CRIMINAL RULES

Oakes when law breaches Charter – p. 2 of Crim outline, p. 2 of short Con outlines

I. Actus Reus & Mens Rea Overview:a. Actus Reus: The act that must be performed, or omission that is proscribed, the circumstances or conditions in

which the act must occur, and any consequence that must be caused by the act. b. Mens Rea: The mental elements normally describe the actual or “subjective” state of mind of the accused -

such as intent, or planning and premeditation, or recklessness, or knowledge, or willful blindness.

II. ACTUS REUS & Offenses a. Manual Possession Offense

i. RULE: Personal possession = accused person exercises (1) physical control over a prohibited object

ii. With full knowledge of its character, and iii. Where there is some evidence to show the accused person took custody of the object willingly

with intent (mental element) to deal with it in some prohibited manner.b. Joint Possession/Constructive Joint Possession Offense

i. RULE: Joint Possession s. 4(3)(b) must be:1. Knowledge of prohibited item (proved by direct/circumstantial evidence)2. Consent, and 3. Measure of control on the part of the person deemed to be in possession.

c. Consent – Principle: Absence of consent by victim is important AR condition that must be present for offense to occur:

i. Assault Fist Fight: Absence of consent is not an element of the AR in cases where adults intentionally apply force causing serious hurt or non-trivial bodily harm to each other. Consent is vitiated (legal validity is destroyed) in fist fight situations.

ii. Sexual Assault: Complainant to provide actual active consent throughout every phase of the sexual activity. Whether the complainant was subjectively consenting in her mind.

iii. Fraud nullifying Consent: All that is required is a fraud and a casual connection between that fraud and the submission or failure to resist

d. Causation – Consequence that must occur before offense is complete:i. Criminal Negligence Causing Death Offense: 2 part test – Factual + Legal Causation:

1. Factual Causation: Was the conduct of the accused a significant contributing cause of the prohibited consequence? BUT FOR

2. Legal Causation: Determining who among those who have factually contributed to an event should be held legally responsible for that event.

ii. Homicide Offense:1. Whether ∆’s actions are a significant cause of the ∏’s death. The ∆ must be the cause of

death beyond de minimusiii. 1st Degree Murder Offense:

1. Whether ∆’s actions are a substantial cause of death – which is higher degree of legal causation.

iv. Intervening Causes: An intervening, independent act by 3rd party that is a more direct cause of a victim's death than the prior act of ∆ may sever the legal causal connection between that victim's death and the prior act of ∆.

v. Contributory Negligence/Improper Medical Treatment: Don’t negate causation/crim responsibility.

e. Ommissions – Offense committed by failing to act. Test:i. Offence must contemplate guilt for omissions,

ii. ∆ must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and

1. If no pre-existing relationship, to find a legal duty to act, an Undertaking must be established:a. Clearly made

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b. With binding intent/commitmentiii. Omission in question must be a failure to fulfill that legal duty.

III. SUBJECTIVE MENS REAa. Intent

i. Assault Offense: 1. Intention to apply force, directly or indirectly, 2. To another person.

ii. “Willfully” & Obstructing Justice:1. “Willfully” - Act is done for the purpose of obstructing the course of justice.

a. Purposely bringing about the consequenceb. w/ Knowledge that consequence will result

iii. Homicide Offense (incl Murder)1. ∆ knows act done for a unlawful object;2. Did anything;3. That he knew was likely to cause the death of a human being – subjective foresight of death;4. Caused the death of a human being - substantially contributed.

IV. SUBJECTIVE MENS REA W/ OBJECTIVE FEATURESa. Recklessness – Principle:

i. ∆ acts in spite of actually & personally foreseeing the risk that if they do act, ii. Prohibited consequence will be brought about.

b. Willful Blindness – Principle: Subjective - ∆ personally sees the risk of a fact, but then willfully avoids confirmation so as to be able to deny knowledge. Suspicious was aroused – not should have been aroused.

i. Receiving Stolen Property Offense:1. ∆ knew that the property was stolen2. Use willful blindness only where it can almost be said that the ∆ actually knew3. Willful blindness will suffice because it is the equivalent of actual knowledge.

c. Purpose – Principle:i. Intent and Knowledge.

1. INTENT: ∆ intended to do prohibited act.2. KNOWLEDGE: Aider must know that the principal intends to commit the crime. Can use

willful blindness to impute knowledge. d. Fraud Offense:

ii. RULE AR: 1. Proof of a prohibited act (deceit, falsehood) and, 2. Proof of deprivation caused by the prohibited act (actual loss or victim's pecuniary interests at

risk)iii. RULE MR:

1. Intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) 2. Knowing or desiring the consequences proscribed by the offence (deprivation)3. Guilty whether he actually intended the deprivation or was reckless as to whether it would

occur.

e. Sexual Assault Offense:iv. Intention to touch, and v. Knowing of, or being reckless of or wilfully blind to , a lack of consent, and

vi. Sexual nature of the contact1. Whether the assault is “sexual” is an objective one, viewed in light of all circumstances is

sexual assault visible to reasonable person.2. The intent or purpose of the person may also be a factor in considering whether the conduct is

sexual. 3. If the motive of is sexual gratification, will be factor in determining whether the conduct is

sexual.

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V. OBJECTIVE MENS REA & True Crimes – standard usually “penal negligence”a. Manslaughter Offense

i. Conduct causing the death of another person; ii. Foreseeability of harm, and

iii. Fault short of intention to kill.  1. Fault may consist either: in committing another unlawful act which causes the death, or in

criminal negligence. b. Unlawful Act Manslaughter Offense:

i. Unlawful act must be objectively dangerous (likely to subject person to danger of harm/injury); ii. Intent to commit this underlying act

iii. Objective foreseeability of the risk of bodily harm that is non-trivial 1. ∆ must possess capacity to appreciate the risk flowing from his conduct.

c. Criminal Negligence Manslaughter Offense:1. Unlawful act that exhibits a marked departure from the standards of a reasonable person in all

of the circumstances, AND2. Objective foreseeability of the risk of non-trivial bodily harm

a. Capacity to appreciate the risk flowing from his conduct.d. Dangerous Operation of Car Causing Death Offence

i. ∆ driving dangerously, in light of all the circumstances, and;ii. Whether the manner of driving, viewed on an objective basis, constitutes a marked departure from the

norm of a reasonable person in circumstances of the ∆. e. Unlawfully Causing Bodily Harm Offense

i. Underlying unlawful offence that is objectively dangerous (likely to subject another person to harm); ii. Intent to commit the underlying offence

iii. Caused bodily harm to another person as a result of committing that underlying offence1. Harm caused must have sufficient causal connection to the underlying offence committed

iv. While having objective foresight of bodily harm

VI. REGULATORY OFFENSES – Presumed to be “Strict Liability”a. Strict Liability:

i. Don’t need to prove MR; the doing of the prohibited act prima facie imports the offence.ii. Public Welfare Offenses/Provincial Law = traffic infraction, liquor laws, sale of impure food

iii. Offense Language = “Cause” “Permit”iv. Defense of Due Diligence MUST be available:

1. Reasonably believed in a mistaken set of facts, OR 2. Took all reasonable steps to avoid the particular event.

b. Absolute Liability: i. Denies ∆ the opportunity to put forward a defense of due diligence. Whether the offence falls into this

category: ii. The overall regulatory pattern adopted by the Legislature

iii. the subject matter of the legislation & the importance of the penalty iv. and the precision of the language used

1. If jail time, offense s. 7 of Charter, so presume Strict Liability

VII. INCOHATE OFFENSES – No Doubling upa. Aiding & Abetting -Generally:

i. Can be convicted for aiding (physically supporting) or abetting (encouraging) the accused to commit the offence. Can be convicted for not only the offences they intended to aid or abet, but also another offence, provided that it is a foreseeable outcome of the offence they did intend to aid or abet

ii. Section 21. CC—Parties to an Offence 21. (1) Every one is a party to an offence who: 1. actually commits it; 2. does or omits to do anything for the purpose of aiding any person to commit it; or 3. abets any person in committing it.

iii. Elements:

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1. Some active steps must be taken by word or action 2. Presence at the commission of an offence can be evidence of aiding and abetting if

accompanied by other factors: a. Prior knowledge of the principal offender's intention to commit the offence, OR b. Attendance for the purpose of encouragement

3. MR: Must have rendered the assistance for the purpose of aiding the principal offender to commit the crime. “Purpose” = Intent and Knowledge. 

a. ∆ intended to assist the principal in the commission of the offence, and; b. Aider must know that the perpetrator intends to commit the crime.

b. Counselingi. AR: Active inducement of the commission of a criminal offence. 

ii. MR: Either intended that the offence counseled be committed, OR iii. Knowingly counseled the commission of the offence iv. While aware of the unjustified risk that the offence counseled was in fact likely to be committed as a

result of ∆’s conduct.

c. Attempt – Needs same MR for underlying offense attempting to commit:i. MR: Intent to commit the offence in question, and

ii. AR: Some step towards the commission of the offence attempted beyond mere acts of preparation:1. Define the nature of the actus reus of completed offence.2. Consider factors of proximity (how close was the completed offence?): Time, location, and

acts under the control of the accused.iii. The fact that an offence is legally impossible (Factual Impossibility in VA) in the factual

circumstances is no defense.

d. Conspiracy: i. AR: Agreement to commit the offence.

ii. MR: Intention to agree, and;iii. Intention to commit the offence (purpose to commit offence in the future; knowledge that the offence

will occur in the future)iv. Impossibility of completion = No Defense.

VIII. Corporate Liability – p. 14

IX. DEFENSESa. Insanity Defense s. 16(1)

i. Incapable of knowing act was wrong : “Did the accused lack the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not?”

ii. Incapable of appreciating the nature & quality of the act: If ∆’s appreciation extends past knowledge of the act (e.g. choking) to appreciation of the consequences, impact, and result (e.g. that this choking will result in unlawful murder) ∆ will be found to have appreciated the nature and quality of the act. R v. Cooper p. 15

iii. BOP on ∆ on a balance of the probabilities.

b. Disease of the Mind s. 2 Definition:i. “Disease of the mind” contains a substantial medical component as well as a legal or policy

component. (R v. Parks)1. Medical component = the medical opinion as to how the mental condition in question is

viewed or characterized medically.2. Legal or policy component:

a. Scope of the exemption from criminal responsibility to be afforded by mental disorder; and

b. Protection of the public by the control/treatment of persons who have caused serious harms while in a mentally disordered state.

i. Condition likely to present recurring danger should be treated as insanity. ii. Condition stemming from internal make-up of the accused = insanity.

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3. Any illness/disorder/abnormal condition which impairs the human mind and its functioning, EXCLUDING however, self-induced states caused by alcohol or drugs, AS WELL AS transitory mental states such as hysteria or concussion.” (R. v. Cooper)

c. Automatism & Act negating Voluntariness: ∆’s physical motions were not culpable where they are not voluntary or thought-directed or conscious (Framework, p. 17)

i. An otherwise criminal act cannot be said to be voluntary unless the person is given reasonable time to avoid committing the act (eg – when find gun in car, & don’t have time to dispose)

ii. Elements1. Claims of automatism must be on the defense to prove involuntariness on the balance of

probabilities.2. Law presumes people act voluntarily3. Defense must:

a. Make an assertion of involuntariness, and b. Call expert psychiatric and/or psychological evidence confirming that assertion.

d. Intoxicationi. General Intent Offenses

1. Simple Intoxication isn’t a defense for General Intent crimes, such as sexual assault. 2. Extreme Intoxication: Where intoxication is so extreme, an essential element of the offence,

voluntariness, is not present. Must show:a. Expert evidence (that the accused was in a state of automatism or insanity)b. Accused must prove, with that expert evidence alongside any other evidence that, on a

balance of probabilities, he was in an extreme state of intoxication.ii. S. 33.1 enacted due to above case:

1. Extreme intoxication is available for all general intent offences except for assault, sexual assault, or interference w/ bodily integrity of another (basically any violence or threats of violence)

iii. Specific Intent Offenses1. Generally: Simple intoxication operates only if proof of intoxication helps leave the

judge/jury in reasonable doubt over whether ∆ formed the relevant mens rea - the formation of the specific intent.

2. Even if not guilty of a specific intent offence b/c of intoxication, ∆ can still be convicted of a lesser included general intent offence (e.g. murder => manslaughter, e.g. assault with intent => assault)

3. 2 Step Test:a. J must be satisfied that the effect of the intoxication was such that its effect might

have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt.

b. J then instructs jury that the issue before them is whether the Crown has satisfied, BRD ∆ had the requisite intent

e. Self-Defensei. S 34(1): Unprovoked

1. When ∆ unlawfully assaulted (must prove assault) w/o being provoked 2. ∆ may repel force if the force:

a. Is not intended to cause death or GBH (even if it results in death/GBH)b. Is no more than necessary to defend himself

i. Note: An unlawful assault against accused need not actually occur; it is sufficient that accused reasonably believed that an assault has occurred (R v Cinous)

ii. S 34(2): Causing GBH or Death (provoked or unprovoked) 1. Applies to those who intend or do not intend to cause Death/GBH. 2. Subjective & Objective elements.3. Elements:

a. When ∆ unlawfully assaulted, whether provoked or unprovoked, and ∆, to repel the assault, intends to cause death or GBH to another

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i. ∆ is justified in causing death or GBH in response to the assault only if:1. ∆ causes death or GBH under a reasonable apprehension of his own

death or GBH from the violence with which the original assault was made; and

2. ∆ believes, on reasonable, grounds, that there are no alternatives to killing or causing GBH in order to preserve himself

4. Unlawful assault? a. Possible to reasonably conclude that the accused believed that he was going to be

attacked, & was reasonable in the circumstances.  5. Reasonable apprehension of death or GBH?

a. ∆’s reasonable perception that he was in mortal danger. b. Reasonable under the circumstances?

4. Reasonable belief of no reasonable alternatives to killing? a. ∆ believed that he could not preserve himself except by shooting the victim? ANDb. That he held this belief on reasonable grounds. 

iii. Self-Defense & Battered Wife Syndrome, p. 21

f. Necessity: 3 elements:i. Imminent peril or danger: Disaster must be imminent, or harm unavoidable and near = Modified

objective standardii. No reasonable legal alternative to the course of action = Modified objective standard

iii. Proportionality between the harm inflicted and the harm avoided = Objective standard1. Modified objective standard: Involves an objective evaluation, but one that takes into account

the situation and characteristics of the particular ∆, including his ability to perceive the existence of alternative courses of action.

g. Duress: Can be invoked: S 17 CC for Principals, Under common law for Parties i. S17- limits to a person who is compelled to commit an offence under threats of immediate death or

bodily harm from a person who is present when the offence is committed. 1. Under inclusiveness of s. 17 infringes s. 7 of the Charter.  Ruzic. 2.

ii. Common Law frees duress from the constraints of “immediacy” and “presence”. The elements include:

1. A threat to the integrity of the person: a. Requirement of proportionality between the threat and the criminal act to be executed.

2. Threat deprives any safe avenue of escape in the eyes of a reasonable person, similarly situated.

3. Threats need not be made by a person who is at the scene of the crime - no presence requirement

a. Modified objective standard4. ∆ cannot rely on the common law defense of duress if had an opportunity to extricate himself

safely from the situation of duress. a. Modified objective standard

h. Provocation – applies only to Murder. Reduces charge to Manslaughter when elements are met.i. 232. (1) Murder may be reduced to manslaughter if the person who committed it did so:

1. In the heat of passion 2. Caused by sudden provocation.

ii. Provocation Elements:1. A wrongful act, OR 2. Insult 3. That is of such a nature as to be sufficient to deprive an ordinary person of the power of self-

control.

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