People v. Davis Jasen, Judge. * * * At trial, the defendant offered evidence designed to show
the nature of narcotic addiction and that he was, in fact,
a narcotic addict. The defendant conceded his addiction to
heroin and this concession was amply supported by medical
testimony not disputed by the People. The Supreme Court reversed. Implicitly recognizing that
narcotic addiction is a disease, the court held that a
State law making the ‘status’ of narcotic addiction a
criminal offense inflicted cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments. By way
of rationale, the court emphasized the absence of an actus
reus, that under the statute the criminal sanction was
imposed even though a person has “never touched any
narcotic drug within the State or been guilty of any
irregular behavior there.” The court was careful to point
out, however, that the States retained broad power to
regulate narcotic drugs traffic within their borders. Such
regulation, it said, could take a variety of valid forms,
citing, by way of example, the power to impose criminal
sanctions against the unauthorized sale, manufacture,
purchase or possession of narcotics. In dissent, Justice White voted to affirm the conviction,
being of the view that the appellant was not being
punished on the basis of status, illness or condition, but
for the regular and habitual use of narcotics in violation
of California law. In dicta, particularly pertinent here,
he observed: “If it is ‘cruel and unusual punishment’ to
convict appellant for addiction, it is difficult to
understand why it would be any less offensive to the
Fourteenth Amendment to convict him for use on the same
evidence of use which proved he was an addict. It is
significant that in purporting to reaffirm the power of
the States to deal with the narcotics traffic, the Court
does not include among the obvious powers of the State the
power to punish for the use of narcotics. I cannot think
that the omission was inadvertent.” The Supreme Court affirmed. The plurality opinion per
Justice Marshall, rejecting the trial court’s findings of
fact, observed that one could not “conclude, on the state
of this record or on the current state of medical
knowledge, that chronic alcoholics in general, and Leroy
Powell in particular, suffer from such an irresistible
compulsion to drink and to get drunk in public that they
are utterly unable to control their performance of either
or both these acts and thus cannot be deterred at all from
public intoxication.” Robinson was distinguished on
the ground that Powell was not convicted for being a
chronic alcoholic, but for being in public while drunk.
Unlike Robinson, the sanctions of the Texas statute were
not directed at “mere status”, but at socially offensive
behavior: appearing in public drunk. In a dissent joined by three Justices, Justice Fortas
adopted the trial court’s findings and viewed the Texas
statute as imposing punishment for the “mere condition of
being intoxicated in public” and read Robinson as barring
the imposition of criminal sanctions “upon a person for
being in a condition he is powerless to change.” As a
corollary, Justice Fortas declared that “a person may not
(consistent with the Eighth Amendment) be punished if the
condition essential to constitute the defined crime is
part of the pattern of his disease and is occasioned by a
compulsion symptomatic of the disease.” Justice White . .
. observed: “If it cannot be a crime to have an irresistible
compulsion to use narcotics, Robinson v. California, 370
U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), I do not
see how it can constitutionally be a crime to yield to
such a compulsion. Punishing an addict for using drugs
convicts for addiction under a different name.
Distinguishing between the two crimes is like forbidding
criminal conviction for being sick with flu or epilepsy
but permitting punishment for running a fever or having
a convulsion. Unless Robinson is to be abandoned, the
use of narcotics by an addict must be beyond the reach
of the criminal law. Similarly, the chronic alcoholic
with an irresistible urge to consume alcohol should not
be punishable for drinking or for being drunk.” * * * The ramifications of recognizing the asserted cruel and
unusual punishment defense, and impliedly the defense of
drug dependence, are startling. The difficulty lies in
knowing where to stop. The obvious danger is that the
defense will be extended to other crimes—robberies,
burglaries and the like—which can be shown to arise from
the compulsive craving for drugs. And if “mere purchase or
possession” by the addict for his own use is protected,
what of the “mere sale” to the same addict by an obliging
trafficker in illicit drugs? Could not the sale to the
addict who is driven to acquire drugs by his compulsive
craving be defended as a humane act inflicting no harm on
other members of society? Moreover, any attempted limitation on the availability
of the drug dependence defense to those acts such as
purchase, possession or receipt of narcotics for the
addict’s personal use, finds little justification in the
cruel and unusual punishment clause with which it
intertwines. For example, assuming the drug dependence
defense be recognized, is it somehow less offensive to
contemporary concepts of human decency, as embodied in the
constitutional proscription of cruel and unusual
punishment (Trop v. Dulles, 356 U.S. 86, 101) to
punish an addict who, out of a compulsive craving for
drugs, steals to fund his habit than it is to punish an
addict who, out of the same craving, merely purchases or
possesses illicit drugs for his own use? If the compulsion
is the same, why is the one act blameworthy and not the
other? Such a distinction smacks of limitation by fiat and
invites accusations of arbitrariness. In sum, recognition of defendant’s constitutional claim
and implicitly, at least, the drug dependence defense,
does not follow inexorably from the Robinson and Powell
decisions and, indeed, strong reasons of public policy
militate against any such recognition by this court. * * * LRCC §§ 2(2)
to 2(3)(a) * * * MPC §§ 1.13(5), (9), 2.01 R. v. Larsonneur Appeal against conviction. HEWART L.C.J.: …The fact is, as the
evidence shows, that the appellant is an alien. She has a
French passport, which bears this statement under the date
March 14, 1933, “Leave to land granted at Folkestone this
day on condition that the holder does not enter any
employment, paid or unpaid, while in the United Kingdom,”
but on March 22 that condition was varied and one finds
these words:” The condition attached to the grant of leave
to land is hereby varied so as to require departure from
the United Kingdom not later than March 22, 1933.” Then
follows the signature of an Under-Secretary of State. In
fact, the appellant went to the Irish Free State and
afterwards, in circumstances which are perfectly
immaterial, so far as this appeal is concerned, came back
to Holyhead. She was at Holyhead on April 21, 1933, a date
after the day limited by the condition on her passport. In these circumstances, it seems to be quite clear that
Art. 1 (4) of the Aliens Order, 1920 (as amended by the
Orders of March 12, 1923, and August 11, 1931), applies.
The Article is in the following terms: “ An immigration
officer, in accordance with general or special directions
of the Secretary of State, may, by general order or notice
or otherwise, attach such conditions as he may think fit
to the grant of leave to land, and the Secretary of State
may at any time vary such conditions in such manner as he
thinks fit, and the alien shall comply with the conditions
so attached or varied. An alien who fails to comply with
any conditions so attached or varied, and an alien who is
found in the United Kingdom at any time after the
expiration of the period limited by any such condition,
shall for the purposes of this Order be deemed to be an
alien to whom leave to land has been refused.” The appellant was, therefore, on April 21, 1933, in the
position in which she would have been if she had been
prohibited from landing by the Secretary of State and,
that being so, there is no reason to interfere with the
finding of the jury. She was found here and was,
therefore, deemed to be in the class of persons whose
landing had been prohibited by the Secretary of State, by
reason of the fact that she had violated the condition on
her passport. The appeal, therefore, is dismissed and the
recommendation for deportation remains. Appeal dismissed. R. v. Shaw The judgment of the Court was delivered by The case, as presented by the Crown, showed that Shaw, a
butcher working at Anderson’s Meat Market in the City of
London, suffered from some physical disability, probably
epilepsy rather than fainting as described in the charge. Shaw took a party of five from London to Goderich on the
day in question, including his own mother, Mrs. Hamilton
and Miss Hamilton. When near Clinton, Shaw was attacked by
one of these spells. The result was that he slumped or
fell and caused the car to accelerate. It left the
highway, travelled a considerable distance, and collided
with a tree. Mrs. Hamilton and her daughter were both
killed, other passengers injured. Evidence was given to show that Shaw had suffered from
these attacks before, yet he did not refrain from driving
a motor car. A physician was called who stated that he had
attended Shaw and treated him for epilepsy, both the grand
mal type and the petit mal type, which seizure is
associated with a disturbance of consciousness associated
with convulsive elements. It does not appear whether Shaw
was advised of the nature of these attacks and warned of
the danger of operating a car, and he may have thought
that all he suffered from was an attack of fainting, but
it was quite evident that, while possibly not aware of the
exact nature of his malady, he must have been perfectly
aware of the danger this would occasion if, operating a
car at the time, he were attacked by his malady. At the end of the Crown’s case the learned Judge ruled
that there was no case calling upon the defendant for his
defence. In so doing, we think he was clearly wrong. At the time of Shaw’s application for a licence he was
asked the usual questions touching his physical fitness.
He stated that he used glasses but had no other physical
defect. Although he was for a number of years well aware
of his recurrent fits or spells, he, on each application
for a renewal of his licence, reiterated these former
answers, which may have been true at the time they were
originally made, but which were false on the subsequent
occasions. In the result we must direct a new trial upon the ground
that the Crown’s case was upon the evidence established
and the accused ought to have been called upon for his
defence. Appeal allowed and new trial ordered. Hill v. Baxter The defendant Baxter drove a motor-van across a road
junction at a fast speed, ignoring an illuminated “Halt”
sign, and collided with a motorcar. He was later charged
with dangerous driving contrary to section 11(1) of the
Road Traffic Act, 1930, and with failing to conform to a
traffic sign contrary to section 49(b) of that Act. A police constable arrived at the scene of the accident
and saw the defendant, who was in a dazed condition and
suffering from cuts to his head. The defendant was taken
to hospital where the police constable saw him about one
hour after the accident. The defendant then said: “I
remember being in Preston Circus going to Withdean. I
don’t remember anything else until I was searching for my
glasses. I don’t know what happened.” After caution, the
defendant said: “I cannot remember a thing.” It was contended by the defendant that he became
unconscious as a result of being overcome by a sudden
illness while driving at Preston Circus and that he was
not therefore liable at criminal law. It was further
contended that against the background of the medical
reports in evidence and in view of the unlikelihood of
retrograde amnesia having resulted from the accident when
the defendant was conscious immediately thereafter, the
loss of memory could only be attributed to the defendant
being overcome by illness without warning of its onset. The justices were of opinion that the defendant was not
conscious of what he was doing after leaving Preston
Circus, with the implication that he was not capable of
forming any intention as to his manner of driving. They
believed the defendant was speaking the truth when he said
that he could not remember what had happened after leaving
Preston Circus, and accepted the submission of his counsel
that the defendant was “unconscious” at the time of the
accident, and, accordingly, they dismissed the
informations. The prosecutor appealed. LORD GODDARD C.J.:—There was no evidence
for the defence other than that of the respondent himself,
but it seems that, as the prosecution did not object, the
justices allowed two letters from a doctor, who had
examined the respondent, to be put in. The justices have
referred to these letters in the case, so we have looked
at them. They are certainly in no way favourable to the
respondent; the consultant neurologist who examined the
respondent could find no trace of illness or abnormality.
He said in his first report that he had had an E.E.G.—that
is some form of encephalogram done and was going to
examine the respondent again when the report would be
through in a fortnight’s time. In his further report on
May 2 the doctor said that the report showed no
abnormality, and that from a medical point of view it was
impossible to say whether he had “a black out” or not. So
there is no medical or scientific evidence of any illness
at all. The first thing to be remembered is that the Road
Traffic Act, 1930, contains an absolute prohibition
against driving dangerously or ignoring “Halt” signs. No
question of mens rea enters into the offence; it
is no answer to a charge under those sections to say: “I
did not mean to drive dangerously” or “I did not notice
the ‘Halt’ sign.” The justices’ finding that the
respondent was not capable of forming any intention as to
the manner of driving is really immaterial. What they
evidently mean is that the respondent was in a state of
automation. But he was driving and, as the case finds,
exercising some skill, and undoubtedly the onus of proving
that he was in a state of automation must be on him. This
is not only akin to a defence of insanity, but it is a
rule of the law of evidence that the onus of proving a
fact which must be exclusively within the knowledge of a
party lies on him who asserts it. This, no doubt, is
subject to the qualification that where an onus is on the
defendant in a criminal case the burden is not as high as
it is on a prosecutor. The main contention before us on the part of the
appellant was that there was no evidence on which the
justices could find that the respondent was in a state of
automatism or whatever term may be applied to someone
performing acts in a state of unconsciousness. There was
in fact no evidence except that of the respondent, and
while the justices were entitled to believe him, his
evidence shows nothing except that after the accident he
cannot remember what took place after he left Preston
Circus. This is quite consistent with being overcome with
sleep or at least drowsiness. That drivers do fall asleep
is a not uncommon cause of serious road accidents, and it
would be impossible as well as disastrous to hold that
falling asleep at the wheel was any defence to a charge of
dangerous driving. If a driver finds that he is getting
sleepy he must stop. I agree that there may be cases where the circumstances
are such that the accused could not really be said to be
driving at all. Suppose he had a stroke or an epileptic
fit, both instances of what may properly be called acts of
God; he might well be in the driver’s seat even with his
hands on the wheel, but in such a state of unconsciousness
that he could not be said to be driving. A blow from a
stone or an attack by a swarm of bees I think introduces
some conception akin to novus actus interveniens. In this
case, however, I am content to say that the evidence falls
far short of what would justify a court holding that this
man was in some automatous state. There was no evidence
that he was suffering from anything to account for what is
so often called a “black out,” and which probably, if
genuine, is epileptic in origin. Nor was there any
evidence that he had ever had an attack of this
description before. As I have said above, his own
evidence, and that is all there was, is consistent with
having fallen asleep, or having his mind full of other
matters and not paying proper attention. DEVLIN J.:— I agree that if the onus
lies upon the defence to produce some evidence of
automatism, they have failed to do so, with the result
that the justices came to a wrong conclusion in law. * * * LRCC § 3(1) * * * MPC § 2.01 R. v. Instan The following case was stated by DAY J: At the time of the committal of the alleged offence, and
for some time previous thereto, she had been living with
and had been maintained by the deceased. Deceased was a
woman of some seventy-three years of age, and until a few
weeks before her death was healthy and able to take care
of herself. She was possessed of a small life income, and
had in the house in which she lived some little furniture,
and a few other articles of trifling value. The two women
lived together in a house taken by the deceased; no one
lived with them or in any way attended to them. The deceased shortly before her death suffered from
gangrene in the leg, which rendered her during the last
ten days of her life quite unable to attend to herself or
to move about or to do anything to procure assistance. No
one but the prisoner had previous to the death any
knowledge of the condition in which her aunt thus was. The
prisoner continued to live in the house at the cost of the
deceased, and took in the food supplied by the
tradespeople: but does not appear to have given any to the
deceased, and she certainly did not give or procure any
medical or nursing attendance to or for her, or give
notice to any neighbour of her condition or wants,
although she had abundant opportunity and occasion to do
so. The body of the deceased was on August 2, while the
prisoner was still living in the house, found much
decomposed, partially dressed in her day clothes, and
lying partly on the ground and partly prone upon the bed.
The death probably occurred from four to seven days before
August 3, the date of the post-mortem examination of the
body. The cause of death was exhaustion caused by the
gangrene, but substantially accelerated by neglect, want
of food, of nursing, and of medical attendance during
several days previous to the death. All these wants could
and would have been supplied if any notice of the
condition of the deceased had been given by the prisoner
to any of the neighbours, of whom there were several
living in adjoining houses, or to the relations of the
deceased, who lived within a few miles. It was proved that
the prisoner, while the deceased must have been just about
dying, had conversations with neighbours about the
deceased, but did not avail herself of the opportunities
thus afforded of disclosing the condition in which she
then was. At the close of the case it was objected on behalf of
the prisoner, that there was no evidence of any legal duty
such as would bind the prisoner to give or to procure any
food, or nursing, or attendance to or for the deceased, or
to give any notice to any one that such was required. I
thought it better not to stop the case, but to leave it to
the jury to say whether, having, regard to the
circumstances under which the prisoner lived with the
deceased, and continued to occupy the house, and to take
the food provided at the expense of the deceased, while
the deceased was, as she knew, unable to communicate with
any other person and thus to procure necessaries for
herself, the prisoner did or did not impliedly undertake
with the deceased either to wait upon and attend to her
herself, or to communicate to persons outside the house
the knowledge of her helpless condition; and I told them
that if they came to the conclusion that she did so
undertake, and that the death of the deceased was
substantially accelerated by her failure to carry out such
undertaking, they might find the prisoner guilty of
manslaughter, but that otherwise they should acquit her.
The jury found the prisoner guilty. If the facts above stated do not afford evidence of the
existence of any such undertaking or duty, then the
conviction is to be quashed; if otherwise, it is to stand. Vachell, for the prisoner. There was no legal
duty imposed upon the prisoner to provide food or
attendance for the deceased during the last ten days of
her life; there was certainly no such duty before that
time, for the deceased was the head of the household and
able to help herself. Such a duty as is here sought to be
enforced can only arise by virtue of a statute or a
contract, or at common law. It must be conceded that there
was no statutory duty, neither was there any duty at
common law; there is no authority for the existence of any
such common law duty in the case of a person of full age;
in such a case the duty can only arise in respect of an
undertaking, express or implied. In Fez v. Friend,
it was held to be an indictable offence to refuse or
neglect to provide sufficient food, bedding, &c., to
an infant of tender years, unable to provide for and take
care of itself, whom a man was obliged by duty or contract
to provide for; but the decision was in terms confined to
such cases, and the indictment was held to be defective in
not stating the child to be of tender years and unable to
provide for itself. In Reg. v. Shepherd (1), it
was held that there was no duty upon a woman to procure a
midwife for her daughter, a girl of eighteen, and that she
could not be convicted of manslaughter for omitting to do
so. In his judgment, Erle, C.J., says: “Here the girl was beyond the age of childhood, and was
entirely emancipated.” In the case of a person of full
age such a duty may indeed arise out of an express or
implied undertaking: Reg. v. Marriott, where a
man was convicted of the manslaughter of an elderly and
infirm woman, whom he had taken home to live in his
house, promising to make her happy and comfortable. In
summing up in that case, Patteson, J., said: “ The cases
which have happened of this description have been
generally cases of children and servants, where the duty
was apparent. This is not such a case; but it will be
for you to say whether, from the way in which the
prisoner treated her, he had not by way of contract, in
some way or other, taken upon him the performance of
that duty which she, from age and infirmity, was
incapable of doing.” In the present case there was no evidence of any contract
or undertaking by the prisoner to take care of her aunt,
though no doubt she was under a moral obligation to do so. [HAWKINS, J.: Why should not a contract
be implied from such circumstances as those in this case ?
Suppose two people agreed to live together for their
mutual benefit, would not the mere fact of their living
together be evidence from which an undertaking might be
implied ?] Not by way of contract so as to raise a legal duty; it
was nothing more than a duty of imperfect obligation. LORD COLERIDGE, C.J.: We are all
of opinion that this conviction must be affirmed. It would
not be correct to say that every moral obligation involves
a legal duty; but every legal duty is founded on a moral
obligation. A legal common law duty is nothing else than
the enforcing by law of that which is a moral obligation
without legal enforcement. There can be no question in
this case that it was the clear duty of the prisoner to
impart to the deceased so much as was necessary to sustain
life of the food which she from time to time took in, and
which was paid for by the deceased’s own money for the
purpose of the maintenance of herself and the prisoner; it
was only through the instrumentality of the prisoner that
the deceased could get the food. There was, therefore, a
common law duty imposed upon the prisoner which she did
not discharge. Nor can there be any question that the failure of the
prisoner to discharge her legal duty at least accelerated
the death of the deceased, if it did not actually cause
it. There is no case directly in point; but it would be a
slur upon and a discredit to the administration of justice
in this country if there were any doubt as to the legal
principle, or as to the present case being within it. The
prisoner was under a moral obligation to the deceased from
which arose a legal duty towards her; that legal duty the
prisoner has wilfully and deliberately left unperformed,
with the consequence that there has been an acceleration
of the death of the deceased owing to the non-performance
of that legal duty. It is unnecessary to say more than
that upon the evidence this conviction was most-properly
arrived at. Conviction affirmed. * * * People v. Robbins
Pamela Robbins, a young
woman of fragile health, had suffered from epilepsy and
diabetes for many years. She required
Phenobarbital and Dilantin to control her epilepsy and two
daily injections of insulin for her diabetes. She
had lapsed into diabetic coma on many occasions and her
husband, defendant Robert Robbins, had often summoned an
ambulance for her or taken her to an emergency room. Both
Pamela and Robert Robbins were deeply religious “born
again” Christians. They met defendant Jerry
Stephanski, a self-professed minister, at a revival
meeting. The Robbins joined a religious group
founded and led by Stephanski at which he preached that if
one had sufficient faith, God would cure all illnesses.
The Robbins shared this belief. During a
religious meeting Pamela apparently believed that she had
a revelation that she was healed of epilepsy and she
resolved to stop taking all medication. She discussed the
divine origin of her revelation with Stephanski and her
husband and they agreed that she should not continue with
her medication. As a result, she had several seizures,
became very weak and ill, and lapsed into diabetic coma
from which she died. Robert Robbins was indicted for
criminally negligent homicide (Penal Law, § 125.10) for
failure to summon medical aid for his wife . . . . The People contend that Robert Robbins owed his wife, by
virtue of their marital relationship, a legal duty of care
which he breached by his failure to summon medical aid or
administer insulin to his wife when she was incapacitated.
Unquestionably there is a common-law marital duty to
provide medical attention to one’s spouse but we must
examine when, and under what circumstances, the breach of
such duty will result in criminal culpability. * * * The common thread in [these] cases is that the courts
have not hesitated to impose criminal liability when a
decedent spouse was in a helpless condition obviating the
exercise of free will or the ability to make a rational
choice to refuse medical care. The People urge us to follow the Superior Court of
Pennsylvania in Commonwealth v. Konz (265 Pa
Super Ct 570) which reinstated the conviction of a wife
for involuntary manslaughter arising from the death of her
diabetic husband from insulin withdrawal where he had made
a conscious decision to cease taking insulin on religious
grounds. We believe, however, that the Konz
case is factually distinguishable from the case before us.
Reverend David Konz, like Pamela Robbins, decided to
withdraw from insulin and rely on his faith that God would
heal him. Unlike Pamela, however, Reverend Konz
assured others that he would resume taking insulin if he
thought his condition warranted it. When he
began exhibiting symptoms of insulin debt and went to the
refrigerator to get his insulin, he discovered that his
wife had hidden it. When he attempted to leave
the house, his departure was blocked by defendant Stephen
Erikson, a friend whose aid had been enlisted to help him
resist temptation. Erikson physically forced him
into his bedroom and held him captive while he and Mrs.
Konz talked to him. When Konz attempted to make
a telephone call, Erikson and the wife disconnected the
telephone. Thus there are two factors present in
Konz which do not appear in the facts before
us—overt acts by the defendants and evidence of duress.
It is thus clear that the convictions of Mrs. Konz
and Erikson are supported by evidence of overt acts rather
than mere omission. It would be an unwarranted extension of the spousal duty
of care to impose criminal liability for failure to summon
medical aid for a competent adult spouse who has made a
rational decision to eschew medical assistance. In New
York such a rationale would be in direct conflict with the
related rule that a competent adult has a right to
determine whether or not to undergo medical treatment (Matter
of Storar, 52 NY2d 363; Schloendorff v.
Society of N. Y. Hosp., 211 NY 125). There is no
basis under New York law for denying an adult the right to
refuse medical care where such refusal does not pose a
threat to the life or health of others. “In this
State, however, there is no statute which prohibits a
patient from declining necessary medical treatment or a
doctor from honoring the patient’s decision. To
the extent that existing statutory and decisional law
manifests the State’s interest on this subject, they
consistently support the right of the competent adult to
make his own decision by imposing civil liability on those
who perform medical treatment without consent, although
the treatment may be beneficial or even necessary to
preserve the patient’s life (see, e.g., Schloendorff
v. Society of N. Y. Hosp., 211 NY 125, supra;
Matter of Erickson v. Dilgard, 44 Misc 2d 27; Matter
of Melideo, 88 Misc 2d 974; Public Health Law, §
2504, 2805-d; CPLR 4401-a). The current law
identifies the patient’s right to determine the course of
his own medical treatment as paramount to what might
otherwise be the doctor’s obligation to provide needed
medical care. A State which imposes civil liability on a
doctor if he violates the patient’s right cannot also hold
him criminally responsible if he respects that right.”(Matter
of Storar, 52 NY2d 363, 377, supra.) A construction of the law which would give Pamela
Robbins the right to decline medical aid and would impose
civil liability on anyone who subjected her to treatment
without her consent, but at the same time would impose
criminal sanctions on her husband if he respected that
right of refusal, is not only paradoxical, but totally
irrational and fundamentally unfair. Although
the indictment against Robert Robbins alleges that he
failed to seek medical aid “at a time when the said Pamela
Robbins was unable to provide or seek the same for
herself,” it is defective for failure to state that Pamela
Robbins was incapacitated or otherwise unable to make a
rational decision and indeed the evidence would not
support such claim. The record indicates,
rather, that up until a very short time before her death,
Pamela and Robert Robbins were praying, he was attempting
to ease her discomfort, and was behaving in a very
solicitous manner. The failure of medical
assistance which resulted in her death was unquestionably
the consequence of Pamela Robbins’ conscious choice to
rely on her faith and forego medical interference. State v. Miranda KATZ, J. The trial court . . . found the defendant guilty of one
count of § 53-21[1]
and six counts of § 53a-59 (a) (3).[2] The trial court found the
defendant not guilty of nineteen counts of assault in the
first degree. Those counts had charged him with either
personally inflicting the injuries or not preventing the
child’s mother from inflicting the injuries.[3] The court imposed a total
effective sentence of forty years imprisonment. The defendant appealed to the Appellate Court, which . .
. reversed the assault convictions concluding that the
defendant had no legal duty to act under the circumstances
of this case. . . . We … turn to the issue of whether the duty to protect can
be imposed on the defendant, an adult member of the
household unrelated to the child. . . . There are many statutes that expressly impose a legal
duty to act and attach liability for the failure to comply
with that duty. With other statutes, however, the duty to
act can be found outside the statutory definition of the
crime itself, either in another statute; or in the common
law. We do not believe that the principle of imposing a
common-law duty in and of itself is inconsistent with any
other principle of criminal liability provided in the
code. “Failure to act when there is a special relationship
does not, by itself, constitute a crime. The failure must
expose the dependent person to some proscribed result. The
definition of proscribed results constitutes the
substantive crime, and it is defined in the criminal code.
. . .” . . . Although one generally has no legal duty to aid
another in peril, even when the aid can be provided
without danger or inconvenience to the provider, there are
four widely recognized situations in which the failure to
act may constitute breach of a legal duty: (1) where one
stands in a certain relationship to another; (2) where a
statute imposes a duty to help another; (3) where one has
assumed a contractual duty; and (4) where one voluntarily
has assumed the care of another. 1 W. LaFave & A.
Scott, supra, § 3.3 (a) (1)-(4), pp. 284-87.[4] The state argues that this case falls within both the
first and fourth situations, or some combination thereof. We begin with the duty based upon the relationship
between the parties. One standing in a certain personal
relationship to another person has some affirmative duties
of care with regard to that person. “Legal rights and
duties ... may arise out of those complex relations of
human society which create correlative rights and duties
the performance of which is so necessary to the good order
and well-being of society that the state makes their
observance obligatory.” Annot., supra, 100
A.L.R.2d 488. It is undisputed that parents have a duty to provide
food, shelter and medical aid for their children and to
protect them from harm. “The inherent dependency of a
child upon his parent to obtain medical aid, i.e., the
incapacity of a child to evaluate his condition and summon
aid by himself, supports imposition of such a duty upon
the parent.”Commonwealth v. Konz, 498 Pa. 639,
644, 450 A.2d 638 (1982). Additionally, “‘the commonly
understood general obligations of parenthood entail these
minimum attributes: (1) express love and affection for the
child; (2) express personal concern over the health,
education and general well-being of the child; (3) the
duty to supply the necessary food, clothing, and medical
care; (4) the duty to provide an adequate domicile; and
(5) the duty to furnish social and religious guidance.’”
In re Adoption of Webb, 14 Wash. App. 651, 653,
544 P.2d 130 (1975). . . . In addition to biological and adoptive parents and legal
guardians, there may be other adults who establish
familial relationships with and assume responsibility for
the care of a child, thereby creating a legal duty to
protect that child from harm. “Recognizing the primary
responsibility of a natural parent does not mean that an
unrelated person may not also have some responsibilities
incident to the care and custody of a child. Such duties
may be regarded as derived from the primary custodian,
i.e., the natural parent, or arise from the nature of the
circumstances.”People v. Berg, 171 Ill. App. 3d
316, 320, 525 N.E.2d 573, 121 Ill. Dec. 515 (1988). Most courts deciding whether, under a particular set of
facts, liability for an omission to act may be imposed
under a statute that does not itself impose a duty to act,
have looked to whether a duty to act exists in another
statute, in the common law or in a contract. Of
those courts acting outside the context of a statutory or
contractual duty that have held a defendant criminally
liable for failing to protect a child from injury, most
have relied on a combination of both the first and fourth
situations described by Professors LaFave and Scott to
establish a duty as the predicate for the defendant’s
conviction. More specifically, these courts have
examined the nature of the relationship of the defendant
to the victim and whether the defendant, as part of that
relationship, had assumed a responsibility for the
victim…. In State v. Orosco, 113 N.M. 789, 833 P.2d
1155 (1991), the court examined whether the defendant, who
lived with the victim and his mother and who failed to
intervene when one of his friends sexually abused the
victim, could be held criminally liable for the abuse.
[T]he court held that, by assuming the care and welfare of
the child, the defendant stood in the position of a
parent. In Leet v. State, 595 So. 2d 959 (Fla. App.
1991), the court examined whether the defendant could be
held criminally responsible for abuse of a child by his
mother although he was not the child’s father. . . .
Although the defendant had argued that he was not
financially responsible for the child and could not have
authorized his medical treatment, the court, nevertheless,
concluded that he had the authority, and indeed, the duty
to prevent the mother’s conduct. In People v. Wong, 182 A.D.2d 98, 588 N.Y.S.2d
119 (1993), the court examined whether the defendants, who
had been babysitters for the child victim’s parents, could
be convicted of manslaughter for harming the child and for
failing to provide him with necessary medical care. To
support a conviction based upon their failure to provide
medical attention, the prosecution relied on two theories:
(1) that the defendants had contracted with the child’s
parents to care for the child while the parents worked;
and (2) that the defendants voluntarily had assumed care
for the child....
As these cases demonstrate, the traditional approach in
this country is to restrict the duty to save others from
harm to certain very narrow categories of cases. We are
not prepared now to adopt a broad general rule covering
other circumstances. We conclude only that, in accordance
with the trial court findings, when the defendant, who
considered himself the victim’s parent, established a
familial relationship with the victim’s mother and her
children and assumed the role of a father, he assumed,
under the common law, the same legal duty to protect the
victim from the abuse as if he were, in fact, the victim’s
guardian. . . . That duty does not depend on an ability to
regulate the mother’s discipline of the victim or on the
defendant having exclusive control of the victim when the
injuries occurred. Nor is the duty contingent upon an
ability by the state or the mother to look to the
defendant for child support. Moreover, whether
the defendant had created a total in loco parentis
relationship with the victim by January, 1993, is not
dispositive of whether the defendant had assumed a
responsibility for the victim. “If immediate or
emergency medical attention is required from a child’s
custodian it should not matter that such custodian is not
the primary care provider or for that matter a legally
designated surrogate.” Nor should we reject the concept of a duty in this case
because the defendant might not have been able to
authorize medical treatment for the victim had he taken
her to the hospital. The status required to impose the
legal duty to safeguard the victim is not coextensive with
the status that permits one to authorize treatment. . . . Finally, we recognize the continuing demographic trend
reflecting a significant increase in nontraditional
alternative family arrangements. Consequently,
more and more children will be living with or may depend
upon adults who do not qualify as a natural or adoptive
parent. . . . To distinguish among children in deciding
which ones are entitled to protection based upon whether
their adult caregivers have chosen to have their
relationships officially recognized hardly advances the
public policy of protecting children from abuse. … The judgment of the Appellate Court is reversed … PALMER, J., with whom MCDONALD, J.,
joins, concurring. Since the defendant will have the opportunity to raise a
due process claim on remand, however;[6] and because I agree with the
analysis and conclusions of the majority, I join the
opinion of the majority. * * * R. v. Browne Abella J.A.:— s. 217. Every one who undertakes to
do an act is under a legal duty to do it if an omission
to do the act is or may be dangerous to life. 2
Audrey Greiner and Dexter Browne were drug dealers. At the
time of her death, Greiner was 19 and Browne was 22. They
had met several months earlier and sold crack cocaine
together. They were also, the trial judge found, “at the
very least close friends, probably boyfriend-girlfriend”,
though they did not live together. 13
The charge of criminal negligence against the appellant
was particularized as follows, mirroring the language
found in s. 217 of the Criminal Code: * * * Fagan v. Commissioner of
Metropolitan Police LORD PARKER C.J.: I will ask James J. to
read the judgment which he has prepared, and with which I
entirely agree. The sole question is whether the prosecution proved
facts which in law amounted to an assault. On August 31, 1967, the appellant was reversing a motor
car in Fortunegate Road, London, N.W.10, when Police
Constable Morris directed him to drive the car forwards to
the kerbside and standing in front of the car pointed out
a suitable place in which to park. At first the appellant
stopped the car too far from the kerb for the officer’s
liking. Morris asked him to park closer and indicated a
precise spot. The appellant drove forward towards him and
stopped it with the offside wheel on Morris’s left foot. “
Get off, you are on my foot,” said the officer. “Fuck you,
you can wait,” said the appellant. The engine of the car
stopped running. Morris repeated several times “Get off my
foot.” The appellant said reluctantly “ Okay man, okay,”
and then slowly turned on the ignition of the vehicle and
reversed it off the officer’s foot. The appellant had
either turned the ignition off to stop the engine or
turned it off after the engine had stopped running. Mr. Abbas for the appellant relied upon the passage in Stone’s
Justices’ Manual (1968), Vol. 1, p. 651, where
assault is defined. He contends that on the finding of the
justices the initial mounting of the wheel could not be an
assault and that the act of the wheel mounting the foot
came to an end without there being any mens rea.
It is argued that thereafter there was no act on the part
of the appellant which could constitute an actus reus
but only the omission or failure to remove the wheel as
soon as he was asked. That failure, it is said, could not
in law be an assault, nor could it in law provide the
necessary mens rea to convert the original act
of mounting the foot into an assault. Mr. Rant for the respondent argues that the first
mounting of the foot was an actus reus which act
continued until the moment of time at which the wheel was
removed. During that continuing act, it is said, the
appellant formed the necessary intention to constitute the
element of mens rea and once that element was
added to the continuing act, an assault took place. In the
alternative, Mr. Rant argues that there can be situations
in which there is a duty to act and that in such
situations an omission to act in breach of duty would in
law amount to an assault. It is unnecessary to formulate
any concluded views on this alternative. To constitute the offence of assault some intentional
act must have been performed: a mere omission to act
cannot amount to an assault. Without going into the
question whether words alone can constitute an assault, it
is clear that the words spoken by the appellant could not
alone amount to an assault: they can only shed a light on
the appellant’s action. For our part we think the crucial
question is whether in this case the act of the appellant
can be said to be complete and spent at the moment of time
when the car wheel came to rest on the foot or whether his
act is to be regarded as a continuing act operating until
the wheel was removed. In our judgment a distinction is to
be drawn between acts which are complete—though results
may continue to flow—and those acts which are continuing.
Once the act is complete it cannot thereafter be said to
be a threat to inflict unlawful force upon the victim. If
the act, as distinct from the results thereof, is a
continuing act there is a continuing threat to inflict
unlawful force. If the assault involves a battery and that
battery continues there is a continuing act of assault. For an assault to be committed both the elements of actus
reus and mens rea must be present at the
same time. The “actus reus“ is the action causing
the effect on the victim’s mind. The “mens
rea” is the intention to cause that effect. It is
not necessary that mens rea should be present at
the inception of the actus reus; it can be
superimposed upon an existing act. On the other hand the
subsequent inception of mens rea cannot convert
an act which has been completed without mens rea
into an assault. In our judgment the Willesden magistrates and quarter
sessions were right in law. On the facts found the action
of the appellant may have been initially unintentional,
but the time came when knowing that the wheel was on the
officer’s foot the appellant (1) remained seated in the
car so that his body through the medium of the car was in
contact with the officer, (2) switched off the ignition of
the car, (3) maintained the wheel of the car on the foot
and (4) used words indicating the intention of keeping the
wheel in that position. For our part we cannot regard such
conduct as mere omission or inactivity. We would dismiss this appeal. BRIDGE J. (dissenting):— I fully agree
with my Lords as to the relevant principles to be applied.
No mere omission to act can amount to an assault. Both the
elements of actus reus and mens rea
must be present at the same time, but the one may be
superimposed on the other. It is in the application of
these principles to the highly unusual facts of this case
that I have, with regret, reached a different conclusion
from the majority of the court. I have no sympathy at all
for the appellant, who behaved disgracefully. But I have
been unable to find any way of regarding the facts which
satisfies me that they amounted to the crime of assault.
This has not been for want of trying. But at every attempt
I have encountered the inescapable question: after the
wheel of the appellant’s car had accidentally come to rest
on the constable’s foot, what was it that the appellant
did which constituted the act of assault? However the
question is approached, the answer I feel obliged to give
is: precisely nothing. The car rested on the foot by its
own weight and, remained stationary by its own inertia.
The appellant’s fault was that he omitted to manipulate
the controls to set it in motion again. Neither the fact that the appellant remained in the
driver’s seat nor that he switched off the ignition seem
to me to be of any relevance. The constable’s plight would
have been no better, but might well have been worse, if
the appellant had alighted from the car leaving the
ignition switched on. Similarly I can get no help from the
suggested analogies. If one man accidentally treads on
another toe or touches him with a stick, but deliberately
maintains pressure with foot or stick after the victim
protests, there is clearly an assault. But there is no
true parallel between such cases and the present case. It
is not, to my mind, a legitimate use of language to speak
of the appellant “ holding “ or “ maintaining “ the car
wheel on the constable’s foot. The expression which
corresponds to the reality is that used by the justices in
the case stated. They say,quite rightly, that he “ allowed
“ the wheel to remain. With a reluctantly dissenting voice I would allow this
appeal and quash the appellant’s conviction. Appeal dismissed. * * * R. v. Miller One night, while squatting in someone else’s house, the
appellant lit a cigarette and then lay down on a mattress
in one of the rooms. He fell asleep before he had finished
smoking the cigarette and it dropped onto the mattress.
Later he woke up and saw that the mattress was
smouldering. He did nothing about it; he merely moved to
another room and went to sleep again. The house caught
fire. The appellant was rescued and subsequently charged
with arson contrary to the Criminal Damage Act 1971. MAY L.J. read the following judgment of
the court. Appeal dismissed. R. v. Miller Lord Diplock: R. v. Thornton The judgment of the Court was delivered by
Galligan J.A.:— 180. [176] (1) Every one who commits a
common nuisance and thereby 6 …. If, in the
circumstances, the appellant's act of donating blood which
he knew was HIV contaminated to the Red Cross was neither
an unlawful act nor a failure to discharge a legal duty,
then the indictment does not allege an offence known to
law. 219. [202] (1) Every one is criminally
negligent who 10 In R.
v. Coyne (1958), 31 C.R. 335, 124 C.C.C. 176, the
New Brunswick Supreme Court, Appeal Division, considered
the criminal negligence provisions of the Code in relation
to a hunting accident. Speaking for that Court, Ritchie
J.A. held at pp. 179-180 [C.C.C., p. 338 C.R.]: The 'duty imposed by law' may be a duty arising by virtue
of either the common law or by statute. Use of a firearm,
in the absence of proper caution, may readily endanger the
lives or safety of others. Under the common law anyone
carrying such a dangerous weapon as a rifle is under the
duty to take such precaution in its use as, in the
circumstances, would be observed by a reasonably careful
man. If he fails in that duty and his behaviour is of such
a character as to show or display a wanton or reckless
disregard for the lives or safety of other persons, then,
by virtue of s. 191, his conduct amounts to criminal
negligence. 11 In R.
v. Popen (1981), 60 C.C.C. (2d) 232, this Court
also had occasion to consider the nature of the "duty
imposed by law" contained in the definition of criminal
negligence. It was a child abuse case. In giving the
judgment of the Court, Martin J.A. said at p. 240: [A] parent is under a legal duty at common law to take
reasonable steps to protect his or her child from
illegal violence used by the other parent or by a third
person towards the child which the parent foresees or
ought to foresee. The effect of that judgment is to hold that the common
law duty, which was there described, was a "duty imposed
by law" within the meaning of s. 219 because the Court
held that its breach could amount to criminal negligence. R. v. Thornton The judgment of the court was delivered by Lamer C.J.C.
(orally):— Annotation Section 216 of the Criminal Code reads as follows: Every one who undertakes to administer surgical or
medical treatment to another person or to do any other
lawful act that may endanger the life of another person
is, except in cases of necessity, under a legal duty to
have and to use reasonable knowledge, skill and care in
so doing.
The court appears to read s. 216 literally to impose a
duty of care on those doing lawful acts which endanger
others' lives. The trial judge, His Honour Judge Flanigan,
then of the Ontario District Court, (June 15, 1989), Doc.
Ottawa-Carleton 759/89, [1989] O.J. 1814, had also found a
duty in s. 216 but only on the basis the accused was
involved in a medical procedure. Section 216 is widely
drafted and can well bear the Supreme Court's construction
to criminalize Thornton's despicable and life-threatening
omission. It is nevertheless disappointing that the Supreme Court
did not seize the opportunity to fully consider a
contentious issue of general principle — whether a
criminal omission can be based on a non-criminal duty. In
the court below, the Ontario Court of Appeal had found a
breach of legal duty by turning to civil jurisprudence,
including Lord Atkin's famous pronouncement in M'Alister
(or Donoghue) v. Stevenson, [1932] A.C. 562 (sub
nom. Donoghue (or McAlister) v. Stevenson)
[1932] All E.R. Rep. 1 (H.L.) that: The rule that you are to love your neighbour becomes in
law, you must not injure your neighbour ... (at p. 580
[A.C.]) Whatever one thinks of Thornton's conduct, resort to the
common law of torts to justify criminal responsibility is
quite inconsistent with the clear wording of s. 9(a) of
the Criminal Code which states that: ... no person shall be convicted ... of an offence at
common law The Supreme Court ought to have pronounced on whether
such wide resort to the common law is permissible. The
important principle of legality was at stake. The issue of
the source of legal duties had previously split the
Supreme Court in R. v. Moore, [1979] 1 S.C.R.
195, 5 C.R. (3d) 289, [1978] 6 W.W.R. 462, 24 N.R. 181, 43
C.C.C. (2d) 83, 90 D.L.R. (3d) 112. In Moore, the Supreme Court was agreed that criminal
responsibility for an omission could be based on a breach
of duty imposed by a provincial statute. Recently,
Canadian law reform proposals have urged far greater
restraint. The now defunct Law Reform Commission of
Canada, in Recodifying Criminal Law (Report; 31)
(Ottawa: The Commission, 1988), at p. 20, suggested legal
duties to ground criminal responsibility for omission
should be limited to special duties declared in the
Criminal Code or "some other Act of the Parliament of
Canada". The Canadian Bar Association, Criminal
Recodification Task Force, Principles of Criminal
Liability: Proposals for a New General Part of the
Criminal Code of Canada (Ottawa: 1992), at pp.
22-23, arguing that a Criminal Code should be
comprehensive and accessible, would further restrict
criminal responsibility for omissions to breaches of
duties declared in the Code itself. However, the
Parliamentary Subcommittee, First Principles (1993), pp.
25-27, considered the inclusion of all legal duties in the
Code as "impractical and unrealistic" and agreed with the
Commission that, apart from special duties declared in a
Code, duties could also be found in other federal
statutes. These three bodies thus agree that breach of a
common law or provincial statutory duty should never be
the sole source of criminal responsibility. The 1993
Government White Paper, Minister of Justice, Proposals to
amend the Criminal Code (general principles) (June 28,
1993), disappointingly ignoresall this advice and has no
general provision on omissions. The law is left to the
vagaries of judges and provincial politicians. Don Stuart * * * LRCC § 2(3) * * * MPC § 2.01 * * * StGB § 13 * * * French Penal Code Art. 223-6 Anyone who, being able to prevent by immediate action a
felony or a misdemeanour against the bodily integrity of
aperson, without risk to himself or to third parties,
wilfully abstains from doing so, is punished by five
years’ imprisonmentand a fine of €75,000. Art. 223-7 Anyone who voluntarily abstains from taking or initiating
measures, which involve no risk to himself or to
thirdparties, to combat a natural disaster likely to
endanger the safety of others is punished by two years’
imprisonment and afine of €30,000. * * * StGB § 323c. Omission to effect an
easy rescue Whosoever does not render assistance during accidents or
a common danger or emergency although it is necessary and
can be expected of him under the circumstances,
particularly if it is possible without substantial danger
to himself and without violation of other important duties
shall be liable to imprisonment of not more than one year
or a fine. * * * LRCC § 10(2)
Failure to Rescue * * * Quebéc Charter of Human Rights and
Freedoms Right to life. Right to assistance. 1.
Significance and Variety Markus D. Dubber, “Policing
Possession: The War on Crime and the End of Criminal
Law,” 91 J. Crim. L. & Criminology 829 (2002) Possession offenses have not attracted much attention.
Yet they are everywhere in modern American criminal
law, on the books and in action. Possession offenses . . .
are everywhere in modern American criminal law, on the
books and in action. They fill [American]
statute books, … arrest statistics, and, eventually, …
prisons. By last count, New York law recognized
no fewer than 153 possession offenses; one in every five
prison or jail sentences handed out by New York courts in
1998 was imposed for a possession offense. That same year,
possession offenses accounted for over 100,000 arrests in
New York State, while drug possession offenses alone
resulted in over 1.2 million arrests nationwide. … So broad is the reach of possession offenses, and so
easy are they to detect and then to prove, that possession
has replaced vagrancy as the sweep offense of choice.
Unlike vagrancy, however, possession offenses promise
more than a slap on the wrist. Backed by a wide range of
penalties, they can remove undesirables for extended
periods of time, even for life. . . . New York boasts no fewer than 115 felony possession
offenses, all of which require a minimum of one year in
prison; eleven of them provide for a maximum sentence of
life imprisonment. [T]he implicit presumption inherent in the concept of a
possession offense reveals the modus operandi of
possession, the secret of its success as a policing tool
beyond legal scrutiny. Possession succeeds
because it removes all potentially troublesome features to
the level of legislative or executive discretion, an area
that is notoriously difficult to scrutinize. In
its design and its application, possession is, in
doctrinal terms, a doubly inchoate offense, one step
farther from the actual infliction of personal harm than
ordinary inchoate offenses like attempt. In
practical terms, it is an offense designed and applied to
remove dangerous individuals even before they have had an
opportunity to manifest their dangerousness in an ordinary
inchoate offense. On its face, however, it does
not look like an inchoate offense, nor does it look like a
threat reduction measure targeting particular types of
individuals. * * * Possession in the Canadian
Criminal Code The Canadian Criminal Code contains over 50 possession
offenses, punishable by imprisonment up to fourteen years,
not counting the possession offenses found in other
statutes, including the Controlled Drugs and Substances
Act, some of which are punishable by life imprisonment
(notably possession of certain drugs for the purpose of
trafficking and for the purpose of exporting). Possession
offenses are notoriously difficult to count since they
often appear in closely related variations (e.g.,
possession, possession with intent to distribute,
possession with intent to use, possession of one item,
possession of another similar item). The
Canadian Criminal Code also not once but twice uses the
ingenious device of transforming a slate of sale offenses
into possession offenses by defining sale as
including possession for sale. Several
possession are accompanied by presumptions and reverse
proof burdens (of unlawfulness or lack of authorization).
Possession offenses found in the Code include, more
or less in order of appearance: 2.
"Actus Reus" An Act for the Better Prevention
of Offences, 1851 An Act Preventing the
Counterfeiting Coin * * * R. v. Lennard (A prisoner may be indicted for having the unlawful
custody of a mould; for a mould being mentioned in the
first clause of the Act, it is to be considered as
included in the general words tool or instrument, in the
subsequent clause.) At the Lent Assizes for Taunton, in the county of
Somerset, on 26th March, 1772, Hugh Lennard was indicted
and tried before Mr. Justice Blackstone[7] on the statute of the 8
& 9 Will. III. c. 26, for High Treason, for having in
his custody and possession, without any lawful authority
or sufficient excuse, one mould made of lead, on which was
made and impressed the figure, stamp, resemblance, and
similitude of one of the sides or flats, viz. the head
side, of a shilling. There was another count for having in
his custody a mould on which was made (or impressed the
figure, stamp, resemblance, and similitude of the reverse
side of a shilling. R. v. Dugdale In some counts of an indictment, the defendant was
charged with unlawfully and knowingly obtaining and
procuring indecent and obscene prints and libels, in order
and for the purpose of afterwards publishing and
disseminating them. In other counts with unlawfully and
knowingly preserving and keeping in his possession,
indecent and obscene prints and libels, with the intent
and for the purpose of afterwards publishing and
disseminating them:— This was an indictment for a misdemeanor, upon which the
defendant had been tried and found guilty at the General
Sessions of the Peace for the county of Middlesex, and the
record and proceedings had been removed into this court by
writ of error. The first count of the indictment alleged that the
defendant “being a person of most wicked and depraved mind
and disposition, and unlawfully and wickedly devising,
contriving, and intending, as much as in him lay, to
vitiate and corrupt the morals of the liege subjects of
our said lady the queen, and to incite and encourage the
said liege subjects to indecent, obscene, and immoral
practices, and bring them to a state of wickedness,
lewdness, and debauchery, heretofore, to wit, &c,
unlawfully, wickedly, knowingly, wilfully, and designedly,
and in order to effect and bring about such his most
wicked devices and contrivances, did obtain and procure
divers, to wit, 100 indecent, lewd, filthy, bawdy, and
obscene prints, and divers, to wit, 100 indecent, lewd,
filthy, bawdy, and obscene pictures, then and there
respectively tending to scandalize and debase human
nature, and then and there representing and exhibiting the
persons of men and women, naked, and partly naked, in
obscene and indecent attitudes, postures, and situations,
in order, and for the purpose of afterwards, unlawfully
and wickedly uttering, publishing, selling, and
disseminating, and causing to be uttered, published, sold,
and disseminated the said prints and pictures, to and
amongst the liege subjects of our said lady the queen, and
thereby contaminating, vitiating, and corrupting the
morals of the said liege subjects, and bringing the said
liege subjects to a state of wickedness, lewdness,
debauchery, and immorality. In contempt,”. The second count charged, that the defendant
“unlawfully, wickedly, knowingly, wilfully, and
designedly, did preserve and keep in his possession”
divers other indecent, lewd, filthy, bawdy, and obscene
prints and pictures, &c. (as in the first count,)
“with the intent, and for the purpose of unlawfully and
wickedly uttering, publishing, and disseminating the said
last-mentioned prints and pictures, and causing the same
to be uttered, sold, published, and disseminated,”. (as in
the first count.) There were several other counts in the same form,
charging the obtaining and procuring, and preserving and
keeping in possession certain obscene libels, in one or
which a portion of one of the obscene libels was set out. The errors assigned were, that it was not an indictable
offence to procure obscene and indecent pictures, prints,
and libels, for the purpose of afterwards unlawfully
publishing and selling them. That it was also not an
indictable offence to preserve and keep in possession such
pictures, prints, or libels, for the like purpose. Metcalfe, for the plaintiff in error. The counts
charging as an offence the having possession of the prints
and libels, with the intent of afterwards publishing and
selling them, are clearly bad. The mere allegation of an
intention to publish, without any act done, does not make
the possession an offence. Any attempt to sell would be an
offence, but nothing of the kind is alleged. The case of The
King v.Sutton, 2 Str. 1074, in which it was held,
that the having possession of coining tools, with the
intent to impress sixpences, and to color and pass them
off for half-guineas, was indictable, is overruled by the
case of The King v. Heath, Russ. & R. 184,
which decides, that having counterfeit silver in
possession, with intent to utter it, there being no
criminal act done, is no offence. This case is in point to
show that this class of counts cannot be sustained. Then,
as to the other class of counts, which charge the
obtaining and procuring the prints and libels, with the
same intent. They also cannot be sustained. It is
difficult, no doubt, to distinguish them from the case of
The King v. Fuller, Russ. &. R. 308, in which
it was held, that procuring base coin, with intent to
utter it as good, is a misdemeanor. [Lord Campbell, C. J. That case seems in point,
and as at present advised, I entirely concur in that
decision, and highly approve of it.] If these counts charge an offence at common law, the
enactment in 14 & 15 Vict. c. 19, s. 1, could hardly
have been necessary.[8]
Another point here is, that this is an offence against
public morals, and all that the indictment alleges is, an
intent to publish, and by so doing to corrupt the public
morals. There is no averment of the doing of any act by
the defendant, such as could be considered an act against
public morals. [Lord Campbell, C. J. There is an allegation of
what the words of one of the obscene libels are.] Lord Campbell, C. J. I am of opinion
that on one class of counts the conviction must be
affirmed. We have decisions to guide us as to both classes
of counts. As to the first class, which allege simply that
the party indicted had the prints in his possession, with
intent to publish them, I think, upon the authority of The
King v. Heath, those counts are bad; there is no
act alleged to have been done, and the prints may have
come innocently into his possession; and he might have had
only for one moment any intention of making them public.
That is not the commencing to commit a misdemeanor, and
the case of The King v. Heath is in point. But
with regard to the other counts for obtaining and
procuring the indecent prints and libels, we have the
decision of all the judges, in The King v. Fuller,
in Easter term, 1816, when it is reported the judges met,
and were of opinion that the procuring counterfeit coin,
with intent to utter it, was an offence. Applying the
principle of that decision to this case, it is equally a
misdemeanor to procure indecent prints with the intention
of publishing them. The publication of such prints is
forbidden by the common law of England, and procuring
them, with the intention to publish them, is an overt act
done in commencing a misdemeanor. I have, therefore, no
doubt in saying that these counts are good, and that the
conviction must be affirmed. Coleridge, J. I am of the same opinion. The law
does not take cognizance of mere intent; but the
circulation of indecent prints, which contaminate public
morals, is a misdemeanor, and one of the first steps in
committing it, is the procuring the prints, and it is
impossible to say that is not an act done towards the
completion of the offence. Wightman, J., and Crompton, J., concurred. Conviction affirmed * * * LRCC § 2(3) (comment) * * * MPC § 2.01(4) * * * Markus D. Dubber, “Policing
Possession: The War on Crime and the End of Criminal
Law,” 91 J. Crim. L. & Criminology 829 (2002) Possession is not a conduct offense. As commentators have
pointed out for centuries, possession is not an act, it is
a state of being, a status.[9] To possess something is to be
in possession of it. 3.
Varieties of Possession a. actual (physical) R. v. Hess 1 O’HALLORAN J.A.:—Three little girls
found a parcel near the sidewalk by a sign post at the
intersection of 14th Avenue and Manitoba Street in
Vancouver. One of them had tripped over it. They broke it
open and brought it home to the mother of one of them.
Suspecting narcotic drugs the mother telephoned the
police. The police removed most of the drugs, and put the
parcel back at the same spot near the sign post, and kept
watch from a garage about 50 feet away. * * * R. v. Beaver The judgment of Rand, Locke and Cartwright JJ. was
delivered by 4. (1) Every person who... (d) has in his
possession any drug save and except under the authority
of a licence from the Minister first had and obtained,
or other lawful authority;... (i) upon indictment, to imprisonment for any term not
exceeding seven years and not less than six months, and
to a fine not exceeding one thousand dollars and not
less than two hundred dollars, and in addition, at the
discretion of the judge, to be whipped; or (2) Notwithstanding the provisions of the Criminal
Code, or of any other statute or law, the court has no
power to impose less than the minimum penalties herein
prescribed, and shall, in all cases of conviction,
impose both fine and imprisonment;... 11. (1) No person
shall, without lawful authority or without a permit
signed by the Minister or some person authorized by him
in that behalf, import or have in his possession any
opium pipe, opium lamp, or other device or apparatus
designed or generally used for the purpose of preparing
opium for smoking, or smoking or inhaling opium, or any
article capable of being used as or as part of any such
pipe, lamp or other device or apparatus. 15. Where any person is charged with
an offence under paragraph (a), (d), (e), (f), or (g) of
subsection (1) of section 4, it is not necessary for the
prosecuting authority to establish that the accused had
not a licence from the Minister or was not otherwise
authorized to commit the act complained of, and if the
accused pleads or alleges that he had such licence or
other authority the burden of proof thereof shall be
upon the person so charged. 17. Without limiting the generality of
paragraph (d) of subsection (1) of section 4, any person
who occupies, controls, or is in possession of any
building, room, vessel, vehicle, enclosure or place, in
or upon which any drug or any article mentioned in
section 11 is found, shall, if charged with having such
drug or article in possession without lawful authority,
be deemed to have been so in possession unless he prove
that the drug or article was there without his
authority, knowledge or consent, or that he was lawfully
entitled to the possession thereof. In the course of the argument counsel also referred to
the following provisions of other statutes of Canada: The Interpretation Act, R.S.C. 1952, c. 158, s. 28(1): The Criminal Code, R.S.C. 1927, c. 36, s. 5 {now s.
4(3)}: 5. In this Act, unless the context
otherwise requires,... (b) having in one’s possession includes not only having
in one’s own personal possession, but also knowingly, 2. {now s. 4(3)(b)}If there are two or
more persons, and any one or more of them, with the
knowledge and consent of the rest, has or have anything
in his or their custody or possession, it shall be
deemed and taken to be in the custody and possession of
each and all of them. … It will be observed at once that we are not concerned
with the incidence of the burden of proof or of the
obligation of adducing evidence. The judgment of the Court
of Appeal states the law to be that X must be convicted
although he proves to the point of demonstration that he
honestly believed the package to contain baking-soda. In The Company of Proprietors of the Margate Pier
v. Hannam et al. [(1819), 3 B. & Ald. 266 at
270, 106 E.R. 661.], Lord Coke is quoted as having said: Now, to my mind, it is contrary to the whole
established law of England (unless the legislation on
the subject has clearly enacted it), to say that a
person can be guilty of a crime in England without a
wrongful intent -- without an attempt to do that which
the law has forbidden. I am aware that in a particular
case, and under a particular criminal statute, fifteen
judges to one held that a person whom the jury found to
have no intent to do what was forbidden, and whom the
jury found to have been deceived, and to have understood
the facts to be such that he might with impunity have
done a certain thing, was by the terms of that Act of
Parliament guilty of a crime, and could be imprisoned. I
say still, as I said then, that I cannot subscribe to
the propriety of that decision. I bow to it, but I
cannot subscribe to it: But the majority of the judges
forming the Court so held because they said that the
enactment was absolutely clear. In Reynolds v. G.H. Austin & Sons Ld.
[[1951] 2 K.B. 135, [1951] 1 All E.R. 606.], Devlin J.
says at pp. 147-8: I adhere to the opinion which, with the concurrence of
my brother Nolan, I expressed in The Queen v. Rees
(2), that the first of the statements of Stephen J.
quoted above should now be read in the light of the
judgment of Lord Goddard C.J., concurred in by Lynskey and
Devlin JJ., in Wilson v. Inyan [[1951] 2 K.B.
799, [1951] 2 All E.R. 237.], which, in my opinion,
rightly decides that the essential question is 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 evidence to be weighed
by the tribunal of fact in determining that essential
question. In Watts and Gaunt v. The Queen (4), Estey J.
says: While an offence of which mens rea is not an essential
ingredient may be created by legislation, in view of the
general rule a section creating an offence ought not to
be so construed unless Parliament has, by express
language or necessary implication, disclosed such an
intention. When the decisions as to the construction of the Opium
and Narcotic Drug Act on which the respondent relies are
examined it appears that two main reasons are assigned for
holding that mens rea is not an essential ingredient of
the offence created by s. 4(1)(d), these being (i) the
assumption that the subject-matter with which the Act
deals is of the kind dealt with in the cases of which Hobbs
v. Winchester Corporation [[1910] 2 K.B. 471.] is
typical and which are sometimes referred to as “public
welfare offence cases”, and (ii) by implication from the
wording of s. 17 of the Act. As to the first of these reasons, I can discern little
similarity between a statute designed, by forbidding the
sale of unsound meat, to ensure that the supply available
to the public shall be wholesome, and a statute making it
a serious crime to possess or deal in narcotics; the one
is to ensure that a lawful and necessary trade shall be
carried on in a manner not to endanger the public health,
the other to forbid altogether conduct regarded as harmful
in itself. As a necessary feature of his trade, the
butcher holds himself out as selling meat fit for
consumption; he warrants that quality; and it is part of
his duty as trader to see that the merchandise is
wholesome. The statute simply converts that civil personal
duty in to a public duty. A few passages from the judgment in Hobbs v.
Winchester Corporation will show the view taken of
the purpose of the legislation there under consideration: Before reading the material words of these sections it
is perhaps convenient to indicate what is the plain and
apparent object of the Act with regard to the sale of
unsound meat. The object is to prevent danger to the
public health by the sale of meat for human consumption
in a state or condition in which it is dangerous to
human health. Farwell L.J., at p. 481: Who is to take the risk of the meat being unsound, the
butcher or the public? In my opinion the Legislature
intended that the butcher should take the risk and that
the public should be protected, irrespective of the
guilt or innocence of the butcher. The knowledge or
possible means of knowledge of the butcher is not a
matter which affects the public; it is the unsound meat
which poisons them; and I think that the Legislature
intended that the butcher should sell unsound meat at
his peril. Kennedy L.J., at pp. 484-5: A man takes upon himself to offer goods to the public
for their consumption with a view to making a profit by
the sale of them. Those goods may be so impregnated with
disease as to carry death or at any rate serious injury
to health to any one consuming them. To say that the
difficulty of discovering the disease is a sufficient
ground for enabling the seller to excuse himself on the
plea that he cannot be reasonably expected to have the
requisite technical knowledge or to keep an analyst on
his premises, is simply to say that the public are to be
left unprotected and must submit to take the risk of
purchasing an article of food which may turn out to be
dangerous to life or health. I think that the policy of
the Act is this: that if a man chooses for profit to
engage in a business which involves the offering for
sale of that which may be deadly or injurious to health
he must take that risk, and that it is not a sufficient
defence for any one who chooses to embark on such a
business to say “I could not have discovered the disease
unless I had an analyst on the premises.” Assuming that Hobbs v. Winchester Corporation was
rightly decided I do not think that its reasoning supports
the decision of the Court of Appeal in the case at bar.
The difference between the subject-matter of the
legislation there considered and that of the Act with
which we are concerned is too wide. As to the second reason, the argument is put as follows:
Using again the illustration I have taken above, it is
said (i) that the words of s. 17 would require the
conviction of X if the package was found in his bathroom
cupboard “unless he prove that [it] was there without his
authority, knowledge or consent”, that is, he is prima
facie presumed to be guilty but can exculpate himself by
proving lack of knowledge, and (ii) that since no such
words as “unless he prove that the drug was in his
possession without his knowledge” are found in s. 4(1)(d)
it must be held that Parliament intended that lack of
knowledge should be no defence. In my view all that s. 17 accomplishes, still using the
same illustration, is, on proof that the package was in
his cupboard, to shift to X the onus of proving that he
did not have possession of the package. To this X would
answer: “Of course I had possession of the package, I
bought it, paid for it, carried it home and put it in my
cupboard. My defence is that I thought it contained
baking-soda. I had no idea it contained heroin.” If it be
suggested that X could not usefully make this reply if
what was found in his house was not a sealed package but
an article of the sort described in s. 11 the answer would
appear to be that many persons might not recognize an
opium lamp or an article capable of being used as part of
such a lamp. The wording of s. 17 does not appear to me to
compel the Court to construe s. 4 as the Court of Appeal
has done. It still leaves unanswered the question: Has X
possession of heroin when he has in his hand or in his
pocket or in his cupboard a package which in fact contains
heroin but which he honestly believes contains only
baking-soda? In my opinion that question must be answered
in the negative. The essence of the crime is the
possession of the forbidden substance and in a criminal
case there is in law no possession without knowledge of
the character of the forbidden substance. Just as in Regina
v. Ashwell [(1885), 16 Q.B.D. 190.] the accused did
not in law have possession of the complainant’s sovereign
so long as he honestly believed it to be a shilling so in
my illustration X did not have possession of heroin so
long as he honestly believed the package to contain
baking-soda. The words of Lord Coleridge C.J. in Regina
v. Ashwell at p. 225, quoted by Charles J.
delivering the unanimous judgment of the Court of Criminal
Appeal in Rex v. Hudson [[1943] 1 K.B. 458 at
462, [1943] 1 All E.R. 642, 29 Cr. App R. 65.]: In my view the law is correctly stated in the following
passage in the judgment of O’Halloran J.A., with whom
Robertson J.A. concurred, in Rex v. Hess [[1949]
1 W.W.R. 577 at 579, 94 C.C.C. 48 at 50-1, 8 C.R. 42.]: To constitute “possession” within the meaning of the
criminal law it is my judgment that where, as here, there
is manual handling of a thing, it must be co-existent with
knowledge of what the thing is, and both these element
must be co-existent with some act of control (outside
public duty). When those three elements exist together, I
think it must be conceded that under sec. 4(1)(d) it does
not then matter if the thing is retained for an innocent
purpose. It would, of course, be within the power of Parliament
to enact that a person who, without any guilty knowledge,
had in his physical possession a package which he honestly
believed to contain a harmless substance such as
baking-soda but which in fact contained heroin, must on
proof of such facts be convicted of a crime and sentenced
to at least 6 months’ imprisonment; but I would refuse to
impute such an intention to Parliament unless the words of
the statute were clear and admitted of no other
interpretation. To borrow the words of Lord Kenyon in Fowler
v. Padget [(1798), 7 Term Rep. 509 at 514, 101 E.R.
1103.]: … For the above reasons I would quash the conviction on
the charge of having possession of a drug. b. constructive
(i) personal R. v. Christie 1 HUGHES, C.J.N.B.:—This
is an appeal by counsel acting on the instructions of the
Attorney General of Canada against the judgment of His
Honour Judge Abbis delivered September 15, 1977,
acquitting the respondent on a charge that on or about
July 8, 1977, at the City of Fredericton she did
unlawfully have in her possession a narcotic, to wit:
Cannabis (marijuana) for the purpose of trafficking,
contrary to s. 4(2) of the Narcotic Control Act{now s.
5(2) Controlled Drugs and Substances Act}. (ii) joint R. v. Chambers The judgment of the Court delivered by The respondent opened the door in response to the
officer’s knock. She was shown the warrant which she
appeared to read. Two of the officers, Valentine and
Wretham, went upstairs and searched the front bedroom
which faces on Rhodes Avenue. The bedroom contained a
double bed and a dresser. Constable Valentine found a
plastic bag containing one hundred and four grams of
cocaine of ninety-five per cent purity on the top shelf of
an open closet, at the north end of the bedroom. The
closet contained mostly women’s clothing and the plastic
bag containing the cocaine was underneath some women’s
sweaters. A number of photographs of the respondent,
showing her modelling women’s clothing, were also found
underneath the sweaters. The dresser contained women’s
clothing and on the top of the dresser were lipstick, nail
polish and other things of that kind. Constable Wretham
also found on top of the dresser a drug debt list or a
drug price list and an empty “deck”, that is, a folded
paper used for carrying drugs, such as cocaine. Men’s
clothing was scattered at the foot of the bed, and a rack
hanger at the south end of the bedroom held men’s
clothing. The respondent’s purse containing identification
papers was found at the foot of the bed. Constable Brookes, in the meantime, had a conversation
in the living room with the respondent. Constable Brookes
asked the respondent who else lived on the premises and
she replied, “Just my roommate.” He then asked her who the
person named in the warrant was and she said that he was
her boyfriend. In response to further questions, the
respondent said that her boyfriend came from Detroit and
was visiting her, but he had not arrived home yet. She
said that he had been there for a week, that he was
staying with her and that he stored his clothes in her
bedroom. Constable Brookes asked the respondent where her
boyfriend slept, and she replied, “In my bedroom.” … From the top of the refrigerator Constable Brookes
seized a set of scales described as standard drug scales,
capable of weighing as little as two grams…. Constable
Wretham conducted a further search of the front bedroom,
and found at the south end of the bedroom a gym bag
containing men’s clothing. He found in the gym bag a
“deck” with the writing “1/2” on it containing a small
quantity of cocaine. Cardenas admitted that the gym bag
belonged to him. Mr. Justice Gray in quashing the respondent’s committal
for trial held that the occupancy of the room by the
respondent was not per se evidence of possession. He also
held that even if there was some slight evidence that the
respondent knew of the presence of the cocaine, that the
necessary measure of control over the drug was lacking…. (4) For the purposes of this Act,… The law is now settled that “consent” within s. 3(4)(b)
of the Code requires a measure of control over the subject
matter. See R. v. Terrence (1983), 4 C.C.C. (3d)
193 (S.C.C.), affirming (1980), 55 C.C.C. (2d) 183 (Ont.
C.A.). There was evidence that the room in which the drug was
found was the respondent’s room and, consequently, she
could give or withhold her consent to the drug being in
her room. [Respondent] contended, however, that … control
over the room where the cocaine was found cannot be
equated with a measure of control over the drug itself
which … imports the right to the benefit of the drug or
its proceeds. We disagree. In our view, the respondent’s
right to grant or withhold her consent to the drug being
stored in her room gave her the necessary measure of
control over the drug essential to constitute “consent”
within s. 3(4)(b) of the Code. [Respondent’s] argument, if
pressed to its logical conclusion, leads to the startling
result that a warehouseman who knowingly stores on his
premises drugs for drug traffickers is not in possession
of the drugs in his warehouse, since he has no right to
the benefit of the drugs themselves. It is helpful to examine the circumstances which gave
rise to the much-quoted judgment of Mr. Justice
O’Halloran. In R. v. Colvin and Gladue, supra,
the Crown appealed against the respondents’ acquittal on a
charge of unlawful possession of a drug, morphine. One
Harmann Singh was the tenant of a room in which he had
morphine and the respondents were visiting Singh in his
room. The magistrate found that the respondents had
knowledge of Singh’s possession of the morphine, but was
of the opinion that that evidence did not establish
“consent” within then s. 5(2) of the Code (the predecessor
of present s. 3(4)(b) of the Code) in the absence of
evidence of control. The British Columbia Court of Appeal, by a majority of
three judges to two, dismissed the Crown’s appeal from the
acquittal. Mr. Justice O’Halloran stated that if
consorting with one who is in physical possession of a
drug, or who has it in his control or has the right to its
custody is to be regarded by itself as “knowledge and
consent” sufficient to constitute joint possession then
one would expect unequivocal authority for it in the Opium
and Narcotic Drug Act (the predecessor of the Narcotic
Control Act). Mr. Justice O’Halloran then went on to say
at p. 287: The “knowledge and consent” which is an integral
element of joint possession in s. 5(2) must be related
to and read with the definition of “possession” in the
previous s. 5(1)(b). It follows that “knowledge and
consent” cannot exist without the coexistence of some
measure of control over the subject-matter. If there
is the power to consent there is equally the power to
refuse and vice versa. They each signify the existence
of some power or authority which is here called
control, without which the need for their exercise
could not arise or be invoked. The principle of
“sufficient reason” applies. For example it would be
an irrational act for A to attempt to consent to or
refuse B the use of C’s motorcar unless A has some
measure of control over it. [Emphasis added.] … The respondents in R. v. Colvin and Gladue, supra,
being mere visitors, had no power to withhold their
consent to Harmann Singh, the tenant, having the morphine
in his possession. The mere consorting with Singh knowing
that he had possession of morphine did not constitute
“consent” within s. 5(2) of the Code. In contrast, the
respondent in the present case had the power to either
consent or withhold her consent to her room being used to
store cocaine. (1) Without limiting the generality of subsection (1)
or paragraph (b) of subsection (3) of section 4, any
person who occupies, controls, or is in possession of
any building, room, vessel, vehicle, enclosure or place
in or upon which any drug is found shall be deemed to be
in possession thereof unless he proves that the drug was
there without his authority, knowledge or consent. Section 17 was held to be inapplicable where the accused
had no control over that part of the premises where the
drugs were found: R. v. Lou Hay Hung, supra.
Where s. 17 was applicable the accused was deemed to be in
possession of a drug found in premises over which he had
the necessary control unless he or she proved on a balance
of probabilities that the drug was there without his or
her authority, knowledge or consent. The fact that this
provision was not introduced into the present Act has the
effect only of requiring the prosecution on a charge of
unlawful possession to prove in the ordinary way without
the aid of a deeming provision that the accused was in
possession of the drug even though the drug is found in
premises subject to his control. The failure of Parliament
to enact in the present Act a provision similar to s. 17
does not, however, preclude a court from drawing
appropriate inferences from evidence that a prohibited
drug is found in a room under the control of an accused
where there is also evidence from which an inference may
properly be drawn that the accused was aware of the
presence of the drug. It is scarcely necessary to add that the provincial
Court judge was not trying the respondent and determining
her guilt. That, of course, was not his function. He
decided only that there was some evidence upon which a
properly instructed jury could convict. A jury might, of
course, entertain a reasonable doubt as to the
respondent’s guilt, and, indeed, additional facts might
cast a different light on the case. 4.
Presumptions R. v. Oakes DICKSON C.J.C.:—This appeal concerns the
constitutionality of s. 8 of the Narcotic Control Act,
R.S.C. 1970, c.N-1. The section provides, in brief, that
if the court finds the accused in possession of a
narcotic, he is presumed to be in possession for the
purpose of trafficking. Unless the accused can establish
the contrary, he must be convicted of trafficking. The
Ontario Court of Appeal held that this provision
constitutes a “reverse onus” clause and is
unconstitutional because it violates one of the core
values of our criminal justice system, the presumption of
innocence, now entrenched in s. 11(d) of the Canadian Charter
of Rights and Freedoms. The Crown has appealed.… The respondent, David Edwin Oakes, was charged with
unlawful possession of a narcotic for the purpose of
trafficking, contrary to s. 4(2) of the Narcotic
Control Act{now the relevant act is The
Controlled Drugs and Substances Act}. He elected
trial by magistrate without a jury. At trial, the Crown
adduced evidence to establish that Mr. Oakes was found in
possession of eight one gram vials of cannabis resin in
the form of hashish oil. Upon a further search conducted
at the police station, $619.45 was located. Mr. Oakes told
the police that he had bought 10 vials of hashish oil for
$150 for his own use, and that the $619.45 was from a
workers’ compensation cheque. He elected not to call
evidence as to possession of the narcotic. Pursuant to the
procedural provisions of s. 8 of the Narcotic Control
Act, the trial judge proceeded to make a finding
that it was beyond a reasonable doubt that Mr. Oakes was
in possession of the narcotic. Section 11(d) of the Charter constitutionally
entrenches the presumption of innocence as part of the
supreme law of Canada.… 11. Any person charged with an
offence has the right… To interpret the meaning of s. 11(d), it is important to
adopt a purposive approach. As this Court stated in R.
v. Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385
at pp. 423 4, 18 D.L.R. (4th) 321 at pp. 359-60, [1985] 1
S.C.R. 295 at p. 344: The meaning of a right or freedom guaranteed by the Charter
was to be ascertained by an analysis of the purpose of
such a guarantee; it was to be understood, in other
words, in the light of the interests it was meant to
protect. In my view, this analysis is to be undertaken, and the
purpose of the right or freedom in question is to be
sought by reference to the character and the larger
objects of the Charter itself, to the language
chosen to articulate the specific right or freedom, to the
historical origins of the concepts enshrined, and where
applicable, to the meaning and purpose of the other
specific rights and freedoms. To identify the underlying purpose of the Charter
right in question, therefore, it is important to begin by
understanding the cardinal values it embodies. The presumption of innocence has enjoyed long-standing
recognition at common law. In the leading case, Woolmington
v. Director of Public Prosecutions, [1935] A.C. 462
(H.L.), Viscount Sankey L.C. wrote at pp. 481-2: 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 what I have already said as to the
defence of insanity and subject also to any statutory
exception. If, at the end of and on the whole of the
case, there is a reasonable doubt, created by the
evidence given by either the prosecution or the
prisoner, as to whether the prisoner killed the deceased
with a malicious intention, the prosecution has not made
out the case and the prisoner is entitled to an
acquittal. No matter what the charge or where the trial,
the principle that the prosecution must prove the guilt
of the prisoner is part of the common law of England and
no attempt to whittle it down can be entertained. Subsequent Canadian cases have cited the Woolmington
principle with approval: see, for example, Manchak v.
The King (1938), 70 C.C.C. 161 at p. 167, [1938] 3
D.L.R. 693 at p. 699, [1938] S.C.R. 341 at p. 349; R.
v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d)
353 at pp. 366-7, 85 D.L.R. (3d) 161 at p. 174, [1978] 2
S.C.R. 1299 at p. 1316. Further
evidence of the widespread acceptance of the principle
of the presumption of innocence is its inclusion in the
major international human rights documents. Article
11(1) of the Universal Declaration of Human Rights,
adopted December 10, 1948, by the General Assembly of
the United Nations, provides: 11(1)
Everyone charged with a penal offence has the right to
be presumed innocent until proved guilty according to
law in a public trial at which he has had all the
guarantees necessary for his defence. In the
International Covenant on Civil and Political Rights,
1966, art. 14(2) states: 14(2)
Everyone charged with a criminal offence shall have
the right to be presumed innocent until proved guilty
according to law. Canada
acceded to this covenant, and the optional protocol
which sets up machinery for implementing the covenant,
on May 19, 1976. Both came into effect on August 19,
1976. In light of
the above, the right to be presumed innocent until
proven guilty requires that s. 11(d) have, at a minimum,
the following content. First, an individual must be
proven guilty beyond a reasonable doubt. Secondly, it is
the State which must bear the burden of proof. As Mr.
Justice Lamer stated in Dubois v. The Queen
(November 21, 1985, unreported), at p. 6 [since reported
22 C.C.C. (3d) 513 at p. 531, 23 D.L.R. (4th)
503 at pp. 521-2, [1985] 2 S.C.R. 350]: Thirdly,
criminal prosecutions must be carried out in accordance
with lawful procedures and fairness. The latter part of
s. 11(d), which requires the proof of guilt “according
to law in a fair and public hearing by an independent
and impartial tribunal”, underlines the importance of
this procedural requirement.… This review
of the authorities lays the groundwork for formulating
some general conclusions regarding reverse onus
provisions and the presumption of innocence in s. 11(d).
We can then proceed to apply these principles to the
particulars of s. 8 of the Narcotic Control Act. In general
one must, I think, conclude that a provision which
requires an accused to disprove on a balance of
probabilities the existence of a presumed fact, which is
an important element of the offence in question,
violates the presumption of innocence in s. 11(d). If an
accused bears the burden of disproving on a balance of
probabilities an essential element of an offence, it
would be possible for a conviction to occur despite the
existence of a reasonable doubt. This would arise if the
accused adduced sufficient evidence to raise a
reasonable doubt as to his or her innocence but did not
convince the jury on a balance of probabilities that the
presumed fact was untrue. The fact that
the standard is only the civil one does not render a
reverse onus clause constitutional. As Sir Rupert Cross
commented in the Rede Lectures, “The Golden Thread
of the English Criminal Law: The Burden of Proof“,
delivered in 1976 at the University of Toronto, at pp.
114: It is
sometimes said that exceptions to the Woolmington
Rule are acceptable – because, whenever the burden of
proof on any issue in a criminal case is borne by the
accused, he only has to satisfy the jury on the
balance of probabilities, whereas on issues on which
the Crown bears the burden of proof the jury must be
satisfied beyond a reasonable doubt . . . The fact
that the standard is lower when the accused bears the
burden of proof than it is when the burden of proof is
borne by the prosecution is no answer to my objection
to the existence of exceptions to the Woolmington
Rule as it does not alter the fact that a jury or
bench of magistrates may have to convict the accused
although they are far from sure of his guilt. As we have
seen, the potential for a rational connection between
the basic fact and the presumed fact to justify a
reverse onus provision has been elaborated in some of
the cases discussed above and is now known as the
“rational connection test”. In the context of s. 11(d),
however, the following question arises: if we apply the
rational connection test to the consideration of whether
s. 11(d) has been violated, are we adequately protecting
the constitutional principle of the presumption of
innocence? As Professors MacKay and Cromwell point out
in their article “Oakes: A Bold Initiative Impeded by
Old Ghosts”, 32 C.R. (3d) 221 (1983), p. 233: The
rational connection test approves a provision that
forces the trier to infer a fact that may be simply
rationally connected to the proved fact. Why does it
follow that such a provision does not offend the
constitutional right to be proved guilty beyond a
reasonable doubt? A basic fact
may rationally tend to prove a presumed fact, but not
prove its existence beyond a reasonable doubt. An
accused person could thereby be convicted despite the
presence of a reasonable doubt. This would violate the
presumption of innocence. I should add
that this questioning of the constitutionality of the
“rational connection test” as a guide to interpreting s.
11(d) does not minimize its importance. The appropriate
stage for invoking the rational connection test,
however, is under s. 1 of the Charter. This
consideration did not arise under the Canadian Bill
of Rights because of the absence of an equivalent
to s. 1. At the Court of Appeal level in the present
case, Martin J.A. sought to combine the analysis of ss.
11(d) and 1 to overcome the limitations of the Canadian
Bill of Rights jurisprudence. To my mind, it is
highly desirable to keep ss. 1 and 11(d) analytically
distinct. Separating the analysis into two components is
consistent with the approach this Court has taken to the
Charter to date: see R. v. Big M Drug Mart
Ltd. (1985), 18 C.C.C. (3d) 385, 18 D.L.R. (4th)
321, [1985] 1 S.C.R. 295; Hunter et al. v. Southam
Inc. (1984), 14 C.C.C. (3d) 97, 11 D.L.R. (4th)
641, [1984] 2 S.C.R. 145; Law Society of Upper
Canada v. Skapinker (1984), 11 C.C.C. (3d) 481, 9
D.L.R. (4th) 161, [1984] 1 S.C.R. 357. To return to
s. 8 of the Narcotic Control Act, I am in no
doubt whatsoever that it violates s. 11(d) of the Charter
by requiring the accused to prove on a balance of
probabilities that he was not in possession of the
narcotic for the purpose of trafficking. Mr. Oakes is
compelled by s. 8 to prove he is not guilty of
the offence of trafficking. He is thus denied his right
to be presumed innocent and subjected to the potential
penalty of life imprisonment unless he can rebut the
presumption. This is radically and fundamentally
inconsistent with the societal values of human dignity
and liberty which we espouse, and is directly contrary
to the presumption of innocence enshrined in s. 11(d).
Let us turn now to s. 1 of the Charter. Is s. 8 of
the Narcotic Control Act a reasonable and demonstrably
justified limit pursuant to s. 1 of the Charter?
It is
important to observe at the outset that s. 1 has two
functions: first, it constitutionally guarantees the
rights and freedoms set out in the provisions which
follow; and, secondly, it states explicitly the
exclusive justificatory criteria (outside of s. 33 of
the Charter) against which limitations on
those rights and freedoms must be measured. Accordingly,
any s. 1 inquiry must be premised on an understanding
that the impugned limit violates constitutional rights
and freedoms—rights and freedoms which are part of the
supreme law of Canada. As Madam Justice Wilson stated in
Re Singh and Minister of Employment &
Immigration and 6 other appeals (1985), 17 D.L.R.
(4th) 422 at p. 468, [1985] 1 S.C.R. 177 at
p. 218, 58 N.R. 1: “ . . . it is important to remember
that the courts are conducting this inquiry in light of
a commitment to uphold the rights and freedoms set out
in the other sections of the Charter”. A second
contextual element of interpretation of s. 1 is provided
by the words a free and democratic society”. Inclusion
of these words as the final standard of justification
for limits on rights and freedoms refers the court to
the very purpose for which the Charter was
originally entrenched in the Constitution: Canadian
society is to be free and democratic. The court must be
guided by the values and principles essential to a free
and democratic society which I believe embody, to name
but a few, respect for the inherent dignity of the human
person, commitment to social justice and equality,
accommodation of a wide variety of beliefs, respect for
cultural and group identity, and faith in social and
political institutions which enhance the participation
of individuals and groups in society. The underlying
values and principles of a free and democratic society
are the genesis of the rights and freedoms guaranteed by
the Charter and the ultimate standard against
which a limit on a right or freedom must be shown,
despite its effect, to be reasonable and demonstrably
justified. The rights
and freedoms guaranteed by the Charter are
not, however, absolute. It may become necessary to limit
rights and freedoms in circumstances where their
exercise would be inimical to the realization of
collective goals of fundamental importance. For this
reason, s. 1 provides criteria of justification for
limits on the rights and freedoms guaranteed by the Charter.
These criteria impose a stringent standard of
justification, especially when understood in terms of
the two contextual considerations discussed above,
namely, the violation of a constitutionally guaranteed
right or freedom and the fundamental principles of a
free and democratic society. The onus of
proving that a limit on a right or freedom guaranteed by
the Charter is reasonable and demonstrably
justified in a free and democratic society rests upon
the party seeking to uphold the limitation. It is clear
from the text of s. 1 that limits on the rights and
freedoms enumerated in the Charter are
exceptions to their general guarantee. The presumption
is that the rights and freedoms are guaranteed unless
the party invoking s. 1 can bring itself within the
exceptional criteria which justify their being limited.
This is further substantiated by the use of the
word “demonstrably” which clearly indicates that
the onus of justification is on the party seeking to
limit: Hunter v. Southam Inc., supra. The standard
of proof under s. 1 is the civil standard, namely, proof
by a preponderance of probability. The alternative
criminal standard, proof beyond a reasonable doubt,
would, in my view, be unduly onerous on the party
seeking to limit. Concepts such as “reasonableness”,
“justifiability” and “free and democratic society” are
simply not amenable to such a standard. Nevertheless,
the preponderance of probability test must be applied
rigorously. Indeed, the phrase “demonstrably justified”
in s. 1 of the Charter supports this
conclusion. Within the broad category of the civil
standard, there exist different degrees of probability
depending on the nature of the case: see Sopinka and
Lederman, The Law of Evidence in Civil Cases
(Toronto, 1974), p. 385. As Lord Denning explained in Bater
v. Bater, [1950] 2 All E. R. 458 at p. 459
(C.A.): This passage
was cited with approval in Hanes v. Wawanesa Mutual
Ins. Co., [1963] 1 C.C.C. 321 at p. 339, 36
D.L.R. (2d) 718 at p. 733, [1963] S.C.R. 154 at p. 161.
A similar approach was put forward by Cartwright J. in Smith
v. Smith and Smedman, [1952] 3 D.L.R. 449 at p.
463, [1952] 2 S.C.R. 312 at pp. 331-2: I wish,
however, to emphasize that in every civil action
before the tribunal can safely find the affirmative of
an issue of fact required to be proved it must be
reasonably satisfied, and that whether or not it will
be so satisfied must depend upon the totality of the
circumstances on which its judgment is formed
including the gravity of the consequences… Having regard
to the fact that s. 1 is being invoked for the purpose
of justifying a violation of the constitutional rights
and freedoms the Charter was designed to
protect, a very high degree of probability will be, in
the words of Lord Denning, “commensurate with the
occasion”. Where evidence is required in order to prove
the constituent elements of a s. 1 inquiry, and this
will generally be the case, it should be cogent and
persuasive and make clear to the court the consequences
of imposing or not imposing the limit: see Law Society
of Upper Canada v. Skapinker, supra, at p. 502
C.C.C., p. 182 D.L.R., p. 384 S.C.R.; Re Singh and
Minister of Employment & Immigration, supra,
at p. 467 D.L.R., p. 217 S.C.R. A court will also need
to know what alternative measures for implementing the
objective were available to the legislators when they
made their decisions. I should add, however, that there
may be cases where certain elements of the s. 1 analysis
are obvious or self-evident. To establish
that a limit is reasonable and demonstrably justified in
a free and democratic society, two central criteria must
be satisfied. First, the objective, which the measures
responsible for a limit on a Charter right or
freedom are designed to serve, must be “of sufficient
importance to warrant overriding a constitutionally
protected right or freedom”: R. v. Big M Drug Mart
Ltd., supra, at p. 430 C.C.C., p. 366 D.L.R., p.
352 S.C.R. The standard must be high in order to ensure
that objectives which are trivial or discordant with the
principles integral to a free and democratic society do
not gain s. 1 protection. It is necessary, at a minimum,
that an objective relate to concerns which are
pressingand substantial in a free and democratic society
before it can be characterized as sufficiently
important. Secondly,
once a sufficiently significant objective is recognized,
then the party invoking s. 1 must show that the means
chosen are reasonable and demonstrably justified. This
involves “a form of proportionality test”: R. v.
Big M Drug Mart Ltd., supra. Although the nature
of the proportionality test will vary depending on the
circumstances, in each case courts will be required to
balance the interests of society with those of
individuals and groups. There are, in my view, three
important components of a proportionality test. First,
the measures adopted must be carefully designed to
achieve the objective in question. They must not be
arbitrary, unfair or based on irrational considerations.
In short, they must be rationally connected to the
objective. Secondly, the means, even if rationally
connected to the objective in this first sense, should
impair “as little as possible” the right or freedom in
question: R. v. Big M Drug Mart Ltd., supra.
Thirdly, there must be a proportionality between the
effects of the measures which are responsible for
limiting the Charter right or freedom, and the
objective which has been identified as of “sufficient
importance”. With respect
to the third component, it is clear that the general
effect of any measure impugned under s. 1 will be the
infringement of a right or freedom guaranteed by the Charter;
this is the reason why resort to s. 1 is necessary. The
inquiry into effects must, however, go further. A wide
range of rights and freedoms are guaranteed by the Charter,
and an almost infinite number of factual situations may
arise in respect of these. Some limits on rights and
freedoms protected by the Charter will be more
serious than others in terms of the nature of the right
or freedom violated, the extent of the violation and the
degree to which the measures which impose the limit
trench upon the integral principles of a free and
democratic society. Even if an objective is of
sufficient importance, and the first two elements of the
proportionality test are satisfied, it is still possible
that, because of the severity of the deleterious effects
of a measure on individuals or groups, the measure will
not be justified by the purposes it is intended to
serve. The more severe the deleterious effects of a
measure, the more important the objective must be if the
measure is to be reasonable and demonstrably justified
in a free and democratic society. Having
outlined the general principles of s. 1 inquiry, we must
apply them to s. 8 of the Narcotic Control Act.
Is the reverse onus provision in s. 8 a reasonable limit
on the right to be presumed innocent until proven guilty
beyond a reasonable doubt as can be demonstrably
justified in a free and democratic society? The starting
point for formulating a response to this question is, as
stated above, the nature of Parliament’s interest or
objective which accounts for the passage of s. 8 of the
Narcotic Control Act. According to the Crown,
s. 8 of the Narcotic Control Act is aimed at
curbing drug trafficking by facilitating the conviction
of drug traffickers. In my opinion, Parliament’s concern
that drug trafficking be decreased can be characterized
as substantial and pressing. The problem of drug
trafficking has been increasing since the 1950’s at
which time there was already considerable concern: see Report
of the Special Committee on Traffic in Narcotic Drugs,
Appendix to Debates of the Senate, Canada, Session 1955,
pp. 690-700; see also Final Report, Commission of
Inquiry into the Non-Medical Use of Drugs
(Ottawa, 1973). Throughout this period, numerous
measures were adopted by free and democratic societies,
at both the international and national levels. At the
international level, on June 23, 1953, the Protocol
for Limiting and Regulating the Cultivation of the
Poppy Plant, the Production of, International and
Wholesale Trade in, and Use of Opium, to which
Canada is a signatory, was adopted by the United Nations
Opium Conference held in New York. The Single
Convention on Narcotic Drugs, 1961, was acceded
to in New York on March 30, 1961. This treaty was signed
by Canada on March 30, 1961. It entered into force on
December 13, 1964. As stated in the preamble, “addiction
to narcotic drugs constitutes a serious evil for the
individual and is fraught with social and economic
danger to mankind…”. At the
national level, statutory provisions have been enacted
by numerous countries which, inter alia, attempt to
deter drug trafficking by imposing criminal sanctions:
see, for example, Misuse of Drugs Act, 1975
(N.Z.), No. 116; Misuse of Drugs Act, 1971
(U.K.), c. 38. The objective
of protecting our society from the grave ills associated
with drug trafficking, is, in my view, one of sufficient
importance to warrant overriding a constitutionally
protected right or freedom in certain cases. Moreover,
the degree of seriousness of drug trafficking makes its
acknowledgement as a sufficiently important objective
for the purposes of s. 1, to a large extent,
self-evident. The first criterion of a s. 1 inquiry,
therefore, has been satisfied by the Crown. The next
stage of inquiry is a consideration of the means chosen
by Parliament to achieve its objective. The means must
be reasonable and demonstrably justified in a free and
democratic society. As outlined above, this
proportionality test should begin with a consideration
of the rationality of the provision: is the reverse onus
clause in s. 8 rationally related to the objective of
curbing drug trafficking? At a minimum, this requires
that s. 8 be internally rational; there must be a
rational connection between the basic fact of possession
and the presumed fact of possession for the purpose of
trafficking. Otherwise, the reverse onus clause could
give rise to unjustified and erroneous convictions for
drug trafficking of persons guilty only of possession of
narcotics. In my view,
s. 8 does not survive this rational connection test. As
Martin J.A. of the Ontario Court of Appeal concluded,
possession of a small or negligible quantity of
narcotics does not support the inference of trafficking.
In other words, it would be irrational to infer that a
person had an intent to traffic on the basis of his or
her possession of a very small quantity of narcotics.
The presumption required under s. 8 of the Narcotic
Control Act is overinclusive and could lead to
results in certain cases which would defy both
rationality and fairness. In light of the seriousness of
the offence in question, which carries with it the
possibility of imprisonment for life, I am further
convinced that the first component of the
proportionality test has not been satisfied by the
Crown. Having
concluded that s. 8 does not satisfy this first
component of proportionality, it is unnecessary to
consider the other two components. Conclusion
The Ontario
Court of Appeal was correct in holding that s. 8 of the
Narcotic Control Act violates the Canadian Charter
of Rights and Freedoms and is therefore of no force or
effect. Section 8 imposes a limit on the right
guaranteed by s. 11(d) of the Charter which is
not reasonable and is not demonstrably justified in a
free and democratic society for the purpose of s. 1. * * * Markus D.
Dubber, “Policing Possession: The War on Crime and the
End of Criminal Law,” 91 J. Crim. L. & Criminology
829 (2002) In the
Matter of Ronnie L. Kaplan,
Judge.
[The present juvenile delinquency petition alleges that
Respondent Ronnie L criminally possessed a loaded weapon
in violation of N.Y. Penal Law § 265.02(4) (“A person is
guilty of criminal possession of a weapon in the third
degree when: . . . (4) Such person possesses any loaded
firearm.”)]
On the
morning of February 3, 1982 Respondent was observed . .
. with Gregory P, a non-student, on the first floor of
Park West High School. Since P was considered
an intruder, both youths were taken to Mr. Jefferson’s
office in accordance with school security policy. At
that juncture, Respondent was wearing a black leather
jacket, and Gregory P was wearing a maroon sheepskin
coat.
In Mr.
Jefferson’s office, confusion arose as to which boy
owned which jacket. Gregory P’s mother advised
Mr. Jefferson that Gregory owned a black leather jacket,
and did not own a maroon sheepskin coat. This
fact was confirmed by Respondent’s testimony that he and
Gregory had switched jackets while on the fourth floor.
While the
youths were in his office, Mr. Jefferson first patted
down Gregory P, and then patted down the Respondent
about five minutes later. Mr. Jefferson
testified that as he patted down the Respondent, he felt
a hard object, and asked the Respondent to remove
whatever it was from his coat pocket. Mr.
Jefferson further testified that when he felt the hard
object, and before he removed the object from
Respondent’s pocket, Respondent said “It’s not mine, Mr.
Jefferson.” The object which Respondent removed
from his pocket was a holstered and loaded .22 caliber
pistol. Respondent’s testimony differed in
that he claimed that he did not discover that he had a
gun until he was removing it from his jacket pocket and,
out of surprise, said “It’s not mine, Mr. Jefferson.” Respondent
claimed that the petition cannot be sustained because he
was not in knowing possession of a loaded weapon.
The court
cannot accept this argument since the offense is one of
strict liability. However, even a strict
liability offense must be the result of a voluntary act.
If that fact is not established by proof beyond a
reasonable doubt the petition cannot be sustained. Penal Law
section 15.10 contains the definition of strict
liability. It provides: The minimal
requirement for criminal liability is the performance by
a person of conduct which includes a voluntary act or
the omission to perform an act which he is physically
capable of performing. If such conduct is all
that is required for commission of a particular offense,
or if an offense or some material element thereof does
not require a culpable mental state on the part of the
actor, such offense is one of “strict liability.”
If a culpable mental state on the part of the actor is
required with respect to every material element of an
offense, such offense is one of “mental culpability.” The concept
of a voluntary act is central to this definition. It
is defined by Penal Law section
15.00, subd. 2 in the following manner:
“Voluntary
act” means a bodily movement performed consciously as a
result of effort or determination, and includes the
possession of property if the actor was aware of his
physical possession or control thereof for a sufficient
period to have been able to terminate it.
A crime of
strict liability stands in contrast to one requiring a
culpable mental state. The description of the
latter is set forth in Penal Law section 15.15 subd. 1
which provides: 1. When the
commission of an offense defined in this chapter, or
some element of an offense, requires a particular
culpable mental state, such mental state is ordinarily
designated in the statute defining the offense by use
of the terms “intentionally,”“knowingly,”“recklessly”
or “criminal negligence, or by use of terms, such as
“with intent to defraud” and “knowing it to be false,”
describing a specific kind of intent or knowledge. These
culpable mental states are set out in Penal Law section
15.05. We need only concern ourselves with the
term “intentionally” which is defined as follows: “Intentionally.”
A person acts intentionally with respect to a result or
to conduct described by a statute defining an offense
when his conscious objective is to cause such result or
to engage in such conduct. We face a
conundrum when we attempt to draw a meaningful
distinction between ”voluntary act” (P.L. section
15.00 subd. 2) and, acting “intentionally” (P.L. section
15.05 subd. 1) in the context of an offense whose
gravamen is mere possession. In the first
instance the law speaks of a voluntary act as one
“consciously performed as a result of effort or
determination.” It includes possession of property
if the actor was aware of his physical possession, and
had hold of it sufficiently long to terminate that
possession. In the
second the law speaks of acting intentionally “when
one’s conscious objective is to cause a result or engage
in particular conduct.” These
definitions are substantially similar . . . . The same
volitional processes are involved in the offense of
possessing a firearm, a strict liability offense, as
would be implicated if the statute were one of mental
culpability and required that the firearm be possessed
either “intentionally” or
“knowingly”.
If conduct
necessarily involves a culpable mental state—is there
any reason not to expressly make it a material element
of the offense? * * * Nonetheless
the court concludes that there was a legislative intent
to make P.L. section 265.02 subd. 4 a strict liability
crime. Article 265 of the Penal Law deals with
firearms and other dangerous weapons. Criminal
possession of a weapon in the third degree (P.L. section
265.02), a class D felony, prohibits possession of a
loaded firearm without regard to a culpable mental
state. In contrast,
criminal possession of a weapon in the second degree
(P.L. section 265.03), a class C felony, requires that a
person possess a loaded firearm with intent to use the
same unlawfully against another. It is the
addition of a culpable mental state that distinguishes
the two offenses, makes the latter a more serious one,
and clearly establishes that the former (265.02 subd. 4)
was clearly intended to be a strict liability offense. * * * In similar
situations other Courts have considered what degree of
volition a Defendant must exhibit before he can be
convicted of a crime. . . . [I]n
People v. Davis, 112 Misc.2d 138, 446 N.Y.S.2d 159
(Crim.Ct., Bronx Co., 1981). The Court, in
ruling that P.L. section 265.05 [12] was a crime
of strict liability, stated “[t]he doing of an act such
as possession of a weapon may by statute be made
criminal per se without regard to the doer’s intent or
knowledge, but nevertheless the act of possessing must
not be involuntary as an involuntary act is not criminal.
These two concepts are not the same. They
are mutually exclusive.” 112 Misc.2d at 141. The court
credits Mr. Jefferson’s testimony, and concludes that
respondent was aware that he possessed the gun before he
started to remove it from his pocket. Respondent was
wearing the coat in which the gun was found from the
time he and P. exchanged coats on the fourth floor until
it was removed approximately five minutes after they
entered Mr. Jefferson’s first floor office. . . . The
holstered revolver is both bulky and weighty. Respondent
had navigated four flights of stairs with the gun in the
side pocket of a waist-length jacket. It is
inconceivable that he would not feel it bumping against
him as he descended the staircase, and not investigate
what was in his pocket. * * * Probation is
ordered to conduct an investigation, prepare a report
and be prepared to recommend an appropriate disposition
at Part V of the New York County Family Court… 1. Canada (per CCC) (not defined; see
case-law & commentary) 3. MPC and NY
Penal Law (see MPC § 2.02) 4. Germany (per StGB) (not defined; see
caselaw & commentary) StGB § 15.
Intentional and negligent conduct. Only
intentional conduct is punishable, unless the statutory
lawexpressly threatens negligent conduct with
punishment. StGB
(Alternative Draft) § 17. Intention. (1) He acts
intentionally whoever knowingly and wilfully causes
astatutorily proscribed harm to occur. (2) He also
acts intentionally whoever seriously considers
theaccomplishment of a crime to be possible and who
takes that intoaccount. (3) He acts
knowingly whoever knows that the circumstanceswhich the
statute requires in order to establish voluntary conduct
arepresent, or whoever foresees as certain the
occurrence of these circumstances. StGB
(Alternative Draft) § 18. Negligence. He acts
negligently whoever fails to exercise the care to which
heis obligated and of which he is capable, and who
thereby causes astatutorily proscribed harm to occur. R. v. Lewis The judgment
of the Court was delivered by DICKSON, J.:—The
appellant Lewis and one Santa Singh Tatlay were jointly
charged with the murder of Parmjeet K. Sidhu, Tatlay’s
daughter, and, under a separate count, with the murder
of Gurmail Singh Sidhu, her husband. The plot alleged by
the Crown was both novel and satanic. The instrument
which caused the deaths was an electric kettle rigged
with dynamite in such a manner as to explode when
plugged into an electric outlet. The kettle was sent to
the couple by mail. It exploded with tragic results. After a
two-week trial before Judge and jury, the two accused
were found guilty. The present appeal is brought from a
judgment of the Court of Appeal for British Columbia,
dismissing an appeal by Lewis against conviction. The
sole question upon which leave to appeal was granted by
this Court, is whether the trial Judge erred in failing
to define “motive”, and in failing to direct jury as to
that concept having regard to the fact that, relative to
the appellant, the case for the Crown was totally devoid
of such evidence. Motive
in law
In ordinary
parlance, the words “intent” and “motive” are frequently
used interchangeably, but in the criminal law they are
distinct. In most criminal trials, the mental element,
the mens rea with which the Court is
concerned, relates to “intent”, i.e., the
exercise of a free will to use particular means to
produce a particular result, rather than with “motive”,
i.e., that which precedes and induces the
exercise of the will. The mental element of a crime
ordinarily involves no reference to motive: 11 Hals.,
4th ed. (1976), p. 17, para. 11. Difficulty
arises, however, from the vagueness in law of the notion
of “motive”. There would appear to be substantial
agreement amongst textwriters that there are two
possible meanings to be ascribed to the term. Glanville
Williams in his Criminal Law: The General Part, 2nd
ed. (1961), p. 48, §21, distinguishes between these
meanings: (1) It
sometimes refers to the emotion prompting an act,
e.g., “D killed P, his wife’s lover, from a motive of
jealousy.” (2) It sometimes means a kind of intention,
e.g., “D killed P with the motive (intention, desire)
of stopping him from paying attentions to D’s wife.” It is this
second sense, according to Williams, which is employed
in criminal law: . . .
motive is ulterior intention—the intention with which
an intentional act is done (or, more clearly, the
intention with which an intentional consequence is
brought about). Intention, when distinguished from
motive, relates to the means, motive to the end . . . Smith and
Hogan in their Criminal Law, 4th ed. (1978),
p. 63, put the matter in slightly sharper perspective.
Dealing with the first of the above meanings: If D causes
an actus reus with mens rea, he is
guilty of the crime and it is entirely irrelevant to
his guilt that he had a good motive. The mother who
kills her imbecile and suffering child out of motives
of compassion is just as guilty of murder as is the
man who kills for gain. The authors
discuss also the species of intention implicit in the
second meaning above (pp. 63-4): Both of these
texts were drawn upon in a brief discussion of motive by
Lord Hailsham of St.
Marylebone in Hyam v. Director of Public
Prosecutions, [1975] A.C. 55 at pp. 73-4 (H.L.).
The appellant in that case had had a relationship with a
man who became engaged to another woman B. The appellant
had gone to B’s house at night and set fire to the
house. While B escaped, her two daughters did not and
the two died of suffocation. The appellant’s defence was
that she had only intended to frighten B. If one were to
use the first sense of motive as emotion, the
appellant’s admitted motive was jealousy of B; if the
second sense of motive as ulterior intention, her motive
was to frighten B so that she would leave the
neighbourhood. In the former sense, states Lord Hailsham
(p. 73): It is the
emotion which gives rise to the intention and it is
the latter, and not the former, which converts an actus
reus into a criminal act . . . It is,
however, important to realise that in the second sense
too motive, which in that sense is to be equated with
the ultimate “end” of a course of action, often
described as its “purpose” or “object,” although “a
kind of intention,” is not co-extensive with
intention, which embraces, in addition to the end, all
the necessary consequences of an action including the
means to the end and any consequences intended along
with the end. In the case
at bar, the parties have employed the notion of “motive”
in the second of Williams’ senses. Accepting the
term “motive” in a criminal law sense as meaning
“ulterior intention”, it is possible, I think, upon the
authorities, to formulate a number of propositions. (1) As
evidence, motive is always relevant and hence evidence
of motive is admissible. …. (2) Motive is
no part of the crime and is legally irrelevant to
criminal responsibility. It is not an essential element
of the prosecution’s case as a matter of law. … (3) Proved
absence of motive is always an important fact in favour
of the accused and ordinarily worthy of note in a charge
to the jury. … (4)
Conversely, proved presence of motive may be an
important factual ingredient in the Crown’s case,
notably on the issues of identity and intention, when
the evidence is purely circumstantial. … (5) Motive is
therefore always a question of fact and evidence and the
necessity of referring to motive in the charge to the
jury falls within the general duty of the trial Judge
“to not only outline the theories of the prosecution and
defence but to give the jury matters of evidence
essential in arriving at a just conclusion”. …. (6) Each case
will turn on its own unique set of circumstances. The
issue of motive is always a matter of degree. The necessity
of charging a jury on motive may be looked upon as a
continuum, at one end of which are cases where the
evidence as to identity of the murderer is purely
circumstantial and proof of motive on the part of the
Crown so essential that reference must be made to motive
in charging the jury…. At the other end of the
continuum, and requiring a charge on motive, is the case
where there is proved absence of motive and this may
become of great significance as a matter in favour of
the accused. Between these two end points in the
continuum there are cases where the necessity to charge
on motive depends upon the course of the trial and the
nature and probative value of the evidence adduced. In
these cases, a substantial discretion must be left to
the trial Judge…. The
present case … Applying the
propositions which I have outlined earlier, it will be
seen that motive was not proven as part of the Crown’s
case, nor was absence of motive proven by the defence.
There was, therefore, no clear obligation in law to
charge on motive. Whether or
not to charge became, therefore, a matter of judgment
for the trial Judge and his decision should not be
lightly reversed…. Counsel at
trial did not ask the Judge to instruct on motive, and
the Judge obviously felt that such instruction was not
called for, in the light of the entire trial.… In the
result, I am unable to find error on the part of the
trial Judge, and I therefore reach the same conclusion
as the Court of Appeal of British Columbia. I would,
accordingly, dismiss the appeal. R. v.
Dunbar HUDSON, J.:—This is an
appeal from a judgment of the British Columbia Court of
Appeal which by a majority of three to one dismissed an
appeal from a conviction of the appellant for murder.… The facts not
open to controversy are as follows:— On January
15, 1936, three men entered and robbed a branch of the
Canadian Bank of Commerce in Vancouver and in the course
of the robbery the teller was fatally shot. The
appellant Dunbar was not among those who entered the
bank but he had brought the robbers to the bank in an
automobile and after the robbery was over drove back for
them and took them away to the house where they had all
been living together. He subsequently shared with them
in the proceeds of the robbery. He had a criminal
record, had met one or other of the robbers in the
penitentiary and had been living with them in the same
house for some days prior to the robbery. He knew when
driving the car to the bank that his associates were
going there with the purpose of robbing the bank that
these men were armed and that in the course of such
robbery it was not improbable that someone might be
killed. His sole excuse for his conduct was that he had
acted under compulsion as one of his associates had
threatened his life unless he accompanied them and had
further threatened that if he did anything to betray
them that he would be killed. The point of alleged
misdirection most stressed by counsel for the prisoner
before us was a statement as follows:— Section 20 of
the Criminal Code {now s. 17}, dealing with
compulsion, excludes murder and robbery and therefore is
inapplicable to this case, but it was argued that if
compulsion were shown it might be sufficient to negative
any common intention under the provision of s. 69(2)
{now s. 21(2)} of the Code. It seems to me
that this argument fails to recognize the distinction
between intention and the motive giving rise to
intention. If Dunbar’s
story of the threat to him was true then he was faced
with a choice between endangering his own life or
assisting those about to commit a robbery which might,
as he knew, be accompanied by murder of an innocent
person. The motive giving rise to his choice between
these two courses is irrelevant. This being so, in my
opinion the issue was not unfairly put before the jury
in the learned trial Judge’s charge. I would, therefore,
dismiss the appeal. CROCKET, J.
(dissenting):— …Whatever the
true construction of s. 20 may be in this regard, I am
of opinion that the exclusion by it of robbery as one of
the offences for which compulsion is an excuse, does not
necessarily exclude compulsion as an element for
consideration upon the question of the formation by
several persons of “a common intention to prosecute any
unlawful purpose” under s. 69(2), notwithstanding such
unlawful purpose may be robbery. If Dunbar’s evidence be
true, it presents the case of three persons, who have
formed a common intention to rob a bank, forcing a
fourth at the point of a gun to get into a stolen car
and drive them to the immediate vicinity of the bank to
carry out their purpose. Can the fourth in these
circumstances, if there were nothing more, properly be
held to have formed a common intention with the other
three within the meaning of s. 69(2)? I do not think so.
The proof of such a fact, it seems to me, if there were
nothing else to connect an accused person with the
robbery, must be taken to negative the formation of “a
common intention” on the part of the fourth with the
other three to commit that offence as well as to
negative the requisite mens rea. [Sir Lyman P.
Duff C.J.C. and Rinfret, Davis, and Kerwin JJ. concurred
with Hudson J.] Appeal
dismissed. R. v.
Paquette MARTLAND,
J.:—The facts
which give rise to this appeal are as follows: During the
course of a robbery at the Pop Shoppe, in the City of
Ottawa, on March 18, 1973, an innocent bystander was
killed by a bullet from a rifle fired by one Simard. The
robbery was committed by Simard and one Clermont, both
of whom, together with the appellant, were jointly
charged with non-capital murder. Simard and Clermont
pleaded guilty to this charge. The appellant
was not present when the robbery was comitted or when
the shooting occurred. The charge against him was
founded upon s. 21(2) of the Criminal Code. Section
21 provides as follows: 21.(1) Every
one is a party to an offence who (a)
actually commits it (2) Where
two or more persons form an intention in common to
carry out an unlawful purpose and to assist each other
therein and any one of them, in carrying out the
common purpose, commits an offence, each of them who
knew or ought to have known that the commission of the
offence would be a probable consequence of carrying
out the common purpose is a party to that offence. The appellant
made a statement to the police, which was admitted in
evidence at the trial and which described his
involvement in the matter as follows: On the day of the
robbery Clermont telephoned the appellant for a ride as
his own car was broken. Clermont asked the appellant
where he used to work and was told at the Pop Shoppe.
Clermont told him to drive to the Pop Shoppe because
Clermont wanted to rob it, and, when the appellant
refused, Clermont pulled his gun and threatened to kill
him. Simard was picked up later and also a rifle. The
appellant drove them to the Pop Shoppe. The appellant
had been threatened with revenge if he did not wait for
Clermont and Simard. The appellant, in his statement,
stated he was afraid and drove around the block. After
the robbery and homicide Clermont and Simard attempted
twice, unsuccessfully, to get into the appellant’s car.
Three of the Crown’s witnesses supported this latter
statement. The appellant
did not testify at trial but relied on the above
statement and two other statements also introduced at
the trial by the Crown to support his argument that he
had no intention in common with Simard and Clermont to
carry out the robbery; i.e.: The trial
Judge charged the jury as follows: Now, the
defence are asserting that Paquette participated in
this robbery because he was compelled to do so, and in
that connection I charge you that if Paquette joined
in the common plot to rob the Pop Shoppe under threats
of death or grievous bodily harm, that would negative
his having a common intention with Simard to rob the
Pop Shoppe, and you must find Paquette not guilty. The appellant
was acquitted. The Crown appealed to the Court of Appeal
for Ontario [19 C.C.C. (2d) 154, 5 O.R. (2d) 1]. The
reasons delivered by that Court make it clear that the
appeal would have been dismissed had it not been for the
decision of this Court in Dunbar v. The King (1936),67
C.C.C. 20, [1936] 4 D.L.R.
737…
In my opinion
the application of s. 17 is limited to cases in which
the person seeking to rely upon it has himself committed
an offence. If a person who actually commits the offence
does so in the presence of another party who has
compelled him to do the act by threats of immediate
death or grievous bodily harm, then, if he believes the
threats would be carried out, and is not a party to a
conspiracy whereby he is subject to such compulsion, he
is excused for committing the offence. The protection
afforded by this section is not given in respect of the
offences listed at the end of the section, which include
murder and robbery…. The appellant
could only be considered to be a party to the murder on
the basis of the application of s. 21(2)…. Subsection
(2) is only applicable if it is established that the
appellant, in common with Simard and Clermont, formed an
intention to commit robbery. The question in issue is as
to whether the trial Judge erred in law in telling the
jury that if the appellant joined in the plot to rob
under threats of death or of grievous bodily harm, this
would negative such common intention.
I have
already stated my reasons for considering s. 17 to be
inapplicable. That being so, the appellant is entitled,
by virtue of s. 7 (3) {s. 8(3)}of the Code to
rely upon any excuse or defence available to him at
common law. The defence of duress to a charge of murder
against a person who did not commit the murder, but who
was alleged to have aided and abetted, was recently
considered by the House of Lords in Director of
Public Prosecutions for Northern Ireland v. Lynch, [1975]
A.C. 653.… [There] Lord
Wilberforce, at pp. 682-3, cited with approval a passage
from the dissenting reasons of Bray, C.J., in R. v.
Broom and Morley, [1968] S.A.S.R. 467 at p. 494: “The
reasoning generally used to support the proposition
that duress is no defence to a charge of murder is, to
use the words of Blackstone cited above, that ‘he
ought rather to die himself, than escape by the murder
of an innocent.’ Generally speaking I am prepared to
accept this proposition. Its force is obviously
considerably less where the act of the threatened man
is not the direct act of killing but only the
rendering of some minor form of assistance,
particularly when it is by no means certain that if he
refuses the death of the victim will be averted, or
conversely when it is by no means certain that if he
complies the death will be a necessary consequence. It
would seem hard, for example, if an innocent passer-by
seized in the street by a gang of criminals visibly
engaged in robbery and murder in a shop and compelled
at the point of a gun to issue misleading comments to
the public, or an innocent driver compelled at
the point of a gun to convey the murderer to the
victim were to have no defence. Are there any
authorities which compel us to hold that he would
not?” I am in
agreement with the conclusion reached by the majority
that it was open to Lynch, in the circumstances of that
case, to rely on the defence of duress, which had not
been put to the jury. If the defence of duress can be
available to a person who has aided and abetted in the
commission of murder, then clearly it should be
available to a person who is sought to be made a party
to the offence by virtue of s. 21(2). A person whose
actions have been dictated by fear of death or of
grievous bodily injury cannot be said to have formed a
genuine common intention to carry out an unlawful
purpose with the person who has threatened him with
those consequences if he fails to co-operate. The Dunbar
case could be distinguished from the present case
on its facts. The accused, in that case, had been living
with the persons who committed the robbery in which the
shooting occurred. He drove them to and from the scene
of the crime and shared with them in the proceeds of the
robbery. However, the decision is based upon the
proposition that on a charge of murder founded on the
operation of what is now s. 21(2) of the Code, duress
does not negative the intention of the accused to carry
out an unlawful purpose in common with others, but only
relates to his motive for joining in that common
purpose, which is irrelevant to the issue of his guilt.
I am not in agreement with this view and I am of the
opinion that it should not be followed. I would allow
the appeal, set aside the judgment of the Court of
Appeal, and restore the verdict of acquittal. Appeal
allowed. R. v.
Buzzanga The judgment
of the Court was delivered by 1 MARTIN,
J.A.:—The
appellants, Robert Buzzanga and Jean Wilfred Durocher,
after a trial at Windsor before His Honour Judge J. P.
McMahon, sitting without a jury, were convicted on an
indictment charging them with wilfully promoting hatred
against an identifiable group, namely, the French
Canadian public in Essex County by communicating on or
about January 12, 1977, at Windsor, statements contained
in copies of a handbill entitled “Wake Up Canadians Your
Future Is At Stake!”, contrary to s. 281.2(2) [enacted
R.S.C. 1970, c. 11 (1st Supp.), s. 1] {now s. 319(2)} of
the Criminal Code. 2 Following
the conviction of the appellants, the learned trial
Judge suspended the passing of sentence and directed
that they be released on probation for a period of two
years. The appellants now appeal against their
convictions and the appellant Durocher also appeals, in
the alternative, against the sentence imposed upon him,
on the ground that the learned trial Judge erred in not
granting him a conditional or absolute discharge. 3 This
case is somewhat incongruous in that the appellants
identify with French-speaking Canadians against whom
they are alleged to have wilfully promoted hatred. The
factual background 4 The
appellant Durocher was born in Windsor, and is
bilingual. His early education was received in a
French-language public school, a bilingual high school
and a French oblate seminary. He attended the University
of Windsor for three years where he formed a bilingual
theatre group which produced plays designed to show the
harmony between the official languages of Canada. He was
subsequently employed by the Essex County Board of
Education and taught French. In August, 1976, he
commenced to work for the Association Canadian Francais
de L’Ontario (hereafter, LACFO), an organization funded
by the Secretary of State. His role in that
organization, as he perceived it, was to stimulate and
assist the French-speaking community of Essex County
with respect to political, social and cultural matters,
and in particular, in relation to the issue of the
construction of a French-language secondary school. 5 The
appellant Buzzanga was born of Italian parents in Egypt
where he learned the French language. He said he went to
France, but did not “fit in” and immigrated to Canada
where he felt that he could achieve a sense of personal
identity. He testified that he embraced the culture of
the French Canadian people and identified himself with
their aspirations for preserving their culture. He
completed his education in Quebec and took courses at
Laval University leading to a degree in French
literature, but did not obtain a degree. He was employed
for a time by the Canadian Broadcasting Corporation, and
afterwards as a teacher at St. Bernard’s school in
Amherstberg. He became a director of LACFO in 1972. 6 There
had been a movement for some time for the construction
in Essex County of a French-language high school. The
appellant Durocher testified that there had been an
agreement between the Ministry of Education and the
Essex County School Board for the construction of a
French-language high school, under the terms of which
the Essex County Board of Education received a grant of
$500,000 to renovate two English-language schools and
the Ministry of Education agreed to pay 95% of the cost
of constructing a French-language high school. He
testified that the Ministry subsequently reduced the
grant rate from 95% to 77% of the cost of the proposed
French-language high school, and the board decided not
to build the school, although it had received and spent
the grant to renovate the two English-language schools. 7 Eventually,
the Essex County Board of Education was required by the
Essex County French-language Secondary School Act, 1977
(Ont.), c. 5, to construct the school. In the meantime,
however, the French-speaking community, according to the
testimony of the appellant Durocher, was “quite upset”
by the position taken by the board of education. 8 There
was a great deal of opposition, not entirely confined to
the English-speaking community of Essex County, to the
construction of the French-language high school. One of
the strongest opponents of the construction of the high
school was the Essex County Ratepayers Association, the
chairman of which was Wilfred Fortowsky. 9 There
was to be an election in the month of December, 1976, of
members for the Essex County Board of Education. An
action committee was formed by LACFO which set up an
election office to inform the Francophone community of
the stand taken by school-board candidates on the high
school issue. The action committee compiled a list of
the candidates whom they endorsed, but most of the
candidates rejected the endorsement. 10 The
list itself became an issue in the election and the
appellant Durocher was accused of being an outside
agitator sent in to stir up trouble in the francophone
community of Essex County. The appellants were angered
by the issue created by the action committee’s
endorsement of a list of candidates, and by the
candidates’ rejection of the endorsement. They were, of
course, disappointed when the majority of candidates
elected to the school board were persons who opposed the
construction of the French-language high school. 11 After
the election, the appellant Durocher began to organize a
dinner-dance that “was designed as a political evening
to engender protest against the treatment of
Francophones and to put pressure on the government and
the school board to react favourably to the school
issue”. 12 On
January 5, 1977, Durocher issued a press release which
read: The Essex
County Action Committee for a French-language high
school On January
29, 1977, approximately 1000 French-speaking ratepayers
of Essex County and the Province of Ontario will
assemble at 6 PM at Windsor’s Cleary auditorium for a
festive dinner-dance. What have we to celebrate? It was
65 years ago that the Provincial Government passed the
infamous “Regulation 17” which forbade the teaching of
the French language in Ontario. Today the same principle
holds true in Essex County re the teaching of that
language on the secondary level. We will celebrate 65
years of injustice. It was 8 years ago that the
Francophones of Essex County actively began to fight for
a French-language high school. We will celebrate 8 years
of struggle. It has been 2 years since the Provincial
Government has guaranteed the grants to cover
construction of said school. We will celebrate 2 years
of promises. It has been 1 year since the Essex Board of
Education broke its promise to build said school after
having spent the 1/2 million dollar “conditional grant”
given them by the Provincial Government to secure that
promise. We will celebrate 1 year of treachery. It was
Lord Durham who said that the French-Canadians were a
people without history & without culture and that
they should & would be assimilated. It was a local
Essex County politician who said last year that the
Francophones of Essex County should accept assimilation
and that our tax dollars should not be spent to prevent
it. We will celebrate the perpetuation of racism and
bigotry in Canadian history. But we will also act. On
January 29, 1977, the Action Committee For A
French-Language High School will exhort its fellow
compatriots to take action, to no longer tolerate their
status of second-class citizens, to openly and publicly
condemn those “Canadians” who deny us our rights and
thereby undermine the very foundations of our country
and place its future in jeopardy. We invite all
English-speaking medias of Ontario and Canada to come
and cover this event at the Cleary Auditorium, to learn
something of Canadian history and to witness the
celebration of people who will not accept cultural and
linguistic genocide. Jean W. Durocher Spokesman, Essex
County Action Committee For A French-Language High
School. At about the
same time, the appellants began preparing for
dissemination the following document, the distribution
of which is the subject of the charge: WAKE UP
CANADIANS YOUR
FUTURE IS AT STAKE! IT IS YOUR
TAX DOLLARS THAT SUBSIDIZE THE ACTIVITIES OF THE FRENCH
MINORITY OF ESSEX COUNTY. DID YOU KNOW
THAT THE ASSOCIATION CANADIAN FRANCAIS DE L’ONTARIO HAS
INVESTED SEVERAL HUNDREDS OF THOUSANDS OF DOLLARS OF
YOUR TAX MONEY IN QUEBEC? AND THAT NOW
THEY ARE STILL DEMANDING 5 MILLION MORE OF YOUR TAX
DOLLARS TO BUILD A FRENCH LANGUAGE HIGH SCHOOL? YOU ARE
SUBSIDIZING SEPARATISM WHETHER IN QUEBEC OR ESSEX
COUNTY. DID YOU KNOW
THAT THOSE OF THE FRENCH MINORITY WHO SUPPORT THE
BUILDING OF THE FRENCH LANGUAGE HIGH SCHOOL ARE IN FACT
A SUBVERSIVE GROUP AND THAT MOST FRENCH CANADIANS OF
ESSEX COUNTY ARE OPPOSED TO THE BUILDING OF THAT SCHOOL? WHO WILL RID
US OF THIS SUBVERSIVE GROUP IF NOT OURSELVES? IF WE GIVE
THEM A SCHOOL, WHAT WILL THEY DEMAND NEXT ...
INDEPENDENT CITY STATES? CONSIDER THE ETHNIC PROBLEM OF
THE UNITED STATES AND TAKE HEED. WE MUST STAMP
OUT THE SUBVERSIVE ELEMENT WHICH USES HISTORYTO JUSTIFY
ITS FREELOADING ON THE TAXPAYERS OF CANADA, NOW. THE BRITISH
SOLVED THIS PROBLEM ONCE BEFORE WITH THE ACADIANS, WHAT
ARE WE WAITING FOR ...? 13 The
statement was composed by the appellant Durocher whose
facility with the English language was greater than that
of Buzzanga. 14 The
appellant Durocher testified that the francophone
community seemed to be “fed up” with the issue of the
French-language high school and was becoming apathetic.
He said that although economics was the stated reason
for not building the school, this was merely an excuse
and the real reason was prejudice. The appellant
Buzzanga shared Durocher’s feeling in this respect. 15 Both
appellants testified as to their purpose in preparing
and distributing the pamphlet. The appellant Durocher
testified that his purpose was to show the prejudice
directed towards French Canadians and expose the truth
about the real problem that existed with respect to the
French-language school. He said that the statement was
largely composed from written material he had seen and
from experiences he had had, although the paragraph:
“WHO WILL RID US OF THIS SUBVERSIVE GROUP, IF NOT
OURSELVES?” was pure theatrics and has its origin in the
quotation “Who will rid me of this meddlesome priest”,
attributed to Henry II. He testified in some detail as
to the origin of various parts of the document and
endeavoured to show that it reflected statements
contained in such sources as letters to the editor of
the Windsor Star, a document alleged to have been
circulated by a member of the Essex County Ratepayers
Association, a paid advertisement published in several
newspapers, a book entitled “Bilingual Today, French
Tomorrow”, and the like. He said that he thought the
pamphlet would be a catalyst that would bring a quick
solution to the problem of the French-language school by
provoking a Government reaction and thereby put pressure
on the school board. He thought that by stating these
things people would say: “This is ridiculous.” A fair
reading of his evidence is that he did not want to
promote hatred against the ‘‘French people”, for to do
so would be to promote hatred against himself. 16 The
appellant Buzzanga, too, said that he wanted to expose
the situation, to show the things that were being said
so that intelligent people could see how ridiculous they
were. The pamphlet was intended as a satire. He wanted
to create a furor that would reach the “House of
Commons” and compel the Government to do something that
would compel the opposing factions on the school
question to reopen communications. He said it was not
his intention “to raise hatred towards anyone”. 17 The
appellant Buzzanga arranged for the printing and
distribution of the document. He placed the order for
the printing of the document in the name of Wilfred
Fortowsky, the president of the Essex County Ratepayers
Association, but asked the printer to delete the name of
Mr. Fortowsky when he picked up the material, leaving,
however, the name of the Essex County Ratepayers
Association on the order form. Neither Mr. Fortowsky nor
the Essex County Ratepayers Association were, of course,
aware that their names had been so used. 18 The
appellant Buzzanga procured two 16-year-old boys, Martin
Foley and Kevin Seguin, to distribute the handbills.
Martin Foley testified that the appellants picked up
Seguin and him in Buzzanga’s car and drove them around
while he and Seguin distributed the handbills. The
appellants told them not to say anything about it and
not to let anyone see them delivering the handbills. The
handbills were distributed in apartment buildings,
office buildings, a church and at the University of
Windsor; the remainder were thrown in a snow bank at the
Essex County Education Centre. 19 Apparently,
the two youths were later questioned by Kevin Seguin’s
mother about their involvement and, a day or two later,
Martin Foley called the appellant Buzzanga and asked him
if the papers that he and Kevin Seguin had distributed
were “French hate literature papers”. He testified that
the appellant Buzzanga said: “Don’t say anything or I’ll
kill you, and tell Kevin that too.” He later met both
the appellants who were angry because they thought Kevin
had told his mother, and he testified that the appellant
Buzzanga said that if Kevin were there he would “run him
over”. The appellant Buzzanga denied making these
statements but, in any event, it is clear that these
extravagant statements, if made by the appellant
Buzzanga, were neither intended nor understood by Foley
to be serious threats to harm him or Kevin Seguin. The
appellants then obtained some other documents for Foley
to give to Mrs. Seguin to convince her that the youths
were not involved in the distribution of the pamphlets
which form the basis of the charge. Foley gave the
papers, with which he had been supplied by the
appellants, to Mr. Seguin but afterwards told him the
truth. 20 The
appellants testified that it had been their intention to
come forward and acknowledge the authorship of the
pamphlet but when the police investigation commenced
they remained silent as a result of legal advice. 21 Father
Claude Vincent of the Department of Sociology of the
University of Windsor, a witness of eminent
qualifications, testified that all persons belong to an
ethnic group. He said that the Canadian Government
Census assumes the existence of ethnic groups and that
for census purposes a person’s ethnic group is traced
through the father. He testified that the term French
Canadian represents the type of ethnic group. It has a
distinct sense of identity, distinct sense of history, a
common culture, a continuing tradition and, above all
else, a consciousness of kind. He said that there is an
identifiable French Canadian culture or community in
Essex County. Within the term “culture” are subsumed the
ideas of language, religion and history. He said that
the more opposition there is to a particular group, the
stronger the “in-group” solidarity becomes. It is, I
think, clear that one of the purposes of the appellants
in preparing and distributing the pamphlet was to
“rally” the French-speaking community on the
French-language secondary school issue. 22 Although
additional grounds of appeal were advanced, only the
following grounds of appeal require discussion. The
first and principal ground of appeal was that the
learned trial Judge misdirected himself with respect to
the meaning of the word “wilfully” in the expression
“wilfully promotes hatred” in s. 281.2(2) of the Code by
holding that “wilfully” meant intentionally as opposed
to accidentally. 23 The
following are the relevant provisions of the Code: 281.1(1) {now s.
318} Every one who advocates or promotes genocide is
guilty of an indictable offence and is liable to
imprisonment for five years. (2) In this
section “genocide” means any of the following acts
committed with intent to destroy in whole or in part any
identifiable group, namely: (a) killing
members of the group, or (b)
deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction. (3) No
proceeding for an offence under this section shall be
instituted without the consent of the Attorney General (4) In this
section “identifiable group” means any section of the
public distinguished by colour, race, religion or ethnic
origin. [enacted idem] 281.2(1) Every one
who, by communicating statements in any public place,
incites hatred against any identifiable group where such
incitement is likely to lead to a breach of the peace,
is guilty of (a) an
indictable offence and is liable to imprisonment for two
years; or (b) an
offence punishable on summary conviction. (2) Every one
who, by communicating statements, other than in private
conversation, wilfully promotes hatred against any
identifiable group is guilty of (a) an
indictable offence and is liable to imprisonment for two
years; or (b) an
offence punishable on summary conviction. (3) No person
shall be convicted of an offence under subsection (2) (a) if he
establishes that the statements communicated were true; (b) if, in
good faith, he expressed or attempted to establish by
argument an opinion upon a religious subject; (c) if the
statements were relevant to any subject of public
interest, the discussion of which was for the public
benefit, and if on reasonable grounds he believed them
to be true; or (d) if, in
good faith, he intended to point out, for the purpose of
removal, matters producing or tending to produce
feelings of hatred towards an identifiable group in
Canada. (4) Where a
person is convicted of an offence under section 281.1 or
subsection (1) or (2) of this section, anything by means
of or in relation to which the offence was committed,
upon such conviction, may, in addition to any other
punishment imposed, be ordered by the presiding
magistrate or judge to be forfeited to Her Majesty in
right of the province in which that person is convicted,
for disposal as the Attorney General may direct. (5)
Subsections 181(6) and (7) apply mutatis mutandis to
section 281.1 or subsection (1) or (2) of this section. (6) No
proceeding for an offence under subsection (2) shall be
instituted without the consent of the Attorney General. (7) In this
section “communicating”
includes communicating by telephone, broadcasting or
other audible or visible means; “identifiable
group” has the same meaning as it has in section 281.1; “public
place” includes any place to which the public have
access as of right or by invitation, express or implied; “statements”
includes words spoken or written or recorded
electronically or electromagnetically or otherwise, and
gestures, signs or other visible representations. 24 The
threshold question to be determined is the meaning of
“wilfully” in the term “wilfully promotes hatred” in s.
281.2(2) of the Criminal Code. It will, of course, be
observed that the word “wilfully” modifies the words
“promotes hatred”, rather than the words “communicating
statements”. 25 The
word “wilfully” has not been uniformly interpreted and
its meaning to some extent depends upon the context in
which it is used. Its primary meaning is
“intentionally”, but it is also used to mean
“recklessly”: see Glanville Williams, Criminal Law,
The General Part, 2nd ed. (1961), pp. 51-2;
Glanville Williams, Textbook of Criminal Law (1978), p.
87; Smith and Hogan, Criminal Law, 4th ed.
(1978), pp. 104-5. The term “recklessly” is here used to
denote the subjective state of mind of a person who
foresees that his conduct may cause the prohibited
result but, nevertheless, takes a deliberate and
unjustifiable risk of bringing it about: see Glanville
Williams, Textbook of Criminal Law, pp. 70 and
76; Smith and Hogan, Criminal Law, 4th ed.,
pp. 52-3. 26 The
word “wilfully” has, however, also been held to mean no
more than that the accused’s act is done intentionally
and not accidentally. In R. v. Senior, [1899]
1 Q.B. 283, Lord Russell of Killowen, C.J., in
interpreting the meaning of the words “wilfully
neglects” in s. 1 of the Prevention of Cruelty to
Children Act, 1894 (U.K.), c. 41, said at pp. 290-1:
“‘Wilfully’ means that the act is done deliberately and
intentionally, not by accident or inadvertence, but so
that the mind of the person who does the act goes with
it.” 27 On
the other hand, in Rice v. Connolly, [1966] 2
Q.B. 414, where the accused was charged with wilfully
obstructing a constable in the execution of his duty,
Lord Parker, L.C.J., said at p. 419: “‘Wilful’ in this
context not only in my judgment means ‘intentional’ but
something which is done without lawful excuse ... “. 28 In
Willmott v. Atack, [1976] 3 All E.R. 794, the
appellant was convicted on a charge of wilfully
obstructing a peace officer in the execution of his
duty. A police officer, acting in the execution of his
duty, arrested a motorist who struggled and resisted.
The appellant, who knew the motorist, intervened with
the intention of assisting the officer but, in fact, his
conduct obstructed the officer. The Queen’s Bench
Divisional Court quashed the conviction and held that it
was not sufficient to prove the appellant intended to do
what he did, and which resulted in an obstruction, but
that the prosecution must prove that the appellant
intended to obstruct the officer. 29 The
judgment of the Court of Criminal Appeal of Queensland
in R. v. Burnell, [1966] Qd. R. 348, also
illustrates that, depending on its context, the word
‘‘wilfully” may connote an intention to bring about a
proscribed consequence. In that case the appellant was
charged with arson in having set fire to a shed. Section
461 of the Queensland Criminal Code provides that “...
any person who wilfully and unlawfully sets fire to ...
any building or structure is guilty of a crime ...”. The
accused had deliberately set fire to some mattresses in
a shed whereby the shed was set on fire. The trial Judge
instructed the jury that “wilfully” connoted no more
than a willed and voluntary act as distinguished from
the result of an accident or mere negligence. The
Queensland Court of Criminal Appeal, in setting aside
the conviction, held that in the context of the section
“wilfully” required proof that the accused did an act
which resulted in setting fire to the building with the
intention of bringing about that result. Gibbs, J. (with
whom Douglas, J., concurred), said at p. 356: Under s. 461
it is not enough that the accused did the act which
resulted in setting fire to the building foreseeing that
his act might have that effect but recklessly taking the
risk; it is necessary that the accused did the act which
resulted in setting fire to the building with the
intention of bringing about that result. Mr. Manning
conceded that in some cases the element of wilfulness is
supplied by recklessness but he contended that in its
context in s. 281.2(2) of the Criminal Code “wilfully”
means with the intention of promoting hatred. In the
course of his argument, Mr. Manning stressed the
definition of “wilfully” contained in s. 386(1) {now s.
429(1)} of the Code, which reads: 386(1) Every
one who causes the occurrence of an event by doing an
act or by omitting to do an act that it is his duty to
do, knowing that the act or omission will probably cause
the occurrence of the event and being reckless whether
the event occurs or not, shall be deemed, for the
purposes of this Part, wilfully to have caused the
occurrence of the event. 30 Mr.
Manning emphasized that s. 386(1) provides that wilfully
is to have the meaning specified in that section for the
purposes of Part IX of the Code. He argued with much
force that the state of mind specified in s. 386(1) is
recklessness and that where Parliament intends to extend
the meaning of wilfully to include recklessness it does
so expressly. In R. v. Rese, [1968] 1 C.C.C.
363 at p. 366, [1967] 2 O.R. 451 at p. 454, 2 C.R.N.S.
99, Laskin J.A. (as he then was), referred to the
definition now contained in s. 386(1) as an extended
meaning of “wilfully”. 31 As
previously indicated, the word “wilfully” does not have
a fixed meaning, but I am satisfied that in the context
of s. 281.2(2) it means with the intention of promoting
hatred, and does not include recklessness. The
arrangement of the legislation proscribing the
incitement of hatred, in my view, leads to that
conclusion. 32 Section
281.2(1), unlike s. 281.2(2), is restricted to the
incitement of hatred by communicating statements in a
public place where such incitement is likely to lead to
a breach of the peace. Although no mental element is
expressly mentioned in s. 281.2(1), where the
communication poses an immediate threat to public order,
mens rea is, none the less, required since the inclusion
of an offence in the Criminal Code must be taken to
import mens rea in the absence of a clear intention to
dispense with it: see R. v. Prue; R. v. Baril
(1979), 46 C.C.C. (2d) 257 at pp. 260-1, 96 D.L.R. 577
at pp. 580-1, 8 C.R. (3d) 68 at p. 73. The general mens
rea which is required and which suffices for most crimes
where no mental element is mentioned in the definition
of the crime, is either the intentional or reckless
bringing about of the result which the law, in creating
the offence, seeks to prevent and, hence, under s.
281.2(1) is either the intentional or reckless inciting
of hatred in the specified circumstances. 33 The
insertion of the word “wilfully” in s. 281.2(2) was not
necessary to import mens rea since that requirement
would be implied in any event because of the serious
nature of the offence: see R. v. Prue, supra.
The statements, the communication of which are
proscribed by s. 281.2(2), are not confined to
statements communicated in a public place in
circumstances likely to lead to a breach of the peace
and they, consequently, do not pose such an immediate
threat to public order as those falling under s.
281.2(1); it is reasonable to assume, therefore, that
Parliament intended to limit the offence under s.
281.2(2) to the intentional promotion of hatred. It is
evident that the use of the word “wilfully” in s.
281.2(2), and not in s. 281.2(1), reflects Parliament’s
policy to strike a balance in protecting the competing
social interests of freedom of expression on the one
hand, and public order and group reputation on the other
hand. 34 The
recent judgment of the House of Lords in R. v.
Lemon; R. v. Gay News Ltd., [1979] 1 All E.R.
898, in my view, is not relevant to the interpretation
of s. 281.2(2). In that case, the appellants, the editor
and publisher of a newspaper for homosexuals, were
convicted of publishing a blasphemous libel in
publishing a poem accompanied by a drawing ascribing to
Christ homosexual practices. 35 The
House of Lords, by a majority, held that the mental
element of the offence of publishing a blasphemous libel
was satisfied by proof of an intention to publish matter
which, in fact, is likely to shock and outrage the
feelings of believing Christians, and that it is
unnecessary to prove, in addition, that in publishing
the blasphemous material the accused intended to produce
that effect. Lord Scarman, who shared the majority view,
referred to the charge to the jury by Lord Denman, C.J.,
in R. v. Hetherington (1841), 4 State Tr. N.S.
563 at p. 593, where he told the jury that the only
question for them to decide was whether in their opinion
the publication in question was blasphemous and whether
the defendant “issued it knowingly and wilfully”, and
then said of this passage: “In context his adverb
‘wilfully’ meant no more than ‘deliberately’“ (at p.
926). 36 Lord
Diplock and Lord Edmund-Davies, however, were of the
view that the subjective intention to insult or outrage,
or recklessness in producing that result, must be
brought home to the accused. 37 The
divergence of opinion between the majority and the
minority reflects different views as to the elements of
the offence of publishing a blasphemous libel, and does
not assist in the interpretation of s. 281.2(2) of the
Criminal Code. 38 The
majority, as previously indicated, were of the view that
the only mental element required to be proved in a
prosecution for publishing a blasphemous libel is the
intent to knowingly publish the words which are, in
fact, blasphemous. Thus, that offence consists in the
“wilful” publication of the blasphemous matter. On the
other hand, the offence created by s. 281.2(2) is not
committed by “wilfully” communicating statements which
promote hatred, but by “wilfully” promoting hatred by
communicating statements. 39 Having
concluded that proof of an intention to promote hatred
is essential to constitute the offence under s.
281.2(2), it is necessary to consider the mental
attitude which must be established to constitute an
intention to promote hatred. The state of mind connoted
by “intention”, where an intention to bring about a
certain result is an element of the offence, has been
the subject of much discussion, and writers on
jurisprudence, as well as Judges, have not always been
in agreement as to its meaning. Some eminent legal
scholars hold the view that a consequence is not
intended unless it is desired, recognizing that a
consequence may be desired not as an end in itself but
desired in order to accomplish some other purpose: see
Salmond on Jurisprudence, 8th ed. (1930), pp. 393-6 (but
cf., the view of P. J. Fitzgerald, the editor of the
12th edition, pp. 367-9; Holmes, The Common Law,
pp. 52-3; Glanville Williams, Textbook of Criminal
Law, p. 51). Other eminent legal scholars hold
that the test of intention is not whether the actor
desired the relevant consequence, but whether he decided
or resolved to bring it about, even though it may have
been distasteful to him: see Jerome Hall, General
Principles of Criminal Law, 2nd ed. (1960), p.
112; Russell on Crime, 12th ed. (1964), vol.
1, p. 41. The latter description of intention is in
accord with the views expressed by Lord Hailsham as to
the meaning of intention in Hyam v. Director of
Public Prosecutions, [1975] A.C. 55 at p. 74, and
with those of the Court of Appeal (Criminal Division) in
R. v. Mohan (1975), 60 Cr. App. R. 272 at pp.
276 and 278. 40 There
are cases which appear to provide support for the
proposition that where an intention to produce a
particular consequence is essential to constitute the
offence, an act is not done with intent to produce the
prohibited consequence unless it is the actor’s
conscious purpose to bring it about, and that the
actor’s foresight of the certainty of the consequence is
not synonymous with an intention to produce it. 41 There
is, however, substantial support for the proposition
that in the criminal law a person intends a particular
consequence not only when his conscious purpose is to
bring it about, but also when he foresees that the
consequence is certain or substantially certain to
result from his conduct; see Glanville Williams, Criminal
Law, The General Part, 2nd ed. (1961), p. 38;
Walter Wheeler Cook, Act, Intention, and Motive in
the Criminal Law (1916-17), 26 Yale L.J. 645 at
pp. 654-8; Rollin Perkins, “A Rationale of Mens Rea”, 52
Harv. L. Rev. 905 at pp. 910-1 (1938-39). 42 Smith
and Hogan, the learned authors of Criminal Law,
4th ed., state at p. 51, that the authorities referred
to by them: ... suggest
that in the criminal law generally, though not
universally, a person intends a consequence if it is his
purpose to achieve it or if he knows that the
achievement of some other purpose is certain, or
“morally” certain, to produce the consequence in
question. 43 In
R. v. Lemon; R. v. Gay News Ltd., supra, Lord
Diplock, however, defined intention in much wider terms.
He said that where intention to produce a particular
result is a necessary element of an offence, no
distinction is to be drawn in law between the state of
mind of one who does an act because he desires to
produce that particular result, and the state of mind of
one who, when he does the act, is aware that it is
likely to produce that result but is prepared to take
the risk that it may do so in order to achieve some
other purpose. He considered that the law has been
settled by Hyam v. Director of Public Prosecutions,
supra, “that both states of mind constitute
‘intention’ in the sense in which that expression is
used in the definition of a crime whether at common law
or in a statute” (at p. 905). 44 Hyam v.
Director of Public Prosecutions, supra, was
concerned with the mental element required to constitute
“malice aforethought”. It may well be that either an
intention to kill or cause serious bodily harm, or
foresight that death or serious bodily harm is a highly
probable consequence of an act done for some other
purpose, is a sufficient mens rea for murder at common
law. I do not consider, however, that the actor’s
foresight that a consequence is highly probable, as
opposed to substantially certain, is the same thing as
an intention to bring it about: see Hyam v.
Director of Public Prosecutions, supra, per Lord
Hailsham at p. 75; R. v. Belfon, [1976] 3 All
E.R. 46; Smith and Hogan, Criminal Law, 4th
ed., pp. 47-51; “Commentary on R. v. Lemon et al.”,
[1979] Crim. L.R. 311 at p. 314. In my view, the mental
attitude described by Lord Diplock is a form of
recklessness. 45 I
agree, however (assuming without deciding that there may
be cases in which intended consequences are confined to
those which it is the actor’s conscious purpose to bring
about), that, as a general rule, a person who foresees
that a consequence is certain or substantially certain
to result from an act which he does in order to achieve
some other purpose, intends that consequence. The
actor’s foresight of the certainty or moral certainty of
the consequence resulting from his conduct compels a
conclusion that if he, none the less, acted so as to
produce it, then he decided to bring it about (albeit
regretfully), in order to achieve his ultimate purpose.
His intention encompasses the means as well as to his
ultimate objective. 46 I
conclude, therefore, that the appellants “wilfully”
(intentionally) promoted hatred against the French
Canadian community of Essex County only if: (a) their
conscious purpose in distributing the document was to
promote hatred against that group, or (b) they foresaw
that the promotion of hatred against that group was
certain or morally certain to result from the
distribution of the pamphlet, but distributed it as a
means of achieving their purpose of obtaining the
French-language high school. 47 The
learned trial Judge in comprehensive reasons first
considered whether the document objectively promoted
hatred and concluded that the cumulative effect of the
document rendered it a communication that promoted
hatred against the French- speaking community of Essex
County. He then said: It is,
however, encumbent upon the Crown to prove beyond a
reasonable doubt that the two accused wilfully promoted
such hatred. In other words, has the Crown established
the necessary element of mens rea. In considering the
meaning to be given to the word “wilfully” in this
section the Court must distinguish between what has been
described by learned writers as primary and secondary
intent; or to phrase it in a more understanding way, the
distinction between intent and motive. I have earlier
discussed the purpose or motive as explained by the
accused themselves. They wished to create a situation
that would require the intervention of senior levels of
Government and result in the construction of the high
school. It is in evidence that the handbill was, in
fact, shown to a mediator representing the Minister of
Education who was in this area attempting to resolve the
school issue. It is, of course, a matter of judicial
notice that the Province did pass special legislation
requiring the construction of the school. It is
extremely doubtful, however, that this document played
any part in the formulation of that decision. It was
also their desire to unify the French Canadian
community. As Father Vincent stated, opposition from
outside often cements an ethnic group and tends to
strengthen people rather than weaken them. This is what
the Court would refer to as the purpose or motive of the
accused. Wilful in
this section, however, means intentional as opposed to
accidental. Miss Susan Moylan who testified for the
accused was involved in the early discussions between
the accused in the preparation of the handbill. She
testified that the document was not to create strong
feelings but to create strong actions and strong
reactions. How one can do the latter without the former
is beyond the comprehension of this Court. The accused
themselves testified they wished to create controversy,
furor and an uproar. What better way of describing
active dislike, detestation, enmity or ill will. The
motives of the accused may or may not be laudable. The
means chosen by the accused was the wilful promotion of
hatred. 48 Mr.
Manning contended before us that the learned trial Judge
erred in his interpretation of the meaning of
“wilfully”. He said that the trial Judge, in concluding
that the document, viewed objectively, promoted hatred,
separated the word “wilfully” from the words “promotes
hatred” and, consequently, fell into error in only
considering the question whether the document was
distributed intentionally as opposed to accidentally,
when the offence charged was committed only if the
appellants’ purpose in distributing the document was to
promote hatred. Mr. Manning said that the trial Judge
was concerned only with the effect of the document,
whereas if he had “looked for” an intention to promote
hatred, he would have come to a different conclusion
with respect to the appellants’ guilt. Mr. Hunt for the
Crown did not dispute that the central issue in the case
is whether the appellants, when they distributed the
pamphlet, intended to promote hatred. He contended,
however, that the trial Judge found that the appellants
intended to promote hatred as a means of accomplishing
their purpose. 49 Despite
Mr. Manning’s able argument I am not persuaded that the
learned trial Judge fell into the error of detaching the
word “wilfully” from the words “promotes hatred” and
applied it only to the distribution of the pamphlet. I
am of the view, however, that the learned trial Judge
erred in holding that “wilfully” means only “intentional
as opposed to accidental”. Although, as previously
indicated, “wilfully” has sometimes been used to mean
that the accused’s act, as distinct from its
consequences, must be intended and not accidental (as in
R. v. Senior, [1899] 1 Q.B. 283), it does not
have that meaning in the provisions under consideration. 50 The
learned trial Judge’s view of the meaning of “wilfully”
inevitably caused him to focus attention on the
intentional nature of the appellants’ conduct, rather
than on the question whether they actually intended to
produce the consequence of promoting hatred. I observe
that even if, contrary to the view which I have
expressed, recklessness satisfies the mental element
denoted by the word “wilfully”, recklessness when used
to denote the mental element attitude which suffices for
the ordinary mens rea, requires actual foresight on the
part of the accused that his conduct may bring about the
prohibited consequence, although I am not unmindful that
for some purposes recklessness may denote only a marked
departure from objective standards. Where the
prosecution, in order to establish the accused’s guilt
of the offence charged, is required to prove that he
intended to bring about a particular consequence or
foresaw a particular consequence, the question to be
determined is what was in the mind of this particular
accused, and the necessary intent or foresight must be
brought home to him subjectively: see R. v.
Mulligan (1974), 18 C.C.C. (2d) 270 at pp. 274-5,
26 C.R.N.S. 179; affirmed 28 C.C.C. (2d) 266, [1977] 1
S.C.R. 612, 66 D.L.R. (3d) 627. 51 What
the accused intended or foresaw must be determined on a
consideration of all the circumstances, as well as from
his own evidence, if he testifies, as to what his state
of mind or intention was. 52 Since
people are usually able to foresee the consequences of
their acts, if a person does an act likely to produce
certain consequences it is, in general, reasonable to
assume that the accused also foresaw the probable
consequences of his act and if he, nevertheless, acted
so as to produce those consequences, that he intended
them. The greater the likelihood of the relevant
consequences ensuing from the accused’s act, the easier
it is to draw the inference that he intended those
consequences. The purpose of this process, however, is
to determine what the particular accused intended, not
to fix him with the intention that a reasonable person
might be assumed to have in the circumstances, where
doubt exists as to the actual intention of the accused.
The accused’s testimony, if he gives evidence as to what
was in his mind, is important material to be weighed
with the other evidence in determining whether the
necessary intent has been established. Indeed, Mr.
Justice Devlin, in his charge to the jury in R. v.
Adams (The Times, April 10, 1957), said that
where the accused testified as to what was in his mind
and the jury “thought he might be telling the truth”,
they would “have the best evidence available on what was
in his own mind”. The background of the appellants and
their commitment to preserving the French Canadian
culture was, of course, relevant to the credibility of
their denial that they intended to promote hatred
against the French-speaking community of Essex County.
The appellants’ evidence as to their state of mind or
intention is not, of course, conclusive. 53 In
some cases the inference from the circumstances that the
necessary intent existed may be so strong as to compel
the rejection of the accused’s evidence that he did not
intend to bring about the prohibited consequence. The
learned trial Judge did not, however, state that he
disbelieved the appellants’ evidence that they did not
intend to promote hatred. He appears to have treated the
appellants’ testimony that they wished to create
“controversy, furor and an uproar” as a virtual
admission that they had the state of mind requisite for
guilt. 54 I
am, with deference to the learned trial Judge, of the
view that an intention to create “controversy, furor and
an uproar” is not the same thing as an intention to
promote hatred, and it was an error to equate them. I
would, of course, agree that if the appellants
intentionally promoted hatred against the
French-speaking community of Essex County as a means of
obtaining the French-language high school, they
committed the offence charged. The appellants’ evidence,
if believed, does not, however, as the learned trial
Judge appears to have thought, inevitably lead to that
conclusion. The learned trial Judge, not having
disbelieved the appellants’ evidence, failed to give
appropriate consideration to their evidence on the issue
of intent and, in the circumstances, his failure so to
do constituted self-misdirection…. 63 I
have concluded that the self-misdirection with respect
to the meaning of the word “wilfully”, and the failure
to appreciate the significance of the appellants’
evidence on the issue of intent requires a new trial.
The outrageous conduct of the appellants in preparing
and distributing this deplorable document was evidence
to be weighed in determining their intent, but in the
peculiar circumstances of this case I am not satisfied
that the inferences to be drawn from it are such as to
inevitably lead to a conclusion that they had the
requisite intent or that the trial Judge would
inevitably have reached that conclusion but for his
self-misdirection. 64 In
the result, I would allow the appeal, set aside the
convictions and order new trials. Appeal
allowed; new trial ordered. * * * Wilfulness under the Model Penal
Code Model Penal Code § 2.02. General
Requirements of Culpability. * * * R. v. Hibbert The judgment of the court was delivered by On November 25, 1991, shortly before 1:00 a.m., Fitzroy
Cohen was shot four times with a semi-automatic handgun as
he stood in the lobby of the apartment building he lived
in. The shots were fired by Mark Bailey, an
acquaintance of Cohen whom Cohen knew by his street names,
“Quasi” or “Dogheart”. At the time of the
shooting, Bailey was accompanied by the appellant,
Lawrence Hibbert, who was a close friend of Cohen. Cohen
had descended from his apartment to the lobby at the
appellant’s request, unaware that Bailey was waiting below
with gun in hand. Cohen survived the shooting. At the appellant’s
trial, Cohen testified that for some time prior to the
shooting he had been aware that Bailey was seeking a
confrontation with him. Bailey, Cohen believed,
was seeking revenge for an incident that had taken place
the previous year, in which Bailey had been robbed by a
rival drug dealer named Andrew Reid while Cohen and
several others stood by, watching and laughing. Cohen
testified that he had been told that Bailey had
subsequently attacked one of the men involved in the
robbery on a busy street, firing several shots at him (but
missing). He also knew that Andrew Reid had been
murdered. Cohen said that he had told the
appellant, whom he described as his “best friend”, about
the robbery of Bailey. The appellant, who testified at trial, stated that at the
time of the shooting he owed Bailey $100 as payment for
drugs he had purchased from him some months earlier. He
testified that he had been attempting to avoid Bailey, but
that on the evening of November 24, 1991 he had
accidentally run into him in the lobby of an apartment
building in Etobicoke where he had gone to visit friends.
Bailey had approached the appellant and indicated
that he was armed with a handgun. The appellant
testified that Bailey ordered him to take him to Cohen’s
apartment. When he refused, the appellant
stated, Bailey had led him to the basement and punched him
in the face several times. The appellant
testified that he feared for his life, and that he
believed that Bailey would shoot him if he continued to
refuse to assist him. He stated that it was this
fear that led him to agree to lead Bailey to Cohen’s
apartment. Bailey and the appellant went out to Bailey’s car, where
Bailey’s girlfriend and another young woman were waiting.
The appellant got into the back seat, while Bailey
drove. The women testified that the appellant
was quiet during the drive, but that his mood was neither
noticeably happy or unhappy. At trial, one of
the young women recalled that the appellant had made a
remark to the effect that “this might be the last time
[I’m] going to see you”. Bailey dropped the two women off at their apartment, and
told the appellant to get into the front seat. The
appellant testified that they stopped at a telephone
booth, and that Bailey ordered him to call Cohen and ask
him to meet him downstairs in twenty minutes. The
appellant did so, telling Cohen that he “had
something for him”. According to the appellant,
Bailey stood by the phone booth during his conversation
with Cohen, and could hear what the appellant said to
Cohen. Cohen and his girlfriend, Beverley St.
Hillaire, confirmed that they had received a telephone
call from the appellant, essentially as the appellant
described. They testified that the appellant had sounded
“normal”, but that he had been more abrupt than he usually
was. Bailey and Hibbert arrived at Cohen’s apartment building
approximately half an hour after making the phone call.
The appellant testified that Bailey drew his gun and
pointed it at him as they got out of the car. They
went to the front door of the building where, following
Bailey’s orders, the appellant called Cohen’s apartment on
the building intercom, while Bailey kept his gun trained
on him. The appellant’s testimony, which was
confirmed by Cohen, was that ordinarily when visiting
Cohen he would not use the building’s front door, but
would instead enter the building through a side door
that could be opened from the outside using a technique
Cohen had taught him. Cohen also confirmed the
appellant’s testimony that he had asked Cohen to “come
down” to the lobby, but that he had not asked Cohen to
“buzz him in” (i.e., press a button on the intercom that
would unlock the building’s outer door). The
appellant testified that he had hoped that Cohen would not
unlock the building’s front door, so that when he came
downstairs he would see Bailey through the locked glass
outer door and have a chance to retreat to safety. However,
Cohen buzzed the outer door open without being asked to do
so, and Bailey and the appellant went into the lobby. According to the testimony of both Cohen and Hibbert,
Cohen took the stairs from his second-floor apartment to
the lobby. When he emerged into the lobby, he
was met by Bailey, who grabbed him and pointed the gun at
his chest, saying “You’re dead now pussy.” Bailey
led Cohen into the ground floor hallway, where (according
to both Cohen and the appellant’s testimony) he turned to
Hibbert and told him to “stay some place where I [can] see
you”. After a brief exchange of words with
Cohen, Bailey pushed Cohen away and fired four shots at
him, striking him in the groin, legs and buttocks. Saying
“Come, Pigeon” (the appellant’s nickname), Bailey and the
appellant left the building by the side door. Cohen
testified that during the incident the appellant said
nothing, and made no effort to intervene. He
described the appellant as “all sweating”, and said that
the appellant was unable to look at him. The
appellant, however, testified that he had repeatedly
pleaded with Bailey, “Quasi don’t kill him.” The appellant testified that from the moment he first
encountered Bailey that evening he had believed Bailey
would shoot him if he refused to cooperate, and stated
that he had been “terrified” throughout his time in
Bailey’s company. Under cross-examination, he declared
that he believed that he had had no opportunity to run
away or warn Cohen without being shot. After leaving the building, Bailey drove the appellant
back to Etobicoke. The appellant testified that
Bailey threatened to kill him if he went to the police.
Upon his return to Etobicoke, the appellant spoke to
Cohen’s brother about what had happened, and called
Cohen’s mother and Cohen’s apartment. He
subsequently called his own mother, before going to sleep.
The next morning, he turned himself in to the police.
Bailey, however, was never apprehended. The appellant was charged with attempted murder. On March
19, 1992, following a trial by jury in the Ontario Court
of Justice (General Division) presided over by Webber J.,
he was acquitted of this charge, but was convicted of the
included offence of aggravated assault and sentenced to
four years imprisonment. On July 15, 1993 his
appeal of his conviction to the Court of Appeal for
Ontario was dismissed, although the court allowed his
appeal from sentence, reducing his sentence from four
years to time served (some fifteen months).… Lawrence Hibbert appeals his conviction to this Court on
the grounds that the trial judge’s charge to the jury on
the issue of duress contained several errors. First,
he argues, the trial judge erred by instructing the jury
that the defence of duress operated by “negativing common
intention”.… … (1) The Common Law Defence of Duress in Canada The defence of “duress per minas” (“duress by
threat”) has a long history at common law. References
to the defence can be found in the writings of such
venerable commentators as Hale and Blackstone (see J. Ll.
J. Edwards, “Compulsion, Coercion and Criminal
Responsibility” (1951), 14 Mod. L. Rev. 297, at pp.
298-99; and P. Rosenthal, “Duress in the Criminal Law”
(1989-90), 32 Crim. L.Q. 199, at pp. 200ff.). In
spite of the defence’s antiquity, however, many important
aspects of its nature and its details have remained
unresolved, or have been shrouded with uncertainty. As
Professor Edwards, supra, observed in 1951 (at
p. 297): Judged by the absence of any satisfactory modern
authority, it must be very rare for the accused to set up
as a defence that he committed the alleged crime under the
compulsion of another person. Indeed the whole
field of learning on this defence to criminal liability is
both meagre and unsatisfactory. In Canada, a defence of duress was included in the first
Criminal Code enacted in 1892 (S.C. 1892, c. 29).
Section 12 of the original Code (the predecessor
of the current Code’s s. 17) provided that
“compulsion by threats of immediate death or grievous
bodily harm from a person actually present at the
commission of the offence shall be an excuse for [its]
commission” (subject to certain specified conditions being
met). For many years, it seems to have been
generally assumed (although never conclusively
established) that the existence of a codified
version of the defence of duress left no room for
further development of the common law defence in Canada.
As Ritchie J. remarked, obiter, in R.
v. Carker, [1967] S.C.R. 114, at p. 117: In Paquette v. The Queen, [1977] 2 S.C.R. 189,
however, this Court determined that s. 17 of the Code
does not constitute an exhaustive codification of the law
of duress. Rather, the Court held, s. 17 applies
only to persons who commit offences as principals. Accordingly,
it remains open to persons who are liable as parties to
offences to invoke the common law defence of duress, which
remains in existence by virtue of s. 8(3) of the Code
(which preserves those common law defences not expressly
altered or eliminated by Parliament). …. Martland J. went on, however, to make an observation
regarding duress and the mental element of party liability
under s. 21(2) of the Code, stating (at p. 197): The significance of this comment in terms of the judgment
as a whole is rather difficult to determine. Martland
J. had earlier endorsed the decision of the House of Lords
in Director of Public Prosecutions for Northern
Ireland v. Lynch, [1975] A.C. 653, in which a
majority of the House of Lords had clearly taken the view
that the common law defence of duress provided an excuse,
rather than operating by negating mens rea.
Thus, Martland J. evidently did not intend to suggest that
duress provides a defence at common law only when the
accused’s culpable mental state can be said to have been
“negated”. Instead, he appears to have been
holding out an alternative route by which a person charged
as a party under s. 21(2) could escape criminal liability,
distinct from the “defence of duress” per se -- that is, a
“defence” founded not on concepts of excuse or
justification, but based instead on the absence of an
essential element of the offence. Seen in this way, Paquette stands for the
proposition that duress can provide a “defence” in either
of two distinct ways -- as an excuse, or by “negating”mens
rea. In the present case, the appellant argues that
this is a correct view of the law, and submits that the
trial judge erred by not placing both alternatives before
the jury. What falls to be considered,
therefore, is the validity of the proposition that the mens
rea for party liability under the Criminal Code
can be “negated” by threats of death or bodily harm. That
is, the Court is called upon to reconsider whether the
second aspect of our judgment in Paquette
reflects a correct understanding of the law of duress in
Canada. That threats of death or serious bodily harm can have an
effect on a person’s state of mind is indisputable.
However, it is also readily apparent that a person who
carries out the actus reus of a criminal offence
in response to such threats will not necessarily lack the
mens rea for that offence. Whether he or
she does or not will depend both on what the mental
element of the offence in question happens to be, and on
the facts of the particular case. As a practical
matter, though, situations where duress will operate to
“negate”mens rea will be exceptional, for the
simple reason that the types of mental states that are
capable of being “negated” by duress are not often found
in the definitions of criminal offences. In general, a person who performs an action in response
to a threat will know what he or she is doing,
and will be aware of the probable consequences of his or
her actions. Whether or not he or she desires the
occurrence of these consequences will depend on the
particular circumstances. For example, a person
who is forced at gunpoint to drive a group of armed
ruffians to a bank will usually know that the likely
result of his or her actions will be that an attempt will
be made to rob the bank, but he or she may not desire this
result -- indeed, he or she may strongly wish that the
robbers’ plans are ultimately foiled, if this could occur
without risk to his or her own safety. In
contrast, a person who is told that his or her child is
being held hostage at another location and will be killed
unless the robbery is successful will almost certainly
have an active subjective desire that the robbery succeed.
While the existence of threats clearly has a bearing
on the motive underlying each actor’s respective
decision to assist in the robbery, only the first actor
can be said not to desire that the robbery take
place, and neither actor can be said not to have knowledge
of the consequences of their actions. To determine whether
mens rea is “negated” in a particular case,
therefore, the first question that must be asked is
whether the mental element of the offence in question is
defined in such a way that either an actor’s motives or
his or her immediate desires have any direct relevance.
As A. W. Mewett and M. Manning explain: Mens rea...has more than one meaning. It
can entail a purpose, a desire to achieve an objective; it
can entail merely knowledge that consequences will follow
or that circumstances exist; it can entail only
recklessness, that is, some advertent or perhaps
inadvertent disregard of the consequences or circumstances.
What suffices for liability depends upon the
particular offence with which we are dealing. If
a person is compelled to do an act which he does not wish
to do, and therefore does it “against his will”, why, it
may be asked, does he have a defence not of compulsion but
simply of lack of mens rea? The answer is
that this is quite true, but only if the mens rea
required for the particular offence in question is of the
sort that is negatived by a person being compelled to do
something against his will. As Dickson J. (as he then was) observed in Lewis v.
The Queen, [1979] 2 S.C.R. 821, at p. 831, “[t]he
mental element of a crime ordinarily involves no reference
to motive”. Instead, he noted, “[i]n most criminal trials,
the mental element, the mens rea with which the
court is concerned, relates to ‘intent’”. Intention,
however, is distinct from desire or subjective wish. As
Lord Simon of Glaisdale (dissenting, but on another issue)
stated in Lynch, supra, at p. 690: Parliament is, of course, entitled to define the mental
element of criminal offences in whatever manner it sees
fit (subject, of course, to the requirements of s. 7 of
the Canadian Charter of Rights and Freedoms:
see, for instance, Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2
S.C.R. 636; R. v. Martineau, [1990] 2 S.C.R.
633; and R. v. Logan, [1990] 2 S.C.R. 731).
Thus, Parliament could choose to make it an element
of a given offence that the perpetrator have some
particular desire at the time of the commission of
the actus reus, or even make it a precondition
for liability that an actor have a particular motive
for performing a prohibited act. In the present
appeal, of course, we are not called upon to conduct an
exhaustive review of the Criminal Code for the
purposes of identifying any or all offences with mental
elements that might be capable of being negated by duress.
Rather, the present case, like Paquette, involves the
special situation of liability under s. 21 of the Code.
Thus, our analysis can be restricted to the question
of whether the mens rea requirements for party
liability contained in s. 21 are of the sort that can, in
some circumstances, be “negated” by coercion. Since
the sole aspect of s. 21 left with the jury in the
appellant’s trial was s. 21(1)(b), the analysis could,
strictly speaking, be restricted to that subsection. It
is difficult, however, to embark upon an examination of
the mental element of s. 21(1)(b) without being seen as
inferentially commenting on s. 21(2), thereby calling into
question the Court’s holding in Paquette, supra. In
my view, in order to avoid creating undue confusion and
uncertainty in the law, it is appropriate that we address
the issue of the continued validity of Paquette’s
statements on the relation between duress and mens
rea under s. 21(2) head on. I will thus
extend my analysis beyond what is strictly necessary for
the resolution of the present appeal by, considering s.
21(2) in addition to s. 21(1)(b). As noted earlier, s. 21(1)(b) imposes criminal liability
as a party on anyone who “does or omits to do anything for
the purpose of aiding any person to commit” an offence.
Although a person who is a party to an offence is
guilty of committing that offence, rather than a
separate crime (as is the case for accessories after the
fact), s. 21(1)(b) contains its own mens rea
requirement, distinct from that applicable to the
principal who actually commits the underlying offence.
As the subsection states, party liability as an
“aider” requires acts or omissions “for the purpose” of
aiding the commission of the offence. In order
to understand what effect, if any, duress might have on
the mens rea of an aider, it is thus necessary to
determine what “for the purpose” means in this context. It is impossible to ascribe a single fixed meaning to the
term “purpose”. In ordinary usage, the word is
employed in two distinct senses. One can speak
of an actor doing something “on purpose” (as opposed to by
accident) thereby equating purpose with “immediate
intention”. The term is also used, however, to
indicate the ultimate ends an actor seeks to achieve,
which imports the idea of “desire” into the definition.
This dual sense is apparent in the word’s dictionary
definition. For instance, the Oxford
English Dictionary (2nd ed. 1989) defines “purpose”
alternatively as “[t]hat which one sets before oneself as
a thing to be done or attained; the object which one has
in view” and as “[t]he action or fact of intending or
meaning to do something; intention, resolution,
determination”. The first of these definitions
reflects the notion of one’s “purpose” as relating to
one’s ultimate object or desire, while the latter conveys
the notion of “purpose” as being synonymous with
“intention”. Commentators who have considered the meaning of “purpose”
in definitions of criminal offences have come to differing
conclusions on the question of which of these alternate
meanings is more appropriate in this context. Professor
E. Colvin, for instance, argues on behalf of the “purpose
as desire” interpretation in his text Principles of
Criminal Law (2nd ed. 1991). He states
(at pp. 121-22): According to Colvin, “an actor’s purpose was to
accomplish something if the prospect of its occurrence
played a causal role in his decision to do what he did”
(p. 122). The actor’s knowledge that his actions
will result in the occurrence, however, is not
determinative. As Colvin states (at p. 123): Other commentators, however, have questioned this
equation of “purpose” with “desire”, arguing instead that
a person who consciously performs an act knowing the
consequences that will (with some degree of certainty)
flow from it “intends” these consequences or causes them
“on purpose”, regardless of whether he or she desired
them. As Mewett and Manning state: A similar argument is made by the English authors J. C.
Smith and B. Hogan: As this debate reveals, the term “purpose” is capable of
bearing two distinct meanings, both of which can be
supported by reasoned arguments. In a case, such
as this one, where an interpretation of the term in a
specific statutory context is required, the court’s task
is to determine which of the two possible meanings best
accords with Parliament’s intention in drafting the
particular statutory provision at issue. In
other words, our task in the present case is to consider
the meaning of “purpose” as it is employed in s. 21(1)(b)
of the Code in light of the Parliamentary
objective underlying the subsection. It must be
emphasized, however, that the word “purpose” is employed
in many different sections of the Criminal Code,
in a number of distinct contexts. My conclusions
in the present case on the proper interpretation of the
word “purpose” as it is employed in s. 21(1)(b) of the Code
are thus restricted to this particular subsection. It
may well be that in the context of some other statutory
provision a different interpretation of the term will
prove to be the most appropriate. As I said, when Parliament drafts a statute in language
that, on its face, supports more than one meaning, it is
appropriate for a court to consider which of the
alternative interpretations that are available best
accords with Parliament’s intention (see my remarks in R.
v. McIntosh, [1995] 1 S.C.R. 686, at pp. 697ff.).
As I will explain, I am of the view that in the
context of s. 21(1)(b) of the Code, the second
of the two meanings of “purpose” discussed above -- that
is, the interpretation that equates “purpose” with
“intention” -- best reflects the legislative intent
underlying the subsection. In contrast, adopting
the first interpretation of “purpose” (the “purpose”
equals “desire” interpretation) to describe the mens
rea for aiding in s. 21(1)(b) would, in my view,
create a number of theoretical and practical difficulties
that Parliament is unlikely to have envisioned or
intended. The problems associated with the “purpose equals desire”
interpretation are several. First, incorporating
the accused’s feelings about the desirability of the
commission of an offence by the principal into the
definition of the mens rea for “aiding” can
result in distinctions being made which appear arbitrary
and unreasonable in light of the policy underlying s.
21(1)(b). As Professor Colvin notes, under the “purpose
equals desire” interpretation a person would not be guilty
of aiding in the commission of an offence if he or she
were “genuinely opposed or indifferent to it” (p. 123).
The reason for the aider’s indifference or opposition
would be immaterial. The perverse consequences
that flow from this are clearly illustrated by the
following hypothetical situation described by Mewett and
Manning: I agree with the authors’ conclusion that “[t]hat would
seem an absurd result” (p. 112). As I noted in McIntosh,
supra, at pp. 704-5, “[a]bsurdity is a factor to
consider in the interpretation of ambiguous statutory
provisions”. That is, to quote the words of La
Forest J.A. (as he then was) in New Brunswick v.
Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R.
(2d) 201, at p. 210, “[t]he fact that the words as
interpreted would give an unreasonable result...is
certainly ground for the courts to scrutinize a statute
carefully to make abundantly certain that those words are
not susceptible of another interpretation”. In
my view, the absurdity that would flow from the equation
of “purpose” with “desire” cannot legitimately be ascribed
to Parliamentary intention. his serves to cast
considerable doubt on the correctness of this
interpretation of the word “purpose” in this context,
especially when one recalls that there exists an
alternative interpretation of the word that can just as
accurately be said to reflect its “plain meaning”, under
which this absurdity would be avoided. A further guide to Parliament’s intention can be gleaned
from an examination of the common law governing party
liability. Although s. 21 of the Code
was intended to simplify the law governing parties by
eliminating the old distinctions drawn at common law
between principals in the first and second degree,
accessories before the fact, etc., there is no indication,
in the section or elsewhere, of any intention by
Parliament to radically alter the basic principles of
party liability, including its mental element. As
Mewett and Manning state: For this reason, cases dealing with party liability at
common law can be instructive when interpreting s. 21 of
the Code. Although five separate speeches were delivered in Lynch,
the general tenor of the reasons of those members of the
House who considered the issue is typified by Lord
Edmund-Davies’ statement (at p. 710) that:
While another aspect of the judgment in Lynch
-- the holding that the common law defence of duress was
available to persons charged with aiding or abetting
murder -- was subsequently overruled in R. v. Howe,
[1987] 1 A.C. 417, in Howe the House of Lords
confirmed the statements that had been made in Lynch
on the relation between duress and mens rea. As
Lord Hailsham of Marylebone L.C. stated in Howe
(at p. 428): Lord Bridge of Harwich took a similar position, declaring
(at p. 436), with reference to Lynch, that
“[t]he theory that the party acting under duress is so far
deprived of volition as to lack the necessary criminal
intent has been clearly shown to be fallacious....” These English cases reveal that the mens rea
for party liability at common law is not of the sort that
is capable of being “negated” by duress. Put another way,
it is not a precondition for party liability at common law
that an accused actively desire that the
underlying criminal offence be successfully committed.
As Lord Morris of Borth-y-Gest stated in Lynch,
supra, at p. 678 (referring to the facts in that
case): The position at common law, of course, does not in and of
itself determine the meaning to be ascribed to the word
“purpose” in the context of s. 21(1)(b) of the Code.
It can, however, provide useful guidance when it
comes to choosing between the two interpretations of the
term that are available -- one that accords with the
common law position and the other that contradicts it.
In the absence of reason to believe that Parliament
intended its enactment of s. 21(1)(b) to radically alter
the common law principles governing party liability, the
interpretation that accords with the common law would seem
to also be the most likely to accurately embody
Parliament’s intentions. This observation
strengthens my conclusion that Parliament’s use of the
term “purpose” in s. 21(1)(b) should not be seen as
incorporating the notion of “desire” into the mental state
for party liability, and that the word should instead be
understood as being essentially synonymous with
“intention”. This interpretation is, moreover, consistent with the
approach that has been taken on previous occasions by this
Court in connection with s. 21(1)(b). In R.
v. Kirkness, [1990] 3 S.C.R. 74, for instance, Cory
J. (writing for a majority of the Court) stated (at p.
88): It is implicit in this statement that there is no
requirement under s. 21(1)(b) that the person charged as a
party “desire” that the victim die (that is, subjectively
wish that this result come to pass), just as the
principal’s intent to kill is not negated even if, all
other things being equal, he or she regrets the fact that
he or she is killing the victim. Similarly, in R. v.
Jackson, [1993] 4 S.C.R. 573, the Court commented
on the mental element for conviction of murder as a party
under s. 21(1). Writing for the Court, McLachlin
J. stated (at p. 581): Since the mens rea requirement for murder is
satisfied if the accused means to cause the victim bodily
harm that he knows is likely to cause his death, it can be
inferred that the Court in Jackson did not
believe that s. 21(1) imposed any additional
requirement that an aider or abettor subjectively approve
of or desire the victim’s death. Finally, I am satisfied that the interpretation of the mens
rea for liability under s. 21(1)(b) that I am
proposing will not result in unjust convictions in cases
involving coercion by threats of death or bodily harm,
since in these cases the common law defence of duress will
remain available to the accused. As I will
explain shortly, this defence, properly understood,
provides an excuse to persons who assist in the commission
of offences as a result of threats of serious violence.
On the other hand, interpreting “purpose” as
equivalent to “desire” in s. 21(1)(b) would result in the
introduction of unnecessary complication into the law.
Under such an interpretation, juries in duress cases
would have to be provided with extremely complex
instructions that would, in the end, have very little, if
any, impact on the final determination of guilt or
innocence. As a matter of logic, the issue of
whether an accused can invoke an excuse or justification
arises only after the Crown has proven the
existence of all the elements of the offence, including mens
rea. Thus, if “purpose” were understood as
incorporating “desire”, and hence as being susceptible to
“negation” by duress, trial judges would have to instruct
juries accordingly. This would require judges,
and juries, to delve into the arcane issue of whether a
person who intentionally commits an offence in order to
save his or her own skin commits the offence “on purpose”
-- a question of some philosophical significance, perhaps,
but no easy matter for a judge to explain succinctly, or
for a jury to comprehend readily. At the same
time, trial judges would also have to provide
juries with alternative instructions on the excuse-based
common law defence of duress. While in many cases an aider
who actively desires the commission of the offence he or
she aids will not be able to legitimately claim that he or
she acted under duress, this will not inevitably be so
(consider, for instance, the hypothetical example,
discussed earlier, of the parent whose child is held
hostage by confederates of robbers, who is told that the
child will be released unharmed only if he or she assists
in the successful commission of a robbery). Consequently,
in at least some cases juries would be forced to consider
two alternate legal routes leading to an acquittal by
reason of duress. This complication would,
however, have little or no practical effect, since there
will be few, if any, cases involving parties in which a
“defence” of “negation of mens rea by duress”
would succeed where recourse to the excuse-based common
law defence of duress would not also lead to an acquittal.
As Professor D. Stuart observes (Canadian
Criminal Law: A Treatise (3rd ed. 1995)),
introducing the notion of duress “negating”mens rea
into the analysis serves only to muddy the conceptual
waters. As he points out (at p. 420): For these reasons, I conclude that the expression “for
the purpose of aiding” in s. 21(1)(b), properly
understood, does not require that the accused actively
view the commission of the offence he or she is aiding as
desirable in and of itself. As a result, the mens rea
for aiding under s. 21(1)(b) is not susceptible of being
“negated” by duress. The trial judge’s charge to the jury
in the present case was thus incorrect in two respects.
First, the reference to the relevant mental state in
the present case as being a “common intention to carry out
an unlawful purpose” was erroneous since, unlike Paquette,
what was at issue in the present case was s. 21(1)(b), as
opposed to s. 21(2). Second, in light of the
mental element for commission of an offence under s.
21(1)(b), the suggestion that duress might “negate” the
accused’s mens rea was also incorrect. The preceding discussion suffices to resolve the question
of the relation between duress and mens rea that
directly arises in the present case. As I
indicated earlier, however, I believe that in the
interests of avoiding undue confusion in the law that
applies to duress cases I should proceed further, and look
expressly at the question of whether the interpretation of
s. 21(2)’s mental element that was adopted by the Court in
Paquette, supra, remains correct in light of the
interpretation of s. 21(1)(b) I am now adopting. To be
sure, the respective mens rea requirements of
the two subsections are defined differently -- while
s. 21(1)(b) imposes party liability on persons who “do or
omit to do anything for the purpose of aiding any
person to commit [an offence]”, s. 21(2) establishes that
“persons [who] form an intention in common to
carry out an unlawful purpose and to assist each other
therein” are liable for criminal offences committed by the
principal that are foreseeable and probable consequences
of carrying out the “common purpose”. There is, however, a
close connection between the two subsections, arising from
the evident similarities that exist between certain
aspects of s. 21(2)’s requirements and the terms of s.
21(1)(b). As I have explained in the previous
section, a person who does something “for the purpose of
aiding” another to commit a criminal offence (and who is
thus liable under s. 21(1)(b)) invariably “intends” to
assist the principal to carry out “an unlawful purpose” --
an “intention” that is not susceptible of being “negated”
by the fact that it arises as the result of threats of
death or bodily harm. Furthermore, the terms
“aid” and “assist” are virtually synonymous. Section
21(2), however, contains two further qualifications -- the
accused’s intention must be “an intention in common” with
the principal, and the intention to assist must be
reciprocal (that is, two or more persons must have “an
intention in common ... to assist each other
therein”). The question that must be addressed,
therefore, is whether these additional qualifications on
the requisite “intention” raise the prospect of an
accused’s mens rea being “negated” by duress.
In particular, we must consider whether the
requirement that the accused have an “intention in
common” with another person has this effect. As was the case with the term “purpose” in s. 21(1)(b),
the phrase “intention in common” is capable of being
understood in more than one sense. One possible
interpretation is that “intention in common” means no more
than that the two persons must have in mind the same
unlawful purpose. Alternatively, however, it
might be argued that the requirement of “commonality”
requires that the two persons’ intentions match in greater
detail -- in particular, that their motives or subjective
views as to the desirability of the commission of the
“unlawful purpose” match up. If this latter
interpretation were adopted, it could be argued that
although persons who assist others to commit criminal acts
as a result of threats made by the others would “intend”
to provide such assistance, their intention would not be
“in common” with the intentions of the threatener, due to
the different motives and, possibly, views as to the
immediate desirability of the criminal activity at issue.
In contrast, under the former interpretation a person
would fall within the ambit of s. 21(2) if they intended
to assist in the commission of the same offence envisioned
by the principal, regardless of the fact that their
intention might be due solely to the principal’s threats.
Of course, it would be open to such a person to avoid
criminal liability through the common law defence of
duress. As noted earlier, in Paquette, supra, Martland
J. took the position that “intention in common” meant
something more than “intention to commit or aid in the
same offence”, arguing (at p. 197) that: The phrase “intention in common” is certainly open to
being interpreted in this manner. However,
notwithstanding the considerable weight I place on and the
respect I have for the opinion of Martland J., I have come
to the conclusion that, in the context of s. 21(2), the
first interpretation discussed above is more consistent
both with Parliament’s intention and with the
interpretation of s. 21(1)(b) I have adopted in these
reasons. Many of the factors I considered
earlier in the course of determining the meaning to be
ascribed to the term “purpose” in s. 21(1)(b) apply with
similar force to the problem of interpreting s. 21(2).
Parliament’s purpose in enacting s. 21(2) is clear.
As the Ontario Court of Appeal (per Doherty
J.A.) noted in R. v. Jackson (1991), 68 C.C.C.
(3d) 385, at p. 421 (aff’d [1993] 4 S.C.R. 573): That is, Parliament has chosen to impose liability on
persons who engage in criminal conduct with others for
additional criminal acts that could be foreseen as likely
to be committed in furtherance of the underlying offence
(within the limits imposed by the Charter: see Logan,
supra). Interpreting the expression
“intention in common” as connoting a mutuality of motives
and desires between the party and the principal would
restrict the scope of this section in a manner that is
difficult to justify on the basis of Parliamentary
intention. As was the case with the interpretation of
“purpose” in s. 21(1)(b), adopting this interpretation of
“intention in common” would remove all manner of persons
from the scope of s. 21(2) in addition to those whose
intention is the product of threats of death or serious
bodily harm since, once again, the reason for the
divergence in motive and desire would be immaterial to the
question of whether the party’s and principal’s
“intentions” matched to a sufficient degree. This
result, I believe, can no more be ascribed to Parliament’s
intention than could the similar result that would flow
from equating “purpose” with “desire” in s. 21(1)(b),
which I discussed earlier. In my opinion, a much
more plausible interpretation of Parliament’s purpose is
that the “commonality” qualification on the subsection’s
mental element is simply meant to ensure that accused
persons are not convicted of crimes committed in
furtherance of offences to which they are not
party. Furthermore, as was the case with s. 21(1)(b), the
interpretation of s. 21(2)’s mens rea
requirement that was adopted by the Court in Paquette
is not essential as a means of ensuring the avoidance of
unjust convictions in duress cases, since here, as in
cases involving s. 21(1)(b), accused persons who act under
duress have recourse to the protection from criminal
liability provided by the common law defence of duress.
At the same time, it can be seen that the
interpretation of s. 21(2) adopted in Paquette
significantly complicates the law of duress, in so far as
it requires juries to be instructed on both the manner in
which duress might “negate”mens rea and on the
common law defence of duress itself, notwithstanding the
fact that both cover essentially the same ground. This
problem would be exacerbated if the interpretation of s.
21(2) in Paquette was preserved alongside the
interpretation of s. 21(1)(b) that we are adopting in the
present appeal. In a significant number of
cases, the two subsections will be presented to the jury
as alternative bases for liability. In such
cases, a trial judge who was required to follow both the
holding in this case and Paquette would have to
instruct the jury that the accused’s subjective view as to
the desirability of the commission of the offence was not
relevant to s. 21(1)(b), but that it was relevant to s.
21(2), and that the existence of duress might “negate”mens
rea under the latter (but not the former) provision.
He or she would then have to go on to charge the
jury, in the alternative, on the common law defence of
duress. While complex jury instructions are
sometimes unavoidable if justice is to be done, I am of
the view that unnecessary complexity is something that
courts should strive to avoid. The Canadian
justice system places considerable faith in jurors’
ability to follow the trial judge’s instructions. In
exchange, I believe it is incumbent on the courts to do
what they can to ease, rather than add to, the difficult
burden we call upon jurors to bear, subject, of course, to
the overriding imperative that trial fairness be
preserved. For these reasons, I am of the view that the comments of
Martland J. in Paquette, supra, on the relation
between duress and mens rea in the context of s.
21(2) can no longer be considered the law in Canada. I
hasten to point out, however, that overturning this
holding in Paquette does not affect the validity
of that case’s first aspect, namely, that the common law
defence of duress continues to apply in cases involving
party liability under s. 21 of the Code.
Furthermore, it can be noted in passing that, on the facts
of Paquette, the accused’s acquittal could well
have been supported on the basis of the excuse provided by
the common law defence of duress rather than on the notion
that his intention to assist in the commission of the
robbery was “negated” by duress. The conclusions that can be extracted from the discussion
in the previous sections may be summarized as follows: The fact that a person who commits a criminal act does so
as a result of threats of death or bodily harm can in some
instances be relevant to the question of whether he or she
possessed the mens rea necessary to commit an
offence. Whether or not this is so will depend,
among other things, on the structure of the particular
offence in question -- that is, on whether or not the
mental state specified by Parliament in its definition of
the offence is such that the presence of coercion can, as
a matter of logic, have a bearing on the existence of mens
rea. If the offence is one where the presence of
duress is of potential relevance to the existence of mens
rea, the accused is entitled to point to the
presence of threats when arguing that the Crown has not
proven beyond a reasonable doubt that he or she possessed
the mental state required for liability. The mental states specified in ss. 21(1)(b) and 21(2) of
the Criminal Code are not susceptible to being
“negated” by duress. Consequently, it is not
open to persons charged under these sections to argue that
because their acts were coerced by threats they lacked the
requisite mens rea. Such persons may, however,
seek to have their conduct excused through the
operation of the common law defence of duress. It should be reiterated, however, that the holding in the
present case is based on an interpretation of the
particular terms of two specific offence-creating
statutory provisions, ss. 21(1)(b) and 21(2) of the
Criminal Code. The question of whether other
offences can be found, either in the Code or in
some other statute, that are defined in such a way that
the presence of coercion is relevant to the existence of mens
rea remains open. R. v. Moo The judgment of the Court was delivered by 32 Shortly after noon on the
second day of their deliberations, the jury sent this
question to the trial judge: 35 When the jury returned to the
courtroom, the trial judge read them the text of s.
229(a). He explained the meaning of "reckless" in these
terms: 36 The trial judge then turned to
the contemporaneity requirement as expressed in Cooper. He
read paragraphs 34 and 35 of the decision in Cooper, which
include this passage: 37 The jury asked no further
questions. They returned their verdict about five hours
after their question had been answered. Subjective foresight of death is a constitutional
requirement for the crime of murder: R. v. Martineau,
[1990] 2 S.C.R. 633, at p. 646. 55 In Patterson, as in
Czibulka, the erroneous instruction was given in
answer to a question posed by the jury well into their
deliberations. The verdict followed shortly. The court in
Patterson ordered a new trial, principally, if
not entirely, on the basis that certain propensity
evidence tendered by the defence had been wrongly
excluded. It is not clear from Patterson
whether, on its own, the flaw in the re-charge on
recklessness would have required a new trial: Patterson,
at para. 52. i. the
redundance of recklessness in most circumstances to
which s. 229(a)(ii) applies; See also, R. v. Rybak (2008), 233 C.C.C. (3d)
58 (Ont. C.A.), at paras. 126-133. Leave to appeal
refused, [2008] S.C.C.A. No. 311, 237 C.C.C. (3d) vi
(S.C.C.). R. v. G and another LORD BINGHAM OF CORNHILL:— My Lords, The appeal turns on the meaning of ‘reckless’ in that
section. This is a question on which the House
ruled in R v Caldwell [1981] 1 All ER 961,
[1982] AC 341, a ruling affirmed by the House in later
decisions. The House is again asked to
reconsider that ruling. ‘(1) A person who without lawful excuse destroys or
damages any property belonging to another intending to
destroy or damage any such property or being reckless as
to whether any such property would be destroyed or
damaged shall be guilty of an offence. Section 4(1) of the Act provides that a person guilty of
arson under s 1 shall on conviction on indictment be
liable to imprisonment for life. [5] The appellants
stood trial before Judge Maher in March 2001. At
the outset of the trial, submissions were made on the
meaning of ‘reckless’ in s 1(1) of the 1971 Act since the
appellants were charged with being reckless whether the
premises would be destroyed or damaged and not with
intending to destroy or damage them. The judge
ruled (in effect) that he was bound to direct the jury in
accordance with R v Caldwell, [1982] A.C. 341…. ‘My Lords, I can see no reason why Parliament when it
decided to revise the law as to offences of damage to
property should go out of its way to perpetuate fine and
impracticable distinctions such as these, between one
mental state and another. One would think that
the sooner they were got rid of the better.’ … Lord Diplock … preferred the ordinary meaning of
‘reckless’ which -- If one is attaching labels, the latter state of mind is
neither more nor less “subjective” than the first. But
the label solves nothing. It is a statement of
the obvious; mens rea is, by definition, a state of mind
of the accused himself at the time he did the physical act
that constitutes the actus reus of the offence; it cannot
be the mental state of some non-existent hypothetical
person.’ To decide whether a person had been reckless whether
harmful consequences of a particular kind would result
from his act it was necessary to consider the mind of ‘the
ordinary prudent individual’ ([1981] 1 All ER 961 at 966,
[1982] AC 341 at 354). In a passage which has
since been taken to encapsulate the law on this point, and
which has founded many jury directions (including that in
the present case) Lord Diplock then said ([1981] 1 All ER
961 at 967, [1982] AC 341 at 354): ‘In my opinion, a person charged with an offence under
s 1(1) of the 1971 Act is “reckless as to whether or not
any property would be destroyed or damaged” if (1) he
does an act which in fact creates an obvious risk that
property will be destroyed or damaged and (2) when he
does the act he either has not given any thought to the
possibility of there being any such risk or has
recognised that there was some risk involved and has
none the less gone on to do it. That would be
a proper direction to the jury; cases in the Court of
Appeal which held otherwise should be regarded as
overruled.’ ‘It was surely with this contemporaneous definition and
the much respected decision of R v Cunningham
in mind that the draftsman proceeded to his task of
drafting the 1971 Act.’ He observed ([1981] 1 All ER 961 at 970, [1982] AC 341 at
358): ‘In the absence of exculpatory factors, the defendant’s
state of mind is therefore all-important where
recklessness is an element in the offence charged, and s
8 of the Criminal Justice Act 1967 has laid down that: [28] The task confronting the
House in this appeal is, first of all, one of statutory
construction: what did Parliament mean when it used the
word ‘reckless’ in s 1(1) and (2) of the 1971 Act?
In so expressing the question I mean to make it as plain
as I can that I am not addressing the meaning of
‘reckless’ in any other statutory or common law context…. Lord Steyn:— [52] In the case before the
House the two boys were 11 and 12 respectively. Their
escapade of camping overnight without their parents’
permission was something that many children have
undertaken. But by throwing lit newspapers under
a plastic wheelie-bin they caused £ 1m of damage to a shop.
It is, however, an agreed fact on this appeal that
the boys thought there was no risk of the fire spreading
in the way it eventually did. What happened at
trial is highly significant. The jury were
perplexed by the Caldwell directions which compelled them
to treat the boys as adults and to convict them. The
judge plainly thought this approach was contrary to common
sense but loyally applied the law as laid down in R v
Caldwell. The view of the jurors and the judge
would be widely shared by reasonable people who pause to
consider the matter. The only answer of the
Crown is that where unjust convictions occur the judge can
impose a lenient sentence. This will not do in a modern
criminal justice system. Parliament certainly
did not authorise such a cynical strategy. ‘States Parties recognize the right of every child
alleged as, accused of, or recognized as having
infringed the penal law to be treated in a manner
consistent with the promotion of the child’s sense of
dignity and worth, which reinforces the child’s respect
for the human rights and fundamental freedoms of others
and whichtakes into account the child’s age
and the desirability of promoting the child’s
reintegration and the child’s assuming a constructive
role in society.’ (Emphasis added) This provision imposes both procedural and substantive
obligations on state parties to protect the special
position of children in the criminal justice system. For
example, it would plainly be contrary to art 40(1) for a
state to set the age of criminal responsibility of
children at, say, five years. Similarly, it is
contrary to art 40(1) to ignore in a crime punishable by
life imprisonment, or detention during Her Majesty’s
pleasure, the age of a child in judging whether the mental
element has been satisfied. It is true that the
UN convention became binding on the United Kingdom after R
v Caldwell was decided. But the House
cannot ignore the norm created by the UN convention. This
factor on its own justified a reappraisal of R v
Caldwell. ‘Considered as a matter of principle, the honest belief
approach must be preferable. By definition the
mental element in a crime is concerned with a subjective
state of mind, such as intent or belief.’ To same effect is R v K [2001] UKHL 41, [2001]
3 All ER 897, [2002] 1 AC 462 where it was held that while
a girl under the age of 16 cannot in law consent to an
indecent assault, it is a defence if the defendant
honestly believed she was over 16. It is true
that the general picture is not entirely harmonious. Duress
requires reasonable belief (see Lord Lane CJ in
R v Graham [1982] 1 All ER 801 at 806, [1982] 1
WLR 294 at 300, approved by the House of Lords in R v
Howe [1987] 1 All ER 771, [1987] AC 417; R v
Martin [1989] 1 All ER 652). Duress is a
notoriously difficult corner of the law. However,
in R v Graham [1982] 1 All ER 801 at 806, [1982]
1 WLR 294 at 300 Lord Lane CJ stated that in judging the
accused’s response the test is: ‘. . . have the prosecution made the jury sure that a
sober person of reasonable firmness, sharing the
characteristics of the defendant, would not have
responded to whatever he reasonably believed [the
threatener] said or did by taking part in the
[offence].’ (Emphasis added) The age and sex of the defendant (but possibly no other
characteristics) are relevant to the cogency of the threat
(see R. v. Bowen [1996] 4 All ER 837, [1997] 1
WLR 372). In regard to provocation a wider view
of the impact on defendant has prevailed (see R. v.
Smith [2000] 4 All ER 289, [2001] 1 AC 146 (by a
three to two majority)). R. v. Tutton and Tutton MCINTYRE J.:—This appeal raises again
the question of criminal negligence, as defined in s. 202
{now s. 219} of the Criminal Code, R.S.C. 1970,
c. C-34, and the test to be applied by a jury in its
application to a given case. The respondents, Carol Anne Tutton and Arthur Thomas
Tutton, were the parents of a five-year-old child,
Christopher Tutton, who died on October 17, 1981. After a
trial before judge and jury, the Tuttons were convicted of
manslaughter because of his death. They appealed the
conviction. The Court of Appeal (Dubin, Goodman,
Tarnopolsky JJ.A.) in a judgment written for the court by
Dubin J.A. (as he then was) allowed the appeals, set aside
the convictions, and directed new trials. This appeal is
taken by the Crown, by leave granted May 23, 1985. The Tuttons, according to the evidence, which was
unquestioned on this point, had a good reputation in their
community for honesty and integrity and, as well, they
were loving and responsible parents. They were also deeply
religious and they belonged to a religious sect which
believes in faith healing. Their religious convictions did
not prevent them from seeking and acting on medical advice
nor from taking medicines, but they believed that divine
intervention could miraculously effect cures for illnesses
and ailments beyond the power of modern medical science. In April, 1979, their family physician, a general
practitioner named Dr. Love, diagnosed the child,
Christopher, as a diabetic and admitted him to hospital
where he remained for some weeks. While the child was in
hospital, his mother attended classes at a diabetic
education centre where she received instruction regarding
insulin injections and the impact of diet and exercise on
diabetes and diabetics. She also attended in July 1979, a
full week of seminars at a juvenile diabetic clinic to
gain an understanding of her son’s condition and to learn
how to deal with it. There was then evidence upon which
the jury could conclude that Mrs. Tutton had made herself
competent to deal with her child’s illness under general
supervision from the family, physician. Throughout the son’s illness, the Tuttons main concern
was to find a cure for the boy. They both believed that
there would be a spiritual cure. They discussed this
possibility with Dr. Love who considered that there was no
possibility of a miraculous cure, and in November, 1979, a
diabetic specialist from the Sick Children’s Hospital in
Toronto advised the respondents that their son would never
be able to discontinue his insulin injections. He told the
respondents not to discontinue the insulin treatments.
However, on October 2, 1980, Mrs. Tutton stopped giving
the child insulin in the belief that he was being healed
by the power of the Holy Spirit. In two days, the child
became quite ill and was taken to a hospital emergency
unit. The physician who attended the child said that on
admission to hospital the child was dangerously ill,
suffering from diabetic acidosis, a potentially fatal
disorder which was due to the absence of insulin. The
doctor admonished the parents when he learned that they
had consciously withheld the insulin. He told the parents
that insulin would be required by their son for life, and
after this incident Mr. Tutton assured the family
physician that insulin would not be withheld in future
without consulting a doctor. A year later, however,
insulin was again stopped. Mrs. Tutton believed that she
had a vision of God in which she was told that Christopher
was cured, that no more insulin was needed, and that God
would take care of her son. The insulin injections were
stopped on October 14, 1981. Mr. Tutton did not know of
the withdrawal of insulin until October 15th but on
learning of it he approved. The child sickened quickly. On
October 17th, he was taken to the hospital where he was
pronounced dead on arrival. The forensic pathologist who
conducted a post-mortem examination gave his opinion that
death was caused by complications of diabetic
hyperglycemia. The respondents were jointly charged with
manslaughter in an indictment which provided: ARTHUR TUTTON AND CAROL TUTTON stand charged that between
the period of the 14th day of October, 1981, and the 17th
day of October, 1981, both dates inclusive, at the
Township of Wilmot, in the Judicial District of Waterloo,
being the parents of Christopher Tutton, they did cause
the death of Christopher Tutton, age five years, by
criminal negligence, to wit, they did, without lawful
excuse, omit to provide necessaries of life to Christopher
Tutton, which was their duty to provide, thereby showing
wanton or reckless disregard for the life or safety of the
said Christopher Tutton, and did thereby commit
manslaughter, contrary to the Criminal Code. Particulars were given in these terms: The relevant statutory provisions which were considered
in the Courts below are set out hereunder: 197.(1) {now s. 215} Every one is
under a legal duty 202.(1) Every one is criminally
negligent who At trial, the defence was that as far as the Crown’s case
rested on the failure to provide insulin the Tuttons
honestly believed that Christopher had been cured by
divine intervention and, therefore, no further insulin was
necessary. This would raise the defence of an honest
though mistaken belief in the existence of a circumstance
or circumstances which, if present, would render their
conduct non-culpable. It was also argued that as far as
the Crown’s case depended upon a failure to provide timely
medical assistance for their son, the parents were unaware
of the fact that he was seriously ill as a result of the
withdrawal of the insulin and, accordingly, their conduct
in this regard could not be said to exhibit a wanton or
reckless disregard for the life or safety of their son.… In reaching a conclusion as to whether the conduct of an
accused person has shown, within the meaning of s. 202 of
the Criminal Code, wanton or reckless disregard
for the lives or safety of other persons, the authorities
dictate an objective test: see the review of the
authorities on this subject by Cory J.A. for the Court of
Appeal in R. v.Waite (1986), 28 C.C.C. (3d)
326, 52 C.R. (3d) 355, 41 M.V.R. 119 (Ont. C.A.), approved
in this court (Judgment given concurrently) [ante,
p. 1]. Indeed, in the Court of Appeal, Dubin J.A. accepted
the objective test as one of general application, but made
an exception in cases where the conduct complained of
consisted of an act or acts of omission, as opposed to
those of commission. In such cases, it was his view that
occasions would arise where a subjective test would be
required where acts of omission were under consideration.
He considered this was such a case. It is my view,
however, that no such distinction as Dubin J.A. would
adopt may be made. I am wholly unable to see any
difference in principle between cases arising from an
omission to act and those involving acts of commission.
Indeed, the words of s. 202 of the Criminal Code make
it clear that one is criminally negligent who, in doing
anything or in omitting to do anythingthat it is his duty
to do, shows wanton or reckless disregard for the lives or
safety of other persons. The objective test must,
therefore, be employed where criminal negligence is
considered for it is the conduct of the accused, as
opposed to his intention or mental state, which is
examined in this inquiry. Our concept of criminal culpability relies primarily upon
a consideration of the mental state which accompanies or
initiates the wrongful act, and the attribution of
criminal liability without proof of such a blameworthy
mental state raises serious concerns. None the less,
negligence has become accepted as a factor which may lead
to criminal liability and strong arguments can be raised
in its favour. Section 202 of the Criminal Code affords
an example of its adoption. In choosing the test to be
applied in assessing conduct under s. 202 of the Criminal
Code, it must be observed at once that what is
made criminal is negligence. Negligence connotes the
opposite of thought-directed action. In other words, its
existence precludes the element of positive intent to
achieve a given result. This leads to the conclusion that
what is sought to be restrained by punishment under s. 202
of the Code is conduct, and its results. What
is punished, in other words, is not the state of mind but
the consequence of mindless action. This is apparent, I
suggest, from the words of the section, which make
criminal, conduct which showswanton or reckless disregard.
It may be observed as well that the words “wanton or
reckless” support this construction, denying as they do
the existence of a directing mental state. Nor can it be
said that criminal negligence, as defined in s. 202,
imports in its terms some element of malice or intention.
This point was made in the Crown’s factum in para. 41,
which provided, in part: The plain and ordinary meaning of the terms “wanton” and
“reckless” when used in connection with the concept of
negligence would seem to include a state of being heedless
of apparent danger. Section 202(1) does not use the term
“reckless” as an extended definition of intention or
malice, but rather employs the term as part of a
definition of conduct which amounts to “negligence” in a
criminal context. In my view, then, an objective standard must be applied
in determining this question because of the difference
between the ordinary criminal offence, which requires
proof of a subjective state of mind, and that of criminal
negligence. In criminal cases, generally, the act coupled
with the mental state or intent is punished. In criminal
negligence, the act which exhibits the requisite degree of
negligence is punished. If this distinction is not kept
clear, the dividing line between the traditional mens
rea offence and the offence of criminal negligence
becomes blurred. The difference, for example, between
murder and manslaughter, both unlawful killings, is merely
one of intent. If the question of an accused’s intent had
to be considered and separately proved in offences under
s. 202 of the Criminal Code, the purpose of the
section would be defeated because intentional conduct
would perforce be considered under other sections of the Code
and s. 202, aimed at mindless but socially dangerous
conduct, would have no function. For these reasons, the
objective test should be employed and, in my view, the
Court of Appeal was in error in concluding in this case
that a subjective test would be required. The test is that
of reasonableness, and proof of conduct which reveals a
marked and significant departure from the standard which
could be expected of a reasonably prudent person in the
circumstances will justify a conviction of criminal
negligence. In reaching this conclusion, I am not overlooking the
comments I made in Sansregret v. The Queen (1985),
18 C.C.C. (3d) 223 at p. 233, 17 D.L.R. (4th) 577, [1985]
1 S.C.R. 570 (S.C.C.), which were cited by counsel for the
appellant. In Sansregret, I expressed the view
that “recklessness, to form a part of the criminal mens
rea, must have an element of the subjective”. I
then went on to say that “[I]t is in this sense that the
term ‘recklessness’ is used in the criminal law and it is
clearly distinct from the concept of civil negligence”. It
was argued upon the basis of these words and later
comments on the nature of negligence in relation to the
criminal law that a subjective test should therefore be
applied in considering the existence of criminal
negligence under s. 202 of the Code. Iwould
reject that argument on the basis that the concept of
recklessness there described is not applicable in a case
under s. 202 of the Code. Sansregret was
charged with rape, a crime which involves positive
mind-directed conduct on the part of the accused which
aims at the accomplishment of a specific result. It is a
traditional mens rea offence and a mental state
must be proved, in that case an intention to persist with
his purpose despite the fact that the complainant’s
consent has been extorted by threats and fear.
Recklessness on his part forms a part of the mens rea
(the blameworthy state of mind) and has to be proved
on a subjective basis as part of the mental element of the
offence. In this sense, the words in Sansregret are
apposite. Section 202, on the other hand, has created a
separate offence; an offence which makes negligence—the
exhibition of wanton or reckless behaviour—a crime in
itself and has thus defined its own terms. As noted by
Cory J.A. in R. v.Waite, s. 202 of the Criminal
Code was enacted in its present form as a
codification of the offence which had emerged in Canadian
jurisprudence, and in respect of which the necessary
mens rea may be inferred on an objective basis
from the acts of the accused. The application of an objective test under s. 202 of the
Criminal Code, however, may not be made in a
vacuum. Events occur within the framework of other events
and actions and when deciding on the nature of the
questioned conduct, surrounding circumstances must be
considered. The decision must be made on a consideration
of the facts existing at the time and in relation to the
accused’s perception of those facts. Since the test is
objective, the accused’s perception of the facts is not to
be considered for the purpose of assessing malice or
intention on the accused’s part but only to form a basis
for a conclusion as to whether or not the accused’s
conduct, in view of his perception of the facts, was
reasonable. This is particularly true where, as here, the
accused have raised the defence of mistake of fact. If an
accused under s. 202 has an honest and reasonably held
belief in the existence of certain facts, it may be a
relevant consideration in assessing the reasonableness of
his conduct. For example, a welder, who is engaged to work
in a confined space believing on the assurance of the
owner of the premises that no combustible or explosive
material is stored nearby, should be entitled to have his
perception, as to the presence or absence of dangerous
materials, before the jury on a charge of manslaughter
when his welding torch causes an explosion and a
consequent death. As noted earlier, the Tuttons raised the defence of
mistake of fact at trial. They argued that the failure to
supply insulin was based upon the belief that the child
had been cured by divine intervention and that the failure
to provide medical care in timely fashion was based upon
the belief that the child was not seriously ill, so
medical assistance was not necessary. The trial judge, it
was argued, was in error in telling the jury that for any
such belief to be effective as a defence it must have been
reasonably held. It was held in this court in Pappajohn
v. The Queen (1980), 52 C.C.C. (2d) 481, 111
D.L.R. (3d) 1, [1980] 2 S.C.R. 120 (S.C.C.), that an
honest, though mistaken, belief in the existence of
circumstances which, if present, would make the questioned
conduct non-culpable would entitle an accused to an
acquittal. It was also held in Pappajohn that
the honest belief need not be reasonable, because its
effect would be to deny the existence of the requisite mens
rea. The situation would be different, however,
where the offence charged rests upon the concept of
negligence, as opposed to that of the guilty mind or
blameworthy mental state. In such case, an unreasonable
though honest belief on the part of the accused would be
negligently held. The holding of such a belief could not
afford a defence when culpability is based on negligent
conduct. I would therefore conclude that the trial judge
made no error in charging the jury to the effect that any
mistaken belief which could afford a defence in a charge
of criminal negligence would have to be reasonable. In the case at bar, then, the assertion of the Tuttons
that they believed a cure had been effected by divine
intervention and that insulin was not necessary for the
preservation of the child’s life would have to be
considered by the jury. The jury would have to consider
whether such belief was honest and whether it was
reasonable. In this, they would be required to consider
the whole background of the case. They would have to take
into account the experience of the Tuttons with the
child’s illness; the fact that they had seen the result of
the withdrawal of insulin on one occasion and that they
had been informed of its necessity for the continued care
of the child; and, that Mrs. Tutton had received some
formal instruction or training in dealing with diabetes
and diabetics. They would, as well, have to consider
whether the belief in a miraculous cure leading to the
conclusion that insulin and medical care were not
required, though honest, was reasonable. Upon these facts
and all others concerning the matter which were revealed
in the evidence, the jury would be required to decide
whether the refusal of insulin and medical attention
represented a marked and significant departure from the
standard to be observed by reasonably prudent parents. I would dismiss the appeal and confirm the direction for
a new trial. LAMER J.:—I have read the reasons of my
colleague, Mr. Justice McIntyre, and I am in agreement
with them, subject to the following remarks. I am of the
view that, when applying the objective norm set out by
Parliament in s. 202 of the Criminal Code, there
must be made “a generous allowance” for factors which are
particular to the accused, such as youth, mental
development, education: see Don Stuart, Canadian
Criminal Law: A Treatise, 2nd ed. (1987), p. 194,
Toronto: Carswell; see also Toni Pickard, “Culpable
Mistakes and Rape: Relating Mens rea tothe
Crime” (1980), 30 U.T.L.J. 75. When this is done, as we
are considering conduct which is likely to cause death,
that is high-risk conduct, the adoption of a subjective or
of an objective test will, in practice, nearly if not
always produce the same result: see Eric Colvin,
“Recklessness and Criminal Negligence” (1982), 32 U.T.L.J.
345. I would, as does my colleague Mr. Justice McIntyre,
dismiss these appeals and let the order for a new trial
stand. WILSON J.:—I have had the benefit of the
reasons of my colleagues McIntyre and Lamer JJ. and I
agree with them that the appeal should be dismissed and a
new trial ordered because the trial judge’s charge failed
to make clear to the jury that the Crown had the burden to
prove all the elements of the offence of manslaughter by
criminal negligence. I do not, however, agree with my
colleagues’ conclusion that criminal negligence under s.
202 of the Criminal Code, R.S.C. 1970, c. C-34,
consists only of conduct in breach of an objective
standard and does not require the Crown to prove that the
accused had any degree of guilty knowledge. I also have
reservations concerning the approach my colleagues suggest
is available in order to relieve against the harshness of
the objective standard of liability which they find in s.
202 and to ensure that the morally innocent are not
punished for the commission of serious criminal offences
committed through criminal negligence. … I wish to deal first with the implications of my
colleagues’ approach in this case. By concluding that s.
202 of the Criminal Code prohibits conduct and
the consequences of mindless action absent any blameworthy
state of mind, they have, in effect, held that the crime
of criminal negligence is an absolute liability offence.
Conviction follows upon proof of conduct which reveals a
marked and substantial departure from the standard
expected of a reasonably prudent person in the
circumstances regardless of what was actually in the
accused’s mind at the time the act was committed.… In recent years courts and commentators have sought to
deal with those aspects of s. 202 which seem to be in
tension with a subjective standard. In his
valuable treatise, Principles of Criminal Law
(1986), Professor Eric Colvin has written at p. 120: The other Supreme Court case to which Professor Colvin
refers is Arthurs v. The Queen (1972), 7 C.C.C.
(2d) 438 at p. 442, 28 D.L.R. (3d) 565, [1974] S.C.R. 287
(S.C.C.), in which Ritchie J. after examining the wording
of s. 202 stated: “conduct disclosing wanton or reckless
disregard for the lives or safety of others constitutes prima
facie evidence of criminal negligence.”
Ritchie J. then went on to elaborate on what this test
means in the context of deciding whether the trial judge
had erred in failing to outline a possible defence to the
jury. He stated at p. 444: What emerges from the test outlined by Ritchie J. in Arthurs
is, in my view, a very workable test that is consistent
with both the text and purpose of s. 202 and with the
basic principles of penal liability. Conduct
that displays a wanton or reckless disregard for the lives
or safety of others will constitute the actus reus
of the offence under s. 202 and the prima facie
evidence of the accused’s blameworthy state of mind. It
can be assumed that a person functioning with normal
faculties of awareness and engaging in conduct which
represents such a grave departure from the norm is either
aware of the risk or is wilfully blind to the risk. Proof
of the conduct will, in other words, cast an evidential
burden on the accused to explain why the normal inference
of conscious awareness or wilful blindness should not be
drawn. The inference will arise in most cases
because the intent requirement under s. 202 is the minimal
intent requirement of awareness or advertence or wilful
blindness to the prohibited risk. As Ritchie J.
noted in Arthurs at p. 447 the more expansive
intent requirement of deliberation is not a necessary
element of the offence set out in s. 202. Professor Glanville Williams in his work Criminal
Law: The General Part, 2nd ed. (1961), explained
the minimal nature of the mental element for advertent
negligence and the important evidentiary use of objective
standards in determining the subjective state of mind of
what he terms advertent negligence. He defined the
requirement of recklessness in advertent negligence as
follows at pp. 53-5: Likewise, P.J.T. O’Hearn has indicated that the
requirements of advertent negligence encompass any
consciousness of the prohibited risk or “the mental state
of one who is doing what appears to be taking chances but
who is blindly wilful in doing so”: “Criminal Negligence:
An Analysis in Depth”, ibid., p. 422. To take
account of the minimal nature of the mental element of
recklessness, Professor Williams explained in Criminal
Law: The General Part, ibid., pp. 55-6: I would add that the importance of what the reasonable
person would have foreseen to the determination of whether
a particular accused would have become aware or wilfully
blind to the prohibited risk will vary with the context.
For example, in the case of a licensed driver engaging in
high-risk motoring, I am in general agreement with Morden
J.A. in R. v. Sharp (1984), 12 C.C.C. (3d) 428
at pp. 4365, 39 C.R. (3d) 367, 26 M.V.R. 279 (Ont. C.A.),
that it is open to the jury to find the accused’s
blameworthy state of mind from driving which shows wanton
or reckless disregard for the lives or safety of others
subject to an explanation in the evidence which would
account for the deviant conduct such as a sudden
mechanical malfunction or a bee sting or other accident
beyond the accused’s control. I would think that in the
driving context where risks to the lives and safety of
others present themselves in a habitual and obvious
fashion the accused’s claim that he or she gave no thought
to the risk or has simply a negative state of mind would
in most, if not all, cases amount to the culpable positive
mental state of wilful blindness to the prohibited risk.
The minimal nature of the requirement of a blameworthy
state of mind and the relevance of the objective standard
as a rebuttable mode of proof suggests to me that a
holding that s. 202 requires proof of the
mental element of advertence to the risk or wilful
blindness to the risk will not undermine the policy
objectives of the provision. The loss in terms of
deterrence and social protection would seem to be
negligible when the retention of a subjective standard
would at most offer protection for those who, due to some
peculiarity or unexpected accident, commit conduct which,
although it shows a reckless or wanton disregard for the
lives or safety of others, can be explained as
inconsistent with any degree of awareness of or wilful
blindness to such a risk. Should social protection require
the adoption of an objective standard it is open to
Parliament to enact a law which clearly adopts such a
standard. In my respectful view this court should not do
it for them. I do not think that a subjective interpretation of s.
202renders the role of manslaughter committed by means of
criminal negligence superfluous within the scheme of the
homicide provisions of the Criminal Code. The
murder provisions will in general be available only if a
higher degree of intent is proven than awareness of or
wilful blindness to a risk to the lives and safety of
others. For example s. 212(a) and (b) {s.
229(a)(i), (ii)}involve the higher degree of mens rea
of either meaning to cause death or meaning to cause
bodily harm with the knowledge that it is likely to cause
death and being reckless as to whether death ensues or
not. There may be some overlap between the offence of
committing culpable homicide by criminal negligence and
the murder offences found in ss. 212(c) and
213{now ss. 229(c), 230}but these murder provisions seem
to be a distinct part of the statutory scheme in that they
are addressed to the specific issue of killings which
result from either the pursuit of an unlawful object or
the commission of specified indictable offences. Manslaughter
by means of advertent criminal negligence would still, in
my view, have a role to play in prohibiting killings done
with a more minimal intent than required under s. 212(a)
and (b) and in contexts which would not be
covered by ss. 212(c) and 213. In recognition of the harshness of a uniform application
of an objective standard of criminal liability, much of
the recent work in criminal jurisprudence has canvassed
the possibility of introducing a subjective dimension into
the objective standard in order to relieve the harshness
of imposing an objective standard on those who, because of
their peculiar characteristics, could not fairly be
expected to live up to the standard set by the reasonable
person. H.L.A. Hart was perhaps the first to
explore this possibility in his essay “Negligence, Mens
rea and Criminal Responsibility” in Oxford
Essays in Jurisprudence, c. 2 (1961). He
recognized the dangers of the use of an objective standard
at p. 47: In response to this most legitimate fear, Professor Hart
proposed the following two-pronged test for criminal
negligence: A similar approach has been taken by the criminal law
theorist George Fletcher. Professor Fletcher also proposed
that criminal liability for negligent conduct be
determined in a two-step process: the first being the
determination of wrongdoing which in the case of the
prohibition of negligence would proceed on the basis of
breach of an objective standard and the second being the
process by which the court determines whether it would be
fair to hold a particular accused responsible for the act
of wrongdoing. Professor Fletcher notes in Rethinking
Criminal Law (1978), p. 511: See also G. Fletcher, “The Theory of Criminal Negligence:
A Comparative Analysis”, 119 U. Pa L.R. 401 (1971); A.
Stalker, “Can George Fletcher Help Solve The Problem of
Criminal Negligence” (1981), 7 Queens L.J. 274. Professor
Toni Pickard has also adopted an approach to this issue
similar to that of Professors Hart and Fletcher. She
proposes in “Culpable Mistakes and Rape: Relating Mens
rea to the Crime” (1980), 30 U.T.L.J. 75 at p. 79,
to modify an objective standard of unreasonableness so
that “the relevant characteristics of the particular
actor, rather than those of the ordinary person” will be
“the background against which to measure the
reasonableness of certain conduct or beliefs”. Professor
Pickard elaborates: In their judgments in this case my colleagues McIntyre
and Lamer JJ. seem to have adopted variations of the above
developments. McIntyre J., for example, states: My colleague then, however, goes on to suggest that the
factual perceptions of the accused must be not only honest
but reasonable in order to be factored into the assessment
of the objective standard. For example, he suggests that
the appellants in this case should not be held to the
standard of honest but mistaken belief in circumstances
which would render their conduct not culpable as set out
in Pappajohn, supra, but rather that their
beliefs and perceptions in order to be considered must not
be negligently or unreasonably held. To my mind, when the
offence charged is criminal negligence the distinction
from Pappajohn lies not in the introduction of
an overriding standard of reasonableness, as this in
effect holds the accused simply to the standards of what
would be expected from the reasonable person, but rather
in the degree of guilty knowledge that must be proven.
Although a person may have an honest yet unreasonable view
of the circumstances which would render him or her in the
large sense blameless, this would not necessarily decide
the relevant question of whether he or she had any
awareness of the prohibited risk or at some time during
the relevant transaction wilfully blinded him or herself
to an otherwise obvious risk. To require, as does my
colleague, that all misperceptions be reasonable will, in
my view, not excuse many of those who through no fault of
their own cannot fairly be expected to live up to the
standard of the reasonable person. My colleague Justice Lamer takes a somewhat different
approach. He suggests that courts when applying the
objective standard in s. 202 should make “‘a generous
allowance’ for factors which are particular to the
accused, such as youth, mental development, education”. I
do not doubt that an expansive application of this
approach could relieve some of the harshness of applying
an objective standard to those who could not fairly be
expected to meet the standard and I am cautiously
sympathetic to attempts to integrate elements of
subjective perception into criminal law standards that are
clearly objective: see R. v. Vasil (1981), 58
C.C.C. (2d) 97, 121 D.L.R. (3d) 41, [1981] 1 S.C.R. 469
(S.C.C.); R. v. Hill (1986), 25 C.C.C. (3d)
322, 27 D.L.R. (4th) 187, [1986] 1 S.C.R. 313 (S.C.C.).
Despite this, the test proposed by my colleague suffers,
in my respectful view, from the various degrees of over
and under-inclusiveness that would be expected from a test
which is only a rough substitute for a finding of a
blameworthy state of mind in each case. For example, an
instruction to the trier of fact that they are to hold a
young accused with modest intelligence and little
education to a standard of conduct that one would expect
from the reasonable person of tender years, modest
intelligence and little education sets out a fluctuating
standard which in my view undermines the principles of
equality and individual responsibility which should
pervade the criminal law. It tells the jury simply to
lower the standard of conduct expected from such people
regardless of whether in the particular case the accused
attained the degree of guilty knowledge that I have set
out above. Professor Fletcher in “The Theory of Criminal
Negligence: A Comparative Analysis” has termed the
decision whether to make the standard of liability more or
less objective by including or excluding specific personal
characteristics a “policy question”, “a low visibility
device for adjusting the interests of competing classes of
litigants” and I respectfully agree with the following
criticism he makes of this process at pp. 407-8: “The
question in the criminal context is not one of adjusting
the interests of competing classes of litigants, but of
justifying the state’s depriving an individual of his
liberty.” Professor Fletcher’s solution to this problem,
the introduction of a comprehensive range of
individualized excuses, is in my view far from realization
in Canadian criminal law jurisprudence and, as such, the
concern he identifies of the culpability of the individual
is still, in my view, best served by continued adherence
to subjective standards of liability. One problem with attempts to individualize an objective
standard is that regard for the disabilities of the
particular accused can only be applied in a general
fashion to alter the objective standard. It seems
preferable to me to continue to address the question of
whether a subjective standard (a standard, I might add,
that in its form is applied equally to all and consistent
with individual responsibility) has been breached in each
case than to introduce varying standards of conduct which
will be only roughly related to the presence or absence of
culpability in the individual case. Varying the level of
conduct by factoring in some personal characteristics may
be unavoidable if the court is faced with a clearly
objective standard but it should, in my opinion, be
avoided if the more exacting subjective test is available
as a matter of statutory interpretation. I have no doubt
that factors such as the accused’s age and mental
development will often be relevant to determining
culpability but under a subjective test they will be
relevant only as they relate to the question of whether
the accused was aware of or wilfully blind to the
prohibited risk and will not have to be factored in
wholesale in order to adjust the standard of conduct that
is expected from citizens. Attempts to introduce subjective elements into objective
standards risk not only being over-inclusive in the sense
that they mandate a lowering of the objective standard of
liability on a characteristic by characteristic basis,
they also risk the danger of being under-inclusive for
those accused who have idiosyncrasies that cannot be
articulated ex ante into the necessarily
limited list of personal characteristics which can be
grafted onto an objective standard. For example, the
characteristics listed by my colleague Lamer J. would not
relieve the harshness of the application of an objective
standard for a driver who, because of a sudden injury or
ailment, drove a motor vehicle in a fashion which showed a
reckless or wanton disregard for the lives and safety of
others. It would not matter that the particular accused
was not capable of adverting or wilfully closing his or
her eyes to the prohibited risk; the conduct in itself
would have breached the objective standard. The limited range of personal characteristics which can
be imported into a modified objective standard is often
justified by the notion that a thoroughly subjective
approach will allow those who deprive themselves of normal
awareness through voluntary intoxication or fits of temper
to be exempted from criminal liability. My answer to this
(it was also my answer in the cases of Bernard,
supra, and R. v.Quin (1988), 44 C.C.C.
(3d) 570, [1988] 2 S.C.R. 825, 67 C.R. (3d) 162 (S.C.C.),
is that greater attention must be paid to the minimal
levels of guilty knowledge that are required for
conviction of many offences of violence under the Criminal
Code. It is, in my respectful view, perfectly
permissible for the trier of fact to reason from an
objective standard and ask the question: must not the
accused have had the minimal awareness of what he or she
was doing? The important point is that this question
is rebuttable and leaves room for acquitting an accused
who, for whatever reason, lacked the minimal awareness
that would normally accompany the commission of high risk
or violent acts. To sum up, although I agree with my colleagues as to the
proper disposition of this appeal, I am unable to agree
with their conclusion that the offence of manslaughter by
criminal negligence consists of conduct in breach of an
objective standard. [Dickson C.J.C. and La Forest J. concurred with Wilson J.
L’Heureux-Dubé J. concurred with McIntyre J. Beetz,
Estey, and Le Dain JJ. took no part in the judgment.] Appeal dismissed. R. v. Hundal CORY J.:— At issue on this appeal is
whether there is a subjective element in the requisite mens
rea which must be established by the Crown in
order to prove the offence of dangerous driving described
in s. 233 of the Criminal Code, R.S.C. 1970, c.
C-34, as amended by 1985, c.19, s 36 (now R.S.C. 1985, c.
C-46, s. 249). The accident occurred at about 3:40 in the afternoon in
downtown Vancouver. The streets were wet at the time, a
situation not uncommon to that city. The downtown traffic
was heavy. The appellant was driving his dump truck
eastbound on Nelson Street, a four-lane road, approaching
its intersection with Cambie Street. At the
time, his truck was overloaded. It exceeded by 1160
kilograms the maximum gross weight permitted for the
vehicle. He was travelling in the passing lane for
eastbound traffic. The deceased was travelling southbound
on Cambie Street. He had stopped for a red light at the
intersection with Nelson Street. When the light turned
green, the deceased proceeded into the intersection
through a crosswalk, continued south across the two lanes
for westbound traffic on Nelson Street and reached the
passing lane for eastbound traffic. At that moment, his
car was struck on the right side by the dump truck killing
him instantly. The appellant stated that when he approached the
intersection of Nelson and Cambie Streets he observed that
the light had turned amber. He thought that he could not
stop in time so he simply honked his horn and continued
through the intersection when the impact occurred. Several
witnesses observed the collision. They testified that the
appellant’s truck entered the intersection after the
Nelson Street traffic light had turned red. It was
estimated that at least one second had passed between the
end of the amber light and the time when the dump truck
first entered the intersection. A Vancouver police officer
gave evidence that the red light for Nelson at this
intersection is preceded by a three-second amber light and
there is a further one-half-second delay before the Cambie
light turned green. One witness observed that the
deceased’s vehicle had travelled almost the entire width
of the intersection before it was struck by the truck.
Another witness, Mr. Mumford, had been travelling close to
the appellant’s truck through some 12 intersections. He
testified that on an earlier occasion, the appellant went
through an intersection as the light turned red. He
estimated the speed of the truck at the time of the
collision was between 50 and 60 km/h.… The appellant contends that the prison sentence which may
be imposed for a breach of s.233 (now s. 249) makes it
evident that an accused cannot be convicted without proof
beyond a reasonable doubt of a subjective mental element
of an intention to drive dangerously. Certainly every
crime requires proof of an act or failure to act, coupled
with an element of fault which is termed the mens
rea. This court has made it clear that s. 7 of the
Canadian Charter of Rights and Freedoms prohibits
the imposition of imprisonment in the absence ofproof of
that element of fault: see Reference re: s 94(2) of
Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24
D.L.R. (4th) 536, [1985] 2 S.C.R. 486, and R
v.Vaillancourt (1987), 39 C.C.C. (3d) 118, 47
D.L.R. (4th) 399, [1987] 2 S.C.R. 636. Depending on the provisions of the particular section and
the context in which it appears, the constitutional
requirement of mens rea may be satisfied in
different ways. The offence can require proof of a
positive state of mind such as intent, recklessness or
wilful blindness. Alternatively, the mens rea
orelement of fault can be satisfied by proof of negligence
whereby the conduct of the accused is measured on the
basis of an objective standard without establishing the
subjective mental state of the particular accused. In the
appropriate context, negligence can be an acceptable basis
of liability which meets the fault requirement of s. 7 of
the Charter see R. v. Wholesale Travel GroupInc.
(1991), 67 C.C.C. (3d) 193, 84 D.L.R. (4th) 161,
[1991] 3 S.C.R. 154. Thus, the intent required for a
particular offence may be either subjective or objective. A truly subjective test seeks to determine what was
actually in the mind of the particular accused at the
moment the offence is alleged to have been committed. In
his very useful text, Professor Stuart puts it in this way
in Canadian Criminal Law, ibid., at pp. 123-4,
and p. 125: On the other hand, the test for negligence is an
objective one requiring a marked departure from the
standard of care of a reasonable person. There is no need
to establish the intention of the particular accused. The
question to be answered under the objective test concerns
what the accused “should” have known. The potential
harshness of the objective standard may be lessened by the
consideration of certain personal factors as well as the
consideration of a defence of mistake of fact: see
McIntyre J., and Lamer J. as he then was, in R. v.
Tutton (1989), 48 C.C.C. (3d) 129, [1989] l S.C.R.
1392, 69 C.R. (3d) 289, and R. v. Waite(1989),
48 C.C.C. (3d) l, [1989] 1 S.C.R. 1436, 69 C.R. (3d) 323.
Nevertheless, there should be a clear distinction in the
law between one who was aware (pure subjective intent) and
one who should have taken care irrespective of awareness
(pure objective intent). The nature of driving offences suggests that an objective
test, or more specifically a modified objective test, is
particularly appropriate to apply to dangerous driving. I
say that for a number of reasons. First, driving can only be undertaken by those who have a
licence. The effect of the licensing requirement is to
demonstrate that those who drive are mentally and
physically capable of doing so. Moreover, it serves to
confirm that those who drive are familiar with the
standards of care which must be maintained by all drivers.
There is a further aspect that must be taken into
consideration in light of the licensing requirement for
drivers. Licensed drivers choose to engage in the
regulated activity of driving. They place themselves in a
position of responsibility to other members of the public
who use the roads. As a result, it is unnecessary for a court to establish
that the particular accused intended or was aware of the
consequences of his or her driving. The minimum standard
of physical and mental well-being coupled with the basic
knowledge of the standard of care required of licensed
drivers obviate that requirement. As a general rule, a
consideration of the personal factors, so essential in
determining subjective intent, is simply not necessary in
light of the fixed standards that must be met by licensed
drivers. Secondly, the nature of driving itself is often so
routine, so automatic that it is almost impossible to
determine a particular state of mind of a driver at any
given moment. Driving motor vehicles is something that is
familiar to most adult Canadians. It cannot be denied that
a great deal of driving is done with little conscious
thought. It is an activity that is primarily reactive and
not contemplative. It is every bit as routine and familiar
as taking a shower or going to work. Often it is
impossible for a driver to say what his or her specific
intent was at any moment during a drive other than the
desire to go from A to B. It would be a denial of common sense for a driver, whose
conduct was objectively dangerous, to be acquitted on the
ground that he was not thinking of his manner of driving
at the time of the accident. Thirdly, the wording of the section itself which refers
to the operation of a motor vehicle “in a manner that is
dangerous to the public, having regard to all the
circumstances” suggests that an objective standard is
required. The “manner of driving” can only be compared to
a standard of reasonable conduct. That standard can be
readily judged and assessed by all who would be members of
juries. Thus, it is clear that the basis of liability for
dangerous driving is negligence. The question to be asked
is not what the accused subjectively intended but rather
whether, viewed objectively, accused exercised the
appropriate standard of care. It is not overly difficult
to determine when a driver has fallen markedly below the
acceptable standard of care. There can be no doubt that
the concept of negligence is well understood and readily
recognized by most Canadians. Negligent driving can be
thought of as a continuum that progresses, or regresses,
from momentary lack of attention giving rise to civil
responsibility through careless driving under a provincial
Highway Traffic Act to dangerous driving under
the Criminal Code. Fourthly, the statistics which demonstrate that all too
many tragic deaths and disabling injuries flow from the
operation of motor vehicles indicate the need to control
the conduct of drivers. The need is obvious and urgent.
Section 233 (now s. 249) seeks to curb conduct which is
exceedingly dangerous to the public. The statistics on car
accidents in Canada indicate with chilling clarity the
extent of the problem. The number of people killed and
injured each year in traffic accidents is staggering. Data
from Transport Canada shows that, in 1991, the number of
deaths related to traffic accidents in Canada was 3,654.
In 1990, there were 178,423 personal injury traffic
accidents, 630,000 property-damage accidents and 3,442
fatal accidents. These figures highlight the tragic social
cost which can and does arise from the operation of motor
vehicles. There is therefore a compelling need for
effective legislation which strives to regulate the manner
of driving vehicles and thereby lessen the carnage on our
highways. It is not only appropriate but essential in the
control of dangerous driving that an objective standard be
applied. Although an objective test must be applied to the offence
of dangerous driving, it will remain open to the accused
to raise a reasonable doubt that a reasonable person would
have been aware of the risks in the accused’s conduct. The
test must be applied with some measure of flexibility.
That is to say the objective test should not be applied in
a vacuum but rather in the context of the events
surrounding the incident. There will be occasions when the manner of driving viewed
objectively will clearly be dangerous, yet the accused
should not be convicted. Take, for example, a driver who,
without prior warning, suffers a totally unexpected heart
attack, epileptic seizure or detached retina. As a result
of the sudden onset of a disease or physical disability
the manner of driving would be dangerous, yet those
circumstances could provide a complete defence despite the
objective demonstration of dangerous driving. Similarly, a
driver who, in the absence of any warning or knowledge of
its possible effects, takes a prescribed medication which
suddenly and unexpectedly affects the driver in such a way
that the manner of driving was dangerous to the public,
could still establish a good defence to the charge
although it had been objectively established. These
examples, and there may well be others, serve to
illustrate the aim and purpose of the modified objective
test. It is to enable a court to take into account the
sudden and unexpected onset of disease and similar human
frailties as well as the objective demonstration of
dangerous driving. A modified objective test was aptly described by McIntyre
J. in R. v. Tutton, supra, at pp. 140-1.
Although he was dealing with criminal negligence, his
words, at p. 140, are apt in considering the dangerous
driving section which is essentially concerned with
negligent driving that constitutes a marked departure from
the norm: The application of an objective test under s. 202 of
the CriminalCode, however, may not be made in
a vacuum. Events occur within the framework of other
events and actions and when deciding on the nature of
the questioned conduct, surrounding circumstances must
be considered. The decision must be made on a
consideration of the facts existing at the time and in
relation to the accused’s perception of those facts.
Since the test is objective, the accused’s perception of
the facts is not to be considered for the purpose of
assessing malice or intention on the accused’s part but
only to form a basis for a conclusion as to whether or
not the accused’s conduct, in view of his perception of
the facts, was reasonable . . . If an accused under s.
202 has an honest and reasonably held belief in the
existence of certain facts, it may be a relevant
consideration in assessing the reasonableness of his
conduct. For example, a welder, who is engaged to work
in a confined space believing on the assurance of the
owner of the premises that no combustible or explosive
material is stored nearby, should be entitled to have
his perception, as to the presence or absence of
dangerous materials, before the jury on a charge of
manslaughter when his welding torch causes an explosion
and a consequent death. In summary, the mens rea for the offence of
dangerous driving should be assessed objectively but in
the context of all the events surrounding the incident.
That approach will satisfy the dictates both of common
sense and fairness. As a general rule, personal factors
need not be taken into account. This flows from the
licensing requirement for driving which assures that all
who drive have a reasonable standard of physical health
and capability, mental health and a knowledge of the
reasonable standard required of all licensed drivers. In light of the licensing requirement and the nature of
driving offences, a modified objective test satisfies the
constitutional minimum fault requirement for s. 233 (now
s. 249) of the Criminal Code and is eminently
well suited to that offence. It follows then that a trier of fact may convict if
satisfied beyond a reasonable doubt that, viewed
objectively, the accused was in the words of the section,
driving in a manner that was “dangerous to the public,
having regard to all the circumstances, including the
nature, condition and use of such place and the amount of
traffic that at the time is or might reasonably be
expected to be on such place”. In making the assessment,
the trier of fact should be satisfied that the conduct
amounted to a marked departure from the standard of care
that a reasonable person would observe in the accused’s
situation. Next, if an explanation is offered by the accused, such
as a sudden and unexpected onset of illness, then in order
to convict, the trier of fact must be satisfied that a
reasonable person in similar circumstances ought to have
been aware of the risk and of the danger involved in the
conduct manifested by the accused. If a jury is
determining the facts, they may be instructed with regard
to dangerous driving along the lines set out above. There
is no necessity for a long or complex charge. Neither the
section nor the offence requires it. Certainly the
instructions should not be unnecessarily confused by any
references to advertent or inadvertent negligence. The
offence can be readily assessed by jurors who can arrive
at a conclusion based on common sense and their own
everyday experiences. Let us now consider whether the modified objective test
was properly applied in this case. The trial judge
carefully examined the circumstances of the accident. He
took into account the busy downtown traffic, the weather
conditions, and the mechanical conditions of the accused’s
vehicle. He concluded, in my view very properly, that the
appellant’s manner of driving represented a gross
departure from the standard of a reasonably prudent
driver. No explanation was offered by the accused that
could excuse his conduct. There is no reason for
interfering with the trial judge’s finding of fact and
application of the law. In the result the appeal must be dismissed. MCLACHLIN J.:—I agree with the reasons
and disposition proposed by Justice Cory, but wish to add
certain observations on the concept of fault and the
“modified objective test”. As my colleague Cory J. points out, fault in criminal
offences may be assessed by an objective standard or by a
subjective standard. An offence can require proof of a
positive state of mind such as intent, recklessness or
wilful blindness. If so, the Crown must prove beyond a
reasonable doubt that the accused possessed the requisite
state of mind. This is a subjective test, based on what
was actually in the accused’s mind. On the other hand, the
faultmay lie in the accused’s negligence or inadvertence.
In this case an objective test applies; the question is
not what was in the accused’s mind but the absence of the
mental state of care. This want of due care is inferred
from conduct of the accused. If that conduct evinces a
want of care judged by the standard of a reasonable person
in similar circumstances, the necessary fault is
established. The relevant circumstances may
include circumstances personal to the accused, relating to
whether the accused lacked the capacities or powers
necessary to attain the mental state of care required in
the circumstances. Although the fault required by the subjective test is
arguably greater than that required by the objective test,
either is capable of establishing the mens rea of
a criminal offence. As Professor Stuart states, “not
thinking, or not thinking properly” can be a sufficient
basis for attributing fault to an accused (Stuart, in
“Criminal Negligence: Deadlock and Confusion in the
Supreme Court”, 69 C.R. (3d) 331 (1989), at p. 333). In
his view, when engaging in dangerous behaviour, ... a failure to exercise one’s capacities and powers
to bring about and control conduct and its risks is a
culpable failure, and sufficiently morally culpable to
attract the criminal sanction. In terms of deterrence,
on this notion, we can and do teach ourselves to take
care when we know that, if we do not, we will be
punished. We are often capable of becoming less
inadvertent. There is also an important pragmatic and
realistic consideration. The traditional subjective
awareness emphasis cannot cope with the truth that many
of our acts in the real world, such as driving a motor
vehicle, are automatic and reflexive and occur without
conscious thought. Marc Rosenberg similarly suggests that “sometimes it is
the very failure to advert to the circumstances which
renders the conduct so dangerous” (M. Rosenberg, “The Mens
rea Requirements of Criminal Negligence: R.
v. Waite and R. v. Tutton”, 2 J.M.V.L.
243 (1990), at p. 248). Professor Anne Stalker echoes this
sentiment: “[n]ot to punish people who engage in such
serious behaviour without considering its implications
seems to put a premium on ignorance with regard to some
very serious conduct” (M. Anne Stalker, “The Fault Element
in Recodifying Criminal Law: A Critique”, 14 Queen’s L.J.
119 (1989), at p. 127). Indeed, as Cory J. aptly puts it
at p. 12 of his reasons [ante, p.105], “[i]t
would be a denial of common sense for a driver, whose
conduct was objectively dangerous, to be acquitted on the
ground that he was not thinking of his manner of driving
at the time . . .”. It follows that a dangerous or repugnant act, coupled
with want of care representing a marked departure from the
standard of a reasonable person in all the circumstances,
may constitute a criminal offence. To accept the
appellant’s submission that in all criminal cases the
Crown must establish subjective mens rea would
be to put the range of culpable conduct described by
Stuart, Rosenberg and Stalker—conduct which has long
formed part of our criminal law—beyond the law’s reach.
That, to me, does not make sense. There must be a forthright recognition that there are
offences such as criminal negligence which must be based
on the objective standard. We need to know very clearly
when we are convicting on the basis of the fact that the
accused ought to have thought even though he did not. Cory J. also emphasizes the importance of this
distinction at p. 109 of his reasons [ante, p.104]:
“. . . there should be a clear distinction in the law
between one who was aware (pure subjective intent) and one
who should have taken care irrespective of awareness (pure
objective intent).” I am in agreement with this
conclusion. This brings me to the modified objective test. The label
“modified objective test” might be taken to suggest an
amalgam of objective and subjective factors; a test that
looks at what ought to have been in the accused’s mind,
but goes on to consider what was actually there or not
there. If this is what it means, it runs afoul of
Professor Stuart’s sensible admonition that jurists should
be very clear about whether they are convicting on the
basis of the subjective test or the objective test. On the
objective test, the Crown is not required to establish
what was in the accused’s mind as a matter of fact. Consideration of the context in which the term has been
used suggests that the phrase “modified objective test”
was introduced in an effort to ensure that jurists
applying the objective test take into account all relevant
circumstances in the events surrounding the alleged
offence and give the accused an opportunity to raise a
reasonable doubt as to what a reasonable person would have
thought in the particular situation in which the accused
found himself or herself. Thus, Cory J. in discussing the
modified objective test at p. 10 [ante, p. 104]
stresses that “personal factors” may be raised, and
affirms at p. 14 [ante, pp. 106-7] that “it will
remain open to the accused to raise a reasonable doubt
that a reasonable person would have been aware of the
risks in the accused’s conduct”. He goes on to say: “The
test must be applied with some measure of flexibility.
That is to say the objective test should not be applied in
a vacuum but rather in the context of the events
surrounding the incident.” If, as my colleague suggests, McIntyre J. was describing
a modified objective test in R. Tutton (1989),
48 C.C.C. (3d) 129 at p. 140, [1989] 1 S.C.R. 1392, 69
C.R. (3d) 289, the language and example used indicate that
his concern too was to ensure that in applying the
objective test all relevant circumstances, including those
personal to the accused be considered. He reaffirms the
objective test by asserting that only “an honest and
reasonably held belief “ can exonerate the accused. In
other words, it is no defence to say, on the subjective
level, “I was being careful”, or “I believed I could do
what I did without undue risk”. The defence arises only if
that belief was reasonably held. McIntyre J. goes on to
offer the example of a welder who is engaged to work in a
confined space believing on the assurance of the owner of
the premises that no combustible or explosive material is
nearby. The welder charged in connection with a subsequent
explosion, McIntyre J. asserts, should be allowed to
introduce evidence that he believed there were no
combustible or explosive materials on the premises. This
is an objective test; the fact that the welder had been
told there were no combustible or explosive materials on
the site is one of the circumstances which a jury should
take into account in determining what a reasonable person
would have thought and done. Was it reasonable for the
welder in these circumstances to turn his torch on in the
enclosed space? The answer, on the objective test, is “of
course”. Nor does Cory J.’s example of “a totally unexpected heart
attack, epileptic seizure or detached retina” (at p. 15) [ante,
p. 107], which renders an accused unable to control his or
her motor vehicle, require the introduction of an element
of subjectivity. The better analysis, in my view, is that
the onset of a “disease or disability” makes the act of
losing control of the motor vehicle involuntary, with the
result that there is no actus reus. Thus, we do
not reach the question of what a reasonable person would
have been thinking or adverting to as the car goes off the
road, much less what the accused was in fact thinking or
not thinking. Alternatively, if the actus reus were
taken as established in these examples, the heart attack
or epileptic seizure might be viewed as a circumstance
which negates the ordinary inference of want of care which
flows from the fact of having lost control of a motor
vehicle. I would dispose of the appeal as proposed by Cory J. Appeal dismissed. R. v. Beatty The judgement of Bastarache, Deschamps, Abella, Charron
and Rothstein JJ. Was delivered by
[10] The tragic accident giving rise to the criminal
charges against Mr. Beatty happened on July 23, 2003 at
approximately 2:00 p.m. on Highway 1, about 14 km west of
Chase, British Columbia. The weather was clear,
sunny and very hot; the asphalt surface of the road well
travelled, in good repair, bare and dry. The
collision occurred when upon reaching a curve on the
highway the pick-up truck driven by Mr. Beatty
suddenly, and for no apparent reason, crossed the double
solid centre line into the path of an oncoming vehicle,
killing all three occupants. The circumstances in this case are different. Here
there is no evidence of any improper driving by Mr.
Beatty before his truck veered into the westbound lane
and into the oncoming vehicle. While that act
of driving was clearly negligent it occurred within a
matter of seconds. Moreover, there was no
evidence of any evasive measures or evidence of any
obstruction in the eastbound lane that might have caused
him to veer into the westbound lane. In my
view, the only reasonable inference to be drawn in these
circumstances, of Mr. Beatty’s manner of driving, was
that he experienced a loss of awareness, whether that
was caused by him nodding off or for some other reason.
That loss of awareness resulted in him continuing
to drive straight instead of following the curve in the
road and thereby cross the double solid line. These
few seconds of clearly negligent driving, which had
devastating consequences, are the only evidence of Mr.
Beatty’s manner of driving. In my view, Hundal
requires something more than a few seconds of lapsed
attention to establish objectively dangerous driving.
Criminal culpability cannot be found, beyond a
reasonable doubt, on such a paucity of evidence. [para.
36] [14] The trial judge then expounded on the distinction
between criminal and civil negligence as follows: This tragic accident occurred from a momentary lapse of
attention and snuffed out the lives of three
individuals. There is nothing a court can do or say that
will adequately redress the loss suffered by the
victims’ families in such circumstances. However,
in assessing criminal culpability it is not the
consequences of a negligent act of driving that
determines whether an accused’s manner of driving is
objectively dangerous. It is the driving
itself that must be examined. In my view, Mr.
Beatty’s few seconds of negligent driving, in the
absence of something more, is insufficient evidence to
support a finding of a marked departure
from the standard of care of a prudent driver. As
contemplated by Hundal Mr. Beatty’s negligent
driving undoubtedly falls within the continuum of
negligence that is certain to attract considerable civil
liability. It is in that forum that redress
for his actions will be found. [Emphasis in
original; para. 37.] [15] In light of this conclusion, the trial judge found
it unnecessary to consider the limited evidence regarding
Mr. Beatty’s explanation for the accident. However,
she added the following comment: If I had concluded that Mr. Beatty’s manner of driving
was objectively dangerous, I would have found this
evidence of a possible explanation for his dangerous
driving insufficient to raise a reasonable doubt that
his manner of driving was objectively dangerous. [para.
38] [16] The trial judge therefore acquitted Mr. Beatty on
all three counts. On appeal by the Crown, the
Court of Appeal found error in the approach adopted by the
trial judge. The court’s reasoning is aptly captured in
paras. 22-27 of the reasons for judgment where Finch
C.J.B.C., writing for the court, stated as follows:
[27] Not surprisingly, in the years that followed, the
requisite mens rea for certain negligence-based
criminal offences attracted much judicial scrutiny. Even
in cases where the constitutional validity of the
legislation was not impugned, the constituent elements of
the offence were now interpreted in the light of
minimal constitutional requirements. In
particular, the question whether the test for determining
the requisite mens rea for negligence-based
offences was subjective or objective was much debated.
In R. v. Tutton, [1989] 1 S.C.R. 1392, and
in R. v. Waite, [1989] 1 S.C.R. 1436, released
concurrently, the Court was equally divided (three of the
nine judges did not participate in the decisions) on the
question whether the offence of criminal negligence under
s. 202 (now s. 219) of the Criminal Code called
for a subjective or objective test. Tutton
concerned parents who caused the death of their son by
denying him the necessaries of life. Waite concerned
an impaired driver who caused the death of four young
persons and injured a fifth person when he played chicken
with a hayride. Three judges were of the view
that, in order to sit comfortably with principles of penal
liability and fundamental justice, the mens rea
for the offence of criminal negligence must be assessed
subjectively, requiring proof of a positive state of mind
such as intent, recklessness or wilful blindness. Three
other judges held that an objective test must be used in
determining criminal negligence, with different opinions
on how this objective test should be applied. 3.3.2 First Modification to the Objective
Test: The Marked Departure It would be a denial of common sense for a driver,
whose conduct was objectively dangerous, to be acquitted
on the ground that he was not thinking of his manner of
driving at the time of the accident. However, because the accused’s mental state is relevant
in a criminal setting, the objective test must be modified
to give the accused the benefit of any reasonable doubt
about whether the reasonable person would have appreciated
the risk or could and would have done something to avoid
creating the danger. On these occasions, even
when the manner of driving viewed objectively will clearly
be dangerous, the accused cannot be convicted. Cory J., in
Hundal, gave some useful examples (at p. 887): Take for example a driver who, without prior warning,
suffers a totally unexpected heart attack, epileptic
seizure or detached retina. As a result of the
sudden onset of a disease or physical disability the
manner of driving would be dangerous yet those
circumstances could provide a complete defence despite
the objective demonstration of dangerous driving. Similarly,
a driver who, in the absence of any warning or knowledge
of its possible effects, takes a prescribed medication
which suddenly and unexpectedly affects the driver in
such a way that the manner of driving was dangerous to
the public, could still establish a good defence to the
charge although it had been objectively established. [38] We can readily appreciate the injustice of branding
the driver in each of these examples as a criminal. In
the same vein, a reasonably held mistake of fact may
provide a complete defence if, based on the accused’s
reasonable perception of the facts, the conduct measured
up to the requisite standard of care. It is
therefore important to apply the modified objective test
in the context of the events surrounding the incident.
In Tutton, McIntyre J. provided the
following useful example in the context of a criminal
negligence charge (at p. 1432, repeated in Hundal,
at pp. 887-88): If an accused under s. 202 has an honest and reasonably
held belief in the existence of certain facts, it may be
a relevant consideration in assessing the reasonableness
of his conduct. For example, a welder, who is
engaged to work in a confined space believing on the
assurance of the owner of the premises that no
combustible or explosive material is stored nearby,
should be entitled to have his perception, as to the
presence or absence of dangerous materials, before the
jury on a charge of manslaughter when his welding torch
causes an explosion and a consequent death. [39] It is important however not to confuse the personal
characteristics of the accused with the context of the
events surrounding the incident. In the course
of the earlier debate on whether to adopt a subjective or
objective test, Lamer J. favoured an objective approach
but, in an attempt to alleviate its potential harshness,
he would have made generous allowances for factors
particular to the accused, such as youth, mental
development and education: see for example, Tutton,
at p. 1434. Under this approach, the young and
inexperienced driver’s conduct would be measured against
the standard expected of a reasonably prudent but young
and inexperienced driver. This approach,
however, was not favoured by other members of the Court.
As Wilson J. stated in Tutton, this
individualized approach “sets out a fluctuating standard
which in my view undermines the principles of equality and
individual responsibility which should pervade the
criminal law” (p. 1418).
(a) The Actus Reus [44] I wish to elaborate on certain aspects of this test
before applying it to the facts of this case. In the circumstances of this case, the unfortunate fact
that a person was killed added nothing to the conduct of
the appellant. The degree of negligence proved
against the appellant by means of the evidence that he
drove after drinking and went through a red light was
not increased by the fact that a collision occurred and
death resulted. If driving and drinking and
running a red light was not a marked departure from
the standard, it did not become so because a collision
occurred. In some circumstances,
perhaps, the actions of the accused and the consequences
flowing from them may be so interwoven that the
consequences may be relevant in characterizing the
conduct of the accused. That is not the case
here. [Emphasis added; p. 273.] 3.4.2 Determining the Mens Rea
The reasons of McLachlin C.J. and Binnie and LeBel JJ.
were delivered by [56] At para. 43, my colleague describes the actus
reus in terms of dangerous operation of a
motor vehicle and the mens rea in terms of a
marked departure from the standard of care that a
reasonable person would observe in the accused’s
circumstances. In discussing the actus reus,my
colleague observes that “[n]othing is gained by adding to
the words of s. 249 at this stage of the analysis” (para.
45). . . . a trier of fact may convict if satisfied beyond a
reasonable doubt that, viewed objectively, the accused
was, in the words of the section, driving in a manner
that was “dangerous to the public, having regard to all
the circumstances, including the nature, condition and
use of such place and the amount of traffic that at the
time is or might reasonably be expected to be on such
place”. In making the assessment, the trier
of fact should be satisfied that the conduct amounted
to a marked departure from the standard of care that a
reasonable person would observe in the accused’s
situation. [Emphasis added; p. 888.] [60] Cory J. then went on to state that even where this
is established, the accused may offer an excuse such as a
sudden and unexpected onset of illness, thereby raising a
reasonable doubt as to mens rea. The foregoing analysis suggests the following line of
inquiry in cases of penal negligence. The
first question is whether actus reus is
established. This requires that the
negligence constitute a marked departure from the
standards of the reasonable person in all the
circumstances of the case. . . . 1. The actus reus requires a marked
departure from the normal manner of driving.
[68] The problem at the heart of this case is whether acts
of momentary lapse of attention can constitute the offence
of dangerous driving. The accused was driving in
an entirely normal manner until his vehicle suddenly
swerved over the centre line of the road, for reasons that
remain unclear. Clearly there was momentary
lapse of attention. The issue is whether this is
capable of establishing the actus reus and mens
rea of the offence. [80] The only evidence adduced by the Crown in the case
at bar was evidence of a momentary lapse of attention that
caused the accused’s vehicle to cross the centre line of
the highway. In all other respects, the
accused’s driving was, on the evidence, entirely normal.
[92] I would allow the appeal and restore the acquittals.
R. v. De Ciantis British Columbia Court of
Appeal [2011] BCCA 437 Bennett
J.A. (Levine and
Frankel JJ.A. concurring):—On February 21, 2007, an accident
occurred on Benvoulin Road in Kelowna, B.C. Mr. De
Ciantis struck two
pedestrians while driving his Toyota pick-up truck,
causing the death of Kim
Black and significant injuries to Russell Leon. He was
convicted of dangerous
driving causing death and dangerous driving causing
bodily harm. He appeals
those convictions. In my respectful view, the
trial judge’s verdict is unreasonable and
not supported by the evidence. This was a tragic
accident, but the driving in
question was not such that it should attract criminal
liability. I would allow
the appeal and enter an acquittal on each count. Mr.
De Ciantis’ driving was
not prudent and illjudged. My conclusion should not be
taken as condoning his
conduct, but is merely a finding that it did not meet
the threshold for a
criminal conviction. Background
Benvoulin Road consists of five
lanes, two northbound, two southbound, and a dual
direction centre lane for
left turns from either side of the road. There are no
sidewalks at the location
of the accident. There is a fog line on the right side
of the road and a paved
shoulder...1.4 metres wide. There are street lights
every 65 metres. Benvoulin
is an arterial road, and local drivers treat it as a
highway. The speed limit
was 60 km/h at the time of the accident, but was
raised to 70 km/h shortly
afterwards. It is common for people to drive 70-80
km/h, or faster, on this
road. The accident occurred at
approximately 7:30 p.m. Kim Black, Keri
Chandler and Russell Leon were proceeding northbound
on Benvoulin Road. They
were likely travelling three-abreast. Mr. Black was
walking on or very close to
the fog line. Mr. Leon was to the right of Mr. Black,
travelling in a motorized
scooter. Ms. Chandler was walking to the right of Mr.
Leon. ...Although they
were wearing a combination of light and dark clothing,
the drivers who
testified said the pedestrians’ clothing was dark. Mr. Leon’s scooter had two red
reflector lights on the back, but the
drivers who testified did not notice them. All of the
drivers, except Mr. De
Ciantis, saw the pedestrians prior to passing them,
some sooner than others. The night was clear and cold.
It was not raining. The stretch of
road where the accident occurred was straight, dry,
and in good repair. There
was a steady flow of traffic in both directions. Mr. De Ciantis was driving on
K.L.O. Road. He stopped at the light
at Benvoulin. There are two lanes which permit left
turns onto Benvoulin from
K.L.O. He made a left turn from the fast lane
northbound onto Benvoulin.
Traffic was in a cluster at this point, and Mr. De
Ciantis decided to move out
of the traffic. On his evidence, he changed lanes to
the slow lane and passed
some of the traffic beside him. He then changed back
into the fast lane. A red
truck, driven by Ms. McKamey, cut in front of him, and
he changed lanes back to
the slow lane. Mr. De Ciantis planned to remain in the
slow lane in order to
make a right turn ahead, but he came up behind a
slower-moving vehicle. He
changed lanes to pass the vehicle, and, once past it,
performed a shoulder
check to change back into the slow lane. He testified
that as he was doing the
shoulder check, he over-steered and struck something.
He did not realize that
he had struck anyone. Mr. De Ciantis did not stop
immediately, but he stopped
shortly afterwards and remained at the scene. He did
not see the pedestrians on
the side of the road prior to the accident. Mr. De Ciantis struck and
killed Kim Black. Russell Leon was seriously
injured. Ms. Chandler was not injured. The accident reconstruction
expert testified that Mr. De Ciantis was
travelling at a minimum of 81 km/h when he struck Mr.
Black. There was no
indication of braking before the collision, which
suggested that Mr. De Ciantis
did not see Mr. Black before hitting him. His tire
went 0.37 metres (or 14
inches) over the fog line, which was less than the
width of his tire. ... Issues The main issue
in this case is whether the verdict is unreasonable or
not supported by the
evidence. This issue raises questions of whether the
trial judge correctly
applied the legal principles applicable to the offence
of dangerous driving. Dangerous
Driving The offence of
dangerous driving is found in s. 249(1)(a) of the Criminal
Code, set out
below: 249(1) Every one commits an
offence who operates (a) a motor vehicle in a
manner that is dangerous to the public,
having regard to all the circumstances, including the
nature, condition and use
of the place at which the motor vehicle is being
operated and the amount of
traffic that at the time is or might reasonably be
expected to be at that
place; Much judicial ink has been
spilled over the past few decades in
determining what constitutes the act of dangerous
driving and formulating the
fault element. The Supreme Court of Canada reviewed
the offence of dangerous
driving in considerable detail in R. v. Beatty,
[2008] 1 S.C.R. 49.
Beatty was driving on a two-lane highway in British
Columbia on a summer day,
in the mid-afternoon. The road was clear and dry. As
he approached a curve in
the highway, Beatty’s vehicle crossed the centre line
for no apparent reason
and struck a vehicle in the oncoming lane, killing
three people in that
vehicle. The trial judge acquitted Beatty. This Court
overturned the acquittals
and ordered a new trial. On appeal to the Supreme
Court of Canada, Charron J.,
for the majority, took the opportunity to review the
applicable tests for the mens
rea and actus reus of dangerous driving. The Actus
Reus of Dangerous Driving The actus
reus of dangerous driving is not defined in
terms of a marked departure
from the normal manner of driving. The actus reus
is defined by the
words of the enactment. It is on this point that the
minority and majority in Beatty
differed in their analyses. The minority would
consider the marked departure
from the standard of care as part of the consideration
when determining the actus
reus (para. 57). Madam Justice Charron set out
the test for the actus reus at
para. 43: (a) The Actus Reus The trier of fact must be
satisfied beyond a reasonable doubt that,
viewed objectively, the accused was, in the words of
the section, driving in a
manner that was “dangerous to the public, having
regard to all the
circumstances, including the nature, condition and use
of the place at which
the motor vehicle is being operated and the amount of
traffic that at the time
is or might reasonably be expected to be at that
place”... Madam Justice Charron
elaborated on certain aspects of this test.
She emphasized that the consequences of the driving
were not to be taken into
account in determining whether the driving was
dangerous. She said, at para.
46: “As the words of the provision
make plain, it is the manner
in which the motor vehicle was operated that is at
issue, not the consequence
of the driving. The consequence, as here where death
was caused, may make the
offence a more serious one under s. 249(4), but it has
no bearing on the
question whether the offence of dangerous operation of
a motor vehicle has been
made out or not. Again, this is also an important
distinction. If the focus
is improperly placed on the consequence, it almost
begs the question to then
ask whether an act that killed someone was
dangerous. The court must not leap
to its conclusion about the manner of driving based
on the consequence. There
must be a meaningful inquiry into the manner of
driving. The consequence,
of course, may assist in assessing the risk involved,
but it does not answer
the question whether or not the vehicle was operated
in a manner dangerous to
the public. This Court explained this distinction in R.
v. Anderson,
[1990] 1 S.C.R. 265, as follows: In the circumstances of this
case, the unfortunate fact that a
person was killed added nothing to the conduct of the
appellant. The degree of
negligence proved against the appellant by means of
the evidence that he drove
after drinking and went through a red light was not
increased by the fact that
a collision occurred and death resulted. If
driving and drinking and running
a red light was not a marked departure from the
standard, it did not become so
because a collision occurred. In some
circumstances, perhaps, the actions
of the accused and the consequences flowing from them
may be so interwoven that
the consequences may be relevant in characterizing the
conduct of the accused.
That is not the case here.” (Emphasis added; p. 273.)
(Italic and underlining
emphasis in original; bold emphasis added.) The Mens
Rea of Dangerous Driving The fault
element of dangerous driving has a constitutional
component, which is to ensure
that the morally innocent are not punished. A civil
standard of negligence,
which is concerned primarily with the apportionment of
loss, is not a
constitutionally compliant fault element for the
offence of dangerous driving
(or any negligence-based offence). Constitutional
compliance is achieved by
imposing a fault element of a “marked departure” from
the standard of the
reasonable person. (R. v. Creighton, [1993] 3
S.C.R. 3; R. v. Gosset,
[1993] 3 S.C.R. 76; R. v. Naglik, [1993] 3
S.C.R. 122; R. v. Hundal,
[1993] 1 S.C.R. 867). This is an objective fault
element which takes into
account only the capacity of the accused person, and
no other personal
characteristics. (Creighton at 65-66.) This
concept encompasses
situations where, for example, an accused has had a
sudden unexpected heart
attack while driving or takes prescribed medication
which has unforeseen side
effects. (Hundal at 886-889.) Madam Justice Charron
confirmed that the principles of
fundamental justice require more than the civil
standard of negligence for the
offence of dangerous driving. In her discussion
of the mens rea, she
said, at para. 7: The modified objective
test established by this Court's
jurisprudence remains the appropriate test to
determine the requisite mens
rea for negligence-based criminal offences. As
the label suggests, this
test for penal negligence “modifies” the purely
objective norm for determining
civil negligence. It does so in two important
respects. First, there must be
a “marked departure” from the civil norm in the
circumstances of the case. A
mere departure from the standard expected of a
reasonably prudent person will
meet the threshold for civil negligence, but will
not suffice to ground
liability for penal negligence. The distinction
between a mere departure
and a marked departure from the norm is a question of
degree. It is only when
the conduct meets the higher threshold that the court
may find, on the basis of
that conduct alone, a blameworthy state of mind.
(Italic emphasis in original;
underline emphasis added.) Civil negligence is concerned
with apportioning damages as a result
of conduct which falls below the standard of care of
the reasonably prudent
person. Penal negligence is concerned with punishing
the morally blameworthy.
As Cory J. said in Hundal at 885: Negligent driving can be
thought of as a continuum that progresses,
or regresses, from momentary lack of attention
giving rise to civil
responsibility through careless driving under a
provincial Highway Traffic Act
to dangerous driving under the Criminal Code. (Emphasis added.) Madam Justice Charron found in
Beatty that the mens rea
is assessed by objectively measuring the driver’s
conduct against the standard
of a reasonably prudent driver (para 34). She further
pointed out that because
driving is an automatic and reflexive activity, there
will necessarily be
departures from the standard expected of a reasonably
prudent driver. Although
some of these departures may even pose a danger to
other users of the highway,
they may still fall short of the “marked” departure
required to substantiate
the offence of dangerous driving. Madam Justice
Charron said the following at
para. 34: Therefore, as noted by Cory
J., the difficulty of requiring positive
proof of a particular subjective state of mind lends
further support to the
notion that mens rea should be assessed by
objectively measuring the
driver's conduct against the standard of a reasonably
prudent driver. In
addition, I would note that the automatic and
reflexive nature of driving gives
rise to the following consideration. Because driving,
in large part, is
automatic and reflexive, some departures from the
standard expected of a
reasonably prudent person will inevitably be the
product, as Cory J. states, of
“little conscious thought”. Even the most able and
prudent driver will from
time to time suffer from momentary lapses of
attention. These lapses may well
result in conduct that, when viewed objectively,
falls below the standard
expected of a reasonably prudent driver. Such
automatic and reflexive conduct may
even pose a danger to other users of the highway.
Indeed, the facts in this
case provide a graphic example. The fact that the
danger may be the product of
little conscious thought becomes of concern because,
as McLachlin J. (as she
then was) aptly put it in R. v. Creighton,
[1993] 3 S.C.R. 3, at p. 59: “The
law does not lightly brand a person as a criminal.”
In addition to the
largely automatic and reflexive nature of driving, we
must also consider the
fact that driving, although inherently risky, is a
legal activity that has
social value. (Emphasis added.) Madam Justice Charron stated
the test for mens rea at para.
43 of her judgment: (b) The Mens Rea The trier of fact must also be
satisfied beyond a reasonable doubt
that the accused’s objectively dangerous conduct was
accompanied by the
required mens rea. In making the objective
assessment, the trier of fact
should be satisfied on the basis of all the evidence,
including evidence about
the accused’s actual state of mind, if any, that the
conduct amounted to a
marked departure from the standard of care that a
reasonable person would
observe in the accused’s circumstances. Moreover, if
an explanation is offered
by the accused, then in order to convict, the trier of
fact must be satisfied
that a reasonable person in similar circumstances
ought to have been aware of
the risk and of the danger involved in the conduct
manifested by the accused. Thus, the constitutionally
mandated mens rea (or fault
element) for the offence of dangerous driving is a
“marked departure” from the
standard of care expected of a reasonably prudent
driver. At para. 48 of Beatty,
Charron J. stated that what
constitutes a “marked departure” is factually a matter
of degree. The trial
judge must consider the totality of the evidence
(para. 52). The lack of care
must be serious enough to merit punishment. A marked
departure can arise in
relation to conduct occurring in a brief time frame,
but if the driving is
otherwise proper, it is suggestive of civil rather
than criminal negligence. On
the other hand, a pattern of driving that satisfies
the actus reus of
dangerous driving can support finding a “marked
departure” (R. v. McIvor,
2009 BCCA 551at para. 19). I conclude my discussion of
the law under this subheading by quoting
Charron J. at para. 34 of Beatty: ...If every departure from the
civil norm is to be criminalized,
regardless of the degree, we risk casting the net
too widely and branding as
criminals persons who are in reality not morally
blameworthy. Such an
approach risks violating the principle of fundamental
justice that the morally
innocent not be deprived of liberty. (Emphasis added.) Analysis Actus Reus I will now
examine the legal framework for dangerous driving in
the context of the
evidence and the facts found by the trial judge. The test for actus reus
is not whether there was driving that
was a marked departure from the standard of care of a
reasonably prudent
driver. What is examined is the manner of driving,
taking into account “all the
circumstances, including the nature, condition and use
of the place at which
the motor vehicle is being operated and the amount of
traffic that at the time
is or might reasonably be expected to be at that
place”. One does not look at
the consequences of the driving and then reason
backwards. Otherwise, every
mishap or accident where there is injury or death
would result in a criminal
conviction. To amount to dangerous driving, the
conduct must be serious enough
to warrant criminal punishment. While Beatty
acknowledges there may be
some cases where the conduct and the consequences are
so interwoven that the
consequences may be relevant, this is not one of those
cases. The trial judge never directly
addressed the question of whether the
driving was dangerous, or in other words, whether the
actus reus had
been proved. ... The only two bases on which
the trial judge found that Mr. De
Ciantis’ driving was dangerous was that he was
speeding and he was making
unnecessary lane changes. In my respectful view, the
trial judge's application
of the objective standard to Mr. De Ciantis’ driving —
that is, whether it was
reasonable in all of the circumstances — was based on
her conclusion that a
reasonable driver travels the speed limit on Benvoulin
Road. The evidence in
its totality was almost overwhelmingly to the
contrary. Benvoulin Road is not a
street where people travel the speed limit. Her second
reason for concluding
that the driving was dangerous was based on her
conclusion that he made
“unnecessary lane changes”. In reaching this
conclusion, she must have
overlooked the uncontroverted evidence of Mr.
Bobinski, Ms. McKamey, and Mr. De
Ciantis himself that he had to change lanes when Ms.
McKamey cut him off. She
also overlooked the uncontroverted evidence of Mr. De
Ciantis that he needed to
change to the right lane to execute a right-hand turn.
The trial judge did not
find that the first four lane changes were executed
unsafely or dangerously. Thus, neither basis on which
the trial judge found the actus reus
of dangerous driving to be established is supported by
the evidence. Mens Rea The trial judge
referred to the appropriate test to determine the mens
rea of the
offences. In my respectful opinion, she fell into
error when assessing whether
Mr. De Ciantis' driving was a marked departure from
the standard of a
reasonably prudent driver. She found that Mr. De
Ciantis did not have a
"moment of inadvertence" when he misjudged his
steering. She then
concluded that he did not exercise the appropriate
standard of care and found
that he possessed the requisite mens rea for
dangerous driving. In
reaching this conclusion, she failed to consider where
Mr. De Ciantis' driving
fell on the continuum ranging from civil negligence,
to the quasi-criminal
offence of careless driving (Motor Vehicle Act,
R.S.B.C. 1996, c. 318,
s. 144(1)), to dangerous driving, and finally to
criminal negligence (which
requires a marked and substantial departure from the
norm). I repeat the passage from Hundal
at 885 (C.C.C.): Negligent driving can be
thought of as a continuum that progresses,
or regresses, from momentary lack of attention giving
rise to civil
responsibility through careless driving under a
provincial Highway Traffic Act
to dangerous driving under the Criminal Code. In my respectful view, the
trial judge erred in ascribing moral
blameworthiness to Mr. De Ciantis at the criminal end
of the negligence
spectrum. Her conclusion that his driving was a
“marked departure from the
standard of care that a reasonable person would
observe in the accused’s
circumstances” was unsupported by the totality of the
evidence and “widened the
net” too far, branding as criminal driving which was,
in reality, at the lower
end of the spectrum. Conclusion
F. Constitutional Constraints
R. v. City of Sault Ste. Marie The judgment of the court was delivered by The doctrine of the guilty mind expressed in terms of intention or recklessness, but not negligence, is at the foundation of the law of crimes. In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea: R. v. Prince (1875), L.R. 2 C.C.R. 154; R. v. Tolson (1889), 23 Q.B.D. 168; R. v. Rees (1955), 115 C.C.C. 1, 4 D.L.R. (2d) 406, [1956] S.C.R. 640; Beaver v. The Queen (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193; R. v. King (1962), 133 C.C.C. 1, 35 D.L.R. (2d) 386, [1962] S.C.R. 746. Blackstone made the point over two hundred years ago in words still apt: “. . . to constitute a crime against human laws, there must be, first, a vicious will; and secondly, an unlawful act consequent upon such vicious will . . .”: see Commentaries on the Laws of England (1809), Book IV, 15th ed., c. 15, p. 21. I would emphasize at the outset that nothing in the discussion which follows is intended to dilute or erode that basic principle.… The City of Sault Ste. Marie was charged that it did discharge, or cause to be discharged, or permitted to be discharged, or deposited materials into Cannon Creek and Root River, or on the shore or bank thereof, or in such place along the side that might impair the quality of the water in Cannon Creek and Root River, between March 13, 1972 and September 11, 1972. The charge was laid under s. 32(1) of the Ontario Water Resources Act, R.S.O. 1970, c. 332, [formerly Ontario Water Resources Commissary Act, renamed by 1972, c. 1, s. 70(1)] which provides, so far as relevant, that every municipality or person that discharges, or deposits, or causes, or permits the discharge or deposit of any material of any kind into any water course, or on any shore or bank thereof, or in any place that may impair the quality of water, is guilty of an offence and, on summary conviction, is liable on first conviction to a fine of not more than $5,000 and on each subsequent conviction to a fine of not more than $10,000, or to imprisonment for a term of not more than one year, or to both fine and imprisonment.… To relate briefly the facts, the City on November 18, 1970, entered into an agreement with Cherokee Disposal and Construction Co. Ltd., for the disposal of all refuse originating in the City.Under the terms of the agreement, Cherokee became obligated to furnish a site andadequate labour, material and equipment. The site selected bordered Cannon Creek which, it would appear, runs into the Root River. The method of disposal adopted is known as the “area”, or “continuous slope” method of sanitary land fill, whereby garbage is compacted in layers which are covered each day by natural sand or gravel. Prior to 1970, the site had been covered with a number of freshwater springs that flowed into Cannon Creek. Cherokee dumped material to cover and submerge these springs and then placed garbage and wastes over such material. The garbage and wastes in due course formed a high mound sloping steeply toward, and within 20 ft. of, the creek. Pollution resulted. Cherokee was convicted of a breach of s. 32(1) of the Ontario Water Resources Act, the section under which the City has been charged. The question now before the Court is whether the City is also guilty of an offence under that section.… The mens rea pointThe distinction between the true criminal offence and the public welfare offence is one of prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such inquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law. In sharp contrast, “absolute liability” entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in every sense, yet be branded as a malefactor and punished as such. Public welfare offences obviously lie in a field of conflicting values. It is essential for society to maintain, through effective enforcement, high standards of public health and safety. Potential victims of those who carry on latently pernicious activities have a strong claim to consideration. On the other hand, there is a generally held revulsion against punishment of the morally innocent.… Various arguments are advanced in justification of absolute liability in public welfare offences. Two predominate. Firstly, it is argued that the protection of social interests requires a high standard of care and attention on the part of those who follow certain pursuits and such persons are more likely to be stimulated to maintain those standards if they know that ignorance or mistake will not excuse them. The removal of any possible loophole acts, it is said, as an incentive to take precautionary measures beyond what would otherwise be taken, in order that mistakes and mishaps be avoided. The second main argument is one based on administrative efficiency. Having regard to both the difficulty of proving mental culpability and the number of petty cases which daily come before the Courts, proof of fault is just too great a burden in time and money to place upon the prosecution. To require proof of each person’s individual intent would allow almost every violator to escape. This, together with the glut of work entailed in proving mens rea in every case would clutter the docket and impede adequate enforcement as virtually to nullify the regulatory statutes. In short, absolute liability, it is contended, is the most efficient and effective way of ensuring compliance with minor regulatory legislation and the social ends to be achieved are of such importance as to override the unfortunate by-product of punishing those who may be free of moral turpitude. In further justification, it is urged that slight penalties are usually imposed and that conviction for breach of a public welfare offence does not carry the stigma associated with conviction for a criminal offence. Arguments of greater force are advanced against absolute liability. The most telling is that it violates fundamental principles of penal liability. It also rests upon assumptions which have not been, and cannot be, empirically established. There is no evidence that a higher standard of care results from absolute liability. If a person is already taking every reasonable precautionary measure, is he likely to take additional measures, knowing that however much care he takes, it will not serve as a defence in the event of breach? If he has exercised care and skill, will conviction have a deterrent effect upon him or others? Will the injustice of conviction lead to cynicism and disrespect for the law, on his part and on the part of others? These are among the questions asked. The argument that no stigma attaches does not withstand analysis, for the accused will have suffered loss of time, legal costs, exposure to the processes of the criminal law at trial and, however one may downplay it, the opprobrium of conviction. It is not sufficient to say that the public interest is engaged and, therefore, liability may be imposed without fault. In serious crimes, the public interest is involved and mens rea must be proven. The administrative argument has little force. In sentencing, evidence of due diligence is admissible and therefore the evidence might just as well be heard when considering guilt.… Public welfare offences involve a shift of emphasis from the protection of individual interests to the protection of public and social interests: see F. B. Sayre, “Public Welfare Offences”, 33 Columbia Law Rev. 55 (1933); Hall, General Principles of Criminal Law (1947), c. 13, p. 427; R. M. Perkins, “Civil Offence”, 100 U.of Pa. L. Rev. 832 (1952); Jobson, “Far From Clear”, 18 Crim. L. Q. 294 (1975/76). The unfortunate tendency in many past cases has been to see the choice as between two stark alternatives: (i) full mens rea; or (ii) absolute liability. In respect of public welfare offences (within which category pollution offences fall) where full mens rea is not required, absolute liability has often been imposed. English jurisprudence has consistently maintained this dichotomy: see “Criminal Law, Evidence and Procedure”, 11 Hals., 4th ed., pp. 202, para. 18. There has, however, been an attempt in Australia, in many Canadian Courts, and indeed in England, to seek a middle position, fulfilling the goals of public welfare offences while still not punishing the entirely blameless. There is an increasing and impressive stream of authority which holds that where an offence does not require full mens rea, it is nevertheless a good defence for the defendant to prove that he was not negligent. Dr. Glanville Williams has written: “There is a half-way house between mens rea and strict responsibility which has not yet been properly utilized, and that is responsibility for negligence”(Criminal Law: General Part, 2nd ed. (1961), p. 262). Morris and Howard, in Studies in Criminal Law (1964), p. 200, suggest that strict responsibility might with advantage be replaced by a doctrine of responsibility for negligence strengthened by a shift in the burden of proof. The defendant would be allowed to exculpate himself by proving affirmatively that he was not negligent.… In his work, “Public Welfare Offences”, at p. 78, Professor Sayre suggests that if the penalty is really slight involving, for instance, a maximum fine of $25, particularly if adequate enforcement depends upon wholesale prosecution, or if the social danger arising from violation is serious, the doctrine of basing liability upon mere activity rather than fault, is sound. He continues, however, at p. 79:
and at p. 82:
The doctrine proceeds on the assumption that the defendant could have avoided the prima facie offence through the exercise of reasonable care and he is given the opportunity of establishing, if he can, that he did in fact exercise such care. The case which gave the lead in this branch of the law is the Australian case of Proudman v. Dayman (1941), 67 C.L.R. 536, where Dixon, J., said, at p. 540:
This case, and several others like it, speak of the defence as being that of reasonable mistake of fact. The reason is that the offences in question have generally turned on the possession by a person or place of an unlawful status, and the accused’s defence was that he reasonably did not know of this status: e.g., permitting an unlicensed person to drive, or lacking a valid licence oneself, or being the owner of property in a dangerous condition. In such cases, negligence consists of an unreasonable failure to know the facts which constitute the offence...It is clear, however, that in principle the defence is that all reasonable care was taken. In other circumstances, the issue will be whether the accused’s behaviour was negligent in bringing about the forbidden event when he knew the relevant facts. Once the defence of reasonable mistake of fact is accepted, there is no barrier to acceptance of the other constituent part of a defence of due diligence.… It may be suggested that the introduction of a defence based on due diligence and the shifting of the burden of proof might better be implemented by legislative act. In answer, it should be recalled that the concept of absolute liability and the creation of a jural category of public welfare offences are both the product of the judiciary and not of the Legislature. The development to date of this defence, in the numerous decisions I have referred to, of Courts in this country as well as in Australia and New Zealand, has also been the work of Judges. The present case offers the opportunity of consolidating and clarifying the doctrine. The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation. Equally, there is nothing wrong with rejecting absolute liability and admitting the defence of reasonable care. In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care. I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. Offences which are criminal in the true sense fall in the
first category. Public welfare offences would, prima
facie, be in the second category. They are not
subject to the presumption of full mens rea. An
offence of this type would fall in the first category only
if such words as “wilfully”, “with intent”, “knowingly”,
or “intentionally” are contained in the statutory
provision creating the offence. On the other hand, the
principle that punishment should in general not be
inflicted on those without fault applies. Offences of
absolute liability would be those in respect of which the
Legislature had made it clear that guilt would follow
proof merely of the proscribed act. The over-all
regulatory pattern adopted by the Legislature, the
subject-matter of the legislation, the importance of the
penalty, and the precision of the language used will be
primary considerations in determining whether the offence
falls into the third category. Ontario Water Resources Act, s. 32(1) Turning to the subject-matter of s. 32(1)—the prevention of pollution of lakes, rivers and streams—it is patent that this is of great public concern. Pollution has always been unlawful and, in itself, a nuisance: Groat v. City of Edmonton, [1928] 3 D.L.R. 725, [1928] S.C.R. 522. A riparian owner has an inherent right to have a stream of water “come to him in its natural state, in flow, quantity and quality”: Chasemore v. Richards (1859), 7 H.L. Cas. 349 at p. 382. Natural streams which formerly afforded “pure and healthy” water for drinking or swimming purposes become little more than cesspools when riparian factory owners and municipal corporations discharge into them filth of all descriptions. Pollution offences are undoubtedly public welfare offences enacted in the interests of public health. There is thus no presumption of a full mens rea. There is another reason, however, why this offence is not subject to a presumption of mens rea. The presumption applies only to offences which are “criminal in the true sense”, as Ritchie, J., said in The Queen v. Pierce Fisheries, supra, at p. 199 C.C.C., p. 597 D.L.R., p. 13 S.C.R. The Ontario Water Resources Act is a provincial statute. If it is valid provincial legislation (and no suggestion was made to the contrary), then it cannot possibly create an offence which is criminal in the true sense. The present case concerns the interpretation of two troublesome words frequently found in public welfare statutes: “cause” and “permit”. These two words are troublesome because neither denotes clearly either full mens rea nor absolute liability. It is said that a person could not be said to be permitting something unless he knew what he was permitting. This is an over-simplification. There is authority both ways, indicating that the Courts are uneasy with the traditional dichotomy.… The conflict in the above authorities … shows that in themselves the words “cause” and “permit” fit much better into an offence of strict liability than either full mens rea or absolute liability. Since s. 32(1) creates a public welfare offence, without a clear indication that liability is absolute, and without any words such as “knowingly” or “wilfully” expressly to import mens rea, application of the criteria which I have outlined above undoubtedly places the offence in the category of strict liability. Proof of the prohibited act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care. I am strengthened in this view by the recent case of R. v. Servico Ltd. (1977), 2 Alta. L.R. (2d) 388, in which the Appellate Division of the Alberta Supreme Court held that an offence of “permitting” a person under 18 years to work during prohibited hours was an offence of strict liability in the sense which I have described. It also will be recalled that the decisions of many lower Courts which have considered s. 32(1) have rejected absolute liability as the basis for the offence of causing or permitting pollution, and have equally rejected full mens rea as an ingredient of the offence. The present caseAs I am of the view that a new trial is necessary, it would be inappropriate to discuss at this time the facts of the present case.… Appeal dismissed
Reference Re: Section 94(2) of the
Motor Vehicle Act LAMER J.:— INTRODUCTIONA law that has the potential to convict a person who has
not really done anything wrong offends the principles of
fundamental justice and, if imprisonment is available as a
penalty, such a law then violates a person’s right to
liberty under s. 7 of the Canadian Charter of Rights
and Freedoms (Part I of the Constitution Act,
1982, as enacted by the Canada Act, 1982
(U.K.), c. 11). The factsOn August 16, 1982, the Lieutenant-Governor in Council of British Columbia referred the following question to the Court of Appeal of that province, by virtue of s. 1 of the Constitutional Question Act, R.S.B.C. 1979, c. 63: Is s.94(2)of the Motor Vehicle Act, R.S.B.C.1979, as amended by the Motor Vehicle Amendment Act, 1982, consistent with the Canadian Charter of Rights aced Freedoms? On February 3, 1983, the Court of Appeal handed down reasons in answer to the question in which it stated that s. 94(2) of the Act is inconsistent with the Canadian Charter of Rights and Freedoms: 4 C.C.C. (3d) 243, 147 D.L.R. (3d) 539, 33 C.R. (3d) 22, [1983] 3 W.W.R. 756, 42 B.C.L.R. 364, 5 C.R.R. 148, 19 M.V.R. 63. The Attorney-General for British Columbia launched an appeal to this Court. The legislationMotor Vehicle Act, R.S.B.C. 1979, c. 288, s. 94, as amended by the Motor Vehicle Amendment Act, 1982, c. 36, s. 19:
Section 71. IntroductionThe issue in this case raises fundamental questions of constitutional theory, including the nature and the very legitimacy of constitutional adjudication under the Charter as well as the appropriateness of various techniques of constitutional interpretation. I shall deal first with these questions of a more general and theoretical nature as they underlie and have shaped much of the discussion surrounding s. 7. 2. The nature and legitimacy of constitutional adjudication under the CharterThe British Columbia Court of Appeal has written in the present case that the Constitution Act, 1982 has added a new dimension to the role of the courts in that the courts have now been empowered by s. 52 to consider not only the vires of legislation but also to measure the content of legislation against the constitutional requirements of the Charter. The concerns with the bounds of constitutional adjudication explain the characterization of the issue in a narrow and restrictive fashion, i.e., whether the terms “principles of fundamental justice” have a substantive or merely procedural content. In my view, the characterization of the issue in such fashion pre-empts an open-minded approach to determining the meaning of “principles of fundamental justice”.… The task of the court is not to choose between substantive or procedural content per se but to secure for persons “the full benefit of the Charter’s protection” (Dickson C.J.C. in R. v.Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385 at p. 424, 18 D.L.R. (4th) 321 at p. 360, [1985] 1 S.C.R. 295 at p. 344), under s. 7, while avoiding adjudication of the merits of public policy. This can only be accomplished by a purposive analysis and the articulation (to use the words in Curr v. The Queen (1972), 7 C.C.C. (2d) 181 at p. 192, 26 D.L.R. (3d) 603 at p. 614, [1972] S.C.R. 889 at p. 899) of “objective and manageable standards” for the operation of the section within such a framework..… The main sources of support for the argument that “fundamental justice” is simply synonymous with natural justice have been the Minutes of the Proceedings and Evidence of the Special Joint Committee on the Constitution and the Bill of Rights jurisprudence. In my view, neither the minutes nor the Bill of Rights jurisprudence are persuasive or of any great force. The historical usage of the term “fundamental justice” is, on the other hand, shrouded in ambiguity. Moreover, not any one of these arguments, taken singly or as a whole, manages to overcome in my respectful view the textual and contextual analyses.… Consequently, my conclusion may be summarized as follows: The term “principles of fundamental justice” is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right. Sections 8 to 14 address specific deprivations of the “right” to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of “principles of fundamental justice”; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter, as essential elements of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and the rule of law. Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system. We should not be surprised to find that many of the principles of fundamental justice are procedural in nature. Our common law has largely been a law of remedies and procedures and, as Frankfurter J. wrote in McNabb v. U.S. (1942), 318 U.S. 332 at p. 347, “the history of liberty has largely been the history of observance of procedural safeguards”. This is not to say, however, that the principles of fundamental justice are limited solely to procedural guarantees. Rather, the proper approach to the determination of the principles of fundamental justice is quite simply one in which, as Professor Tremblay has written, “future growth will be based oil historical roots”: 18 U.B.C.L. Rev. 201 at p. 254 (1980). Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principles within the judicial process and in our legal system, as it evolves. Consequently, those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7.… Absolute liability and fundamental justice in penal lawIt has from time immemorial been part of our system of
laws that the innocent not be punished. This principle has
long been recognized as an essential element of a system
for the administration of justice which is founded upon a
belief in the dignity and worth of the human person and on
the rule of law. It is so old that its first enunciation
was in latin actus non facit reum nisi mens sit rea.
One of the many judicial statements on the subject worth mentioning is of the highest authority,per Lord Goddard C.J. in Harding v. Price, [1948] 1 K.B. 695 at p. 700, where he said:
This view has been adopted by this Court in unmistakable terms in many cases, amongst which the better known are Beaver v. The Queen (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193, and the most recent and often-quoted judgment of Dickson J. (as he then was), writing for the court in R. v. Cityof Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299. This Court’s decision in the latter case is predicated upon a certain number of postulates one of which, given the nature of the rules it elaborates, has to be to the effect that absolute liability in penal law offends the principles of fundamental justice. Those principles are, to use the words of Dickson J., to the effect that “there is a generally held revulsion against punishment of the morally innocent” [at p. 363 C.C.C., p. 170 D.L.R., p. 1310 S.C.R.]. He also stated [at p. 363 C.C.C., p. 171 D.L.R., p. 1311 S.C.R.] that the argument that absolute liability “violates fundamental principles of penal liability” was the most telling argument against absolute liability and one of greater force than those advanced in support thereof. In my view, it is because absolute liability offends the principles of fundamental justice that this Court created presumptions against Legislatures having intended to enact offences of a regulatory nature falling within that category. This is not to say, however, and to that extent I am in agreement with the Court of Appeal, that, as a result, absolute liability per se offends s. 7 of the Charter. A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty or security of the person. Obviously, imprisonment (including probation orders) deprives persons of their liberty. An offence has that potential as of the moment it is open to the judge to impose imprisonment. There is no need that imprisonment, as in s. 94(2), be made mandatory. I am therefore of the view that the combination of imprisonment and of absolute liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one’s rights under s. 7. … Before considering s. 94(2) in the light of these findings, I feel we are however compelled to go somewhat further for the following reason. I would not want us to be taken by this conclusion as having inferentially decided that absolute liability may not offend s. 7 as long as imprisonment or probation orders are not available as a sentence. The answer to that question is dependent upon the content given to the words “security of the person”. That issue was and is a live one. Indeed, though the question as framed focuses on absolute liability (s. 94(2)) in relation to the whole Charter, including the right to security of the person in s. 7, because of the presence of mandatory imprisonment in s. 94(1) only deprivation of liberty was considered. As the effect of imprisonment on the right to liberty is a foregone conclusion, a fortiori minimum imprisonment, everyone directed their arguments, when discussing s. 7 to considering whether absolute liability violated the principles of fundamental justice, and then subsidiarily argued pro or contra the effect of s. 1 of the Charter. Counsel for those opposing the validity of s. 94(2) took the position in this Court that absolute liability and severe punishment, always referring to imprisonment, violated s. 7 of the Charter. From the following passage of the judgment in the Court of Appeal it would appear that counsel for those opposing the validity of the section took the wider position in that court that all absolute liability offences violated s. 7 because of “punishment of the morally innocent” [at p. 250 C.C.C., p. 546 D.L.R.]:
While I agree with the Court of Appeal, as I have already mentioned, that absolute liability does not per se violate s. 7 of the Charter, I am somewhat concerned with leaving without comment the unqualified reference by the Court of Appeal to the requirements of the “public interest”. If, by reference to public interest, it was meant that the requirements of public interest for certain types of offences is a factor to be considered in determining whether absolute liability offends the principles of fundamental justice, then I would respectfully disagree; if the public interest is there referred to by the court as a possible justification under s. 1 of a limitation to the rights protected at s. 7, then I do agree. Indeed, as I said, in penal law, absolute liability always offends the principles of fundamental justice irrespective of the nature of the offence; it offends s. 7 of the Charter if, as a result, anyone is deprived of his life, liberty or security of the person, irrespective of the requirement of public interest. In such cases it might only be salvaged for reasons of public interest under s. 1. In this latter regard, something might be added. Administrative expediency, absolute liability’s main supportive argument, will undoubtedly under s. 1 be invoked and occasionally succeed. Indeed, administrative expediency certainly has its place in administrative law. But when administrative law chooses to call in aid imprisonment through penal law, indeed sometimes criminal law and the added stigma attached to a conviction, exceptional, in my view, will be the case where the liberty or even the security of the person guaranteed under s. 7 should be sacrificed to administrative expediency. Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like. … Section 94(2)No doubt s. 94(2) enacts in the clearest of terms an absolute liability offence, the conviction for which a person will be deprived of his or her liberty, and little more, if anything, need be added. … In the final analysis, it seems that both the appellant and the respondent agree that s. 94 will impact upon the right to liberty of a limited number of morally innocent persons. It creates an absolute liability offence which effects a deprivation of liberty for a limited number of persons. To me, that is sufficient for it to be in violation of s. 7. Section 1Having found that s. 94(2) offends s. 7 of the Charter there remains the question as to whether the appellants have demonstrated that the section is salvaged by the operation of s. 1 of the Charter. No evidence was adduced in the Court of Appeal or in this Court. The position in that regard and the argument in support of the operability of s. 94(2) is as follows in appellant’s factum: If this Court rules that s. 94(2) of the Motor Vehicle
Act is inconsistent with s. 7 (or s. 11(d)) of the
Charter, then it is submitted that s. 1 of the Charter is
applicable. It is submitted that Laskin J. (as he then
was) made it clear in Curr v. The Queen, supra,
that it is within the scope of judicial notice for this
Court to recognize that a statutory provision was enacted
as part of a legislative scheme aimed at reducing the
human and economic cost of bad driving. Section 94 is but
part of the overall scheme laid out in the Motor Vehicle
Act by which the Legislature is attempting to get bad
drivers off the road. Section 94 imposes severe penalties
on those who drive while prohibited from driving and those
who drive while their driver’s licence is suspended. I do not take issue with the fact that it is highly desirable that “bad drivers” be kept off the road. I do not take issue either with the desirability of punishing severely bad drivers who are in contempt of prohibitions against driving. The bottom line of the question to be addressed here is: whether the Government of British Columbia has demonstrated as justifiable that the risk of imprisonment of a few innocent is, given the desirability of ridding the roads of British Columbia of bad drivers, a reasonable limit in a free and democratic society. That result is to be measured against the offence being one of strict liability open to a defence of due diligence, the success of which does nothing more than let those few who did nothing wrong remain free. As did the Court of Appeal, I find that this
demonstration has not been satisfied, indeed, not in the
least. Appeal dismissed
R. v. Wholesale Travel Group Inc. CORY J.:—The fundamental issue raised on this appeal is whether regulatory statutes which impose a regime of strict liability for breach of their provisions infringe ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Factual background and pertinent legislationThe Wholesale Travel Group Inc. (“Wholesale Travel”) was charged with five counts of false or misleading advertising contrary to s. 36(1)(a)of the Competition Act, R.S.C. 1970, c. C-23. The charges were laid after Wholesale Travel advertised vacation packages at “wholesale prices” while at the same time charging consumers a price higher than the cost incurred by the company in supplying those vacation packages. The matter proceeded to trial in Provincial Court. Before any evidence was heard, Wholesale Travel brought a motion challenging the validity of ss. 36(1) and 37.3(2) of the Competition Act on the basis that those sections violate ss. 7and 11(d) of the Canadian Charter of Rights and Freedoms and are, therefore, of no force and effect. The offence of misleading advertising is described in s. 36(1)(a) of the Competition Act. Although the Act has since been amended, the applicable provisions remain unchanged. I shall, therefore, refer to the old section numbers under which the appellant was charged. Section 36(1)(a) {now s. 52(1)(a)} reads as follows:
Subsection (5)prescribes the penalties available upon conviction. It states:
Wholesale Travel contends that the statutory scheme and, in particular, the combined operation of the offence prescribed in s. 36(1)(a) and the statutory defence set forth in s. 37.3(2), infringes ss. 7 and 11(d) of the Charter. … IssuesOn July 26, 1990, the Chief Justice stated the following constitutional questions: 1. Does s. 37.3(2) of the Competition Act,
R.S.C. 1970, c. C-23, as amended, in whole or in part
violate ss.7 or 11(d) of the Canadian Charter of
Rights and Freedoms? 1. Regulatory offences and strict liabilityA. The distinction between crimes and regulatory offences The common law has long acknowledged a distinction between truly criminal conduct and conduct, otherwise lawful, which is prohibited in the public interest. Earlier, the designations mala in se and mala prohibita were utilized; today prohibited acts are generally classified as either crimes or regulatory offences. While some regulatory legislation such as that pertaining to the content of food and drink dates back to the Middle Ages, the number and significance of regulatory offences increased greatly with the onset of the Industrial Revolution. Unfettered industrialization had led to abuses. Regulations were, therefore, enacted to protect the vulnerable—particularly the children, men and women who laboured long hours in dangerous and unhealthy surroundings. Without these regulations many would have died. It later became necessary to regulate the manufactured products themselves and, still later, the discharge of effluent resulting from the manufacturing process. There is no doubt that regulatory offences were originally and still are designed to protect those who are unable to protect themselves. English courts have for many years supported and given effect to the policy objectives animating regulatory legislation. In Sherras v. De Rutzen, [1895] 1 Q.B. 918 at p. 922, it was held that, while the mens rea presumption applied to true crimes because of the fault and moral culpability which they imply, that same presumption did not apply to offences “which . . . are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty”. This case illustrates the essential distinction in the legal treatment of regulatory as opposed to criminal offences—namely, the removal of the mens rea requirement.… The rationale for the distinction It has always been thought that there is a rational basis for distinguishing between crimes and regulatory offences. Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely. Murder, sexual assault, fraud, robbery and theft are all so repugnant to society that they are universally recognized as crimes. At the same times some conduct is prohibited, not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable. The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care. It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care. That is the theory but, like all theories, its application is difficult. For example, is the single mother who steals a loaf of bread to sustain her family more blameworthy than the employer who, through negligence, breaches regulations and thereby exposes his employees to dangerous working conditions, or the manufacturer who, as a result of negligence, sells dangerous products or pollutes the air and waters by its plant? At this stage it is sufficient to bear in mind that those who breach regulations may inflict serious harm on large segments of society. Therefore, the characterization of an offence as regulatory should not be thought to make light of either the potential harm to the vulnerable or the responsibility of those subject to regulation to ensure that the proscribed harm does not occur. It should also be remembered that, as social values change, the degree of moral blameworthiness attaching to certain conduct may change as well. Nevertheless there remains, in my view, a sound basis for distinguishing between regulatory and criminal offences.… II. The offence in the present caseCompetition legislation generally The offence of misleading advertising with which Wholesale Travel is charged is found in the Competition Act (the “Act”). This Act, like its predecessor, the Combines Investigation Act is aimed at regulating unacceptable business activity. In General Motors of Canada Ltd. v. City National Leasing (1989), 58 D.L.R. (4th) 255, 24 C.P.R. (3d) 417, [1989] 1 S.C.R. 641, Dickson C.J.C. held that the Act embodied a complex scheme of economic regulation, the purpose of which is to eliminate activities that reduce competition in the marketplace. The nature and purpose of the Act was considered in greater detail in Thomson Newspapers, supra. La Forest J. pointed out that the Act is aimed at regulating the economy and business with a view to preserving competitive conditions which are crucial to the operation of a free market economy. He observed that the Act was not concerned with “real crimes” but with regulatory or public welfare offences.. He put the position this way, at pp. 478-9 C.C.C., pp. 222-3 D.L.R., pp. 158-9 C.P.R.:
These decisions make it clear that the Competition Act in all its aspects is regulatory in character. The offence of false or misleading advertising Is the offence of false or misleading advertising regulatory in nature? It seems to me that the fact that the provision is located within a comprehensive regulatory framework would ordinarily be sufficient to demonstrate its regulatory nature. Several other considerations point to the same conclusion. The offence of misleading advertising has existed in Canada since 1914. It is not without significance that it was, in 1969, transferred from the Criminal Code to the Combines Investigation Act, a step which confirms the regulatory nature of the offence.. The provision was amended in 1975 to provide for a defence of due diligence, converting the offence from absolute to strict liability. It is true that the availability of imprisonment as a sanction for breach of a statute might be taken to indicate that the provision is criminal in nature. However, this fact is not itself dispositive of the character of an offence. Rather, one must consider the conduct addressed by the legislation and the purposes for which such conduct is regulated. This view was most recently expressed by La Forest J. in Thomson Newspapers, supra, at p. 478 C.C.C., p. 221 D.L.R., p. 157 C.P.R. He noted that many regulatory offences provide for imprisonment in order to ensure compliancewith the terms of the statute and thereby achieve the regulatory goal. The appellant has argued that conviction for the offence of false advertising carries a stigma of dishonesty, with the inference that the accused falsely advertised for the purposes of obtaining economic advantage. It is said that nothing could be more damaging to a business than the implication that it has made dishonest representations. In my view, however, the offence does not focus on dishonesty but rather on the harmful consequences of otherwise lawful conduct. Conviction suggests only that the defendant has made a representation to the public which was in fact misleading and that the defendant was unable to establish the exercise of due diligence in preventing the error. This connotes a fault element of negligence rather than one involving moral turpitude. Thus, any stigma that might flow from a conviction is very considerably diminished. In summary,the offence of false advertising possesses the essential characteristics which distinguish regulatory offences from those which are truly criminal. Accordingly, it should be considered to be a regulatory offence rather than a crime in the ordinary sense. III. A contextual approach to Charter interpretationA. The importance of considering Charter rights in context It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society. A contextual approach is particularly appropriate in the present case to take account of the regulatory nature of the offence and its place within a larger scheme of public welfare legislation. This approach requires that the rights asserted by the appellant be considered in light of the regulatory context in which the claim is situated, acknowledging that a Charter right may have different scope and implications in a regulatory context than in a truly criminal one. Under the contextual approach, constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences. Rather, the content of the Charter right must be determined only after an examination of all relevant factors and in light of the essential differences between the two classes of prohibited activity. This was the approach taken in Thomson Newspapers, supra, where La Forest J. stressed the importance of the regulatory nature of the statute in determining the scope of s. 8 of the Charter as applied to the Combines Investigation Act. The contextual approach further requires that the appellant’s claim be considered and weighed in light of the realities of a modern industrial society, where the regulation of innumerable activities is essential for the benefit of all. It is vital that the fundamentally important role of regulatory legislation in the protection of individuals and groups in Canadian society today be recognized and accepted. Canadians rely on and expect their governments to regulate and control activities which may be dangerous to others. In McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545, [1990] 3 S.C.R. 229, 13 C.H.R.R. D/171, Wilson J. noted the special role of the state in life in Canada. At p. 582 of her reasons she wrote:
The scale and importance of public welfare legislation in Canada is such that a contextual approach must be taken to the issues raised in this appeal. B. The basis for the differential treatment of regulatory offences In the present case, the contextual approach requires that regulatory and criminal offences be treated differently for the purposes of Charter review. Before proceeding to the substantive analysis, however, it is necessary to consider the justifications for differential treatment. They are two-fold: the first relates to the distinctive nature of regulatory activity, while the second acknowledges the fundamental need to protect the vulnerable through regulatory legislation. 1. The licensing justification Those who argue against differential treatment for regulatory offences assert that there is no valid reason to distinguish between the criminal and regulatory accused. Each, it is said, is entitled in law to the same procedural and substantive protections. This view assumes equality of position between criminal and regulatory defendants; that is to say, it assumes that each starts out from a position of equal knowledge, volition and “innocence”. The argument against differential treatment further suggests that differentiating between the regulatory and criminal defendants implies the subordination and sacrifice of the regulatory accused to the interests of the community at large. Such a position, it is argued, contravenes our basic concern forindividual dignity and our fundamental belief in the importance of the individual. It is these assumptions which the licensing justification challenges. Criminal law is rooted in the concepts of individual autonomy and free will and the corollary that each individual is responsible for his or her conduct. It assumes that all persons are free actors, at liberty to choose how to regulate their own actions in relation to others. The criminal law fixes the outer limits of acceptable conduct, constraining individual freedom to a limited degree in order to preserve the freedom of others. Thus, the basis of criminal responsibility is that the accused person has made a deliberate and conscious choice to engage in activity prohibited by the Criminal Code. The accused person who is convicted of an offence will be held responsible for his or her actions, with the result that the opprobrium of society will attach to those acts and any punishment imposed will be considered to be deserved. The licensing argument is directed to this question of choice. Thus, while in the criminal context, the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is, by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity. The question then becomes not whether the defendant chose to enter the regulated sphere but whether, having done so, the defendant has fulfilled the responsibilities attending that decision. Professor Richardson puts the position this way in “Strict Liability for Regulatory Crime: the Empirical Research,” [1987] Crim. L. R. 295 at pp. 295-6:
The licensing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility. Therefore, it is said, those who engage in regulated activity should, as part of the burden of responsible conduct attending participation in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere. Foremost among these implied terms is an undertaking that the conduct of the regulated actor will comply with and maintain a certain minimum standard of care. The licensing justification is based not only on the idea of a conscious choice being made to enter a regulated field but also on the concept of control. The concept is that those persons who enter a regulated field are in the best position to control the harm which may result, and that they should, therefore, be held responsible for it. A compelling statement of this view is found in the decision of the United States Supreme Court in Morissette v. United States, 342 U.S. 246 (1952), where the court stated, at p. 256:
The licensing justification may not apply in all circumstances to all offenders. That is, there are some cases in which the licensing argument may not apply so as to permit the imputation to an accused of choice, knowledge and implied acceptance of regulatory terms and conditions. This may occur, for instance, where the nature of the regulated conduct is so innocuous that it would not trigger in the mind of a reasonable person the possibility that the conduct was regulated. The nature of the regulated conduct will itself go far to determining whether the licensing argument applies. It is useful to distinguish between conduct which, by virtue of its inherent danger or the risk it engenders for others, would generally alert a reasonable person to the probability that the conduct would be regulated, from that conduct which is so mundane and apparently harmless that no thought would ordinarily be given to its potentially regulated nature. In the latter circumstances, the licensing argument would not apply.… By virtue of the decision to enter the regulated field, theregulated person (here the appellant) can be taken to have accepted certain terms and conditions of entry. To paraphraseLa Forest J., the procedural and substantive protections a person can reasonably expect may vary depending upon the activity that brings that person into contact with the state. Thus, the extent of Charter protection may differ depending upon whether the activity in question is regulatory or criminal in nature. In this way, the licensing argument provides a link
between the distinction between criminal and regulatory
offences and the differential treatment of those two
categories for the purposes of Charter review. There is,
as well, a second justification for differential
treatment. The realities and complexities of a modern industrial society coupled with the very real need to protect all of society and particularly its vulnerable members, emphasize the critical importance of regulatory offences in Canada today. Our country simply could not function without extensive regulatory legislation. The protection provided by such measures constitutes a second justification for the differential treatment, for Charter purposes, of regulatory and criminal offences. Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the onset of the Industrial Revolution. Before effective workplace legislation was enacted, labourers—including children—worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of Dante’s Inferno. It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century. The differential treatment of regulatory offences is justified by their common goal of protecting the vulnerable. The importance of the vulnerability concept as a component of the contextual approach to Charter interpretation has been recognized in the employer/employee field in Edwards Books, supra, and Slaight Communications, supra, and in the sphere of commercial advertising in Irwin Toy, supra. The same considerations should apply whenever regulatory legislation is subject to Charter challenge. It follows that a contextual approach is required in the present case in order that the distinctive nature of regulatory offences and their fundamental importance in Canadian society may be considered. Both licensing and vulnerability considerations justify differential treatment, for the purposes of Charter interpretation of crimes and regulatory offences. This, then, is the basisupon which the present case must be approached. IV. The constitutionality of strict liabilityThe appellant argues that strict liability violates the
Charter on two bases. First, it is said that, at least
where imprisonment isavailable as a sanction, s. 7 of the
Charter requires a minimum fault element of guilty intent
or wilful blindness to be proven; it is argued that, under
s. 7, negligence is an insufficient degree of fault to
justify a conviction. Secondly, the appellant alleges that
the traditional requirement in strict liability offences
that the defendant establish due diligence on a balance of
probabilities violates the presumption of innocence
guaranteed by s. 11(d) of the Charter. Let us consider
these submissions. Wholesale Travel contends that wherever imprisonment is available as a penalty for breach of a regulatory statute, the failure to require the Crown to prove guilty intent as an essential element of the offence violates s. 7 of the Charter. It is constitutionally impermissible, it is argued, to impose liability solely on the basis of lack of reasonable care. Thus, it is the appellant’s position that strict liability as defined in Sault Ste. Marie has been superseded and rendered invalid by the Charter. The appellant’s argument, if accepted, would eliminate any distinction between criminal and regulatory offences. The question to be determined at this stage is what level of mens rea is required by s. 7 of the Charter.… What emerges from Reference re: s. 94(2) of Motor Vehicle Act and Vaillancourt isthat the principles of fundamental justice referred to in s. 7 of the Charter prohibit the imposition of penal liability and punishment without proof of fault. Fault was, thus, elevated from a presumed element of an offence in Sault Ste. Marie to a constitutionally required element under the Charter. These cases did not, however, decide what level of fault is constitutionally required for every type of offence; rather, they make it clear that the degree of fault required will vary with the nature of the offence and the penalties available upon conviction. Reference re: s. 94(2) of Motor Vehicle Act does establish, however, that where imprisonment is available as a penalty, absolute liability cannot be imposed since it removes the fault element entirely and, in so doing, permits the punishment of the morally innocent. The question which must now be determined is as follows: in situations where imprisonment is available as a penalty, does s. 7 require proof of a degree of fault greater than negligence? That is to say, must a positive mental state be established in order to justify a conviction?… Does s. 7 require in all cases that the Crown prove mens rea as an essential element of the offence? The resolution of this question requires that a contextual approach be taken to the meaning and scope of the s. 7 right. Certainly, there can be no doubt that s. 7 requires proof of some degree of fault. That fault may be demonstrated by proof of intent, whether subjective or objective, or by proof of negligent conduct, depending on the nature of the offence. While it is not necessary in this case to determine the requisite degree of fault necessary to prove the commission of particular crimes, I am of the view that with respect to regulatory offences, proof of negligence satisfies the requirement of fault demanded by s. 7. Although the element of fault may not be removed completely, the demands of s. 7 will be met in the regulatory context where liability is imposed for conduct which breaches the standard of reasonable care required of those operating in the regulated field. It should not be forgotten that mens rea and negligence are both fault elements which provide a basis for the imposition of liability. Mens rea focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness or wilful blindness. Negligence, on the other hand, measures the conduct of the accused on the basis of an objective standard irrespective of the accused’s subjective mental state. Where negligence is the basis of liability, the question is not what the accused intended but rather whether the accused exercised reasonable care. The application of the contextual approach suggests that negligence is an acceptable basis of liability in the regulatory context which fully meets the fault requirement in s. 7 of the Charter. It is argued, however, that to place regulatory offences in a separate category from criminal offences, with a lower fault standard, puts the accused charged with the breach of a regulatory provision in a fundamentally unfair position. It is a violation of the principles of fundamental justice under s. 7, it is said, to allow the defendant to go to jail without having had the protection available in criminal prosecutions—that is, proof of mens rea by the Crown. I cannot accept this contention. Regulatory offences provide for the protection of the public. The societal interests which they safeguard are of fundamental importance. It is absolutely essential that governments have the ability to enforce a standard of reasonable care in activities affecting public welfare. The laudable objectives served by regulatory legislation should not be thwarted by the application of principles developed in another context. It must be remembered that regulatory offences were historically developed and recognized as a distinct category precisely for the purpose of relieving the Crown of the burden of proving mens rea. This is their hallmark. The tremendous importance of regulatory legislation in modern Canadian industrial society requires that courts be wary of interfering unduly with the regulatory role of government through the application of inflexible standards. Under the contextual approach, negligence is properly acceptable as the minimum fault standard required of regulatory legislation by s. 7. What some writers have referred to as “licensing” considerations lead to the same conclusion. The regulated actor is allowed to engage in activity which potentially may cause harm to the public. That permission is granted on the understanding that the actor accept, as a condition of entering the regulated field, the responsibility to exercise reasonable care to ensure that the proscribed harm does not come about. As a result of choosing to enter a field of activity known to be regulated, the regulated actor is taken to be aware of and to have accepted the imposition of a certain objective standard of conduct as a pre-condition to being allowed to engage in the regulated activity. In these circumstances, it misses the mark to speak in terms of the “unfairness” of an attenuated fault requirement because the standard of reasonable care has been accepted by the regulated actor upon entering the regulated sphere. Further, from a practical point of view, it is simply impossible for the government to monitor adequately every industry so as to be able to prove actual intent or mens rea in each case. In order to do so, governments would have to employ armies of experts in every conceivable field. For example, it would be necessary to continuously monitor a myriad of complex activities that are potentially dangerous to members of society. Such activities include manufacturing and mining procedures, food and drug manufacturing, processing and packaging. In our complex society, the government can, as a practical matter do no more than to demonstrate that it has set reasonable standards to be met by persons in the regulated sphere and to prove beyond a reasonable doubt that there has been a breach of those standards by the regulated defendant. The impossibility of requiring the government to prove mental culpability was recognized by Dickson J. in Sault Ste. Marie.…He stated at p. 363 C.C.C., p. 171 D.L.R.: Having regard to both the difficulty of proving mental culpability and the number of petty cases which daily come before the Courts, proof of fault is just too great a burden in time and money to place upon the prosecution. To require proof of each person’s individual intent would allow almost every violator to escape. This, together with the glut of work entailed in proving mens rea in every case would clutter the docket and impede adequate enforcement as virtually to nullify the regulatory statutes. The whole governmental regulatory scheme would be rendered meaningless if the appellant’s mens rea argument were to succeed. For these reasons, I conclude that the appellant’s claim that strict liability offences violate s. 7 of the Charter cannot succeed. The requirements of s. 7 are met in the regulatory context by the imposition of liability based on a negligence standard. Therefore, no violation of s. 7 results from the imposition of strict liability. B. Section 11(d): onus and the due diligence defence Wholesale Travel argues that the placing of a persuasive
burden on the accused to establish due diligence on a
balance of probabilities violates the presumption of
innocence as guaranteed by s. 11(d) of the Charter. As the
due diligence defence is the essential characteristic of
strict liability offences as defined in Sault Ste.
Marie, the appellant’s s. 11(d) claim represents a
fundamental challenge to the entire regime of regulatory
offences in Canada... Much of what has been said in regard to the validity of strict liability under s. 7 of the Charter is applicable as well to the s. 11(d) question of onus. The importance of regulatory legislation and its enforcement strongly support the use of a contextual approach in the interpretation of the s. 11(d) right as applied to regulatory offences. At the outset, it is enlightening to return to the relatively recent decision of this court in Sault Ste. Marie. In his reasons, Dickson J. made explicit reference to the presumption of innocence, holding (at p. 367 C.C.C., pp. 174-5 D.L.R.) that requiring an accused to establish due diligence on a balance of probabilities does not offend the basic presumption of innocence as articulated in Woolmington v. Director of Public Prosecutions, [1935] A.C. 462:
In Sault Ste. Marie, Dickson J. carefully considered the basic principles of criminal liability, including the presumption of innocence, and balanced them against the public goals sought to be achieved through regulatory measures. He determined that strict liability represented an appropriate compromise between the competing interests involved. This conclusion is no less valid today. The Charter was not enacted in a vacuum. The presumption of innocence which it guarantees had long been established and was well recognized at common law. The due diligence defence recognized in Sault Ste. Marie which is the target of the present challenge was itself a function of the presumption of innocence. The reasons for ascribing a different content to the presumption of innocence in the regulatory context are persuasive and compelling. As with the mens rea issue, if regulatory mechanisms are to operate effectively, the Crown cannot be required to disprove due diligence beyond a reasonable doubt. Such a requirement would make it virtually impossible for the Crown to prove regulatory offences and would effectively prevent governments from seeking to implement public policy through regulatory means. It has been suggested that requiring the Crown to prove negligence beyond a reasonable doubt, either as part of its case or after the accused adduces some evidence raising a reasonable doubt as to due diligence, would represent an acceptable compromise: it would, it is said, lessen the burden on the accused while still allowing for the effective pursuit of the regulatory objective. I cannot accept this contention. While such an approach would undoubtedly be beneficial to the accused, it would effectively eviscerate the regulatory power of government by rendering the enforcement of regulatory offences impossible in practical terms. Under this approach, the Crown would be forced to prove lack of reasonable care where the accused raises a reasonable doubt as to the possibility of due diligence. It is difficult to conceive of a situation in which a regulated accused would not be able to adduce some evidence giving rise to the possibility that due diligence was exercised. For instance, an environmental polluter would often be able to point to some measures it had adopted in order to prevent the type of harm which ultimately resulted. This might raise a reasonable doubt that it had acted with due diligence no matter how inadequate those measures were for the control of a dangerous situation. Similarly, a wholly inadequate effort to ensure that an advertisement was true might nevertheless succeed in raising a reasonable doubt as to due diligence. To impose such a limited onus is inappropriate and insufficient in the regulatory context. Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. Thus, the question is not whether the accused hasexercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and the manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context, there is nothing unfair about imposing that onus; indeed, it is essential for the protection of our vulnerable society. It must not be forgotten that the virtual impossibility of proving regulatory offences beyond a reasonable doubt was central to this court’s decision in Sault Ste. Marie. This consideration led the court to conclude that the imposition of strict liability with a defence of due diligence available to the accused was both necessary and appropriate. Dickson J. stated at p. 373 C.C.C., p. 181 D.L.R.: The correct approach, in my opinion. is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation.* * * In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.(Emphasis added.) This rationale is no less compelling today. Quite simply, the enforcement of regulatory offences would be rendered virtually impossible if the Crown were required to prove negligence beyond a reasonable doubt. The means of proof of reasonable care will be peculiarly within the knowledge and ability of the regulated accused. Only the accused will be in a position to bring forward evidence relevant to the question of due diligence. Nor can I accept the contention that there is little practical difference between requiring the accused to prove due diligence on a balance of probabilities and requiring only that the accused raise a reasonable doubt as to the exercise of due diligence. Professor Webb, in his article, ibid., deals with this argument in the following terms, at p. 467:
Webb then goes on, at p. 467, to identify the deleterious effects on prosecution of regulatory offences which would result from requiring the Crown to prove negligence:
I agree with these conclusions of Professor Webb. To reduce the onus on the accused would, from a practical point of view, raise insurmountable barriers for the Crown seeking to enforce a regulatory scheme. In these circumstances, it cannot be contended that requiring the prosecution to prove negligence beyond a reasonable doubt would still allow for the effective achievement of regulatory objectives. To the contrary, its effect would be, in practical terms, to render the regulatory power of governments ineffectual. Nor can it be argued that other solutions would be satisfactory; there is simply no other practical solution. Both with respect to the consumption of government resources and the intrusiveness of regulatory measures, the consequences of a finding that the due diligence defence violates s. 11(d) of the Charter would be extremely severe. Governments would be forced to devote tremendous expenditure, in terms of monetary and human resources, to regulatory enforcement mechanisms. Armies of investigators and experts would be required in order to garner sufficient evidence to establish negligence or disprove due diligence beyond a reasonable doubt. Further, a marked expansion in enforcement mechanisms by definition implies an escalation in the intrusiveness of regulatory measures. The greater the burden of proof on the Crown, the greater the likelihood that those charged with the enforcement of regulatory measures would have to resort to legislation authorizing search and surveillance in order to gather sufficient evidence to discharge that onus. As with the s. 7 challenge, licensing considerations support the conclusion that strict liability does not violate s. 11(d) of the Charter. The licensing argument attributes to the regulated actor knowledge and acceptance, not only of the standard of reasonable care itself, but also of the responsibility to establish on a balance of probabilities the exercise of reasonable care. Acceptance of this burden is an implied term and a pre-condition of being allowed to engage in activity falling within the regulated sphere. Regulated actors are taken to understand that, should they be unable to discharge this burden, an inference of negligence will be drawn from the fact that the proscribed result has occurred. I wish to emphasize, however, that the difference in the scope and meaning of s. 11(d) in the regulatory context does not imply that the presumption of innocence is meaningless for a regulated accused. The Crown must still prove the actus reus of regulatory offences beyond a reasonable doubt. Thus, the Crown must prove that the accused polluted the river, sold adulterated food, or published a false advertisement. However, once having established this beyond a reasonable doubt, the Crown is presumptively relieved of having to prove anything further. Fault is presumed from the bringing about of the proscribed result, and the onus shifts to the defendant to establish reasonable care on a balance of probabilities. For these reasons, I conclude that the presumption of
innocence as guaranteed in s. 11(d) of the Charter is not
violated by strict liability offences as defined in Sault
Ste. Marie. The imposition of a reverse persuasive
onus on the accused to establish due diligence on a
balance of probabilities does not run counter to the
presumption of innocence, notwithstanding the fact that
the same reversal of onus would violate s. 11(d) in the
criminal context. Much has been made in this appeal of the potential use of t imprisonment as a sanction for breach of strict liability offences. The Chief Justice considers the use of imprisonment to be determinative of the Charter analysis. With respect, I am unable to agree. The availability of imprisonment in no way alters my conclusion that strict liability does not violate either ss. 7 or 11(d) of the Charter. The Charter does not guarantee an absolute right to liberty; rather, it guarantees the right not to be deprived of liberty except in accordance with the principles of fundamental justice. Thus, while the availability of imprisonment undoubtedly triggers Charter review, it does not resolve the ultimate question. What must be determined is whether, in a given case, the possibility of a sentence of imprisonment comports with the principles of fundamental justice. It is whether the principles of fundamental justice have been violated, not the availability of imprisonment, which is the determinative consideration. In this regard, it is essential to recognize that the principles of fundamental justice are not static in meaning or application. As La Forest J. stated for the court in R. v.Lyons (1987), 37 C.C.C. (3d) 1 at p. 45, 44 D.L.R. (4th) 193 at p. 237, [1987] 2 S.C.R. 309: “It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.” There is quite properly a difference or variation between what the principles of fundamental justice require in regard to true crimes and what they require in the regulatory context. The ultimate question is whether the imposition of imprisonment on the basis of strict liability comports with the principles of fundamental justice. For the reasons set out earlier concerning the underlying rationale of regulatory offences, I am of the opinion that it does. Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. Nor is the imposition of imprisonment unreasonable in light of the danger that can accrue to the public from breaches of regulatory statutes. The spectre of tragedy evoked by such names as Thalidomide, Bhopal, Chernobyl and the ExxonValdez can leave no doubt as to the potential human and environmentaldevastation which can result from the violation of regulatory measures. Strong sanctions including imprisonment are vital to the prevention of similar catastrophes. The potential for serious harm flowing from the breach of regulatory measures is too great for it to be said that imprisonment can never be imposed as a sanction. I would only add that, in those circumstances where the imposition of imprisonment would be grossly disproportionate to the offence committed, the accused person would have a compelling claim under s. 12 of the Charter. However, the fact that it is possible to imagine instances where the use of imprisonment would be inappropriate should not be used to justify the conclusion that imprisonment can never be imposed in respect of strict liability offences.. Imprisonment must be available to governments as a sanction if the power to regulate is to be effective. V. Application to s. 36(1)(a) and s. 37.3(2) Section 36(1)(a) of the Competition Act creates
the offence of false or misleading advertising. Section
37.3(2)provides a statutory defence to that charge. The
defence will only lie where all four conditions set out in
paras. (a) through (d) are met. While
paras. (a) and (b) in essence
describe the common law defence of due diligence, paras. (c)
and (d) create additional conditions which must
be met before the defence will lie. Paragraph (c) of s. 37.3(2) requires
an accused who has made a misleading representation to
take positive steps to bring the error to the attention of
those to be likely affected by it. Paragraph (d) requires
this to be done promptly. The effect of these provisions
is to impose an obligation on the accused to make a prompt
retraction as a precondition to relying on the defence of
due diligence. Such a result clearly violates s. 7 of the Charter. As Lamer J. stated in Reference re: s. 94(2) of Motor Vehicle Act, supra, at p. 293C.C.C., p. 541 D.L.R.: A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7 of the Canadian Charter of Rights and Freedoms. Nor do I think that paras. (c) and (d) can be justified under s. 1 of the Charter. The Crown has filed little evidence to support its position that paras. (c) and (d) can be saved by s. 1. Perhaps this is itself a sufficient basis for finding that those paragraphs are not justifiable. There are, however, additional grounds for reaching this
conclusion. Assuming that there is a rational connection
between the requirement of corrective advertising and the
legislative objective of seeking to prevent the harm
resulting from misleading representations, it cannot be
said that the impugned provisions constitute a minimal
impairment of the rights of the accused. Further, the
availability of imprisonment as a sanction far outweighs
the importance of the regulatory objective in correcting
false advertising after the fact. In short, there is no
proportionality between means and ends. Paragraphs (c) and
(d) cannot then be justified under s. 1 of the Charter. These paragraphs in essence put forward the common law defence of due diligence. Where imprisonment is available as a penalty for breach of a statute, s. 7 of the Charter requires proof of fault before liability can be imposed. I have concluded, however, that the fault requirement is different for regulatory than for criminal offences. In the regulatory context, it is appropriate that fault should be imposed on the basis of negligence. There is, therefore, no violation of s. 7 resulting from the removal of the mens rea requirement in strict liability offences. It follows that paras. (a) and (b) of s. 37.3(2) do not violate s. 7 of the Charter. It has been noted earlier that the s. 11(d) presumption of innocence has a different scope and meaning in relation to regulatory as opposed to criminal offences. In my view, the imposition in strict liability offences of a reverse persuasive onus on the accused to establish due diligence is proper and permissible and does not constitute a violation of the s. 11(d) presumption of innocence. I, therefore, conclude that paras. (a) and (b) of . 37.3(2) do not violate s. 11(d) of the Charter. VII. DispositionSince paras. (c) and (d) of s. 37.3(2) of the Competition Act violate s. 7 of the Charter and cannot be justified under s. 1, they must be struck down and declared to be of no force or effect. What remains in s. 36(1)(a) and s. 37.3(2)(a) and (b) isa strict liability regulatory offence.. These provisions are valid and enforceable. In the result I would dismiss the appeal and allow the Crown’s Appeal to the extent required to reflect this disposition. LAMER C.J.C. (dissenting in part):— IssuesThe following constitutional questions were stated on July 26, 1990: 1. Does s. 37.3(2) of the Competition Act, R.S.C.
1970, c. C-23, as amended, in whole or in part violate ss.
7 or 11(d) of the Canadian Charter of Rights and
Freedoms? AnalysisDo ss. 36(1)(a) and 37.3(2) of the Competition Act violate the Charter?Section 7 In Reference re: s. 94(2) of Motor Vehicle Act, supra, this court held that the combination of absolute liability and possible imprisonment violates s. 7 of the Charter and will rarely be upheld under s. 1. This is because an absolute liability offence has the potential of convicting a person who really has done nothing wrong (i.e., has acted neither intentionally nor negligently). In R v.Vaillancourt, supra, Istated that whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state (or fault requirement) which is an essential element of the offence. Reference re: 94(2) of Motor Vehicle Act inferentially decided that even for a mere provincial regulatory offence at least negligence is required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. The rationale for elevating mens rea from a presumed element in R. v.Sault Ste. Marie (City) (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299, to a constitutionally required element, was that it is a principle of fundamental justice that the penalty imposed on an accused and the stigma which attaches to thatpenalty and/or to the conviction itself, necessitate a level of faultwhich reflects the particular nature of the crime. Thus, the question to be addressed under s. 7 in this case is whether the offence of false/misleading advertising is missing any “elements” (i.e., level of fault) which are constitutionally required by s. 7 of the Charter. Given that the offence of false/misleading advertising is punishable by up to five years’ imprisonment, it is clear from the developing jurisprudence of this court that the offence must not be one of absolute liability and that it commands a minimum fault requirement of negligence, in that at least a defence of due diligence must be always be open to an accused in order for the provision to conform to the requirements of s. 7 of the Charter. Therefore, it will be necessary to examine the components of s. 37.3(2) ((a) through (d)) in order to determine whether they, in fact, provide a defence of due diligence to an accused. Before addressing this question, however, it is necessary to address a further argument put forward by the appellant, Wholesale Travel. Counsel for Wholesale Travel has argued that the offence of false/misleading advertising is one of those offences, contemplated by this court in Vaillancourt, for which the special nature of the stigma attaching to a conviction and/or the severity of the available punishment is such that subjective mens rea is constitutionally required by s. 7. Counsel for Wholesale Travel argued that the stigma attaching to a conviction of false/misleading advertising is akin to the stigma of dishonesty which attaches to a conviction of theft. Given that the stigma attaching to theft was explicitly contemplated in Vaillancourt as one which may well necessitate a subjective mens rea, it was argued that the offence of false/misleading advertising also requires an element of subjective mens rea in order to comply with the principles of fundamental justice. In my view, while a conviction for false/misleading advertising carries some stigma, in the sense that it is not morally neutral behaviour, it cannot be said that the stigma associated with this offence is analogous to the stigma of dishonesty which attaches to a conviction for theft. A conviction for false/misleading advertising will rest on a variety of facts, many of which will not reveal any dishonesty but, rather, carelessness, and the conviction of same does not brand the accused as being dishonest. In my opinion, the same cannot be said for a conviction for theft. Thus, while it is clear that there are some offences for which the special stigma attaching to conviction is such that subjective mens rea is necessary in order to establish the moral blameworthiness which justifies the stigma and sentence, the offence of false/misleading advertising is not such an offence. I note that the general question of the appropriate standard of fault was recently addressed, in relation to provincial offences, by the Ontario Law Reform Commission in its Report on the Basis of Liability for Provincial Offences (Toronto, 1990). The commission was of the view that “mere carelessness should not result in a prison sentence” (at p. 46), and recommended that where the possibility of imprisonment arises upon conviction of a provincial offence, the standard of fault must be more than ordinary negligence and must be either an aware state of mind (subjective mens rea) or a “marked and substantial departure from the standard of care expected of a reasonably prudent person in the circumstances” (at p. 46). The Law Reform Commission of Canada made a similar recommendation in its earlier Working Paper No. 2, The Meaning of Guilt: Strict Liability (Ottawa, 1974), wherein the commission stated that for regulatory offences allowing for a defence of due diligence with a reverse onus of proof, “imprisonment should generally be excluded as a punishment, though regulatory offences committed deliberately or recklessly could, in appropriate cases, constitute offences under the Criminal Code and merit imprisonment” (at p. 37). It must be remembered that in making these recommendations, the law reform commissions were advising their respective governments on matters of policy. Conversely, the question raised in the appeal before this court is not what is the most appropriate government policy, but rather what fault requirement is constitutionally required where an accused faces possible imprisonment. While an aware state of mind may well be the most appropriate minimum standard of fault for imprisonment or for any offence included in the Criminal Code, a matter upon which I refrain from expressing any view, it does not follow that this standard of fault is entrenched in the Charter. As I stated in Lippé c. Charest (1991), 5 M.P.L.R. (2d) 113, (sub nom. R. v. Lippé) 64 C.C.C. (3d) 513, 5 C.R.R. (2d) 31, (sub nom. Lippé v. Québec (Procureur général)) 128 N.R. 1, 39 Q.A.C. 241 (S.C.C.), at p. 34 [N.R.], “the Constitution does not always guarantee the ideal.” As this court stated in Vaillancourt, supra, the principles of fundamental justice dictate that negligence is the minimum fault requirement where an accused faces possible imprisonment upon conviction except for certain offences such as murder. For the reasons given above, it is my view that s. 7 of the Charter does not dictate the higher fault requirement contemplated by the Ontario Law Reform Commission for the offence of false/misleading advertising. Whether a fault requirement higher than this constitutional minimum ought to be adopted where an accused faces possible imprisonment or conviction of any offence under the Criminal Code is a question of public policy which must be determined by Parliament, and for the courts to pronounce upon this would be contrary to what this court has said in Re B.C. Motor Vehicle Act, supra, at pp. 498-499: [S.C.R., p. 305 C.R.], that we refrain from “adjudicating upon the merits or wisdom of enactments.” It is not the role of this court to “second-guess” the policy decisions made by elected officials. Therefore, an element of subjective mens rea is not required by s. 7 of the Charter, and the provisions in question are not inconsistent with s. 7 on the basis that they do not require intent or knowledge on the part of an accused. I turn now to the question posed above: namely, do paras. (a) through (d) of s. 37.3(2) provide an accused with a defence of due diligence? Section 37.3(2)(a) through (d) sets out the only defence, under the Act, to false/misleading advertising, once it has been established that the advertisement is objectively false or misleading (i.e., once the actus reus is established). It is clear from the inclusion of the word “and” after s. 37.3(2)(c) that all four components of s. 37.3(2) must be established in order for the accused to be acquitted. While the Crown has suggested that, in certain circumstances, only paras. (a) and (b) must be fulfilled (relying on certain dicta of the Ontario Court of Appeal in R. v. Consumers Distributing Co. (1980), 54 C.P.R. (2d) 50, 57 C.C.C. (2d) 317), it is my respectful view that this is an incorrect interpretation of the provision. Thus, the question becomes whether a situation could arise where an accused would be unable to establish all four components of s. 37.3(2), but would nonetheless be duly diligent (i.e., not negligent). If the answer to this question is yes, it means that the constitutionally required element of negligence is not fulfilled by the statutory defence contained in s. 37.3(2). The Crown has conceded that the statutory defence afforded by s. 37.3(2) is “more restricted” than the common law defence of due diligence, but nonetheless argues that the limited nature of the statutory defence does not render it unconstitutional. Although paras.(a) and (b) of s. 37.3(2) refer specifically to an “error” and to the exercise of due diligence to prevent an “error,” they, in my view, largely correspond to the usual due diligence defence. In other words, paras. (a) and (b) operate so as to provide a defence to an accused who has taken reasonable precautions to prevent false/misleading advertising, and who has been duly diligent in ensuring that advertising is not false or misleading in nature. However, the additional requirement of “timely retraction” embodied in paras. (c) and (d) means that the statutory defence is considerably more narrow than the common law defence of due diligence. An accused who did not realize, and could not reasonably have been expected to realize, that the representation in question was false or misleading until it was too late to comply with paras. (c) and (d), or who was, for some reason, unable to comply with paras. (c) and (d), but who had nonetheless taken reasonable precautions and who had exercised due diligence in preventing false/misleading advertising, would not fall within the statutory defence and would be convicted of false/misleading advertising. I agree with the majority of the Ontario Court of Appeal that paras. (c) and (d) of s. 37.3(2) could have the effect of depriving an accused of the defence of due diligence and could therefore require the conviction of an accused who was not negligent. Paras. (c) and (d) make the failure to undertake corrective advertising (a component of the offence of false/misleading advertising) an “offence” of absolute liability. Consequently, the consitutionally required fault level is not present in the false/misleading advertising provisions. In light of the above discussion, I agree with the majority of the Court of Appeal that it is the presence of paras. (c) and (d) alone which offends s. 7 of the Charter. Thus, unless the limitation on s. 7 can be upheld under s. l of the Charter, these two paragraphs must be held to be of no force or effect, pursuant to s. 52(1) of the Constitution Act, 1982. The Crown, along with a number of interveners, has argued that this result should not necessarily follow where the offence in question is a “regulatory offence” as opposed to a criminal offence and that the constitutional fault requirement, as contemplated by Reference re: s. 94(2) of Motor Vehicle Act and R. v. Vaillancourt, should not necessarily apply in a regulatory setting. Much has been made in this case of the fact that the Competition Act isaimed at economic regulation. In my view, whether this offence (or the Act generally) is better characterized as “criminal” or “regulatory” is not the issue. The focus of the analysis in Reference re: s. 94(2) of Motor Vehicle Act and R v.Vaillancourt was on the use of imprisonment to enforce the prohibition of certain behaviour or activity. A person whose liberty has been restricted by way of imprisonment has lost no less liberty because he or she is being punished for the commission of a regulatory offence as opposed to a criminal offence. Jail is jail, whatever the reason for it. In my view, it is the fact that the state has resorted to the restriction of liberty through imprisonment for enforcement purposes which is determinative of the principles of fundamental justice. I cannot agree that these principles take on a different meaning simply because the offence can be labelled as “regulatory”. Indeed, while I agree that this offence can be characterized as “regulatory”, the label loses much of its relevance when one considers that an accused faces up to five years’ imprisonment upon conviction. While a regulatory context may well influence the Charter analysis in particular cases (see the judgment of Justice La Forest in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Parade Practices Commission), (1990), 54 C.C.C. (3d) 417, 67 D.L.R. (4th) 161, 29 C.P.R. (3d) 97, [1990] 1 S.C.R. 425, it is my view that the jurisprudence of this court indicates that negligence is the minimum level of fault which will accord with s. 7 of the Charter whenever a conviction gives rise to imprisonment. In light of the above, I will now consider whether paras.
(c) and (d)of s. 37.3(2) can be upheld as a reasonable
limit under s. 1 of the Charter. The procedure to be followed when the state is attempting
to justify a limit on a right or freedom under s. 1 was
set out by this court in R. vOakes, supra .... It is not necessary to convict of false/misleading advertising those who did not undertake corrective advertising because they did not realize (and ought not to have realized) that the advertisement was false/misleading, in order to achieve the objectives set out above. If Parliament wished to encourage corrective advertising in order to meet the objectives set out above, it could have: (a) enacted a separate offence of “failure to correct false/misleading advertising” under which an accused who discovers or who ought to have discovered that an advertisement was false or misleading is required to be duly diligent in taking the corrective measures set out in paras. (c) and (d)in order to come within the statutory defence to this offence, or In my view, either of these alternative means would, without convicting the innocent, achieve the objective of encouraging advertisers to undertake corrective advertising and would therefore achieve the dual objectives of protecting consumers from the effects of false advertising and of preventing advertisers from benefiting from false/misleading representations. Given that these two alternatives were clearly open to Parliament, it can be seen that the existing paragraphs are unnecessarily intrusive on constitutional rights. While an absolute liability component to the offence of false advertising would perhaps be more effective in facilitating convictions than would the alternatives proposed above, the simple answer to this contention is that Parliament could have retained the absolute liability component and, at the same time, infringed Charter rights to a much lesser extent, had it not combined this absolute liability with the possibility of imprisonment. In this sense, removing the possibility of imprisonment and leaving paras. (c) and (d)unchanged was a further less intrusive means which was available to Parliament. I will now consider whether the false/misleading advertising provisions limit an accused’s rights under s. 11(d) of the Charter. Section 11 (d) In R. v. Oakes, supra, this court held that the presumption of innocence is protected expressly by s. 11(d) of the Charter and inferentially by the s. 7 right to life, liberty and security of the person (since the presumption of innocence is a principle offundamental justice). In analyzing the meaning and content of s. 11(d), this court held that, where an accused faces penal consequences, the right to be presumed innocent until proven guilty requires, at a minimum, that: an individual must be proven guilty beyond a reasonable doubt, that the state must bear the burden of proof and that criminal prosecutions must be carried out in accordance with lawful procedures and fairness. This court held that s. 8 of the Narcotic Control Act, R.S.C. 1970, c. N-1, infringed s. 11(d) by requiring the accused to prove (on a balance of probabilities) that he was not guilty of trafficking once the basic fact of possession had been proven. In R. v. Wigglesworth (1987), 37 C.C.C. (3d) 385, 45 D.L.R. (4th) 235, [1987] 2 S.C.R. 541, this court held that the rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the state for public offences involving punitive sanctions, i.e., criminal, quasi-criminal, and regulatory offences, either federally or provincially enacted. Wilson J. (for the majority) stated that s. 11 is intended to provide procedural safeguards in proceedings which may attract penal consequences even if not criminal in the strict sense. ... Thus, the question to be determined here is whether the words “he establishes that” contained in s. 37.3(2) could operate so as to permit a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. Again, both the Crown and a number of interveners have argued that this interpretation of s. 11(d) should not apply in a regulatory setting. I can only reiterate my earlier comment that it is the fact that the state has resorted to the restriction of liberty through imprisonment for enforcement purposes which is determinative of the Charter analysis. A person whose liberty has been restricted by way of imprisonment has lost no less liberty because he or she is being punished for the commission of a regulatory offence as opposed to a criminal offence. A person whose liberty interest is imperilled is entitled to have the principles of fundamental justice fully observed. The presumption of innocence, guaranteed by s. 11(d), is clearly a principle of fundamental justice. Given that I have determined, above, that paras. (c) and (d) of s. 37.3(2) must be held to be of no force or effect, the words “he establishes that” must be considered with respect to paras. (a) and (b)of s. 37.3(2). In this context, the words “he establishes that” place a burden on an accused to prove the two elements delineated thereafter on a balance of probabilities: see R. v. Chaulk, supra, at p. 203. Thus, if an accused fails to prove either of these elements on a balance of probabilities, (assuming the Crown has proved theactus reus) that accused will be convicted of false/misleading advertising. The absenceof due diligence (presence of negligence) is clearly necessary for a finding of guilt. Thus, it seems clear to me that under s. 37.3(2) an accused could be convicted of false/misleading advertising despite the existence of a reasonable doubt as to whether the accused was duly diligent and, therefore, despite the existence of a reasonable doubt as to guilt. In light of the above, I fully agree with the following statement of Tarnopolsky J.A. in the court below (at pp. 32-3 C.C.C., pp. 3489 D.L.R., p. 568 O.R.):
Section 1 As was the case under s. 7, the Crown submits that the objective of the law is to promote vigorous and fair competition. As I have indicated above, this may well be the over-all objective of the Competition Act in general, but it is not the specific objective of placing a persuasive burden on an accused to prove due diligence (disprove negligence). The specific objective of placing a persuasive burden on an accused via the words “he establishes that” is to ensure that all those who are guilty of false/misleading advertising are convicted and to ensure that convictions are not lost due to evidentiary problems in proving guilt. I am prepared to accept that this is a “pressing and substantial objective” for the purposes of the Oakes analysis. The means chosen to achieve this objective can be characterized as follows: to facilitate convictions by removing the burden on the Crown to prove negligence (lack of due diligence) beyond a reasonable doubt. In other words, the means chosen to achieve the objective essentially amounts to a decision by Parliament to convict all those who do not establish that they were duly diligent, including some accused who were duly diligent (and for whom a reasonable doubt exists in that regard) but who are unable to prove due diligence on a balance of probabilities. This, then, is the means which must be considered under the proportionality part of the Oakes test. Proportionality test 1. Rational connection Convicting all those who are unable to establish due diligence on a balance of probabilities, including those who were duly diligent is one way of ensuring that all those guilty of false/misleading advertising are convicted, and is therefore one way of ensuring that the overall goal of ensuring fair and vigorous competition is attained. While this method of achieving the objective may raise certain problems and may not be the preferred method of achieving the objective, it is none the less a logical means of achieving the desired objective. Thus, in my view, there is a rational connection between the objectives and the means chosen to attain the objectives, and the persuasive burden embodied in the words “he establishes that” in s. 37.3(2) therefore passes the first part of the proportionality test in R. v. Oakes. 2. As little as possible While the imposition of a persuasive burden is rationally connected to the objective, it does not, in my view, infringe constitutionally protected rights as little as is reasonably possible. The Crown has not established that it is necessary to convict those who were duly diligent in order to “catch” those accused who were not duly diligent. Parliament clearly had the option of employing a mandatory presumption of negligence (following from proof of the actus reus) which could be rebutted by something less than an accused’s establishing due diligence on a balance of probabilities. This option was, in fact, recommended by the Ontario Law Reform Commission in its Report on the Basis of Liability for Provincial Offences (1990). The commission stated (at p. 48):
I note that the presence of such a mandatory presumption alongside the accused’s evidentiary burden would, in effect, require the accused to adduce evidence capable of amounting to evidence of due diligence, either through the testimony of the accused or that of other witnesses, including the cross-examination of Crown witnesses or by other means. It goes without saying that if the Crown has adduced such evidence, the accused can rely on it in discharge of the evidentiary burden. This will ensure that the information as to what steps, if any, were taken to avoid the occurrence of the prohibited act is in the record and will relieve the Crown of the obligation to bring forward evidence on a matter that is exclusively in the possession of the accused. On the other hand, the Crown will bear the risk of non-persuasion if the conclusions and inferences to be drawn from such information leave the trier of fact in a state of reasonable doubt on the issue of due diligence. ... The use of such a mandatory presumption in s. 37.3(2) would be less intrusive on s. 11(d) and would go a long way in achieving the objective: namely, ensuring that those who are not duly diligent are convicted (either because those accused would be unable to rebut the mandatory presumption or because the Crown would be able to prove a lack of due diligence). While the over-inclusive persuasive burden may bring about more convictions than would an evidentiary burden, the general objective of convicting the guilty would be attained by a less intrusive, evidentiary burden. While a mandatory presumption with an evidentiary burden on the accused would be far less intrusive on s. 11(d) than would the existing persuasive burden, it must be recognized that a mandatory presumption would itself to some degree infringe the presumption of innocence. As discussed above, this court stated in R. v. Oakes, supra, that the presumption of innocence includes both the right of an accused to be presumed innocent until proven guilty, and the right to have the state bear the burden of proving guilt beyond a reasonable doubt. Unless it can be said that proof of the actus reus of false/misleading advertising, in and of itself and in all cases, leads inexorably to the conclusion that the accused was negligent in carrying out that actus reus, a mandatory presumption of negligence leaves open the possibility that the accused will be convicted despite the fact that the Crown’s evidence leaves a reasonable doubt about the accused’s negligence. In the absence of a mandatory presumption, the Crown would be required to raise some evidence of negligence in order to secure a conviction. If the Crown failed to address the element of negligence, the accused could successfully raise a “no evidence motion” or (in a jury trial) a motion for a “directed verdict”. The presence of a mandatory presumption means that the usual requirement for Crown evidence has been replaced by a presumption of negligence (which can only be rebutted if the accused can point to some evidence capable of raising a reasonable doubt about negligence). It follows from this that an accused who chose to remain silent and lead no defence evidence would, in the absence of some other evidence capable of raising a reasonable doubt, be deemed to have been negligent (a fault requirement which I have just concluded is constitutionally required) and would, therefore, be convicted. Such would not be the case in the absence of a mandatory presumption and evidentiary burden. It can be seen from the above discussion that a mandatory presumption can operate so as to indirectly force an accused into the stand in order to avoid being convicted. If proof of the actus reus itself necessarily established negligence in all cases, this would not conflict with the presumption of innocence because the accused would then be “forced” into the stand only as a result of the Crown’s evidence of actus reus effectively constituting evidence of negligence (the necessary inference of negligence being drawn from the Crown’s evidence of actus reus). However, mere proof of the actus reus of false advertising does not inexorably lead to the conclusion that the accused was negligent in committing the actus reus. Thus, the indirect compulsion of an accused into the stand which arises from a mandatory presumption of negligence infringes on an accused’s s. 11(d) right to have the Crown prove his or her guilt beyond a reasonable doubt. At the same time, it is my view that any such infringement of s. 11(d) would be clearly justified as a reasonable limit prescribed by law under s. 1 of the Charter. The objective of incorporating a mandatory presumption and evidentiary burden into s. 37.3(2) would be to avoid placing an impossible burden on the Crown. Like most public welfare offences, false/misleading advertising is of such a nature that the accused will be in the best position to garner evidence of due diligence. In the absence of some explanation by the accused, it will nearly always be impossible for the Crown to prove the absence of due diligence. Indeed, without an evidentiary burden on the accused, the Crown may well be put in the difficult situation which was addressed in R. v.Chaulk, supra, whereby the burden of adducing evidence of negligence on an ongoing basis could give rise to intrusions of other Charter rights, such as the right to be free from unreasonable search and seizure (s. 8). Thus, the use of a mandatory presumption in s. 37.3(2) would be rationally connected to avoiding this impossible burden, would fall well within the range of means which impair Charter rights as little as is reasonably possible, and would be proportional in its effect on the presumption of innocence. In summary, while the use of a mandatory presumption in s. 37.3(2) would also infringe s.11(d), it constitutes a less intrusive alternative which would not violate the Charter (in that it would constitute a justifiable limit under s. 1). In light of this alternative, it is my view that the words “he establishes that” do not limit constitutionally protected rights as little as is reasonably possible and that the persuasive burden cannot, therefore, be upheld as a reasonable limit under s. 1. However, even if it can be said that a mandatory presumption along with an evidentiary burden would not attain the objective as effectively as a persuasive burden and that the words in question therefore do limit Charter rights as little as is reasonably possible, it is my view that any marginal increase in the obtaining of the objective (via a persuasive burden on the accused) would be clearly outweighed by the detrimental effect on the presumption of innocence. In other words, if I am wrong in finding that the words in question do not pass the second branch of the proportionality test in R. v. Oakes, it is my view that the persuasive burden does not pass the third branch of the proportionality test in R. v.Oakes because the effect of the means chosen on Charter rights and freedoms is not proportional to the objective. Indeed, here we are postulating legislation enabling the imprisonment of those who were duly diligent but could not prove it on a balance of probabilities, even though there might well have existed a reasonable doubt thereof. Sending the innocent to jail is too high a price. I also wish to point out that Parliament had the further option of maintaining the persuasive burden on the accused but removing the possibility of imprisonment. The use of a persuasive burden in circumstances where imprisonment was not a possible punishment would be far less intrusive on constitutional rights. In light of the alternative means open to Parliament, I am of the view that the use of a persuasive burden in s. 37.3(2) cannot be justified under the proportionality part of the Oakes test. In summary, it is my view that the words “he establishes that” contained in s. 37.3(2) limit s. 11(d) of the Charter and cannot be upheld as a reasonable limit under s. 1. Consequently, the words “he establishes that” must be held to be of no force or effect, pursuant to s. 52(1) of the Constitution Act, 1982. Once the words “he establishes that” are deleted from s. 37.3(2), the question becomes, who proves what under the remaining provision? Parliament may well choose to re-enact the offence of false/misleading advertising within constitutionally acceptable parameters but, until such time, how is this offence to be proven? In my opinion, the answer to this question requires the court toconsider this court’s judgment in R. v. Sault. Ste. Marie (City), supra, but this time in light of the Charter. In R. v. Sault Ste. Marie (City), supra, this court set out a classification of offences to be followed where the legislature had not expressly addressed the requirement of fault. The court drew a general distinction between “true crimes” and “public welfare offences”. While the court contemplated public welfare offences which carried relatively light sentences, it would seem that the offence of false/misleading advertising would be one which would fall within the “public welfare” classification in R. v. Sault Ste. Marie (City). For “public welfare offences”, the court held that the standard of fault was that of “strict liability”. This meant that conviction would follow proof (by the Crown) of the actus reus, unless the accused proved, on a balance of probabilities, that he or she took all reasonable care and was duly diligent. It is clear to me from the foregoing discussion of this court’s judgments in R. v. Oakes, R. v. Wigglesworth, R. v. Vaillancourt, R. v. Whyte, and R. v. Chaulk, supra, that where an accused faces imprisonment upon conviction, the presence of the persuasive burden in the R. v. Sault Ste. Marie (City) category of “strict liability” is inconsistent with the principles of fundamental justice. The previous judgments of this court make clear that, to the extent that imprisonment is a possible penalty, this category of “strict liability”, placing a persuasive burden on the accused, cannot withstand Charter scrutiny. It follows from this that when imprisonment is a possible punishment for the commission of a “public welfare offence”, the persuasive burden contemplated by this court in R. v.Sault Ste. Marie (City) cannot be operative; in this sense, the developing Charter jurisprudence of this court has, over the last five years, been modifying this holding in R. v.Sault Ste. Marie (City). At the same time, the reasons for not imposing a fault requirement of subjective mens rea for “public welfare offences”, which were discussed at length in R. v. Sault Ste. Marie (City), are still compelling. Therefore, I would characterize themodification of R. v. Sault Ste. Marie City) as follows: where the legislature has not expressly addressed the requirement of fault (or where, as here, it has done so in a manner which violates the Constitution), a “public welfare offence” (such as false/misleading advertising) which carries the possibility of imprisonment will be construed as setting up a rebuttable mandatory presumption of negligence. Once the Crown proves the actus reus, the accused will carry the evidentiary burden of pointing to some evidence (led either by the Crown or the defence) which is capable of raising a reasonable doubt as to his or her negligence, short of which a conviction will properly ensue. Thus, the remaining words in s. 37.3(2) mean that the offence of false/misleading advertising will be made out once the Crown proves the actus reus beyond a reasonable doubt, unless the accused can meet the aforementioned burden of raising a reasonable doubt. If the accused is able to rebut this presumption, the Crown will carry the burden of proving negligence (lack of due diligence) beyond a reasonable doubt. As was indicated above, in my discussion of the Oakes analysis I am of the view that this modified rule in R. v.Sault Ste. Marie (City) would not violate the Charter. While the mandatory presumption would constitute a limitation on the presumption of innocence, such limitation would be justified under s. 1 of the Charter. I turn now to the question of s. 36(1)(a). It is my view that the constitutional difficulties arise only from the operation of paras. (c) and (d) of s. 37.3(2) and from the words “he establishes that” in s. 37.3(2). Consequently, no constitutional problem is raised by s. 36(1)(a) either by itself or in combination with the remainder of s. 37.3(2). Appeal by accused dismissed; [In the result, the court unanimously declared ss. 37.3(2)(c) and (d) to be unconstitutional. Three members of the court (LaForest, Sopinka and McLachlin JJ.) agreed with Lamer C.J. that the reverse onus in s. 37.3(2) violated s. 11 (d) and could not be sustained under s. 1. L’Heureux-Dubé J. agreed with Cory J. that the reverse onus did not violate s. 11 (d). Three members of the court (Iacobucci, Gonthier and Stevenson JJ.) held that s. 11 (d) was violated but that the violation could be justified under s. 1. By a 5-4 majority, then, the reverse onus was sustained.] * * * Francis Bowes Sayre, “Public Welfare Offenses,” 33 Colum. L. Rev. 55 (1933). Blackstone, ... summarizing the classical conception of a crime, declared that “to constitute a crime against human laws, there must be first a vicious will, and secondly an unlawful act consequent upon such vicious will.”“There can be no crime large or small without an evil mind,” says Bishop. “It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist.” In the face of an almost unbroken line of authorities to similar effect we are witnessing today a steadily growing stream of offenses punishable without any criminal intent whatsoever. Convictions may be had for the sales of adulterated or impure food, violations of the liquor laws, infractions of anti narcotic acts, and many other offenses based upon conduct alone without regard to the mind or intent of the actor.... What does this ... movement portend?.... Are we to look forward to a day when criminality will be based upon external behavior alone irrespective of intent? No such conclusion is warranted. Criminality is and always will be based upon a requisite state of mind as one of its prime factors.... “Public welfare offenses,” if one may coin the phrase, constitute, however, a noteworthy exception.... All criminal law is a compromise between two fundamentally conflicting interests: that of the public which demands restraint of all who injure or menace the social well being and that of the individual which demands maximum liberty and freedom from interference.... During the nineteenth century it was the individual interest which held the stage; the criminal law machinery was overburdened with innumerable checks to prevent possible injustice to individual defendants. The scales were weighted heavily in his favor, and, as we have found to our sorrow, the public welfare often suffered. In the twentieth century came reaction. We are thinking today more of the protection of social and public interests; and coincident with the swinging of the pendulum in the field of legal administration in this direction modern criminologists are teaching the objective underlying correctional treatment should change from the barren aim of punishing human beings to the fruitful one of protecting social interests. * * * [S]wamped with ... inundations of cases of petty violations, the lower criminal courts would be physically unable to examine the subjective intent of each defendant, even were such determination desirable. As a matter of fact it is not; for the penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest. The ready enforcement which is vital for effective petty regulation on an extended scale can be gained only by a total disregard of the state of mind. * * * How then can one determine practically which offenses do and which do not require mens rea, where the statute creating the offense is entirely silent as to requisite knowledge? Although no hard and fast lines can be drawn, two cardinal principles stand out upon which the determination must turn. The first relates to the character of the offense. All criminal enactments in a sense serve the double purpose of singling out wrongdoers for the purpose of punishment or correction and of regulating the social order. But often the importance of the one far outweighs the other. Crimes created primarily for the purpose of singling out individual wrongdoers for punishment or correction are the ones commonly requiring mens rea; police offenses of a merely regulatory nature are frequently enforceable irrespective of a guilty intent. The second criterion depends upon the possible penalty. If this be serious, particularly if the offense be punishable by imprisonment, the individual interest of the defendant weighs too heavily to allow conviction without proof of a guilty mind. To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure. * * * Morissette v. United States MR. JUSTICE JACKSON delivered the opinion of the Court. [Morissette was convicted of “converting” $84 worth of federal property, by selling spent bomb casings as scrap metal, under the following statute in the federal criminal code (title 18): Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof ... shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. (18 U.S.C. § 641)Morissette defended on the ground that he believed the bomb casings had been abandoned. He had found them on a practice bombing range while hunting. Despite the presence of signs reading “Danger—Keep Out—Bombing Range,” the range “was known as good deer country and was extensively hunted.” In a lengthy opinion, the Supreme Court reversed the conviction, reading an “intent” requirement into the statute because it did not define a “public welfare” offense. Instead the Court held that “[s]tealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is ‘as bad a word as you can give to man or thing.’“] The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion ..., although a few exceptions ... came to be recognized. ... [There is] a category of ... crimes ... that depend on no mental element but consist only of forbidden acts or omissions. This ... is made clear from examination of a century old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare. [L]awmakers ... have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called “public welfare offenses.” These cases do not fit neatly into any of such accepted classifications of common law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does not grave damage to an offender’s reputation. * * * MPC §§ 2.02(3), (4), 2.05
2. Constructive Murder
R. v. Vaillancourt LAMER J.:— IntroductionVaillancourt was convicted of second degree murder following a trial before a Sessions Court judge and jury in Montreal. He appealed to the Quebec Court of Appeal, arguing that the judge’s charge to the jury on the combined operation of ss. 213(d) {now s. 230} and 21(2) of the Criminal Code, R.S.C. 1970, c. C 34, was incorrect. His appeal was dismissed and the conviction was affirmed: (1984), 31 C.C.C. (3d) 75. Before this court, he has challenged the constitutional validity of s. 213(d) alone and in combination with s. 21(2) under the Canadian Charter of Rights and Freedoms. The factsFor the purposes of this appeal, the Crown does not
contest the following statement of the facts. Constitutional questionsBefore this court, the following constitutional questions were formulated:
Narrowing the issueThe appellant has framed his attack on s. 213(d) of the
Code in very wide terms. He has argued that the principles
of fundamental justice require that, before Parliament can
impose any criminal liability for causing a particular
result, there must be some degree of subjective mens rea
in respect of that result. This is a fundamental question
with far-reaching consequences. If this case were decided
on that basis, doubt would be cast on the constitutional
validity of many provisions throughout our Criminal
Code, in particular s. 205(5)(a) {now s.
222(5)(a)}, whereby causing death by means of an unlawful
act is culpable homicide, and s. 212(c) {now s. 229}
whereby objective foreseeability of the likelihood of
death is sufficient for a murder conviction in certain
circumstances. The appellant has also challenged the combined operation of ss. 21(2) and 213(d). Given my decision on the validity of s. 213(d) and in view of the importance of s. 21(2) and the absence of the Attorney-General of Canada, I do not find it necessary or advisable to deal with s. 21(2) in this appeal. Analysis of s. 213(d)Section 213(d) in the context of the murder provisionsIt is first necessary to analyze s. 213(d) in the context of the other murder provisions in the Code in order to determine its true nature and scope. Murder is defined as a culpable homicide committed in the circumstances set out at ss. 212 {now s. 229) and 213 {now s. 230} of the Code. There is a very interesting progression through s. 212 to s. 213 with respect to the mental state that must be proven. The starting point is s. 212(a)(i), which provides: 212. Culpable homicide is murder There is a slight relaxation of this requirement in s.
212(a)(ii), which provides: 212. Culpable homicide is murder Here again the accused must have actual subjective
foresight of the likelihood of death. However, the Crown
need no longer prove that he intended to cause the death
but only that he was reckless whether death ensued or not.
It should also be noted that s. 212(a)(ii) is limited to
cases where the accused intended to cause bodily harm to
the victim. Section 212(c) provides: 212. Culpable homicide is murder… In part, this is simply a more general form of
recklessness and thus the logical extension of s.
212(a)(ii), in that it applies when the accused “does anything
. . . he knows . . . is likely to cause death” (emphasis
added). However, there is also a further relaxation of the
mental element required for murder in that it is also
murder where the accused “does anything that he . . .
ought to know is likely to cause death” (emphasis
added). this eliminates the requirement of actual
subjective foresight and replaces it with objective
foreseeability or negligence.
Under this provision, it is murder if the accused causes
the victim’s death while committing or attempting to
commit one of the enumerated offences if he performs one
of the acts in paras.(a) to (d). Proof that the accused
performed one of the acts in paras. (a) to (d) is
substituted for proof of any subjective foresight or even
objective foreseeability of the likelihood of death. Section 213(d) and the CharterThis appeal calls into play two principles of fundamental justice. The First Principle: The Essential Elements of Certain Crimes and s.7 of the CharterPrior to the enactment of the Charter, Parliament had full legislative power with respect to “The Criminal Law” (Constitution Act, 1867, s. 91(27)), including the determination of the essential elements of any given crime. It could prohibit any act and impose any penal consequences for infringing the prohibition, provided only that the prohibition served “a public purpose which can support it as being in relation to criminal law” (Reference re Validity of s. 5(a) of the Dairy Industry Act, [1949] 1 D.L.R. 433 at p. 473, [1949] S.C.R. 1 at p. 50; appeal to the Privy Council dismissed, [1950] 4 D.L.R. 689, [1951] A.C. 179). Once the legislation was found to have met this test, the courts had very little power to review the substance of the legislation. For example, in R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299, Dickson J., as he then was, held that, when an offence was criminal in the true sense, there was a presumption that the prosecution must prove the mens rea. However, it was always open to Parliament expressly to relieve the prosecution of its obligation to prove any part of the mens rea, as it is said to have done in s. 213 of the Criminal Code with respect to the foreseeability of the death of the victim. It is thus clear that, prior to the enactment of the Charter, the validity of s. 213 could not have been successfully challenged. However, federal and provincial legislatures have chosen to restrict through the Charter this power with respect to criminal law. Under s. 7, if a conviction, given either the stigma attached to the offence or the available penalties, will result in a deprivation of the life, liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice. It has been argued that the principles of fundamental justice in s. 7 are only procedural guarantees. However, in Re B.C. Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, this court rejected that argument and used s. 7 to review the substance of the legislation. As a result, while Parliament retains the power to define the elements of a crime, the courts now have the jurisdiction and, more important, the duty, when called upon to do so, to review that definition to ensure that it is in accordance with the principles of fundamental justice. This court’s decision in Re B.C. Motor Vehicle Act stands for the proposition that absolute liability infringes the principles of fundamental justice, such that the combination of absolute liability and a deprivation of life, liberty or security of the person is a restriction on one’s rights under s. 7 and is prima facie a violation thereof. In effect, Re B.C. Motor Vehicle Act acknowledges that, whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even, as in Re B.C. Motor Vehicle Act, a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state which is an essential element of the offence. It thus elevated mens rea from a presumed element in Sault Ste. Marie, supra, to a constitutionally required element. Re B.C. Motor Vehicle Act did not decide what level of mens rea was constitutionally required for each type of offence, but inferentially decided that even for a mere provincial regulatory offence at least negligence was required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. In Sault Ste. Marie, Dickson J. stated at p. 362 C.C.C., p. 170 D.L.R., pp. 1309-10 S.C.R.: Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law. It may well be that, as a general rule, the principles of fundamental justice require proof of a subjective mens rea with respect to the prohibited act, in order to avoid punishing the “morally innocent”. It must be remembered, however, that Dickson J. was dealing with the mens rea to be presumed in the absence of an express legislative disposition, and not the mens rea to be required in all legislation providing for a restriction on the accused’s life, liberty or security of the person. In any event, this case involves criminal liability for the result of an intentional criminal act, and it is arguable that different considerations should apply to the mental element required with respect to that result. There are many provisions in the Code requiring only objective foreseeability of the result or even only a causal link between the act and the result. As I would prefer not to cast doubt on the validity of such provisions in this case, I will assume, but only for the purposes of this appeal, that something less than subjective foresight of the result may, sometimes, suffice for the imposition of criminal liability for causing that result through intentional criminal conduct. But, whatever the minimum mens rea for the act or the result may be, there are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. Such is theft, where, in my view, a conviction requires proof of some dishonesty. Murder is another such offence. The punishment for murder is the most severe in our society and the stigma that attaches to a conviction for murder is similarly extreme. In addition, murder is distinguished from manslaughter only by the mental element with respect to the death. It is thus clear that there must be some special mental element with respect to the death before a culpable homicide can be treated as a murder. That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction. I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight. Given the effect of this view on part of s. 212(c), for the reasons I have already given for deciding this case more narrowly, I need not and will not rest my finding that s. 213(d) violates the Charter on this view, because s. 213(d) does not, for reasons I will set out hereinafter, even meet the lower threshold test of objective foreseeability. I will therefore, for the sole purpose of this appeal, go no further than say that it is a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there surely cannot be a murder conviction. The Second Principle: s. 11(d) and the Burden of PersuasionThe presumption of innocence in s. 11(d) of the Charter requires at least that an accused be presumed innocent until his guilt has been proven beyond a reasonable doubt: Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357; R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 120-121. This means that, before an accused can be convicted of an offence, the trier of fact must be satisfied beyond reasonable doubt of the existence of all of the essential elements of the offence. These essential elements include not only those set out by the legislature in the provision creating the offence but also those required by s. 7 of the Charter. Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss. 7 and 11(d). Clearly, this will occur where the provision requires the accused to disprove on a balance of probabilities an essential element of the offence by requiring that he raise more than just a reasonable doubt. It is for this reason that this court struck down the reverse onus provision in s. 8 of the Narcotic Control Act, R.S.C. 1970, c. N-1, in Oakes, supra. Sections 7 and 11(d) will also be infringed where the statutory definition of the offence does not include an element which is required under s. 7. As Dickson C.J. wrote for the majority of the Court in Oakes, supra, at pp. 132-33:
It is clear from this passage that what offends the presumption of innocence is the fact that an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence, and I do not think that it matters whether this results from the existence of a reverse onus provision or from the elimination of the need to prove an essential element. With respect, the Nova Scotia Court of Appeal was thus clearly incorrect when it stated in R. v. Bezanson (1983), 8 C.C.C. (3d) 493, at p. 508:
The omission of an essential element does bring s. 11(d) into play. Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes ss. 7 and 11(d). Given the first principle I have enunciated earlier and my assumption for the sole purpose of disposing of this appeal with respect to objective foreseeability, an accused cannot be found guilty of murder absent proof beyond a reasonable doubt of that element, and a murder provision which allows a conviction in the absence of proof beyond reasonable doubt of at least that essential element infringes ss. 7 and 11(d). Application of the principles to s. 213The mens rea required for s. 213 consists of the mens rea for the underlying offence and the intent to commit one of the acts set forth in paras. (a) to (d) (Swietlinski v. The Queen (1980), 55 C.C.C. (2d) 481, 117 D.L.R. (3d) 285, [1980] 2 S.C.R. 956). Section 213 does not impose on the accused the burden of disproving objective foreseeability. Further, it does not completely exclude the need to prove any objective foreseeability. Rather, s. 213 has substituted for proof beyond a reasonable doubt of objective foreseeability, if that is the essential element, proof beyond a reasonable doubt of certain forms of intentional dangerous conduct causing death. The question is, therefore, can Parliament make this substitution without violating ss. 7 and 11(d)? As I have discussed earlier, if Parliament frames the section so that, upon proof of the conduct, it would be unreasonable for a jury not to conclude beyond a reasonable doubt that the accused ought to have known that death was likely to ensue, then I think that Parliament has enacted a crime which is tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way. The acid test of the constitutionality of s. 213 is this ultimate question: Would it be possible for a conviction for murder to occur under s. 213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? If the answer is yes, then the section is prima facie in violation of ss. 7 and 11(d). I should add in passing that if the answer is no, then it would be necessary to decide whether objective foreseeability is sufficient for a murder conviction. However, because in my view the answer is yes and because I do not want to pass upon the constitutionality of s. 212(c) in this case, I will not address that issue. To varying degrees it can be said that in almost any case a jury satisfied beyond a reasonable doubt that an accused has done one of the prohibited acts described in paras. (a) to (d) will be satisfied beyond a reasonable doubt that the accused ought to have known that death was likely to be caused. But not always. Indeed, as a first example, drunkenness would under certain circumstances leave the jury in doubt in that regard. The rule as regards the effect of drunkenness on objective foreseeability was unanimously laid down by this court in R. v. Vasil (1981), 58 C.C.C. (2d) 97, 121 D.L.R. (3d) 41, [1981] 1 S.C.R. 469, a murder prosecution under s. 212(c). This court addressed the issue at some length and then summarized its conclusion as follows, per Lamer J. at p. 121 C.C.C., pp. 65-6 D.L.R., pp. 500-1 S.C.R.:
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