. Regulatory Offences…….…………………………...…………….…………...…….…..32 EXTENTIONS OF CRIMINAL LIABILITY………………………………………………………36 9. Aiding and Abetting.…………………………...…………….…………...……………...36 10. Counselling.…………………………...…………….…………...……………………...43 11. Attempts.…………………………...…………….…………...………………………...44 12. Corporate and Association Liability.…………………………...…………….…………47 SELECT CRIMINAL DEFENCES.………...…………….………………………………………...50 13. Mental Disorder…………………………………………………………………………50 14. Automatism and Involuntary Acts “Negativing” the Actus Reus………………………52 15. Simple Intoxication and Specific Intent Crimes.…………………………...…………...59 16. Extreme Intoxication and General Intent Crimes.…………………………...………….62 17. Defence of the Person.…………………………...……………………………………...67 18. Necessity.…………………………...…………………………………………………...71 19. Duress.…………………………...……………………………………………………...72 20. Provocation.…………………………...………………………………………………...74 21. Entrapment.…………………………...………………………………………………...77 22. Error of Law…………………………………………………………………………….80 THE ADVERSARIAL PROCEEDING……………………………………………………………..83 23. The Adversarial Process………………………………………………………………...83 GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION……………………………….101 24. Police Powers…………………………………………………………………………...101 GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED……………………..120 25. Securing Jurisdiction over the Accused and Interim Release…………………………..120 GETTING READY FOR TRIAL…….…………………………...…………….…………….….....134 26. Disclosure and Production.…………………………...…………….………….……….134 27. Preliminary Inquiries.…………………………...…………….………….…………….141 28. The Jury Trial.…………………………...…………….………….…………………....144 29. Pre-Trial Motions………………………...…………….………….……………….…..150 30. Trial Within a Reasonable Time Applications…………...…………….………….…...151 SENTENCING………………………...…………….………….……………….…………………154 31. General Principles of Sentencing………………………...…………….………….…..154 APPEALS AND REVIEW…….…………………………...…………….…………….…………..163 32. Appeals of Final Decisions and Judicial Review of Interim Decisions……………….163 NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 1 Criminal Law Examination Study Notes (for personal use) GENERAL OVERVIEW AND PRELIMINARY MATTERS 1. The Sources of Criminal Law The Constitution If you have already completed the Canadian Constitutional NCA Exam, you may recall the division of powers between federal and provincial governments. Parliament (federal level of government) is, by virtue of section 91(27), authorized to create criminal law legislation. As per R v Lloyd, 2016 SCC 13, McLachlin CJ at para 1: In Canada, Parliament has the sole power to enact criminal prohibitions and determine their punishments. Nonetheless, the provinces can, in relation to issues that involve investigation and prosecution of criminal offences, administer criminal law. o Specifically, section 92(14) enables provinces to make laws in regard to “the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both civil and criminal jurisdiction, and including procedure in civil matters in courts”. The Common Law The Criminal Code prevents the common law from establishing criminal offences, as per section 9: Criminal offences to be under law of Canada 9. Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 (a) of an offence at common law, (b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or I of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada, but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court. Nonetheless, Section 8 of the Criminal Code states the following: o 8. Application of criminal law of England (2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the provinces except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada (R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138). Consequently, common law defences have a role in Canadian Criminal Law (Levis (City v Tetrault 2006 SCC 12 per Lebel J). [Defences will be addressed later in the notes]. o A common law defence is duress, which exists both in statute under s. 17 of the Criminal Code AND under the common law. o Gerry Ferguson in Common Law Defences, at page 2: “Section 8(3) has been relied upon in Canada for uncodified defences such as intoxication, automatism, mistake of fact, officially induced error, necessity, entrapment, de minimus, due diligence for strict liability offences, and the common law defence of duress for parties to an offence other than the principal offender”. Frey v Fedoruk S.C.R. 517 This case considered whether being a “peeping tom” was a crime. Justice John Robert Cartwright stated: “peeping was not otherwise criminal and not falling within any category of offences defined by the Criminal Law”. Thus, Parliament didn’t define peeping as a crime. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 2 Criminal Law Examination Study Notes (for personal use) Cartwright further stated that acknowledging it as criminal (at the time) could cause many other actions that were legal to become criminal in nature. This would lead to the law becoming less clear and “arbitrary”. Citizens must know what the law is (the rules should be clearly articulated and defined). Cartwright: “I think that if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and NOT by the Courts”. R v Jobidon 2 S.C.R. 714 This case deals with consent when in a fight (i.e. fist fight). Jobidon claimed that the codified offence of assault was not applicable due to the fact that both the parties to the fight consented to engaging in the fight. The court held that assault has to be interpreted with the common law in mind. Before the amendment in the criminal code, the offence of assault was codified as per the common law. Consequently, “it was to be coloured by common law limitations on the element of consent in assault. It was a principle of common law that it would be against public policy to allow fighting with intent to cause bodily harm to be legal”. Ratio: A person CANNOT consent to death, or to violent force that is not reasonable conduct (i.e. unreasonable) in the circumstances. Criminal Legislation Parliament (federal) creates all criminal offences via statutes (statute of Parliament). Most of the criminal offences can be found in the Canadian Criminal Code. However, this is not the sole statutory source wherein criminal offences can be found. The Controlled Drugs and Substances Act and several other statutes also contain criminal offences. o Controlled Drugs and Substances Act – I.e. Part I: Offences and Punishment, Particular Offences, Possession of Substance: 4(1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, or III. 2. The Power to Create Criminal Offences and Rules of Criminal Procedure a) Constitutional Division of Powers o Once again, if you have taken the Canadian Constitutional NCA Examination, you should be familiar with the division of powers. o In Canada, the criminal law is under the exclusive legislative jurisdiction of the Parliament of Canada. This power is derived, as mentioned above, from the Constitution, specifically, section 91(27). o The provinces and territories, however, do have authority to prosecute crimes in the name of the “Queen in Right of Canada”. o A person can be criminally prosecuted for any crime defined and specified in the Criminal Code or any other federal statute. o Moreover, as discussed earlier, the provinces do have authority to administer justice within the province by virtue of section 92(14) of the Constitution Act, 1867: 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. o This provision authorizes provincial policing and prosecution of offences under Criminal Code. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 3 Criminal Law Examination Study Notes (for personal use) o The establishment of courts of criminal jurisdiction is expressly included in provincial power by s. 92(14) and is expressly excluded from federal power by s. 91(27). o Criminal trials accordingly take place in provincial courts. o But rules of procedure and evidence in a criminal trial are federal: “procedure in criminal matters” is expressly included in federal power by s. 92(17). o This jurisdiction over correctional institutions is divided between the two levels of government. o Under s. 91(28), the federal Parliament has jurisdiction over “penitentiaries”, which hold offenders sentenced to imprisonment for two years or more. o Under s. 92(6), the provinces have jurisdiction over “prisons”, which hold offenders sentenced to imprisonment for less than two years. o Another provincial head of power – s. 92(15), authorized the provincial Legislatures to make laws in relation to: The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section. R v Malmo-Levine 2003 SCC 74 o The majority (Gonthier and Binnie JJ.) rejected all the arguments for the requirements of harm under section 91(27) of the Constitution Act, 1867 and section 7 of the Charter. o They held Parliament does not need to establish harm but instead, only a reasonable apprehension of harm. o Gonthier and Binnie looked towards R v Hauser, which held that narcotics were a new matter not considered in 1867 and so falls under the peace, order and good government power. o They suggest that this case was likely wrong as narcotics is clearly a matter of criminal law. o The criminal law power, they state, includes the protection of vulnerable groups. Thus, the government is able to control activities for the protection of drug users and society. b) The Canadian Charter of Rights and Freedoms o Criminal law, like all other bodies of law, must adhere and comply with Charter Rights. o If a criminal law breaches or violates a Charter right, then it will be declared invalid and as such, will be of no force or effect. o The caveat to this rule is the Oakes Test, section 1 of the Constitution = legally allows the government to limit an individual’s Charter rights if it is reasonable and demonstrably justified. o R v Oakes1 created the legal test. Charter rights are not absolute and can be infringed in the Courts determine that the infringement is reasonably justified. Section 1 of the Charter of Rights: ‘Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. R v Oakes 1 S.C.R. 103 Dickson CJ wrote a brilliant opinion for the Court; he pointed out that the words “free and democratic society” in s.1 set the standard of justification under s.1. Only the values of a free and democratic society would suffice and be adequate to limit the guaranteed rights. For instance, if your religion allowed you to carry around a gun, you might argue that a law that prohibits the possession of a gun is a violation of your right to religion as per the Charter. However, 1 1 SCR 103 NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 4 Criminal Law Examination Study Notes (for personal use) according to the section 1 Oakes test, this law would be justified in a free and democratic society, as it is a law that protects citizens and aids in ensuring safety. Since the guaranteed rights were themselves derived from the values of a free and democratic society, there was an “identity of values” underlying both the rights and their limits What are these values? Dickson CJ suggested, as examples: “respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society” Dickson CJ pointed out that s.1 performed two functions. o It not only provided for limits on the guaranteed rights; it also, by its opening words, expressly guarantees the rights and freedoms set out in the Charter o The primacy of the rights and freedoms was also implied by the requirement that limits be “demonstrably” justified. These indications led Dickson CJ to stipulate strict rules as to the burden and standard of proof of justification and as to the substantive criteria that would qualify a law as a “reasonable limit” that “can be demonstrably justified in a free and democratic society” Thus, Court insisted upon a “stringent standard of justification” before it would accept a limit under s.1. In this way, the Court has attempted to lay down rules that will preserve the guaranteed rights against much legislative encroachment, but will permit the enactment of limits where there is a strong demonstration that the exercise of the rights “would be inimical to the realization of collective goals of fundamental importance” Canada (Attorney General) v Bedford, 2013 SCC 72 is an example of a case wherein the criminal offences were struck down. A full s. 1 test was not conducted, as the Charter arguments were framed within the context of s. 7. R v Labaye 3 S.C.R. 728 Facts: Labaye was charged with operating a “common bawdy-house”; he owned club l’Orage, a club where people could pay membership fees and then engage in various forms of group sex. The operation of such a house and service was a violation under section 210(1) of the Criminal Code. All of the activities that took place in the house were consensual. Moreover, even though members paid the club fees, the members did not pay each other in exchange for sex. Having been found guilty, Mr. Labaye was fined $2,500 (CBC News, “Swingers clubs don’t harm society, top court rules”, December 21, 2005). Held: The majority of the Supreme Court held that Mr. Labaye should not have been convicted. In establishing if Mr. Labaye was truly guilty of owning a bawdy-house, the Court had to determine if the activities taking place in the house should be classified as indecent. The Court first noted that “morality was of no use to determining whether these activities were indecent”. Only established Canadian objective standards of decency would be useful, and those standards focus on whether any harm has been done. In reviewing precedent (Towne Cinema Theatres Ltd. v. The Queen (1985) and R. v. Butler (1992)), the “Court determined that “obscenity” is defined as exceeding what Canadians would be able to socially accept”. Furthermore, and perhaps more importantly, the obscenity needs to be harmful to specific people. Harm is the only measure of indecency in Canadian law (R. v. Butler and Little Sisters Book and Art Emporium v. Canada (Minister of Justice). NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 5 Criminal Law Examination Study Notes (for personal use) In R. v. Labaye, the “Court approved of the harm-only approach” and wrote that “Harm or significant risk of harm is easier to prove than a community standard” of decency”. The Court went on to clarify and elaborate the guidelines in terms of how to measure harm. o What is indecent under the Criminal Code is that which is contradictory to principles in constitutional laws. The beliefs of individuals or certain political beliefs that something may be injurious, detrimental or dangerous is not enough. The harm in indecency must be serious: “indecency in Canadian law is something that threatens someone’s liberty, exposes something undesirable to people, forces someone to commit a misdeed, or harms someone engaging in certain acts”. o The Court was mindful that sex is a more open and accepted subject in society, but still “there may be some kinds of sexual conduct the public display of which seriously impairs the livability of the environment and significantly constrains autonomy.” The Court concluded that in this particular case, Mr. Labaye was not guilty of indecency because he took specific actions to ensure that only willing people would be exposed to the sexual conduct. o Is the harm serious threshold: “The threshold is high… certain things that certain Canadians will not like should be allowed to exist, unless it becomes so serious it threatens the society”. o In circumstances where people are exposed to undesirable acts and things, an accused would be guilty if there is “a real risk that the way people live will be significantly and adversely affected by the conduct.” The court found no evidence of harm; thus it did not need to consider the ‘serious harm threshold’. 3. The Procedural Classification of Offences The Criminal Code of Canada identifies three categories of offences: summary, indictable and hybrid. The easiest and most straightforward way to understand the difference between summary and indictable offences is that the former is less serious, whereas the latter are more serious crimes. Hybrid offences are those wherein the Crown may elect (choose) to proceed either by way of summary or by indictment. The Crown’s choice depends on the seriousness of the criminal offence and the harm caused by the offence. SUMMARY OFFENCES INDICTABLE OFFENCES Less serious These are the most serious criminal offences. Not many pure summary offences Examples include murder, terrorism, robbery, treason, Examples include solicitation of drug trafficking, rape, etc. prostitution, road traffic offences, An individual who is charged with an indictable offence such as unlicensed driving typically has the right to select their mode of trial, that is A one-year limitation period is by a judge alone (without a preliminary hearing) in a applicable to all summary provincial court, a judge alone (with OR without a conviction offences (s. 786(2)) preliminary hearing) in a Superior Court, OR by a jury This limitation also applies to hybrid trial (with or without a preliminary hearing) offences wherein the Crown elects NOTE: not every person charged with an indictable to proceed summarily offence is entitled to the above options (s.553 of Code) Section 553 Section 553 of the Criminal Code speaks to absolute jurisdiction offences. An accused has no election under these types of offences. They can only be tried by a provincial court judge. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 6 Criminal Law Examination Study Notes (for personal use) o Absolute Jurisdiction: Under section 553, the Provincial Court has the jurisdiction that is “absolute and does not depend on the consent of the accused where the accused is charged in an information” with several classes of offences. o Examples of s. 553 offences includes theft (other than theft that is less than $5000), obtaining money or property by false pretences, gaming and betting-related offences (sections 201-210), fraud in relation to fares, breach of recognizance, failure to comply with probation order, paragraph 4(4)(a) of the Controlled Drugs and Substance Act. More About Hybrid Offences In Canada, a hybrid offence is the most common type of charge in criminal law The power and authority to select under which class a hybrid offence will proceed rests with the Crown. The Crown Counsel chooses to either treat the offence as an indictable (more serious) conviction or as a summary (less serious) conviction. The Crown has a discretionary decision (i.e. it is not subject to review by the courts, UNLESS, there is an abuse of process) The determination by the Crown is made on the basis of the seriousness of the offence and the harm caused by the offence. Some other factors that the Crown will account for in their decision is: the accused’s prior criminal record, the notoriety of the case in the community at large, the limitation period for the conviction. Some examples of hybrid offences include simple assault, sexual assault and theft (less than $5000). 4. Interpreting Criminal Provisions (a), (b), (c), (d) Section 2 of the Criminal Code: Interpretation (Definitions). o I.e., 2(1) In this Act – Act means an Act of Parliament; enact includes to issue, make or establish, enactment means an Act or regulation to any portion of an Act or regulation, public officer includes… o I.e., explosive substance includes a) anything intended to be used to make an explosive substance, b) anything, or any part thereof, used or intended to be used, or adapted to cause, or to aid in causing an explosion in or with an explosive substance and c) an incendiary grenade, fire bomb, Molotov cocktail or other similar incendiary substance… NOTE: It is critical to comprehend how to read and navigate the Criminal Code. Do not wait until exam day to sift through the pages and become familiar with the text, organization and layout of the book and how to search and pinpoint various criminal offences and sections within the Code. Purposive Approach The Purposive Approach (also known as purposivism, purposive interpretation, etc.) is a tactic to statutory and constitutional interpretation. It involves common law courts interpretation of an enactment, such as a statue or clause, within the context and framework of the law’s purpose. The purposive approach is considered the ‘modern principle in construction’2. The Court’s essentially say, the law had a purpose, what was that purpose and how do we bring effect to that purpose. Instead of simply focusing precisely on what the text says and only giving effect to the text as it remains on paper, the purposive approach goes a step further in bringing to life the intentions of Parliament and the true purpose of the law that they had in mind. 2 Beaulac, Stephane, and Pierre-Andre Cote. “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada: Interpretation, Justification, Legitimization.” 11-Revue, 8 June 2006, p. 140., doi:10.3138/9781442676190-fm. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 7 Criminal Law Examination Study Notes (for personal use) The Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., 1998 1 S.C.R. 27: “the modern approach to statutory interpretation involves a “textual, contextual and purposive analysis of the statute or [the] provision in question”. The case of Ayr Farmers Mutual Insurance Co v Wright, 2016 ONCA 789 made it clear that legislative intent matters and giving effect to a statute’s purpose is of central importance. In the case of Regina v Secretary of State for Health ex parte Quintavalle (2003), the House of Lords expressly utilized a purpose approach statutory interpretation. R. v. Sundman, 2022 SCC 31 The accused and victim had hostile relations; they were both drug dealers. The accused confined the victim unlawfully in a truck that was moving. He assaulted him over and over again by hitting him with a handgun. When the moving truck slowed down, the victim jumped out and ran for his life. The accused ran after him with two accomplices and then shot him, but the victim survived. As the victim lay on the floor severely wounded, one of the accomplices shot him. The accused was charged with first degree murder. The Crown argued that the accused was guilty of first-degree murder because the murder was planned and deliberate. Alternatively, the Crown argued that, because he murdered the victim while committing the offence of unlawful confinement, the accused was guilty of first-degree murder under s. 231(5) I of the Criminal Code. The trial judge didn’t agree due to the fact that there was a small gap between when the victim was trapped in the truck and when he was shot by the accomplice; the accused was acquitted of first-degree murder and was convicted of second-degree murder. The Court of Appeal set aside the conviction of second-degree murder, and substituted a conviction of first-degree murder. It held that the victim was still unlawfully confined when he jumped from the truck and was chased before being killed, and accordingly, the accused murdered the victim while committing the offence of unlawful confinement. It also held that the victim’s unlawful confinement in the truck was temporally and causally connected to his murder, making the entire course of conduct a single transaction. Held: The Supreme Court held that the accused was guilty of first-degree murder because the victim was still unlawfully confined when he escaped from the truck and ran for his life. Even though the victim was not physically restrained outside the truck, he continued to be coercively restrained through violence, fear, and intimidation. The accused then murdered him while unlawfully confining him. The important piece here is that the trial judge elected to split the events, the confinement in the truck and the ultimate shotting of the victim. The Supreme Court instead found that these two distinct criminal acts were part of a continuous sequence of events forming a single transaction. They were close in time and involved an ongoing domination of the victim that began in the truck, continued when he escaped from the truck and ran for his life, and ended with his murder. Section 231(5) of the Criminal Code provides that murder is first degree murder, irrespective of whether the murder is planned and deliberate, when the victim’s death is caused “while committing or attempting to commit” any of several listed crimes of domination. For a murder to be committed “while committing or attempting to commit” an underlying offence listed in s. 231(5), the following elements are required: (1) an underlying crime of domination; (2) murder; (3) substantial cause; (4) no intervening act; and (5) the same transaction. The Court has taken two approaches to the “same transaction” element, which have been used interchangeably: the “single transaction” test and the temporal-causal connection approach. These approaches do not involve different inquiries; they are simply different ways of addressing the “same transaction” element. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 8 Criminal Law Examination Study Notes (for personal use) The “single transaction” approach asks if the listed offence of domination and the killing all form part of one continuous sequence of events forming a single transaction. It is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder. The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a single transaction. The temporal and causal connection approach asks whether the underlying offence of domination and the murder have a close temporal and causal connection. There is a temporal connection between an underlying offence of domination and a murder when the two criminal acts are committed close together in time. There is a causal connection when there is a unifying relationship, beyond mere closeness in time, between the act of illegal domination and the act of murder, such as when the offender’s reason or motivation for the killing arises from, or is linked to, the offender’s unlawful domination of a victim. In this case, the victim’s unlawful confinement continued when he escaped from the truck. He was coercively restrained, deprived of his liberty, and unable to move about according to his own inclination and desire. In fact, the victim was still unlawfully confined at the time of his death. The accused thus murdered him while committing the offence of unlawful confinement. The unlawful confinement and the murder were close in time and involved an ongoing course of domination. In addition, the unlawful confinement was distinct from and not consumed by the shooting. As a result, the accused’s first- degree murder conviction is justified. Strict Construction Strict construction is, as it sounds, a strict view of the words within statutes. The words are given a strict interpretation – a judge interprets the text as it is written, considering and contemplating only what is presented before him. In R v Pare 2 SCR 618, the ratio of the case states: “the doctrine of strict interpretation must not contradict a purposive interpretation that considers the scheme and purpose of the legislation. Interpretations cannot lead to arbitrary or irrational outcomes”. Strict application of legislation/statutes can lead to “absurd outcomes”: o In Whitely v Chappel3 a statute made it an offence “to impersonate any person entitled to vote”. The defendant used the vote of a dead man. The statute specifically required a person to be living in order to be entitled to vote. The strict construction approach was applied, and the defendant was thus acquitted. o In R v Harris4, the defendant bit off the victim’s nose. But because the statute made it an offence “to stab cut or wound” the court held the act of biting did not fall under the meaning of stab cut or wound as these words implied an instrument had to be used (strict construction approach). The defendant’s conviction was overturned. Fundamental Principle of Statutory Interpretation “The fundamental principle of statutory interpretation is that “the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature” (Rizzo & Rizzo Shoes Ltd., 1 S.C.R. 27 at para. 21; Bell Expressive Limited Partnership v Rex 2 S.C.R. 559 at para. 26) “Direct that the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature”. (R v Brode (2012) ONCA 140) 3 (1868) LR QB 147. 4 (1836) 7 C & P 446. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 9 Criminal Law Examination Study Notes (for personal use) As per Howard’s Criminal Law (5th ed. 1990) at page 11: Legislators select to adopt “language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation”. Official Languages Act The Official Languages Act of Canada came into force on September 9, 1969; it provides French and English equal status in the government of Canada5. Both languages are equal in Canada’s government. The English and French version are equally authoritative and any ambiguity in one of the languages is clarified and resolved by the other6. R v Mac 1 SCR 856 per Bastarache J at paras. 26 to 31: “Ambiguity in the wording of one language may be resolved by considering whether the other language wording provides clarity before considering other principles of interpretation”. R v Daoust 1 SCR 217: “Where the meaning of the English and French versions diverges, the proper interpretation should be the lowest common denominator”. R. v. Collins, 1 S.C.R. 265 43. The second reason is based on the language of s. 24(2). Indeed, while both the English text of s. 24(2) and Rothman use the words « would bring the administration of justice into disrepute », the French versions are very different. The French text of s. 24(2) provides « est susceptible de déconsidérer l’administration de la justice », which I would translate as « could bring the administration of justice into disrepute ». This is suppportive of a somewhat lower threshold than the English text. As Dickson J. (as he then was) wrote in Hunter v. Southam Inc., supra, at p. 157 : Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s.8 : in other words, to delineate the nature of the interests it is meant to protect. As one of the purposes of s. 24(2) is to protect the right to a fair trial, I would favour the interpretation of s. 24(2) which better protects that right, the less onerous French text. Most courts which have considered the issue have also come to this conclusion… Section 24(2) should thus be read as « the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings could bring the administration of justice into disrepute ». This is a less onerous test than Rothman, where the French translation of the test in our reports, « ternirait l’image de la justice », clearly indicates that the resort to the word « would » in the test « would bring the administration of justice into disrepute » means just that. The Charter In terms of the Charter and its influence on the manner in which statutory provisions are interpreted, please refer to page 5 of these notes to refresh your memory on the Charter. The purposive approach is the cornerstone of Charter interpretation. It requires that the rights granted in the Charter be given a generous and liberal interpretation. Moreover, it aims at fulfilling the purpose of the right in question and of the Charter in its entirety. Charter rights should be read broadly and expansively, as such, placing the burden of justifying any limitations on these rights on the state (Beena B. v. Children’s Aid Society of Metropolitan Toronto 1 S.C.R. 315; Ross v New Brunswick Schools District No. 15 1 S.C.R. 825). 5 (R.S.C., 1985, c. 31 (4th Supp.)) 6 Ruth Sullivan, Some Problems with the Shared Meaning Rule as Formulated in R v Daoust and The Law of Bilingual Interpretation 2010 CanLIIDocs 76. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 10 Criminal Law Examination Study Notes (for personal use) Charter questions must be placed within the actual social, political and legal context in which they arise (i.e. regulatory versus criminal law matters) (Edmonton Journal v Attorney General of Alberta et al., 2 S.C.R. 1326.) An appropriate balance must be struck between the rights of individuals and societal interests at large (i.e. if a person breaks the law and is dangerous, their s. 7 rights can be infringed in order to protect society from danger) (RJR-MacDonald Inc. v. Canada (Attorney General) 3 S.C.R. 199). If a law violates a Charter right, it is invalid and will be struck down, UNLESS, as discussed earlier, it can be saved by section 1 (Oakes Test). Canadian Foundation for Children, Youth & the Law v. Canada (A.G.), 1 S.C.R. 76 Facts: Section 43 of the Criminal Code justifies the reasonable use of force by way of correction by parents and teachers against children in their care. The appellant sought a declaration that s. 43 violates ss. 7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms. The trial judge and the Court of Appeal rejected the appellant’s contentions and refused to issue the declaration requested. Held: Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ.: Section 43 of the Criminal Code does not offend s. 7 of the Charter. While s. 43 adversely affects children’s security of the person, it does not offend a principle of fundamental justice. First, s. 43 provides adequate procedural safeguards to protect this interest, since the child’s interests are represented at trial by the Crown. Second, it is not a principle of fundamental justice that laws affecting children must be in their best interests. Thirdly, s. 43, properly construed, is not unduly vague or overbroad; it sets real boundaries and delineates a risk zone for criminal sanction and avoids discretionary law enforcement. The force must have been intended to be for educative or corrective purposes, relating to restraining, controlling or expressing disapproval of the actual behaviour of a child capable of benefiting from the correction. While the words “reasonable under the circumstances” on their face are broad, implicit limitations add precision. Section 43 does not extend to an application of force that results in harm or the prospect of harm. Determining what is “reasonable under the circumstances” in the case of child discipline is assisted by Canada’s international treaty obligations, the circumstances in which the discipline occurs, social consensus, expert evidence and judicial interpretation. When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”, sufficient to establish a zone in which discipline risks criminal sanction. The conduct permitted by s. 43 does not involve “cruel and unusual” treatment or punishment by the state and therefore does not offend s. 12 of the Charter. Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency. Section 43 does not discriminate contrary to s. 15(1) of the Charter. A reasonable person acting on behalf of a child, apprised of the harms of criminalization that s. 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would not conclude that the child’s dignity has been offended in the manner contemplated by s. 15(1). While children need a safe environment, they also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. Without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 11 Criminal Law Examination Study Notes (for personal use) THE ELEMENTS OF A CRIMINAL OFFENCE As the NCA syllabus explains in a quite neat and precise manner, every criminal offence contains “elements” that have to be demonstrated before a conviction can occur. All elements of the criminal offence have to be present at the same time. If they are not, there will be no crime (R v Williams). The syllabus comments that it is logical to think of the elements of an offence as: o “The physical elements or actus reus of the offence (the act 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 o The mental or mens rea elements of the offence”. It is critical you grasp a solid understanding of the elements above, as they will form the basis and foundation of your learning and understanding of the materials going forward. 5. The Actus Reus The actus reus quite simply is the specific act of the offence (i.e. applying force in assault) As straightforward as it may sound, this is not always the case. Some offences spell out the act required for the actus reus component/element for the crime to be committed; while, other offences in the Criminal Code may be not be as straightforward I.e. Theft: section 322(1): Everyone commits theft who fraudulently and without… a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or his property or interest in it. o To deprive is the actus reus of the crime, however, this action is contextualized. What if you take an item that a person has consented to you taking? What if you actually believe it is yours? In basic terms, the actus reus deals with the taking element. Your intention, what you thought, what objectively people might think, are not dealt with under this area (this is the element of mens rea that will later be discussed). In Williams, the court emphasized that to constitute a crime, the actus reus and mens rea or intent have to coincide at some point in time. The court held that “before November 15, 1991, there was an endangerment but no intent; after November 15, 1991, there was an intent but at the very least a reasonable doubt about the existence of any endangerment”. Acts and Statutory Conditions As mentioned, your first step is to look to the criminal code and determine the necessary actus reus (act) required for the offence to be committed. It is important to discern what the act is specifically and separate this from any mens rea elements. Some students find this task more difficult than others For instance, for murder, ask: did the accused execute an action that resulted in murder? We do not look to intent at this point (i.e. whether the accused planned the act and it was deliberate) Assault with a weapon involves committing an assault with a weapon – “uses or threatens to use a weapon”. If a weapon is not involved in the crime, then the accused cannot be charged with “assault with a weapon”. This is a necessary component of the actus reus of this specific offence. In the case of R v J.(D). (2002) O.J. No. 4916 (Ont. C.A.), JD appealed a conviction for forcible entry into his friend’s home. JD’s friend let JD enter. JD then headed for the back door; however, a couch prevented him from exiting. The appeal was allowed: the conviction was set aside, and an acquittal was entered. “Forcible entry occurred only where the entry interfered with the peaceable possession of a person in actual possession of the property. A known person simply walking in the front door, straight through the residence and out the back door did not have such an intention”. Moreover, JD did not act or behave in a way that was likely to cause or inflict a breach of the peace or a reasonable apprehension of such a breach. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 12 Criminal Law Examination Study Notes (for personal use) In J. (D.), it is clear that he did not fulfill the actus reus of the crime: an interference with the peaceful possession of a person in possession of the property was a requirement of the act. This was not found (J.D. did not interfere or infringe peace). Possession: “The Act of Possession” The Criminal Code, s. 4(3), Controlled Drugs and Substances Act Possession (3) For the purposes of this Act, (a) a person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. Possession will only be applicable to certain criminal offences. For instance, simple assault does not entail proving possession. There must be three conditions in order for there to be possession: o 1) Knowledge (R v York7) o 2) Consent (R v Marshall8) o 3) Control (R v Terrance9) If all three conditions are fulfilled, then the accused is deemed to have had possession and fulfills the necessary actus reus component. In York, the appellant testified he knew the goods were stolen (i.e. knowledge). Further, he owned the warehouse and as such, he exercised physical control over the goods (control). By allowing the stolen goods to be stored in his warehouse, he consented. Note: although possession for the purposes of the actus reus were fulfilled, the accused was not convicted, as he did not hold the requisite mens rea for the offence of possession of stolen property. However, for the purposes of this section, actus reus, we are only concerned with delineating the necessary acts to constitute actus reus. In Marshall, a group of friends were driving in a car that had about a kilo of marijuana. The car was pulled over and they were all arrested with possession. It was held that the boys consented to driving in the car, not the marijuana being present. In Terrence, it was emphasized here that there must be an element or factor of control for possession to occur. “Knowledge and consent must co-exist with some measure of control over the subject matter”. I.e. you are driving in the car with your friend and you open the glove compartment to find drugs. You demand your friend pulls over and lets you out of the vehicle. She tells you she is on the highway and cannot until she exits. Before she can exit, the car is pulled over by the police and the drugs are discovered. You would not be charged with possession, as you lacked the necessary control element. R. v. Morelli, 2010 SCC 8 (CanLII), 1 SCR 25 Facts: A computer technician attended the home of the accused unannounced to install Internet. On the accused’s computer (web browser), the technician found pornography sites, both adult and child. In the room, the technician noticed home videos and a tripod; the webcam was pointed at the toys and child. 7 R v York, 2005 BCCA 74 (CanLII), (2005), 193 C.C.C. (3d) 331 (B.C.C.A.). 8 R v Marshall, 3 C.C.C. (3d) 149 (Alta. C.A.) 9 R v Terrence 1 SCR 357 NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 13 Criminal Law Examination Study Notes (for personal use) He wasn’t able to finish his work but returned the next morning. The next day, everything was “cleaned up” (i.e. child’s toys put away, videotapes put away, etc.) The technician was concerned about the safety of the child, so he reported what he had seen to social worker. An information to obtain a search warrant (“ITO”) was drafted. An investigation was conducted and pornographic pictures with children were found the accused’s computer. The accused was charged with possession of child pornography contrary to s. 163.1(4) of the Criminal Code. At trial, he was unsuccessful in his attempt to challenge the validity of the search warrant under section 8 of the Charter. The trial judge convicted the accused and the Court of Appeal upheld the conviction. The accused appealed to the Supreme Court Held: The Supreme Court allowed the appeal, quashed the conviction and an acquittal was entered. The ITO is limited to allegations of possession of child pornography contrary to s. 163.1(4) of the Criminal Code and does not involve allegations of accessing child pornography pursuant to s. 163.1(4.1) Merely viewing in a Web browser an illegal image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Neither does creating a “favourite” or an “icon” on one’s computer. In order to commit the offence of possession, as opposed to the offence of accessing of child pornography, one must knowingly acquire the underlying data files and store them in a place under one’s control. It is the underlying data file that is the stable “object” that can be transferred, stored, and possessed. The automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a “place” over which the computer user has control, in order to establish possession, it must be shown that the file was knowingly stored and retained through the cache. Consent Consent is a critical actus reus element in some criminal offences, namely (and the most obvious) sexual assault crimes. The notion of consent can transform a sexual act from a positive occurrence (so to speak) to a negative and serious crime, if the act was committed without the consent of the complainant. Clearly, if a person consented to engage in sexual relations, then there is technically no crime When we are analyzing the actus reus of sexual crimes, it revolves around consent, and it is the consent of the victim/complainant. This is subjective – we are only looking to the complainant NOT the accused. In fact, the accused is irrelevant at this stage (accused and his or her state of mind becomes relevant when analyzing the element of mens rea). We are focusing on the act, the actus reus, and who is the act committed against, the complainant, or the victim, if the accused is eventually convicted. In R. v. J.A., 2011 SCC 28, the court held that a person can only consent to sexual activity if they are conscious throughout that specific activity. If a person becomes unconscious at any point during the sexual act, then they are not capable of legally providing consent. This holds true regardless if they consented earlier in time to the sexual act. In R v Ewanchuk10, it was held that “the absence of consent is SUBJECTIVE, determined by reference to the complainant’s subjective internal state of mind…” The state of mind of the complainant is PURELY SUBJECTIVE. The consent MUST BE given FREELY. In other words, you cannot coerce or trick someone into consenting. Fights have been an area where consent has been raised (i.e. fist fights, street fights). o If two people consent to fighting, is this consent legit? 10 1 S.C.R. 330 NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 14 Criminal Law Examination Study Notes (for personal use) o R v Jobidon11 tells us that “where two people engage in a fight by mutual consent, the blows struck by each constitute an assault on the other, UNLESS there is justifiable self-defence”. o In other words, you CANNOT consent to the infliction of bodily injury or assault. o Also, consider consenting to sexual acts that are abusive in nature. Do you think that one can consent to this type of behaviour/act? R. v. Mabior, 2012 SCC 47, 2 S.C.R. 584 This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud vitiating consent to sexual relations under s. 265(30) I Cr. C. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault (s. 273Cr. C.). To obtain a conviction under ss. 265(3) I and 273, the Crown must show, beyond a reasonable doubt, that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. The test boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm). Failure to disclose may amount to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm. Causation With certain criminal offences in the criminal code, causation is a necessary actus reus element that must be proven in order for the actus reus to be fulfilled and to move onto the mens rea component. Where an offence requires a specific consequence (i.e. assault causing bodily harm – without bodily harm, it cannot be assault causing bodily harm; it would just be assault. Bodily harm is a necessary consequence of the assault in order for this specific crime to occur. If John yells in Anna’s face and nudges her as he does so, however, she incurs no bodily harm – this is only assault. His action of nudging her, or even lightly pushing her, did not result in any consequence (other than the fact she may now be intimated and upset). The offences which prescribe (include) a consequence: o Criminal negligence causing death (s.220) o Criminal negligence causing bodily harm (s.221) o Dangerous operation causing bodily harm (s.249 (3)) o Dangerous operation causing death (s. 249 (4)) o Impaired driving causing bodily harm (s.255 (2)) o Impaired driving causing death (s.255 (3)) o Assault causing bodily harm (s.267 (b)) o Sexual assault causing bodily harm (s.272 (1)I) o Aggravated sexual assault (s. 273 (1)) o Mischief causing danger to life (s. 430 (2)) o Aggravated assault (s. 268) o Arson causing bodily harm (s. 433(b)) For the most part, if you see the word “causing” within the offence, you know you have to address causation Causation involves 2 components: factual causation and legal causation Factual causation focuses on whether factually (based on the evidence at hand). This is not always straightforward and requires judgment. 11 2 S.C.R. 714 NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 15 Criminal Law Examination Study Notes (for personal use) o There can be more than one cause of death; as such, the causation test is not restricted or confined to revealing the most proximate, primary or the sole cause of death (Menezes). o You must ask yourself: was the accused’s conduct more than trivial? o If the act of the accused is too remote = no causation o Consider intervening cause: an act that occurs between the accused’s initial conduct and the victim’s death, which may sever the accused’s responsibility (and cause) for the death.12 R v Nette13 is a key case when discussing causation o Factual causation is preoccupied with the question of how the victim came to their death. o “Legal causation is focused upon asking whether the accused should be held responsible and accountable in law”. Here, we are considering the law itself, whereas factual causation, we are concentrating on the facts. o Causation is not usually in issue with first- and second-degree murder. If the accused planned and had the deliberate intention to kill someone, and they executed actions that had this result = it is clear they caused the death. o On the other hand, manslaughter cases do engage an analysis of causation. o When dealing with legal causation, the focal point is if blameworthiness can be attached to the accused. In sum: causation is the ‘causal relationship between the defendant’s conduct and end result’… it is defined as the actus reus (an action) from which the specific injury or other effect arose. Where establishing causation is required to establish legal liability, it usually involves a two-stage inquiry, firstly establishing ‘factual’ causation, then ‘legal’ causation. ‘Factual’ causation must be established before inquiring into legal causation, perhaps by assessing if the defendant acted in the plaintiff’s loss. Determining ‘legal’ causation often involves a question of public policy regarding the sort of situation in which, despite the outcome of the factual enquiry, the defendant might nevertheless be released from liability, or impose liability. o I.e., the accused is drugged and commits a crime. He factually caused the result, however, due to the fact he was drugged, at no fault of his own, he should not be held blameworthy. R. v. Williams, 2 S.C.R. 134 Facts: The complainant and W had a relationship that began in June 1991. On November 15, 1991, W learned that he had recently tested positive for HIV. W did not tell the complainant about his HIV condition as well as the fact that he had been tested. It was accepted that the complainant would never knowingly have had sex with an HIV-positive person. The relationship ended in November 1992 and she tested positive for HIV in April 1994. W has conceded that he infected the complainant with HIV. Similarly, the Crown has conceded that it is quite possible that W infected the complainant before learning of his positive status. Held: While W acted with great recklessness and selfishness, the Crown could not demonstrate that sexual activity after November 15, 1991 harmed the complainant, or even exposed her to a significant risk of harm, as at that point she was possibly, and perhaps likely, already HIV-positive. W’s acquittal on the charge of aggravated assault must therefore be affirmed. The mens rea of the offence had been proven beyond a reasonable doubt, but the Crown was unable to prove an essential element of the actus reus, namely that W’s sexual conduct, after learning that he had tested positive for HIV, risked endangering the complainant’s life. 12 R v. Smithers 1 SCR 506 13 3 S.C.R. 488, 2001 SCC 78 NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 16 Criminal Law Examination Study Notes (for personal use) The medical evidence indicates that a single act of unprotected vaginal intercourse carries a significant risk of HIV transmission. It was therefore at least doubtful that the complainant was free of HIV infection on November 15, 1991 when W first discovered, then decided to conceal, his HIV status. Recall: In Williams, the court emphasized that to constitute a crime, the actus reus and mens rea or intent have to coincide at some point in time. The court held that “before November 15, 1991, there was an endangerment but no intent; after November 15, 1991, there was an intent but at the very least a reasonable doubt about the existence of any endangerment”. R. v. Maybin, 2012 SCC 24, 2 S.C.R. 30 Facts: In a busy bar late one night, the accused brothers, T and M, repeatedly punched the victim in the face and head. T eventually struck a blow that rendered the victim unconscious. Arriving on the scene right after, a bar bouncer also then struck the victim in the head. The medical evidence was inconclusive about which blows caused death. As a result, the trial judge acquitted the accused brothers and the bouncer. The Court of Appeal was unanimous that the accused’s assaults were factually a contributing cause of death — “but for” their actions, the victim would not have died. Furthermore, the majority of the Court of Appeal concluded that the risk of harm caused by the intervening actor could have been reasonably foreseeable to the accused. the appeals were allowed, acquittals set aside, and a new trial ordered. Held: The appeal was dismissed. Courts have used a number of analytical approaches to determine when an intervening act absolves the accused of legal responsibility for manslaughter. For example, both the “reasonable foreseeability” and the “intentional, independent act” approach may be useful in assessing legal causation depending on the specific factual matrix. These approaches…acknowledge that an intervening act that is reasonably foreseeable to the accused may well not break the chain of causation, and that an independent and intentional act by a third party may in some cases make it unfair to hold the accused responsible. These approaches may be useful tools depending upon the factual context. However, the analysis must focus on first principles and recognize that these tools are analytical aids and do not alter the standard of legal causation or substitute new tests. Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test remains whether the dangerous and unlawful acts of the accused are a significant contributing cause of the victim’s death. In this case, it was open to the trial judge to conclude that it was reasonably foreseeable that the fight would escalate, and other patrons would join or seek to end the fight or that the bouncers would use force to seek to gain control of the situation. Further, it was open to the trial judge to find that the bouncer’s act was closely connected in time, place, circumstance, nature and effect with the accused’s acts and the effects of the accused’s actions were still subsisting and not spent at the time the bouncer acted. Therefore, based upon the trial judge’s findings of fact, it was open to him to conclude that the general nature of the intervening act and the accompanying risk of harm were reasonably foreseeable; and that the act was in direct response to the accused’s unlawful actions. Omissions/Duties Some criminal offences do not necessitate a positive action by the accused. Instead, the offence may be committed by demonstrating the accused FAILED to do an act. This is very common in the case where a parent is taking care of a child (duty to care for child) or where a child (older) is taking care of their elderly parent(s). NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 17 Criminal Law Examination Study Notes (for personal use) Duties Tending to Preservation of Life Duty of persons to provide necessaries 215 (1) Everyone is under a legal duty (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years; (b) to provide necessaries of life to their spouse or common-law partner; and I to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life. Offence (2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if (a) with respect to a duty imposed by paragraph (1)(a) or (b), (i) the person to whom the duty is owed is in destitute or necessitous circumstances, or (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or (b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently. Punishment (3) Everyone who commits an offence under subsection (2) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction. Presumptions (4) For the purpose of proceedings under this section, (a) [Repealed, 2000, c. 12, s. 93] (b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proof that the child is his child; I evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to provide necessaries of life for the child; and (d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence. Duty of persons undertaking acts 217 Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. 217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task. In order to be found guilty of an omission, the three following conditions must be fulfilled14: o The offence must contemplate guilt for omissions o The accused MUST BE placed under a legal duty to act o The omission must be a failure to fulfil that legal duty 14 R v A.D.H., 2013 SCC 28, 2 S.C.R. 269 NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 18 Criminal Law Examination Study Notes (for personal use) R v Peterson15: Dennis Peterson was convicted of failing to provide the necessaries of life to his father, thereby endangering his father’s life (s. 215) S. 215 (1)I: A duty to provide the necessaries of life arises when “one person is under the other’s charge, is unable to withdraw from that charge, and is unable to provide himself or herself with necessaries of life” If a person undertakes to take care for a vulnerable family member, then this section is engaged the majority of the time. The obligation to provide necessaries is not absolute and may be excused, for example where there is financial inability.16 Peterson defines “under his charge”: o First, consider the relationship of the parties to each other. If a disabled parent is dependent on their (independent) adult child, then this dependence is justified NOT ONLY because of their past relationship and dealings (parent raised and supported child; now child has taken on the responsibility to care for parent) but also by their relationship to one another (parent/child; kin). o Second, consider the word “charge”. Charge means “the duty or responsibility of taking care of another person and/or thing”. In this regard, consider whether the accused understood and comprehended his duty to take care of another. Think about a situation where the accused is unable to take care of himself or herself. What if the accused is mentally ill? How can one expect the accused (say an adult child) to care for her or her parent, if he or she is not capable of taking care of himself or herself? o R v Browne17: two friends (drug dealers) got stopped by the police. One friend swallowed the drugs to avoid detection. The other friend told him he would take him to the hospital but instead sent him by taxi. Court held the statement wasn’t legally binding; didn’t create legal duty. 6. Subjective Mens Rea The Latin phrase: “Actus non facit reum nisi mens sit rea” translates to “an act does not make a person guilty unless the mind is also guilty”. This is a fundamental principle in criminal law. NOTE: some offences do not require the mens rea element; they are known as absolute and strict liability offences. These will be discussed later in the notes. The subjective mens rea standard is one where the court must be satisfied that the accused actually had the requisite mental element present in HIS OR HER MIND at the relevant time. We are looking into the mind of the accused – what were they thinking when they committed the offence? Did they intend to do it? Did they plan it and then execute their plan? Was it an accident or mistake? R v H (A.D.), 2013 SCC 28: “Subjective mens rea evaluates the positive state of mind of the accused – what the accused actually knew, intended, or adverted to – rather than what the accused should have known or adverted to in the circumstances”18. Whenever you see in the Criminal Code words such as intent, intention, knowledge, purpose, recklessness, willful blindness, you are for the most part dealing with subjective mens rea (not objective) When you are approaching a question on the exam, such as a fact scenario wherein you have to identify the crime and whether it is likely the accused will be convicted (this is a VERY common type of criminal law exam question), identifying whether the mens rea element is subjective or objective will be critical. Specifying that the mens rea is subjective or objective will demonstrate to the exam marker that you are knowledgeable of the necessary elements of criminal offences. Take for example the following situation: 15 2005 CanLII 37972 (ON C.A.) 16 Honourable Madam Justice Marion Allan, Will you still need me, will you still feed me, when I’m 94? The scary demographic reality of aging baby boomers and their children’s lability under criminal and family law. 17 1997 CanLII 1744 (ON CA). 18 Terry Skolnik, Objective Mens Rea Revisited, (2017) 22 Canadian Criminal Law Review 307 NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 19 Criminal Law Examination Study Notes (for personal use) o Mandy and Brad (wife and husband) get into a big argument. They are yelling and screaming at one another. They both start pushing each other and the argument becomes physical. This is quite typical behaviour of the couple which usually results in the two making up. This particular time, however, Brad pushes Mandy and she loses her balance falling back and hitting her head. The mannerism and positioning of where she hit her head resulted in a brain hemorrhage and Mandy dies as a result. Did Brad commit murder? o If we look at what is required for murder, it is an act that results in death. This is the actus reus of the crime. Certainly, Brad has fulfilled this component. He pushed Mandy and it resulted in her death. In other words, he executed an act that led to death. o However, murder, as defined in the criminal code, requires ‘planning and deliberation’ – this tells us that there must be an intention to kill. This, of course, is a subjective mens rea standard. Consequently, Brad cannot be found guilty of murder. There is no evidence (at least in the facts provided in this simple example) that Brad deliberately intended for his wife to die. Nonetheless, Brad’s actions did result in his wife’s death, regardless, if he intended that result or not. As such, he will likely be found guilty of manslaughter (discussed later) as this involves an objective test. A) Intention, Purpose and Wilfulness When you encounter the word “intention”, you almost automatically know you are dealing with subjective mens rea. Murder is a prime example. Now look up assault in the criminal code. What are the necessary elements for the offence to have been committed? Section 265(1) (a) states: “A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly. The application of force is the actus reus. What if you are on a bus and it halts to a stop; as a result, you go flying into another individual causing them to fall? Does this satisfy the actus reus element? Indeed, it does. The act alone is the application of force. Does this mean you will be guilty of assault? To answer that we need to look to the mens rea. The word “intentionally” tells us everything we need to know in terms of the mens rea component. You certainly did not intend to apply any force to the other individual; it was merely an accident. As such, you did not “intentionally” apply force and are not guilty of assault. Intention is an intricate notion. It requires distinguishing from motive or desire; these are distinct terms, although, sometimes used interchangeably with ‘intention’. Motive, in comparison to intent, addresses a person’s underlying rationale, desire or reasons for committing an offence. Intent on the other hand, is about that person’s inclination or willingness to execute or implement specific action relating to the offence. R. v. Hibbert 2 SCR 973 Facts: The accused was forced by the principal offender to accompany him to the apartment of the victim and to lure the victim to the lobby downstairs. The accused stood by while the principal offender shot the victim The accused was charged with attempted murder; however, he was acquitted but convicted on the included offence of aggravated assault. The Court of Appeal upheld the convicted. He appealed. Held: The appeal was allowed, and a new trial was ordered. 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. Whether or not this is so will depend…on the structure of the particular offence in question – that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 20 Criminal Law Examination Study Notes (for personal use) If the existence of duress is relevant to the mens rea of the crime at hand, the accused has the right to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he possessed the mental state required for liability (i.e. if threatened, the accused could not have formed the necessary intent). The mental states set out in ss. 21(1)(b) (does or omits to do anything for the purpose of aiding any person to commit an offence) and 21(2) (abets any person in committing it) are not vulnerable to being “negated” by duress. This conclusion is based on an interpretation of the particular terms of the two provisions. Section 21(1) (b), which imposes criminal liability as a party on anyone who “does or omits to do anything for the purpose of aiding any person to commit” an offence, does not require that the accused actively view the commission of the offence he is aiding as desirable in and of itself. Parliament’s use of the term “purpose” in s. 21(1)(b) is essentially synonymous with “intention” and does not incorporate the notion of “desire” into the mental state for party liability. As well, under s. 21(2), which provides that “persons [who] form an intention in common to carry out an unlawful purpose and to assist each other therein” are liable for criminal offences committed by the principal that are foreseeable and probable consequences of “carrying out the common purpose”, the accused’s subjective view as to the desirability of the commission of the offence is not relevant. The expression “intention in common” in s. 21(2) means only that the party and the principal must have in mind the same unlawful purpose. The expression does not connote a mutuality of motives and desires between them. A person would thus fall within the ambit of s. 21(2) if he intended to assist in the commission of the same offence envisioned by the principal, regardless of the fact that their intention might be due solely to the principal’s threats. In other words, the motive behind the person’s action, be it to avoid being harmed by the principal or to protect a loved one whom the principal is threatening to harm, is of no concern. The comments in Paquette on the relation between duress and mens rea in the context of s. 21(2) can therefore no longer be considered the law in Canada. While it is not open to persons charged under ss. 21(1) (b) and 21(2) to argue that because their acts were coerced by threats, they lacked the requisite mens rea, such persons may seek to have their conduct excused through the operation of the common law defence of duress. What an accused person intends or foresees has to be established in a holistic manner, taken into account all the circumstances of the case, including their own evidence, as to what their state of mind or intention was. Regina v. Buzzanga and Durocher, 1979 CanLII 1927 (ON CA) Facts: This case was about offensive pamphlets that were published; the authors were charged with wilful promotion of hatred. Held: The Court, through Martin J.A., held that although the term “willfully” can sometimes encompass recklessness as well as intention, in the context of s. 281.2(2) (older provision of wilful promotion of hatred), it implies with the intention of promoting hatred, and DOES NOT include recklessness. The general mens rea, which is mandated where NO mental element is specified in the definition of the crime, is either the intentional or reckless bringing about of the outcome or result which the law seeks to evade. It is reasonable to presume that Parliament intended to constrain and limit the offence under s. 2812(2) to the “intentional” promotion of hatred. “An accused’s foresight that a consequence is highly probable, as opposed to substantially certain, is the not the same as an intention to bring it about. For instance, if I recklessly go hunting (i.e. while drunk) and I know there is a chance due to my intoxicated state that I could injure someone, yet I still proceed to hunt, then this would be reckless. I may recklessly injure another person, but I did not go out hunting set on or with the intent to hurt another person. “However, a person who foresees that a consequence is CERTAIN or substantially certain to result from an act that she does in order to achieve some other purpose INTENDS that result”. NCA Mentor 2023. These materials are not to be distributed under any circumstances. A violation of this will result in a letter to the Law Society. 21 Criminal Law Examination Study Notes (for personal use) (2) Subjective Mens Rea with Objective Features The updated NCA syllabus explains that “It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow since that would permit the content of offences to vary from offender to offender. For example, the accused can commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction of that nature is “dishonest.” If it were otherwise objective dishonest people would be held to lower standards than the rest of us. Or an accused can commit sexual assault if he intends to touch another, even if he does not believe that the contact is sexual in nature, so long as it is”. In relation to the last example, sexual touching, Albert may think (i.e. subjective standpoint) that touching the small of a women’s back is not sexual in nature. At work, he touches Elizabeth’s back in a manner that objectively would be viewed as sexual. Though, we are concerned if he intentionally meant to touch her (i.e. if he tripped and touched the small of her back, he lacked intention), we are not preoccupied with his subjective understanding or definition of the sexual act. Objectively, we can say this is sexual in nature and made Elizabeth feel uncomfortable. Thus, we see subjective and objective fault requirements at play (i.e. did he “intend” to touch her; was the touching sexual from an objective standpoint). If he subjectively intended the act, then he will be liable. There is an objective feature – regardless, what he thinks, this touching is deemed to be of a sexual nature. Another example is fraud. If you commit fraud and intend the specific transaction, it does not matter if you appreciate or grasp that that transaction

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