Criminal Law Fall 2024 Notes PDF

**Criminal Law - Fall 2024 Notes** Table of Contents {#table-of-contents.TOCHeading} ================= [What is Criminal Law? 4](#what-is-criminal-law) [Distinctive Features of Criminal Law 4](#distinctive-features-of-criminal-law) [What (Else) is Criminal Law? 4](#what-else-is-criminal-law) [Constitutional Context 4](#constitutional-context) [Constitutional Framework of Criminal Law 4](#constitutional-framework-of-criminal-law) [Division of Powers: Constitution Act, 1867 4](#division-of-powers-constitution-act-1867) [Limits on State Power*: Charter* 5](#limits-on-state-power-charter) [Indigenous Law 5](#indigenous-law) [*R v. Ippak* 2018 NUCA 3 5](#r-v.-ippak-2018-nuca-3) [What Makes Law "Criminal" 6](#what-makes-law-criminal) [*Switzman v Elbing and AG of Quebec* (1957) 6](#switzman-v-elbing-and-ag-of-quebec-1957) [*R v. Mortgentaler* (1993) 6](#r-v.-mortgentaler-1993) [*Reference Re Firearms* (2000) 7](#reference-re-firearms-2000) [The Criminal Code 7](#the-criminal-code) [Introduction to the Criminal Code 7](#introduction-to-the-criminal-code) [Exhaustivity and the Criminal Code 7](#exhaustivity-and-the-criminal-code) [Common Law Offences 8](#common-law-offences) [Common Law Offences Continued 8](#common-law-offences-continued) [Common Law Defences 10](#common-law-defences) [Common Law Defences Continued 10](#common-law-defences-continued) [Quantum and Burden of Proof 10](#quantum-and-burden-of-proof) [Presumption of Innocence 10](#presumption-of-innocence) [*Woolmington v DPP* \[1935\] 11](#woolmington-v-dpp-1935) [*R v Oakes* \[1986\] 11](#r-v-oakes-1986) [*R v Keegstra* \[1990\] 12](#r-v-keegstra-1990) [Quantum of Proof 12](#quantum-of-proof) [*R v Lifchus* \[1997\] 12](#r-v-lifchus-1997) [*R v Starr* \[2000\] 13](#r-v-starr-2000) [Conduct or Actus Reus 13](#conduct-or-actus-reus) [Voluntariness 13](#voluntariness) [*R v. Larsonneu*r (1934), 24 Cr App R 74 14](#r-v.-larsonneur-1934-24-cr-app-r-74) [*Kilbride v. Lake* \[1962\] NZLR 590 (SC) 14](#kilbride-v.-lake-1962-nzlr-590-sc) [*R v. King*, \[1962\] SCR 746 14](#r-v.-king-1962-scr-746) [*R v Ruzic* 2001 SCC 24 15](#r-v-ruzic-2001-scc-24) [Acts and Omissions 15](#acts-and-omissions) [Acts 15](#acts) [Omissions 15](#omissions) [Circumstances 17](#circumstances) [Causation 17](#causation) [Consequences and Causation 17](#consequences-and-causation) [Intervening Acts 21](#intervening-acts) [Contemporaneity 25](#contemporaneity) [The Principle of Contemporaneity 25](#the-principle-of-contemporaneity) [*Fagan v Commissioner of Metropolitan Police* \[1969\] 1 QB 439, 52 Cr App R 700 25](#fagan-v-commissioner-of-metropolitan-police-1969-1-qb-439-52-cr-app-r-700) [*R v Miller* \[1982\] 2 All ER 386, 75 Cr App R 109 25](#r-v-miller-1982-2-all-er-386-75-cr-app-r-109) [R v Cooper, \[1993\] 1 SCR 146 26](#r-v-cooper-1993-1-scr-146) [*R v Bottineau*, 2011 ONCA 194 27](#r-v-bottineau-2011-onca-194) [*R v Williams*, 2003 SCC 41 27](#r-v-williams-2003-scc-41) [*R v Forcillo* 2018 ONCA 402 28](#r-v-forcillo-2018-onca-402) [Fault or Mens Rea 29](#fault-or-mens-rea) [Introduction 29](#introduction) [Different Fault Elements 29](#different-fault-elements) [The Choice Between a Subjective and Objective Standard 29](#the-choice-between-a-subjective-and-objective-standard) [Understanding Fault 29](#understanding-fault) [R v. ADH 2013 SCC 28 30](#r-v.-adh-2013-scc-28) [R v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 (Ont CA) 30](#r-v.-buzzanga-and-durocher-1979-49-ccc-2d-369-ont-ca) [R v. Tennant and Naccarato (1975), 23 CCC (2d) 80 (Ont CA) 30](#r-v.-tennant-and-naccarato-1975-23-ccc-2d-80-ont-ca) [R v. Zora 2020 SCC 14 31](#r-v.-zora-2020-scc-14) ["Common Sense Inference" 31](#common-sense-inference) [Subjective Fault 32](#subjective-fault) [Intention/Purpose/Wilful Blindness 32](#intentionpurposewilful-blindness) [Intention vs. Motive 32](#intention-vs.-motive) [Purpose versus Desire 33](#purpose-versus-desire) [Wilful/Intentional 33](#wilfulintentional) [Knowledge 34](#knowledge) [*R v Theroux* \[1993\] 34](#r-v-theroux-1993) [Wilful Blindness 35](#wilful-blindness) [*R v Briscoe* 2010 35](#r-v-briscoe-2010) [Recklessness 35](#recklessness) [*Sansregret v The Queen* \[1985\] 36](#sansregret-v-the-queen-1985) [Subjective Fault Scenario Examples 36](#subjective-fault-scenario-examples) [Objective Fault 36](#objective-fault) [Who is the Reasonable Person 37](#who-is-the-reasonable-person) [*R v Hundal* \[1993\] 37](#r-v-hundal-1993) [*R v. Creighton* \[1993\] 3 SCR 3 37](#r-v.-creighton-1993-3-scr-3) [R v. Tutton \[1989\] 1 SCR 1392 38](#r-v.-tutton-1989-1-scr-1392) [R v. Beatty 2008 SCC 5 38](#r-v.-beatty-2008-scc-5) [R v. Roy 2012 SCC 26 39](#r-v.-roy-2012-scc-26) [R v. Chung 2020 SCC 8 40](#r-v.-chung-2020-scc-8) [R v. Javanmardi 2019 SCC 54 40](#_Toc184386977) [Constitutional Considerations 41](#constitutional-considerations) [*R v Finta* \[1994\] 1 SCR 701 41](#r-v-finta-1994-1-scr-701) [Mistake of Fact 42](#mistake-of-fact) [Regulatory Offences and Absolute and Strict Liability 43](#regulatory-offences-and-absolute-and-strict-liability) [The Importance and Context of Regulatory Offences 43](#the-importance-and-context-of-regulatory-offences) [Regulatory Offences vs True Crimes: Distinguishing Features 44](#regulatory-offences-vs-true-crimes-distinguishing-features) [The Early Fault Binary: Absolute Liability or Subjective Fault? 44](#the-early-fault-binary-absolute-liability-or-subjective-fault) [Beaver v The Queen \[1957\] SCR 531 44](#beaver-v-the-queen-1957-scr-531) [R v Pierce Fisheries Ltd. \[1971\] SCR 5 44](#r-v-pierce-fisheries-ltd.-1971-scr-5) [The Emergence of Strict Liability 45](#the-emergence-of-strict-liability) [R v Sault Ste. Marie \[1978\] 2 SCR 1299 45](#r-v-sault-ste.-marie-1978-2-scr-1299) [Constitutional Considerations for Fault in Regulatory Offences 46](#constitutional-considerations-for-fault-in-regulatory-offences) [*Re BC Motor Vehicle Act* \[1985\] 2 SCR 486 47](#re-bc-motor-vehicle-act-1985-2-scr-486) [*R v Wholesale Travel Group Inc.* \[1991\] 3 SCR 154 47](#r-v-wholesale-travel-group-inc.-1991-3-scr-154) [Ignorance of the Law 48](#ignorance-of-the-law) [Participation 49](#participation) [Modes of Participation 50](#modes-of-participation) [R v Thatcher \[1987\] 1 SCR 652 50](#r-v-thatcher-1987-1-scr-652) [*R v Pickton* 2010 SCC 32 51](#r-v-pickton-2010-scc-32) [Aiding and Abetting 52](#aiding-and-abetting) [*R. v. Greyeyes* (1997) 52](#r.-v.-greyeyes-1997) [*R. v. Briscoe* (2010) 52](#r.-v.-briscoe-2010) [Dunlop and Sylvester v The Queen \[1979\] 53](#dunlop-and-sylvester-v-the-queen-1979) [Inchoate Offences 53](#inchoate-offences) [Attempt 54](#attempt) [Concerns 54](#concerns) [Actus Reus 55](#actus-reus) [*R v Cline* (1956), 115 CCC 18 55](#r-v-cline-1956-115-ccc-18) [*Deustsch v The Queen* \[1986\] 2 SCR 2 55](#deustsch-v-the-queen-1986-2-scr-2) [Mens Rea 56](#mens-rea) [*R v Ancio* \[1984\] 1 SCR 225 56](#r-v-ancio-1984-1-scr-225) [R v Logan \[1990\] 2 SCR 731 57](#r-v-logan-1990-2-scr-731) [Impossibility 58](#impossibility) [*USA v. Dynar* (1997,SCC) 58](#usa-v.-dynar-1997scc) What is Criminal Law? ===================== Distinctive Features of Criminal Law ------------------------------------ - "a legal system of public **proscription** and **punishment** that regulates violence." (Guyora Binder) - Criminal law proscribes conduct. - Other areas focus on what *to do* in a specific situation or wrong, criminal is what you *cannot do.* - Criminal law imposes punishment - What is punishment (reprobation (something is wrong) + harsh treatment) - The goal of criminal punishment is to inflict injury versus something like damages goal intentionally is to benefit the victim. - In criminal law, the punishing institution is the state. - The victim of a crime does not take on the responsibility of seeking punishment (as with something like torts); it's the state that takes on this responsibility. What (Else) is Criminal Law? ---------------------------- - Male? - A system of rules designed and implemented with men in mind - Suggests the law doesn't do a good job of handling crimes against women or perpetrated by women. - A system that enriches racism - Greater police surveillance in Black and Indigenous communities, this led to more serious charged and overrepresentation in prisons - Historically and politically contingent? - It is dependent on where we are in time and our political landscape. - Ex. Marijuana, same-sex marriage, adultery\... etc. - **Suggests that criminal law may not be a neutral set of rules, it may have other political components embedded into it.** Constitutional Context ====================== Constitutional Framework of Criminal Law ---------------------------------------- - Jurisdiction to legislate. placing limits on what the state can do - Constitution Act, 1867, ss. 91 and 92 - Constitution Act 1982, s. 52 - Charter constraints - Charter, ss. 7-14, s. 1, and s. 24(2) - Relationship between the Charter and Indigenous Law - Charter s. 25 Division of Powers: Constitution Act, 1867 ------------------------------------------ - Section 91 and 92 of the *Constitution Act* set out the division of powers - Federal in 91 - Section 91(27): givers federal government jurisdiction over legislating criminal law - Provincial in 92 - Section 92(15); provinces have jurisdiction to impose punishment to enforce provincial laws - Section 92(14): provinces have authority over the "administration of justice in the province." - The federal government enacts the criminal law, and the provinces administer and enforce it - Governments cannot legislate with respect to matter that are not under their jurisdiction (ultra vires, and thus unconstitutional) - Section 52 of the *Constitution Act, 1982*: "any law that is inconsistent with the provisions of the Constitution, to the extent of the inconsistent, of no force an effect" - No individual can be charged under a provision/law that violates the constitution Limits on State Power*: Charter* -------------------------------- - The Charter may constrain legislation or the behaviour of state actors - Sections 7-14 protect those subject to a criminal investigation, those charged and tried for criminal offences, and those punished for crimes - Section 1 reasonable limits - "The *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." - Section 52 of the *Constitution Act, 1982*: the law of no force and effect - Section 24(2) exclusion of evidence - Most common remedy for unconstitutional conduct of state actions - Allows evidence that has been obtained in breach of someone's Charter right be excluded from trial Indigenous Law -------------- - S. 25 -- "the guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: - \(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and - \(b) any rights or freedoms that now exist by way of land claim agreements or may be so acquired. ### *R v. Ippak* 2018 NUCA 3 **Facts:** Occurred in Nunavut in the community of Sanikiluaq, which was a dry community. Ippak was on a flight from Montreal. The RCMP was tipped off that Ippak was carrying alcohol from Montreal to Nunavut. The RCMP asked to search his bag, and he said yes and signed an agreement. They found no alcohol but smelt of marijuana, found 3.7 pounds. Charged with possession and trafficking The trial court found this was an unconstitutional search but included the evidence. **Issue**: Should the evidence obtained by police detention and search be admissible in court? **Holding:** Yes, there was an error in the trial court. (24(2) test) The evidence should be excluded. **Reasoning:** - How can we integrate Indigenous legal principles in criminal law - The court says that obviously the Charter applies in this community, even if Indigenous principles are at play. - The focus of Indigenous law is restitution and healing, distinct from settler law focus on punishment and deterrence. - How can we reconcile these differences? - Including the evidence would bring the administration of justice into disrepute - Want to integrate the offender back into the community (Indigenous principles) which can be done by excluding the evidence - Excluding the evidence meets the goals of both forms of law **Ratio: Highlights how criminal law and constitutional law interact with Indigenous laws and rights.** What Makes Law "Criminal" ------------------------- ### *Switzman v Elbing and AG of Quebec* (1957) **Facts:** The Quebec government tried to introduce a law that prohibited the use of property to promote communism or use print materials. **Issue:** is this particular law constitutional? Does it fall within Quebec jurisdiction because it deals with property and civil rights, or is it federal because it is criminal? Was Quebec acting *ultra vires*? **Holding:** the court found that this law falls under criminal. It is ultra vires and therefore stuck down. **Reasoning:** - Why? Because it is not about property. - The fundamental goal of the act is to prevent the propagation of communism and to punish those who do - The objective of the law prohibiting specific conduct - The element of punishment (not enough on its own to be considered criminal law) **Ratio: proscribing conduct + punishment = law criminal in nature (federal jurisdiction)** ### *R v. Mortgentaler* (1993) **Facts:** The law says that no abortion can take place outside of a hospital. The clinic that Morgentaler was running was not in a hospital, and he was being targeted by the government. Issue: is the law was beyond the provincial power of Nova Scotia? Is this *ultra vires* unconstitutional? **Holding:** Yes, the court ruled that it was a criminal law in pith and substance and thus *ultra vires* **Reasoning:** - The objective was not about healthcare but about limiting publicly viewed wrongs and crimes. - More about punishing conduct then protecting womens health - Historically, abortion was dealt with through the criminal code; this gives us an indication that this is also a criminal issue. **Ratio: look to the pith and substance of a law to determine if it is *ultra vires* or *intra vires.*** ### *Reference Re Firearms* (2000) **Facts:** The federal government passes a law dealing with the regulation of firearms. Quebec argues that firearms fall under property and civil rights and, therefore, provincial jurisdiction. The federal government views the regulation as dealing with crime and, therefore, within their jurisdiction. **Issue:** is this legislation criminal law and therefore constitutional, or does it deal with property and civil rights and thus unconstitutional (*ultra vires,* part of provincial jurisdiction)? **Holding:** Yes, the legislation is criminal and thus constitutional. **Reasoning:** - the pith and substance (objective) is directed at enhancing public safety by controlling access to firearms. - Dealing with public safety suggests we are dealing with criminal law. - We have prohibitions and penalties, which also tell us this is more likely criminal law than property or civil rights. - The fact that it deals with immoral conduct (use of firearms for harm) also points towards criminal law - The court says that owning guns is not immoral, but the use of guns to commit crimes is a moral evil. Since the law is directed at a moral evil points towards criminal law. - NOTE: criminal law is not restricted to dealing with "moral evil," but it gives an indication **Ratio: (2) Gun control law is a criminal law matter and thus in federal jurisdiction. (2) Conduct does not have to be immoral for it to be regulated by criminal law.** The Criminal Code ================= Introduction to the Criminal Code --------------------------------- - Criminal Code enacted in 1892 - Previously, offences were scattered throughout statutes - Motivated by practical and principled concerns - All criminal laws (definitions of crime, criminal procedure) now in the same place codified in the Criminal Code - Supports principle "that there must be no crime or punishment except in accordance with fixed, predetermined law Exhaustivity and the Criminal Code ---------------------------------- - The goal of exhaustivity is pursued, in part, to honour the values reflected in the maxim *nulla crimen sine lege, nilla poena sine lege* (no punishment without law) - One implication of this maxim is that **no one should be punishable for an offence found only in the common law** - The approach to exhaustivity in the Criminal Code in respect to common law offences and defences differ. ### Common Law Offences - It was not until 1953 that the Criminal Code prohibited offences at common law - Section 9 of the CC abolishes common law criminal offences - Supports the notion that there can be no punishment without a fixed predetermined law - If it is not in the code, you can't be charged with it - Common law offence of criminal contempt of court still exists #### Frey v Fedoruk \[1950\] SCR 517 **Facts:** Peeping tom situation, Frey was caught and detained by Fedoruk after he was observed at 11pm looking through a window into a woman's room in Fedoruk's house. Frey was charged that he "unlawfully did act in a manner likely to cause a breach of the peace by peeping." He was convicted at trial, but the conviction was overturned on the basis that there was no such offence. Frey then brought a civil suit as a plaintiff against Fedoruk and others for false imprisonment. **Issue:** Whether the conduct of the plaintiff, popularly described as a peeping tom, constituted a criminal offence? If so, was the defendant justified in arresting the plaintiff without a warrant? **Holding:** the SCC rejects the opinion of the lower court. Appeal is allowed, the restraint was not justified. **Reasoning:** - There is no history of "peeping tom" being considered a crime. - adopting the idea that conduct can be used to ascertain criminal behaviour would introduce create uncertainty to the administration of criminal law, leaving it to the judicial officer to decide if the acts proved constituted a crime or otherwise, not based on defined standards but according to individual views. - This decision is to protect the individual from risk of oppression **Rule: the courts cannot expand the range of common law crimes. It is up to the legislature to enact criminal law.** ### Common Law Offences Continued - With the exception of the common law offence of contempt, courts cannot create new common law crimes. - They can, however, interpret an existing provision in a manner that effectively extends the office and applies extended provisions retroactively to the case at hand - Codification as a Principle of Fundamental Justice? Section 7 of the Charter - Section 9 was challenged under this section in *United Nurses of Alberta v AG Alberta* \[1992\] - A *Charter* challenge to the use of the common law contempt offence - The union argued that the common law contempt crime was contrary to s. 7 of the Charter on the basis that the codification of crimes was a principle of fundamental justice, and this conduct was not codified as a crime. - Trying to say codification is a principle of fundamental justice. - This argument was rejected. - Fundamental justice does not require codification in the past we have not had codification but still has these principles of fundamental justice. - **Ratio: codification is not a principle of fundamental justice.** - There are still valid reasons for codification #### R v Jobidon \[1991\] 2 SCR 714 **Facts:** Jobidon accidentally killed a man named Haggart during in a fistfight outside of a bar. Haggart fell into a coma and died after being taken to the hospital. Both men had consented to the fight. The Crown charged him with manslaughter and had to prove the underlying crime of assault. The appellant was acquitted at trial because the **Crown could not prove a lack of consent**, but he was convicted upon appeal. He now appeals to the SCC. Unlawful act = assault S. 265(1)(a): "**Without the consent** of the other person, he **intentionally** applies force to the other person, directly or indirectly" **Issue:** Does consent have to be proven in all cases of assault or are there common law limitations that restrict/negate the legal effectiveness of consent in certain circumstances? **Holding:** the SCC dismissed the appeal; he is guilty of assault. **Reasoning:** - There are restrictions in the criminal code that limit circumstances where consent can be given - The common law also supports that an individual cannot consent to being assaulted - It was a principle of common law that it would be against public policy to allow fighting with the intent to cause bodily harm to be legal because it does the activity does not have enough social utility. - The court holds that the assault provision must be interpreted in light of the common law. the common law can give meaning to codified law - Consent under s. 265 can be effectively erased when adults intentionally apply force to cause hurt or severe non-trivial bodily harm in the course of a fistfight or brawl → drawing on the common law to effectively change the definition of assault in the CC. - How do they get around s. 9? - They use section eight: - Section 8(3) allows common law defences (below) - **This suggests that the common law still has a role to play. If common law defences are still allowed, then the common law is useful is discussing consent as a *defence* to assault.** - They also say that the code did not replace the common law principles of criminality policy limitations continue to apply - Concurring (Sopinka) - claims that the majority is attempting to create an offence where one does not exist in the *Code* by applying the common law She does agree, however, that it was assault. - By striking Haggart once he was unconscious, the accused acted beyond the scope of the consent and thus committed and actus reus of assault Can't consent once you're down **Ratio: The common law can be used to interpret a codified offence.** Are there justifications for *allowing* common law offences? - **Recognizing new offences could be a way of protecting vulnerable populations or criminalizing specific activities that not everyone thinks is appropriate,** - **This power could be used to protect people who are not represented in parliament.** ### Common Law Defences - The 1953 amendments included s. 8(3) which allows accused individuals to rely on common law defences (in addition to statutory defences) #### Amato v The Queen \[1982\] 2 SCR 418 **Facts:** accused wanted to rely on the defence of entrapment (not in the code at the time). No judge had ever recognized entrapment as a defence before. **Issue:** is s. 8(3) prospective or does it allow judges to *recognize* common law defences that existed at the time of codification? **Holding:** Yes, judges can recognize common law defences. **Reasoning:** - Legislatures could not possibly foresee all defences and codify them - Problem if it's not foreseen and written down, we risk an innocent person being convicted of a crime in the future where a valid defence would be applicable - The full court eventually endorsed a defence of entrapment in *R v Mack* **Ratio: common law defences can be used and created by the courts.** ### Common Law Defences Continued - Why are offences limited but not defences, excuses, or justifications? - We are more comfortable with a limit on common law offences because we have less concern about letting the guilty go free then allowing the innocent to be punished - We do not want individual judges to deprive someone of their liberty; believe this role should be reserved for the state separation of powers - In 1987, the Law Reform Commission of Canada proposed that all defences be set out in a new *Criminal Code* in the interest of comprehensiveness - It noted that it would still be up to the courts to develop other defences insofar as required by the reference to principles of fundamental justice in s. 7 of the Charter - A number of the principal defences in Canadian criminal law, including intoxication, necessity, and duress, are entirely common law defences and are only partially addressed in the Criminal Code. Quantum and Burden of Proof =========================== Presumption of Innocence ------------------------ - Charter, s 11(d): Any person charged with an offence has the right: - d\) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; - Refers to both the burden and the quantum of proof - Burden of Proof: placed on the Crown to prove an accused guilty - Quantum of Proof: proof needs to be beyond a reasonable doubt - Each element of the offence needs to be proven beyond a reasonable doubt ### *Woolmington v DPP* \[1935\] **Facts:** The accused killed his wife. The crown says it was murder; he says it was an accident. Judge charges the jury that the accused should be presumed guilty unless he can prove to the jury that he is innocent (the onus is on him to prove that it was an accident). **Issue:** Can an accused be presumed guilty until he has proven his innocence? **Holding:** NO, presumption of innocence is fundamental to the criminal justice system. **Reasoning:** - According to the House of Lords, this excuses the prosecution of the burden of proof and transferred it to the accused - It's the prosecution's job to prove that it was murder. All elements of the crime need to be proven by the Crown. burden is on the crown, no part should be on the accused **Ratio: Highlights the fundamental importance of the presumption of innocence to the criminal justice system. Basis for the Charter section 11(d).** ### *R v Oakes* \[1986\] **Facts:** The accused was arrested for possession with the purpose of trafficking. Narcotics Control Act, s. 8 which says that after the Crown proves possession beyond a reasonable doubt, then a legal presumption is created that the possession as for the purpose of trafficking. Burden shifts to the accused to prove on a balance of probabilities that he was *not* in possession for the purpose of trafficking. **Issue:** Does the reverse onus under s. 8 of the NCA violate s. 11(d) of the *Charter*? **Holding:** Yes, this is a violation of s. 11(d) and it cannot be saved under s. 1. **Reasoning:** - Problem: This mean the accused can be convicted of the charge even if there is reasonable doubt whether he intended to traffic - The Oakes Test is used to determine if legislation can still stand despite a charter violation (reasonable limits test): - \(1) The objective must be pressing and substantial PASSES - In this case, drug trafficking is pressing a substantial - \(2) Were the means chosen to pursue this objective reasonable and demonstrably justified (proportionality test) FAILS - They say section 8 of the Narcotic Control Act fails at the rational connection test - This is because they say having possession of any number of drugs does not necessarily mean there is an intent to traffic. **Ratio: (1) Reverse onus violates presumption of innocence. (2) section 1 reasonable limit test developed.** ### *R v Keegstra* \[1990\] Facts: The teacher made antisemitic remarks and was charged under s 319(2). Section 319(3)(a) states "no person shall be convicted of an offence under subsection (2) if she establishes that the statements communicated were true." This is a built in defence, but it creates a reverse onus. Keegstra argues that this reverse onus violates s.11(d). Issue: Does the "truth defence" built into the defence violate the presumption of innocence under the Charter? Holding: Yes, this does violate s. 11(d) but it can be saved under s.1. Reasoning: - Presumably, once the crown has established section 319(2), the offence is established - It then shifts to the accused to create a defence that it was true. - The court says it **doesn't** matter if the burden shifts as part of the offence stage or the defence stage - If the burden is shifted at any stage and one can be convicted because he fails to meet the onus, then there is a problem under s. 11(d) of the Charter - It basically means the same thing whether the onus shifts at proving the offence stage or the proving the defence stage - This can look like a burden on the crown and/or a burden on the defence. NOT OKAY - BUT it is saved under s. 1 because the legislature cannot accomplish its foal without this proof of truth defence - It would require the crown to prove the statement was false beyond a reasonable doubt that is too high a burden - DISSENT: - If it is so hard for the state to prove the truth of these statements, why is this burden on individual when it's the state that has all the resource. - Worse for 1 innocent person to be convicted than for the guilty to walk free Quantum of Proof ---------------- ### *R v Lifchus* \[1997\] Facts: trial judge charged jury and told them to use the phrase "reasonable doubt" in its ordinary meaning/sense. Issue: Did the trial judge err in how he instructed the jury to interpret the meaning of the term "reasonable doubt?" Holding: Yes, this is the incorrect charge to the jury. Reasoning: - Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt must be given along certain lines - Accused enters the proceedings presumed to be innocent - A reasonable doubt is not some imaginary or frivolous doubt - It must not only be based on sympathy or prejudice - It must be based on reason and common sense, it is logically derived from the evidence or absence of evidence **Ratio: Model charge to the jury explaining "reasonable doubt"** ### *R v Starr* \[2000\] **Facts:** trial judge told the jury that the phrase reasonable doubt has no special connotation and it did not require proof of absolute certainty. **Issue:** did the trial judge err in how he instructed the jury to interpret beyond a reasonable doubt. **Holding:** Yes, this was an error. **Reasoning:** - The error in this charge is that the jury was not told how a reasonable doubt is defined - They must be instructed that the standard of proof in criminal trial is higher than the probability standard used in everyday decisions and civil trials. **Ratio: Jury charges must follow *Lifchus,* but also a need to emphasize that reasonable doubt is closer to absolute certainty than a balance of probabilities.** Conduct or Actus Reus ===================== - The concept of *actus reus* refers to more than a prohibited action; it comprises a bundle of components that constitute a "guilty act" - \(1) Voluntariness (necessary) - \(2) Act or omission (necessary) - \(3) Circumstances (for some offences) - \(4) Causation (for some offences) - Each of these components needs to be proven by the crown beyond a reasonable doubt - Requirements for criminal liability: *actus reus* (guilty act) and *mens rea* (guilty mind) - The rationale is straightforward: we don't want to punish people for bad thoughts this then lends itself to we don't want to punish people for acts with no intent - NOTE: regulatory offences require only the guilty act (*actus reus*) - EXAMPLE: Assault - 265 (1) a person commits an assault when - \(a) without the consent of another person, he applied force intentionally to that person, directly or indirectly - Actus Reus: application of nonconsensual force (two elements, force and no consent) - Mens Rea: intention to apply nonconsensual force - The crown must establish all components beyond a reasonable doubt Voluntariness ------------- - Whether a person is capable of choosing to act; a conscious/choosing mind - The prohibited conduct must be a product of the will of the accused - Examples of involuntary acts: - A has an epileptic fit; the movement causes gun to go off and kills B - A is aiming at a target; X takes a hold of A's hand and forces her to point the gun at B and pull the trigger; B is hit and killed - A is aiming at a target; she is attacked by a swarm of bees and her defensive reflex movement causes the gun to go off in B's direction and is killed - Required for all offences, both criminal or regulatory - *R v Ruzic* involuntariness recognized as a full defence ### *R v. Larsonneu*r (1934), 24 Cr App R 74 **Facts:** Larsonneur had a French passport and was granted access to England. Her passport was marked to say that she had to leave the country by a specific date. She left England on that date for Ireland, but was deported from Ireland and was sent back to England in Irish custody. Charged under the Aliens Restrictions Act. She was convicted at a second trial and appealed her conviction. **Issue:** Were the accused acts voluntary? **Holding:** No. But the Court makes an error here. Appeal dismissed, conviction upheld. **Reasoning:** - Only focused on violating conditions of her passport and condition imposed after her forced departure - did not recognize that being deported back to UK from Ireland was not voluntarily chosen **Ratio: WRONGLY DECIDED. The court ignored the voluntariness requirement.** ### *Kilbride v. Lake* \[1962\] NZLR 590 (SC) **Facts:** Kilbride was charged under the Traffic Regulations Act for operating a motor vehicle without a current registration displayed. He did in fact have one, and it was displayed, however it was somehow removed when he left the car -- which was also the time that the officer gave him the ticket for the offence. He was convicted at trial, which he appealed. **Issue:** Can something become an offence by reason of an intervening cause beyond the defendant\'s control and which produced an effect outside of his knowledge? **Holding:** NO, appeal allowed. **Reasoning:** - Woodhouse holds that this is not a mens rea issue. Mens rea does not matter until actus reus is proven - The actus reus must be committed voluntarily not the case here - Extraneous case that resulted in the conditions for conviction becoming present, and the defendant did not voluntarily bring this about **Ratio: If the actus reus of the offence is committed involuntarily, then the defendant cannot be convicted.** ### *R v. King*, \[1962\] SCR 746 **Facts:** King was charged with impaired driving. He went to the dentist\'s office to have teeth pulled and was given sodium pentathol, an anesthetic. He was warned not to drive until he was fit to do so and was reminded of this after the surgery when he \"seemed fine,\" according to testimony. He says he does not recall this warning. He got in his car, drove, and caused an accident. He was convicted at trial; the conviction was quashed upon appeal, and the Crown appealed to the Supreme Court. **Issue:** Was he voluntarily driving under the influence? **Holding:** No. Appeal dismissed, quashed conviction upheld. **Reasoning:** - Ritchie, writing for the court, stated that "there can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision. In other words, there must be willpower to do an act for the actor to be convicted." - Not necessarily the willpower to do wrong, but the willpower to act at all - He was acting with an unconscious mind - There must be an act proceeding from a free will that brings about the mental conditions necessary to satisfy s.253, which did not occur here. - The circumstances here also really matter but not to be discussed now. **Ratio: There can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision.** ### *R v Ruzic* 2001 SCC 24 - "the treatment of criminal offenders as rational, autonomous, and choosing agents is a fundamental organizing principle of our criminal law" - This emphasis on autonomy made here is important for dealing with actus reus. - Voluntariness supports our emphasis on autonomy - The choice is central to criminal responsibility Acts and Omissions ------------------ ### Acts - Most offences require proof of some positive act - These offences are the norm - Subject to other elements of an offence being proven, punishing someone for something that they actively did poses no particular problem for criminal law - In some instances, Parliament has provided definitions in an attempt to clarify what is meant by specific terms used in the definition of prohibited conducts - This means that words can mean different things for different parts of the criminal law, by virtue of express definition. - In instances in which Parliament has offered no guidance, definition specifying what is contemplated by a particular act, one must look to the common law to find judicial interpretation of the term ### Omissions - Much of the controversy about liability for omissions relates to the extent to which criminal law should create positive duties and then sanction non-compliance with them - Liability for omissions is exceptional and reflects the policy choice that liability for inaction should not be generalized - Criminal liability only attaches where there is a **legal duty to act** and a **failure to act** - Two Kinds: - Specific omission offences - Duty is set out in the statute and there is punishment for failure to discharge that duty - Example: s. 446 -- causing injury to animals - General omission offences: - The duty is not explicitly defined, must find it in the statute or common law - Problematic because they do not, in themselves, set out the legal duty that needs to be accomplished to avoid punishment, only that there is a duty - Example: common nuisance (s. 180), criminal negligence (s. 219) - So where do we get these duties? - Statutory duties (R v. Browne) - Common law duties (R v. Thornton) #### R v. Browne (1997), 116 CCC (3d) 183 (Ont. CA) **Facts:** Browne was charged with criminal negligence causing the death (s 220) for failing to render assistance to the victim by failing to take her immediately to the hospital after undertaking to render such assistance. Under s.220, Crown must first establish criminal negligence under s. 219 using s. 217. S. 217 says "everyone 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." Trial judge held that there was a legal duty that Browne owed to the victim as his co-dealer (by virtue of their relationship) when he knew she ingested the drugs and Browne failed to discharge that duty. **Issue:** Did Browne provide an undertaking of a legal duty within the meaning of s.217? **Holding:** No, no legal duty arose. Therefore, no breach. **Reasoning:** - To find a legal duty, there first has to be an undertaking - Under s. 217, there is no pre-existing relationship or situation that creates a legal duty. Rather, there must be an 'undertaking' before a legal duty can be found. - **Legal duty cannot arise due to mere expression of words indicating a willingness to do an act -- there must be something in the nature of the commitment upon which reliance has been placed** - Brown saying "I will take you to the hospital" did not rise to the level of an undertaking leading to a legal duty - Undertaking: something beyond the mere expression of words that impose some kind of duty through which it can be said that reliance has been placed. **Ratio: (1) There is a need for an undertaking for legal duty to exist. (2) An undertaking cannot be implied; it must be clearly made, with binding intent, most likely with someone relying on it.** #### R v. Thornton (1991), 1 OR (3d) 480 (CA) Facts: Thornton, *knowing he had tested positive twice for HIV antibodies*, donated blood to the Canadian Red Cross (CRC) without disclosing this to them. He was tried and convicted of a violation of s.180 (common nuisance) of the Criminal Code. He appeals. Issue: "Can a "legal duty" within the meaning of s. 180(2) be one which arises at common law, or must it be one found in a statute? Holding: Yes. Appeal dismissed, conviction upheld. Reasoning: - Then, was there a common law duty that prohibited the donation of HIV positive blood to the Red Cross? - **Yes, the common law has recognized the fundamental duty to refrain from conduct which could cause injury to another person**. - Thornton has breached this duty. The court says that there is a history of the common law offence of common nuisance which was used to convict people of knowingly infecting others. - Thus, this creates a legal duty in this case that can be used to convict. - This is problematic because we know we can't convict of a common law crime, so why are we using common law jurisprudence? - This is a stretch not a codified offence, but finding a duty somewhere else to ground the common nuisance offence. - Second: section 180 requires that the conduct of a person "endangers" the lives or health of the public - It does not require actual injury or damage - The appeal court agreed with the trial judge that the public was in danger from the moment the appellant donated the blood. - Third: the appellant had personal knowledge that he should not donate blood, that it could get through the screening process, and could cause damage. - It becomes unnecessary to decide if a lesser for of mens rea was required. **Ratio: (1) Omitting to discharge *common law* duty can make you criminally liable. (2) the common law can be used to ground and inform legal duties under the criminal law.** Circumstances ------------- - It is common for legislation to include specific circumstances among the elements of an offence - When they are included, they are as much a part of the actus reus and failure of the crown to prove the circumstances will result in an acquittal of the accused - Examples: - Assault: it is only when a voluntary direct or indirect application of force is *unconsented to* that the actus reus for assault is complete. - Impaired operation of a conveyance: the act of operating is not a crime, when the accused is *impaired* it then becomes a criminal offence. - Often circumstances present little difficulty, sometimes (like consent) they are more challenging - Statutory definitions are sometimes provided to assist in clarifying relevant circumstances Causation --------- - An offence that prohibits a specific result is an offence that the crown needs to prove the causation (causing bodily harm, causing death, etc.) ### Consequences and Causation - When an offence specifies certain outcomes, the specified consequences itself generally poses little interpretive difficulty. - The issue rends to be whether the prescribed consequence was *caused* by the accused actions - When an offence prohibited a specified result, proof of causation is plainly an essential element, without which the prosecution will fail - Causation is composed of two elements: - **Factual causation:** whether a logical link be drawn between the accused conduct and the prohibited consequence (did a cause b?) "But For Test" - **Legal causation:** is there a sufficiently strong connection between what an accused did and the resulting consequence to justify criminal consequence? (did A contribute enough to be held criminally responsible for B?) - The crown must prove that the prohibited consequence occurred AND that the accused caused the particular consequence. #### Factual Causation ##### *R v. Winning* (1973), 12 CCC (2d) 449 (Ont CA) Facts: accused was convicted of obtaining credit from T. Eaton Co by false pretenses. Accused gave her property name and address, but gave false statements in at least two other places. However, Eaton's did not rely on the information in the application except for the name and address (which were correct). Issue: Were the accused fraudulent statements/representations the cause of her obtaining credit insofar as she could be convicted? Holding: No. Appeal allowed, conviction quashed. Reasoning: - The evidence clearly establishes that Eaton's did not directly rely upon the information contained in the application save for the name and address - Therefore, the appellant did not obtain credit by a false pretence because credit was not given on reliance on her application, but on reliance on Eaton's investigation of her - They only relied on her name and address, which was given accurately. **Ratio: In cases of factual causation, there must be a direct link between the accused actions and the prohibited result. If not proven, there can be no conviction.** ##### *R v. Gentles*, 2016 BCCA 68 Facts: The accused was charged with a series of driving offences after hitting two pedestrians, killing one and injuring the other (he was impaired). The trial judge found as a fact that the victims had walked into the path of the accused vehicle and the accident was unavoidable. The trial judge could not find that the impairment casued the accident. The accused was convicted only of impaired driving. Issue: Did the trial judge err is acquitting the accused of impaired driving causing death/bodily harm? Holding: NO. Acquittal of causing bodily harm/death affirmed Reasoning: - The Court of Appeal said that although "there is no question Mr Gentles was impaired,... the finding the one and a half seconds was insufficient time to avoid the accident means the Crown did not prove beyond a reasonable doubt that the impairment was a contributing cause to the death and the injuries resulting from it." - AKA: since the victims walked into the path without enough time for the accused to stop (even if he was sober) the impairment was not the cause of the accident. The victims caused the accident and the accused can only be convicted of impaired driving (not causing death/bodily harm) **Ratio: there must be factual causation between the prohibited act and the prohibited consequence for there to be conviction.** #### Legal Causation - The criminal code provides no general provisions governing the test for legal causation - There are some CC provisions that Parliament includes specifics for dealing with causation problems (in offences including death as a consequence) - Example: Section 226 - This provision helps establish causation where there is another cause for the prohibited result (underlying condition, disease, or disorder that may contribute to death) - This section says even with that additional cause we can still find sufficient causation if he causes bodily injury resulting in death - In all other instances, one must turn to the common law to find the test and rules for legal causation - The legal test for most crimes comes from Smither ##### Smithers v. The Queen \[1978\] 1 SCR 506 Facts: Smithers is charged with manslaughter after killing someone after a racially charged hocky game. Outside in the parking lot, Smithers punched the victim in the head, he bent over, and then Smithers kicked him in the stomach. Victim vomits, and chokes on his vomit, causing his death due to a faulty epiglottis. Smithers was convicted, conviction upheld on appeal. Now appeals the SCC. Issue: Was the kick a sufficient cause of the death to attract criminal liability? Were the actions of the accused a contributing cause of death outside the *de minimus* range? What about the faulty epiglottis? Holding: Yes, appeal dismissed. Conviction upheld. Reasoning: - Dickson, writing for the court, said that the kick had to be an \"operating cause outside of the *de minimis* range\" in order for it to be deemed the cause of death, - that is, the Crown had to prove that the kick caused the vomiting, and that the vomiting caused the death. - He accepts the Crown\'s argument that this was outside the *de minimis* (too small to be meaningful) range, **the thin skull rule applies in criminal law** and therefore the kick led to the victim\'s reaction that resulted in death. - Even though there was another cause, that does not relieve the accused because he contributed to the death in a way that is **not insignificant** - This is a lower standard than the *Smith* test, which is what the defence wanted to be used. - The *Smithers* test needs a lower threshold of causation to be proven in order to get the conviction. **Ratio: An action only has to be an operating cause outside of the *de minimis* (not insignificant) range in order to be deemed the cause of a prohibited result in criminal law. The \"thin skull\" rule applies in criminal law as in tort law, you take the victim as they are (with any existing medical conditions, etc.)** NOTES: - It is important to understand that racism was clearly a fundamental part of the events of this case - Not only was Smithers responding to the racial slurs being thrown at him, but the jury that convicted him was all white. - In 1994 (post Charter) the constitutionality of the Smithers test was challenged: - In *R v. Cribbin* the accused argued on appeal that the Smither standard\ "sets the causation threshold in homicide so low as to infringe upon the principles of fundamental justice in s. 7 of the Charter." - Justice Arbour agreed that the requirement for causation must be considered a part of fundamental justice but found that when combined with the need for an appropriate level of fault on an objective scale, the Smithers standard is constitutionally compliant. - By itself, it may be an infringement, but in combination it's okay. - The SCC established a higher threshold of causation applicable to a subset of the forms of first-degree murder (constructive first-degree murder) in the Harbottle case. - Otherwise, the Smither's test governs analysis of legal causation for almost all crime *R v. Harbottle* \[1993\] 3 SCR 306 Only applies to constructive murder **Facts:** the accused (appellant) and a companion brutally sexually assaulted a women while forcibly confining her. After the assault, both defendants discuss ways of "killing her nicely." The accused/appellant held her legs while his companion strangled her. Under s. 231(5), murder is first degree murder irrespective of if it is planned and deliberate where death is caused by a person while committing or attempting to commit another offence (Including forcible confinement, sexual assault). Accused argues that the language that "death is caused" requires more than just him assisting in killing (ie. that he does not meet standard of legal causation). The appellant was found guilty by a jury, the conviction was upheld on appeal. **Issue:** Was the appellants participation enough to be found guilty of first degree murder (specifically because he did not physically strangle the victim)? Do we need a higher standard of causation for s.231(5)? **Holding:** Appeal dismissed. But higher standard needed because of the deprivation of liberty for this offence. **Reasoning:** - Judges do not want to make distinction between someone strangling and someone assisting - Crown must establish that the accused contributed in a way that is a substantial cause - The consequences of a conviction of first degree murder are such that a test of causation must be a strict one. need a higher test than *Smithers* this test is the substantial causation test **Ratio: Harbottle test, a higher standard of legal causation, is developed for s. 231(5). Substantial causation test -- were the acts of a nature that they be regarded as a substantial and integral cause of death. All other offences with causation element still use Smithers test** NOTES: - Harbottle thus established a higher threshold of legal causation linked to certain words - This higher threshold for causation presumably applies to first degree murder as well as subsections ss. 231(6), 231(6.01), 231(6.1), and 231(6.2) ##### R v. Nette 2001 SCC 78 Facts: Nette is convicted of second degree murder (s.231(5)), which requires that a person *cause* the death of a human being. Nette and a companion robbed a women, tied her up, and left her there where she later dies. Nette is arguing that the higher threshold from *Harbottle* should apply, there were many contributing factors to the women's death and he should not be held responsible. Nette was convicted, conviction upheld on appeal. Issue: What is the standard of causation for second degree murder? Holding: Appeal dismissed. Harbottle test only applies to first degree murder, Smithers test still applies to second degree murder. Reasoning: - Arbour, writing for the majority, states that the *Smithers* test applies for all forms of homicide and the additional test used in *R v Harbottle* applies ONLY the case of constructive first-degree murder, rather than to all forms of homicide. - Latitude will be given to judges on how to explain the test for legal causation to the jury - Preferable to explain that the Crown has to establish that the accused made a significant contribution to the victim's death (instead of "not insignificant") - L'Heureux Dube disagrees: there is a difference between significant and not insignificant contribution (significant = harder standard to meet) - The court makes clear the difference between both tests: - Harbottle requires the accused actions are essential, substantial, and integral to the death - In Smithers, it only requires that the action is "not insignificant" to the cause of death **Ratio: The *Smithers* causation standard still applies to all forms of homicide except under s231(5-6.2). When addressing a jury, the standard of causation for second-degree murder should be positively stated in that the actions of the accused must have been a \"significant contributing cause\" of death instead of "not insignificant".** #### Common Law test for causations - \(1) Smithers/Nette - Did the accused make a **significant contribution** to the victim's death? - Applies to all offences besides s231(5-6.2). - \(2) Harbottle - Substantial causation test: did the accused commit an act or series of acts which are such a nature that they must be regarded as a **substantial and integral cause of the death**? - Only applies to first degree murder under s231(5) and s23(6) ### Intervening Acts - Can an accused still be responsible for a prohibited result if something else happens between the accused act and the result? - Can an intervening act break the chain of causation so that we can say A is no longer liable for the consequences of B? #### Pagett v The Queen (1983) **Facts:** Accused shot at police who were attempting to arrest him. He used a pregnant women as a shield, when the police returned fire, she was shot and skilled. (A shoots at B, B shoots at A, but hits C who A was using as a shield). **Issue:** Is the accused responsible for the victims death? Can we establish causation even though it was not the accused who shot the victim? **Holding:** Yes, the court found that the death of the victim as caused by the actions of the accused. Appeal dismissed **Reasoning:** - Intervening act = the police shooting at the girl - The act of self-defence by the police (by shooting back) is what caused the death - BUT, because the police acted reasonably in self-defence, and thus the accused is still responsible for the death of the victim he set the train in motion - "if a reasonable act of self defence against the act of the accused causes the death of a third party, we can see no reason in principle why the act of self-defence\... should relieve the accused of criminal responsibility.." **Ratio: (1) If a reasonable act of self-defence against the act of the accused causes the death of a 3rd party, self-defence should not relieve the accused from criminal responsibility for the death of the 3rd party. (2) An accused is liable for any injuries if they are the result of a reasonable response to the accused unlawful acts.** *R v JSR* Dangerous Activities **Facts:** A (JSR) shoots B, B shoots A but hits C. B is not a police officer, there is no self defence **Issue:** Can we still say that what A did significantly caused the death of C? **Holding:** Yes, JSR is responsible. **Reasoning:** - We can still find the accused liable, there is still significant causation. - They look at drag-racing cases. - Causation is analogous to the car race (*R v Menses*) - Each shooter consented to engage in a gunfight, they are responsible because they caused the gunfight, and if not for the gunfight, the death would not have occurred. - Both parties are engaging in this dangerous activity/behaviour, so each person bears equal responsibility for its continued lifespan subject to withdrawal or an intervening act. - If someone leaves the fight, the other party know, and they continue shooting, then the chain of causation is broken. **Ratio: When involved in dangerous activities, both parties assume the risk and responsibility, and legal causation can be found for both parties because the death/injury would not have occurred *but for* their actions.** #### R v. Blaue, \[1975\] 1 WLR 1411 **Facts:** Accused stabs a women, penetrating her lung. At the hospital, she refused a blood transfusion (Jehovahs Witness) that was necessary to save her life. She dies. Accused is charged with murder and convicted of manslaughter. **Issue:** Is the accused legally responsible for the victims death due to her choice to refuse the transfusion? Did this intervening act break the chain of causation? **Holding:** Yes, accused is legally responsible. Chain of causation not broken. **Reasoning:** - The fact that the victim refused but did not break the causal connection between the act and the death. - Looks like Smithers contributing cause - But "those who use violence on other people must take their victims as they find them." - So, the stab wound and not the girl's refusal to accept medical treatment was the operating cause of death. The victim's rejection of a blood transfusion did not break the chain of causation. **Ratio: A victim is not required to mitigate their injuries or losses for the purposes of criminal law. Reaffirms the thin skull rule in *Smithers*, you take the victim as you find them and this includes religious beliefs.** *R v Maybin 2012 SCC 24* (leading case for determining whether intervening acts breaks the chain of causation) Facts: Maybin brothers are at a bar and get into a fight with the victim. T struck a blow that rendered victim unconscious. Bouncer comes over and punches unconscious victim. Medical evidence inconclusive which blows caused death. Trial judge acquitted all three accused of manslaughter. Court of Appeal ruled that the accused's assaults were factual contributions to the cause of death, 'but for' their actions, victim would not have died. Issue: Did the brother caused the death? Or did the bouncers punch break the chain of causation? Holding: Appeal dismissed, action of appellants NOT broken by the intervening act of the bouncer, so the accused's actions are significant cause to the victim's death -- the chain of causation was NOT broken. Reasoning: - Issue of Factual Causation - But for the brothers beating up the victim, the bouncer would not have run over to the fight and punched victim - Intervening Act - Bouncer coming over and punching victim in the head - **Reasonable foreseeability: was the general nature of the intervening act and the risk of non-trivial harm objectively foreseeable at the time of the dangerous and unlawful act?** - In this case, *it was* reasonably foreseeable that bar staff would intervene in the assault and that more potential harm could ensue. - Suggests (doesn't determine) that the chain of causation not broken - **Independent Act: were the effects of the accused actions effectively overtaken by the more immediate causal action of another party acting independently?** - We cannot treat the bouncer's act as so far removed that it should be treated as the sole cause of the victim's death - Brothers' actions are what triggered the bouncer's actions - It was not an independent act, there is a clear connection between the accused's act and the bouncers act - Suggests (doesn't determine) that the chain of causation not broken - But those tools are not determinative and the ultimate test is *Smithers* did the accused significantly contribute to the accused death? - Yes, because if not for the accused actions the death would not have occurred. They are still morally (and thus legally) responsible. **Ratio: Leading Canadian case for determining whether intervening acts break the chain of legal causation. Analytical tools for intervening acts: used to address whether the unlawful act of the accused was a significant contributing cause of death (1) Reasonable foreseeability and (2) Independent acts** - **These are not determinative tests, they are just tools, and they do not change the standard of causation under Smithers/Nette** **Analytical Tools for Intervening Acts** - 1\) Reasonable Foreseeability: was the general nature of the intervening act and the risk of non-trivial harm objectively foreseeable at the time of the dangerous and unlawful act? - More appropriate to use for natural event - Was the intervening act so unforeseeable that it would not be fair to hold the accused morally responsible? - Must look to the general nature of the intervening act (not specific act itself) - 2\) Independent Act: were the effects of the accused's actions effectively overtaken by the more immediate causal action of another party acting independently? - More appropriate to use when 3rd party acts are involved - Did the acts of the accused merely set the stage for the intervening act or did the acts of the accused trigger/provoke the act of a third party? **Where intervening acts do not sever chain of causation** - In these crimes, causation is established regardless of the other acts. - **Section 224: chain of causation not broken if death could have otherwise been prevented by resorting to proper means. (not going to the hospital post assault does not resolve the accused of liability if you die)** - **Section 225: chain of causation not broken if immediate cause of death is proper or improper treatment applied in good faith. (if the victim gets a blood transfusion post assault, it goes wrong, and they die, the accused is still liable)** **Legal Causation Issues:** - 1\) Multiple Contributing Causes - Smithers -- epiglottis; kick to stomach - Harbottle -- holding down legs while accomplish strangled victim - Nette -- tying up the victim; other factors relating to her physical health - 2\) Intervening Acts - Blaue -- refusal to consent to blood transfusion to save her life - Maybin -- bouncer's punch to unconscious victim - Pagett -- self defence act of the police shooting at accused and killing victim - Question is always the same: did the actions of the accused contribute significantly to the victim's death? (besides s. 231(5)) Contemporaneity =============== The Principle of Contemporaneity -------------------------------- - Contemporaneity principle concerning the relationship between mens rea and actus reus that requires two elements to coincide temporally - Come from *actus non facit reum nisi mens sit rea --* an act is not guilty unless there is also a guilty mind - **This principle this requires that there be a temporal overlap between the mental fault and the prohibited conduct** - **Raises the question of to what degree this temporal connection must exist/be proven** ### *Fagan v Commissioner of Metropolitan Police* \[1969\] 1 QB 439, 52 Cr App R 700 **Facts:** Accused is charged with assaulting a police office. Actus reus of the offence is application of nonconsensual force, mens rea is the intention to apply nonconsensual force. T1, accused drives onto the officers foot unknowingly, T2, officer says get off, accused notices he;'s on his foot and doesn't immediately move the car. **Issue:** Was there a sufficient temporal overlap between mens rea and actus reus that satisfies the requisite elements of the offence of assault **Holding:** Appeal dismissed, components of assault were proven. **Reasoning:** - What were the elements of the event: - T1 (drives onto foot) - AR established -- application of non-consensual force - MR *not* established -- no intention to apply force - T2 (car remains on foot) - AR *not* established -- have a failure to act, not an act - MR established -- have intention to apply nonconsensual force - This raises the problem of contemporaneity - The majority interprets this sequence of events as **one continuing act** - The assault occurs when force is applied and as it continues until he moved the car - The act began in T1 and continued into T2 then we don't have a problem because we have the guilty mind in T2 being super imposed onto the guilty act in T1 - This is problematic. - Dissent: Believes this is punishment for an omission -- assault is not based on omission **Ratio: Continuing act characterization as a way to superimpose mens rea so there is no longer a contemporaneity issue.** ### *R v Miller* \[1982\] 2 All ER 386, 75 Cr App R 109 Facts: Accused is charged with arson under s. 434 of the CC. T1, lights fire by falling asleep with lit cigarette, not aware of the fire. T2, wakes up, realizes mattress is smoldering, does nothing. Actus reus of the offence is causing damage to property other than their own by fire, the mens rea is intentionally or recklessly causing damage. Issue: Was there sufficient overlap of mens rea and actus reus for Miller to be charged with the offence of arson? AKA is there contemporaneity? Holding: Yes. Conviction upheld. Reasoning: - Elements of the Event: - T1 (lights fire via dropped cig) - AR established; but consequences not met - MR *not* established -- no awareness of prohibited act because not aware the act has occurred - T2 (moves to the other room) failure to act - AR *not* established but consequences met - MR established -- recklessly causes damage = had subjective awareness of the risk of the prohibited act - There is the option to use Fagen one continuous act - This is hard to reconcile because there is a lot between the acts - The House of Lords said when Miller is aware of a danger caused by his own act, a legal duty is created to prevent that danger from occurring - When accused creates danger and acknowledges that danger, then failing to prevent the danger from happening = criminal liability - This can be problematic **Ratio: When the accused unknowingly creates danger by their own actions, they create a duty to rectify/prevent harm once they become aware of the danger. Duty Theory to resolves any issue of contemporaneity. (THIS IS UK CASE, LOOK TO COOPER TO TALK ABOUT IT AS A CONTINUOUS TRANSACTION)** **Continuing Act vs Duty Theory** - **Continuing Act (*Fagan*)**: mens rea can be superimposed if you look at sequence of events as one continuous act - **Duty Theory (*Miller*)**: where a person unknowingly does an act that creates a danger, they are under a legal duty to attempt to rectify that danger once they become aware of it. ### R v Cooper, \[1993\] 1 SCR 146 Facts: Cooper was convicted pursuant to s. 229 (now) of the Criminal Code. Actus reus of the offence is to act in a way that causes bodily harm, leading to death. Mens rea is intention to cause bodily harm, know that bodily harm is likely to cause death, and be reckless whether death ensues or not. The accused became angry, grabbed the victims throat, and shook her. He blacked out, and when he woke up the victim was dead. Issue: Was there sufficient contemporaneity to establish the offence of homicide? Holding: Yes, conviction upheld/restored. Reasoning: - Elements of the Event: - T1 (strangulation) - AR established (consequence not yet established) - MR -- we don't know? - T2 (death) - AR fully established - MR *NOT* established -- did not mean to cause bodily harm he knew would result in death - SCC relies on Meli v The Queen (English case) -- similar fact scenario and contemporaneity issue - The accused wants to kill the victim; punches until unconscious but not dead, throws off the cliff, dies later due to exposure - T1 (assault) -- act established but consequences not yet established; MR (intent to kill) established - T2 (death) -- AR complete (victim dies); MR not established (no intent to kill at the moment victim dies) - Privy Council upheld conviction using the Continuing Transaction Rule - The entire episode was one continuous transaction that cannot be subdivided - At some point, the MR coincides with the series of acts (superimpose mens rea) - Application to Cooper: - The majority said it's sufficient that the intent and act of strangulation coincided at some point; not necessary for intent to continue for the entire 2 minutes it took to cause death - The majority is **assuming** that when the accused grabbed the victim, he not only intended to cause harm (obvious) but also knew that death was likely to result - Dissent said an intent to cause bodily harm does not mean there was knowledge that bodily harm would cause death. **Ratio: Continuing Transaction Rule recognized in Canada as good law for contemporaneity issues (we use this rule, not *Fagen*). AR and MR do not need to perfectly align, as long as we can view the actions as one continuous act.** ### *R v Bottineau*, 2011 ONCA 194 - Accused charged with murder of 5 y/o grandson and forcible confinement of 6 y/o granddaughter - Neglect and abuse occurred over long period -- accused argued that there was no specific point where requisite men rea was formed for murder - Court rejected this argument. They said its sufficient for Crown to prove that at some point during the conduct that the accused knew grandson's death was the probable consequence of their abuse/neglect ### *R v Williams*, 2003 SCC 41 Facts: Williams was in a relationship with victim for 18 months. When he learns he is HIV+ he continues to engage in unprotected sex with the victim. She became HIV-positive and Williams was charged with aggravated assault (s. 268), s268 requires proof of assault under s265. AR: application of nonconsensual force + prohibited result (endanger). MR: intentional application of force + objective foresight of harm Issue: Do actus reus and mens rea coincide sufficiently to make out the offence of aggravated assault? Holding: NO. Cannot be found guilty of aggravated assault because of contemporaneity but can be found guilty of *attempted* aggravated assault. Reasoning: - Elements of the Event: - T1 (pre-diagnosis sex) - AR not established -- consent to sex, probably have endangerment of life (she *probably* was infected by the accused but can't be proven) - MR not established -- no intent to apply non-consensual force. Probably no objective foresight because HIV status unknowns - T2 (post-diagnosis sex) - AR not established -- no consent to sex BUT reasonable doubt as to endangerment of life (she may have already been infected prior/at the time of the accused diagnosis) - MR established -- intent to apply nonconsensual force with objective foresight of the risk of bodily harm - We look at T2 only we can't get the AR and MR to align at this time - BUT we can get attempted aggravated assault this is what happens - We can't say endangerment occurred, but we can say there was an attempt **Ratio: Example of a contemporaneity problem that cannot be solved.** ### *R v Forcillo* 2018 ONCA 402 **Facts:** Forcillo and partner respond to call that young man (Yatim) is on a streetcar with a knife. Yatim did not respond to requests to drop weapon -- when he walked toward F, F fired 3 shots. One hit his heart -- this round of shots was one to cause death. 5.5 seconds later, F shot Y 6 times as he laid on the floor the first round caused the death, but Y *was not* dead at the time of this second round. F argued defence of lawful use of force (s. 25) and self defence (s. 34). Two charges: Second degree murder for first round of shots, attempted murder for second round of shots. Found guilty of attempted murder but acquitted for second degree murder (no factual or legal causation that second round of shots caused death). Appeals the decisions **Issue:** Do the two rounds of shots warrant two separate charges (second degree murder for round one, attempted murder for round two) **Holding:** Yes -- two separate charges for each of the rounds of shots was open for the Crown to prove **Reasoning:** - Elements of the Events: - T1 (round one) - AR established -- act causing death - MR established -- intention to cause death - DEFENCE: it was justified (self-defence, etc.) - They acquit of this charge we assume they accept the defence - T2 (round two) - AR act of shooting but no death -- AR for murder NOT established, AR for attempted murder established - MR established - intention to cause death - DEFENCE: it was justified (self-defence, etc.) - They convict of this charge we assume they did not accept his defence - The court says this is not a continuous act, but two distinct acts - It was then open to the jury to find the defence was justified at T1 but not at T2 - Two separate counts promoted trial fairness and the ability of F to effectively present his defence - Defence of self-defence or warrant application for force justifies the first round of shots - Did not prejudice F -- was consistent with his account of the events **Ratio: Example of NOT a continuous act.** Fault or Mens Rea ================= Introduction ------------ - *Actus non facit reum nisi mens sit rea* - An act does not become guilty unless the mind is guilty - "it is a general rule that men's rea is an essential ingredient of criminal offences.. while an offence of which men's rea is, not an essential ingredient may be created by legislation...." - The Charter requires that there be some fault element for all criminal offences and even demands subjective fault for a few crimes that carry a high degree of stigma (e.g: murder) - Parliament can still create an offence that does not require mens rea, but the courts will presume that all offences require mens rea unless otherwise stated Different Fault Elements ------------------------ - Fault elements include - Intention (subjective) - Knowledge/wilful blindness (subjective) - Recklessness (subjective) - Negligence (objective) - They are not defined in the code it's up to the courts to interpret and make meaning of the words The Choice Between a Subjective and Objective Standard ------------------------------------------------------ - **Subjective Fault:** what was passed through the mind of the accused at the time of the offence - examples: purpose, intent, knowledge, wilful blindness, recklessness - **Objective Fault:** what a reasonable person would have thought (what they should have been thinking under the circumstances) - example: negligence (different from civil negligence) Understanding Fault ------------------- - \(1) different crimes have different fault requirements - Assault (s265) -- [intentionally] apply nonconsensual force - Incest (s 155) -- [knowingly] having sex with a relative - \(2) some crimes have alternative fault elements - Arson (s433) -- [intentionally] or [recklessly] causes damage by fire - \(3) fault requirements may apply to different elements of the AR - Assault -- [intentionally] applying non-consensual force also requires [knowledge] of non-consent = intention re act, knowledge re circumstances ### R v. ADH 2013 SCC 28 Facts: Mother gave birth in a Walmart bathroom, thought it was dead, left it there in the toilet. The baby was found and resuscitated. Charged under s.218 which provides that everyone "who unlawfully abandons or exposes a child who is under the age of 10 years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured" is guilty of an offence. Trail judge acquits because the Crown did not establish subjective mens rea. Crown appeals arguing the standard is objective. Issue: Does s. 218 of the criminal code require a subjective or objective fault element? Holding Majority concluded that a subjective standard applied. Appeal dismissed Reasoning - SUBJECTIVE: accused must have known that leaving the baby was likely to endanger/injure the baby - OBJECTIVE: a reasonable person would have known that leaving the baby was likely to endanger/injure the baby. - The crown would want an objective standard because they are more likely to convict - Nothing in s. 218 that would indicate that Parliament wants to depart from subjective fault standard - Presumption of subjective fault standard incorporates the important value in criminal law that the morally innocent should not be punished - How strong is the presumption? - Prior to this case, the presumption was a principle of first resort - In this case, court refers to the presumption as part of the context you may use to interpret the statute (indicates that it holds less weight now) **Ratio: Presumption of subjective fault in assessing competing interpretations. Objective fault only applies if the legislature explicitly states that.** ### R v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 (Ont CA) - People can usually predict the outcomes of their actions. If someone does something likely to cause certain results, it\'s reasonable to assume they also expected those results. - If they still went ahead, it shows they intended those consequences. - The more likely the outcome, the easier it is to conclude they intended it. - Purpose: - The goal is to determine the accused\'s actual intent, not to assume what a reasonable person might intend in the same situation. - The accused\'s testimony is key evidence and should be considered alongside other evidence to determine intent. ### R v. Tennant and Naccarato (1975), 23 CCC (2d) 80 (Ont CA) - For **subjective liability**, what a reasonable person might have expected is just evidence to suggest the accused also expected those consequences. - For **objective liability**, what a reasonable person should have expected forms the basis for holding the accused responsible. ### R v. Zora 2020 SCC 14 Facts: Accused was charged with possession for the purpose of trafficking (underlying offence), he was released on bail while awaiting his trial. One of the conditions of bail is the accused is under house arrest. On Thanksgiving, the police come by, and twice the accused doesn't answer. He is charged with breaching his bail conditions (he is being charged with something that would not otherwise be a crime without the underlying charge). The accused said he was home, but did not come to the door because he didn't hear the police Issue: The provision does not lay out a fault element, so is it subjective or objective? Holding: Subjective standard applies. Appeal was granted and a new trial was ordered on the basis that the trial judge improperly applied an objective mens rea rather than a subjective mens rea standard Reasoning - SUBJECTIVE: The accused knowingly or recklessly (knows the risk and act without care of the risk) fails to comply with bail conditions Accused wants this standard since it's higher - OBJECTIVE: marked departure from what a reasonable person would have done in the circumstances the crown want this standard because it is a lower standard for conviction - The court says this is a provision that requires subjective fault. - They give several reasons why - Does Zora treat the presumption of subjective fault as a principle of first resort? - Yes and no, it's not clear from the decision whether we are elevating the presumption to the principle of first resort - There is an attempt to look at the context - But they could have used other factors to come to the same result they could have shown that the legislation was trying to deal with the issue of individual - They wanted subjective, and they could have just used the principle alone to prove that subjective is the right answer - It is key that the court is looking for clear intention to use something other subjective fault - Elevating higher than in ADH, but not necessarily to the level of principle of first result - Trying to say that for broad offences, there should be a higher standard of fault veresu in very narrow offences, an objective decision makes sense - Houston says this case takes a different approach than Smithers - With this decision, the SCC is discussing the fact that the breach of bail conditions tends to disproportionally affect marginalized groups, specifically addicts - This would be a "double punishment" for something that an accused has not been convicted of - In smothers, they ere not looking at the social context the way they seem to be doing here - Is this the right way to do things? Should we be tailoring criminal law to the impact on people? **Ratio: For us, this shows that we usually accept subjective fault presumption** "Common Sense Inference" ------------------------ - It is permissible in some circumstances to sue the commonsense inference when establishing subjective fault - A sane and sober person usually knows what the predictable consequence of their actions are, and means to bring them about - NOT applying an objective standard "the purpose of this process, however, is to determine what the particular accused intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances, where doubt exists as to the actual intention of the accused" - Not thinking about what they ought to have thought we're thinking about if it is likely that a particular consequence would follow from the act, then we can assume the accused knew this. - If I stab someone, because it is really likely that stabbing will cause death, we can assume I had the intention to causer death, - BUT if I push someone and they die, that is not a very likely consequence so using the commonsense inference has less weight/no appropriate - This is different from the thin skull rule that looks at causation so in these circumstances the AR of me killing is established but thew MR may not be - Permissive, not presumptive - Only use this in specific circumstances, not the standard presumption Subjective Fault ================ Intention/Purpose/Wilful Blindness ---------------------------------- - Highest level of subject hardest to prove by crown - Intent, purpose, and willfulness are all synonymous terms (same standard) - Intent: "The exercise of free will to use particular means to produce a particular result" (*Lewis)* - S. 229(a)(i): culpable homicide is murder where the person who causes the death of a human being [means to cause death ] - Purpose: - S.21(1)(b): everyone is a party to an offence who does or omits to do anything [for the purpose of aiding any person to commit it] - Wilfulness - S.319(2): everyone who, by communicating statements, other than in private, [wilfully promotes hatred...] ### Intention vs. Motive - In *R v Lewis*, they say motive and intent are distinct - "\[T\]he exercise of free will to use particular means to produce a particular result" (intent) versus "that which precedes and induces the exercise of the will" (motive) - Motive is not an element of criminal responsibility - The crown is not required to prove motive in order to convict - But motive is relevant to *mens rea* because the existence of motive makes it more likely that an accused as the requisite *mens rea* - Motive may help prove *mens rea* - Lack of motive may disprove *mens rea* ### Purpose versus Desire #### R v. Hibbert \[1995\] **Facts:** Principle offender forces the accused to lure the victim into the apartment lobby where the principle offender shoots the victim. The accused is charged as a part to the principle offender offence (attempted murder and aggravated assault). At trial, the accused is acquitted of murder and convicted of assault. He appeals this decision says he was under duress and the purpose of his actions was to save himself, not to assist the principle offender. How can they say his purpose is assisting when he did not what the outcome. **Issue:** Does "purpose" is s.21(1)(b) mean "immediate intention" or "desire"? **Holding:** The meaning of purpose in this provision is "immediate intention" **Reasoning:** - The desires and meaning of the accused do not matter - We are only concerned if they intended to bring about a specific result - The defence of defence may excuse the crime but would not negate his mens rea **Ratio: purpose is synonymous with intent. You can have mens rea without desire to bring about the consequences of your actions? Affirms motive can be useful to determine intention.** ### Wilful/Intentional #### Buzzanga and Durocher (1979) **Facts:** Two accused want to draw up support for a French speaking school. They publish a pamphlet saying bad things about French Canadians. They want to rile up the French Canadians to drum up support for the school. They are charged with hate speech against French Canadians (bit they are part of that group). **Issue:** What does "wilful" mean in s.319(2)? Does willful mean intention or recklessness? Holding: for the purpose of this offence, willful means with the intention of promoting hatred; does NOT include recklessness. **Reasoning:** - We assume subjective standard - Are we dealing with intention or recklessness - If wilful means reckless, we have a stronger chance of convicted "did the accused publish the pamphlet knowing there was a risk that it would promote hatred against French Canadians" - If it means intention, less chance of conviction "did the accused publish the pamphlet with *the intention* to promote hatred against French Canadians" - The court found that wilful means intention - The accused cannot be convicted because they did not intend to promote hatred - They intended to rile up the community to garner support for the school - Crown has to prove: - \(a) Accused conscious purpose in distributing the pamphlet was to promote hatred against French Canadians, or - \(b) Accused foresaw that the promotion of hatred was certain or morally certain to result from the distribution of the pamphlet but they distributed it anyway to obtain the school - This is elevated from "reckless" because its not just a risk of the prohibited consequences but near certainty that it would **Ratio: Establishes that under s319(2), wilful means intentional. Helps define the contours of intention, specifically with the meaning if recklessness. Also demonstrates why motive is different from intention.** Knowledge --------- - Knowledge is a slightly lower standard than intention - Willful blindness can substitute for knowledge (*Briscoe*) ### *R v Theroux* \[1993\] Facts: The accused is convicted of fraud under section 380(1) for lying about having deposit insurance. The accused owns a construction company, selling lots for homes to be built. The company (accused) tells prospective purchasers that he has deposit insurance (they can get their deposit back). The company goes bankrupt, and the purchasers lose some or all of their deposit. The accused said he did not have the *mens rea* for fraud because he believed that the houses were going to be built was not trying to de-fraud anyone. Issue: Does the offence of fraud require intention to defraud or is the mens rea requirement a lower standard? What is the mens rea requirement? Holding: the appropriate fault requirement for fraud is knowledge. Reasoning: - Elements of the offence - AR: deceit or falsehood (prohibited act) + deprivation or risk of deprivation (prohibited result) - MR: knowingly act + knowledge that the act may lead to deprivation - If we apply an intention standard, then it would be that he did something with the intention of putting property at risk or depriving a property - The court says we don't go that far. What matters is that you acted in a way knowing you could bring about these consequences - For our purposes, we think about it as acting in a way **knowing that there is a risk of leading to a particular outcome** - If what he believed mattered, then he may not be convicted. - We can't rely on what people believed of so, people with skewed moral standards would not be convicted because they don't believe what they are doing is wrong - Accused has knowledge of the lie and knowledge that there is risk of deprivation - Court rejects his argument that he should be required to have intended to deprive - Subjective fault for fraud must be broad enough to catch secondary incidents of disadvantaging other people, even when this is not the intent of the fraudster **Ratio: the subjective fault standard for the offence of fraud is knowledge. Knowledge s required for both the act and the consequence.** Davis... Facts: Accused picked up a man who was going to be arrested. Police follow him, the passenger gets out and is arrested. Davis gets out of the car, walks away, sees the police cars coming towards him and starts to run. He then stops, and they search him for weapons, but find none. In the car Davis was driving, there was a gun under the passenger seat (where Cyrus was sitting) Issue: Did the accused have knowledge of the gun to establish possession? Holding: No. Accused acquitted. Reasoning: - Its no question that Davis had control of the gun (it was in his car). But did he know about the gun? - The crown says all the evidence that Davis knew about the gun is circumstantial - They use the fact that he ran from police (and was acting suspiciously) - The gun was close enough to Davis he should have seen it, regardless if he put it there - The court says the crown has not proven beyond a reasonable doubt that the accused knew about the gun - We can establish that because the fact of anti-black racism, and other facts (couldn't see the gun, it was under the passenger seat, etc.) mean that his behaviour raises reasonable doubt about knowledge - Good example of THE CONTEXT MATTERS Wilful Blindness ---------------- - Willful blindness can substitute for knowledge (Briscoe) ### *R v Briscoe* 2010 **Facts:** Accused was charged as a party to first-degree murder, kidnapping, and sexual assault under s.21(1)(b): "everyone is a party to an offence who... does or omits to do anything for the purpose of aiding any person to commit it." Principal offender had a plan to kill, did not tell the accused. Accused drove the principal offender and the victim to a golf course where the accused is sexually assaulted and murdered. He also gave the principle offender a weapon and held her down. Accused argued that he could not have aided because he did not know that the crime was going to occur. **Issue:** can a person be charged under s.21 if they did not know a crime is being committed? **Holding:** Yes, the trial judge did not consider willful blindness. **Reasoning:** - Court says the accused can be convicted if he was deliberately ignorant, wilful blindness can substitute for knowledge where knowledge is the mens rea of the crime - "the doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries" - Why is this willful blindness: - The accused admitted it in his statements **Ratio: willful blindness can be a substitute for knowledge.** Recklessness ------------ - Minimal subjective fault requirement someone who sees the risk and proceeds in the face of that risk - Recklessness "is found in the attitude of one who, aware that there is a danger that his conduct would bring about the result prohibited by the criminal law, nevertheless persists, despite the risk" *(Sansregret*) - You are aware of the danger of a particular result from your conduct, but you persist on. - Example: Arson, s.434: "Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty...." - Either intention or recklessness ### *Sansregret v The Queen* \[1985\] Reasoning: - **Recklessness = when someone sees the risk and still takes the chance** - **Involves knowledge of a danger or risk and persistence in a course of conduct which 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 - Difference between the two: culpability in recklessness is justified by consciousness of the risk by proceeding in the face of it, while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry **Ratio: definition of recklessness and distinction between recklessness and willful blindness. Involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result w

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