Liability for criminal offences normally require proof of three elements: 1. Actus Reus 2. Mens Rea 3. Absence of any lawful defence

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1 Basic Framework Liability for criminal offences normally require proof of three elements: 1. Actus Reus 2. Mens Rea 3. Absence of any lawful defence In order to be criminally liable for the Crown must prove, beyond a reasonable doubt, that the accused did [the actus reus] and also had the requite [specific type of mens rea] Actus Reus The prohibited conduct 1. Interpret and Define: What does the act prohibit? 2. Voluntariness: The product of a conscious choice 3. Causation: Are there any causal issues? 4. Contemporaneity: There must be a temporal overlap between the mental fault and the prohibited conduct Mens Rea The mental fault intention to cause the effect 1. Define: Express of Implied [True Crime or Public Welfare Offence] 2. Interpret and Prove: Subjective or Objective? Minimal fault require some offences have more than one mental element. 3. Charter Consideration: Symmetry, Negligence Standards, Minimum Subjective Fault Defences 1. Air of reality Some type of significant evidence 2. Voluntariness/ Unconsciousness Intoxication, NCRMD 3. Mens Rea Negating Mistake of Fact Law (Officially induced error) 4. True Defences Self Defense, Provocation

2 Actus Reus The prohibited conduct 1) Interpret/ Define/ Apply the Actus Reus What is the actus reus in a concrete way? Act: Positive Acts Omission: Failing to Act o Legal Duties: Relationships of Dependency, Undertaking, and Reasonable care when doing something dangerous o S.127 Failing to obey a court order o S.217 (2) fails to discharge a legal duty o R v Browne: F Friend swallowed cocaine. R - Word indicating a willingness to do an act doesn t not trigger a legal duty. o R v Thornton: F HIV Blood, purposeful. R S. 180 Legal Duty can include a common law and statutory law definition. Does it occur in a prohibited circumstance? Must exist at the time of the act E.G. Possession of Stolen Property = circumstance, the property was stolen Is there a proscribed consequence? Prescribed harm caused Consequence flowing or resulting from the act Not required of every offence E.G. Assault = Unlawful use of Force; Manslaughter; Unlawful use of force causing death. Do the facts apply to this actus reus? 2. What the act voluntary? (Conscious control of action) Involuntariness is a: spasm, reflex, unexpected mechanical failure of a vehicle, epilepsy etc Basic conscious ability Kilbride v Lake: F - Accused left car with permit; the permit was stolen and he received a ticket. R Cannot be criminally responsible for an act that was not a conscious choice Could foreshadow possible defences in terms of: Intoxication, Mental disorder, Provocation etc 3. What was the level of causation? Crown must prove beyond a reasonable doubt that an accused causes the proscribed harm. If there is a consequence there may be a causation issue Is the act logically connected (factual causation)? Is that connection sufficient for criminal liability (legal causation)? A) Factual Causation: But for the action the harm would not have occurred.

3 Winning: R: At least factual causation is needed to prove that the harm was caused by the accused actions. F: Obtaining Eaton s credit cards Eaton did not rely on the false statements. JSR: F In a gunfight, adversary missed the accused and killed a bystander. R But for the decision to engage in a gunfight the victim would not have been killed B) Legal Causation: De minimis range Below 5 % o Is this too remote? o Smithers: F Post Hockey game kick in the stomach. R Crown must prove BARD that accused action were at least a contributing cause of harm beyond the de minimus range. o Cribbin: F: Beat someone (non- life threatening injuries), but victim drowned in blood. R Smithers satisfies S.7 because it is taken into consideration with the requisite MR. Significant Contributing Cause 25 30% or Higher o Nette: F Old lady left tied and gaged dies after robbery. R Smithers still applies for 2 nd degree murder, but Harbottle elements needs to be there for 1 st degree. Actions of the accused must have been a significant contributing cause. Substantial Cause 20 40% or Higher o Section 231 (5) of the CCC o Harbottle: F forcibly confined EB, sexually assaulted her and then murdered her. SR strangled her and H held her legs. R: Smithers test is too low of a threshold; accused must have committed acts that are regarded as a substantial and integral cause of death. Smithers stated that the actions of the accused must be a contributing cause of death, outside the de minimis range (neither trivial or insignificant). This was affirmed and altered in Nette, which stated that to establish criminal liability there must be a significant contributing cause. Special Causation Rules Thin Skull Rule: Must take your victim as you find them Smithers thin skull may include physical frailties (malfunctioning epiglottis) Intervening Causes: Does not negate legal causation but can change the outcome slightly Pagett: F - P used G as a shield while he was shooting at PO. POs shot back and killed G. R: An act performed as self- defence from an accused s action does not act as an intervening act. Maybin: F Maybin punched Brophy in the head he was unconscious and then the bouncer Gains punched him in the head. Died from bleeding in the brain. R: At some point an intervening act severs the chain of causality. There is a risk that a fight in a bar could involve a third party like a bouncer. Remoteness The prohibited act was too remote from the original act to be a legal case. Left open after Smithers. 4. Did the Actus Reus occur concurrently with the Mens Rea? CL assumes the need for a coincidence between the AR and the MR

4 MR doesn t need to be present at the inception of AR, but they need to coincide at some point during the transaction (Fagan Drove over PO s foot) An intentional omission to rectify an unintentional act can amount to MR for the initial act (Miller squatter smoking) AR and MR do not need to be completely concurrent, it is only necessary that they coincide at some point (Cooper blacked out while strangling his GF) 5. Are there any Charter considerations? A) Voluntariness (Daviault) B) Vagueness/ Overbreadth

5 Mens Rea Mental state associated with the prohibited act Indicated moral culpability May be expressly or impliedly related for an offence 1. What is the mens rea? Set out in the CCC or Statutory interpretation Have to see it in relation to the actus reus Prohibited act/ consequence = Intent or Reckless Prohibited circumstance = usually the accused has to know of it or be wilfully blind to it. Express Sometimes the word of the statute define it E.G. Criminal v Regulatory 279. (1) Every person commits an offence who kidnaps a person with intent (a) to cause the person to be confined or imprisoned against the person s will Implied True crime (In CCC)à presumption of full mens rea: Buzzanga Public Welfare offence à presumption of strict liability R. v. City of Sault Ste- Marie 2. What form of Mens Rea? Subjective Mens Rea Cases: Accused had the intention to do the prohibited act There is a presumption that an individual intends the consequences of their act Intent Highest standard for subjective mens rea Must foresee and intend the consequence Rather than being negligent or reckless to possible outcomes Cases: R v Buzzanga and Durocher: F Promoting hatred against Francophone (but to spur public debate) R - Wilfully = intentionally. Does NOT mean recklessly. Intention = foresee the consequence that is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. Lewis v The Queen: R Purpose = Achieving a specific consequence; Intent = To an act that you know will achieve a consequence; Motive = Revenge, Hate, Pleasure o Motive is relevant to a crime and can support circumstantial evidence to support intent R v Steane: F - British actor hosting German news WW2. R Motive and intent are different; intention is a necessary ingredient. He did not intend to assist the enemy. R v Paquette: F Accused drove robbers to a store at gunpoint. R A person whose actions are under threat of death cannot have genuine intent. R v Hibbert: F Force to lure friend to be shot. H relied on duress, but he couldn t if a safe escape existed. R A person who carries out AR in response to threats will NOT necessarily lack MR.

6 Recklessness A lower form of mens rea Subjectively aware of risk but proceeded anyway Does not require the accused be 100% aware of the risk Cases: R v Sansregret: F GF consented to sex out of fear of bodily harm he had been beaten when she tried to end the affair. R Culpability in recklessness is justified by the risk and wilful blindness is justified by failing to inquire when there is reason to. Wilful Blindness Lowest form of subjective mens rea Accused is in self- inflicted state of ignorance Deliberately failing to inquire Cases: R v Jorgensen: R Avoidance of knowledge, Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? R v Briscoe: F Charged with 1 st degree murder for driving the group to the crime scene, providing weapon, holding victim, he said he did not know the crimes would occur. R - Wilful Blindness as substitute for knowledge. R v Duong: F Friends asked for a place to hide, D thought he had something to do with a murder. R Liability via wilful blindness turns on decision NOT to inquire once real suspicions arise and NOT the hypothetical result of inquires, which were never made. Objective Mens Rea Cases: Criminal Negligence Substantial and marked departure Doing something with wanton or reckless disregard for the lives or safety of other persons Only S.219 otherwise it is Penal Negligence Cases: R v Tutton and Tutton: F convicted of manslaughter for failing to provide the necessities of life to their 5 year old. R The AR for CN remains a marked and substantial departure from the standard of care of reasonable person. (Court was divided if they should apply objective or subjective) R v Creighton: F Injects victim with cocaine, she ODs and dies while he refuses to call for help. R Mens rea for unlawful act manslaughter = objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act. Penal Negligence Words like careless, reasonable etc Marked departure from the standard of care Standard is still higher than civil negligence Cases:

7 R v Hundal: F Dangerous driving causing death. R marked departure from the standard of care of a reasonable person; personal factors do not need to be taken into consideration. R v Beatty: F accused fell asleep momentarily, crossed the meridian and killed 3 ppl. R Short in incapacity to appreciate risk or incapacity to avoid creating it personal attributes are NOT relevant. Reasonable person test applies within the events that occurred. R v ADH: F gave birth in Wal Mart. R: Start with presumption of subjective fault, nothing in the text that Parliament intended to depart from it. Absolute and Strict Liability Cases: May only be imposes in relation to regulatory/ public welfare offences Absolute Liability Not open to the accused to exculpate himself by showing that he was free of fault Cases: Beaver v The Queen: F accused convicted of trafficking heroin, but thought it was lactose. R Not a public welfare offence and mens rea is required. R v Pierce Fisheries: F accused of having undersized lobsters contrary to the Fisheries Act. R Not a true crime. Parliament did not intend to create a mens rea component. Strict liability The doing of the act imports the offence Accused can avoid liability by proving that he took reasonable care (Sault St. Marie) Cases: R v City of Sault St. Marie: F City charged with contaminating stream through a waste disposal site. Violated the Ontario Water Resource Act. R Strict liability standards violated fundamental principles of penal liability. Revulsion against punishment of the morally innocent R v Wholesale Travel Group: F - Charter challenge to provisions related to communicating false misleading advertising under Competition Act. R: Offences are criminal when they are abhorrent to the basic values of society. Regulatory offences involve conduct that is prohibited because the act would result in dangerous conditions being imposes on society. Predicate Offences Form with illegal conduct and aggravate the offence E.G. Simple Assault à Assault causing bodily harm, sexual assault, aggravated assault Often there is no additional mental component associated with aggravated forms

8 Subjective Forms of Mens Rea Objective Forms of Mens Rea No Mens Rea INTENT (also wilful or for the purpose of ) KNOWLEDGE Desired or sought the proscribed harm (direct intent) or desired or sought some other end, but it was certain or virtually certain that the proscribed harm would be the result (indirect intent) (Hibbert) Has subjective knowledge of some fact or state of affairs Involves knowledge of a danger and persistence in RECKLESSNESS a course of conduct which creates risk that the prohibited result will occur (Sansregret) Arises where a person who has become aware of WILFUL BLINDNESS the need for some inquiry declines to make that inquiry because he does not wish to know the truth (Sansregret) If the Statue is Silent, the mens rea for a true crime is satisfied by any of the above (Buzzanga and Desrocher) If the Crime is A Stigma Offence, the mens rea cannot be below this line (Vaillancourt; Martineau; Finta) OBJECTIVE FORESIGHT OR KNOWLEDGE CRIMINAL NEGLIGENCE PENAL NEGLIGENCE i.e. arises where it can be said that a person ought to have known that. (Creighton: MR for manslaughter is objective foresight of a risk of bodily harm beyond the trivial) A marked and substantial departure from the conduct of a reasonable person which shows wanton and reckless disregard for the lives and safety of other. (Tutton and Waite) - Applies only where charge pursuant to S. 219/20/21 A marked departure from the conduct of a reasonable person (Hundal) True Crimes Cannot have a mens rea below this line (Hundal) Once the Crown proves actus reus beyond a STRICT LIABILITY reasonable doubt, the accused can advance a due diligence defence Once the Crown proves actus reus beyond a ABSOLUTE LIABILITY reasonable doubt, liability attaches. No defence based on an absence of mens rea. 3) Charter Considerations Is there symmetry? CL assumes all elements of the actus reus have corresponding mental state but the Charter does not require this R v DeSousa: F Accused charge with unlawfully causing bodily harm (throwing a bottle at a bystander). R In absence of express legislative direction, MR attaches to underlying offence not to the aggravating circumstances. R v Creighton: R Proof of objective foresight of Bodily Harm (not risk of death) is all that is needed for manslaughter. Minimal mens rea manslaughter.

9 Negligence Standards: R v Hundal: R - Inappropriate to apply a subjective test for dangerous driving. Morally Innocent Absolute Liability: Imprisonment without fault violate S. 7 RE: BC Motor Vehicle Act Reference: F SCC asked to review provisions that combines absolute liability with mandatory imprisonment. R revulsion against punishment of the morally innocent. Morally innocent cannot be subject to criminal penalty. Proof of subjective fault for (Murder, Attempted Murder, War Crimes) R v Vaillancourt: F Charged with murder S. 213 (d) raises from manslaughter to murder w/ o subjective intent to kill bc death is likely to ensue if a weapon is used in the commission of a robbery. R: Minimal mental state is essential to certain offences like murder. R v Martineau: R Nothing less than subjective foresight of the risk of death is required for murder conviction. R v Finta: F - Hungary WW2 involved in camps, charged for crime against humanity. R there must be a element of subjective knowledge to make out a crime against humanity.

10 Defences 1. Air of reality Some type of significant evidence 2. Voluntariness/ Unconsciousness Intoxication, NCRMD (Air of Reality) 3. Mens Rea Negating Mistake of Fact Law (Officially induced error) 4. True Defences Self Defense, Provocation (Air of Reality) 1) Air of Reality All defences must pass the air of reality test set out in Cinous 1) Evidence 2) Upon which a properly instructed jury acting reasonably could acquit if it believe the evidence to be true Incomplete Defences That all the elements of the mens rea and the actus reus have not been proved BARD Mistake of fact fits into this category Due Diligence A defence to strict Liability 2) Voluntariness/ Unconsciousness Intoxication Successful this defence negates the mens rea o i.e. if your client is charged with murder it will be changed to manslaughter Must pass air of reality test à evidentiary burden less than on a balance of probabilities (Cinous) Specific or General as per Beard General: Immediate end Specific: Intention of furthering an illegal objective (George) Queen v George: F Intoxicated man robs an elderly man, robbery is a combo of assault and theft. R Drunkenness a defence to negate the theft but not the assault. Intoxication is only a defence for Specific (R v Leary) Beard Rules 1) If insanity is produced by excessive drinking, the proper defence to plead is insanity, not intoxication. 2) Drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime is a defence. 3) Drunkenness, short of proved incapacity to form the necessary specific intent, is no defence merely because it caused the accused to more readily give way to some passion or inclination, which he may not have given way to, except for the alcohol. o (Adopted by SCC in MacAskill v The King) R v King: F Drugged by dentist. Was driving and charged for intoxication. R If the intoxication is involuntary it is a defence.

11 How to Apply the defence? 1) Air of reality: Is there evidence, upon which a properly instructed jury acting reasonably could acquit if it believe the evidence to be true? 2) Specific or general intent? 3) Specific onus on Crown to prove (BARD) the specific intent, in spite of some evidence of some intoxication 4) General onus on Accuse (balance of probabilities) to prove extreme intoxication akin (Daviault) Extreme Intoxication Leary v the Queen: R If the accused was drunk at the time of the offence but it is proved that he did the act intentionally, it is irrelevant that but for the drinking he would not have done it. Intent constitutes the necessary mental element. R v Bernard: R there wasn t a sufficient level of intoxication where the accused could argue voluntariness R v Daviault: F sexual assault of an elderly disabled woman. But BAC was lethal. R As a defence to a general intent crime, the accused has the onus of establishing the defence of extreme intoxication on a balance of probabilities using expert evidence, there is a defence to general intent crimes in cases of extreme intoxication. Section 33.1 of the Code: Response to Daviault. Abolished the defence that have any element of assault because of voluntary self- induced intoxication. NCRMD Mental Disorder Is the condition severe enough to render the person incapable of appreciating the nature and quality of the act, or incapable of knowing that it was wrong (Simpson, Cooper) S. 16 of CCC 16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. The Test: The Defence requires, on a balance of probabilities:

12 Proof of a Disease of the mind ; and (Presumption of sanity that we need to rebut) Proof that the disease of the mind renders a person incapable of: o Appreciating the nature ad quality of his or her acts or omission; and/or o Knowing that his or her acts or omissions are wrong 1. Disease of the Mind Not a medical term à a legal term Situation where the law will recognize your disorder Courts make decision as to which kinds of mental defences it will accept i.e pedophilia is not accepted as a disease of the mind Both physical (epilepsy, low insulin) and mental (schizophrenia) R v Cooper: F Psychiatric outpatient charged with murder of a female friend. R: Disease of the mind is a legal term defined by the courts; expert medical evidence should not be treated as determinative of issue; any illness that impairs the human mind and its function (excluding self induced states) BRANCHES ARE ALTERNATIVES 2. Appreciating the Nature and Quality of the Act Does he understand what he is doing? Does he know the consequence of his act? R v Cooper The word appreciate imports and additional requirement to mere knowledge of the physical quality of the act. R v Abbey it does not require that the accused appreciate the penal consequences F Imported Cocaine, had a delusional belief he was protected from conviction. R: Delusion is not included within this branch of the insanity test. Was the accused: At the very time of the offence not before or after By Reason of disease of the mind Unable to appreciate not only o the nature of the act but o the natural consequence that would flow from it? 3. Knowing that the acts are wrong R v Chaulk and Morisette: F - Young men murdered an individual during a burglary. Both suffered from paranoid psychosis. R - The word wrong in S 16 (2) of the criminal code should be interpreted to mean morally wrong and not simply legally wrong. Morally wrong is not to be judged by personal standards of the offender but by his or her awareness that society regards the act as wrong R v Oommen: F - Accused killed friend will under a delusion that the victim was a part of a conspiracy against him. R Accused was unable to rationally decide whether the act was right or wrong in a way a normal person would (standard of the ordinary person). Understand why it s wrong à reason morally. Apply the social morality.

13 Procedural Aspects 1. Fitness to Stand Trial Section 2 of the CCC: unable on account of mental disorder to understand the nature of the proceedings understand the possible consequences of the proceeding Communicate with counsel R v Whittle: (Admissibility of statements from someone with schizophrenia) 1) Requires limited cognitive capacity to understand the proceedings and communicate with counsel 2) It is not necessary that the accused be capable of making rational decisions beneficial to the accused 3) It is not necessary that the accused be capable of exercising analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves their interests. 2. Who can raise the defence? R v Swain: F thought his family was being attacked by the devil. R Crown can only raise insanity in trial if the accused has somehow put his or her mental capacity for criminal intent in issue. The CL rule, which allowed defence or accused to raise it violated S 7. Only accused can initially raise the Mental Disorder defence However the crown can raise it if the TJ s opinion of the accused has someone put their mental capacity at issue 3. Who bears the burden of proof? S.16 (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. (3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. R v Chaulk: F- Does S.16 (2) violate S.11 (d) à presumption of innocence. R Yes, but justified under S. 1. Sanity is essential for guilt. 4. Charter Considerations: Post Sawin NCRMD does not violate s.7 and 15 Winko v BC: I Does the statutory detention scheme violate S. 7 and S. 15 of the Charter? R New regime does not result in automatic, indefinite detention, new regime balances the need for fair treatment to NCRMD with need for public safety.

14 3) Mens Rea Negating (Officially induced error) Mistake of Fact Not talking about a legal state of affairs talking about an empirical state of the universe o The day of the week o The speed one is travelling o The nature or quality of something in one s possession Mistaken as to a circumstance that is essential to the actus reus In terms of the mens rea accused can argue that they were honestly mistaken (Beaver) o If there is subjective mens rea: whether the mistake is a subjectively hones one o If there is objective mens rea: the mistake must be both honest and reasonable Cases: Queen v Reese: R - Whether the belief entertained by the accused is an honest one and that the existence or non- existence of reasonable grounds for such belief Is merely relevant to the evidence. Beaver v R: F Heroin/ Lactose. R True Crimes should have a subjective mens rea and therefore mistake of fact is a defence. Mistake of Law CL ignorantia juris non excusat S.19 of CCC, Ignorance of the law is not an excuse for committing an offence It would create evidentiary problem Encourage ignorance R v Jorgensen: Ignorance of the law is itself blameworthy Onat Film review board approved it R v Dalley: Traded without being a broker. Relied on advice from lawyer. R v Brinkly: Relied on advice from lawyer that first marriage was dissolved and then remarried. Was convicted of bigamy. R v Mollis: Trafficking ecstasy, when he started to manufacture it, it was not a restricted substance R v Jones: Bingo on Indian reserve. Thought they had the power to regulate it. Difference: Mistaken Fisherman Thinks the law is 3 kg for a fish, when it s actually 4 kg. (Mistake of Law) The other knows the law is 4 kg but his scale is broken so I measure 3 kg (Mistake of Facts) Exceptions Unpublished Laws A person should not be convicted if that law is not published Principles Vagueness; Overbreadth Colour of Right And honest but mistaken belief that you have a right in law to the property taken

15 R v Howson: F Employee of towing service charge with theft of vehicle. R: Fairly inferred the accused acted under genuine misconception of fact or law. R v Docherty: F Sitting in vehicle with DAB over.08. R Cannot be a wilful breach if he did not know it constituted a crime Elements of Officially induced error R v Lévis: F Operating without insurance. Insurance agent told them renewal information would be mailed before expiry. Six elements adopted in Lévis as requirements: o Error of law or of mixed law and fact was made o The person who committed the act considered the legal consequence of his action (due diligence) o Advice was obtained from an appropriate official o Advice was reasonable o Advice was erroneous o Person relied on the advice in committing the act 4) True Defenses An excuse where the offender admits to the criminal act, but asserts liability should be excused fully or partially Issues around who has the Burden of Proof and for what o Provocation or Intoxication à if it comes up the Crown has to negate the assertion beyond a reasonable doubt o Officially induced error à shift the onus onto the accused, they did not understand the quality of their acts o Air of Reality to the defence, Crown is required to negate it (this is less onerous) Self Defence 1) What type of harm did the accused perceive when he/she responded in self- defence? Death or grievous bodily harm = different stream of self defence then some lesser form of harm What differentiates S 34 (1) and S 34 (2)is whether the accused reasonably apprehended that the attack of harm was likely to cause his or her own death or grievous bodily harm (Pawliuk thought someone was going to short him so he grabbed a gun and it shot off) Elements of s. 34 Summary 1. The accused must believe on reasonable grounds that force is being used against him/her or another person by the victim; 2. The accused s acts must be in response to the threat or application of force by the victim; (Causal requirement) 3. The accused s act must be proportionate having regard to the facts in s. 34(2); and 4. The defence in s. 34 does not apply if the force used or threatened is authorized by law unless the accused believes on reasonable grounds the person is acting unlawfully. 34. (1) A person is not guilty of an offence if

16 a. They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; Objective test they don t actually need to be forced but they need to believe that there is a threat and it could be for themselves or for another person b. The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and The self defense has to be in response to the perceived threat causal nexus c. The act committed is reasonable in the circumstances. Not just want the accused thinks is reasonable but what the reasonable person would think is reasonable Section 34(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) The nature of the force or threat; E.g. Knife or Gun (Proportionality Test) (b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; Would it justify immediate response, also can you flee, call for help (c) The person s role in the incident; Did they initiate the incident? (Provocation) Consensual (d) Whether any party to the incident used or threatened to use a weapon; (e) The size, age, gender and physical capabilities of the parties to the incident; (f) The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; E.G. History of sexual abuse (g) Any history of interaction or communication between the parties to the incident; (h) The nature and proportionality of the person s response to the use or threat of force; and (i) Whether the act committed was in response to a use or threat of force that the person knew was lawful. Cases: R v Cinous: F 3 criminals. C heard rumours the M and Y wanted to kills him. While stopped at a gas station C shot M. R For self defence to be made out there needs to be an: existence of an assault; reasonable apprehension of death or Grievous bodily harm; reasonable belief in the absence of alternative to killing. There was an air of reality to the first two elements, there was no evidence that the accused believed on reasonable ground that he could not otherwise preserve himself from death or grievous bodily harm. R v Lavallee: F Female shot her partner she had been subjected to repeated physical assaults by the deceased. R The issue is not what an outside would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience Legal effect of Amendments:

17 Objectives demonstrate that there has been a substantive change to the defence. Nature and proportionality of an accused s response is now considered in all cases No duty to retreat under the old rules (R v Evans) Did not have to consider the reasonableness of the act of self defence therefore there might not be a finding of SD where there used to be (R v Williams)

18 Forms of Mens Rea Subjective Forms of Mens Rea Objective Forms of Mens Rea No Mens Rea INTENT (also wilful or for the purpose of ) KNOWLEDGE RECKLESSNESS WILFUL BLINDNESS Desired or sought the proscribed harm (direct intent) or desired or sought some other end, but it was certain or virtually certain that the proscribed harm would be the result (indirect intent) (Hibbert) Has subjective knowledge of some fact or state of affairs Involves knowledge of a danger or risk and persistence in a course of conduct which creates risk that the prohibited result will occur (Sansregret) Arises where a person who has become aware of the need for some inquiry declines to make that inquiry because he does not wish to know the truth (Sansregret) If the Statue is Silent, the mens rea for a true crime is satisfied by any of the above (Buzzanga and Desrocher) If the Crime is A Stigma Offence, the mens rea cannot be below this line (Vaillancourt; Martineau; Finta) OBJECTIVE FORESIGHT OR KNOWLEDGE CRIMINAL NEGLIGENCE PENAL NEGLIGENCE i.e. arises where it can be said that a person ought to have known that. (Creighton: MR for manslaughter is objective foresight of a risk of bodily harm beyond the trivial) A marked and substantial departure from the conduct of a reasonable person which shows wanton and reckless disregard for the lives and safety of other. (Tutton and Waite) - Applies only where charge pursuant to S. 219/20/21 A marked departure from the conduct of a reasonable person (Hundal) True Crimes Cannot have a mens rea below this line (Hundal) Once the Crown proves actus reus beyond a STRICT LIABILITY reasonable doubt, the accused can advance a due diligence defence Once the Crown proves actus reus beyond a ABSOLUTE LIABILITY reasonable doubt, liability attaches. No defence based on an absence of mens rea.

19 Homicide 222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. 222 (2) Homicide is culpable or not culpable. 222 (5) A person commits culpable homicide when he causes the death of a human being, a) By means of an unlawful act; o Murder: 1 st Degree or 2 nd Degree o Manslaughter: All other culpable homicide fall into this category S. 234 b) By criminal negligence; Manslaughter Killing someone by means of an unlawful act or by criminal negligence R v Creighton Mens rea for underlying unlawful act (CANNOT be absolute liability offence) Objectively foresee that the unlawful act give rise to risk of bodily harm Murder Difference between Murder and Manslaughter is Mens Rea 229. 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; R v Simpson: Murder is never objective knew or ought to have known, rather always subjective which he knows is likely R v Cooper: Intent = 1) Subjective intent to cause bodily harm; 2) Subjective knowledge bodily harm is of such nature that likely to cause death. Accused must foresee likelihood of death from bodily harm. CONCURRENCY = some degree but No need to prove intent throughout entire act. First Degree Murder 231(2) Murder is first- degree murder when it is planned and deliberate. Other circumstances that might lead to liability for first- degree murder: Contract murder: s. 231(3) The murder of a peace officer: s. 231(4); R v Collins (has to know that it was a police officer and be acting in the course of their duties) The murder that occurs while committing or attempting to commit a hijacking, sexual assault, sexual assault with a weapon, aggravated sexual assault, kidnapping or hostage taking: s. 231(5) R v Pare: include conduct which is part of one continuous sequence of events forming a single transaction; R v Russell: Require the killing to be closely connected, temporally and causally with an enumerate offence. As long as that connection exists, it is immaterial that the victim of the killing and of the enumerate offence are not the same.

20 The murder that is associated with harassment; s. 231(6); The murder that is part of terrorist activity: s. 231(6.01); The murder that is for the benefit of a criminal organization: s. 231(6.1). Planning and Deliberate More v The Queen: F Accused depressed planned to kill wife and himself. Killed his wife, failed at suicide. R Planned = calculated scheme or design which can be carefully thought out and the nature of consequence of which have been considered and weighed. Can be planned even if it is immediately carried out. Deliberate = considered, not impulsive. Other Topics in Homicide Transferred Intent 229(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; R v Fontaine: F Accused wanted to commit suicide in high- speed chase, drove car into a semi. There were three people in the car and only one was killed. R - Where one act is legal and another illegal, transfer of intent from on to another should NOT follow. Unlawful Object Murder 229 (c) where a person, for an unlawful object, does anything that he knows or ought to know 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. R v J.S.R.: F Gang fight in the street. Bystander was shot. R Unlawful object murder requies (1) acts of offender that caused death must have been done for the purpose of unlawful object other than injury that causes death. Unlawful object must be object that if prosecuted fully would amount to serious crime that is indictable requiring mens rea (2) Offender knows that the acts or acts done for purposes of unlawful object are likely to cause death, notwithstanding the desire to fulfill the object without causing death to another

21 Participation in Crimes Party Liability 21. (1) Every one is a party to an offence who (a) actually commits it; This may be through physical participation or passive action Any form of participation (principle or party) should be treated as one mode of criminal liability R v Thatcher: F Arrested for the death of x- wife. R- No legal difference b/w murdering or hiring a murderer. Aiding and Abetting (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. R v Greyeyes: F Undercover PO got the accused to assist in buying cocaine. R Motive is relevant in order to distinguish between traffickers and purchasers. 3 rd parties assist in the purchase, rather than sale, therefore share culpability of the vendor. Dunlop and Sylvester v R: F Motorcycle gang rape. R Mere presence or passive acquiescence is not sufficient for liability w/o encouragement of principle offender of the act. R v Jackson: F Found at a marijuana farm. R Mere presence will not support a conviction. R v Palombi: F- Infant has marks of abuse, hard to distinguish which parent inflicted harm. R Irrelevant there is common intention. R v Helsdon: F Newspaper published a story with the name of complainant in a sexual assault case. R Necessary to have some knowledge of the circumstance or facts that constitute the principals unlawful act. Common Intention 1. The accused formed an intention with the principal to carry out a criminal act with the principal; 2. The accused and the principal took steps to carry out the common unlawful criminal act; 3. The accused knew (or ought to have known) that the offence committed by the principal would be a probably consequence of the unlawful purpose; and 4. The accused did not abandon the unlawful purpose. R v Kirkness: F - During break in, had not participated in suffocating victim. R Actus Reus of Common Intention, did he abandon the enterprise? R v Logan: F Accused charged with robbery of bank teller who was shot. R Using an objective test is allowed for party liability, however, with murder there is a requirement for subjective intent.

22 Counselling as a form of Participation 22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled. Counselling is a matter of facts R v O Brien: F counselling someone to steal from a convenience store. Person was in his apartment before the event. He told her not to worry about it. In addition he supplied her drugs. R Close to the line where it might not be considered a counsel, but the words and context were enough to make it out. Accessory After the fact 23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape. R v Duong: F Helps friend hide who is involved in a murder. R If crown fails to find knowledge of a specific offence accessory after the fact cannot be made out.

23 Inchoate Offences 24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. 1) Identify the predicate- what was the person trying to do? R v Sorrell and Bondett: F Show up to store to rob it. It is closed. Employees see them with balaclavas and a gun. R In absence of MR use a proximity theory, it legitimate to use the evidence to show that there was an attempt. 2) Did A have specific intent for the offence? R v Ancio: F Broke into K s home to speak to x- wife. Struggle and gun discharges missing K. Convicted of attempted murder and B&E. R The mens rea is that you intend to kill, or intent to cause bodily harm resulting in death 3) Did they go beyond mere preparation? R v Cline: F asked young boy to help him. Evidence came forward that he had boys perform indecent acts, but this didn t happen in this specific case. R The actus reus must be more than mere preparation. R v Deutsch: F D interview women and tells them they may be required to have sex with clients. R has to go beyond mere preparation. Key factor is relative proximity of the act to the completed offence: time, location can be considered. 4) If it was impossible to commit the offence, ask whether it might have been completed, had circumstances been otherwise. Actus Reus is the most difficult to make our o Obvious because the crime has not been committed o Prove whatever facts make it out

24 Conspiracy 465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: (c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and (d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction. Elements of Conspiracy 1. An agreement between two or more persons to pursue a common unlawful object (actus reus); 2. The parties must intend to agree (mens rea); and 3. The parties must intend to pursue a common design to achieve the unlawful object of the agreement (mens rea). Meeting of the minds USA v Dynar: F D attempting to launder money. Set out by FBI. The deal didn t exist and was technically impossible. R: Conspiracy only requires an intention to commit the offence. Therefore conspirators who intent to commit an offence intend to do everything necessary to satisfy the conditions of the offence. R v Dery: F ppl trying to steal liquor. They didn t do it or agree. R: Can t stack inchoate liability. R v Legare: F Luring a child. R Offence is preparatory to the actual offence.