Principle of contemporaneity: MR must be present at some point between the beginning and the end of the AR (Cooper – shook throat of victim, blacked out, she died). Canadian courts (Bottineau – grandparents’ neglect lead to death) have affirmed the continuing transaction approach (Fagan – runs over PO’s foot). If the criminal act is complete before MR arises, there is no concurrence and no criminal liability for that particular crime (Williams – doesn’t disclose he has HIV but can’t determine whether she contracted it before or after he found out). The court generally takes a flexible, generous approach.

Burden of proof is on the Crown to proof the requisite AR & MR. The presumption that you intend the natural consequences of your act is a piece of evidence of the MR, but this can be displaced by evidence to the contrary. The burden often slides to the accused when raising defences (duress, self-defence, mental disorder, intoxication, etc).

ACTUS REUS – Guilty Act

Prohibited conduct; burden of proof on Crown to make it out

Must have a physically voluntary act with causation (& sometimes circumstance, when prescribed)

Act or an Omission:AR can involve issues of omission, causation, and circumstance – CC will specify

Omission requires either explicit language in the CC that says the omission is the act OR a specified positive legal duty that the accused failed to meet (s215-218)

Thornton: donated HIV+ blood to Red Cross; cannot undertake an act dangerous to life (s216) but ALSO liability for common nuisance MIGHT arise out of a breach of common law duty (tort duty to take reasonable care towards one’s neighbour)

Mabior: omission of HIV+ status and had sex with 9 women – Cuerriertest says consent is vitiated by fraud of non-disclosure if there is:

  1. Dishonest act: fraud when complainant would not have consented had they known about whatever’s being omitted
  2. Deprivation: significant risk of serious bodily harm established by a realistic possibility of transmission (in case)

Note: This test is gendered in HIV+ cases – men w/ low viral load can just wear a condom; women w/ low viral load may have to disclose to get the man to wear a condom

Voluntariness:the act or omission is chosen at a basic level

Fundamental principle of the common law – no conduct shall be found to be criminal unless the act is voluntary (Ruzic)

Many defences to this: mental disorder, extreme intoxication, automatism, etc

Involuntary act: “acts that are done by the muscles without any control of the mind” (Bratty)

Voluntary conduct: “willful physical act or omission” (Bratty)

Causation: expresses the element of fault necessary to base responsibility (s222). Test (notwithstanding Thin Skull and subject to intervening causes and remoteness)

  • Factual causation: evidentiary stuff that the jury decides – can a logical link be drawn between the accused’s conduct and the prohibited consequence? – “but for” test
  • Legal causation: legal threshold question for the judge to decide – should the accused be held responsible in law for causing the consequence?

Test for legal causation of culpable homicide: must cause the death of a human being, directly or indirectly, by an means (Smithers) – low bar; affirmed as homicide standard in Nette

  • This also applies to 2nd-degree murder and must be some causation to ensure moral culpability under Charter(Cribbin)
  • Accused’s actions must be a significant and contributing cause (for this & for ALL true crimes, except 1st-degree murder) (Nette)
  • Intervening acts do not break the causal chain if the act is still a significant contributing cause (Maybin)

Test for legal causation for 1st-degree murder: accused must commit an act/series of acts which are a substantial and integral cause of the death (Harbottle) – higher bar

True crime = presumption that they are those found in CC or punishable by 2+ years (Prue & Baril)

MENS REA – Guilty Mind

Maxim: an act is not criminal unless the mind is criminal as well

No punishment w/o moral culpability to protect the morally innocent

Exception: predicate offences are a mix of subj & obj MR - the underlying offence (subj MR) and the consequence (obj MR of reasonably foreseeable harm) UNLESS consequence is murder – always subj MR (Vaillancourt Martineau – due to stigma, can’t label someone a murderer unless Crown proves BARD that they have subj. foresight of death)

Any bodily harm (except death) must just be objectively foreseeable (Creighton)

Stigma crimes ALWAYS have subj MR (murder & theft); sexual assault is not a stigma crime b/c too broad – mixed opinions

Express language of MR in CC governs. Prescribed MR will be unconstitutional if:

  • Stigma offence w/ objective MR (Vaillancourt) – can’t be anything but subjective MR
  • True crime with strict or absolute liability (Hundal) – can’t be anything but subjective MR or C/P negligence
  • Risk of loss of liberty w/ absolute liability (MVA)

Presume subjective MR

Subjective Forms of MR:

INTENT: desired/sought the proscribed harm OR desired/sought some other end, but was (virtually) certain that the proscribed harm would be the result (Hibbert)

KNOWLEDGE: subjective knowledge of some fact/state of affairs

RECKLESSNESS: knowledge of danger/risk and persistence in a course of conduct which creates risk that prohibited result will occur (Sansregret)

  • Comes out of consequence crimes; applies to murder (Duong?)

WILLFUL BLINDNESS: import knowledge that you had a subjective suspicion of something and failed to inquire – deliberate ignorance; higher bar than recklessness (Sansregret)

  • Comes out of circumstance crimes; applies to rape

Objective Forms of MR:

CRIMINAL NEGLIGENCE: marked & substantial departure from conduct of reasonable person which shows wanton and reckless disregard (Tutton Waite)

PENAL NEGLIGENCE: same as CN but no wanton & reckless disregard (Hundal)

STRICT LIABILITY: default MR for a regulatory offence (created in Sault Ste Marie); Crown proves AR BARD and onus shifts to accused to advance a defence of due diligence – did everything they could to prevent the thing from happening (Wholesale Travel)

  • Regulatory laws = about society’s good governance instead of society’s soul; can import jail time; different concept of fault
  • Policy = public protection/vulnerability & licensing (Corey)

ABSOLUTE LIABILITY: conviction on AR alone; no defence based on absence of MR but can’t have loss of liberty b/c it violates s7 (Lamer) or PofFJ (Wilson) (MVA Reference)

Beaver: doesn’t know he’s selling actual heroin; interprets O+NDA section as criminal - need knowledge to prove possession (dissent – parliamentary language was clear; absolute liability)

Pierce Fisheries: too many small lobsters; interprets fisheries law as regulatory – absolute liability; no stigma

MISTAKE OF LAW

CC s19: “ignorance of the law by a person who commits an offence is not an excuse for committing that offence”; justified not because it is fair but because it is necessary – policy reasons

  • Mistaken belief about facts = relevant to proof of fault (MR)
  • Mistaken belief about law = not an excuse (Pamajewon)
  • Policy: everyone’s capable of knowing law, should be no incentive to remain ignorant, allowing the defence would mean law is uncertain & unfair in application
  • No option to use it against a strict liability crime – we live in a regulated world; dealing with people’s lives (La Souveraine)

s25(2): Person executing a process (PO, border guard) CAN use mistake of law as a defence if mistaken about illegality of what they’re enforcing

EXCEPTIONS:

1. Mistake going to MR of offence

  • If honest, mistaken belief that you have a right based on fact or law OR mixed fact & law, there can be no offence (Howson – towing; “w/o colour of right”)
  • An accused cannot have willfully breached (higher MR) probation through commission of criminal offence unless he knew that what he had done was a CO; CC amended (Docherty)

2. Officially induced error

  • First recognized as a defence in Lévis – vehicle registration fees w/ no letter
  • Six elements must be proven by accused for officially induced error: (1) error of law or of mixed law & fact; (2) person who did it considered legal consequences of his/her actions; (3) advice obtained came from an appropriate official; (4) advice was reasonable – consider POV of reasonable person in similar situation; (5) advice was erroneous; (6) person relied on the advice in committing the act (Lévis)
  • Jorgensen: video store w/ adult films, all mistakenly approved by OFRB - he didn’t have MR

3. Impossibility

  • Impossible for you to know the law

COLOUR OF RIGHT

Genuinely held, subjective belief in a state of facts, which if it existed would be legal justification/excuse to protect your land/property – can only be used if written into the offence, like in Howson

Must be commonly held – not just the individual, and only works for those with possessory/proprietary rights

SEXUAL ASSAULT

AR & MR must both be proven beyond a reasonable doubt

No consent if there was only two choices (believed by victim): to comply or be harmed

General intent crime – drunkenness is no defence

CA McClung J – bonnets and crinolines

Actus Reus / Mens Rea
“An act of unwanted sexual touching”
  1. Touching is determined objectively
  2. Sexual nature of the contact is determined objectively
  3. Absence of consent is about the subjective mental state of the person touched – the accused’s perception of the complainant’s state of mind is not relevant
/ “Intention to touch, reckless as to consent”
  • Either there IS or ISN’T consent
  • No such thing as implied consent
  • When there is NO consent, there may be the defence of “mistaken belief in consent” (mistake of fact), but must have been affirmative communication by words/conduct to participate in the sexual activity with the accused

Consent plays two roles: it means the complainant in her mind wanted the sexual touching to take place AND that the complainant affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused (all Ewanchuk)
L’H-D concurrence: “This case is not about consent since none was given. It is about myths and stereotypes”
s273.2(b): can’t say you thought the complainant consented if you don’t take reasonable steps to ascertain that (upheld by Darrach; response to Pappajohn– just honest mistaken belief of consent)

R v JA: erotic asphyxiation; consent required throughout the process

See Mabior

See Hutchinson

Relevant sections: s271 sexual assault; s272 SA w/ a weapon causing bodily harm; s273 aggravated SA

SPECIFIC OFFENCES

Embedded offences: making out the greater requires making out the lesser

s343 robbery -> s322 theft

s229 murder -> s234 manslaughter (?)

s267 assault causing bodily harm -> s265 assault

Lesser offences require general intent (MR to commit the immediate act); greater offences require specific intent (MR specifically focused on particular consequence)

s222 homicide (culpable or non-culpable) -> cause the death of a human being through unlawful act OR criminal negligence.

  • Murder: intentionally means to cause death/harm leading to death
  • Infanticide: intentionally killing a child
  • Manslaughter: can’t make out intentional MR for murder, but there is the act – only need obj foreseeability of bodily harm, not of death (Creighton)

MISTAKE OF FACT

Not that big of a defence b/c hard to prove + s19

s273.2 applies for SA offences

It negates MR for one or all elements of the AR – if it’s subj MR, mistake of fact must be reasonable; if it’s obj MR, mistake of fact must be honest and reasonable

Need to have an air of reality

Prue: not knowing driver’s license had been suspended was mistake of fact – suspended under provincial enactment

MacDougall: not knowing driver’s license had been suspended was mistake of law – suspended under CC; no defence

These two are tough to reconcile; Pontes follows MacDougall

CONSENT

Cannot consent to non-trivial bodily harm (Jobidon)

Consent not given freely is vitiated (Cuerrier)

INTOXICATION

Beard

Three conclusions about intoxication:

  1. If your drunkenness causes insanity, we’ll treat you as an insane person. The burden shifts; accused now has to prove he was drunk enough for the defence of insanity to apply.
  2. If there is evidence of drunkenness that renders the accused incapable of forming specific intent to do this crime, then the evidence is allowed to be told to the jury in order for them to determine whether the accused actually had the intent.
  3. Evidence of drunkenness falling short of a proved incapacity of the accused to form the intent necessary to constitute the crime and merely showing that the accused more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequence of his actions.

R v Bouchard-Lebrun

Beard (1920) principle that intoxication can be raised as a defence in respect to a specific intent offence in certain circumstances still stands in Canada, but is subject to the qualification from Robinson:

  • The third Beard rule (based on the capacity of the accused to form a specific intent) violates ss7 & 11d of the Charter because it required the jury to convict even if there was reasonable doubt that the accused possessed actual intent
  • Court replaced it with one to the effect that intoxication can be a defence if it prevents the accused from forming the actual specific intent to commit the offence.

In Leary (1978) the Court held that an accused cannot use the defence of self-induced intoxication to raise a reasonable doubt about MR for general intent offences

  • Held that the recklessness shown by the accused in becoming that drunk can constitute the fault element needed to find that a general intent offence has been committed

But, in Daviaut (1994) the Court held that this substituted MR rule from Leary is also contrary to ss7 & 11d. Intending to drink doesn’t mean intending to commit a sexual assault – violates principles of fundamental justice.

  • The Court cast aside the Leary rule and established that accused persons who are in a state akin to automatism or insanity at the time they commit an act constituting a general intent offence would be legally entitled to raise a reasonable doubt concerning the required mental element
  • Sopinka wrote a strong dissent to this

Shortly after Daviault Parliament enacted s33.1 of the CC to ensure that “intoxication may never be used as a defence against general intent violent crimes such as sexual assault and assault” – imputes MR for the crime due to choice to get drunk

CAN introduce drunkenness (Daviault)for specific intent crime or a non-violent general intent crime

*Distinction between general (may be purely physical products of momentary passion) and specific (involves the mental process of formulating a specific intent) intent exists solely for the purpose of determining whether there’s a defence of intoxication at common law

Three key points:

  1. If a party raises mental disorder on the basis of intoxication, the court must first look to whether the accused meets the requirements in s16 of the CC
  • In particular, whether he/she suffered from a mental disorder or disease of the mind at the time of the alleged act

The court should only consider the intoxication defence if s16 does not apply

  1. If s16 does not apply, the court must consider whether s33.1 of the CC governs the case. There are questions over s33.1’s constitutionality.
  2. The overall duty of the jury is to determine whether the accused had the requisite mens rea (BARD) – must focus on the accused’s actual intent, not just on whether he/she had the capacity for the intent

MENTAL DISORDER

s16(1):no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder [legal term; defined as “disease of the mind”; determined by trier of law] that rendered the person incapable of appreciating[more than just knowing; need perception (Cooper)] the nature and quality of the act or omission or of knowing that it was wrong [more than just legally wrong; must know it’s morally wrong;determined by trier of fact]

Chaulk: NCRMD open to people who knew he/she was committing crime but could not comprehend that it was morally wrong

Oomen: knowing that the particular act is wrong in the particular circumstances

Disease of the mind: “embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion” (Cooper)

If state of toxic psychosis emerges, presume that it won’t count as disease of the mind (Bouchard-Lebrun, Cooper) but accused could rebut by showing he had an MD unrelated to intoxication-related symptoms

Once declared NCRMD, person sent to a disposition hearing– meant to address health, not criminality; emphasis on appropriate treatment and protection of the public

Absolute discharge required in Review Board can’t conclude that the person poses a significant risk to the safety of the public

This disposition stuff is constitutional (Winko)

Test for disease of the mind places heavy emphasis on capacity for practical reasoning and cognition – focus on extreme forms of paranoid schizophrenia that involve powerful delusions

s2: unfit to stand trial; determined through a fitness hearing pre-trial

Just need limited cognitive capacity to be fit to stand trial (Whittle)

Evidence of insanity can only be introduced if the accused’s own evidence puts mental capacity into question or after the accused is found otherwise guilty; accused can raise evidence of insanity whenever (Swain)

MENTAL DISORDER & NON-MD AUTOMATISM

Automatism: “a state of impaired consciousness in which an individual, though capable of action, has no voluntary control over that action” and in actuality it “only includes involuntary behaviour which does not stem from a disease of the mind” (Stone)

Parks: sleepwalking; held it was non-mental disorder automatism; later overruled in Stone

Stone: Sets out approach for characterization of automatism as non-mental disorder [successful claim = absolute acquittal] or mental disorder automatism [successful claim = absolute discharge, conditional discharge, or detained in hospital]. Deals with psychological blow automatism – bad lover.

  1. Trial judge must begin from the premise that the automatism is caused by a disease of the mind and look to the evidence to determine whether it convinces him or her that the condition is not a “disease of the mind”.Direct contrast to Parks.
  2. Although Stone accepts the multi-factored approach to the policy component of the characterization of the automatism set out in Parks, it reinforces the continuing danger aspect of that approach. Trial judge must not limit their approach just to future violence while in an automatistic state.

For psychological blow automatism, must determine whether a normal person might have reacted to the alleged trigger by entering into an automatistic sate as the accused claims to have done. Needs to be extremely shocking. Contextual objective test.