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-Causation is an A/R problem because the act or omission (need a legal duty) of the accused must have caused the crime -Not all crimes have a causation req. -Causation must be proved for:  Homicides (s. 222)  Wilful damage to property (s. 430)  Arson (s. 433)  Causing bodily harm (s. 221) or death (s. 220) by criminal negligence -E.g.: Causation for homicide and assault: accused must cause bodily harm Causation for arson: accused must cause the fire -Need to establish a link b/w victim and dt -Need to establish prohibited harm, according to statute e.g.: physical injury usually connotes a blow or a wound, whereas a bodily injury is much broader -Normally, causation problems do not arise

Hypothetical:

Thornton case: Thornton knowingly donated HIV + blood to a hospital  blood given to patient  3 months later, the patient tests positive for HIV. -Causation problem: must prove that HIV+ status of patient is directly caused by Thornton’s donation -This raises a Q. of FACT for the jury to decide

-Often, there are a series of necessary antecedents for a result to actually happen. -cause singled out depends on purpose of inquiry -in law, this purpose is to determine the rights and liabilities of the respective parties to the proceedings -No fixed line as to what can be considered the immediate cause

Many crimes don’t require causation of harm:  S. 180 (1) Common nuisance: Every one who commits a common nuisance and thereby (a) endangers the lives, safety or health of the public, or …. (2) Definition – for the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby…

 S. 180 (1) (b), however, does require causation b/c it reads: “Causes physical injury to any person”

Causation is required when the Code requires a result, NOT when the accused places people at risk

1 Innocent Agent

Michaels (1840 – U.K)

Innocent Agent F: Mrs. Michael gave a bottle of laudanum to her babies caretaker w/ instructions for the woman to give the baby a little bit at bedtime to make it sleep. Her intent was to kill the child b/c she couldn’t afford it -Caretaker put bottle on mantelpiece, leaves baby with her children -5 year old gives half the bottle to baby baby dies I: Is the accused sufficiently responsible for the act that led to the death of the baby? Was she the cause? -Can the result be fairly said to be imputable to the dt? R: B/c Mrs. Michael intended to cause the d. of the baby by laudanum, the fact that this result was achieved using an innocent agent (5 yr old), while the dt’s original intention continued, does not break the chain of causation. She is guilty of murder

Ali (1990) Ontario F: Accused brings little girls into his house, threatens them, saying that they have to play with each other’s genitals -Accused charged w/ sexual assault, even though it was other children that committed the assault -Rule in Michaels used to establish that the acts of the other children were attributable to the accused they are considered innocent agents

Hypothetical 1 -Accused pushes victim off a boat, intending that victim drown -shark eats victim before drowns -Accused is guilty of murder b/c she had intent to kill by pushing victim off boat. Doesn’t matter how death actually occurs: Shark is just an innocent agent

Hypothetical 2 -X robs Y, hits Y over the head  unconscious leaves Y to die -python comes along, crushes and eats Y -pythons not believed to exist in the area (had there been lots of pythons in area = innocent agent) -Dc. of X: python broke chain of causation = novus actus -would have to argue that the arrival of the python was unforeseeable -ct: python did not break the chain of causation -had chain of causation been broken, accused would have been guilty of attempted murder

Intervening Causes

Hypothical 1 -person left unconscious after robbery  drowns -difference if person left on beach near the ocean (tide) or in a field (flash flood)

2 Where there is an intent to kill, court should not be too willing to find a break in causation (Michaels) -Causation problems  often arise in manslaughter charges

Thin Skull Rule (Smithers, Holland, Blaue) Smithers ThinSmithers skull rule FThin: Hockey skull rulegame, racial insults traded -dt,F: Hockey Smithers, game, threatens racial toinsults get victim, traded Cobby, after game, victim is scared -dt-dt, beats Smithers, on victim, threatens they to are get separated, victim, Cobby, victim afteris doubled game, overvictim is scared -dt-dt kicksbeats victimon victim, hard they in the are stomach separated, victim is doubled over -victim-dt kicks falls victim over hard and indies the stomach -victim-victim actuallyfalls over died and from dies aspirating his own vomit b/c of a defective epiglottis. The kick would-victim not actually have killed died from a normal aspirating person his own vomit b/c of a defective epiglottis. The -Smitherskick would is notcharged have w/killed unlawful a normal act personmanslaughter I:-Smithers Did Smithers’ is charged kick w/cause unlawful Cobby’s act vomiting?manslaughter DidI: Did Smithers’ Smithers’ kick kick cause cause death? Cobby’s death, in law, in view of victim’s physical -Q.peculiarity? of causation in fact and causation in law – must be distinguished H: Guilty of Manslaughter R: Rule of causation in law: Accused must take victim as she finds him, incl. phys. defects -Causation in fact: did Cobby’s vomiting result from Smithers’ kick, or from fear -expert testimony said it was most likely that the vomiting was caused by kick; but jury entitled to consider both lay and medical evidence -illegal act of assault is a legal cause of death if it contributed to death in some way, outside of the de minimus rage

-In Smithers,  had to prove that the faulty epiglottis didn’t break the chain of causation in law, and that the vomiting was caused in fact by Smithers’ kick -had it been proved that the fear induced in Cobby by Smithers caused the vomiting, there would have been an acquittal  outside de minimus range -NB: de minimus rule used for manslaughter; substantial cause rule used for murder

Very relaxed notion of FAULT for manslaughter Cause need merely be a “CONTRIBUTING CAUSE OUTSIDE THE DE MINIMIS RANGE” = Refers to a PURELY FACTUAL INQUIRY which has NOTHING to do w/ intention, foresight or risk and  solve by referring to expert and lay witnesses

Most common test for FACTUAL CAUSE = SINE QUA NON = BUT FOR TEST – this is a convenient way of deciding whether a CAUSE is CONTRIBUTING Has there been proof beyond a reasonable doubt that the consequence would NOT have followed BUT FOR the act of the accused? IF YES = Accused’s act was a FACTUAL CAUSE of the consequence

3 Holland (1841 Britain)

F: Accused injured finger of victim, victim’s dr. told him to have finger amputated b/c it might get infected -victim refused and eventually died of tetanus -Accused convicted of murder

-Today would be challenged under s. 7 (fundamental justice) in Charter -What role does a victim’s choice play in causation?

Some intervening causes are held not to break the chain of causation : s. 222 (5) (c): (5) A person commits culpable homicide when he causes the death of a human being …(c) by causing that human being, by threats of fear of violence or by deception, to do anything that causes his death… ***NB*** s. 222 (5) (a) “by means of an unlawful act” requires a causal cnx. – per Viancourt s. 224: DEATH WHICH MIGHT HAVE BEEN PREVENTED – Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.  ie – death that was preventable can still be caused by accused however,  must prove that the actions of dt were causally connected to the death of the victim s. 225: DEATH FROM TREATMENT OF INJURY – Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith. causal nexus b/w conduct of dt and d. of victim preserved, but intervening act doesn’t break the chain of causation s. 226: ACCELERATION OF DEATH – Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease of disorder arising from some other cause. inevitability of death before act of dt does not break chain of causation

Question : F: after being asked by victim’s friends, ambulance technicians refuse to help a man having a heart attack b/c they are off duty (& thought he was just drunk) -victim died as he arrived at the hospital I: Omission: was there a legal duty owed? Causation: did the ambulance technicians cause the death (by their omission), or would victim have died anyway? -need to A. yes to both for legal responsibility To consider: -Good Samaritan provision in QC Charter -Duty in QC Hospitals Act (duties can be raised by federal or provincial statutes)

4 -Questionable possibility that a professional ethics code could provide the basis of a legal obligation  would be more likely the basis for professional disciplinary action -to create a legal duty for a crime like manslaughter (life max.) based on a professional code of ethics would be extremely harsh

Shanks (1996) Ont. C.A.

F: Accused threatened victim, and incited him to engage in a consensual fight outside, despite being warned by the victim’s wife that the victim had had strokes and a heart condition -Dt pushed the accused down on the sidewalk -medical testimony showed that the victim was a physical wreck and that his death was caused by a plaque rupture in his arteries I: Did the accused cause the death of the victim? H: Yes. Conviction upheld R: Although pushing the victim to the ground was not likely to have killed him on its own, “the continuum of events from the initial threats by the appellant to his throwing of the deceased to the ground was, as a matter of certainty, the cause of death” -purely academic to speculate on at what point death became certain -meets the standard set out in Smithers: unlawful act of physical assault was a contributing cause outside the de miniumus range -meets Creighton test for manslaughter b/c it was objectively foreseeable that issuing threats and engaging in a consensual fight with an old, obese person who accused was told had a heart condition, could result in non-trivial bodily harm

Lewis

F: woman sexually assaulted over a period of time  suicide -assailant charged criminally w/ manslaughter -rape alleged to be contributing cause -emotional rxn can come into causation -could possibly be analyzed as a thin skull case

5 Blaue 1975, UK Extreme of thin-skull rule F: victim indecently assaulted by dt, he stabs her, collapsing her lung -Victim is a Jehovah’s Witness and refuses a blood transfusion at hospital (while conscious) -Dt prosecuted for manslaughter (b/c of diminished responsibility doctrine in GBR) I: Did the dt’s stab wounds legally cause her death, or can victim’s refusal to accept a blood transfusion be considered a novus actus, breaking the chain of causation? Does the victim have a duty to mitigate her damages? Do tort doctrines apply in criminal law? H: Dt is guilty of manslaughter R: Tort doctrines do not apply, purpose of crim law is to protect; purpose of private law is to compensate -victim has no duty to mitigate damages -The victim’s refusal of a blood transfusion need not be evaluated in terms of reasonableness: -“Those who use violence on other people must take their victims as they find them” - Stab wounds are the legal cause of death

- extreme example of the thin skull rule (per Dickson in Smithers) -seems to indicate that Dickson may not agree with judgment, may be stretching thin skull too far - may not work in Canada -in view of Viancourt, Martineau, this rule may be considered too harsh. However, Creighton upheld the thin skull doctrine in Canada

Hypothetical -difference between factual and legal causation: F: party at a house, held b/c owner of the house wants to poison someone - puts arsenic in guest’s cocktail -intended victim drinks arsenic -after party, victim crossing road  feels faintfalls down in middle of hwyrun over -medical evidence shows that the dizziness was caused by the alcohol she’d consumed -If: 1. jury believes that poison had no role in victim’s faint: no factual causation  no murder, no manslaughter (all homicide requires causation) could be convicted of attempted murder 2. medical evidence shows that the victim became dizzy b/c of arsenic, causation  murder 3. drug administered was a date-rape drug & this drug caused her to become dizzy M/R for illegal act (sexual assault)  causation  manslaughter

Other provisions on causation: s. 228 – Killing by influence on the mind – No person commits culpable homicide where he causes the death of a human being (a) by any influence on the mind alone

6 (b) by any disorder or disease resulting from influence on the mind alone, but this section does not apply where a person causes the death of a child or sick person by willfully frightening him.

-e.g.- robber scares a person with a heart condition  person dies of heart attack brought on by fright  robber is not guilty of manslaughter

Smith 1959, GBR Chain of causation would only be broken if wound was merely the setting in which another cause operates, resulting in death

F: fight in bar, soldier stabbed with a bayonet -victim picked up and carried to hospital by a 3d party, dropped twice along the way before helper decided to get aid -taken to busy clinic where he did not get the proper treatment -treatment actually aggravated condition -75% chance that victim would have recovered had he been treated properly -Stabber charged with murder I: Is the stab would a sufficient cause of death to hold the accused guilty? H: Yes R: If wound is still a substantial and operating cause, death can still be considered the result of the wound, regardless of other concurrent causes – de minimus rule -Chain of causation would only be broken if wound was merely the setting in which another cause operates, resulting in death -Second cause would have to completely overwhelm the first

-No clear rule in cases of intervening causes -On the one hand, if the accused has the M/R for murder, he shouldn’t be able to rely on the victim getting good medical treatment as a dc -However, is it really fair/just to hold the accused responsible for the death of the victim in this case? -criminal law should be interp’d in favour of the accused

Causation in Tort and Criminal law

-many rules are similar, and can be applied -however, private law doesn’t apportion moral blame -in Criminal law, causation and M/R go together -much easier to convict of murder, where an unexpected event intervenes, if the accused intended to kill -if there was no intent to kill, there is no moral blameworthiness  informs causation arguments

-RECALL: s. 225 – bad medical treatment doesn’t break the chain of causation “Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results,…” - bad treatment in hospital does not make accused responsible for d. resulting from small injuries

7 Hypothetical 1 F: same as Smithers, but suppose Cobby dies after mistreatment in hospital. Had be been treated correctly, there’s an 80% chance he would have recovered. -Smithers’ kick wasn’t really of a ‘dangerous nature’ as req’d in s. 225 -However, thin skull rule may come into play: kick wouldn’t have been dangerous to a normal person, but was to Cobby -Dickson: “No question of remoteness or of incorrect treatment arises in this case.” (CB p. 227) - Dickson saying that an intervening cause/effect that is remote (intervening cause) or involves incorrect treatment may have led to an acquittal -Mistreatment, a contributing cause outside of the de minimus rage, may make Smithers kick too remote -Combining thin skull rule w/ mistreatment in hospital may be stretching causation too far – read into Dickson’s judgment in Smithers -Recall: Manslaughter charge -  no intent to kill

Hypothetical 2 F: Smithers + on the way to the hospital, the ambulance crashes (no fault) and Cobby dies of a skull fracture and brain injury -Prosecution’s argument: M/R exactly the same, just that death occurred in a different way -Dc: argue intervening cause, not foreseeable that ambulance would crash -use language in Smith: “Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound… only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.” -Here, kick would only be setting in which death occurred  asphyxiation no longer the operating cause of death crash would be overwhelming, break the chain of causation

Bush 1880, Kentucky F: person taken to hospital as a result of a serious stab wound. Ends up dying of scarlet fever in hospital epidemic H: Overwhelming cause of scarlet fever broke the chain of causation = novus actus

Stevenson v. State [1932] F: KKK member tortures and rapes a woman over a period of time. She eventually commits suicide H: Causation exists

Fletcher, Rethinking Criminal Law -Poses Q: should issues of causation and culpability be kept distinct? Fairness/Justice issue -Fletcher would say that criminal responsibility should be tied to culpability: e.g.- did Smithers intend to kill Cobby?

Sklar: Causation and culpability work together (repeating theme)

Garforth (cited in Smithers) F: B kicked victim, then stabbed him in the neck and heart -Accused then kicked victim on body and legs, B kicked him in the head H: guilty of manslaughter R: Accused unlawfully assaulted the victim and caused minor injuries that contributed to death

8 -had accused intended to grievously harm victim, would have been guilty of murder

Causation rule for murder is stricter than that for manslaughter (contributing cause outside de minimus range):

Harbottle 1993 Supreme Ct (Cory, J.) substantial and integral cause of death

F: Accused and friend confine woman, friend sexually assaults her while Harbottle watches -After the assault, they discuss ways of killing her -Friend strangles her while Harbottle holds her legs I: Were Harbottle’s actions sufficient to be considered a cause of death, making him guilty of murder under s. 231 (5)? H: Yes. Holding the victim’s legs was a substantial cause of death R: B/c of harsher punishment, murder 1 must have a stricter causation req. than manslaughter -Crown must establish that “the accused has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of death” -To be a substantial cause, accused must play a very active role – usually physical, but not necessarily (e.g. – locking victim in cupboard while accomplice lights it afire) -Had Harbottle not held the victim’s legs, she may have been able to free herself,  accused was a substantial cause of death, outside the de minimus range

-whether the accused substantially contributed to death is a Q of fact

Causation Test under s. 231 (5), from Harbottle 1. Accused must be guilty of underlying crime (recall: Paré – single transaction, continuing domination) 2. Accused must satisfy all requirements of s. 229 (need intent to kill) 3. Accused must substantially contribute to/cause d. (no intervening cause) s. 231 – CLASSIFICATION OF MURDER – Murder is first degree murder or second degree murder. (5) HIJACKING, SEXUAL ASSAULT OR KIDNAPPING – Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(a) section 76 (hijacking an aircraft) (b) s. 271 (sexual assault) (c) s. 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) (d) s. 273 (aggravated sexual assault) (e) s. 279 (kidnapping and forcible confinement); or (f) s. 279.1 (hostage taking) s. 229 – MURDER – Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or

9 (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

(c) where a person, for an unlawful object, does anything that he knows [or ought to know – struck down] is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

Key requirements: intention to cause bodily harm, foresight or knowledge that bodily harm is likely to cause death recklessness whether death ensues or not.

R. v. Meiler 1999, ON C.A. F : Accused went to house of ex-wife, intending to kill her lover -Guest at BBQ going on at house tried to wrestle gun away from accused -gun went off accidentally H: C.A. held that Smithers rule (non-trivial cause outside of de minimus range) was applicable to 2nd degree murder, rather than Harbottle rule, which it confined to first degree murder only -case going to Supreme Court

Q. of whether substantial cause rule (Harbottle) should apply to first and/or second degree murder is a matter for debate amongst criminal law scholars

IV.

A. INTRODUCTION

-Q. of M/R addresses moral culpability of offender, but there’s always a possibility of incompatibility b/w morality and law -varies according to the crime

Glanville Williams: “It refers to the mental element necessary for the particular crime, and this mental element may be either intention to do the immediate act or bring about the consequence of (in some crimes) recklessness as to such act or consequence.” -some crimes req. intention only; for some, the M/R req. will be satisfied by recklessness as well. Others do not require any particular state of mind, but need negligence. Some are strict liability crimes. Finally – absolute liability.

-different elements of an offence can each require their own M/R

Hypothetical F: Man driving at excessive speed during street fair, strikes and kills pedestrian

10 I: Can we hold him responsible? -Must assess his subjective state of mind: did he want to kill someone? -If he foresees the possibility that he could harm someone = recklessness

B. THE BASIC SUBJECTIVE/OBJECTIVE DISTINCTION

People v. Gorshen 1959, Calf.

On the topic of free-will vs determinism: “There is a subjective phenomenon which the normal individual experiences as free will. Illusory or not, free will remains the basis of all criminal law simply b/c free will is the basis of all normal social behaviour. … The task then becomes to understand the motivations, intent, and actions of the individual who deviates from the common-sense posit of free will.

There is a constitutional requirement of fault in Canada for any crime that threatens the liberty interest (ie- go to jail). Issue at law is generally what the fault element entails. Whether it is subjective or objective is a big point of contention. s. 219 – (1) CRIMINAL NEGLIGENCE – Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons

Hundal 1993, SCC Cory, J. F: Dangerous driving offence I: Definition of the objective and subjective tests – fault req. for dangerous driving (negligence) R: The test for negligence is objective

Subjective test- -subjective test tries to determine what was actually in the mind of the particular accused at the moment the offence is alleged to have been committed -Must look at the particular accused, her personality, situation, circumstances, and determine what she actually intended -NOT could, should, ought to have foreseen -To prove subjective state of mind:  draw inferences from actions/words of accused at time of act  can use an objective test as to what accused must have thought (evidence)  can be rebutted if accused can prove that he didn’t arrive at these conclusions -To prove objective state of mind:  test for negligence is objective  requires “a marked departure from the standard of care of the reasonable person.  Do not need to establish intention: rather, turns on what accused should have known  Can consider personal factors and mistake of fact dc.  “one who should have taken care irrespective of awareness”

11 Hypothetical -high school student shoots randomly in the bathroom, kills 2 students -Q. of subjective M/R: what was he thinking? -To est. M/R for murder, look at the facts/circumstances surrounding the crime:  accused fired at vital area of body, from close range? motive: spec. purpose for going to bathroom?  Discuss plans before hand?  Utterances (est. by Mulligan)  2 shootings  s. 229 (a) – intent to cause bodily harm known to cause death

Criminal Negligence – s. 219 supra -requires a marked departure from the reasonable person standard -e.g.: in above hypothetical, if shooters’ father had 7 loaded guns that were kept unlocked, could charge him with causing death by criminal negligence A/R = death (causation problems arise here – what degree of causation required) M/R = Objective standard (could be failure in legal duty – firearms act)

Theroux 1993 SCC McLachlin, J. Defining M/R & way to prove it

F/I: fault requirement for fraud R: M/R doesn’t encompass all mental elements of the crime (e.g.- A/R must be voluntary) -M/R = “guilty mind, the wrongful intention, of the accused” -f’n of M/R is to prevent the conviction of the morally innocent -M/R test is generally subjective, except: negligence/inadvertence, abs. Liability -Did accused subjectively appreciate consequences of prohibited act? -M/R has nothing to do with accused’s system of values (Glanville Williams) = subjective appreciation, not subjective morality -Crown doesn’t have to prove exactly what was in accused’s head – can be inferred from circumstances of act (see Mulligan)

Mulligan ON C.A. 1976 Martin, J.A. (best criminal justice in Ca, according to Sklar) Subjective intent can be inferred from an objective std.

F: Man stabs his wife repeatedly – she dies -Told police that he didn’t mean to kill her I: Did he intend to cause her death or bodily harm that he knew was likely to cause her death, or was reckless as to whether d. ensued H: Subjective intent can be inferred from an objective std. R: If had intent, recklessness = guilty of murder -Subjective state of mind must be determined by all evidence, incl: acts, utterances, other circumstances -Quote from Vallance v. The Queen: subjective test is about what the accused has in his mind. Actual state of mind is proved from all the relevant circumstances surrounding the crime, not just words of the accused. Nevertheless, the Q must always remain what the accused actually knew.

12 -Behaviour and other circumstances may be used to establish the requisite intention

Role of Objective Intent? -A reasonable person would have known that the wounds would cause death -If it is reasonable that a given act would cause a given result, this may indicate accused was aware of result -an objective standard forms a part of the determination of subjective intent (proof beyond a reasonable doubt) -Reasoning: This is what accused did, this is what a reasonable person would do – accused is a reasonable person, therefore, we can infer M/R Two Key Points:  What accused did  What a reasonable person would have known BUT There is a big difference between PRESUME & INFER (error in judge’s charge in Ortt) -the jury MAY infer, NOT the jury MUST infer -the objective test of subjective M/R remains rebuttable -NB – motive (purpose in doing act) can be used to prove intent -e.g.: one guy runs over other guy – they knew each other and were arch enemies – could be used by Crown to help prove intent

Ortt 1969 (C.A.) F: appeal from a non-capital murder charge. -In his charge, Judge suggested accused had to prove that he was incapable of having the specific intent necessary for the crime: “a person is presumed to have intended the natural consequences of his act” I: Does an objective test of subjective intent lead to a presumption of intent? H: NO R: There is no presumption of intent b/c the word alone suggests a reversal of the burden of proof -inferences may be drawn, but are not necessarily to be drawn -use ‘reasonable inference’ not ‘presumption’ in charges to juries

Mischief – s. 430 Beyo -trial judge used ‘presumed’ to find that the accused willfully caused damage

Parties to an offence s. 21 – (1) PARTIES TO OFFENCE – Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. (2) COMMON INTENTION- Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who know or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

A/R for being a party to an offence in above hypothetical: -giving shooter the gun M/R – purpose of giving the gun – depends on knowledge, utterances

13 C. M/R Offenses vs. Strict an absolute Liability Offences (‘Public Welfare’ or ‘Regulatory Offences’)

Summary: Regulatory offences

Express Fault req. Strict Liability Absolute Liability Crown must prove fault Crown proves act Crown proves act Accused must prove due diligence

Difference b/w strict, absolute liability and M/R offences established by Dickson, J. in Sault Ste- Marie:

Sault Ste-Marie 1978 SCC, Dickson, J.

F: Pollution of a creek by city’s contractor who disposes of garbage. Q. as to criminal liability of city under provincial penal statute I: M/R vs Absolute /Strict liability --- must there be intent? Does the Crown have to prove wilful blindness or recklessness on party of city? Must there be full M/R or only A/R, or something in between? H: New trial ordered R: Makes distinction b/w true criminal offence and public welfare offence:  Criminal offence – Crown must est a M/R – intention or recklessness, knowledge or wilful blindness  M/R not nec for negligence  Absolute liability – proof merely of A/R – M/R is irrelevant -policy need to balance necessity to punish people for activities that cause harm, need for expediency in petty offences, against revulsion for punishing the morally innocent -arguments for: expediency, overwhelming necessity for soc. to enforce regulatory leg., lesser stigma than true criminal offences -arguments against: punishes the innocent, principals on which it rests can’t be verified, public interest is not sufficient to justify punishment w/out fault, punishment may be significant -Recognizes need for something b/w full M/R and absolute liability: -no req. of full M/R, but a good dc. to show that dt wasn’t negligent – burden of proof on accused -dt given opportunity to demonstrate that she did exercise reasonable care, or was reasonably mistaken as to the facts in question = objective reasonableness of belief proven by dt on balance of probabilities - Therefore, Dickson elaborates three types of offences: (a) M/R offence = need intent, knowledge/wb, recklessness (b) Strict liability = conviction will be based on negligence (Crown must prove A/R beyond a reasonable doubt; dt must prove reasonable care/reasonable mistake of fact on a balance of probabilities) (c) Absolute liability – proof only of A/R. No chance for accused to exculpate herself b/c of due diligence (recall: Kilbride – permit on windshield case - person still needs to act voluntarily) -Public Welfare offences are prima facie in category of strict liability

14 Glanville Williams: “There is a half-way house between M/R and strict responsibility which has not yet been properly utilized, and that is responsibility for negligence.”

Per Dickson in Sault Ste-Marie: -To fall into the category of M/R offences, the statute must use words like ‘willfully,’ ‘w/ intent’, “knowingly’, ‘intentionally’ -To fall into abs .liability cat, legislature would have to make it very clear that liability was to flow directly from the act -Strict liability offences will often include words like ‘cause’ or ‘permit’ -causing or permitting requires some control over wrongful activity -liability would be incurred in such a case where dt could have prevented harm by intervening (under K or, e.g., municipal by-laws) and didn’t do so.

Beaver v. R. 1957, SCC, Cartwright, J.

F: Appellant and Beaver sold heroin to cop. Beaver actually had drug on him, but two men worked together. Open to jury to find that appellant didn’t know there was a narcotic in the bag  thought it was just milk sugar (dextrose). Said he was trying to defraud cop. -Charged with selling and possessing heroin -Appealed b/c of jury charge I: Does the sale/manuf/possession of heroin require M/R, or is it an absolute liability offence H: M/R is necessary   if accused didn’t know = not guilty -is guilty of trafficking b/c he purported to sell a narcotic (lg of statute) R: This is a real crime  serious, prohibits conduct harmful in itself -Not a public welfare offence -M/R is an essential element of any criminal offence: “…unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind” – per Devlin, J. in Reynolds v. G.H. Austin & Sons -uses a subjective standard: is belief honest; reasonableness of belief is only part of proof -P could enact a statute that specifically excluded M/R from an offence punished by prison, but they would have to do so explicitly Diss: Fauteux – is a public welfare regulation,  no M/R necessary

R. v. Chapin 1979, SCC, Dickson, J.

F: Woman caught shooting w/in ¼ mile of bait. She didn’t know it was there – no intent to bait birds -contrary to a provision s. 14 (1) of the Migratory Regulations I: What mental state is required for this offence? (strict, abs.) H: Strict liability dc  exculpation by due diligence R: Not M/R offence: s. 14 (1) is not criminal statute in true sense  summary conviction, absence of words ‘willfully’ or ‘with intent’; -public welfare offence  protects public interest by imposing a penalty on a prohibited act - no need for true M/R -Not Absolute liability offence: -uses unambiguous language: ‘no person shall’ -BUT, doesn’t enunciate a blanket prohibition, rather controls hunting w/ conditions, rules

15 -penalty not inconsequential: max fine $300 or six months in prison, or both, prohibited from holding a hunting permit for one year and forfeiture of gun and hunting eqpt. -argument that making offence strict liability would make it difficult to enforce is not a good enough justification for absolute liability -impossible for hunter to search half-mile circle to see if there was any bait – must have dc of due diligence -person in legally baited area would have warning (signs posted) to check for bait, &  better chance of not being prosecuted, than person hunting in illegally baited area

absolute liability cases = v. rare, need explicit direction from P Dickson: any crime w/ prison sentence can’t be absolute b/c fundamentally unjust traffic offences are likely to be only absolute liability offences pre-Charter case, now all crimes w/ prison terms require M/R

1. CHARTER LIMITATIONS

Re: Section 92(2) B.C. Motor Vehicle Act 1986, SCC, Lamer, J. M/R elevated from a presumed element in Sault Ste-Marie to a constitutionally req’d element for offences threatening liberty interest

F: Words in statute say ‘absolute liability offence’ and combine w/ possibility of jail time for offence of driving w/ a suspended license I: Is this constitutional under s. 7? -Should the S.C. be limited to procedural process issues (procedural due process) OR should ct be empowered to look into the substantive principles of legislation to ensure that they are fundamentally just -where does power lie: P or S.C? H: Statute violates s. 7 and is  unconstitutional (Cts can look at substantive fairness) R: Absolute liability combined with imprisonment violates fundamental justice (s.7) -imprisonment  justified w/out some form of M/R -Recall: Dickson in Sault Ste-Marie  revulsion for punishing the innocent. Re-iterated by Lamer, who adds moral element. quotes G.W. -expediency argument fails, and infringement cannot be saved under s. 1 - must make it a strict liability offence, allow dc of due diligence -M/R elevated from a presumed element in Sault Ste-Marie to a constitutionally req’d element

Glanville Williams: “There is no need here to go into the remote history of M/R; suffice it to say that the requirement of a guilty state of mind (at least for the more serious crimes) had been developed by the time of Coke, which is as far back as any modern lawyer needs to go.”

Lamer’s approach in BC Motor Vehicle Act allowed the court to strike down the felony murder provisions using s. 7 in Viancourt

R. v. Pontes

16 -w/out penalty of imprisonment, s. 94 of BC motor vehicle act = constitutional -no violation of right to life, liberty, security since no prison - absolute liability offences are constitutional

-Regulatory offences include all provincial offences, and all fed offences not incorp’ing Criminal Code standards -For regulatory offences, legislative fault requirements (subjective M/R, negligence or statutory due diligence dc) should be given full expression by cts -In absence of fault req. specifically in statute, courts should read in due diligence dc where there is the possibility of imprisonment

General Note on defences: -accused has burden to introduce enough evidence to make the issue alive -if  doesn’t prove otherwise, this evidence could create a reasonable doubt -burden is on the  to prove guilt beyond reasonable doubt -insanity is the exception: there dc must prove on a balance of probabilities -also: dc of intoxication to sexual assault under Daviault principle – accused req’d to prove beyond a reasonable doubt

D. INTENTION (KNOWLEDGE AND DESIRE)

Hypothetical 1 F: Moe is a bartender charged w/ selling liquor to a minor -If statute req’s that Moe intended to sell liquor to a minor, to commit offence, then Moe would have to know that he sold liquor to minor. Crown would have to prove M/R. -Could infer Moe’s knowledge – Mulligan – say, if the minor looked v. young, had no ID, acted nervous, told Moe his age -could infer from circumstances that ID boy showed was tampered w/ and Moe knew it Intention requires knowledge and desire – Buzzanga & Durocher

Hypothetical 2 Show Moe was reckless: Recklessness – you realize that there is some risk involved, by you act anyway ‘recklessly’ – subjective state of mind of person who foresees that her conduct may cause a prohibited result, but nevertheless takes a deliberate and unjustifiable risk of bringing it about. -In this case, could show recklessness by the fact that Moe knew there was a risk he was giving alcohol to a Minor

-DIFFERENCE B/W RECKLESSNESS AND INTENT IS WHAT YOU KNOW, WHAT YOU ARE AWARE OF, WHAT YOU FORESEE (as to likelihood of harm occurring)

Hypothetical 3 F: Moe looks at boy, boy looks really young, so Moe decides not to ask boy his age = w/b Wilful blindness = where a person strongly suspects something exists (e.g. – he is giving liquor to a minor) but he deliberately closes his mind to the possibility b/c it’s not in his best interest to actually know. In law, as culpable as knowledge -Sandhu

17 -These three hypotheticals are all based on a M/R offence – would need to prove Moe’s subjective state of mind

Hypothetical 4 F: Offence is one of strict liability – therefore Moe must only be negligent, but has a good dc if he can prove due diligence/reasonable mistake of fact -shift burden of proof

DIFFERENCE B/W MOTIVE AND INTENTION

Hypothetical 1 F: Mrs. J. fed up w/ husb, decides to blow up a plane he’ll be on in order to kill him and collect insurance -she puts a bomb in his luggage, timed to go off when plane in flight -motive = getting insurance $$ -motive satisfied when plane goes down in flames and Mr. J. killed -her intention (conscious purpose) was an intention to kill  planned & deliberate w/ respect to Mr. J -secondary intent (w/ respect to the rest of the plane) - must prove that it is near certain that Mrs. J knew other people in plane would die to get a conviction for murder (infer from fact that people always die when planes crash) -see Shanks infra

Hypothetical 2 F: disgruntled employee screws about w/ landing gear on a plane -motive: to hurt co’s PR, cost them $$ -on landing, crash, 1 pers. D. -employee charged w/ intentional murder   must prove that it is near certain that s.o. would die

R. v. Buzzanga and Durocher, 1979, ON C.A., Martin, J.A. -wilfully generally means w/ intent (knowledge or desire), excludes recklessness

F: Dt’s caused to be printed and distributed an inflammatory pamphlet against funding a French lg. High school, in the hopes of increasing cohesion in the francophone community -wanted to expose prejudice as real reason for not building school -charged w/ “willfully promoting hatred” [now s. 319 (2)] I: Did dt’s willfully promote hatred? What does ‘willfully’ mean? -Were dt’s acting willfully or recklessly? H: New trial ordered R: definition of willfully: primary meaning = intentionally -Also used to mean recklessly -BUT, for the purposes of s., means intentionally -comparison b/w s. 319(1) and 319 (2) used to establish the meaning of ‘wilfully’: in (2) not in (1): reflects P’s desire to strike a balance b/w protection from hatred and free speech @ p. 426 CB -  must prove that dts conscious purpose was to promote hatred (can be desired as an end in itself, or as a means to another end) or that they foresaw (subjective) that the promotion of hatred was almost certain to result, but proceeded anyway (can infer subjective foresight using an objective test, but must take all

18 relevant circumstances into account)  After Buzzanga, ‘wilfully’ in Code to be read as intentionally (conscious purpose), unless specifically stated otherwise - cannot convict of willfully doing soth. if dt only has M/R of recklessness s. 319 (1) – PUBLIC INCITEMENT OF HATRED – Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of … (2) WILFUL PROMOTION OF HATRED – Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of …

Definition of willfully, in relation to property, at s. 429(1) – Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless as to whether the event occurs or not, shall be deemed, for the purposes of this Part, willfully to have caused the occurrence of the event.  demonstrates that P explicitly includes recklessness when it wants ‘willfully’ to include recklessness

-interpreting willfully in s. 319 (2) to mean ‘intentionally’ (as opposed to negligently or recklessly) greatly restricts the reach of the provision and its effect on freedom of expression.

Recall: Recklessness – you realize that there is some risk involved, by you act anyway ‘ recklessly’ – subjective state of mind of person who foresees that her conduct may cause a prohibited result, but nevertheless takes a deliberate and unjustifiable risk of bringing it about

Hypothetical F: Mrs. J. puts bomb in Mr. J’s suitcase, timed to go off 3 hrs after flight lands -flight delayed, bomb blows up plane =recklessness b/c  certain or substantially certain that people would die & Mrs. J. aware of this risk. -also reckless if the bomb had gone off in hotel room and killed the guy next door

-Objective reasonable person standard is a stepping stone to establishing M/R: Reputable -if Mrs. J. can prove that unlike a reasonable person, she did not know that other people would be killed, then she doesn’t have necessary M/R

Willmott v. Atack 1976, GBR F: accused interfered b/w cop and arrestee, was trying to help cop, but ended up obstructing him -charged w/ willfully obstructing cop -convicted at trial -overturned on appeal b/c willfully = intentionally doing the result (obstructing) – burden of proof on 

19 R. v. Burnell 1966, Aus. F: accused lights small fire to mattresses in shed, whole shed lit up -on appeal, wilfully held to req. proof that accused did an act that set fire to shed, w/ the intention of bringing about that result

-M/R req. as to consequences of act helps to prevent conviction of the morally innocent -could still convict of negligence -  moral blameworthiness

Hypothetical Q: Why is Mrs. J. still guilty of murder if she kills all the people on the plane except her husband. No intent to kill them A: Person is just as morally blameworthy if she goes ahead and does soth. that she knows is certain or substantially certain to cause harm, even if causing that harm is not her conscious purpose. - Buzzanga and Durocher are just as morally blameworthy if they bring about certain result of promoting hatred, even if it done w/ a laudable purpose.

MOTIVE

Lewis 1979, SCC., Dickson ,J. - Motive  necessary for murder;  relevant to intent

F: Mr. Tatlay had bomb sent to his da’s house b/c she m’d w/out his permission -bomb was in kettle, blew up when plugged in, killing da & husb - contends Lewis either made the bomb, or sent it through the mail knowing it was a bomb -Lewis = explosives expert in mind & in need of cash -Motive would then be $$; intent would be to kill – charged w/ murder I: Was there or was there not motive What is the proper distinction b/w motive and intent H/R: Motive  necessary for murder;  relevant to intent -motive can (NOT must) be used as evidence & is  admissible (though not necessary) -proved absence of motive will be impt part of a dc strategy & should be put to a jury (air of reality) -however, not part of the crime, irrelevant to criminal responsibility -criminal law = ethically neutral -motive only relevant at time of sentencing

 motive is not relevant to intention except in cases of self-dc: do intend to kill, but your motive is to save your life motive of duress is not relevant for criminal responsibility: e.g. – you kill an innocent taking pt in a robbery

-Lewis had intent to murder if he sent the bomb knowingly, b/c he knew someone was likely to die -but, if he thought kettle was a gift  acquittal b/c no intent to kill (knowledge that a result is certain carries requisite culpability for murder)

20 1. CONFUSION B/W ‘MOTIVE’ AND INTENTION

Steane 1947, GBR, Goddard, LJ limits intention to conscious purpose (for crime of treason?)  as long as accused didn’t desire result, did not have intention

F: accused of committing acts likely to assist the enemy w/ intent to assist the enemy -physically assaulted, threatened repeatedly, quit, family threatened, forced back to work reading news broadcasts for Nazis -A/R req’d = broadcasting, which was likely to assist enemy, done w/ intent to assist enemy -M/R = intent to assist enemy -doctrine of duress provides no dc to treason H/R: judge qualifies crime as one of treason, not regulation  needs M/R -cannot presume guilty intent:  must prove it (recall – Ortt) -accused had to intend to assist the enemy, not just intend to broadcast/do as told -holds that intent of accused  to assist enemy, rather to save his life and that of his family  innocent of criminal intent -limits intention to conscious purpose  as long as accused didn’t desire result, did not have intention Incorrect! As long as accused knew or was substantially certain that his actions would bring about prohibited result, he had intention - Martin, J.A. in Buzzanga -can infer that Steane knew that the broadcasts would help the enemy by the very fact that he was resistant to doing them -duress incorporated into M/R b/c dc not available for treason -problematic precedent Could say that this is a special case: desiring the result is necessary for the crime of treason  legal anomaly

Glanville Williams: -Goddard could have ruled that accused did intend to assist enemy, but has a dc in duress -problem w/ Goddard’s judgement: if he’s right, any motive/purpose for broadcasts, other than assisting the enemy would be a valid dc (e.g. – could be doing for $$) -real issue here is duress -motive and intent mixed up

Paquette 1977 SCC, Martland, J. Not guilty, equates lack of desire for conseq. w/ lack of intent

F: Paquette driving Clermont to work, C. tells P he wants to rob a resto and wants P. to drive -P refuses, C. threatens to kill him (pulls gun) -C. and Simard rob shoppe & end up killing someone -P drives around block and won’t let C&S in car I: Did Paquette intend to help rob the store? H: Not guilty, equates lack of desire for conseq. w/ lack of intent R: dc of duress avail to those abetting murder,  should be avail to those committing felony murder by abetting crime -fear & duress negate intent to carry out unlawful purpose -overrules Dunbar  said duress doesn’t  intent

Martin, J.A. in Buzzanga disagrees (so does SKLAR)

21 Hibbert 1995, SCC, Lamer, C.J. Intent doesn’t require that dt foresee conseq. as desirable. Dc of duress avail to accomplice.

F: B takes revenge against C b/c C assisted a rival drug dealer to rob B -B goes to C’s house, has Hibbert call C down (wouldn’t come if knew B there) -B shoots C: Hibbert knew B intended to shoot C -C doesn’t die I: Can duress negate intent? H: No R: No req. that dt consider certainly foreseeable consequence as desirable (overrules Paquette) -dc of duress is available for accomplices (confirms Paquette) -duress, operating on an accused state of mind, can provide a dc analogous to self-dc. -But is distinct from M/R  not related to intention

Hall Article -M/R distinct from motive -M/R intent fuses volition and cognition = voluntary commission of a proscribed harm -motive can determine guild of dt -guilt is personal, but M/R is an objective principle – ie – not subject to personal value codes of dt or triers of fact

E. THE MENS REA FOR THE SEVERAL FORMS OF MURDER

SEE S. 222, 229, 230, 231, 235

-Must be planned and deliberate

Smith 1979, Sask. C.A., Culliton C.J.S.

F: violent bender at farm house (rye, valium) -execution style killing that occurred v. quickly: shot in arm, runs away, shot in back, on ground, shot pt blank in head I: whether there was evidence of planning and deliberation   guilty of Murder 1 H: Actions of the accused were the result of a sudden impulse R: planned  hasty, impulsive; rather, means thinking about killing in advance -as a matter of law, there was no evidence of any plan in this case  happened quickly in drunken confrontation for a murder to be considered planned and deliberate, don’t necessarily need a long interval b/w decision and killing. Had Smith conceived of plan 5 min prior to arrival at the farmhouse, would be sufficient. here, no reasonable jury would be able to convict beyond a reasonable doubt of planned and delib murder b/c there was no evidence of a plan = Q. of law ( shouldn’t have been put to jury); whether there was planning = Q. of fact. would have needed plan prior to confrontation to be M1

-RECALL: M1 is a gradation of the crime of murder. Relevant only to sentencing, not otherwise.

22 Simpson 1981, ON C.A., Martin, J.A. M/R for murder is subjective – knows not ought to know in s. 229(a)(i)

F: Appeal, Martin, J.A. asked lawyers for submissions regarding the judge’s charge as to the intent needed for attempted murder (he’s such a good judge!) I: What is the intent necessary for attempted murder? H: New trial ordered R: Liability under s. 229 (a) (ii) is subjective – accused must cause bodily harm that he knows is likely to cause death. NOT ought to know. NOT might cause death. -jury may infer that because accused ought to have known bodily harm, he was aware  but as a matter of evidence only.

s. 229 – MURDER – culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not

… s. 229 (a) (ii) requires intent slightly less that to kill, but P considers it the same thing  Cm law -relaxes the requirement of intent to kill b/c it’s v. hard to prove -same moral culpability for planning to beat someone half to death, and beating them to death

R. v. Nygaard and Schimmens 1989, SCC, Cory, J. Planning and deliberation to cause serious bodily harm that is likely to cause death will necessarily include planning and deliberating to persist in conduct despite risk of killing victim

F: M. Bounced chq -N & S went to his house and beat him with a baseball bat. Found out chq was really written by H, proceeded to beat his head w/ baseball bat. H died in hospital of multiple skull fractures. I: What’s the spec. M/R req’d by s. 229 (a) (ii) to which the element of planning and deliberation must be related. H: Planning and deliberation to cause serious bodily harm that is likely to cause death will necessarily include planning and deliberating to persist in conduct despite risk of killing victim R: recklessness towards possibility of death operates in conjunction w/ planned and intentional infliction of bodily harm -moral culpability of someone who assaults knowing death is likely and someone who assaults w/ intent to kill is the same

Hypothetical F: Go to A’s home, intending to kill her. A is out, so you kill B instead (out of frustration) -M1 or M2? -could argue that decision to kill be was hasty and impulsive,  planned -variation: had in mind to kill A, but kills B by accident/ mistaken id

23 Paré 1987

-Words “while committing” do not require simultaneity. Offence and killing must be connected and form part of the same transaction -Purposive construction first, then strict construction if ambiguity remains -F: 17 yr old lures 7 yr old boy under bridge and sexually assaults him. Boy says he will tell his mother, 17-yr old becomes convinced boy will tell, kills child 2 min. after assault committed, while his hand still on boy’s chest -I: M1? Planned and deliberate? Murder 1 b/c homicide occurred while accused was committing assault? What are the implications of the doctrine of strict construction (ambiguity in wording resolved in fav. of dt – here, “while committing”) in this case -H: Paré guilty of murder 1 -R: -assault and killing form part of a single, connected transaction b/c involves killing during the unlawful domination of another person (= Purpose of P in making d. in certain circumstances Murder 1 @ s. 231) -must look at purpose of P in writing statute, then, if reasonable ambiguity remains, go on to strict construction anal. -Common sense interp of purpose of provision implies difficulty in defining the end of a sexual assault. Here domination continued

Random crimes to know: -suborning purgery (accomplice to perjury)  means you can’t put someone on the witness stand if they’re going to lie. Can’t tell witness they’re lying if you know story is true, but can point out weaknesses in argument to create a reasonable doubt -recall: Hall article – criminal M/R req. not subject to personal ethics -moral culpability outside/against criminal law can be taken into acct by prosecutor, sentencing s. 86 – pointing a loaded or unloaded firearm at someone is an offence  can be basis for unlawful act manslaughter -similarly, carelessly storing a firearm is an offence (subject to marked departure test) -shooting so. accidentally = assault  basis for unlawful act manslaughter

F. RECKLESSNESS AND WILFUL BLINDNESS

Sansregret v. R. , 1985, SCC, McIntyre, J. As regards definition of wilful blindness and recklessness only:

-Recklessness: not to be confused w/ negligence -negligence involves a marked departure from and objective standard of reasonableness. Thought of risk doesn’t enter dt’s mind -recklessness, to be part of criminal M/R, must have a subjective element -turn your mind to something, think about risk, continue despite that risk -Wilful blindness – different again -“person who has become aware of the need for some inquiry declines to make the inquiry b/c he does not wish to know truth” – seen as equivalent to knowledge -people can usually foresee conseq. Of actions,  if so does act likely to produce certain consequences, reasonable to assume those consequences were foreseen by accused, and , if

24 accused acted to produce conseq. , that they were intended -however, this process must be used to determine what the accused intended, not ascribe the intention of a reasonable person to the accused

Glanville Williams – “Knowledge, then, means either personal knowledge or (in the licence cases) imputed knowledge. In either event there is someone with actual knowledge. To the requirement of actual knowledge there is one strictly limited exception. Men readily regard their suspicions as unworthy of them when it is to their advantage to do so. To meet this, the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, b/c he wishes to remain in ignorance, he is deemed to have knowledge.” -quoted in Sansregret see also Miller, p. 235 CB

-An accused’s subjective state of mind (recklessness, w/b, knowledge) goes to what that person knows, &  to her intention -unstable rule: often confused -3 states of mind for M/R involving what a person  Knows  Is wilfully blind ABOUT  Reckless

EXAMPLES: -Currie – fact that cheque is stolen -Jorgenson – films rented -Blondin – narcotics in scuba tank -Sandhu – narcotics in luggage/wallet -Parker – property damaged -Oluwa – narcotics imported to Canada -Sarsregret – woman not consenting to sex (b/c of fear of harm)

Currie 1975, ON C.A., Martin, J.A. Subjective test for w/b

F: young man cashes a chq for a stranger who approaches him in a bar (gets $5) -chq turns out to have been stolen by stranger & endorsement forged I: Was accused wilfully blind as to the possibility that the chq was stolen H: Acquittal. W/b is subjective. R: Trial judge seemed to indicate that there was an element of objectivity in the test for wilful blindness; that accused should have been suspicious,  should have made inquiries -NOT CORRECT! Objective test is only for negligence. Not part of the crime here -wilful blindness depends on what the accused thought – accused must have actually been suspicious

Jorgensen 1996, SCC, Sopinka, J. ‘knowingly’ = w/b or knowledge, not recklessness

F: video store owner had videos for rent approved by OFRB. -undercover police officers bought videos and conc’d they were obscene -charged w/ knowingly selling obscene material w/out lawful justification – s. 163(8)

25 H: Acquitted at S.C. No evidence of knowingly or w/b R: To convict someone of knowingly selling tapes,  must prove that accused aware that main subject was sex AND that accused knew of the presence of ingredients of the subject matter that make it obscene as a matter of law -to use w/b to convict,  must prove that the accused shut his eyes b/c he knew or strongly suspected that looking would fix him w/ knowledge -no evidence of either -implicitly holding that recklessness is not sufficient -resolves controversy b/w Blondin and Sandhu in favour of Sandhu -approval by a provincial censor board  justification or excuse

Blondin 1971, BC C.A., Robertson, J.A. ‘ Knowingly’ = recklessness, wb, or knowledge -  in favour of Sandhu (reckless) by Jorgensen

F: Blondin imports narcotics in his scuba tank -Blondin knew that there was soth in the tank that was illegal, he’d been paid to bring it over. Didn’t realize there were narcotics inside I: Did accused know that he was carrying narcotics? Necessary mental state for a narcotics offence H: New trial ordered. R: -knowledge, w/b, recklessness all sufficient M/R for drug trafficking (s. 2-4, N.C.A.)  must prove not only that Blondin intended to smuggle soth into Canada, but also that he was reckless about what it was, or wilfully shut his eyes to what it was -jury may then infer from the evidence that Blondin knew, w/b, reckless about bringing narcotic into Ca.

Wilful blindness usually occurs when accused decides he or she is better off not knowing &  shut eyes to truth, don’t inquire Recklessness occurs when you are aware of a risk that soth might be/go wrong, but do it anyway -difference is matter of proof in Ct: much easier to prove that risk has occurred to accused, than that he specifically thought about what was going on and decided not to make inquiries Sansregret: “The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.”

Hypothetical -Recall: Beaver -if Blondin thought he was trying to smuggle in Nikkon cameras, but doesn’t inquire further  likely they would be confiscated, jail time  likely -would be unfair to Blondin to punish him for narco violation if his M/R went only to a customs violation – Martineau and Viancourt, infra -but, likely little distinction would be made if Blondin thought he was bringing in pot and it ended up being heroin

26 Sandhu, 1989, ON C.A., Finlayson, J.A. Knowledge incl. W/b, but not recklessness. – state of the law now

F : Sandhu caught importing heroin from India (93 lbs!) -had 7 oz gold on him ($3000) -says he’s an innocent mule: has a witness who testifies that her deceased lover is the real culprit -charged w/ importing narcotics – knowingly (recall: Beaver) I: Does Sandhu have necessary M/R for guilty (knowledge, w/b, recklessness) H: New trial.  must prove knowledge. Recklessness is less than knowledge R: knowingly means w/ actual or imputed knowledge (incl. w/b), but does NOT incl. recklessness -w/b is imputed knowledge – a subset of knowledge, recklessness is different -if dt’s belief is unreasonable, yet honestly held,  reckless

controversy b/w Blondin and Sandhu (2 provincial appellant courts) Oluwa case (BC) follows Blondin SCC in Jorgensen resolves debate in favour of Sandhu

Parker 1977, UK (NOT THE LAW IN CANADA)

F: man in phone booth slams down phone, breaks it (in front of cops) -charged w/ wilfully damaging property I: Whether what’s in a person’s mind can be inferred from what a reasonable person would have known H: Appeal dismissed. Guilty R: dt knew his circumstances, and if he’d directed his mind to the matter, he must have realized the possibility or inevitability of damage -recklessness here defined as knowing or closing your mind to the possibility of damage in circumstances where damage is likely Impt’c: illustrates the difficulty of showing what a person is thinking -allowing recklessness to be sufficient makes  job much easier Sklar disagrees w/ holding. Thinks anger can make a person unaware of the conseq of their actions test for recklessness in Ca- fr Sansregret- req’s that the accused actually realize a risk and proceed anyway

Recall: law in Canada after Buzzanga, ‘willfully’ in Code to be read as intentionally, unless specifically stated otherwise - cannot convict of willfully doing soth. if dt only has M/R of recklessness

G. CHARTER IMPACT ON SUBSTANTIVE CRIMINAL LAW

1. MURDER

Viancourt 1987, SCC, Lamer C.J. Objective forseeability of death is necessary for murder conviction. Strikes down s. 230 (d) on constructive murder.

F: Pool hall robbery. Accomplice shoots & kills someone, then escapes. -Viancourt didn’t want to kill anyone, and says he though accomplice’s gun wasn’t loaded (made

27 him take out the bullets) -Viancourt convicted of murder 2 under s. 230 (d) I: Is Viancourt’s conviction (and s. 230 (d)) contrary to s. 7 Charter? H/R:  s. 230 (d) b/c it substitutes proof that accused performed one of the acts listed in a-d for any proof of subjective/objective foresight of death -Stigma and punishment of murder are most severe,  cannot justly punish w/out moral culpability -distinction b/w murder and manslaughter made by mental element, it is mental element that justifies stigma and punishment -personally thinks you need subjective foseeablility of d. to convict of murder, but says he needn’t decide that here, so concludes that objective forseeability of death is necessary to convict someone of murder -relies on BC Motor Vehicle, saying that for any offence that threatens the liberty interest, there must be a minimum objective state necessary for the offence. Elevate M/R to constitutionally required Diss, McIntyre: Choice of what constitutes murder is for P to make, not courts

case addresses issue of who has the power to define the criminal law (ct wins)

Martineau 1990, SCC, Lamer, C.J. Subjective forseeability of death now required for a murder conviction. Strikes down s. 230(a) F: Accused and companion enter trailer in order to rob it. Tie up victims, companion shoots husband. -Accused says ‘Lady, say your prayers’ -Companion shoots wife -convicted of murder under s. 230 (a) I: Is s. 230 (a) consistent w/ s. 7 Charter? H: NO. Constitutional req. of subjective forseeability of death R: Chooses to deal w/ appeal on basis of need for subjective forseeability, though could do w/ objective forseeability -Sault Ste-Marie – est’d that need intent or recklessness to convict so. of a true crime. S. 230(a) runs contrary to this principle -not requiring subjective forseeability of d. violates the principle that punishment α moral blameworthiness. - violates a principle of fundamental justice (s.7) -need same M/R as for s.229 – knowledge or intent to cause d/bodily harm likely to cause d ( could convict based on intentional infliction of serious bodily harm that is likely to cause d. & is reckless abt whether dies) Diss, L’H-D: -Q’s whether this type of decision is w/in the proper sphere of f’n for the S.C.: need clear violation of Charter before striking down legislation -objective foreseeability is enough to satisfy Charter. -shouldn’t get rid of test just b/c ct thinks a better one is available -shouldn’t mess with P’s chosen method of protecting citizens -no parallel of subjective forseeability anywhere in Cm law -Stigma argument is overemphasized

28 Martineau sets out three factors relevant to determining the constitutionality of a M/R requirement: (as set out in Creighton) 1. Stigma attached and available penalties requiring M/R reflecting nature of that partic. crime 2. punishment α moral blameworthiness 3. those causing harm intentionally must be punished more severely than those causing harm unintentionally

s. 230 (a) and arguably (b) (c) struck down b/c they could involve less than subjective foresight. 230 (d) repealed. S. 230 (c) struck down in R. v. Sitt b/c could involve less than subjective forseeability.

-There are many situations where a charge under s. 230 (a)-(c) could satisfy Martineau  where there is intent to kill (subjective foresight). However, these are all essentially covered under s. 229. Could possibly have effect on a jury charge if murder is linked explicitly to another offence. Logan – attempted murder also requires subjective foresight of death -an objective liability test punishes the accused for not having the foresight/beh’vr of a reasonable person -however, being unthoughtful or hasty doesn’t lead to the same moral blameworthiness as an intentional act -Contrary to expectations of many, S.C. stopped w/ murder & sexual assault. Don’t require subjective foresight for other serious crimes.

-W/b in a murder charge? Possibly in a case of child abuse. Perhaps, if abuse is ongoing, and ch has been seriously harmed before, accused could w/b self to possibility of causing d. before a subsequent assault.

2. UNLAWFULLY CAUSING BODILY HARM

De Sousa and Creighton both involve predicate offences. -they require an underlying offence and a harm caused by that offence -in both cases, S.C.C. adds a fault element: objective forseeability of bodily harm, as well as M/R for predicate offence -predicate offence can’t be one of abs. Liability

De Sousa 1992, SCC, Sopinka,J. Predicate offence requires objective forseeability of harm

F : guy throws a bottle at a wall in a bar, splinters and glass cuts a woman on the arm (not an intended victim) causing a serious injury -DeSousa charged with unlawfully causing bodily harm s. 269 I: What is the state of mind needed for an unlawful act -What state of mind is needed for the resultant bodily harm? H: Unlawful act causing bodily harm requires that the underlying offence be objectively dangerous (BH) R: Require M/R, personal fault for the underlying act  can’t be an absolute liability offence

29 (uses lg of BC Motor Vehicle) -must be a federal or provincial offence (Motor Vehicle and Sault Ste-Marie) -unlawful act must be objectively dangerous (can’t be an offence against property)  objective foresight of bodily harm -this bodily harm must be more than merely trivial or transitory in nature (usually an act of violence done to another) -objective std justified b/c stigma is not so great and the punishment is not necessarily severe -the objective forseeability of bodily harm is a sufficient fault -symmetry charter requirement (M/R of act being the same as M/R for result) -saying that there was a need for both intent to apply force and intent to assault would destabilize many offences ***NB*** there’s no such thing as objective mens rea. Only an objective test of fault s. 269- UNLAWFULLY CAUSING BODILY HARM- Every one who unlawfully causes bodily harm to any person is guilty of… (indictable offence – max. 14 yrs or summary offence, max 18 mo)

3. UNLAWFUL ACT MANSLAUGHTER

2 requirements for manslaughter: 1. conduct causing death 2. Fault short of intention to kill; incl. (a) criminal negligence or (b) another unlawful act that causes d.

Creighton 1993, SCC, McLachlin, J. Unlawful act manslaughter requires only reasonable foresight of bodily harm Est.’s marked departure test (objective std) for criminal negligence (see Creighton under crim neg.)

F: Creighton injects heroin into arm of another (w/ her consent) -is  trafficking under CDA, where trafficking is defined to include administering any drug -She died of overdose, Creighton charged w/ unlawful act manslaughter, where underlying offence is trafficking I: What is the state of mind needed for an unlawful act -What state of mind is needed for the resultant death? H: Reasonable foresight of bodily harm is the requisite mental element to sustain a charge of unlawful act manslaughter R: uses DeSousa -need M/R for trafficking (can’t be done negligently) -manslaughter has never required subjective foresight of d., b/c that would be tantamount to murder -symmetry in criminal law  req. that the result of death requires foresight of death -penalty and stigma for unlawful act manslaughter are not so great as to require objective foresight of death -all that is required is objective foresight of bodily harm -adopting a req. of objective foreseeability of death would require ing thin skull rule : court not prepared to go that far (recall: Smithers) Diss, Lamer + 3: to convict of unlawful act manslaughter, a reasonable person would need to foresee that the unlawful act carried the possibility of death (retreat from Martineau – no subjective req.)

30 Cribben 1994, ON C.A., Arbour, J.A. If reasonable pers would have foreseen risk of bodily harm that’s neither trivial nor transitory, & unlawful act is at least contributing cause of victim’s death outside de minimus range  guilty of manslaughter

F: Accused punched and kicked victim, then friend attacked more viciously. Injuries not life- threatening, but victim drowned in his own blood after being left unconscious -Cribben contends that his part in the assault was beyond the de minimus range not close enough cause of d. - & OR argues that s. 7 requires that rule triggering criminal responsibility (in this case, causation rule) be commensurate w/ moral blameworthiness of conduct prohibited -would be unfair to punish someone for manslaughter who’s moral blameworthiness never went beyond assault   de minimus test  Constitutional I: What is the state of mind needed for an unlawful act -What state of mind is needed for the resultant death? -What causation is required R: -Substantial cause test in Harbottle is higher b/c murder is a more serious crime -shouldn’t hold people responsible for results they didn’t cause, but it is just to hold a person responsible for d. if their action contributed beyond the de minimus range. -causation and fault are linked b/c they are both based on the same notion of moral responsibility.  meets requirement of personal fault for punishment -If reasonable pers would have foreseen risk of bodily harm that’s neither trivial nor transitory, & unlawful act is at least contributing cause of victim’s death outside de minimus range  guilty of manslaughter - must prove both causation element and fault element beyond a reasonable doubt -req. of objective foresight removes risk of convicting morally innocent acting inside the de minimus range.

Glanville Williams: (discussing thin skull rule) “Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some way to the death.”

In Jobidon, the requirement of objective forseeability of death is met: Jobidon 1991 Consent to an assault is vitiated when non-trivial bodily harm is caused by two adults getting into a fight. Common law limits validity of consent for policy reasons. (per maj.) ¹ applicable to sports (as long as part of regular conduct), medicine or stunts F: Two men get into a fight in a bar, agree to take it outside -Jobidon renders other man unconc. but doesn’t realize it, punches him 4-6 more times causing death -charged w/ mansl. I: Role of the Common law in defining crimes w/in the code -turns on issue of consent to the fight: if there was consent, there was no assault & \ no mansl. -does  have to prove absence of consent in all cases (as pt of actus reus) ? Are there common law restrictions on the legal effectiveness of consent in some cases? -\ is consent pt of offence or a defence? H: accused guilty of mansl.

31 Gonthier R: Majority -more formalistic -consent is a defence to a charge of assault, \ cm law is an archive that can be used to determine what constitutes consent and when it is vitiated. Can be used to illuminate Cm law by 8(3) -cm law vitiates consent to force causing serious bodily harm in a brawl b/w adults -also takes into acct. policy reasons – don’t want to enc’g fighting, isn’t in public interests (violent sports serve pub good). -prioritizes public interest over individual autonomy -public interest as decided by S.C. -see s. 8(3)

Sopinka R: Minority -more substantive -says lack of consent is part of actus reus of crime of assault, \ Â must prove, \ can’t use common law to interp or construct notion of consent -accuses Gonthier of using Cm law to eliminate an element of a statutory offence ® dir. Contrary to 9(a) -Victim only consented to being hit while conscious, changes trial judge’s finding of fact that accused did not know victim was unconc. -prioritizes individual auton. If P wanted to vitiate consent in these circumstances, it would say so

Analysis -can be looked at on two levels: ®what is the crime involved? ®How much force can a person consent to, and under what circumstances -here, d. caused during assault = unlawful act -necessary criteria for culpable homicide, which is defined as murder, mansl., or infanticide @ a. 222 Things to note in Jobidon:  Role of Cm law in determining when consent valid and when vitiated  Line of cases ® split; S.C. wants to decide issue one and for all  Policy Considerations – how to balance public interest w/ individual auton -Sklar: consent is a question of fact, and is part of the actus reus -findings of fact can usually only be overturned if arbitrary/unfounded ® becomes Q of law -nothing in 9(a) prohibits ct from using Cm law to illuminate a crime \ G. didn’t really violate it (?)

RECALL: SMITHERS – was there objective forseeability of non-trivial bodily harm?

32 4. AGGRAVATED ASSAULT

Godin 1994 SCC -aggravated assault s. 268 (assault w/ consequence of wounding, maiming disfiguring, or endangering life) -req. M/R for assault (intentionally applying force) -Fault requirement is objective foreseeability of bodily harm -doesn’t require intent to cause consequences -Consistent w/ DeSousa and Creighton

-subjective knowledge that assault was likely to wound or maim would be v. difficult to prove b/c have to show what’s in accused’s head -objective foresight of wounding and maiming – would a reasonable person have seen this risk? – easier to prove -objective foresight of bodily harm – relatively easy for  to prove

5. CRIMINAL NEGLIGENCE s. 219 (1) CRIMINAL NEGLIGENCE – Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

(2) “DUTY” – For the purposes of this section, “duty” means a duty imposed by law.

unclear what the fault req. is criminal negligence is a definition, not a crime

Hypothetical 1 F: Person driving in the country behind a slow-moving car, passes impatiently on a curve, double yellow -causes a collision that kills the other driver -charged w/ criminal negligence causing d. (is interchangeable w/ manslaughter – is one of the forms of manslaughter) -If accused thought of risk of accident, but thought, nah, won’t happen

-Mme Justice Wilson, in Tutton and Tutton advocates a subjectively reckless state of mind as the minimum to convict of crim neg.

Hypothetical 2 F: driver v. intent on listening to ball game, passes on double yellow/curve w/out thinking that there’s a possibility someone might be coming -convict of crim neg. b/c should be punished b/c a reasonable person wouldn’t pass on a double line/curve =objective test advocated by McIntyre in Tutton and Tutton reckless,  w/b

Hypothetical 3

33 F: What if motorist has a condition called impulsivity that causes uncontrollable impulsive actions? - passing would be objectively negligent by the standard of the reasonable pers, but the accused would lack the ability to act reasonably

Hart – Subjective and Objective -crucial test for criminal negligence should not be subjective awareness of risk when accused did act -rather, is that those punished “should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what if forbids, and a fair opportunity to exercise these capacities.” -objective standard should not be taken to allow a person to be punished as though she could control her conduct, if this was not the case. -must answer yes to these two Qs: 1. Did the accused fail to take those precautions which any reasonable man w/ normal capacities would in the circumstances have taken? 2. Could the accused, given his mental and physical capacities, have taken those precautions? -if accused did not have the capacity to do otherwise  no responsibility for negligence -otherwise: liable (position taken by McLachlin in Creighton)

Pickard & Goldman – Dimensions of Criminal Law -culture, values and beliefs will shape meaning of words/gestures, etc. -virtually impossible to claim that fact finder sees things as the objectively are/truth b/c of contingency of knowledge

Tutton and Tutton 1989 SCC (split bench) Marked and significant departure test

F: 5 yr old diabetic ch. dies b/c parents withhold insulin -Mo has vision from God  ch. = cured, stops insulin  ch v. sick  hospital  told not to do it again or ch could die -Mo has another vision  withholds insulin  ch dies -charged w/ manslaughter (crim neg d) I: What is the test for criminal negligence? Was it reasonable for parents to think God cured their ch? H: Inconclusive 3-3 split – maybe subj. or obj. New trial ordered R: Wilson – need a reckless (or w/b) state of mind to convict for crim neg. -‘shows’ means that you have to demonstrate wanton disregard yourself, subjectively -mother had to have known (infer fr objective std) that there was a risk in stopping insulin -suggests that a strict objective std  absolute liability offence (SKLAR: wrong, strict liabil, b/c can prove due diligence) -concerned that even Lamer’s ‘generous allowance’ will screw some people

-CURRENT STATE OF LAW: McIntyre- “shows” in statute means that there is no subjective element req’d -only need a marked and signif departure from the conduct of a reasonable person

34 -will take circumstances into acct in determining what is reasonable Lamer concurs, but posits a “generous allowance” to be made for factors partic to the accused – youth, etc. (what was reasonable for this person)

-marked departure must be defined for the jury by the judge in her charge, including examples - previous experience, instructions, belief of the accused, reasonableness of this belief, all go into proving whether conduct was a marked departure unreasonable mistake of fact can’t afford a dc b/c unreasonableness is the essence of negligence

Gosset F: Cop shoots Gosset (trying to run away from cab w/out paying) at point blank range for no reason -Cop charged w/ causing d. by careless use of firearm H: McLaughlin, maj. – personal characteristics shouldn’t be taken into acct for negligence.  cop must be held to standard of reasonable person using a gun, not to standard of trained police officer w/ a gun Lamer, min. – Should take pers char into acct  cop has training  higher standard of care required

Creighton (again) – criminal negligence Marked departure test for the interp. of all objective crimes – unanimous Ct divided 5-4 over whether personal factors could be used in application of std

R: McLachlin, maj.: no personal factors except incapacity may be considered Lamer, Diss: personal factors allowed -creates a step-by-step test: 1. Was the accused aware that her actions could create a possibility of death  No – acquittal  Yes – got to step 2 2. Did the accused fail to turn her mind to the possibility of death?  Y – conviction  Y b/c of a lack of capacity – go to step 3 3. Would a reasonable person w/ the capacity of the accused have foreseen death?  Y – conviction  N - acquittal

Ptly Based on Gosset case, supra – should subjective characteristics be taken into acct (eg- these were junkies who knew how to shoot up and did it often \ no appreciation of subjective danger of death) ®McLachlin takes a position similar to that expressed by Hart supra, requiring objective test w/ allowances for incapacity

Tutton, Gosset, Creighton combine to make state of law in Canada an objective test for Criminal negligence. Total lack of capacity will be a good dc (arg: should be held to a lower std) but v. strictly applied. Would only include those who are incapable of perceiving the requisite facts -Doesn’t incl. things like religion, education -No raising std for people w/ special training (v. problematic – Dr?) SKLAR: excluding special training is dumb – makes reasonable standard into a “ridiculous fantasy”

35 -if you can have an objective std for manslaughter, you can have an objective standard to a lot! (Q: why not sexual assault – stigma that much greater?)

Other offences w/ an objective standard of some sort or another: s. 21(2) common intent for accessories; 249(1) (a) dangerous driving; 86(2) careless use of firearms or ammunition; Also sexual assault: no mistaken belief dc if reasonable steps  taken s. 49(b) alarming her majesty; 22(2) counselling another to be a party to an offence; s. 46(2)(b) treason; 72(1) forcible entry; 72(2) forcible detainer; 77 endangering aircraft safety; 79-80 failure to use reasonable care to prevent injury from an explosive substance; 130(b) personating an officer; 202(g) importing gambling information; 218 abandoning a child; 263(1) not safeguarding an ice hole; 251 taking an un-seaworthy ship to sea; 290 bigamy as a result of a mistaken and unreasonable belief that a spouse is dead; 303 publishing defamatory material; 422 criminal breach of trust

V.

A. HISTORY AND BACKGROUND CONSIDERATIONS (CB 515-21 & 96-98)

Rape Laws in Context -equality issue  women and children singled out, allegations discounted b/c of gender: ie – women are appropriate targets for forced sex -danger that only rapes committed by strangers will be taken seriously. These crimes account for a small portion of sex’l assaults -women often suspected of being at fault, provoking attack -discriminatory evidentiary rules: necessity for collaborating evidence; not immediately reported  fabricated charge (doctrine of recent complaint!!) b/c of distrust of women -sexual history/reputation considered relevant to consent and credibility of witness

Young, When The Titans Clash Comment on S.C. dec’n about availability of medical records in sexual assault cases -problem of re-victimization of complainants by cts -total disclosure of private lives of complainants based on discriminatory suspicion that reports of sexual assault by women & ch are “uniquely likely to be fabricated” -psych/therapeutic records of  witnesses for other offences w/ high rates of ‘falseness’ (as det’d by police) aren’t used v. often to discredit them  shows still clinging to stereotypes

Bala, False Memory Syndrome -in course of treatment, can develop false memories

McKinnon, Feminism, Marxism and the State -Rape as act of violence, not sexuality -sexuality = social sphere of male power where rape is paradigmatic -rape in intercourse, not intercourse in rape

Roiphe, Rape Hype Betrays Feminism

36 -defining rape v. broadly amounts to endorsing a utopian view of sexual relations. Any sex that’s experienced as negative could be considered rape

Until 1982, under s. 143, rape was defined as intercourse by a man w/ a woman who is not his wife… No express M/R req.

-s. 278.1 &.2 – exception to patient privilege rules – “No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of…” Record defined in 278.1 to include anything that contains personal info for which there is a reasonable expectation of privacy. Subsequent sections deal with ways this material may/may not be used dc must satisfy judge as to relevance of material before she will examine it, and then again before the evidence can be admitted

B. THE M/R FOR SEXUAL ASSAULT

Four major issues: 1. Did complainant consent? A/R Question, to be determined from the subjective mind of the pf – Ewanchuk 2. What is the M/R for sexual assault?  Accused knows (incl. w/b) or is reckless as to the absence of consent  Pappajohn – Dickson’s dissent is the law on this issue  Sansregret 3. Is mistake of fact (honest but mistaken belief) a good defence to sexual assault?  Yes – Pappajohn, Sansregret, Ewanchuk, R. v. O. 4. Does the mistake have to be reasonable?  No – prior to s. 272.3 – Sansregret & Pappajohn, Morgan  No – since introduction of s. 272.3 - Darrach – but accused must take all reasonable steps to make sure that accused is consenting  Ewanchuk, R. v. O., R. v. Malcolm

Morgan UK F: Ships captain invites inferior officers up to his rooms to rape his wife. Tells them she likes it rough, to disregard her protests H: Belief in consent does not have to be reasonable as long as it is honestly held. -here, accused were convicted b/c House did not believe that the men honestly believed her to be consenting

Pappajohn v. R. 1980 SCC, McIntyre Mistake of fact need not be reasonable

F: Realtor and client go out for lunch, get drunk, go back to his place -she says rape, totally against her will, protests & struggles -he says amorous interlude w/ only coy objections and repeated intercourse -she runs out of house naked w/ tie around neck and hands tied tightly w/ bathrobe sash – v. upset I: To be a good dc, does mistake of fact have to be reasonable? H: Unreasonable mistake of fact is a good dc R: Dickson (diss on disposition, maj. on mistake of fact) -cannot be judged guilty and punished “unless commission of crime was voluntarily directed by a willing mind”’ - need to prove positive state of mind as to wrongfulness of the act

37 -M/R of rape: intention to commit act of intercourse, and intention to do so in the absence of consent ,  need knowledge/wb or recklessness -anything less would amount to a conviction for rape based on negligence (objective std of reasonable belief) -Mistaken but honest belief in consent  no culpability Maj.: Accused saying there was consent, pf saying there wasn’t,  no issue of mistake of fact can arise. Accused not making assertion that he believed he had consent, rather, that she was a willing participant. Jury has to decide who they believe Approved of an applied in Sansregret

Dickson id’s 4 issues in Pappajohn: 1. What is the M/R of rape 2. Is a mistaken belief a good dc 3. If so, is dc good only if mistaken belief held honestly and on reasonable grounds? 4. Error in law of trial judge: not putting mistake of fact to jury? problem of conflict of rights: pf’s right to see assailant convicted vs accused’s right to fair trial (ackn. by Dickson)

Pickard excerpt -open to the courts to give recklessness a meaning that would include unreasonable mistake of fact -for the purposes of sexual assault, an unreasonable mistake of fact should = recklessness

Stuart -argues back that Dickson understood concepts -had he expanded the notion of recklessness in sexual assault, he would have had to expand it in all areas -would totally undermine subjective element of recklessness

Sansregret 1985, SCC, McIntyre If a person believes that consent was freely given, no matter how irrational this belief may be, he or she is entitled to an acquittal

I: Does accused have necessary M/R for sexual assault in this case? -Does mistaken belief have to be reasonable? H: Accused was wilfully blind  guilty -Mistaken belief doesn’t have to be reasonable R: Trial judge’s charge = ambiguous. Seems to say that he was wb, then goes on to say that he had an honest belief  acquittal -W/b is a subset of knowledge,  if accused is wb as to fact that fear was the only reason for consent  conviction -also guilty of unlawful confinement under s. 279.2 (continuing domination – Paré) -was grossly negligent, but not reckless if he didn’t know/think of the possibility that she was consenting only out of fear

Manson annotation -If crime turns on whether a thing is black (guilty) or white (innocent): -Accused is guilty if:  he knew it was black

38  he was conscious of the risk that it may be black, but acted anyway (recklessness)  he had the suspicion that thing was black, and the means to find out for sure, but deliberately chose not to make certain (w/b) -Recklessness and w/b can’t co-exist w/ honest belief: if the accused was aware enough to be reckless or wilfully blind, he can’t honestly believe soth is true

trial judge may have been influenced by prejudices: why was she living w/ this jerk? Blaming victim? Sansregret & Pappajohn and cases like them led to s. 273.1 &.2

New offence of sexual assault created in 1983, trying to respond to some of the criticisms of the old law -trying to get more convictions, etc. -rape is simply the most extreme form of sexual assault and they are all acts of violence

Chase 1981, SCC, McIntyre What constitutes sexual assault

F: Man goes into neighbour’s basement, fondles breasts of 15 yr-old who lives there I: What constitutes sexual assault? H: Any sort of touching of a sexual nature R: Deciding whether conduct amounts to sexual assault is objective -ask Q: was there a sexual nature to the assault, taking into account all the circumstances? -part of body touched is irrelevant, nature of contact is important -take into acct words and gestures accompanying act, as well as all surrounding circumstances -intent/motive of person is relevant, but not required  if done for sexual gratification

Hypothetical F: lascivious looks, innuendos, scaring victim, touches her on the arm = sexual assault under Chase

C. THE NEW LEGISLATION (BILL C-49)

1. THE PRESENCE OR ABSECE OF CONSENT s. 273.1(1) – MEANING OF ‘CONSENT’ – Subject to subsection (2) and subsection 265(3), ‘consent’ means, for the purposes of s. 271, 272, 273, the voluntary agreement of the complainant to engage in the sexual activity in question (2) NO CONSENT OBTAINED - …

S. 273.2 WHERE BELIEF IN CONSENT NOT A DEFENCE – It is not a defence to a charge under s. 271, 272, 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or w/b; or

39 (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. s. 265 (3) – CONSENT- For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of…

-Ewanchuk sets out rules for dealing w/ new legislation (s. 273.1 &.2, 265(3))

Ewanchuk 1999, SCC, Major (L’H-D dissent) No means No case

F: unconsented to touching b/w woman looking for job and prospective boss -series of sexual touching, she keeps saying no, he stops each time, but then starts again -she’s scared and thinks she’s unable to leave -acquitted at trial on basis of ‘implied consent’ b/c she allowed him to touch her I: What does ‘no’ mean? (!) H: it means no R: A/R of sexual assault depends on presence or absence of consent in pf’s mind. -by 273.1 – there is no consent when victim does anything by words or conduct to indicate that she doesn’t wish to engage in the particular sexual activity in Q; fear or coercion, etc [s. 273.1, 265(3)] -Implied consent doesn’t exist: no by words or conduct means no -M/R of sexual assault requires that the trier of fact look to the mind of the accused -once the complainant said ‘no’, accused could only proceed if he got a clear, unequivocal ‘yes’ (by words or conduct) -imposes a + duty on the dt -B/c dt knew she said no, he can’t have a dc based on mistake of fact (no issue of reasonableness or unreasonableness) -To assert mistake of fact, accused must apprehend positive affirmation of consent Diss, L’H-D: Attacks McClung’s moronic comments and idiotic stereotypes -woman’s background used to justify belief of accused that she was consenting, or led to consent in her own mind (despite what she said) -ridiculous comments at C.A. about his ‘romantic intentions’

-McClung, J.A.’s comments about her lifestyle and dress perpetuate stereotype that she was partly responsible for assault. Should have known better, wanted it, asked for it. -Ewanchuk is the leading case on when consent is or is not present, and when the accused may claim mistake of fact - case demonstrates important conflicts surrounding this issue: need to protect the victim’s right not to be sexually assaulted, while also protecting the accused from being unfairly treated at law

Hogg 2000 ON C.A. F: female drug user exchanges oral sex for drugs -abuse of position of trust/power/auth [273.1(c)] vitiates consent I: Is drug dealer in this position? R: No. Not sole supplier, no rel’shp of dependence (not an addict) -had this been her sole supplier, only way she could get drugs, she was dependant = sexual assault

R. v. O. 1999 ON C.A F: Accused 23, victim 15. Meet at bus stop, go back to his place. He said/she said story -@ one point she says ‘no’ – he testifies he thought she was saying ‘no without a condom’

40 -she says she said no when he was trying to pull down her pants -Ct: evidence unclear as to what actually occurred, she was not an active participant, but accused acquitted on reasonable mistake of fact -A/R established, based on her subjective state of mind -appealed b/c in Ewanchuk the court found that accused needs to have apprehended some affirmative communication of consent to assert a mistake of fact dc

could consider sex w/out a condom sexual assault if not specifically consented to Q.: does 273.2(b) impose a duty to take reasonable steps to get a + response? (WHERE BELIEF IN CONSENT NOT A DEFENCE (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.)

2. MISTAKEN BELIEF IN CONSENT

Darrach 1998, ON C.A., Morden, J.A. (affirmed by SCC 2000, w/out considering pt under s. 273.2 (b) s. 273.1(b) doesn’t totally overrule Pappajohn b/c subjective element still necessary for M/R

R: 273.2(b) introduces an objective component into offence, but this objective component is modified: personalized to fit w/ the subjective awareness of the accused at the time -no obligation on the accused to determine all relevant circumstances: ct is concerned w/ what accused knew, not what he ought to have known. -requires that reasonable steps be taken to ensure complainant is consenting. NOT all reasonable steps [150.1(4) does] -s. 273.2: mistake of fact doesn’t have to be reasonable to exculpate  requires only that dt take reasonable steps in circumstances known to him at the time, to ensure consent -reasonable steps  unreasonable mistake of fact  acquittal -cannot take ambiguity (as perceived by dt at time) as consent: must check

 Morden, J.A. questions the contention that sexual assault carries w/ it a stigma that means M/R component must be subjective (see p. 593), but agrees to look at sexual assault on that basis anyway -SKLAR: silly standard, but we’re stuck with it

Sansregret under 273.2(b) – what would have been reasonable steps, under facts known to him at the time? -going home!

R. v. Plummer F: woman terrorized and threatened, raped by Plummer (he’s convicted) -afterwards, Brown walks into room, sees woman naked in P’s bed, crying -has sex w/ her -dc: he didn’t know about the threats -ON C.A.: unreasonable mistake of fact is a good dc & should have been submitted to jury  new trial

under 273.2(b) – he’d have had to have asked her why she was so upset -possibility in this case of wb or recklessness as to her consent

41 Hypothetical F: Sex’l assault statute says nothing about M/R, but ct decides M/R is req’d -Always: presumption of full M/R: intent, knowledge, wb, recklessness -But: if statute says intent: desire, knowledge (incl. wb) but NOT recklessness – Buzzanga & Durocher – wilfulness generally means intent

Malcolm 2000 Man. C.A. F: Victim and accused drinking at New Years party at the home she shares w/ her husb, kiss twice -he says she invited him to kiss her longer -she goes to bed, husb goes to another party -accused goes into her bedroom, tries to wake her up, doesn’t succeed, continues w/ amorous acts b/c he thinks she’s consenting -pf says she was vaguely aware of someone – thought it was her husb., woke up fully to intercourse Ct: under 273.2(b), dt didn’t take reasonable steps to make sure she was consenting

jury can always make inferences based on objective reasonableness of mistake of fact to determine what the accused actually believed. The more unreasonable the mistake, the more likely that the accused didn’t honestly hold it.  both negligence and recklessness could conceivably be justified, depending on the circumstances (eg – rushing ch to hospital)

42 SUBJECT PAGE NOTE Causation 1 A/R problem, Q. of fact for  Crimes requiring jury causation -required only when Code  Problems drawing line req’s result, not just placing  Innocent Agent people at risk  Michaels 2 -laudanum & baby  Ali -little girls  Intervening causes -where there is an intent to 3 kill, ct shouldn’t be too willing  Thin Skull Rule to find break in causation  Smithers -kick  d. (contributing cause outside the de minimus range)  But for test  Holland 4 -finger cut  d  Intervening causes -s. 222(5)(c); 224;225;226 that don’t break the chain of causation  Shanks 5 -fight w/ old man over cat -meets Smithers and Creighton (obj. fors. Bh)  Lewis -sex’l assault = cause of suicide  Blaue 6 -Jehovah’s witness  Difference b/w factual and legal causation  S. 228 -does break chain of caus’n  Smith 7 -soldier stabbed w/ bayonet;  Causation in Tort and overwhelming cause Criminal law  Overwhelming causes 8  Bush  Stevenson  Fletcher  Garforth -secondary assailant contrib’d 9 to d.  Causation for Murder  Harbottle -friend who holds legs;  Causation test under s. substantial and integral cause 231(5) of death rule  Key requirements of 10 this section  Meiler -non-trivial cause of d outside de minimus range is causation rule for Murder 2 (Smithers NOTES

43 SUBJECT PAGE test) Not substantial cause test Mens Rea 10 in Harbottle  Introduction (G.W.)  The Basic Subjective/Objective 11 Distinction -free will vs determinism  People v. Gorshen  Constitutional req. of fault for any crime that threatens the liberty interest  S. 219(1) –criminal neg -Objective test for negligence  Hundal & what is necessary to prove state of mind -M/R and how to prove 12 -subjective intent from  Theroux objective std  Mulligan  Role of Objective 13 Intent -No presumption of intent;  Ortt reasonable inference   Beyo (error) presumed  S. 21 –Parties to an offence (A/R & M/R) -good chart  M/R Offences vs 14 Strict/Abs liabil -full M/R; strict; abs defined  Sault Ste-Marie -sold heroin to cop; thought it  Beaver 15 was dextrose; need M/R for truly criminal offence -duck hunting; defining strict  Chapin liability offence  Charter Limitations 16 -constit’l req. of fault for any  BC Motor Vehicle offences threatening liberty  G.W. quote interest -abs liability offences are C’l  Pontes 17  Regulatory offences -where burden of proof lies  General Note on dc’s -difference b/w recklessness &  Intention (Knowledge intent & Desire)  Difference b/w Motive 18 and Intention -wilfully = w/ intent;   Buzzanga & recklessness Durocher  S. 319; 429 19 -obstructing cop – wilfully =  Willmott v. Atack intentionally doing result -set fire to shed  Burnell 20 NOTES

44 SUBJECT PAGE

 Motive 20 -kettle bomb: motive   Lewis necessary for murder,  relevant to intent

 Confusion b/w motive 21 and intention -War broadcasts: Incorrectly  Steane limits intention to conscious  G.W. quote purpose -drive to robbery @ Pop Shp  Paquette -incorrectly =’s lack of desire w/ lack of intent -drug shooting @ door: No 22  Hibbert req. that dt foresee conseq as desirable. Duress is good dc for aider/abetter  Hall article -M/R = volition + cognition  The M/R for the Several Forms of Murder  See s. 222; 229; 230; -bender at farm house : 231; 235 planned and deliberate  Smith - M/R for murder is subjective  Simpson 23 – knows not ought to know in s. 229(a)(i) -bounced chq, baseball bats:  Nygaard Planning and deliberation to cause serious bodily harm that is likely to cause death will necessarily include planning and deliberating to persist in conduct despite risk of killing victim 24 -continuing domination  Paré  Random crimes to know  Recklessness and Wilful Blindness -defines Recklessness & W/b  Sansregret (R&W/b only)  G.W. quote 25 -cashing fraudulent chq: est’s  Currie subjective test for W/b -porno videos: Knowingly =  Jorgensen w/b or knowledge,  recklessness  Blondin ( by 26 -‘Knowingly’ = recklessness, Jorgensen) NOTES

45 SUBJECT PAGE wb, or knowledge (incorrect) Blondin cont’d 26  Definition W/b, R -Knowledge incl. w/b not r  Sandhu 27 -Brit in phone booth: screwy  Parker standards (objective recklessness) – Not law in Ca  Charter Impact on Substantive Criminal Law  Murder -objective forseeability of d  Viancourt necessary for murder;  s. 230(d)  Martineau -subjective foreseeability of d 28 now req’d for murder;  s. 230(a)  Relevant factors for 29 determining C’y of M/R req -confirms  230(a);  230(c)  Sitt  When s. 230 (a)-(c) might be valid -attempted murder also req’s  Logan subjective foresight of d.  W/b in murder?  Unlawfully Causing Bodily Harm - Predicate offence requires  DeSousa objective forseeability of  S. 269 bodily harm

 Unlawful Act 30 Manslaughter  2 Req’s for mansl. -Unlawful act manslaughter  Creighton requires only reasonable foresight of bodily harm Est.’s marked departure test (objective std) for criminal negligence (see Creighton under crim neg.) -2 assailants, drowned in own  Cribben 31 blood: If reasonable pers would have foreseen risk of bodily harm that’s neither trivial nor transitory, & unlawful act is at least contributing cause of victim’s death outside de minimus range  guilty of manslaughter NOTES

46 SUBJECT PAGE -legal cause of d. in thin skull  G.W. quote 31 -meets req. for obj. forseeabil  Jobidon of bh -fault req. for aggravated  Godin 33 assault requires objective forseeability of bodily harm, not of conseq.

 Criminal Negligence  S. 219 -lack of capacity should be test  Hart – Subj/Obj 34 for negl. -cultural contingency of truth  Pickard & Goldman- and knowledge Dimensions of Cr.lw -visions: Marked and signif  Tutton & Tutton departure test for crim negl (split bench) 35 -no special std for cops  Gosset - Marked departure test for  Creighton (crim neg) the interp. of all objective crimes is unanimous; No personal factors short of incapacity. to be taken into acct.  Other offences w/ an 36 objective std Sexual Assault  History and Background  Rape laws in context - =’y issue  Young – Titans -use of records  Bala, False Memory -false memory  McKinnon -rape = violence; rape = paradigmatic  Riophe 37 -non-utopian sex  rape  Old rape law  S. 278.1 &.2 -patient priv’g  The M/R for Sexual Assault  Four major issues  Morgan -cpt instigates gang-rape of wife : mistaken belief  nec.  Pappajohn reasonable (UK) -Mistake of fact need not be reasonable (Ca)  Pickard & Stuart 38 -can recklessness incl. controversy unreasonable mistake of fact? -confirms unreasonable  Sansregret mistake of fact dc  Manson annot’n - w/b or r can’t co-exist w/ honest but mistaken belief

47 SUBJECT PAGE NOTES

 Chase 39 -what constitutes sexual assault  The New Legislation  The Presence or absence of consent  S. 273.1, 273.2  S. 265(3) 40  Ewanchuk -No means No: + duty on dt to obtain consent once partner has expressed a ‘no’ -no mistake of fact dc if a ‘no’, unless accused had reason to believe he’d received a + affirm’n of consent  Hogg -Drug dealer: power & auth can vitiate consent (not here)  R. v. O. -no or condom: A/R est’d based on victim’s state of mind; reasonable mistake of fact  Darrach 41 - reasonable steps  unreasonable mistake of fact  acquittal  Plummer -eg of unreasonable mistake of fact that would not satisfy reas. Steps req of 273.2  Malcolm 42 -New Yrs pty: applic’n of 273.2

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