Actus Reus: Elements of the Offense

Charge
Soliciting for
the purposes
of
prostitution
in a public
place

Code
195.1
Replaced
by
213(1)

Living on the
avails of
prostitution

212(1)(J)

Elements
Show1) that the person
was soliciting, 2) it was in
a public place, 3) that it
was for the purposes of
prostitution.
Question is whether the
accused and the prostitute
had entered into a normal
and legitimate living
arrangement, which
included sharing expenses
to their mutual benefit or
whether, instead, the
accused was living
parasitically on the
earnings of the prostitute
for his own advantage.

Case
Hutt v The
Queen
(SCR,
1978)
Conviction
quashed.
R v Grilo
(OR, 1991)

Convicted

175(1)(a)

1) Accused committed
enumerated acts (fighting,
screaming, shouting,
swearing, singing, or
insulting or obscene
language)
2) which causes
3) a disturbance
4) in or near a public place

Facts
D approaches
cop and gets in
his car. Offers
prostitution.
Cops job to
encourage her to.

Reason
1) Car is not a public place (not
key here)
2) She did not enter the car
uninvited. She wasnt pressing
or persistent.

Element of exploitation
(parasitism) required for
this offense.

Lived with
Prostitute
shared expenses.
Went with her
when she
solicited. She
brought back the
money to him.

Shaw test: monies from

prostitute for service: service
because shes a prostitute or
would the same service be
rendered to anyone else?

2Ds helped
operate escort
service. Argued it
was a joint
venture so they
werent involved
in a parasitic
relationship.
Fight with
neighbor
escalates to
obscenity and
threats from
veranda.

Bedford struck 212(1)(J) down

as unconstitutional.

Crowns
appeal of
acquittal
dismissed.

R v Friesen
(CR, 1995)

Causing a
disturbance
in or near a
public place

Rule
Solicitation must be
pressing or persistent.

One or more persons

who embark on joint
venture the goal of
which is to earn money
through the prostitution
of one of them are living
on the avails.

R v Lohnes
(SCR,
1992)

If the Crowns argument is

accepted, anyone receiving
monies from a prostitute would
be in violation. Not illegal to
marry or live with a prostitute.

Grilo: Not a great boundary line

between what constitutes a
legitimate living arrangement
and what does not

Enumerated act must

1) Difference between disturb
cause an overtly
and disturbance. Mere emotional
manifest disturbance
upset doesnt count. Its too
which constitutes an
uncertain. Narrower definition of
Acquitted
interference with the
disturbance preferable.
ordinary and customary
2) Swinimer: should be able to
use by the public of the
weigh intensity of the
place in question.
complained act against expected
Disturbance must also
degree and nature of peace in the
reasonably have been
place.
foreseen in the particular
circumstances of time
and place.
Extortion
305, now 1) Without reasonable
R v Davis
The meaning of
D threatened to
1) In context ordinary meaning
346(1)
justification or excuse and
(SCR,
anything in the
send revealing
is clear and supports broad
2) with intent to obtain
1999)
immediate context of to photographs to
interpretation. Not Pecuniary or
anything, by threats,
extort or to gain
victims parents if proprietary nature even though
accusations, menace, or
Appeal
anything and inducing
they didnt
thats the history. 2) Meant to
violence 3) induces or
denied
any person to do
preform sexual
criminalize intimidation and
attempts to induce any
anything or cause
favours.
interference with freedom of
person, whether or not he
anything to be done has
choice. Broad def. is best for
is the person threatened, to
a wide unrestricted
that. 3) Parliament could have
do anything or cause
application that
limited scope of anything if they
anything to be done.
includes sexual favours.
wanted. They didnt.
Actus Reus: Voluntariness: An act not done voluntarily is not that persons act and should not be attributed to him or her, as a matter of criminal
responsibility. It is my view that there can be no AR unless it is the result of a willing mind at liberty to make a definite choice or decision. (R v. King)
Case
Ratio
Facts
R v Lucki
A person who by involuntary act for which he is not to blame gets onto the wrong
Car slides to the other side of the road and caused
side of the road is not guilty.
collision.
R v Wolfe

When the action is due purely to reflexes, the criminal act is involuntary and the
defendant is therefore not liable.

R v Makin

When determining if a reflex action denies actus reus, an objective test is used to
see if there was a rational basis for the reflex. Need action caused as an
automatic response to nerve stimulation.
When you put yourself in a situation where an offense is a consequence probable
and foreseeable of a conscious apprehension of danger, the result is voluntary,
however immediate.

Ryan v
The
Queen

The complainant punched the appellant, who then turned

quickly and hit the complainant on the head with the
telephone receiver.
Walking when the accused randomly punched him.
Claims reflex b/c feeling of sheer terror.
The accused entered a service station with loaded a gun
for the purpose of robbing it. The gun discharges and the
cashier is killed.

Actus Reus: Omissions: Criminal law is primarily concerned with actions, not with failure to act. Generally only responsible for omissions where a
statutory provision imposes a duty to act or not to cause harm
Case
Ratio
Fagan v
Need both mens reus and actus reus together. But mens reus
Commissioner
doesnt need to be present at the inception of the actus reus, it
of Metropolitan can be superimposed on an existing act.
Police
Moore v The
Queen

R v Miller

Failure to respond to officers request for name can result in

offence of obstructing a police officer. Dickson, dissenting,
unless a statutory duty to act he cant be held guilty for doing
nothing.

Facts
Charged with assaulting police
constable in his duty. D drove
over officers foot, dont know if it
was deliberate. Refused to move
the car afterwards.

Reason
Mere omission to act cannot
amount to assault. But this was a
continuing act where D decided to
produce apprehension by refusing
to move the car (battery).

The defendant proceeded through

a red light on his bicycle (a traffic
infraction). Constable followed
him, but the defendant would not
stop or identify himself. Charged
with obstructing the police officer.

Officer has a duty to enforce the

law. If people refuse to identify
themselves to officers the duty of
the officers is frustrated. So there
must be a reciprocal duty on the
accused to identify themselves.

When the accused is (1) initially unaware that he has done an

Defendant lights cigarette and
Careful not to make this too broad.
act that (2) sets a train of events which, (3) by the time the
falls asleep, drunk. Wakes to find
Duties generally found only to
accused becomes aware of them, would make it obvious that
hes started a fire. Leaves to sleep
arise from statutes.
there would be property damage, (4) he has a duty to take
in other room. Does nothing to
reasonable measures to reduce or prevent the risk of damage,
stop fire.
if not, the omission becomes AR.
Or continuous act.
R v Thornton
At common law there is a duty to refrain from conduct that
HIV positive. Knows risks and
s. 180 common nuisance, 219
could injure another person. This qualifies as a legal duty
Red Cross policy. Donated blood
criminal negligence. Duty must be
under 180.
anyway.
imposed by law.
SCC said duty of care under 216 for 180 qualification.
Causation and Homicide: the crown must prove the accuseds act caused the prohibited harm (222: Homicide)
Charge
Code
Elements
Case
Rule
Facts
Reason
Unlawful Act 222(5)(a): A person
1) Actus Reus of
R v Smithers (SCR, I person can be
Fight at hockey
Thin skull rule: one
Manslaughter commits culpable
the Unlawful Act +
1978)
charged with
game, Smithers
who assaults
homicide when he causes
2) causes 3) Death
culpable homicide
kicked Cobby.
another must take
the death of a human
Appeal denied. MS
where their actions
Epiglottis failed.
his victim as he
being by means of an
conviction.
are a contributing
Cobby chokes on
finds him
unlawful act
cause of death,
vomit and dies.
outside the de
minimus range.
Unlawful Act 234: culpable homicide
R v Shanks (CR,
Said death
Cat fight inspires D
Solid chance the
Manslaughter that isnt murder or
1996)
continuum of
to throw V down,
HA would have
infanticide is
events from threats. although he was in
occurred w/o the
manslaughter
very poor health.
fight. Thin Skull
He died later that
rule.
night (Heart attack).
First Degree
231(5): first-degree
231(5): 1) AR
R v Harbottle (SCr,
Accused may only Harbottle and Ross
If D hadnt held her
Murder
murder is where death is
predicate offence
1993)
be convicted under
unlawfully confine
legs Brown may
caused by a person
(listed) 2) causes 3)
[231(5)] accused Brown. Ross rapes
have resisted
committing or attempting
death
Appeal dismissed.
has committed an
her. Together
attempts to kill her.
to commit an act under
M1 conviction.
act or series of acts
decided and plan to
one of the following
- Conviction requires
which are of such a
kill her. Ross
Section 21:
two steps: 1) Does the
sections: sexual assault,
nature that they
strangles her while
Everyone is party to
causation pass the
kidnapping and forcible
must be regarded as Harbottle holds her
an offense who a)
Smithers test? 2) Does
confinement, hostage
a substantial and
legs.
actually commits it
the causation pass the
taking, etc.
integral cause of
b) does or omits to
Harbottle test? 231(5)
231(2): planned and
death
do something to aid
is a sentencing
deliberate
-can be substantial
committer c) abets
provision only.
cause of death
committer (party
- Test on II50
without being
can be just as
physical cause.
blameworthy)
Second
231(7): murder that isnt
For homicide
R v Nette (SCR,
Smithers/Nette
Nette hog-tied
-Rewording is only
Degree
M1 is M2
causation apply
2001)
Test: Smithers is the elderly lady during
a semantic change
Murder
Smithers/Nette:
causation standard
commission of
and makes things
229: all. but (c) is best
Were the accuseds
for all homicides;
robbery and left her, clearer for juries.
here
acts a significant
but should be
she later died due to
contributing cause
reworded in the
asphyxiation
-Dissent: no its a
230: unconstitutional
of death? Its the
positive to
substantial change.
standard.
significant
contributing
cause

Intervening Cause
Case
R v Smith
(QB,
1959)

Rule
If at the time of death the original wound is still an operating cause and a substantial cause
then the death can properly be said to be the result of the wound.

Facts
D stabs soldier in fight. V dropped on route to
medic. Treatment negligent.

The standard for intervening cause is very high. You have to show the intervening cause is
so overwhelming as to make the original wound merely part of the history.
Rv
Maybin
(SCR,
2012)

Two different approaches to explain when an intervening act breaks chain of causation:
1) Was the intervening act objectively or reasonably foreseeable? (general nature and risk of
non-trivial harm) 2) Is the intervening act an independent factor that severs the impact of the
accuseds actions, making the intervening act, in law, the sole cause of the victims death? (Is

Ds in bar fight. Hit V in the face and head.

Bouncer comes and hits V hard in the head.
Medical examination cant determine which of the
blows killed the victim.

the third-party act responding to the Ds act? Or independent of it?)

These are Aids. Not always determinative. Help to see if Still a significant contributing
cause at death. But Smithers/Nette is still causation standard.

Causation and Joint Endeavour

R v JSR
(ONCA
, 2008)

Acts by a third party who is not acting independently but is acting in furtherance of a joint
activity undertaken by the accused and that third party will not sever the legal causal
connection.
There is one danger. Each driver bears equal responsibility for its continued life span subject
to withdrawal or [an] intervening event. (R v Menzes) Both held to cause injury or death as
part of joint endeavor.

Northbound shooter and southbound shooter

(JSR). Victim is between them. Northbound
shooter fires 3 shots. 1 kills victim, dont know
which. JSR is returning fire.
*This is a very specialized doctrine (need close
analogy for use)

Sexual Assault
Code
271: basic offense, assault + sexual
element
272: sexual assault + BH, threats,
weapon
273: aggravated sexual assault.
Sexual assault where V wounded,
maimed, disfigured, life endangered

Case
R v Chase (SCR,
1987)
R v V(KB)
(OR, 1992)

Rule
Test: Viewed in the light of all the circumstances, is the
sexual or canal context of the assault visible to a
reasonable observer. (objective)
See nature of conduct, body part, situation, context etc.
Sexual assaultdoes not require sexual gratification.
unacceptable intrusion upon, or violation of, the
victims sexual privacy or integrity. domination

Facts
D entered home of neighbor. Seized
15 year old complainant and touched
her breasts.
Dad grabbed sons genitals to show
him it hurt; does sexual assault
require sexual gratification?

Limits on consent
Charge
UAM (UA
= Assault)

Code
265(1)(a): without the consent of
another person, D applies force
intentionally to that other person,
directly or indirectly
265(3): consent vitiation (force,
threats, fraud, authority)

Sexual
Assault

271: non-consensual sexual contact

(sexual assault) (need subjective
consent)
273.1 (2): consent = voluntary
agreement to engage in the sexual
activity in question. (2) not obtained
where

Case
Rv
Jobidon
(SCR,
1991)
R v Paice
(SCR,
2005)
R v JA
(SCR,
2011)

Rule
Limitation vitiates consent between adults
intentionally to apply force causing serious hurt or nontrivial bodily harm to each other during the fight.
BH def.:any hurt or injurythat interferes with the
health or comfort of the complainantmore than
merely trifling or transitory in nature.
Jobidon rule is that consent is only vitiated when one
both intends and in fact causes serious bodily harm.

Facts
Consensual fight. V dies.
UAM charge.

Active consent must be present in every phase of the

sexual activity.
Any sexual activity with an individual who is
incapable of consciously evaluating whether she is
consenting is therefore not consensual within the
meaning of the criminal code.

Consenting couple choking

during sex; she woke up
after passing out with dildo
in anus.

-Can consent to sports w

significant social value
Consensual fight. V killed. D
tries to claim self-defense.

Fraud and Consent

Charge
Aggravated Assault

Aggravated Sexual Assault

Code
268: assault + aggravated
1) Accuseds acts endangered
the life of the complainant (or
disfigurement, wounds,
maims, etc.) 2) force implied
intentionally without consent
265(3)(c): fraud vitiates
consent
265(3)(c): fraud vitiates
consent

Case
R v Cuerrier
(SCR, 1998)

273 (1): sexual assault +

wounds, maims, disfigures,
endangers the life of C.
Above plus: 273.1(1): consent
to engage in the sexual activity

(HIV specific)

R v Mabior
(SCR 2012)

R v Hutchinson
(SCC, 2014)

Rule
(Corey) Fraud Vitiates Consent when:
A) Dishonesty: Objective Test:
Would reasonable person find it
dishonest.
B) Deprivation: Exposing person to
significant risk of serious bodily
harm.
Applies Cuerrier test.
Depravation requires a realistic
possibility of transmission of HIV.
Consent only when As viral load at
time of sexual relations is low AND
condom protection was used.
Sexual activity in question under
273.1(1) refers simply to the physical

Facts
D has HIV+ and has
unprotected sex w/o informing
women
Court splits 4:1:2 on this.
- wouldnt have given consent
without fraud
D has sex without disclosing
HIV+ status.

D pokes holes in condoms b/c

girlfriend wouldnt consent to

in question.

Assault

act itself. Conditions or qualities of

the act are not included (BC,
condoms, STDs). But does include
the sexual nature of the activity
and the identity of the partner.

s. 265: Assault when:

a) without consent applies force
intentionally
b) attempts or threatens if there
is present ability to effect
purpose
c)while openly wearing a
weapon he accosts, impedes, or
begs

s. 267 Weapon or BH
in committing assault:
A) Weapon involved, OR
B) Causes Bodily Harm
Up to 10 years

sex w/o them.

- Allow increased risk of
pregnancy to qualify as
significant risk of serious
bodily harm. (Odd).
- Abella and co.: this is an issue
of consent, not fraud.

s. 268 Aggravated ASSLT

A) Anyone who commits an

assault and wounds, maims,
disfigures or endangers life
Up to 14 years

Mens Reus: General Principles

Case
R v Sault
Ste.
Marie
(city)
(PreCharter
Decision)

Facts
City of Sault Ste. Marie
contracted a company to dispose
of waste. The company didnt do
an adequate job, and the waste
contaminated a body of water.
City didnt know. Is the city
criminally liable? Prior to this
case, public welfare offenses were
absolute liability.

Kilbride
v Lake
(New
Zealand)

While parked the current warrant

of fitness displayed on Ds car
was removed. D still charged
(absolute liability) and convicted
for operating the vehicle without
one.

Reference
re:
section
94(2) of
the Motor
Vehicle
Act
Rv
Pontes
(BC act,
SCC)

BC Government asks SCC: is the

Motor Vehicle Act (which has
absolute liability -- people caught
driving without a license are
automatically guilty, regardless of
mens rea) consistent with the
Charter?
Automatic 12 month driving
prohibition without notice for a
number of Criminal Code driving
offenses. Absolute liability?

Ratio
Dickson proposes three categories of offenses (established half-way house of strict liability):
1. Regular offenses (True Crimes): Crown needs to prove both actus reus and mens rea.
2. Strict liability: Crown doesnt need to prove mens rea as the doing of the prohibited act prima facie
imports the offense, but D is given chance to prove that they were acting in due diligence and had taken
all reasonable care.
- These cases are usually public welfare offenses, unless terms like willfully, with intent, Knowingly,
etc. are used in the legislation (then theyre category one).
- Reverse-onus: Crown doesnt have to prove mens rea. Onus is on D to prove they were diligent. The
standard for proving this due diligence is a balance of probabilities
3. Absolute Liability: Crown doesnt need to prove mens rea, just actus reus. The fact that the act was done
is reason enough to convict.
- These offenses are ones where the legislature makes it clear that proof of actus reus is enough.
a person cannot be made criminally responsible for an act or omission unless it was done or omitted
in circumstances where there was some other course open to him.
The Actus Reus cannot be attributed to the defendant because the resulting omission to carry the warrant was
not within his conduct, knowledge, or control: on these facts the causation was broken.
Minimum mens rea requirement: You need a mens rea for every actus reus. Fault Principle (mental
blameworthiness) is constitutionally required for any imprisonment a constitutional minimum for mens
rea. generally held revulsion against punishment of the morally innocent. Absolute liability
violates the fundamental principles of penal liability.
Symmetry: Fault Principle means you need minimum symmetry (each actus reus element has a mens rea).
Absolute liability + possible punishment of imprisonment violates S. 7 of the Charter (guarantee of life,
liberty and security of person).
Court found driving under the prohibition was an absolute liability offense, acceptable because there was no
associated imprisonment.
Criticism: raises possibility that accused could be convicted of true crime without mens rea so long as there
is no possibility of imprisonment (no constitutionally protected requirement of fault).

Degrees of Mens Rea: Subjective mens rea is the baseline in criminal law. There are three forms of subjective mens reus. 1) Intent
conscious purpose, 2) recklessness, and 3) willful blindness
Degree
Case
Charge Code
Ratio/Rule
Facts
Higher
degree of
Subjective
mens rea
(Intent, not
recklessnes
s)

Rv
Buzzanga
and
Durocher

R v Lewis

Willful
promotion
of hatred

319(2): Everyone
who, by
communicating
statements, other
than in private
conversation,
willfully promotes
hatred against any
identifiable
group

Explicit inclusion of willfully (unlike 319(1)) suggests that a high

degree of mens rea is required.
Intention: A person who foresees that a consequence is certain or
substantially certain (nearly 100% likely) to result from an act which
he does in order to achieve some other purpose, intends that
consequence.
Act was willful if: a) their conscious purposewas to promote
hatred against that group, or b) they foresaw (subjectively) that the
promotion of hatred against that group was certain or morally
certain to result from act, but carried out the act as a means of
achieving their own purpose.
Motive is not the same thing as intent; it is an "ulterior intention".
Motive does not need to be proven by the Crown in order to get a
conviction, but it is generally helpful (unless the offense requires it).

Ds made flyer to
try to rile people
up to get Frenchschool built.
Hate-Speech
was directed at
their own
community. It was
supposed to be a
satire.
D mailed bomb to
Tatlay's daughter.
She died. D claims
that he did not
know what was in
the package.
Crown says he

Higher
degree of
Subjective
mens rea
(Intent, not
recklessnes
s)

Rv
Docherty

Difference
between
recklessnes
s and
willful
blindness

R v Hinchey

Taking
Bribes

121(1)(c):
government
employee
accepting bribes
essentially

CN:
Objective
Recklessne
ss standard

R v Barron
(Ont HC)
and (Ont
CA)

Criminall
y
negligent
Manslaug
hter

219: Everyone 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
222(5)(b): A
person commits
culpable homicide
when he causes
the death of a
human being by
criminal
negligence
267(b): assault
causing BH
265: assault

Subjective/
objective
Mens rea

Breach of
parole

666(1): willfully
fails or refuses to
comply with
probation order
(Now 733.1(1):
no willfully).

Theres mens rea for the 236 offense BUT you cant use it as mens rea
from the 666 offense because the word willfully demands a higher
threshold of mens reus (intent to breach parole).
S. 666(1) is an exception to the rule expressed in S. 19 (ignorance of
the law is no excuse).
- When the execution of another offense is relied on as the actus reus
of S. 666(1), Xs knowledge that hes breaking the law IS a necessary
element of S.666(1)s mens rea.

R v Nurse

Assault
causing
BH

265(1)(b):
attempts or
threatens to apply
physical force
Subjective/
objective
mens rea

When you see WILLFULLY in a criminal code provision you need to

consider whether the use of that word requires a particular type of
mens rea (intent) that is harder for the crown to prove.
X cant be willfully breaching parole through a criminal act, unless he
KNOWS that the act that hes doing is, in fact, criminal.

R v Buttar

Arson

Old 389(1)
willfully set fire
to a house
Old 390(a)
willfully setting
fire to material
that was likely to
cause a house to
catch fire

Recklessness

X is aware that there is danger that his conduct could bring

about the result prohibited by the criminal law, [X]
nevertheless persists, despite the risk.

the conduct of one who sees the risk and who takes the
chance, knowledge of the likelihood of prohibited
consequences
Willful blindness

When X has his suspicion aroused but then deliberately

omits to make further enquiries, because he wishes to remain
in ignorance, he is deemed to have knowledge.

X has a suspicion which he deliberately omits to turn into

certain knowledge.
No assault (unlawful act) because there was implied consent. They
were in the habit of jostling one another as friends.
Criminal Negligence: A marked and substantial departure from the
standard of a reasonable person in the circumstances. Objective
standard.
Appellant to be judged by standard of a reasonable sane and sober 16
year-old (trial judge finds negligent on this point).
CA: In this case, it was just a little push (minimal force used) and an
act of momentary inadvertence (inattention); it wasnt a marked and
substantial departure in the circumstances.

made the bomb. D

convicted at trial;
appeal dismissed.
Accused breached
probation by
drinking in a car
when he must
keep the peace
and be of good
behaviour. He
didnt think the car
could start. Breach
of 236. Does the
236 offense make
him guilty of the
parole violation?
No.

Accused is a
provincial public
servant. Wife on
the payroll of
company doing
work for province.
Got paid
thousands and
UIC. Never did
any work.

16 year-old pushed
friend who fell
down the stairs
and died. The kid
acted strange
afterwards.
Manslaughter
conviction at trial.
Acquitted on
appeal.

Careful of using implied consent.

Remember must have objective foresight of BH for manslaughter
(Creighton).

Symmetry: for every actus reus you need a mens rea, including
Ds commit drive
consequences.
by shooting caused
In assault causing bodily harm (s. 267(b)), the bodily harm must be
BH. Only intended
objectively foreseeable. accused threatened to apply force with
to scare him.
the ability, real or reasonably apprehended, to effect that purpose
Downgraded to
in circumstances where the harm caused is objectively
assault from
foreseeable. (also for aggravated assault: obj. foreseeability of BH)
Assault causing
Assault causing bodily harm (s.BH.
267)
AR
MR
For 390(a) the essential elementAssault
of the guilty
mind is establishedIntent
by
D got drunk, set
(intentional
proof that the accused willfullyforce,
(recklessly)
set fire nonto the thingwhich clothes on fire near
assuming
was likely to cause the buildingconsent)
to set fire. Objective test over whether fireplace. Burned
the building
down his house.
Bodily harm
Objectively
Willfully setting fire to material that was likely toforeseeable
cause a house
catch fireof s.
was likely to
D istoacquitted
AR
MR 389, but convicted
catch fire.
Willfully setting fire to something
Recklessly (but usually,
of s. 390(a).
Will likely cause House to catch fire

willfully=intent)
Objectively foreseeable (is likely)

(Arson provisions
are now 433-436)

Uttering Threats
R v.
OBrien,
2013 SCC 2

s.
264.1
(1)(a)

Test (from Dissent): whether the reasonable person would consider

that the words were uttered as threats by regard[ing] them objectively,
and review[ing] them in light of the circumstances in which they were
uttered, the manner in which they were spoken, and the person to whom
they were addressed[]

R v Clemente (1994) test: Looked at objectively, in the

context of all the words written or spoken and having
regard to the person to whom they were directed, would
the questioned words convey a threat of serious bodily
harm to a reasonable person?

Parties to the Offense: 21.1 (b)(c): Every one is a party to an offense 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
R v.
Group lured in girl and took to golf course where she
AR is very fact specific (think what action or omission they did to assist)
Briscoe
was raped and beaten to death accused drove and
stood by, arguably picked location, handed weapons to
MR requires 1) intention to assist and 2) knowledge that perpetrator intends to
others.
commit crime (knowledge can be imputed on theory of willful blindness, subjective)

R v.
Rochon
Rv
Kirkness

[t]o aid means to assist or help the actor. . . . To

abet includes encouraging, instigating, promoting
or procuring the crime to be committed
Mother allows son to grow pot on her farm and is on
the property during it.

Note: Intent is only intent to assist no intent as to the commission of the crime.

Break into house. Snowbird sexually assaults and

strangles old woman. Kirkness didnt know hed kill
her.

More than mere acquiescence

For Murder, the person aiding or abetting the crime must intend that death ensue or
intend that he or the perpetrator cause bodily harm of a kind likely to result in death
and be reckless whether death ensues or not. Can drop to Man if they knew likely to
cause BH (obj).

Rule: Passive presence is not enough to establish party liability; Liability for an
omission requires a duty to act (whether principle or offender).

Constitutionalization of Mens Rea

Second
Degree
Murder

Rv
Vaillancourt
(SCC 1987)

213(d)/230(d)
with 21(2)

Murder

Rv
Martineau

230 is invalid

Unlawfully
causing BH

R v DeSousa

269

UA
Manslaughte
r

Rv
Creighton

s. 222(5)(a): A person
commits culpable
homicide when he
causes the death of a
human being by means
of an unlawful Act

Dangerous
Driving

R v Hundall

249

R v Beatty
R v Roy

The principles of fundamental justice require objective mens

rea, or objective foresight be proven beyond a reasonable
doubt before any criminal liability can be imposed. Not
necessary to go as far as subjective foresight since 230 didnt
even allow objective foresight (whether or not he knows is
likely to cause his death).
Policy: (1) special stigma attached to a conviction, and the (2)
harsh penalties, so PFJ require MR proportionate to moral
blameworthiness.
Subjective Foresight of death is the constitutional
minimum mens rea for all m1 and m2.
Punishment and stigma given must be proportionate to the
moral blameworthiness of the offender. For the punishment of
murder, must possess the culpable mental state. Those causing
harm intentionally must be punished more severely (symmetry).
P.O: AR: anything prohibited except absolute liability offences;
MR: Objectively Dangerous Act
B.H: AR: Bodily Harm results; MR: Objective Foresight of
Bodily Harm
PO: AR: Unlawful act MR: Objectively dangerous
Death: AR: death MR: Objective foresight of bodily harm
Ratio: McLachlin argues that perfect symmetry is not necessary
Manslaughter can have lower MR because of sentencing
discretion (no mandatory minimum), less stigma, there are other
exceptions like the Thin-skull rule too. Objective Test does not
consider any subjective or personal characteristics unless
they speak to capacity.
MR: Modified Objective Standard: marked departure
from the standard of care of a reasonable person in the
circumstances of the accused. Personal factors should not be
considered. But accused can bring defense that they were
behaving as a reasonable person. Can look at surrounding
circumstances and events.
Momentary act of negligence is not a marked departure.
AR: Driving in a manner dangerous to the public w/ regard to
all circumstances
MR: a marked departure from the standard of care that a
reasonable person would observe in the accuseds circumstances

Pool hall robbers had agreed

to use knives; other arrives
with gun, D asks him to
unload it but he ends up
shooting someone. Seconddegree murder (during
robbery). s. 7 violation to
convict him without mens
rea?
Robbing trailor. Ds fiend
kills owners (he didnt know
he would) because they saw
his face. Both had guns.
V attended a party where she
was struck by shattered glass
that came from a bottle
thrown by the accused.
Expert drug user injected
cocaine in his friend. He did
not seek to determine the
quality. She died.

Truck driver thought light

was yellow when red.
Collision caused death.

Truck crossed centerline.

Death. Prior to this B was
driving properly. Momentary
negligence.

Culpable Homicide
First Degree Murder

231(2): Murder is first degree

murder when it is planned and
deliberate

R v Droste

R v Aalders

Second Degree Murder

Also, 229(b): where a person
meaning to cause death to a
human being or meaning to
cause BH 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
BH to that human being

Infanticide

229(a) culpable homicide is

murder where the person who
causes death MEANS to cause
his death; or means to cause him
bodily harm that he knows is
likely to cause his death, and is
reckless whether death ensues
or not.

Rv
Simpson

229(c): where a person for an

unlawful object, does anything
that he knows is likely to cause
death, and thereby causes death
to a human being,
notwithstanding he desires to
effect his object without causing
death or bodily harm to any
human being (only use in
special circumstances)
233: a female person commits
infanticide when by a willful act
or omission she causes the death
of her newly born child, if at the
time of the act or omission she
is not fully recovered from the
effects of giving birth to the
child and by reason thereof or of
the effect of lactation
consequent on the birth of the
child her mind is then disturbed.

R v JSR

239:
attempted
murder
R v Cooper

Ratio: the fact that the intended victim was

not the one killed does not matter.
Transferred Intent: When section 229(b)
and 231(2) are combined, the identity and
character of any victim is entirely
irrelevant as the mens rea from the planned
and deliberated murder transfers to the
persons who were murdered.
Rule: Planning and deliberation separate
elements that must be proved BRD
Defn: Deliberate means considered and
not impulsive; planning =
calculated/designed in advance of crime.
MR and the requisite knowledge that the
intended injury is likely to cause death is
subjective for 229(a)(ii)
Subjective foresight of death required for
attempted murder too.
Rule: ii) MR requires SUBJECTIVE intent
to cause bodily harm & SUBJECTIVE
knowledge that bodily harm is likely to
result in death
Ratio: MR must be present at time of act,
but need not be present throughout entire
act.
In pursuit of an 1) unlawful object 2) does
anything 3) that the person knows is likely
to cause death that 4) causes death.

D planned to kill his wife by

putting gasoline on car seats
and crashing, ended up
killing his children.

Accused shot and killed

deceased he robbed his
house and waited with gun
he got from house. Claimed
killing was accident.
sharp pick in her throat
you will never talk again
after they had consensual
intercourse. Became
unconscious. Accused denies.
A became angry in car. He
grabbed her by the throat. He
said he could recall nothing
else until he woke and found
the body.
Joint Endeavour case Eaton
center shooting

R v Shand

Ratio: there is sufficient culpability based

on underlying act being morally
blameworthy combined with subjective
knowledge of likelihood of death.

Went to drug dealers to steal

pot; accused drew gun and
shot deceased, debate over
whether accidental

R v LB

Rule: Infanticide is both an indictable

defense and a mitigating defense to murder

Mother killed her two

newborn babies charged
with 1st degree murder

Elements: Must show objective

foreseeability of bodily harm (akin to
manslaughter)
It is the unique actus reus that distinguishes
infanticide from other homicides
1) Mother 2) suffering from effects of birth
or lactation 3) causes 4) death of child (less
that 1 year old).

Defenses
A.
Defens
e
Mistake
of Fact
*
Operat
es as a
negatio
n of MR
(not a
true
defense
)

B. CC/Principles

S. 8(3) Common
law defenses
continue
s. 273.2: belief in
Consent is not a
defense where a)
accuseds belief
arose from
accuseds i) selfinduced
intoxication ii)
recklessness or
willful blindness b)
accused did not
take reasonable
steps, in the
circumstances

C. Test/Rule

D. Case Law

AR

MR

Touching (obj)
Sexual Nature
(obj)
No Consent (sub)
a. Subjective
Belief of
complainant.

Objective
Objective
1) Intention to
Touch. 2)
Knowing of or
being reckless
or willfully
blind to a lack
of consent
from person
being touched

265(3) b: If out of
fear it is vitiated
[fear need not be
reasonable or
communicated,
Ewa]
Honest but Mistaken Belief:
- After Ewanchuk there must also
be evidence that complainant

Pappajohn v. The Queen

Facts: Some consensual sex Woman runs out in
bondage
Rule: Rape is a true crime and requires actual
subjective Mens Rea (intention or recklessness) **
Mistake need not be reasonable Honest but
Mistaken belief in consent (Subjective)
Sansregret v. The Queen
Facts: consensual relationship ended, man threatened
woman; she offered sex to calm him down. Happened
twice.
Rule: Accused cannot claim honest mistake where he
was willfully blind to the lack of consent he was
aware of need for inquiry based on circumstances
R v. Ewanchuk
Facts: Girl fondled in truck. She keeps saying No. He
starts again.
Rule: Implied consent will NOT support this defense
consent must be communicated by words or

known to the
accused at the
time, to ascertain
that complainant
was consenting.

communicated consent
- A subjective belief in
complainant s consent is not
enough

NCR

s. 16: No Criminal
responsibility for
an act committed
or 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 it was
wrong.

Automa
tism

Common law

Part I Mental Disorder:

a) The first step is to
establish a disease of the
mind on a BALANCE OF
PROBABILITIES
b) Legal term for judge to
decide
* then either II(a) or II(b) must be
est.
Part II(a):
Part II (b):
DOM renders
DOM renders
accused
accused
incapable of
incapable of
appreciating the
knowing that
nature and
the act was
quality of the act. leally wrong
OR of
This requires high knowing the
threshold
act was
debilitation [i.e.
wrong in the
you think youre
particular
squeezing an
circumstance
orange but youre s of the
strangling
mental
someone]
disorder
(Chaulk/Oo
men Test)
Presumption of Voluntariness
The accused must establish on
BOP that the act was not
voluntary. Look at Stone: severity
of triggering stimulus,
corroborating evidence of
bystanders, history of
dissociative/automatistic states,
evidence of motive, is trigger also
victim?
NMD Automatism: Acquittal
Presumption that it springs from
mental disease must be
disproved.
MD Automatism: s.16
Look at 3 factors:
1) Internal/external Cause
2) Ongoing Danger
[recurrence of condition
or trigger]
3) Policy Concerns

Involuntary act by
person suffering
from an existing or
temporary mental
state in which
there is no willing
mind.

Intoxica
tion

s. 33.1 (1-2): no
defense where in
state of self
induced
intoxication that
renders the person
unaware of or
incapable of

Contextual objective test (IC):

Very specific to automatism
normal person in same
circumstances (Stone)
Then use section 16 test if
required.
Daviault: For general intent
crimes the accused must prove on
a balance of probabilities that he
was in a state of extreme
intoxication akin to automatism
33.1 makes Deviault and Leary
inapplicable to crimes that include

actions.
R v. Tutton
Facts: Parents withheld insulin based on religious
beliefs
Rule: For criminal negligence offences the honest but
mistaken belief must be OBJECTIVELY REASONABLE (
w particulars). Use objective standard where MR for
offense is objective.
Cooper v. the Queen
Rule: Awareness includes cognition, and emotional &
intellectual awareness of the significance of the
conduct.
R v. Abbey
Facts: Bringing drugs into country; delusional belief that
he was protected from prosecution
Rule: No need to understand penal consequences just
that the act is an offense nature and quality
R v. Chaulk
Facts: Broke into home and killed occupants; claimed
they suffered from paranoid psychosis & believed they
were above law and had right to kill.
Rule: wrong includes not knowing it was against the
law OR that it was morally wrong [according to ordinary
moral standards of reasonable members of society].
R v. Oomen
Facts: Paranoid delusional psychosis believed
roommate was part of conspiracy to kill him so he shot
her to death
Rule: NCR when Accused either 1) incapable of
knowing the act was legally wrong or 2) of knowing the
act was wrong in the particular circumstances of the
mental disorder (second branch of test).

R v. Rabey
Facts: Inexplicable fit caused guy to attack girl.
Rule: Ordinary stresses of life cannot constitute an
external factor leading to automatism this was disease
of mind (internal)
R v. Parks
Facts: Sleepwalker kills his in-laws. NMD-A.
Continuing Danger: Should be treated as MD
Internal Cause: psychological problems treated as MD
R v. Stone
Facts: Wife verbally abuses husband in car he stabs
her to death
Rule: Sets up the test for Automatism
IC: Judge must apply a contextual objective test
evidence of an extremely shocking trigger required to
establish a normal person might have reacted the same
way in the circumstances.
R v. Luedeke
Facts: Guy woke up having sex with a girl remembered
nothing
Rule: Judge must consider risk of triggering factors
recurring not just risk of further danger to public.

R v. Leary
Rule: Intoxication is not defense to general intent
crimes
R v. Bernard
Facts: after a night of drinking accused raped
complainant
Rule: No clear majority but upholds Leary rule MR is
proved by reference to presumption that you intend the

SelfDefens
e
Justifica
tion

Necessi
ty
*If its
natural
emerge
ncy

Duress
* If its
a
human

Provoca
tion

consciously
an element of interference with
controlling their
bodily integrity of a person. BUT
behaviour
might not be constitutional (didnt
voluntarily or
use section 33 to override).
involuntarily
interferes or
Specific intent: actus reus with
threatens to
intent to go beyond
interfere with the
bodily integrity of
another person
(marked
departure)
s. 34(1): a person is not
Cinous Elements: 34(2)
guilty of an offense if
(repealed)
a) They believe on
reasonable grounds that
1. Existence of unlawful
force is being used against
assault
them or another person or
2. Reasonable
that a threat of force is being apprehension of death
made against them or
or grievous bodily harm
another person;
3. Reasonable belief
b) The act that constitutes
that it is not possible to
the offense is committed for
preserve oneself except
purpose of defending or
for killing.
protecting themselves or the
other person from that use of * There is a subjective and
objective component to
threat or force; and
each element.
3) The act committed is
reasonable in circumstances
(2): see list.
Common Law:
Perka-Latimer Test:
1) Urgent and Imminent
It is an EXCUSE;
Peril/Emergency
It is wrong but
Modified objective obj. w/
acceptable in
situation, characteristics of
circumstances
particular accused (personal
characteristics that legitimately
Note: Mod. Obj.
affect what may be expected of that
is more sub for
person)
defenses than
2) No reasonable legal
offences
alternative
Modified objective obj. w/
situation and characteristics of
particular accused
3) Proportionality btw harm
inflicted and harm avoided
Objective must accord w/
community standard
Parties: common law defense and statute
Ruzic - Ryan Test:
1) Explicit or implicit threat of present or future
death or BH. Directed at accused or 3rd party.
2) Accused must reasonably believe it will be
carried out (MO)
3) No Safe Avenue of escape (modified obj.)
4) Close temporal connection btw the threat and
the harm threatened
5) Proportionality betw the harm threatened and
harm inflicted by the accused. Did A exhibit
normal resistance (Modified Objective)

natural and probable consequences of your actions.

R v. Daviault
Facts: chronic alcoholic sexually assaults disabled old
woman
Holding: Leary rule is unconstitutional b/c it substitutes
MR for crime with intentional act of becoming
intoxicated against charter 7 and 11(d) absolute
liability.
Rule: Accused must establish on a BOP that he was in a
state of extreme intoxication akin to insanity or
automatism.
R v. Lavallee
Facts: appellant killed her boyfriend during a fight
there was significant amount of evidence to establish
battered woman syndrome. Shoots him in the BACK of
the head.
Rule: requires 1) a reasonable apprehension of
(imminent) death or grievous bodily harm and 2) a
lack of alternatives
Note: this case stands for proposition that expert
evidence of BWS is allowed modified objective
standard (reasonable in context of relationship.
R v. Cinous
Facts: murdered criminal accomplices from behind out
of fear they were planning to kill him.
Rule: there must be an air of reality to evidence to
put to jury (it is a question of law.
R v. Morgentaler
Rule: abortion case. Didnt even try to abide by law.
R v. Perka
Facts: Drug smugglers claim they were forced ashore
by storm
Rule: In addition to test: There is no burden on
accused; if you create the emergency it is not a real
emergency; if it was foreseeable it seems like less of an
emergency
R v. Latimer
Rule: Adds to Perka test with modified objective
standard
Holding: There was no air of reality to any of the 3
requirements

R v. Hibbert
Facts: forced at gunpoint to lure friend out who was
then shot several times
Rule: Proper standard for common law defense is the
same as necessity (modified objective test)
R v. Ruzic
Facts: Forced to import drugs; could not go to corrupt
police. Threats against mom.
Rule: presence and immediacy requirements are
unconstitutional under section 7 duress creates
situation of moral involuntariness that cannot be
punished under the charter
R v. Ryan
Facts: Wife attempts to have husband murdered
MO = reasonable person similarly situated with same
because he is abusive
personal characteristics.
Rule: Remains of s. 17:
1) Threat of death or bodily harm directed against
* Ruzic basically harmonizes the defenses: differences
the accused or a third party
remain in the excluded offences for 17 and the
2) Must believe the threat will be carried out
application to parties (common law) as opposed to
3) Not on list of excluded offences
principals (statute, 17).
s. 232:
Objective elements:
R v. Hill
(a) knocks murder down to 1) There must be a wrongful act
Facts: Killed guy for making homosexual
manslaughter if person in
or insult; and
advances

Partial
defense

the heat of passion

caused by sudden
provocation.
A wrongful act or insult
that is of such a nature as
to be sufficient to deprive
an ordinary person of the
power of self-control is
provocationif the
accused acted on it on the
sudden and before there
was time for his passion to
cool.

2) That wrongful act or insult

must be sufficient to deprive an
ordinary person of the power of
self-control (contextualized
objective standard (Tran)).
Subjective element:
3) Accused must have acted in
response to provocation and
4) On the sudden before there
was time for his passions to cool.

Air of Reality Test (applicable to all defenses)

Altered states are BOP. Everything else is RD. Outline the
elements and ask whether they can be established on the
facts. Is there an air or reality? Anomaly that specific
intent offenses still have intoxication on RD but general
intent only has it available on BOP (intoxication).
Principle
Harm

Case
R v MalmoLevine

R v Labaye
Presumptio
n of
Innocence

Woolmington v
DPP (AC,
1935)
R v Oakes
(SCR, 1986)

Reasonable
Doubt

Vagueness

R v Lifchus
(SCR, 1997)

Rule: Jury is entitled to use common sense to

apply ordinary person standard, but, no peculiar
characteristics
R v. Thibert
Facts: guy killed his wifes lover
Rule: Ordinary person is same age and sex can
account for things that would give act or insult
special significance
R v. Parent
Facts: Killed his estranged wife after she insulted
him
Rule: Anger is a consideration but is not enough
to support defense of provocation
R v. Tran
Facts: Brutal stabbing of wife and her lover
Rule: Objective standard is to be contextualized
not personalized i.e. racial slurs are probably
legit; adultery probably not.

Evidentiary Standard. The test is whether there is (1) evidence

(2) upon which a properly instructed jury acting reasonably
could acquit if it believed the evidence to be true (Cinous).
For defenses that rely on indirect evidence or defenses like
provocation that include an objective reasonableness component,
the trial judge must examine the field of factual inferences that
can reasonably be drawn from the evidence.

Ratio
Tangible harm to others
is not a necessary
precondition to the
creation of a criminal
law offense.

Facts
Charged with possession of
marihuana for purposes of
trafficking.

Reas
Additional Comments
Parliament is
Tries to say shouldnt be charges
entitled to act on
based on Mills Harm principle:
criminal law
Hes only harming himself.
power in the
protection of
legitimate state
issues other than
avoiding harm to
others.
No finding of indecency. Group sex club. All voluntary, non- 3 types of harm
210(1): Cant keep a bawdy-house.
paid.
for Indecency (P
197(1) def. of Bawdy H.
I-27). None.
"Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution
to prove the prisoner's guilt subject to... the defense of insanity and subject also to any statutory exception.
Charter violations:
determine if a violation
then apply Oakes test to
see if acceptable under
section (1):
demonstrably justified
in a free and democratic
society

Presumption of innocence guaranteed under section

11(d) of charter. This is a violation. Applies Oakes test
and finds lacks rationality no connection between
intent to traffic and any small amount of narcotic
(blanket cover).

Oakes Test: 1) is the objective

pressing and substantial in a free
and democratic society? 2)
probability test A) Is the
infringement rationally connected to
the objective? B) Does the means
impair the rights as little as
possible? C) Is there a balance
between the salutary and deleterious
effects of the infringement?
Reasonable doubt is not moral certainty or an everyday concept. It is doubt based on reason and common sense, which must
be logically based upon the evidence or lack of evidence.

R v Starr
(SCR 2000)

Threshold for reasonable doubt evidence falls much closer to absolute certainty than to balance of probability.

R v Nova
Scotia
Pharmaceutica
l Society (SCR,
1992)

A law will be found

constitutionally vague if
it so lacks in precision as
to not give sufficient
guidance for legal
debate.

Fair notice: public should be given predictable

understanding of what the law is.
Standard less sweeps: vague laws allow people who have
done nothing wrong to be arrested, cops have all the
discretion.
Courts usually fix legislation by defining and narrowing
rather than striking it down and rewriting.

There are problems of precision in

the criminal law. They can lead to
selective enforcement. We need to
be fair to those subject to the
criminal law. We dont want laws
being enforced arbitrarily or
unfairly.