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Contents
Impact of the Charter on Criminal Law..............................................................................1
Essential Elements of the Offence......................................................................................3
Onus and Burden of Proof..................................................................................................4
Actus Reus.......................................................................................................................... 6
Subjective Mens Rea..........................................................................................................8
Modes of Participation.....................................................................................................10
Areas of Offences.............................................................................................................12
Non-Subjective Fault Requirements.................................................................................13
Wrongful Convictions.......................................................................................................17

Impact of the Charter on Criminal Law

S. (1): Rights and freedoms in the Charter are guaranteed “subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society”
 Limitations by the state on Charter rights and freedoms only if limitations satisfy
the standard articulated in s. (1)
 Oakes test in justifying breaches of Charter rights/freedoms:
o 1) Must be a pressing and substantial objective for the law or gov’t
action
o 2) Proportionality analysis:
 1) Objective must be rationally connected to the limit on the
Charter right/freedom
 2) Limit must minimally impair the Charter right/freedom
 3) Must be overall balance between benefits of the limit and its
deleterious effects
Malmo-Levine; Caine
 Harm to others is not a requirement for a valid criminal law; only reasonable
apprehension of harm is required
 “The absence of proven harm [does not] create the unqualified barrier to
legislative action”
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Sharpe
 Accused claims that charge of possession of child pornography under s. 163.1(4)
violates freedom of expression under s. 2(b) of the Charter
 Mere possession captures possession of two categories of material that would
not normally be considered child pornography and pose little to no risk of harm
to children:
o 1) written or visual materials created and held by the accused alone and
exclusively for personal use
o 2) visual recordings created by or depicting the accused that do not
depict unlawful sexual activity and held exclusively by the accused for
private use
 Failed on the third stage of Oakes test for overall imbalance of the good and bad
effects of the law
S. (7): right to life, liberty and security…right not to be deprived thereof except in
accordance with principles of fundamental justice
Bedford
 Challenged constitutionality of three CC offences under s. 7 (violates right to
security of the person in a manner not in accordance with PFJs):
o Compliance with the laws infringes the applicants’ security of the person
 Principles of fundamental justice: sets out minimum requirements that a law that
negatively impacts a person’s life, liberty, and security must meet
o 1) Arbitrariness: when there is no connection between the effect and the
objective of the law
o 2) Overbreadth: where the law goes too far and interferes with some
conduct that bears no connection to its objective
o 3) Gross disproportionality: where gravity of law’s impact on the
interests protected by s. 7 is out of sync with the objective of the
measure
PFJs in action - Bedford
 S. 213 (1)(c): communication in public for prostitution
o Purpose of the offence is to take prostitution off the streets to prevent
public nuisances
o Offence’s negative impact of the safety and lives of prostitutes grossly
disproportionate to possibility of nuisance caused by street prostitution
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 S. 210: keeping or being in a bawdy house

o Negative impact of prohibition on bawdy houses grossly disproportionate
to its objectives of preventing public nuisance
 S. 212(l)(j): living on avails of prostitution
o Purpose of offence is to target exploitative conduct of pimps
o Law is overbroad in punishing everyone who lives on avails of prostitution
without distinguishing those who exploit and those who could increase
safety and security
 Applying Oakes test, cannot be saved by s. 1 of Charter
o Law is not minimally impairing
o Limit on s. 7 security of the person outweighs law’s positive effect of
protecting prostitutes from exploitative conduct

Essential Elements of the Offence

Crown must prove (4) elements of the offence BARD: 1) identity of the person who
committed the crime was in fact the accused, 2) specific provision from the CC (aspect
of the provision and particularities of the charging sheet), 3) actus reus and 4) mens rea
BARD: Lifchus – does not involve proof to an absolute certainty, it is not proof beyond
any doubt nor is it an imaginary or frivolous doubt
Starr – lies much closer to absolute certainty than to a balance of probabilities
Identity (Sheppard)
 Sheppard charged with assault under s. 266, argued that victim mistakenly
identified Sheppard as assailant
 Evidence raised a reasonable doubt that Sheppard assaulted Thorne -> acquitted
Particulars of offence (Saunders)
 Accused charged with conspiracy to import heroin, but Crown only had evidence
of importation of cocaine
 Judge wrongly instructed jury to convict on heroin charge if satisfied BARD that
accused had conspired to import any narcotic
 SCC held that offence as particularized in the charge must be proven
o To allow Crown to prosecute under another offence undermines ability of
accused to make a full defence
o Refused to retroactively amend charge -> unfair “to permit an amendment
fundamentally and retroactively changing the nature of what the Crown
must prove”
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Interpreting the Criminal Code (Bell ExpressVu)

Rule for interpreting statutes: Act to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the act, object of the
act, and intention of Parliament
 Contextual and purposive approach but ordinary meaning also a component
 Bilingualism: where one version is broader than the other, common meaning
favors more restricted or limited meaning
 Strict construction: interpretation that is most favorable to the accused only if
there is ambiguity after the law has been interpreted according to contextual and
purposive approach
o What counts as ambiguity? Words must be reasonably capable of more
than one meaning; must consider entire context of provision
o Clark: accused convicted for wilfully conducting an indecent act in a public
place under s. 173(1)(a) (masturbating near uncovered window of his
illuminated living room)
 SCC held that act was not committed in a public place as defined in
s. 150 as “any place to which the public have access as of right or by
invitation, express or implied” -> interpreted “public place” as
contemplating physical access rather than visual access (both
English and French versions)
o Pare: accused convicted of first degree murder s. 214(5) “when the death
is caused by that person while committing an offence under s. 156
(indecent assault on male)”
 “while committing the indecent assault” interpreted as murder and
the underlying offence do not require both to take place
simultaneously
 Continuing illegal domination of the victim (indecent assault) gives
continuity to the sequence of the events leading to the murder and
makes it a single transaction
o ADH: accused charged with child abandonment under s. 218 (Walmart
baby case)
 Issue whether fault element established by subjective fault
(accused’s knowledge) or objective fault (accused’s conduct is
marked departure from that expected of a reasonable person)
 s. 218 contains no language that would suggest objective fault
(“abandon” and “expose” suggest subjective fault) -> presumption
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that Parliament intends for offences to have subjective fault

element unless stated otherwise

Onus and Burden of Proof

-Section 11(d) of Charter: any person charged with an offence has the right to (d) to be
presumed innocent until proven guilty
-Presumption of innocence entails two essential elements:
1) accused must be proven guilty BARD and 2) Crown bears the burden of establishing
guilt
Prosecution bears the evidentiary and persuasive burden:
 Evidentiary burden: to present sufficient evidence that the accused committed
the act with the necessary intent (judge decides whether the evidence presented
upon which a properly instructed jury could reasonably decide the issue -> matter
of fact)
 Persuasive burden: must prove the act and intent BARD (how the issue should be
decided if left to the trier of fact -> question of fact)
Reverse onus provisions
-a statutory provision that imposes on accused the burden to disprove on a balance of
probabilities any factor affecting verdict violates s. 11(d) -> limits s. 11(d) because
accused can fail to discharge her burden and be convicted despite existence of
reasonable doubt as to guilt
Oakes: accused charged with possession of a narcotic for the purpose of trafficking
under s. 4(2) of the Narcotic Control Act -> convicted only of unlawful possession
 Challenged s. 8 of the act that if court finds accused in possession of a narcotic,
accused presumed to be in possession for the purpose of trafficking and that
absent accused establishing the contrary, must be convicted of trafficking -
>violated presumption of innocence under s.11(d)
 Objective of law to reduce drug trafficking for society’s safety = substantial and
pressing
 Failed on rational connection step -> no connection between mere possession
and presumed fact of possession for the purpose of trafficking
Laba: overturned Oakes on rational connection step -> no req. of internal rationality
between proven and presumed facts
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 Real rational connection is between objective of law and limit on s. 11(d)

Keegstra: accused charged under s. 319(2) for wilfully promoting hatred against an
identifiable group by communicating anti-Semitic statements
 Accused argued that s. 319(3)(a) person will not be convicted “if he establishes
that the statements communicated were true” violates s. 11(d)
 SCC found violation of s. 11(d) as accused required to prove some fact on a
balance of probabilities to avoid conviction BUT upheld constitutionality because:
o Parliament objective in reverse onus is pressing and substantial
o Law is rationally connected to purpose of preventing harm caused by hate
propaganda
o Reverse onus is minimal impairment on the presumption of innocence
o Saved by s 1 of Charter: limits on s. 11(d) does NOT outweigh importance
of preventing harm caused by hate propaganda outweighs
 Reverse onus found in truth defence is the only way in which the
defence can be offered while enabling Parliament to criminalize
hate propaganda effectively
 For state to prove BARD the falsity statement would excuse much
of the harmful expression caught by s. 319(2)
Kyllo - evidence from unsavory witness
 “Vetrovec” warning: warns trier of fact of relying on unsupported evidence by
unsavory witness
 Confirmation of independent evidence not legal requirement, jurors can still
convict based on acceptance of unsavory witness evidence
JHS – credibility of witnesses
 Where credibility is central issue, judge must explain link between assessment of
credibility and Crown’s burden to prove guilt BARD - > jury should not simply
choose between two versions of competing events
W(D) test re: credibility of witnesses:
 If you believe evidence of accused, must acquit
 If you do not believe evidence of accused, but left in reasonable doubt, must
acquit
 If you doubt evidence of accused, look at evidence you accept to determine if
accused is guilty BARD
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Directed verdicts test: defence motion made at closing of Crown’s case requesting
dismissal of case based on lack of essential elements of the offence
 Whether or not there is any evidence, direct or indirect, upon which a jury
properly charged could reasonably convict
Direct vs indirect (circumstantial) evidence
 Direct evidence only requires credibility assessment, whereas indirect evidence
requires fact finder to draw inferences from accepted facts -> if indirect evidence
is believed, what can be inferred from the evidence?
Charemski – directed verdicts
 Directed verdict motion granted because Crown failed to adduce evidence on
essential element of causation for murder
 SCC overturned motion on basis that there was circumstantial evidence related
to causation
Tsang – directed verdicts
 No evidence to support the accused was the one who published photo of
complainant w/o consent

Actus Reus
 All offences prohibit certain voluntary conduct by acts or omissions -> “external
elements of the offence”
o Physically voluntary act or omission
o Sometimes in certain prescribed circumstances and
o Sometimes causing certain results or consequences
 Acts: most offences require proof of some positive act (stealing, driving,
trespassing)
 Omissions: reluctant to punish omissions, failure to do something
o Being a spectator to a crime is not an offence -> no duty to intervene,
prevent or offer help unless legislature specifically says so
o Criminal liability if person failed to undertake legal duty to act (failure to
assist officer, failure to stop vehicle)
 General omission offences: 1) common nuisance offences 2) criminal negligence
 Circumstances: legislature will include specific circumstances among essential
elements of offence that Crown must prove
o Impaired operation of motor vehicle -> must prove accused was impaired
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Actus reus – causation: many offences require proof of a specific outcome or

consequence (criminal negligence causing bodily harm, dangerous driving causing
death)
Factual causation – is there a logical link between accused’s conduct and prohibited
consequence?
 Winning: accused’s conviction for obtaining credit under false pretenses
overturned for lack of factual causation
o Accused applied for credit and made two false statements, but bank did
not rely on info on application except for name and address, which were
true
Legal causation – whether causal connection is sufficiently strong to support criminal
liability
 Smithers: accused convicted of manslaughter for kicking victim on abdomen, who
then died shortly after
 Test: kick was a contributing cause of death, outside the de minimis (non-trivial)
range (remains the test since 1978) -> all that Crown had to prove
o EXCEPTION: Harbottle “irrespective of whether murder is planned and
deliberate…murder is first degree murder…when the death is caused by
that person while committing or attempting to commit an offence under
one of the ff sections…” - > accused may be convicted if Crown proves that
accused committed an act or series of acts regarded as substantial and
integral cause of death
o Nette: SCC refused to extend Harbottle to second degree murder
Intervening causes – reasonable foreseeability approach: accused who undertakes a
dangerous act which contributes to death should bear the risk that other foreseeable
acts may intervene and contribute to that death
 Must be that acts and harm transpired flowed reasonably from conduct of
accused
o Maybin: if intervening act is directly linked or direct response to accused’s
actions, then accused is not morally innocent
 Court concludes that general nature of intervening act and the
accompanying risk of harm were reasonably foreseeable
Concurrence – actus reus and mens rea must coincide and must be temporal overlap,
not necessary for them to be completely concurrent
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 Cooper: Convicted of murder by strangulation: accused intended to cause bodily

harm likely causing death -> actus reus and mens rea overlapped when he
grabbed her neck

Subjective Mens Rea

 another essential element of an offence along with actus reus
 necessary to identify appropriate level of fault and identify relationship between
particular fault element to the actus reus
 presumption of subjective mens rea for CC offences only displaced by clear
statutory language
 Sault Ste. Marie: mere negligence excluded from concept of the mental element
required for conviction; Crown must establish that accused “did so intentionally
or recklessly, with knowledge of the facts or wilful blindness toward them”
 Parliament can create offences where mens rea is not essential element (such as
statutory offences for public welfare, health and safety)
 Even where subjective mens rea governs offence, objective considerations
remain relevant
o “what a reasonable person would have realized or known may be of value
in determination of what accused actually thought”
 Tennant and Naccarato: “what a reasonable man ought to have anticipated is
merely evidence from which a conclusion may be drawn that the accused
anticipated the same consequences…”
 Common sense inference: person can usually be taken to intend the natural and
probable consequences of his actions
Intention and knowledge seen as core forms of subjective mens rea
 Intent vs motive: intent is exercise of free will, motive precedes/induces free will
o Motive can be relevant evidence, but not essential element
 Hibbert: accused charged as party to murder for accompanying shooter to
victim’s apt
o Accused claims acts were committed under duress
o SCC held that party liability does not require proof of desire to bring
about unlawful outcomes to prove mens rea -> though defence of duress
available
 Buzzanga: accused charged with wilfully promoting hatred
o “wilfully” means intention of promoting hatred, does not include
recklessness
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o Focus must be on whether accused intended the consequences of unlawful

conduct
Knowledge – slightly lesser degree of subjective fault than intentional or wilful conduct
 Theroux: accused convicted of fraud -> actus reus is the (i) prohibited act and (ii)
deprivation caused by the act; mens rea is (i) subjective knowledge of
prohibited act and (ii) subjective knowledge that prohibited act could cause
deprivation of another
 Where conduct and knowledge are proven, accused is guilty whether he actually
intended the prohibited consequence or was reckless as to whether it would
occur
Wilful blindness – recognized by courts as equivalent to knowledge, can sub for
knowledge where knowledge is a component of the mens rea
 Briscoe: imputes knowledge to accused whose suspicion is aroused to the point
where he sees the need for further inquiries but deliberately does not make
those inquiries
Recklessness – one who is aware of the danger that conduct could bring about
prohibited result, nevertheless persists despite the risk -> one who sees the risk and
takes the chance
 Sansregret: Often forms the minimal subjective fault that can be read into
offences that contain no explicit fault requirement
 Examples: criminal harassment -> intention to engage in prohibited conduct with
knowledge or recklessness or wilful blindness that such conduct causes victim to
be harassed, aggravated assault -> intent to apply force
intentionally/recklessly/wilfully blind to the fact victim does not consent to
application of force + objective foresight of risk of bodily harm
General vs Specific Intent
 To obtain conviction for some offences, conduct must be accompanied by a
desire or purpose to accomplish a further goal (examples: B&E with intent to
commit indictable offence, possession for purpose of trafficking)
 General intent: basic intent that must be proved in relation to immediate
conduct
o Mental element simply relates to performance of illegal act -> no intent to
bring about certain consequences external to actus reus
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 No requirement of actual knowledge of certain circumstances or

knowledge formed from complex thought or reasoning processes
o Assault causing bodily harm: Crown need not prove that accused
intended to cause bodily harm
o Tatton: arson is general intent offence, overturned acquittal as defence of
intoxication failed
 Specific intent: further or ulterior intention that must be proved in relation to
reason for engaging in immediate conduct
o Accused intended to do act with ulterior purpose or knowledge of certain
circumstances/consequences in mind (eg., assault with intent to resist
arrest, possession of stolen goods—must know or be wilfully blind that
goods are stolen)
o Lamb: accused charged with making child pornography available under s.
163.1(3) -> allegedly made text and video files available for sharing with
LimeWire
o Mens rea required an actual intention to make child pornography available
-> found not guilty, not BARD that accused was operator of computer at
the time or accused had necessary intent
o Recklessness not sufficient to prove mens rea for specific intent offences
(Buzzanga -> must intend the consequences of promoting hatred)

Modes of Participation
Section 21(1) – designed to make difference between aiding/abetting/principal
offenders legally irrelevant
(a) Actually commits it
(b) Does or omits to do anything for purpose of aiding any person to commit it; or
(c) Abets any person in committing it
Section 22(1) person counselling offence is also a party
Being a party to an offence leads to the same conviction, but degree of participation will
vary sentencing
Accessory after the fact is a separate offence -> s. 23(1)
Thatcher: role in offence does not matter -> equally culpable
 Jury does not need to be unanimous on accused’s role to find conviction
 Charging document does not have to specify if accused was principal or not
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Pickton: Crown cannot raise alternate form of party liability when it focuses on one form
because it impairs right to full answer and defence
1) Principal/co-principal offenders - s. 21(a)
 No requirement for “common purpose,” “common participation” is sufficient
 Can convict all parties as co-principals if parties act in concert, even if unknown
who struck the fatal blow -> R v H (LI)
2) Aider
 Aiding generally refers to material assistance
 Abetting generally refers to encouragement (Briscoe)
o More than mere presence is required (Dunlop)
 Chambers: actus reus and mens rea for aiding/abetting distinct from principal
offender
o Actus reus: doing something or omits to do something that assists or
encourages principal to commit the offence
o Mens rea: intent and knowledge
 Accused must have intended to assist or encourage the perpetrator
to commit the crime
 Accused must have known which crime the principal intends to
commit; need not know precisely how it will be committed
 Recklessness will not suffice, but wilful blindness does
 Roach: appellant convicted of fraud and conspiracy to commit fraud; overturned
o Aider must intend to assist in commission of offence and know the offence
being committed
o Recklessness is insufficient, must have intention, knowledge or wilful
blindness
3) Abettor receives same interpretation as aiding even when lacking “for the
purposes of”
4) Common intention to commit an offence – s. 21(2)
 When one or more persons form a common intention to carry out an unlawful
purpose and to assist each other in carrying out that common purpose, commits
an offence that they knew 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 (bank robbery, one of the parties murders someone ->
both are liable for murder)
o Must prove that accused:
 1) agree with others to carry out and assist unlawful common
purpose
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 2) intended to form a common intention to carry out the unlawful

purpose (subjective) OR;
 3) knew or ought to have known that incidental offence was
objectively foreseeable (objective)
o 21(2) will operate differently for certain offences that have greater stigma
-> objective component does not apply and Crown need only prove
subjective foreseeability
 Common intention can form at the moment the offence is being committed
H(LI) – participation as co-principal/aider/abettor
 Accused was part of group that assaulted a man who died; acquitted but trial
judge erred for failing to instruct jury that accused could be found guilty as party
to offence
 Accused could have been charged as co-principal or aider if jury did not think he
was a principal
 As long as there is evidence which indicates accused actively participated in the
crime as principal/aider/abettor, can be convicted under any of these roles if jury
is satisfied that accused participated in some way
CP – aiding/abetting vs. mere presence
 No evidence to suggest that accused aided/abetted
 Mere presence/knowledge that crime is occurring/failing to stop crime not
evidence for party liability

Areas of Offences
CC classifies various crimes under certain heads
Offences against the person (Foti – accused of aggravated assault and discharging
firearm with intent to wound, maim, or disfigure)
 Three elements to prove aggravated assault (general intent offence) :
o 1) intentional application of force or intentional threat to apply force and
present ability to carry out threat
o 2) reasonable person in position of accused would have foreseen that
shooting or pointing a gun would subject others to risk of bodily harm
o 3) actual wound, maiming, or disfigurement resulted
 Two elements to prove discharging firearm with intent to wound, maim, or
disfigure (specific intent):
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o 1) actually intended to wound the complainant and not merely

scare/threaten
o 2) wound resulting to complainant
 Judge erred in failing to distinguish the mens rea requirements and lumping the
two charges together which suggested same elements to be proved for each
charge
Financial crimes – fraud, s. 380 (Theroux – does honest belief that project will be
completed negate the mens rea? NO)
 Fraud is made out here:
o Actus reus (act of deceit): accused’s deliberate falsehoods (depositors did
not get promised insurance protection)
o Mens rea (subjective knowledge that doing the act could lead to
deprivation or risk of deprivation): accused told depositors they have
insurance protection when he had knowledge that this was false
 Where actus reus and mens rea are proven, accused is guilty whether he actually
intended deprivation or was reckless as to whether it would occur
Offences against administration of justice – perjury, s. 131(1) (Buzeta – intent to
mislead, make false statement under oath)
 Three elements to prove:
o 1) false statement
o 2) knowledge that it is false
o 3) intent to mislead (not necessary that false statement actually mislead
the court -> sufficient that accused intended to mislead)
o Mere recklessness not enough to show intent
o Explanation or motive for false testimony is not a defence
Possession offences – Muthuthevar (charged with possession of cocaine for purposes of
trafficking)
 Three elements to prove:
o 1) accused was in possession (actus reus) -> knowledge of presence of
substance and control over substance
o 2) accused knew substance in possession was cocaine (mens rea)
o 3) accused had possession for purposes of trafficking
 Knowledge central in determining verdict -> whether accused knew about the
cocaine in the car (may be established by direct or indirect evidence)
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 Acquitted, direct evidence of girlfriend unreliable and no evidence to suggest

accused saw the cocaine in the car

Non-Subjective Fault Requirements

Regulatory offences – essential difference from true crimes is removal of mens rea
 Aka public welfare offences for prevention of harm related to public safety,
health, welfare, environment
 Governed by strict liability or absolute liability
Sault Ste. Marie – recognized strict liability as middle ground between full mens rea and
absolute liability (prior to this case, regulatory offences could only be prosecuted as
absolute)
 Crown need only prove actus reus, but open to defendant defence of due
diligence
 Defendant must prove on a balance of probabilities that all due care was taken
o Conviction means defendant has failed to meet prescribed standard of
care
 Three categories of offence:
o 1) offences in which mens rea (intent, knowledge or recklessness) must
be proved either as inference from actus reus or additional evidence
(true crimes)
o 2) offences in which mens rea need not be proved -> open to accused to
avoid liability by proving he took all reasonable care (most regulatory
offences)
o 3) offences of absolute liability where accused cannot show he was free
of fault (regulatory offences where legislative intent is clear)
 Levis: where legislature had made it clear that guilt would follow
proof of proscribed act
Absolute liability and the Charter
 Imprisonment cannot be combined with absolute liability offences
Objective mens rea
 Presumption of subjective mens rea displaced where wording of the offence
indicates Parliament’s intent for objective mens rea to apply (“careless”
“dangerous” “negligence” “reasonable”)
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 Also appears in “predicate” offences such as an unlawful act of manslaughter and

unlawfully causing bodily harm
o These offences require commission of an underlying unlawful act (eg.,
assault)
o Crown must prove the applicable mental element of the underlying act but
only objective foresight of the harm flowing from it (Creighton)
Modified objective test of mens rea: whether the accused’s conduct represents a
“marked departure from the standard of care that a reasonable person would observe
in the accused’s situation” (Hundal)
 Roy: “the marked departure from the standard expected of a reasonable person
in the same circumstances…is the minimum fault requirement”
o “Evidence of the accused’s personal attributes (such as age, experience
and education) is irrelevant unless it goes to the accused’s incapacity to
appreciate or to avoid the risk
Penal negligence vs civil negligence
 Difference between mere departure and marked departure from the standard of
care that a reasonable person would observe in the accused’s situation
 Penal negligence concerned with punishing blameworthy conduct, civil
negligence concerned with apportioning loss
Objective mens rea: trier of fact looks at all the evidence including evidence re:
accused’s state of mind
 Proof of subjective mens rea for an offence that only requires proof of objective
mens rea would support conviction but proof of that is not required
 For criminal negligence causing death or bodily harm, “marked departure” test is
elevated to a “marked and substantial departure” (JF)
Objective mens rea (Hundal)
 Accused ran a red light and killed driver of a car with green light; charged with
dangerous driving causing death
 Cory J. applied modified objective test, trial judge properly concluded that
accused’s manner of driving represented a gross departure from the standard of
a reasonably prudent driver in these circumstances (judge considered the busy
downtown traffic, weather conditions, mechanical conditions of accused’s
vehicle)
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Objective mens rea (Creighton)

 Degree to which personal circumstances should be reflected in the objective test
for fault is concerned with two fundamental concepts of criminal law:
o 1) Criminal law may properly hold people who engage in risky activities to
a minimum standard of care, judged by what a reasonable person in all the
circumstances would have done, regardless of background/education/etc.
o 2) The morally innocent should not be punished (hence the need for a
guilty mind/mens rea)
 McLachlin J: personal circumstances (short of incapacity) do not excuse the
person from meeting the standard of care imposed by penal negligence
Objective mens rea (Beatty)
 Accused charged with dangerous driving causing death -> accused’s truck
suddenly crossed the solid center line into the path of an oncoming vehicle,
killing all three occupants
 Mens rea requirement not met:
o Trial judge found accused’s few seconds of negligent driving could not
support a marked departure from the standard of care of a reasonably
prudent driver
o Dangerous driving due to momentary lapse of attention
o Witnesses behind accused saw accused driving properly before accident
Objective mens rea – dangerous driving
 Roy: even where driving is a marked departure from the norm, trier of fact must
still examine all of the circumstances to determine whether one can draw the
inference of fault from the manner of driving
 Dangerous driving objectively viewed will NOT on its own support the inference
that the accused departed markedly from the standard of care of a reasonable
person in the circumstances
Constitutional considerations
 Penal negligence the “marked departure” standard per s. 7 of Charter is the
lowest level of objective mens rea for a true crime
 Even where the criminal offence appears to contemplate civil negligence (eg.,
careless use of a firearm), penal negligence still applies
 Subjective mens area required for certain offences (murder, theft, attempted
murder) due to gravity and stigma
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 Regulatory offences: absolute liability and imprisonment is unconstitutional via s.

7
 Strict liability offences: regulatory offences that contemplate imprisonment must
allow for defence of due diligence
Non-subjective fault requirements - Manslaughter
 Criminal Code treats murder, manslaughter, and infanticide under the umbrella
of homicide
 Homicide is the causing of death of another person irrespective of whether there
was any intention to cause death or if it was by accident: s. 222(1)
 There is culpable homicide and non-culpable homicide: s. 222(2)
o Non-culpable homicide is not an offence: s. 222(3)
o Culpable homicide is murder or manslaughter or infanticide: s. 222(4)
 “manslaughter” is not explicitly defined anywhere -> s. 234 states that “culpable
homicide that is not murder or infanticide is manslaughter”
 Denny: “It is not always a crime to cause another person’s death; it is a crime,
however, to cause the death of another person by an unlawful and dangerous
act.”
Unlawful act manslaughter
 Actus reus of unlawful act manslaughter under s. 222(5)(a) requires the Crown to
prove that the accused committed an unlawful act and that the unlawful act
caused death: Creighton, DeSousa
 Underlying unlawful act is sometimes called the “predicate” offence: Creighton,
DeSousa
 Underlying unlawful act can be another crime (eg. Assault) or a strict liability
regulatory offence (not absolute liability, as there is no mens rea requirement
plus prospect of imprisonment)
 Crown need not prove that the predicate offence was objectively dangerous
 Mens rea of unlawful act manslaughter -> objective foreseeability of the risk of
bodily harm that is neither trivial nor transitory, coupled with the fault element
of the predicate offence
 Key point: objective foreseeability of non-trivial/non-transitory bodily harm
suffices; need not be objective foreseeability of death: Creighton
 If the predicate offence is strict liability, fault element for that offence must be
read as a marked departure from the standard expected of a reasonable person
in the circumstances: Javanmardi
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 Most commonly prosecuted form of manslaughter, but manslaughter by criminal

negligence is another form
Javanmardi – unlawful act manslaughter with strict liability offence
 Victim died of intravenous injection of nutrients administered by accused, a
naturopath
 Accused charged with criminal negligence causing death and unlawful act
manslaughter
o Acquitted the accused of both charges; CA set aside both acquittals,
subbed a conviction on the charge of unlawful act manslaughter and
ordered a new trial on the criminal negligence charge
 Underlying unlawful act: administering intravenous injection without a medical
license (s. 31 of QC’s Medical Act), a strict liability (regulatory) offence
 SCC: Used the modified objective standard -> trial judge considered the accused’s
prior training, experience and qualifications as a naturopath
o Factual findings support the conclusion that injection properly performed
by naturopath qualified to administer such injections, did not pose an
objectively foreseeable risk of bodily harm in the circumstances
 Acquittal on unlawful act manslaughter restored
Mills, Hylton, Dennis
 Home invasion by the three defendants and Larry Dennis (principal), Triston’s
brother
 Crown prosecuting Triston Dennis under s. 21(2) “where two or more persons
form an intention in common to carry out on unlawful purpose…each of them
knew 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” -> Dennis’ counsel argues that minimum subjective mens rea required
for conviction as a party under s. 21(2)
 Question of whether a party to an offence had the requisite mens rea to found a
conviction to s. 21(2) must be answered in two steps:
o 1) Is there a minimum degree of mens rea which is required as a PFJ
before one can be convicted as a principal for this particular offence?
o 2) If the PFJs do require a certain minimum degree of mens rea in order to
convict for this offence, then that minimum degree of mens rea is
constitutionally required to convict a party to that offence as well
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 If social stigma and other factors require the principal offender to possess a
constitutional minimum mind state in order to be convicted of an offence, then a
party under s. 21(2) must possess the same minimum mind state
 Court in Mills found that none of the offences in question (robbery, firearm
related offences, aggravated assault, unlawful confinement, and having a face
masked with intent to commit an indictable offence) require at a constitutional
minimum, subjective mens rea
 For that reason, objective component of s. 21(2) remained available to Crown
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Wrongful Convictions
Death penalty: US v Burns and Rafay
 WA state accused two Canadians of murdering Rafay’s family
 After returning to Canada, Burns and Rafay confessed to undercover RCMP ->
plans made to extradite Burns and Rafay
o Extradition through a US-Canada treaty under which the Minister of
Justice in Canada may seek assurances that the accused would not be
subject to death penalty
 Minister of justice did not seek assurances in the case
 Burns and Rafay launched Charter challenges to the Canadian government’s
decision -> s. 7 applies because the extradition order would, if implemented,
deprive the respondents of their rights to life, liberty, security of the person
 SCC held that while the Charter does not constitutionally prohibit in all cases
against extradition unless assurances are given that the death penalty will not be
imposed, such assurances are constitutionally required in all but exceptional
cases
 More often than not, it’s a deprivation of s. 7
 PFJ’s - > found in basic tenets of our legal system, inherent domain of the
judiciary as guardians of the justice system: BC Motor Vehicle Act
 Possible miscarriages of justice in murder convictions falls within the inherent
domain, engaging the special responsibility of the judiciary for the protection of
the innocent
o Avoidance of conviction and punishment of the innocent is basic tenets of
our legal system -> reflected in the presumption of innocence under s.
11(d)
 Extradition decision of a Canadian Minister could pave the way, however
unintentionally, to sending an innocent individual to his or her death in a foreign
jurisdiction
Wrongful convictions – Canada
 Donald Marshall Jr.: convicted of murder in 1971, served 11 years of his
sentence, acquitted then exonerated in 1989 -> Royal Commission found that
criminal justice system failed him at every turn and part of the reason was his
Indigeneity.
o Stinchcombe case -> establishes the constitutional principle/PFJ: duty of
disclosure by Crown to allow defence full answer and defence
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 David Milgaard: convicted of murder in 1970, served almost 23 years. Had two
separate trials in a span of 22 years, both cases found he had fair trials. Shows
that a fair trial does not always guarantee a safe verdict.
 Guy Paul Morin: DNA testing carried out more than 10 years after his initial arrest
exonerated him -> report concludes that his conviction resulted from systemic
problems and failings of individuals (same systemic problems are those identified
in wrongful convictions in other jurisdictions worldwide)
o DNA evidence integral to exonerating wrongful convictions, but does not
absolve
 Difference between Canada and the US: imposition of the death penalty
inevitably deprives the legal system of the possibility of redress to wrongfully
convicted individuals
o History of wrongful convictions weighs heavily in the balance against
extradition without assurances
Criminal cases review commission
 North Carolina focuses on “factual innocence” rather than the broader category
of “miscarriages of justice”
o Canadian courts held that are there only “guilty” and “not guilty” verdicts,
a criminal trial does not address “factual innocence”
o Ontario Court held that there are important policy reasons for not
recognizing a third verdict of “factually innocent” -> would create two
classes of acquittals
 New Zealand’s commission may be a model for Canada -> to make referrals to
appellate courts “if it considers it in the interests of justice to do so”
o Identifies a practice, policy, procedure or other matter of a general nature
that it considers may be related to cases involving a miscarriage of justice
or has the potential to give rise to such cases
Prejudice based on systemic discrimination
Parks: accused was a black drug dealer convicted of manslaughter in the death of a
white drug user -> trial judge refused to permit defence counsel to ask prospective
jurors in the course of challenging them for cause
 Appeal allowed -> accused’s right to challenge for cause based on partiality is
essential to both the constitutional right to a fair trial and the constitutional right
(in cases where accused liable to five years or more imprisonment) to a trial by
jury
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 Interracial nature of the violence, alleged crime occurred in black accused’s

involvement in criminal drug transaction, essential to the conduct of a fair trial
that counsel permitted to put the question -> trial judge erred
Williams: Indigenous accused convicted for robbery; issue was whether evidence of
widespread bias against Indigenous peoples in the community raise realistic potential of
partiality?
 Appeal allowed -> potential jurors are presumed impartial; this presumption
must be displaced
o Judge has discretion in challenge process and should permit challenges
where there is realistic possibility that the jury pool may contain people
whose racial prejudice might incline them to favor the Crown
 Motion to challenge for cause does not require concrete evidence
that any of the prospective jurors could not set aside their biases
(unduly restrictive)
 Evidence of widespread racial prejudice may lead to conclusion that there is a
realistic potential for partiality
 Rule for challenge for cause from Sherratt: 1) whether there is a realistic
potential for partiality (whether there is reason to suppose that the jury pool
may contain people who are prejudiced and whose prejudice might not be
capable of being set aside on directions from the judge) 2) whether the potential
juror will be able to act impartially
o This rule respects the rights of an accused to a fair trial by an impartial jury
and the privacy interests of prospective jurors while avoiding lengthening
or increasing cost of trials