Chapter 9. Causation
R. v. Roberts STEPHENSON L.J.: This appellant, Kenneth
Joseph Roberts, was convicted on June 23, 1971, at
Cheshire Quarter Sessions by a jury of an assault
occasioning actual bodily harm, and he was fined £50 by
the Chairman. He was tried on an indictment alleging,
first of all, that he indecently assaulted a young woman
of twenty-one; he was acquitted on that charge, but
convicted of assault occasioning actual bodily harm to
her. He appeals to this Court by leave of the single
judge, who pointed out that what was involved here was
really a point of law, on which no leave was necessary;
and the point of law relates to a direction given by the
learned judge to the jury who convicted him of this
assault.... “Will you say whether the conduct of the prisoner amounted to a threat of causing injury to this young woman, was the act of jumping the natural consequence of the conduct of the prisoner, and was the grievous bodily harm the result of the conduct of the prisoner?”That, said the Court, was a proper direction as far as the law went, and they were satisfied that there was evidence before the jury of the prisoner causing actual bodily harm to the woman. “No-one could say,” said Darling J. when giving the judgment of the Court, “that if she jumped from the window it was not a natural consequence of the prisoner’s conduct. It was a very likely thing for a woman to do as the result of the threats of a man who was conducting himself as this man indisputably was.” This Court thinks that that correctly states the law, and that Mr. Carus was wrong in submitting to this Court that the jury must be sure that a defendant, who is charged either with inflicting grievous bodily harm or assault occasioning actual bodily harm, must foresee the actions of the victim which result in the grievous bodily harm, or the actual bodily harm. That, in the view of this Court, is not the test. The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so “daft,” in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury. In those circumstances, bearing in mind that that is the law, can any fault be found with the summing-up of the learned Chairman? Undoubtedly, the learned Chairman took a strong line when, in his summing-up, he told the jury that, if the girl’s account of what induced her to jump out of the car was true, then their verdict would be guilty. But the jury had to consider: is the girl’s story, broadly speaking, about these two assaults - particularly the assault occasioning actual bodily harm with which this Court is concerned - right, or may the appellant’s story be true, in which he fails entirely to account for the girl’s jumping out of the car, except possibly by the alcohol she had taken, and her anger at his conduct - suggested not, apparently, by the appellant himself, but by his counsel? No fault can be found with the learned Chairman for in effect withdrawing this from the jury in the sense that he told them, “if you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, telling her he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his violence, his threats, by jumping out of the car.” The Court has come to the conclusion, after the assistance of the arguments of counsel on both sides, that the judge was right to tell the jury that it was their duty to convict if they accepted the evidence of the girl, and there was no misdirection involved in his telling them just that. For those reasons, the Court finds no misdirection in the summing-up, and nothing in the grounds of complaint made on behalf of the appellant, and this appeal against conviction must be dismissed. Appeal dismissed.
R. v. Pagett Appeal against conviction. ROBERT GOFF L.J.: The judgment I am
about to deliver is the judgment of the Court, on which we
are all agreed.... Appeal dismissed
R. v. Cheshire BELDAM L.J. The appellant, David
William Cheshire, was convicted of the murder of Trevor
Jeffrey at the Central Criminal Court on 31 January 1989.
He was sentenced to life imprisonment. He now appeals
against conviction with the leave of the single judge. On
14 March we heard an application under s. 23 of the
Criminal Appeal Act 1968 to receive fresh evidence. For
the reasons then given, we rejected that application and
then heard argument on the appeal. We reserved our
judgment. ‘due to a condition which was produced as a result of treatment to provide an artificial airway in the treatment of gunshot wounds of the abdomen and leg.’And he said: ‘In other words, I give as the cause of death cardio-respiratory arrest due to gunshot wounds of the abdomen and leg.’For the appellant it was conceded that the sequence of events which had led to the deceased’s death was that described by the pathologist but a consultant surgeon, Mr Eadie, gave it as his opinion that by 8 February 1988 the wounds of the thigh and the abdomen no longer threatened the life of the deceased and his chances of survival were good. In his view: ‘The cause of his death was the failure to recognise the reason for his sudden onset and continued breathlessness after the 8th February [and the] severe respiratory obstruction, including the presence of stridor [on 14 February]...’The doctors who examined and treated the deceased in the week before his death ought to have diagnosed the serious clinical condition from which he was suffering. Mr Eadie was particularly critical of the failure to appreciate the serious implications of ‘stridor’ on the evening of 14 February. The deceased would not have died if his condition had been diagnosed and properly treated. The doctors had been negligent and this was the cause of his death. One question for the jury at trial therefore was whether the Crown had proved, so that they were sure, that the shots fired by the appellant had caused the deceased’s death. In this appeal it has been argued that the judge misdirected the jury on this issue. The appellant complains of a passage in which the judge said: ‘My direction to you is this, and I have to take the responsibility and you have to observe my direction: if the treatment could have been better, if it is no more than that, then the bullets caused the death, even if the treatment was incompetent, negligent. The bullets caused the death. For you to find that the chain was broken, the medical treatment or lack of medical treatment must be reckless. Mr Boal when opening used the words “gross negligence”. Mr Eadie observed to you that gross negligence he regarded as the same as recklessness, and he is right, and I am using the word “recklessness”, which is a strong word. Mere carelessness or mere negligence are not recklessness. Reckless conduct is where somebody could not care less. He acts or he fails to act careless of the consequences, careless of the comfort and safety of another person. It is that which you are looking for when you examine the medical evidence. The question is: Do you see it, because nothing less alters the situation. In closing speeches Mr Boal spoke of a high degree of negligence. Mr Stewart when cross-examining the witnesses spotted and highlighted acts which he said were not just inexperience, but negligence, and you may agree with him. But the direction I give you is what I have spoken. You are looking for recklessness.’In this paragraph it is said that the judge virtually withdrew from the jury consideration of the doctor’s failure to diagnose the deceased’s clinical condition as the cause of his death because no juror would be likely to accept that a doctor treating a patient was reckless in the sense that he could not care less whether the patient lived or died.... Since the apportionment of responsibility for damage has become commonplace in the civil law, judges have sought to distinguish the blameworthiness of conduct from its causative effect. Epithets suggestive of degrees of blameworthiness may be of little help in deciding how potent the conduct was in causing the result. A momentary lapse of concentration may lead to more serious consequences than a more glaring neglect of duty. In the criminal law the jury considering the factual question, did the accused’s act cause the deceased’s death, will we think derive little assistance from figures of speech more appropriate for conveying degrees of fault or blame in questions of apportionment. Unless authority suggests otherwise, we think such figures of speech are to be avoided in giving guidance to a jury on the question of causation. Whilst medical treatment unsuccessfully given to prevent the death of a victim with the care and skill of a competent medical practitioner will not amount to an intervening cause, it does not follow that treatment which falls below that standard of care and skill will amount to such a cause. As Professors Hart and Honore comment, treatment which falls short of the standard expected of the competent medical practitioner is unfortunately only too frequent in human experience for it to be considered abnormal in the sense of extraordinary. Acts or omissions of a doctor treating the victim for injuries he has received at the hands of an accused may conceivably be so extraordinary as to be capable of being regarded as acts independent of the conduct of the accused but it is most unlikely that they will be.... A case in which the facts bear a close similarity to the case with which we are concerned is R. v. Evans and Gardiner (No 2) [1976] VR 523. In that case the deceased was stabbed in the stomach by the two applicants in April 1974. After operation the victim resumed an apparently healthy life but nearly a year later, after suffering abdominal pain and vomiting and undergoing further medical treatment, he died. The cause of death was a stricture of the small bowel, a not uncommon sequel to the operation carried out to deal with the stab wound inflicted by the applicants. It was contended that the doctors treating the victim for the later symptoms ought to have diagnosed the presence of the stricture, that they had been negligent not to do so and that timely operative treatment would have saved the victim’s life. The Supreme Court of Victoria held that the test to be applied in determining whether a felonious act has caused a death which follows, in spite of an intervening act, is whether the felonious act is still an operating and substantial cause of the death. The summing up to the jury had been based on the passage already quoted from Lord Parker CJ’s judgment in R v Smith and the Supreme Court endorsed a direction in those terms. It commented upon the limitations of R v Jordan and made observations on the difference between the failure to diagnose the consequence of the original injury and cases in which medical treatment has been given which has a positive adverse effect on the victim. It concluded (at 528): ‘But in the long run the difference between a positive act of commission and an omission to do some particular act is for these purposes ultimately a question of degree. As an event intervening between an act alleged to be felonious and to have resulted in death, and the actual death, a positive act of commission or an act of omission will serve to break the chain of causation only if it can be shown that the act or omission accelerated the death, so that it can be said to have caused the death and thus to have prevented the felonious act which would have caused death from actually doing so.’Later in the judgment the court said (at 534): ‘In these circumstances we agree with the view of the learned trial Judge expressed in his report to this Court that there was a case to go to the jury. The failure of the medical practitioners to diagnose correctly the victim’s condition, however inept or unskilful, was not the cause of death. It was the blockage of the bowel which caused death and the real question for the jury was whether that blockage was due to the stabbing. There was plenty of medical evidence to support such a finding, if the jury chose to accept it.’It seems to us that these two passages demonstrate the difficulties in formulating and explaining a general concept of causation but what we think does emerge from this and the other cases is that when the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s acts. Where the law requires proof of the relationship between an act and its consequences as an element of responsibility, a simple and sufficient explanation of the basis of such relationship has proved notoriously elusive. In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased, adding that the accused’s acts need not be the sole cause or even the main cause of death, it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant. It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused’s acts can fairly be said to have made a significant contribution to the victim’s death. We think the word ‘significant’ conveys the necessary substance of a contribution made to the death which is more than negligible. In the present case the passage in the summing up complained of has to be set in the context of the remainder of the direction given by the judge on the issue of causation. He directed the jury that they had to decide whether the two bullets fired into the deceased on 10 December caused his death on 15 February following. Or, he said, put in another way, did the injuries caused cease to operate as a cause of death because something else intervened? He told them that the prosecution did not have to prove that the bullets were the only cause of death but they had to prove that they were one operative and substantial cause of death. He was thus following the words used in R v Smith. The judge then gave several examples for the jury to consider before reverting to a paraphrase of the alternative formulation used by Lord Parker CJ in R v Smith.Finally, he reminded the jury of the evidence which they had heard on this issue. We would remark that on several occasions during this evidence the jury had passed notes to the judge asking for clarification of expressions used by the medical witnesses, which showed that they were following closely the factual issues they had to consider. If the passage to which exception has been taken had not been included, no possible criticism could have been levelled at the summing up. Although for reasons we have stated we think that the judge erred when he invited the jury to consider the degree of fault in the medical treatment rather than its consequences, we consider that no miscarriage of justice has actually occurred. Even if more experienced doctors than those who attended the deceased would have recognised the rare complication in time to have prevented the deceased’s death, that complication was a direct consequence of the appellant’s acts, which remained a significant cause of his death. We cannot conceive that, on the evidence given, any jury would have found otherwise. Accordingly, we dismiss the appeal. Appeal dismissed.
R. v. Smithers The judgment of the Court was delivered by Appeal dismissed.
R. v. Blaue LAWTON L.J. read the following judgment
of the court: On October 17, 1974, at Teesside Crown Court
after a trial before Mocatta J. the defendant was
acquitted of the murder of a girl named Jacolyn Woodhead
but was convicted of her manslaughter on the ground of
diminished responsibility (count 1). He was also convicted
of wounding her with intent to do her grievous bodily harm
(count 2) and of indecently assaulting her (count 3). He
pleaded guilty to indecently assaulting two other women
(counts 4 and 5). He was sentenced to life imprisonment on
counts 1 and 2 and to concurrent sentences of 12 months’
imprisonment on counts 3, 4 and 5. He appeals with the
leave of this court against his conviction on count 1 and,
if his appeal is successful, he applies for leave to
appeal against his sentence on count 2. ‘This is one of those relatively rare cases, you may think, with very little option open to you but to reach the conclusion that was reached by your predecessors as members of the jury in Reg. v. Holland, namely, “yes” to the question of causation that the stab was still, at the time of this girl’s death, the operative cause of death—or a substantial cause of death. However, that is a matter for you to determine after you have withdrawn to consider your verdicts.’...In Reg. v. Holland, 2 Mood. & R. 351, the defendant in the course of a violent assault, had injured one of his victim’s fingers. A surgeon had advised amputation because of the danger to life through complications developing. The advice was rejected. A fortnight later the victim died of lockjaw. Maule J. said, at p. 352: “...the real question is, whether in the end the wound inflicted by the prisoner was the cause of death.” That distinguished judge left the jury to decide that question as did the judge in this case. They had to decide it as juries always do, by pooling their experience of life and using their common sense. They would not have been handicapped by a lack of training in dialectic or moral theology. Maule J.’s direction to the jury reflected the common law’s answer to the problem. He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself: see Hale’s Pleas of the Crown (1800 ed.), pp. 427-428. The common law in Sir Matthew Hale’s time probably was in line with contemporary concepts of ethics. A man who did a wrongful act was deemed morally responsible for the natural and probable consequences of that act. Mr. Comyn asked us to remember that since Sir Matthew Hale’s day the rigour of the law relating to homicide has been eased in favour of the accused. It has been—but this has come about through the development of the concept of intent, not by reason of a different view of causation. Well-known practitioner’s textbooks, such as Halsbury’s Laws and Russell on Crime, continue to reflect the common law approach. Textbooks intended for students or as studies in jurisprudence have queried the common law rule. See Hart and Honoré, Causation in the Law, and Smith and Hogan.... Counsel for the appellant tried to overcome this line of reasoning by submitting that the jury should have been directed that if they thought the deceased’s decision not to have a blood transfusion was an unreasonable one, then the chain of causation would have been broken. At once the question arises—reasonable by whose standards? Those of Jehovah’s Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the Clapham omnibus? But he might well be an admirer of Eleazar who suffered death rather than eat the flesh of swine or of Sir Thomas Moore who, unlike nearly all his contemporaries, was unwilling to accept Henry VIII as Head of the Church in England. Those brought up with the Hebraic and Christian traditions would probably be reluctant to accept that these martyrs caused their own deaths. As was pointed out to counsel for the appellant in the course of the argument, two cases, each raising the same issue of reasonableness because of religious beliefs, could produce different verdicts depending on where the cases were tried. A jury drawn from Preston, sometimes said to be the most Catholic town in England, might have different views about martyrdom to one drawn from the inner suburbs of London. Counsel for the appellant accepted that this might be so; it was, he said, inherent in trial by jury. It is not inherent in the common law as expounded by Sir Matthew Hale and Maule J. It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the casual connection between the act and death. If a victim’s personal representatives claim compensation for his death the concept of foreseeability can operate in favour of the wrongdoer in the assessment of such compensation; the wrongdoer is entitled to expect his victim to mitigate his damage by accepting treatment of a normal kind: see Steele v. R. George & Co. Ltd. As counsel for the Crown pointed out, the criminal law is concerned with the maintenance of law and order and the protection of the public generally. A policy of the common law applicable to the settlement of tortious liability between subjects may not be, and in our judgment is not, appropriate for the criminal law. The issue of the cause of death in a trial for either murder or manslaughter is one of fact for the jury to decide. But if, as in this case there is no conflict of evidence and all the jury has to do is to apply the law to the admitted facts, the judge is entitled to tell the jury what the result of that application will be. In this case the judge would have been entitled to have told the jury that the defendant’s stab wound was an operative cause of death. The appeal fails. Appeal dismissed. The court refused to certify that the decision involved a question of law of general public importance.
R. v. Cribbin The judgment of the court was delivered by (2) The Constitutionality of the Smithers Test(a) Introduction I should like to adopt two short passages from a case note on R. v. Larkin (1942), 29 Cr. App. R. 18, by G.A. Martin, as he then was, which appeared in 21 Can. Bar. Rev. 503 at pp. 504-5 (1943):It seems to me that the adoption by the Supreme Court of this passage in a case comment is to be taken as stating only the legal definition of causation and, limited to that, is still valid. The fault element in the crime of manslaughter has now been authoritatively stated to require objective foreseeability of bodily harm which is neither trivial nor transitory, in the context of a dangerous act, such that the most trivial assault, not dangerous in itself and not likely to cause injury would not give rise to a conviction for manslaughter if it did somehow cause death: R. v. Creighton, supra. In my opinion, the test articulated in Smithers must now be understood in combination with the degree of fault expressed in the requirement of objective foreseeability of death. I will return to this point later when I consider the relation between causation and fault as a basis for the intervention of the criminal law. As I understand it, the constitutional argument advanced by the appellant is a two-pronged proposition. First, it is argued that the articulation of a legal causation rule involves a moral judgment as to blameworthiness, rather than a scientific inquiry, and that the principles of fundamental justice require that the rule triggering criminal responsibility, in this case the causation rule, be commensurate with the moral blameworthiness of the conduct that it prohibits. Under this argument, it is said to be unfair to punish for manslaughter one whose moral blameworthiness, reflected by both his conduct and his intention, never went beyond a simple assault. In short, the de minimis test is said to be too remote to satisfy the requirements of s. 7. Second, it is argued that the present law defining causation is void for vagueness. (b) Is the de minimis test too vague? In my opinion, the vagueness point can be summarily dismissed as the appellant has not demonstrated in what way a different causation test, such as the substantial connection test, the “but for”, or the “causa causans” test, to refer only to a few that are well known in the legal literature, would add any precision to the rule such as to give better guidance to citizens as to how to conduct their affairs in order to avoid criminal liability, and so as to properly curtail the discretionary powers of law enforcement officials. Even though analytical rules have evolved which are as rigorous as the methodologies commonly employed in many of the social sciences, whichever test is adopted, one has to recognize that causation in criminal law, as in other branches of the law, cannot be articulated with mathematical precision. The constitutional standard of precision which defeats the doctrine of vagueness was expressed by the Supreme Court as one which provides guidance to legal debate: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 74 C.C.C. (3d) 289. The criminal law of causation, both in Canada and throughout the Anglo-American system, has a long and reputable history of doctrinal debate, the aim of which is to bring that concept within the boundaries that delineate criminal responsibility. The de minimis test, under attack as unduly vague, is indistinguishable, on a vagueness standard alone, from the more stringent test of substantial cause which the appellant says should be substituted for it. (c) Is the de minimis test too remote? (i) The meaning of the de minimis test The remaining constitutional argument suggests that the de minimis test is too remote to engage criminal responsibility for homicide. In R. v. Harbottle, supra, the Supreme Court considered the causation requirements which had to be met before a person guilty of murder could be found guilty of first degree murder under s. 231(5) of the Criminal Code, which provides that murder is first degree in respect of a person when death is caused by that person in the commission of certain enumerated offences. In light of the language of the section, its legislative history and its purpose, Cory J. concluded that a narrower test of substantial cause should be applied. Cory J. specifically contrasted that test with the de minimis test applicable in the case of manslaughter, remarking that there were distinctions in the degree of causation required for the different homicide offences. The de minimis test was enunciated in Smithers, supra, in the context of a charge of manslaughter. However, it must be taken to apply to murder in the same way. The actus reus of murder is indistinguishable from that of manslaughter. What distinguishes the two forms of culpable homicide is the different degree of fault represented by the constitutional requirement of subjective foresight in the case of murder, in contrast to the objective foreseeability of serious bodily harm which suffices for a conviction for manslaughter. Causation is a legal concept that addresses an aspect of the prohibited conduct and, as such, has significance only in crimes where consequences must flow from acts or omissions. Specific causation rules are contained in various provisions of the Code dealing with homicide, such as s. 222(1) and (6), and ss. 223 to 228. The common law provides the guiding principles. Issues of causation rarely arise in murder cases, probably because the requirement that the Crown prove beyond a reasonable doubt the mental element related to the bringing about of the consequence,i.e., the death of the victim, overshadows any concern that the consequence may not have been caused by the accused. In other words, if the jury is satisfied that the accused, in assaulting the deceased, intended to kill or intended to cause bodily harm that he knew was likely to cause death and was reckless as to that consequence, it will be rare for the jury to have a doubt as to whether the accused actually caused the death that he intended. In such a rare case, of course, a proper verdict could be attempted murder, assuming that the acts of the accused were not too remote: see Hart and Honoré, Causation in the Law, 2nd ed. (Oxford: Clarendon Press, 1985), pp. 390-91. Causation, on the other hand, is central to the law of manslaughter. It is essentially the vehicle by which the same act or omission of the accused will be defined as an assault, or some other appropriate offence depending on the circumstances, or as a homicide. Before embarking upon an analysis of the constitutional argument as such, it is useful to examine more closely the meaning of the Smithers test. The appellant contends that the case of Smithers has set a causation requirement in manslaughter lower than its equivalent in England or Australia. For example, counsel points out that in R. v. Harbottle, supra, Cory J. adopted the definition of substantial cause from the Australian case of R. v. Hallett, [1969] S.A.S.R. 141 (S.C. In Banco), as the applicable causation test for first degree murder only, while Hallett was a murder case setting out the basic principle of causation applicable in homicide generally (see also R. v. Jackson (1989), 44 A. Crim. R. 320 (Qd. C.A.) at p. 327, where the court followed the English case of R. v. Pagett (1983), 76 Cr. App. R. 279 (C.A.)). In Pagett, the Court of Appeal noted that it is rarely necessary in homicide cases to give any direction to the jury on causation. Goff L.J., speaking for the court, added, at p. 288: Even where it is necessary to direct the jury’s minds to the question of causation, it is usually enough to direct them simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result.More recently, in R. v. Cheshire, [1991] 3 All E.R. 670 (C.A.), the court, per Beldam L.J., reiterated that test of “significant contribution” in the following terms, at p. 677: It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused’s acts can fairly be said to have made a significant contribution to the victim’s death. We think the word “significant” conveys the necessary substance of a contribution made to the death which is more than negligible.This is consistent with the articulation of the substantial cause test in R. v. Hennigan, [1971] 3 All E.R. 133, 55 Cr. App. R. 262 (C.A.), which does not appear to mean anything different than the Smithers test of “beyond de minimis”. In Hennigan, when dealing with the offence of dangerous driving causing death, Lord Chief Justice Parker said, at p. 135: The court would like to emphasise this, that there is of course nothing in s. 1 of the Road Traffic Act 1960 which requires the manner of the driving to be a substantial cause, or a major cause, or any other description of cause, of the accident. So long as the dangerous driving is a cause and something more than de minimis, the statute operates. What has happened in the past is that judges have found it convenient to direct the jury in the form that it must be, as in one case it was put, the substantial cause. That was the case in which Finnemore J. gave a direction to the jury, in R. v. Curphey. That, in the opinion of this court, clearly went too far, and Brabin J. in a later case of R. v. Gould, left it to the jury in the form of “a substantial cause”.I am not persuaded that, even when the terminology used is slightly different, the Canadian standard by which causation is established in homicide differs from the English or Australian standard such as to present an anomaly which might suggest that it is set too low. Harbottle is clear in holding that s. 231(5) of the Criminal Code imposes a higher degree of causation for first degree murder than is required merely to establish the homicide. Cory J. referred to a substantial and integral cause of death, requiring that the accused play a very active role—usually a physical role—in the killing. He used the expression “the actions of the accused must form an essential, substantial and integral part of the killing”. This test is not the same as the sometimes-called “substantial cause test” referred to in the English authorities dealing with causation in homicide, where the standard contemplated, in my view, is akin to the one in Smithers. Finally, I add that the Smithers test is not an exhaustive statement of all the criminal causation rules which have a bearing on liability for homicide. Other rules, some provided for in the Code, some at common law, complement the general test of attributable cause which is at issue in this appeal (see, for example, the legislative choice to curtail liability expressed in s. 227 which restricts the applicability of the law of homicide to cases where death occurred within a year and a day). (ii) The constitutionality of the de minimis test As I see it, the appellant’s argument raises two issues: Whether the criminal law of causation amounts to a principle of fundamental justice within the meaning of s. 7 of the Charter, and, if so, whether the de minimis standard applicable in homicides infringes upon that principle of fundamental justice. Causation as a constitutional standard has not been addressed directly by the Supreme Court of Canada. However, in R. v. Creighton, supra, the court held that the offence of unlawful act manslaughter requires objective foreseeability of bodily harm which is neither trivial nor transitory, arising from a dangerous act. The Crown relies on the following statement by McLachlin J., at pp. 40-41: In my view, the offence by unlawful act manslaughter, as defined by our courts and those in other jurisdictions for many centuries, is entirely consistent with the principles of fundamental justice. There is no need to read up its requirements; as it stands, it conforms to the Charter.Although the constitutionality of the de minimis test was not at issue in Creighton, supra, the entire focus of the analysis in that case was on the required element of fault with respect to death having ensued from the unlawful act of the accused. McLachlin J. expressed the view that, in light of the “thin skull” rule, the distinction between foreseeability of death and foreseeability of bodily harm in manslaughter largely disappears. In expanding on that idea, she referred to R. v. Smithers, supra, in the following terms (p. 52): In Smithers v. The Queen [[1978] 1 S.C.R. 506] at pp. 521-22, Dickson J., writing for a unanimous Court, confirmed this principle:The idea of taking responsibility for the consequences of one’s actions expresses a link between causation and fault. Cory J. noted in R. v. Harbottle, supra, at pp. 320-21, the tendency of the courts to elevate the causation requirement when the mens rea for a form of murder was statutorily reduced. He referred to R. v. Black, [1966] 1 O.R. 683, [1966] 3 C.C.C. 187 (C.A.); R. v. Gourgon (No. 1) (1979), 9 C.R. (3d) 313 (B.C.S.C.), affirmed (1979), 19 C.R. (3d) 272 (B.C.C.A.); R. v. Dollan (1980), 53 C.C.C. (2d) 146 (Ont. H.C.J.), affirmed (1982), 35 O.R. (2d) 283, 65 C.C.C. (2d) 240 (C.A.); and R. v. Woods (1980), 57 C.C.C. (2d) 220, 19 C.R. (3d) 136 (Ont. C.A.), as examples of courts requiring a high level of causation for first degree murder at a time when it was possible to convict for murder on the basis of objective foresight alone. The fact that a more stringent causation requirement was used in these first degree murder cases demonstrated, in Cory J.’s opinion, an understandable attempt by the courts to impose an appropriate limitation to the reach of the first degree murder section because of the possibility of convicting of murder persons who had no intention to kill. Cory J. then noted that many of the concerns previously expressed by the courts have disappeared in light of the Supreme Court constitutional jurisprudence imposing a subjective mens rea for murder. I refer to the link between causation and the fault element in crime, represented in homicide by foresight of death or bodily harm, whether subjective or objective, because it serves to confirm that the law of causation must be considered to be a principle of fundamental justice akin to the doctrine of mens rea. The principle of fundamental justice which is at stake in the jurisprudence dealing with the fault element in crime is the rule that the morally innocent should not be punished. This was the premise acceptable to all the judges in Creighton. McLachlin J. said, at pp. 60-61: I agree with the Chief Justice that the rule that the morally innocent not be punished in the context of the objective test requires that the law refrain from holding a person criminally responsible if he or she is not capable of appreciating the risk.In my opinion, causation is embodied in the same principle of fundamental justice and it requires that the law should refrain from holding a person criminally responsible for consequences that should not be attributed to him or her. This is so because criminal causation as a legal rule is based on concepts of moral responsibility, rather than on demonstrable mechanical or scientific formulas. This is expressed by Glanville Williams in the following terms: When one has settled the question of but-for causation, the further test to be applied to the but-for cause in order to qualify it for legal recognition is not a test of causation but a moral reaction. The question is whether the result can fairly be said to be imputable to the defendant . . . If the term “cause” must be used, it can best be distinguished in this meaning as the “imputable” or “responsible” or “blameable” cause, to indicate the value-judgment involved. The word “imputable” is here chosen as best representing the idea. Whereas the but-for cause can generally be demonstrated scientifically, no experiment can be devised to show that one of a number of concurring but-for causes is more substantial or important than another, or that one person who is involved in the causal chain is more blameworthy than another.This finds support in Hart and Honoré, supra, in the chapters dealing with causation and responsibility, and causation and the principles of punishment. Moral judgment is engaged when causation is used not merely as an explanation for the unfolding of events, but as a way of making people account for their contribution to a result. The morally innocent could be wrongly punished if criminal causation was reduced to a simple sine qua non requirement. This link between causation and the fault element, both being based on the same notion of moral responsibility, leads me to conclude that the appellant’s argument cannot succeed in light of Creighton. Not only must I consider that the approval of Smithers by McLachlin J., although obiter, disposes of the issue; more importantly, I think that the articulation of the fault element in unlawful act manslaughter in Creighton removes any danger that the de minimis causation test casts the net so broadly as to risk punishing the morally innocent. As the law of manslaughter stands, if a person commits an unlawful dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful act is at least a contributing cause of the victim’s death, outside the de minimis range, then the person is guilty of manslaughter. Both causation and the fault element must be proved beyond a reasonable doubt before the prosecution can succeed. Combined in that fashion, both requirements satisfy the principles of fundamental justice in that any risk that the de minimis test could engage the criminal responsibility of the morally innocent is removed by the additional requirement of objective foresight. Therefore, in my opinion, the appellant’s constitutional challenge fails on the basis of the Supreme Court decision in R. v. Creighton, supra, and the application of s. 1 of the Charter does not arise....
R. v. Nette A 95-year-old widow who lived alone was robbed and left bound with electrical wire on her bed with a garment around her head and neck. Sometime during the next 48 hours, she died from asphyxiation.... The accused was charged with first degree murder under s. 231(5) of the Criminal Code—murder while committing the offence of unlawful confinement—and tried before a judge and jury.... The trial judge charged the jury on manslaughter, second degree murder and first degree murder under s. 231(5) of the Code. In response to a request from the jury that he clarify the elements of first degree murder and the “substantial cause” test, the trial judge essentially reiterated his charge. Overall, he charged that the standard of causation for manslaughter and second degree murder was that the accused’s actions must have been “more than a trivial cause” of the victim’s death while, for first degree murder under s. 231(5), the accused’s actions also must have been a “substantial cause” of her death. On two occasions, however, once in the main charge and once in the re-charge, he described the standard of causation for second degree murder as “the slight or trivial cause necessary to find second degree murder” instead of “more than a trivial cause”. The jury found the accused guilty of second degree murder and the Court of Appeal upheld that verdict.... The reasons of McLachlin C.J. and L’Heureux-Dubé,
Gonthier and Bastarache were delivered by The second sub-question raised is whether there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death. In answer to this question it may shortly be said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. [Emphasis added.]To avoid resorting to the Latin expression, Lambert J.A., in the Court of Appeal’s ruling in this case ((1999), 141 C.C.C. (3d) 130), suggested an English version that I believe adequately reflects Smithers’ beyond de minimis standard (at para. 29): In the Smithers case the relevant causal standard is described in the words “a contributing cause beyond de minimis”. If one were to avoid the Latin, which a jury may find confusing, the Smithers standard is “a contributing cause that is not trivial or insignificant”. See Crimji 6.45, para.17. [Emphasis added.]In her reasons, my colleague also refers to the English translation of the Smithers test when she writes (at para. 54): “Since Smithers, the terminology of ‘beyond de minimis’ or ‘more than a trivial cause’ has been used interchangeably with “outside the de minimis range” to charge juries as to the relevant standard of causation for all homicide offences, be it manslaughter or murder.” The terms “not trivial” and “not insignificant” are accurate and do not alter the Smithers standard which, it is worth noting, has withstood the test of time. As one author points out, Smithers is “the generally authoritative test of causation for all criminal offences” (J. Presser, “All for a Good Cause: The Need for Overhaul of the Smithers Test of Causation” (1994), 28 C.R. (4th) 178, at p. 178). In that regard, my colleague also recognizes that the Smithers causation standard is valid and applicable to all forms of homicide (at paras. 85 and 88): As discussed above, I conclude that the test of causation is the same for all homicide offences and that it is not appropriate to apply a different standard of causation to the offences of manslaughter and murder. The applicable standard of causation has traditionally been articulated in this country on the basis of the language used in Smithers that the accused must be a cause of the death beyond de minimis. This standard has not been overruled in any subsequent decisions of this Court, including Harbottle.Having said so, my colleague suggests reformulating the Smithers beyond de minimis test, i.e., “a contributing cause [of death] that is not trivial or insignificant” in the language of a “significant contributing cause”. She asserts that (at para. 70): There is a semantic debate as to whether “not insignificant” expresses a degree of causation lower than “significant”. This illustrates the difficulty in attempting to articulate nuances in this particular legal standard that are essentially meaningless.Evidently, my colleague considers that this rephrasing is merely a matter of semantics and, in her view, it does not alter the current test. I respectfully disagree. In my opinion, this issue is a matter of substance, not semantics. There is a meaningful difference between expressing the standard as “a contributing cause that is not trivial or insignificant” and expressing it as a “significant contributing cause”. Changing the terminology of the Smithers test in this manner would drastically change its substance. On this point, I share Professor S. Yeo’s view in his article “Giving Substance to Legal Causation” (2000), 29 C.R. (5th) 215, at p. 219: I submit that there is a material difference between describing something as “not an insignificant cause” on the one hand, and as “a significant cause” on the other. To ignore this difference is to ignore the reason for the use of a double negative in the first place. While the former description focuses the inquiry at the lower end of the scale of degrees of causation, the latter does not invoke such a focus. Using another set of words to illustrate my argument, when Mary says that she does not dislike John, she means, at most, that she is impartial towards him rather than that she likes him.To claim that something not unimportant is important would be a sophism. Likewise, to consider things that are not dissimilar to be similar would amount to an erroneous interpretation. In the same vein, a substantial difference exists between the terms “not insignificant” and “significant”, and there is no doubt in my mind that to remove the double negative formulation from the Smithers causation test would effect a radical change to the law. I therefore agree with the position of both the respondent and the intervener that a “significant contributing cause” calls for a more direct causal relationship than the existing “not insignificant” or “not trivial” test, thus raising the standard from where it currently stands. As the respondent explains (see paras. 74 and 76 of the respondent’s factum): It is further submitted that the term “significant cause” can also imply too high a causation standard. Like the term substantial, “significant” implies an elevated contribution, as the definition of the term includes “conveying information about the value of quantity ... important, notable, consequential.” (The New Shorter Oxford Dictionary, supra at 2860); The Respondent respectfully disagrees with the analysis of Lambert J.A. in the Court of Appeal below ... that the term significant can be equated with the term “not insignificant.” The term insignificant is defined as that which is “of no importance; trivial; trifling; contemptible.” (The New Shorter Oxford Dictionary, supra at 1379). Something that is not trivial or not trifling is not necessarily something that is important.Professor Yeo, in “Blamable Causation” (2000), 24 Crim. L.J. 144, makes an interesting observation in that regard (at p. 148): The difference between this test [of a “significant contributing cause”] and the one of “beyond the de minimis range” is clearly seen when we place the discussion in the context of the tests for factual and blamable causation. First, the prosecution will have established factual causation if the triers of fact were satisfied that the proscribed result would not have occurred but for the defendant’s conduct. As noted earlier, this “but-for” test is made out if the defendant’s conduct was found to have been a more than trivial or negligible contribution of the result. Passing this initial test renders the defendant’s conduct a “contributing” cause to the result. The prosecution must then proceed to establish blamable causation by persuading the triers of fact that the defendant’s conduct was not just a contributing cause but that it “significantly” contributed to the result. [Emphasis added.]Accordingly, I find that recasting the Smithers “beyond de minimis” test in the language of a “significant contributing cause” is unwarranted because it raises the threshold of causation for culpable homicide without any reasons for doing so and none, of course, is given since my colleague indicates that the proposed reformulation does not modify the Smithers standard. Words have a meaning that should be given to them and different words often convey very different standards to the jury. In my view, describing a contributing cause as having a “significant” impact attaches a greater degree of influence or importance to it than do the words “not insignificant”. As a recent editorial of the Criminal Law Journal observes: “Semantics, popular usage of words and expressions, and common sense all have their respective critical roles to play in the determination of causation in the criminal law” (“Semantics and the threshold test for imputable causation” (2000), 24 Crim. L.J. 73, at pp. 74-75).... In conclusion, I reiterate that the causation test in Smithers remains the law and to rephrase in the language of a “significant contributing cause”, as my colleague suggests, would draw the line at a different place, thus drastically changing the law. I have found no legitimate reason to reformulate the Smithers test, rather it is my opinion that such alteration should be strenuously proscribed since it will elevate the threshold of causation. As a result, I consider the current language of “a contributing cause [of death] that is not trivial or insignificant” to be the correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences. I would dismiss the appeal. The judgment of Iacobucci, Major, Binnie, Arbour and
LeBel JJ. was delivered by I. IntroductionThe present appeal raises the issue of causation in second degree murder. It requires a determination of the threshold test of causation that must be met before an accused may be held legally responsible for causing a victim’s death in a charge of second degree murder. We must also examine how the applicable standard of causation should be conveyed to the jury. ... 2. Factual Background... VI. AnalysisA. IntroductionThere is no issue raised in this appeal with respect to
the charge on first degree murder or manslaughter. The
appellant’s only ground of appeal is the propriety of the
charge on second degree murder and, specifically, the
applicable standard of causation for second degree murder.
The appellant’s position is that there is one standard of
causation applicable to all forms of homicide and that the
standard should be conveyed to the jury by using the words
“substantial cause” that this Court said applied to the
offence of first degree murder under s. 231(5) of the Criminal
Code in Harbottle. The appellant says
that the trial judge erred in effectively instructing the
jury that the Smithers standard of “beyond de
minimis” applied to the offence of second degree
murder. Had the jurors been properly instructed on the
standard of causation applicable to second degree murder,
says the appellant, they might have acquitted the
appellant on the second degree murder charge. The
appellant therefore submits that the appeal should be
allowed and a new trial ordered on the ground that the
trial judge misdirected the jury on the standard of
causation applicable to second degree murder. B. The Standard of Causation for Homicide OffencesThe parties and intervener on this appeal characterize
the decision required of this Court in the present case as
a choice between the terminology of “beyond de
minimis” on the one hand and “substantial cause” on
the other in describing the standard of causation for
second degree murder to the jury. In my view, this
characterization does not properly reflect the decision
that is required in this case. It confuses the question of
what the standard of causation for second degree murder is
with the question of how the standard of causation for
second degree murder should be expressed in charging the
jury. In my view, these two separate questions are best
dealt with sequentially. When one has settled the question of but-for causation, the further test to be applied to the but-for cause in order to qualify it for legal recognition is not a test of causation but a moral reaction. The question is whether the result can fairly be said to be imputable to the defendant... . If the term “cause” must be used, it can best be distinguished in this meaning as the “imputable” or “responsible” or “blamable” cause, to indicate the value-judgment involved. The word “imputable” is here chosen as best representing the idea. Whereas the but-for cause can generally be demonstrated scientifically, no experiment can be devised to show that one of a number of concurring but-for causes is more substantial or important than another, or that one person who is involved in the causal chain is more blameworthy than another.In a given case, the jury does not engage in a two-part analysis of whether both factual and legal causation have been established. Rather, in the charge to the jury, the trial judge seeks to convey the requisite degree of factual and legal causation that must be found before the accused can be held criminally responsible for the victim’s death. While causation is a distinct issue from mens rea, the proper standard of causation expresses an element of fault that is in law sufficient, in addition to the requisite mental element, to base criminal responsibility. The starting point in the chain of causation which seeks to attribute the prohibited consequences to an act of the accused is usually an unlawful act in itself. When that unlawful act is combined with the requisite mental element for the offence charged, causation is generally not an issue. For example, in the case of murder, where an accused intends to kill a person and performs an act which causes or contributes to that person’s death, it is rare for an issue to arise as to whether the accused caused the victim’s death. As I discussed in Cribbin, supra, where the jury is faced with a charge of murder and is satisfied that the accused intended to kill or intended to cause bodily harm that he knew was likely to cause death and was reckless as to whether death occurred, it will rarely be necessary for the trial judge to charge the jury on the standard of causation. In such a case, the mens rea requirement generally resolves any concerns about causation. It would be rare in a murder case where the intention to kill or to cause bodily harm likely to cause death is proven for the accused to be able to raise a doubt that, while he intended the result that occurred, he did not cause the intended result. Where it is established that the accused had the subjective foresight of death or serious bodily harm likely to cause death required to sustain a murder conviction, as opposed to the lower manslaughter requirement of objective foreseeability of serious bodily harm, it would be unusual for an issue of causation to arise. Assuming a case arose where intention was established but causation was not proven, a proper verdict might be attempted murder: Cribbin, at p. 564. The law of causation is in large part judicially developed, but is also expressed, directly or indirectly, in provisions of the Criminal Code. For example, s. 225 of the Code provides that where a person causes bodily injury that is in itself dangerous and from which death results, that person causes the death notwithstanding that the immediate cause of death is proper or improper treatment. Similarly, ss. 222(5)(c) and 222(5)(d) provide that a person commits culpable homicide where he causes the death of a person by causing that person, by threats, fear of violence or by deception, to do anything that causes his death or by wilfully frightening a child or sick person. These statutory provisions and others like them in the Code preempt any speculation as to whether the act of the accused would be seen as too remote to have caused the result alleged, or whether the triggering of a chain of events was then interrupted by an intervening cause which serves to distance and exonerate the accused from any responsibility for the consequences. Where the factual situation does not fall within one of the statutory rules of causation in the Code, the common law general principles of criminal law apply to resolve any causation issues that may arise. In light of the statutory rules mentioned above, and in light of general principles of criminal responsibility, the civil law of causation is of limited assistance. The criminal law does not recognize contributory negligence, nor does it have any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing after sufficient causation has been found. In the same way it provides for the possibility of attributing responsibility through the law of attempt, which has no equivalent in the civil context. As a result, I do not find the appellant’s submissions relating to the civil standard of causation to be helpful in elucidating the applicable criminal standard. In determining whether an accused is guilty of first or second degree murder, the first step for the trier of fact is to determine whether murder has been committed, pursuant to ss. 229 or 230 of the Criminal Code: Farrant, supra, at p. 141. Once this has been established, the remaining question is whether the offence should be classified as first or second degree murder in accordance with the criteria set out in s. 231 of the Code, which is, in essence, a sentencing provision: Farrant, supra; R. v. Droste, [1984] 1 S.C.R. 208; R. v. Paré, [1987] 2 S.C.R. 618; R. v. Arkell, [1990] 2 S.C.R. 695; R. v. Luxton, [1990] 2 S.C.R. 711, and Harbottle, supra. Where, as here, the Crown relies on s. 231(5) of the Code, the jury must first find that the accused is guilty of murder before moving on to a consideration of whether the accused’s participation in the underlying offence and in the killing of the victim was so direct and substantial that a conviction for first degree murder is appropriate. C. Did Harbottle Raise the Standard of Causation?This Court has previously examined the issue of causation
in the homicide context in relation to manslaughter in Smithers,
supra, and in relation to first degree murder
under s. 231(5) of the Code in Harbottle,
supra. In considering causation in relation to
second degree murder in the present cause, it is helpful
to first discuss the facts and legal principles set out in
Smithers and Harbottle, before moving
on to a consideration of whether Harbottle
raised the standard of causation for first degree murder
under s. 231(5) of the Code only or for homicide
offences generally. [Arbour J. reviews Smithers
and continues:] D. Explaining the Standard of Causation to the JuryAs I discussed earlier, it is important to distinguish
between what the legal standard of causation is and how
that standard is conveyed to the jury. The difference
between these two concepts has been obscured somewhat in
the present case by the parties’ focus on the terminology
used to describe the standard of causation. I agree with
the appellant’s submission that there is only one standard
of causation for all homicide offences, whether
manslaughter or murder. However, I do not agree with the
appellant that the standard must be expressed for all
homicide offences, including second degree murder, as one
of “substantial cause” as stated in Harbottle.
Nor must the applicable standard be expressed with the
terminology of “beyond de minimis” used in the Smithers
standard. ... E. Is Causation an Issue on the Facts of the Present Appeal?As I mentioned earlier, causation issues rarely arise in
murder offences. Thus, in the usual case, it will be
unnecessary for the trial judge to explain the applicable
standard of causation to the jury in relation to either
second degree murder or first degree murder. Causation
issues arise more frequently in manslaughter cases, in
which the fault element resides in a combination of
causing death by an unlawful act, or by criminal
negligence, and mere objective foreseeability of death. As
the cases illustrate, causation issues tend to arise in
factual situations involving multiple parties (e.g. Harbottle),
thin skull victims (e.g. Smithers), intervening
events (e.g. Hallett) or some combination of
these factors. The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.Unlike Hallett, no intervening causes arose in the present case between the appellant’s action and the victim’s death. Nor does this case present an illustration of the operation of the thin-skull rule in the criminal context. The thin-skull rule, which is a long-standing principle of tort law, provides that a wrongdoer must take his victim as he finds him: Dulieu v. White, [1901] 2 K.B. 669; Athey v. Leonati, [1996] 3 S.C.R. 458. Thus, the fact that a victim’s head injuries are aggravated beyond what would normally be expected because of the victim’s unusually thin skull does not relieve a tortfeasor of liability for the full extent of the harm that resulted from his wrongdoing. That principle applies equally in the criminal context and is reflected, in part, in ss. 222(5)(d) and 226 of the Criminal Code. As expressed by McLachlin J., as she then was, in Creighton, supra, at p. 52: The thin-skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for all the consequences that ensue, even to death.The potential harshness of the application of the thin-skull rule in the criminal context is mitigated by the requirement that the accused have the requisite mens rea for the offence charged, which consists of “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”: Creighton, supra, at p. 45. The present appeal does not present the classic thin-skull scenario where the victim’s death occurred unexpectedly as a result of the victim’s unusual and unforeseeable susceptibility to injury. It is clear on the medical evidence that the victim’s physical conditions related to her advanced age may have hastened her demise. However, there was no evidence to indicate that Mrs. Loski’s death would have occurred without the actions of the appellant and his accomplice. Nor is there any evidence that she was a thin-skull victim whose physical characteristics were unusual for a woman of her age. By all accounts, she was healthy and active. A much younger victim, subjected to the same treatment, may also have failed to survive. An example of a true thin-skull situation is Smithers, the facts of which are discussed earlier. There is also no evidence of any intervening cause which resulted in Mrs. Loski’s death. The various potential causes of death that are advanced by the appellant in the present case would all be caught by the statutory or common law principles that preclude an interruption of the chain of causation such as to eliminate the criminal responsibility of the accused. In the appellant’s own submission, it is only in cases involving multiple causes that the jury need be charged on the applicable standard of causation. In my view, this is not such a case. The fact that the appellant’s actions might not have caused death in a different person, or that death might have taken longer to occur in the case of a younger victim, does not transform this case into one involving multiple causes. Clearly, where an accused person hog ties an elderly woman, places a ligature of clothing around her neck and abandons her, in the knowledge that she lives alone, without notifying anyone of her plight, it is not unexpected that death will result if no one rescues the victim in time. In my view, it was unnecessary in this case to instruct the jury on the law of causation for homicide, beyond stating the need to find that the accused caused the death of the victim. I agree with Braidwood J.A. and McEachern C.J.B.C. in the Court of Appeal that there was no plausibility to the appellant’s submission that telling the jury that the standard of causation was “substantial cause” instead of “more than a trivial cause” could possibly have made any difference to the verdict of second degree murder. There was no evidence that anything other than the actions of the appellant and his accomplice caused Mrs. Loski’s death. Mrs. Loski’s death resulted from being left alone hog-tied in her bedroom with a ligature around her neck. Nothing that occurred following the actions of the appellant and his accomplice in tying her up and leaving her alone can be said to have broken the chain of causation linking them with her death. However, in relation to the charge of first degree murder, it was necessary for the trial judge to instruct the jury in accordance with Harbottle under s. 231(5) of the Code, given the requirement that the Crown establish that the physical actions of the accused form an essential, substantial and integral part of the killing of the victim. As I stated in Cribbin, causation is a legal rule based on concepts of moral responsibility and is not a mechanical or mathematical exercise. On the facts of the present appeal, the jury properly found that the appellant caused Mrs. Loski’s death and must bear legal responsibility for having done so. The central issue at trial was whether there was sufficient evidence of the necessary intent to put the charge of murder to the jury. The defence made an application at trial to withdraw murder from the jury. The question before Wilkinson J. on this application was whether there was some evidence on which the jury could conclude that the appellant meant to cause bodily harm to Mrs. Loski that he knew was likely to cause death within the meaning of s. 229(a)(ii) of the Criminal Code. Wilkinson J. denied the defence application to withdraw the charge of murder from the jury. In my view, the real issue of concern in this case with respect to the charge of murder was not whether or not the appellant caused the victim’s death, but whether or not he knew that his actions were likely to cause her death. Did he know that the actions taken by him and by his accomplice were likely to cause Mrs. Loski’s death? Did he know that someone of Mrs. Loski’s age would likely die from the effects of being hog-tied? Did he anticipate that the gag might slip? Did he foresee that no one might come by her house and rescue her before she died? F. The Charge to the Jury and the VerdictAs discussed above, I conclude that the test of causation
is the same for all homicide offences and that it is not
appropriate to apply a different standard of causation to
the offences of manslaughter and murder. The applicable
standard of causation has traditionally been articulated
in this country on the basis of the language used in Smithers
that the accused must be a cause of the death beyond de
minimis. This standard has not been overruled in
any subsequent decisions of this Court, including Harbottle.
VII. Conclusion and DispositionFor these reasons, I conclude that the trial judge correctly charged the jury on the applicable standard of causation for second degree murder in expressing the standard as one in which the accused must have been more than an insignificant or trivial cause of the victim’s death. There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra. The terminology of substantial cause in Harbottle is used to indicate the increased degree of participation in the killing that is required to raise the accused’s culpability to first degree murder under s. 231(5) of the Code. Harbottle did not raise the standard of causation that applies to all homicide offences from the standard expressed in Smithers....
R. v. Sinclair The judgment of the Court was delivered by .... The law of intervening cause is not highly developed in Canada. However, both the Supreme Court of Canada and this Court have said that the effect of the accused's acts must have subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event: R. v. Hallett, [1969] S.A.S.R. 141 (Australia S.C.); R. v. Harbottle, [1993] 3 S.C.R. 306 (S.C.C.), at 324; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 (S.C.C.) at para. 78; R. v. Reid, 2003 NSCA 104, [2003] N.S.J. No. 360 (N.S. C.A.) at paras. 72-73. 47 While foreseeability of
risk is sometimes used in the analysis for the concept of
intervening act, we prefer the descriptors extraordinary
or unusual. This avoids confusion with the question of
foreseeability that arises in the context of the mens rea
analysis. As already noted, both Arbour J. in Nette,
and Cromwell J.A. in Tower, referred to Hallett,
in which the South Australia Supreme Court indicated that
"extraordinary" as opposed to the "ordinary" operation of
natural forces can constitute an intervening event....
People v. Kibbe Gabrielli, Judge. * * * LRCC § 2(6) * * * MPC § 2.03 * * * Chapter 10. Inchoate CrimesA. Attempt1. Concepts and Types of Attempt LRCC § 4(3) * * * StGB §§ 22-23 * * * MPC §§ 5.01, 5.05(1) 2. Mens Rea
R. v. Lajoie The judgment of the Court (FAUTEUX C.J.C., ABBOTT, HALL,
JUDSON, LASKIN, MARTLAND, PIGEON, RITCHIE, and SPENCE JJ.)
was delivered by “Alexander Von Heyking was a student at the University of British Columbia. He had a part time job as a taxi-driver in the City of Vancouver. On the night of April 28, 1970 he was flagged down by Lajoie and a female companion and directed to drive to a West End address. On arrival, Lajoie locked the driver’s door and before Von Heyking had turned around. Lajoie fired a shot which missed Von Heyking. When the driver turned he saw Lajoie holding a small black hand gun and while he was shaking it Lajoie said, “Give me your money.” Lajoie and the female alighted from the car. The driver radioed for help and then got out and ran. Lajoie ran after him. When Lajoie was some 30 feet behind him, Von Heyking felt his arm suddenly go numb. Lajoie turned and ran and the driver hailed a passing car which took him to the hospital. There was blood on the back of the driver’s shirt some six inches below the shoulder and he correctly concluded that Lajoie had shot him. The following morning a surgeon extracted the bullet. It had passed about an inch below the level of the artery, about an inch from one of the lungs and about three inches from the heart. It is apparent that the victim luckily escaped death. Lajoie was, inter alia, charged with attempted murder.The question of law, which is in issue in this appeal, as a result of the dissent of Taggart J.A., in the Court of Appeal, is as to whether the learned trial Judge should have directed the jury that the intent, which must be established to support a charge of attempted murder, is proven if the jury is satisfied, beyond a reasonable doubt, that the appellant meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. Branca J.A., and Nemetz J.A., were of the opinion that the learned trial Judge erred in failing to direct the jury in this way. Taggart J.A., took the opposite view. The charge of attempted murder is defined by s. 210 {now repealed, replaced by s. 222} of the Criminal Code, 1953-54 (Can.), c. 51 [now R.S.C. 1970, c. C-34] {now R.S.C., 1985, c. C-46}, which reads as follows: 210. Every one who attempts by any means to commit murder is guilty of an indictable offence and is liable to imprisonment for life.An attempt is defined in and by s. 24 of the Criminal Code as follows: 24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. Section 201 (now s. 212) of the Criminal Code defines culpable homicide amounting to murder as follows:There is judicial authority to support the submissions of both the appellant and the respondent in respect of the issue now in question. The appellant relies upon the judgment of the Appellate Division of the Supreme Court of Alberta in R. v. Flannery (1923), 40 C.C.C. 263, [1923] 3 D.L.R. 689, [1923] 3 W.W.R. 97; the judgment of the Court of Criminal Appeal in R. v. Whybrow (1951), 35 Cr. App. R. 141; and the judgments of the Quebec Court of Queen’s Bench in R. v. Menard (1960), 130 C.C.C. 242, 33 C.R. 224, [1960] Que. Q.B. 398n, and Tousignant v. The Queen (1960), 130 C.C.C. 285, 33 C.R. 234, [1960] Que. Q.B. 767n. The respondent relies upon the later judgment of the Quebec Court of Queen’s Bench in R. v. Walker, [1964] 2 C.C.C. 217, 42 C.R. 311, [1963] Que. Q.B. 578, and the judgment of the Court of Appeal for Ontario in R. v. Ritchie, [1970] 5 C.C.C. 336, [1970] 3 O.R. 417. These authorities were reviewed in the judgments in the Court of Appeal. The difference of view can be illustrated in the following passage from the reasons of Nemetz J.A. [pp. 413-4]: In charging the jury as he did, the Judge was following a line of authority enunciated in R. v. Flannery, 40 C.C.C. 263. [1923] 3 D.L.R. 689, [1923] 3 W.W.R. 97; R. v. Menard, 130 C.C.C. 242, 33 C.R. 224, [19601 Que. Q.B. 398n; Tousignant v. The Queen, 130 C.C.C. 285, 33 C.R. 234. [1960] Que. Q.B. 767n. and R. v. Whybrow (1951), 35 Cr. App. R. 141 at pp. 146-7. In the Whybrow case, Goddard, L.C.J., said in part:(I note that this quotation from Kenny is substantially repeated in the 19th ed., p. 211.) In England (vide R. v. Whybrow, supra; R. v. Grimwood, [1962]2 Q.B. 621, and R. v. Loughlin, [1959] Crim. L.R. 518) and in the United States (vide Thacker v. Commonwealth (1922),114 SE 504) the curious result is that a greater blameworthy state of mind must be proven on a charge of attempting to commit murder than of actually committing murder. In essence, these cases hold that on a charge of attempted murder nothing less than an intention to kill must be proven to establish the guilt of the accused. I cannot agree that this is the law in Canada. I am in agreement with the reasons of the majority in the Court of Appeal. We are concerned in this case with the application of certain specific provisions of the Criminal Code. Section 201 (a) provides that culpable homicide is murder where the person who causes the death of a human being means either: (1) to cause his death, or (2)to cause him bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. Section 210 of the Criminal Code provides that every one who attempts by any means to commit murder is guilty of an indictable offence and is liable to imprisonment for life. Murder may be committed if the accused means to cause death, but it may also be committed if he means to cause bodily harm knowing that it is likely to cause death and is reckless whether death ensues or not. If it can be established that the accused tried to cause bodily harm to another of a kind which he knew was likely to cause death, and that he was reckless as to whether or not death would ensue, then, under the wording of s. 210, if death did not ensue an attempt to commit murder has been proved. Section 210, which took effect when the new Criminal Code was proclaimed in 1954, is worded differently from its predecessor, s. 264 of the old [1927] Criminal Code. That section provided that: 264. Every one is guilty of an indictable offence and liable to imprisonment for life who, with intent to commit murder, . . .There then followed eight paragraphs defining various acts; e.g., the administration of poison, wounding and shooting. The last paragraph, para. (h), read: “by any other means attempts to commit murder,” which wording is similar to the wording of the later s. 210. It should be noted, however, that para. (h) was only operative subject to the preliminary governing words “with intent to commit murder.” When s. 210 was enacted those words were eliminated. It was those words which were considered in the Flannery case, when they were construed, in their context, as meaning an actual intent to kill. It was this kind of intent which was in the mind of Goddard, L.C.J., in the Whybrow case when he referred to intent becoming the principal ingredient of the crime of attempted murder. The word “intent” does not appear in s. 210. It appears in the definition of an attempt in s. 24, but the reference there is to “having an intent to commit an offence.” For the reasons already given, it is my view that, in the light of the wording of s. 210, there may be an intent to do that which constitutes the commission of the offence of murder without that intent being to kill the victim. This Court dealt with a situation somewhat analogous to the present one in R. v. Trinneer, [1970] 3 C.C.C. 289, 10 D.L.R. (3d) 568, [1970] S.C.R. 638. That case was concerned with the conviction of the accused on a charge of non-capital murder. This charge was based on the application to the accused of s. 21 (2) of the Criminal Code, which provides: (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 accused and a companion, Frank, who was armed with a hunting knife, to the knowledge of the accused, forcibly drove a woman to a lonely point some distance out of Vancouver, with the intention of robbing her. Frank took her some distance from the car, in which the accused remained. Frank inflicted multiple stab wounds on the woman, which resulted in her death. The issue of law was as to whether, on these facts, the accused knew or ought to have known that the commission of the offence of murder would be a probable consequence of the carrying out of the common purpose of robbery. The Court of Appeal had held that this could only be established if the accused knew or should have known that the death of the deceased would be a probable consequence of carrying out the robbery. In allowing the appeal and restoring the conviction this Court held that the “commission of the offence,” referred to in s. 21(2), as applied to the offence of murder, contemplated and included commission of that offence in the manner defined in s. 202(a) and/or (d)(now s. 213), which provided: 202. {now s. 230} Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit . . . robbery . . . whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, ifAs the offence of non-capital murder was complete when Frank intentionally caused bodily harm to the victim resulting in her death, while committing robbery, whether or not he meant to cause her death or knew that death was likely to be caused, it was not necessary, in applying s. 21 (2) to the accused, to show that he knew or ought to have known that death was a probable consequence of carrying out the robbery. In relation to the present case the important point is that, in applying s. 21 (2) to the offence of murder, this Court held, in the Trinneer case, that “the commission of the offence” meant commission in any of the ways contemplated by the Criminal Code and not merely its commission in the form of an intentional killing. Similarly, in my opinion, when s. 24(1) refers to “an intent to commit an offence,” in relation to murder it means an intention to commit that offence in any of the ways provided for in the Criminal Code, whether under s. 201{now s. 229} or under s. 202 {now s. 230}. I would dismiss the appeal. Appeal dismissed.
R. v. Ancio McINTYRE J.:—This appeal involves
consideration of the mental element required for proof of
the crime of attempted murder, the subject of this Courts
earlier judgment in Lajoie v. The Queen (1973),
10 C.C.C. (2d) 313, 33 D.L.R. (3d) 618, [1974] S.C.R. 399. I just went over to see my wife. I had phoned her earlier. I broke the window and went in. Then I heard what sounded like a gun go off. You are lucky you got there when you did. I had him by the throat and I would have killed him.According to the respondent’s account of events, the gun was discharged accidentally, although under tests conducted by the police the weapon was not found to be prone to accidental discharge. The respondent was charged with a number of offences arising out of this affair but only one, that of attempted murder, is involved in this appeal. It was contained in the first count of the information and was in these terms: . . . did attempt to murder Michael Kurely by discharging a sawed off shotgun at him contrary to s. 222 {now s. 239} of the Criminal Code of Canada.He elected trial by judge alone and was convicted. The conviction was quashed in the Court of Appeal and a new trial directed [63 C.C.C. (2d) 309, 34 O.R. (2d) 437]. This appeal is taken by leave of this Court. ... The Crown contended in this Court that the Court of Appeal was in error in holding that the mens rea in attempted murder was limited to an intention to cause death (s. 212(a)(i) {now s. 229(a)(i)}), or an intention to cause bodily harm knowing it to be likely to cause death and being reckless whether death ensues (s. 212(a)(ii)). The Crown’s position was stated in its factum in these words: ...the intention for attempted murder is not restricted to an actual intention to kill or an intention to cause grievous bodily harm that one knows is likely to cause death and is reckless whether death ensues or not, but extends to an intention to do that which constitutes the commission of the offence of murder as defined in ss. 212 and 213 {now s. 229 and 230} of the Criminal Code. It is the Crown’s position that s. 24 and s. 213(d) in combination form the basis for a conviction of attempted murder. (Emphasis added.)The respondent supported the judgment of the Court of Appeal which followed the judgment of this Court in Lajoie v. The Queen (1973), 10 C.C.C. (2d) 313, 33 D.L.R. (3d) 618, [1974] S.C.R. 399. In that case it was held that a conviction for attempted murder could be sustained where the Crown had shown on the part of the accused either an intent to kill the potential victim or an intent to cause bodily harm which he knows is likely to cause death and is reckless whether death ensues or not. Although reference was made in Lajoie to the possibility of committing attempted murder as defined in s. 213 (see concluding sentence on p. 319 C.C.C., p. 624 D.L.R., p. 408 S.C.R.), the respondent and the Court of Appeal in the case at bar adopted the view that this was merely obiter and MacKinnon A.C.J.O. disposed of the matter in these words [at p. 318]: To interpret the quoted statement broadly is not necessary to the decision in R. v. Lajoie, supra. I do not read the judgment of the Court to require us to give it the consequences I have recited. The essential issue determined by R. v. Lajoie was that there can be a finding of an attempt to murder when it is proven beyond a reasonable doubt that the accused meant to cause the victim bodily harm which he knew was likely to cause death and was reckless whether death ensued or not.The respondent submitted that the Crown’s position, that s. 213(d) coupled with s. 24(1) described a further intent sufficient to warrant a conviction for attempted murder, should not be accepted because there was no authority to extend the concept of a constructive intent further than Lajoie had taken it. While contending on the facts of this case that he was not obliged to go further, he argued that in reason and logic a specific intent to kill should be the only intent sufficient to ground a conviction for attempted murder. It was said that the effect of the Crown’s argument in extending the concept of an attempt to s. 213(d) of the Criminal Code would be to justify a conviction for attempted murder in the absence of any mental element with respect to the causing of death which would be to ignore the words of s. 24(1) specifically requiring an intent to commit the offence in question. Lying at the heart of the controversy which arises in this case is the judgment of this Court in Lajoie, supra.... A great deal of the confusion surrounding the nature of the intent required to found a conviction for attempted murder may well stem from an assumption that murder and attempted murder are related offences which must share the same mental elements. A brief review of the historical development of the law relating to the two offences demonstrates that the crime of attempt developed as a separate and distinct offence from the offence of murder. In very early times murder was simply the killing of a human being. The law was concerned with the injury done to the family of the deceased and the compensation which should follow. The consequence of the killing was the important feature and the intent or mens rea was of little if any significance. Special mental elements were recognized in statutes as early as the 13th century, and by the 14th century the concept of malice aforethought had developed (see 13 Richard II Stat. 2, c. 1). Thus two elements came to be recognized in murder: the killing, and the malice aforethought, which in modern times has come to mean the necessary intent or intents. As the common law developed, the mental element required for the commission of murder expanded to include both constructive intent and knowledge of the likelihood of death as a result of a person’s acts., with recklessness as to whether death ensued or not. ... The offence of attempts developed much later than the offence of murder. In early times an attempt to commit an offence was not itself a crime. It was considered that in the absence of a guilty act intention alone was not punishable. The modern offence of attempting the commission of a crime is said to have its origin in the Court of Star Chamber. An early venture into this field is found in The Case of Duels (1615), 2 St. Tr. 1033, which involved proceedings against one William Priest for sending a written challenge to duel and one Richard Wright for carrying it and a stick that was to be the measure of the length of the weapons to be employed. It was asserted by Sir Francis Bacon, then Attorney-General, at p. 1041, that: For the Capacity of this Court, I take this to be a ground infallible: that wheresoever an offence is capital, or matter of felony, though it be not acted, there the combination or practice tending to that offence is punishable in this court as a high misdemeanor. So practice to impoison, though it took no effect; waylaying to murder, though it took no effect; and the like; have been adjudged heinous misdemeanors punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon’s Case.The court in its decree gave effect to the Attorney-General’s submission saying, in part, at p. 1046: And the court with one consent did declare their opinion: That by the ancient law of the land, all inceptions, preparations, and combinations to execute unlawful acts, though they never be performed, as they be not to be punished capitally, except it be in case of treason, and some other particular cases of statute law, so yet they are punishable as misdemeanors and contempts: and that this court was proper for offences of such nature.The practice of the Court of Star Chamber in this respect became firmly established in that court (see Hall, General Principles of Criminal Law, 2nd ed. (1960), p. 565, et seq.) and was in time adopted in the Court of King’s Bench. It has been said that the origin of the doctrine of criminal attempt as it is known in the common law was Lord Mansfield’s judgment in R. v. Scofield (1784), Cald. Mag. Rep. 397. Scofield was charged in an indictment with “wickedly, unlawfully and maliciously intending devising and contriving to feloniously set fire to, burn and consume a certain house”. ... In Canada the common law offence of attempt was codified in the 1892 Criminal Code as s. 64... It is clear from the foregoing that in common law and under the criminal law of Canada criminal attempt is itself an offence separate and distinct from the crime alleged to be attempted. As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea. In R. v. Caine, supra, Laidlaw J.A., speaking for the Ontario Court of Appeal, said, at p. 27 C.C.C., p. 488 D.L.R.: Criminal intention alone is insufficient to establish a criminal attempt. There must be mens rea and also an actus reus. But it is to be observed that whereas in most crimes it is the actus reus which the law endeavours to prevent, and the mens rea is only a necessary element of the offence, in a criminal attempt the mens rea is of primary importance and the actus reus is the necessary element.and in Russell on Crime, 12th ed., p. 175, it is said: Since the mischief contained in an attempt depends upon the nature of the crime intended, the criminality lies much more in the intention than in the acts done.This proposition was accepted by Lord Goddard in Whybrow, supra, at p. 147, where he stated “that the intent becomes the principal ingredient of the crime.” The common law recognition of the fundamental importance of intent in the crime of attempt is carried forward into the Criminal Code. A reading of s. 24 of the Code and all its predecessors since the enactment of the first Code in 1892 confirms that the intent to commit the desired offence is a basic element of the offence of attempt. Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent. As noted by Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961), § 207, p. 642, in discussing attempts: An actus reus ... need not be a crime apart from the state of mind. It need not even be a tort, or a moral wrong, or a social mischief.The question now arises: What is the intent required for an attempt to commit murder? As has been indicated earlier, the Crown’s position is that the intent required for a conviction on a charge of attempt to murder is the intent to do that which will, if death is caused, constitute the commission of murder as defined in ss. 212 and 213 of the Code, sothat a combination of ss. 24 and 213(d) can form the basis for a conviction of attempted murder. The respondent, on the other hand, argues that although the authorities presently limit the intent to that which would constitute murder as defined in s. 212 of the Code, logic and principle dictate that the intent should be limited to the specific intent to kill described in s. 212(a)(i). While it is clear from ss. 212 and 213 of the Criminal Code that an unintentional killing can be murder, it is equally clear that whatever mental elements may be involved and whatever means may be employed there cannot be a murder without a killing. Section 24 of the Code defines, in part, the offence of attempt as having an intent to commit an offence. As Estey J. observed in R. v. Quinton (1947), 88 C.C.C. 231 at pp. 236-7, [1948] D.L.R. 625 at p. 630, [1947] S.C.R. 234 at pp. 235-6, in referring to the then s. 72 (now s. 24): This section requires that one to be guilty of an attempt must intend to commit the completed offence and to have done some act toward the accomplishment of that objective.The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill. As I have said earlier, there is a division of opinion upon this point and strong arguments have been raised in favour of the Crown’s position that a “lesser intent”, such as that provided in s. 212(a)(ii) or even no intent at all relating to the causing of death as provided in s. 213(d), may suffice to found a conviction for attempted murder. This view is supported in Lajoie. In my view, with the utmost respect for those who differ, the sections of the Criminal Code relied on in that case do not support that position. As noted above, Martland J.’s analysis of the intent required to found a conviction for attempted murder is based primarily on the change in wording of s. 222. In my opinion, emphasis on the amendment of this section is unwarranted for two reasons. First, s. 222 does not define or create the offence of attempted murder. The scheme of the Criminal Code in relation to attempts has been the same from its inception. One section defines the offence of attempts generally (s. 72, now s. 24). Another sets out the penalties for attempts (s. 57, now s. 421), and a third creates a separate penalty for attempted murder (s. 264, s. 210 in Lajoie, now s. 222). Rather than defining or creating an offence, s. 222 merely fixes a penalty for a specific attempt. Despite the categorization of the various means of committing murder set out in the old s. 264, there is no essential difference between the old and the new sections in this respect. Secondly, the elimination of the words “with intent to commit murder” from s. 264 is not significant. Section 24 defines an attempt as “having an intent to commit an offence”. Because s. 24 is a general section it is necessary to “read in” the offence in question. The offence of attempted murder then is defined as “having an intent to commit murder”. This does not differ from the old s. 264 reference to “with intent to commit murder”, which Martland J. acknowledged was interpreted, in R. v. Flannery, to require the specific intent to kill. Martland J. placed further emphasis on s. 222 of the Criminal Code by relying on the words “attempts by any means” to support his conclusion that murder may be attempted in any of the “ways” set out in ss. 212 and 213. In my view, the reference to “any means” in s. 222 refers to ways in which a murder could be accomplished, such as by poisoning, shooting, or stabbing. The earlier version of s. 222 (s. 232 in 1892, s. 264 in 1906) listed the various methods by which a killing could be effected, but the illustrations were replaced in the 1953-54 revision with a general reference to murder “by any means”. In any event, ss. 212 and 213 have nothing to do with the means of killing. They are concerned solely with describing the mental elements which will suffice to make a completed killing murder. The fact that certain mental elements, other than an intent to kill, may lead to a conviction for murder where there has been a killing does not mean that anything less than an intent to kill will suffice for an attempted murder. It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon a higher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit in this argument. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not a conviction for an attempt at murder. For these reasons, it is my view that Lajoie should no longer be followed. I would accordingly dismiss the Crown’s appeal and confirm the Court of Appeal’s order for a new trial. [Dickson, Beetz, Estey, Chouinard, Lamer, and Wilson JJ. concurred with McIntyre J. Ritchie J., dissenting, would have followed Lajoie.] Appeal dismissed.
3. “Actus Reus”: Incomplete Attempts
R. v. Cline The judgment of the Court was delivered by “It may perhaps be permissible to emphasize this by saying that in most crimes the mens rea is ancillary to the actus reus, but in the attempt the actus reus is ancillary to the mens rea.Likewise, the learned author of Russell on Crime, 10th ed., vol. 2, p. 1784, says: “Since the mischief contained in an attempt depends upon the nature of the crime intended, the criminality lies much more in the intention than in the acts done. Hence, the courts sought for proof only of a sufficient physical element to satisfy the maxim that mens rea alone is not a crime.” While it is not difficult to define the mens rea of an attempt, a precise and satisfactory definition of the actus reus is perhaps impossible. Jervis C.J. said in R. v. Roberts (1855), Dears. 539 at p. 550, 169 E.R. 836, referred to in Russell, op. cit., p. 1787, note 22: “‘It is difficult, and perhaps impossible, to lay down a clear and definite rule to define what is, and what is not, such an act done, in furtherance of a criminal intent, as will constitute an offence.” Kenny’s Outlines of Criminal Law, 14th ed., p. 82, says: “No abstract test can be given for determining whether an act is sufficiently proximate to be an ‘attempt’.” It may, however, be said with authority that: “An actus reus...need not be a crime apart from the state of mind. It need not even be a tort, or a moral wrong, or a social mischief.” Glanville Williams, op. cit., s. 150, p. 494. The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate. After considering the nature of a criminal attempt and the principles as they were developed and established in the common law, together with the cases to which I have referred, and others, I state these propositions in my own words to guide me in the instant case: (1) There must be mens rea and also an actus reus to constitute a criminal attempt, but the criminality of misconduct lies mainly in the intention of the accused. (2) Evidence of similar acts done by the accused before the offence with which he is charged, and also afterwards if such acts are not too remote in time, is admissible to establish a pattern of conduct from which the Court may properly find mens rea. (3) Such evidence may be advanced in the case for the prosecution without waiting for the defence to raise a specific issue. (4) It is not essential that the actus reus be a crime or a tort or even a moral wrong or social mischief. (5) The actus reus must be more than mere preparation to commit a crime. But (6) when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt to commit that crime. I apply those propositions to the evidence in the instant case. The appellant intended to commit the crime of indecent assault. He made a plan in detail to carry out his intention. The plan comprised a series of acts which form a clear-cut pattern of conduct, and the accused followed that pattern of conduct on all occasions. On the occasion in question, and in precise accordance with that pattern of conduct, he chose a time and place where he might procure a victim necessary for the consummation of the crime. He went to that place at the chosen time. Before or after doing so he put on large sun-glasses to disguise his identity. He then waited for the opportunity to pursue his planned conduct to the end. His preparation to commit the intended crime was fully complete. He was ready to embark on the course of committing the intended crime. It was necessary only to lure a victim to a secluded place. He approached Peter C. and, with deliberately planned falsehood and deceit, endeavoured to persuade that young boy to accompany him. If the boy had been successfully lured to a destination chosen by the appellant, can there by any reasonable doubt that the crime of indecent assault would have been committed by the accused? If the conduct of the accused did not amount to an attempt to commit that crime, then I know not what it was. The acts of the appellant from the first moment he approached Peter C. were not preparation. They were not too remote to constitute an attempt to commit, the offence of indecent assault, and I so decide as a matter of law pursuant to s. 24(2) of The Criminal Code. My opinion is the result of the application of the relevant principles of law to the particular facts in this case. Therefore, I do not derive much help from decisions in other cases involving different facts. However, I mention the following cases: [A number of cases were noted, including Barker.] R. v. Barker, [1924] N.Z.L.R. 865. The act of the accused in walking with a boy, and with the intention of committing an indecent assault upon him, was held a sufficient act to constitute an attempt to commit that offence. ... My conclusion is that the conviction for the offence of indecent assault and the sentence imposed by the learned magistrate for that offence should be set aside. In place thereof this Court should find the appellant guilty of an attempt to commit the offence of indecent assault with which he was charged, and this Court should sentence the appellant to a term of imprisonment of five years. I would not interfere with the sentence of preventive detention imposed on the appellant by the learned magistrate. Conviction for assault set aside
R. v. Sorrell & Bondett BY THE COURT:—The Attorney-General of
Ontario appeals against the acquittal of the respondents
on a charge of attempted robbery. 24.(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.In order to establish the commission of the offence of attempted robbery charged, it was necessary for the Crown to prove that the respondents: 1. Intended to do that which would in law amount to the robbery specified in the indictment (mens rea), and By virtue of s. 24(2) of the Code, the
existence of element (i) is a question of fact, but
whether the steps taken are sufficient to satisfy element
(ii)is a question of law. (1) There must be mens rea and also an actus reus to constitute a criminal attempt, but the criminality of misconduct lies mainly in the intention of the accused....Thus, proof of the respondents’ intention to commit the robbery particularized in the indictment, which is a question of fact, was the central issue in the case. Mr. Doherty for the Crown contended before us that on the facts found by the trial Judge, he erred in law in failing to draw the legal conclusion of guilt required by the facts accepted by him as proved, and, in particular, erred in law in holding that the acts of the respondents, found by him to have been proved, had not gone beyond mere preparation. Counsel for the respondents, on the other hand, contended that the trial Judge’s reasons for judgment, considered in their entirety, show that he acquitted the respondents because he entertained a reasonable doubt whether they had the intent to rob the Aunt Lucy’s store, the existence of which intent was essential to constitute the attempt charged. A detailed examination of the trial Judge’s reasons for judgment is necessary in order to endeavour to ascertain the basis upon which he acquitted the respondents. The trial Judge said: Turning to count 1, that is the count that effects [sic.] both Sorrel [sic.] and Bondett, namely, this attempted robbery count. There are many conclusions that I have drawn from the credible evidence, beyond a reasonable doubt, and I say that those conclusions complete substantially the Crown’s case subject only—and I say only—to the thorny question as to whether or not the events in question constitute an attempt within the meaning of the Criminal Code.After referring to certain discrepancies in the evidence of the Crown witnesses, which he did not consider material, the trial Judge continued: The Crown’s case on count 1 has been proved beyond a reaonable [sic.] doubt in my finding on the matters of identity of the accused, the date, the place and, subject only to what I am going to be saying on the matter of attempt, as to the allegation that the attempted robbery, if there was an attempted robbery, was committed in respect of Peter Mason of Aunt Lucy’s Kentucky Fried Chicken.He then held that Mr. Mason, as the manager of the store, had the custody of the money in the store, and said: It brings me down then to the sole remaining question, did what took place at the time and at the place, as referred to by the witnesses Arbuckle and Mason, constitute an attempt at robbery? I may say that I found the evidence of both of those witnesses to be satisfactory, credible, and my findings are based on that evidence. I as well look to the evidence at the trial as to the manner of departure from the premises—from in front of the premises—by the two accused and the actions that they were performing when seen and practically immediately apprehended by the police. I am finding that between them they rid themselves of the balaclavas which could raise the inference of guilty mind; but that, of course, raises the question: a mind having a sense of guilt of what? They may have thought that what they did at the front of the store was criminal in some way and that they should take some steps to cover up—whether they were right in that belief or not. Was what they had actually done illegal as being an attempt to rob, whether they believed it or not, that still leaves to me the question: was what they did within the ambit of an attempt to rob? The inference is pretty plain, and I think I would be naive to conclude otherwise, that they were up to no good on that occasion, that they may well have had robbery of the store in mind. But, again, I am driven back to the provisions of the Code that differentiate between mere preparation and the actual commencement of steps to commit the robbery.It will be observed that while the trial Judge made an express finding that he was satisfied beyond a reasonable doubt that the respondents were the two men who had approached the store, and that one of them had a gun, he made no similar finding with the necessary intent to rob. Mr. O’Hara, on behalf of the respondent Sorrell particularly emphasized the following passages in the trial Judge’s reasons, relative to intent, which Mr. O’Hara characterized as “powerful expressions of doubt”, namely: “...they may well have had robbery of the store in mind”, and “...what was done by way of attempt to open the door could relate more to a charge of attempted breaking rather than the charge of robbery”. In our view, the trial Judge’s reasons are more consistent with a finding that the necessary intent to commit a robbery was not proved beyond a reasonable doubt, than with a finding that such intent was established by the evidence. In any event, the Crown has not satisfied us that the trial Judge found the existence of an intent to rob. The Crown’s right of appeal under s. 605(1)(a) of the Code is confined to a ground of appeal that involves a question of law alone. The failure of the trial Judge to draw the appropriate inference of intent from the facts as found by him, is an error of fact, and does not raise a question of law. ... If the trial Judge had found that the respondents intended to rob the store, the acts done by them clearly had advanced beyond mere preparation, and were sufficiently proximate to constitute an attempt: see Hendersen v. The King (1948), 91 C.C.C. 97, [1949] 2 D.L.R. 121, [1948] S.C.R. 226, per Kerwin, J., at p. 98 C.C.C., p. 228 S.C.R., per Estey, J., at pp. 114-16 C.C.C., pp. 243-6 S.C.R., per Locke, J., at pp. 116-17 C.C.C., p. 246 S.C.R.; R. v. Carey (1957), 118 C.C.C. 241, [1957] S.C.R. 266, 25 C.R. 177, per Kerwin, C.J.C., at pp. 246-7, per Rand, J., at p. 251. If the trial Judge had found that the respondents had the necessary intent his finding that the acts done by the respondents did not go beyond mere preparation and did not constitute attempted robbery, would constitute an error of law that would not only warrant, but require our intervention. Because of the doubt that he entertained that the respondents had the necessary intent to commit robbery, however, his error in law in holding that the respondents’ acts did not go beyond mere preparation, could not have affected the verdict of acquittal, unless, of course, his self-misdirection with respect to what constituted mere preparation, led him into error in entertaining a reasonable doubt whether the requisite intent had been proved. This question is one of considerable difficulty. The following passage (included in those previously quoted), would tend to support the conclusion that the trial Judge was led into error with respect to the existence of the necessary intent by self-misdirection that the respondents’ acts had not gone beyond mere preparation: It is an extremely thin line, but whether thin or otherwise, if my finding is that that line had been crossed beyond mere preparation, the finding—if it were to be made—that the line had been crossed would be sufficient to bring me to a conclusion beyond a reasonable doubt. Nevertheless, the fineness of the line is a bother to me.The trial Judge then proceeded, however, to refer to the matters in the passages previously quoted, relating to the issue of intent, which gave him difficulty in finding that the required mental element was present. The issue of intent was basic and, the trial Judge, in our view, could not logically or appropriately make a determination whether the acts of the respondents went beyond mere preparation until he had first found the intent with which those acts were done. The issue whether the acts of the respondents went beyond mere preparation could not be decided in the abstract apart from the existence of the requisite intent. In the present case, there was no evidence of the intent to rob other than that furnished by the acts relied on as constituting the actus reus. There was no extrinsic evidence in the form of statements of intention, or admissions by the respondents showing what their intention was. The prosecution in this case was forced to rely exclusively upon the acts of the accused, not only to constitute the actus reus, but to supply the evidence of the necessary mens rea. This Court in R. v. Cline, supra, rejected the so-called “unequivocal act” test for determining when the stage of attempt has been reached. That test excludes resort to evidence aliunde, such as admissions, and holds that the stage of attempt has been reached only when the acts of the accused show unequivocally on their face the criminal intent with which the acts were performed. We are of the view that where the accused’s intention is otherwise proved, acts which on their face are equivocal, may none the less, be sufficiently proximate to constitute an attempt. Where, however, there is no extrinsic evidence of the intent with which accused’s acts were done, acts of the accused, which on their face are equivocal, may be insufficient to show that the acts were done with the intent to commit the crime that the accused is alleged to have attempted to commit, and hence insufficient to establish the offence of attempt. Counsel for the respondents while conceding that the trial Judge’s reasons are not free of ambiguity, submitted that they are reasonably open to the interpretation that he was searching for evidence that satisfied him beyond a reasonable doubt that the accused intended to rob the store in question, and at the end of his quest was not satisfied beyond a reasonable doubt, that the acts done by the accused supplied the necessary proof of intent. We think that this submission accurately states the basis upon which the trial Judge acquitted the respondents, and the Crown has not satisfied us that but for the self-misdirection with respect to which complaint is made, that the verdict of the trial Judge would not necessarily have been the same. It is not to the point that, on the evidence, we would have reached a different conclusion with respect to the respondent’s intentions. For the reasons given the appeal must be dismissed. Appeal dismissed.
R. v. Deutsch BEETZ and MCINTYRE JJ.
concur with Le Dain J. WILSON J. concurs with Le Dain
J. IDuring the period covered by the indictment, which is the
three months ending on or about September 3, 1981, the
appellant was carrying on a business known as Global
Franchises Marketing, which was engaged in selling
franchises of various kinds. During this period the
appellant placed an advertisement in newspapers in Ottawa,
Hamilton and Toronto inviting applications for the
position of secretary/sales assistant and conducted
interviews with three women who responded to the
advertisement and with a police officer who posed as an
applicant for the position and recorded the interview on a
tape recorder. The advertisement read as follows: ENJOY TRAVELIn the interviews the appellant indicated that a secretary/sales assistant would be expected to have sexual intercourse with clients or potential clients of the company where that appeared to be necessary to conclude a contract. The appellant also indicated that a successful secretary/sales assistant could earn as much as $100,000 per year through commission or bonus on the sale of franchises. The appellant did not make an offer of employment to the three applicants who testified at his trial. After hearing what the position required they said they were not interested and the interviews terminated. Nor did he make an offer of employment to the police officer who posed as an applicant, but when she told him she was interested in the position, despite its requirements, he told her to think it over and let him know. The appellant was tried upon an indictment containing two counts: attempting to procure female persons to become common prostitutes, and attempting to procure female persons to have illicit intercourse with another person. Graburn Co. Ct. J. acquitted the appellant on both counts. He found that the appellant intended a person hired for the position should have sexual relations with clients or potential clients, but he held, as a matter of law, that the acts or statements of the appellant did not, in the absence of an offer of employment, constitute the actus reus of an attempt to procure. In his opinion they were mere preparation. He accordingly did not find it necessary to decide whether the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1)(a) or make those who engaged in it common prostitutes within s. 195(1)(a), as it then read. The Ontario Court of Appeal (Martin, Houlden and Robins JJ.A.), 5 C.C.C. (3d) 41, dismissed the appeal from the acquittal on the charge of attempting to procure female persons to become common prostitutes, but allowed the appeal from the acquittal on the charge of attempting to procure female persons to have illicit sexual intercourse with another person and directed a new trial of the appellant on that count of the indictment. The Court held that the trial judge erred in concluding that the acts or statements of the appellant could not, in the absence of an offer of employment, constitute an attempt to procure rather than mere preparation. It held that there was evidence from which the trial judge could have concluded that there was both the mens rea and the actus reus required for an attempt to procure. The Court also held that the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1)(a). The appellant appeals from the judgment of the Court of Appeal with respect to the second count of the indictment. The appellant, who appeared in person on the appeal, expressed his grounds of appeal in several different ways, but in my opinion there are only two issues that require consideration by the Court: 1. Whether the Court of Appeal erred in holding that the acts or statements of the appellant could, as a matter of law, constitute an attempt to procure rather than mere preparation, and... IIII turn now to the question whether the acts or
statements of the appellant could, as a matter of law,
constitute the actus reus of an attempt to
procure a person to have illicit sexual intercourse with
another person, contrary to s. 195(1)(a) of the Code.
The general provision of the Code defining
the constituent elements of an attempt to commit an
offence is s. 24, which provides: 24.(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.The issue is whether, if there was the necessary intent, the acts of the appellant were mere preparation to commit the offence of procuring a person to have illicit sexual intercourse with another person or whether any of them was a step in the commission of the offence, and the extent to which that distinction is to turn on the relative remoteness of the act in question from what would have been the completion of the offence. This issue, as s. 24 indicates, is a question of law. The appellant contends that the Court of Appeal erred in holding that one of the acts of the appellant could, if there was the necessary intent, constitute the actus reus of an attempt to procure.... Several different tests for determining whether there is the actus reus of attempt, as distinct from mere preparation to commit an offence, have been identified as reflected at one time or another in judicial decisions and legislation. All of them have been pronounced by academic commentators to be unsatisfactory in some degree. For a thorough analysis of the various tests, with suggestions for an improved test, see Meehan, The Law of Criminal Attempt: A Treatise (1984), ch. 5, and Stuart, Canadian Criminal Law (1982), p. 529 ff.. There is a succinct appraisal of the various tests in the English Law Commission’s Report No. 102 of 1980 entitled, Criminal Law: Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement. It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment. In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question.... In Detering v. The Queen (1982), 70 C.C.C. (2d) 321, 142 D.L.R (3d) 87, [1982] 2 S.C.R. 583, which involved a conviction for attempted fraud, Laskin C.J.C. raised a question, as I read his reasons, as to the weight to be given to the proximity test in the essential task under s. 24 of the Code of distinguishing between preparation and attempt. With reference to the contention of counsel that “proximity was an essential requirement in the sense, to put it generally, that the actions of the accused must go beyond mere preparation and close (a question of degree) to the realization of his purpose”, Laskin C.J.C. said at pp. 3234 C.C.C., pp. 89-90 D.L.R., p. 586 S.C.R.: This leaves for consideration the so-called proximity principle. It may well be that this is envisaged by the reference to remoteness in s. 24(2), but I do not see that it advances the essential issue in attempt which requires going beyond mere preparation. Nor do I find cogency in the appellant’s submission that if there is impossibility this does not bring any act of the accused closer to realization so as to establish proximity. I read s. 24(1) as making a different distinction, one merely requiring proof of intent and of the accused going beyond mere preparation by making, as in this case, a false representation even though not resulting in full realization of his objective.In my opinion, relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt. That is reflected, I think, in the conclusion of the majority in Henderson and in the conclusion of the Ontario Court of Appeal with respect to actus reus in R. v. Sorrell and Bondett (1978), 41 C.C.C. (2d) 9. But an act which on its face is an act of commission does not lose its quality as the actus reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence. In the case at bar the Court of Appeal agreed with the trial judge on the applicable meaning of “procure”. The meaning selected by the trial judge and approved by the Court of Appeal was “to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged.” Martin J.A. expressed his agreement at p. 49 with the following statement of the issue by the trial judge: “The question for decision is did Mr. Deutsch attempt to cause or attempt to induce or attempt to have a persuasive effect upon the woman in question to have illicit sexual intercourse with another person. . .”. I agree that the sources referred to by the trial judge and Martin J.A. support the meaning given by them to the word “procure”. The Court of Appeal differed with the trial judge as to what would have constituted the completed offence of procuring a person to have illicit sexual intercourse with another person. The trial judge held that the offence of procuring would have been completed, in the particular context of this case, by the acceptance of an offer of employment. The Court of Appeal held, citing R. v. Johnson (1963), 48 Cr. App. R. 25, and R. v. Aruba, [1969] 2 C.C.C. 365, 66 W.W.R. 190, that the offence of procuring a person to have illicit sexual intercourse with another person is not committed unless sexual intercourse actually takes place. In the appeal to this Court the respondent accepted this statement of the law as to what is required for the complete offence of procuring a person to have illicit sexual intercourse with another person. It was not challenged, and I accept it for purposes of deciding whether the acts of the appellant could, as a matter of law, constitute the actus reus of an attempt to procure. I agree with the Court of Appeal that if the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with prospective clients then the holding out of the large financial rewards in the course of the interviews, in which the necessity of having sexual intercourse with prospective clients was disclosed, could constitute the actus reus of an attempt to procure. It would clearly be a step, and an important step, in the commission of the offence. Before an offer of employment could be made in such circumstances an applicant would have to seek the position, despite its special requirement. Thus such inducement or persuasion would be the decisive act in the procuring. There would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment. I am further of the opinion that the holding out of the large financial rewards in the course of the interviews would not lose its quality as a step in the commission of the offence, and thus as an actus reus of attempt, because a considerable period of time might elapse before a person engaged for the position had sexual intercourse with prospective clients or because of the otherwise contingent nature of such sexual intercourse. For these reasons I would dismiss the appeal. I agree with the Court of Appeal that because the trial judge did not make a finding as to whether or not there was the necessary intent to procure there must be a new trial. Appeal dismissed. * * * People v. Lehnert The defendant, Charity Lehnert, was charged with
attempted first degree murder, possession of explosive
or incendiary parts, committing a crime of violence, and
two less serious offenses of drug possession. She was
convicted of all but the drug charges, and she was
sentenced to terms of thirty years for attempted murder
and six years for possession of explosive devices, to be
served concurrently. 4. Impossibility
United States of America v.
Dynar The judgment of Lamer C.J. and La Forest,
L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was
delivered by I. Facts3 Arye
Dynar, a Canadian citizen, was the subject of a failed
“sting” operation attempted by the Federal Bureau of
Investigation in the United States. Mr. Dynar was
indicted together with Maurice Cohen, who is also a
Canadian citizen, in the United States District Court of
Nevada. The United States indictment charged both Mr.
Dynar and Mr. Cohen with one count of attempting to
launder money in violation of Title 18, United States
Code, sec. 1956(a)(3), and one count of conspiracy to
violate Title 18, United States Code, sec. 1956(a)(3),
contrary to Title 18, United States Code, sec. 371. The
Government of the United States requested their
extradition by Diplomatic Note dated November 30, 1992.
This appeal relates to the request for the extradition
of Mr. Dynar. II. Applicable Legislation14 The
relevant statutory provisions are not the United States
provisions under which Mr. Dynar has been indicted, but
the provisions of the Canadian Criminal Code, R.S.C.,
1985, c. C-46, and the Narcotic Control Act, R.S.C.,
1985, c. N-1. It is these enactments which will
determine whether the conduct of Mr. Dynar in the United
States would constitute offences in this country. See McVey
(Re); McVey v. United States of America, [1992] 3
S.C.R. 475. 462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of16 A similar offence is contained in the Narcotic Control Act: 19.2 (1) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of17 The relevant provisions of the Criminal Code which provide criminal liability for attempt and conspiracy are: 24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.18 Finally, the role of the extradition judge in a committal hearing is provided for under the Extradition Act, as amended by S.C. 1992, c. 13. In particular, the following provisions are relevant to this appeal: 9. . . .... IV. Issues35 The major issue which arises on the appeal is whether Mr. Dynar's conduct would have amounted to an offence under Canadian law if it had occurred in Canada. This question in turn has two parts: whether an accused who attempts to do the "impossible" may be guilty of attempt and whether an accused who conspires with another to do the impossible may be guilty of conspiracy.... V. AnalysisA. The Criminality of Mr. Dynar's Conduct Under Canadian Law(1) Introduction 462.31.(1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of [the commission of a designated offence]..... 47 Because the money that the U.S. undercover agents asked Mr. Dynar to launder was not in fact the proceeds of crime, Mr. Dynar could not possibly have known that it was the proceeds of crime. Therefore, even if he had brought his plan to fruition, he would not have been guilty of any completed offence known to Canadian law. But this is not the end of the story. 48 We conclude that the steps that Mr. Dynar took towards the realization of his plan to launder money would have amounted to a criminal attempt and a criminal conspiracy under Canadian law if the conduct in question had taken place entirely within Canada. We reach our conclusion on the basis of the wording in the applicable provisions of the Criminal Code interpreted in the light of the underlying theory of impossible attempts and conspiracies. (2) The Law of Attempt 49 The Criminal Code creates the crime of attempt to commit an offence: 24.(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.On its face, the statute is indifferent about whether or not the attempt might possibly have succeeded. Therefore it would seem, at first blush, not to matter that Mr. Dynar could not possibly have succeeded in laundering money known to be the proceeds of crime. So long as he attempted to do so, he is guilty of a crime. 50 In our view, s. 24(1) is clear: the crime of attempt consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt. This proposition finds support in a long line of authority. See, e.g., R. v. Cline (1956), 115 C.C.C. 18 (Ont. C.A.), at p. 29; R. v. Ancio, [1984] 1 S.C.R. 225, at p. 247; R. v. Deutsch, [1986] 2 S.C.R. 2, at pp. 19-26; R. v. Gladstone, [1996] 2 S.C.R. 723, at para. 19. In this case, sufficient evidence was produced to show that Mr. Dynar intended to commit the money-laundering offences, and that he took steps more than merely preparatory in order to realize his intention. That is enough to establish that he attempted to launder money contrary to s. 24(1) of the Criminal Code. 51 However, the respondent argues that Parliament did not intend by s. 24(1) to criminalize all attempts to do the impossible, but only those attempts that the common law has classified as "factually impossible". An attempt to do the factually impossible, according to the respondent, is an attempt that runs up against some intervening obstacle and for that reason cannot be completed. The classic example involves a pickpocket who puts his hand into a man's pocket intending to remove the wallet, only to find that there is no wallet to remove. 52 Traditionally, this sort of impossibility has been contrasted with "legal impossibility". An attempt to do the legally impossible is, according to those who draw the distinction, an attempt that must fail because, even if it were completed, no crime would have been committed. See Eric Colvin, Principles of Criminal Law (2nd ed. 1991), at pp. 355-56. 53 According to the respondent, the Criminal Code criminalizes only attempts to do the factually impossible. An attempt to do the legally impossible, in the absence of an express legislative reference to that variety of impossibility, is not a crime. 54 As support for this interpretation, the respondent offers two arguments. The first is that Parliament based s. 24(1) on an English provision whose purpose was to overrule a decision of the House of Lords that had made factual impossibility a defence. See Barry Brown, "'Th' attempt, and not the deed, Confounds us': Section 24 and Impossible Attempts" (1981), 19 U.W.O. L. Rev. 225, at pp. 228-29. On the strength of this argument, the New Zealand Court of Appeal accepted that New Zealand's equivalent to s. 24(1) criminalizes attempts whose completion is factually impossible but not those whose completion is legally impossible. See R. v. Donnelly, [1970] N.Z.L.R. 980 (C.A.), at pp. 984 and 988. 55 The respondent's second argument is that Parliament, had it intended to criminalize attempts to do the legally impossible, would have used the words "whether or not it was factually or legally impossible" in s. 24(1). As examples of statutes that were intended to criminalize attempts to do the legally impossible, the respondent cites provisions of statutes from the United Kingdom and from the United States: 1. -- (1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.56 A third argument, which the respondent does not advance, is that the words "under the circumstances" restrict the scope of s. 24(1) to attempts to do the factually impossible. An attempt that is not possible "under the circumstances", according to this argument, is by implication possible under some other set of circumstances. Otherwise, there would be no need to mention circumstances -- the mere mention of impossibility would suffice. President North of the New Zealand Court of Appeal made this very argument in Donnelly, supra, at p. 988: In my opinion the significant words in s. 72 (1) [New Zealand's equivalent to s. 24(1) of the Criminal Code] are "in the circumstances", which seem to me to imply that in other circumstances it might be possible to commit the offence. This I think points to the conclusion that s. 72 (1) went no further than to ensure that a person who had the necessary criminal intent and did an act for the purpose of accomplishing his object was guilty of an attempt even although it so happened that it was not possible to commit the full offence.57 In addition there is another way of turning the same language to the respondent's advantage. "Circumstances", in ordinary parlance, are facts. Laws, by contrast, are not circumstances. Accordingly, applying the rule that expressio unius est exclusio alterius, the mention in s. 24(1) of attempts that are circumstantially or factually impossible may be taken to exclude attempts that are legally impossible. The question, as one Canadian writer has framed it, is whether "'the circumstances' referred to in [s. 24(1)] include the legal status of the actor's conduct": Brown, supra, at p. 229. 58 Still another argument in favour of the respondent's position, though one that reflects judicial policy rather than the strict ascertainment of legislative intent, is that penal statutes, if ambiguous, should be construed narrowly, in favour of the rights of the accused. "[T]he overriding principle governing the interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons": R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 38. 59 Although some of these arguments have a certain force, what force they have is greatly attenuated when it is realized that the conventional distinction between factual and legal impossibility is not tenable. The only relevant distinction for purposes of s. 24(1) of the Criminal Code is between imaginary crimes and attempts to do the factually impossible. The criminal law of Canada recognizes no middle category called "legal impossibility". Because Mr. Dynar attempted to do the impossible but did not attempt to commit an imaginary crime, he can only have attempted to do the "factually impossible". For this reason, Mr. Dynar's proposal that s. 24(1) criminalizes only attempts to do the factually impossible does not help him. .... 65 There is, however, a relevant difference between a failed attempt to do something that is a crime and an imaginary crime. It is one thing to attempt to steal a wallet, believing such thievery to be a crime, and quite another thing to bring sugar into Canada, believing the importation of sugar to be a crime. In the former case, the would-be thief has the mens rea associated with thievery. In the latter case, the would-be smuggler has no mens rea known to law. Because s. 24(1) clearly provides that it is an element of the offence of attempt to have "an intent to commit an offence", the latter sort of attempt is not a crime. 66 Nor should it be. A major purpose of the law of attempt is to discourage the commission of subsequent offences. See Williams' Textbook of Criminal Law, supra, at pp. 404-5. See also Brown, supra, at p. 232; Eugene Meehan, "Attempt -- Some Rational Thoughts on its Rationale" (1976-77), 19 Crim. L.Q. 215, at p. 238; Don Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 594. But one who attempts to do something that is not a crime or even one who actually does something that is not a crime, believing that what he has done or has attempted to do is a crime, has not displayed any propensity to commit crimes in the future, unless perhaps he has betrayed a vague willingness to break the law. Probably all he has shown is that he might be inclined to do the same sort of thing in the future; and from a societal point of view, that is not a very worrisome prospect, because by hypothesis what he attempted to do is perfectly legal. 67 ... Only attempts to commit imaginary crimes fall outside the scope of the provision. Because what Mr. Dynar attempted to do falls squarely into the category of the factually impossible -- he attempted to commit crimes known to law and was thwarted only by chance -- it was a criminal attempt within the meaning of s. 24(1). The evidence suggests that Mr. Dynar is a criminal within the contemplation of the Canadian law and so the double criminality rule should be no bar to his extradition to the United States. 73 .... The absence of an attendant circumstance is irrelevant from the point of view of the law of attempt. An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission. Because an attempt is in its very nature an incomplete substantive offence, it will always be the case that the actus reus of the completed offence will be deficient, and sometimes this will be because an attendant circumstance is lacking.... 74 So it should not be troubling that what Mr. Dynar did does not constitute the actus reus of the money-laundering offences. If his actions did constitute the actus reus, then he would be guilty of the completed offences described in s. 462.31 of the Criminal Code and s. 19.2 of the Narcotic Control Act. There would be no need even to consider the law of attempt. The law of attempt is engaged only when, as in this case, the mens rea of the completed offence is present entirely and the actus reus of it is present in an incomplete but more-than-merely-preparatory way. 75 The respondent argues [nonetheless] that, in determining whether an accused has the requisite mens rea for attempt, a court should consider only those mental states that supply the accused's motivation to act. 76 This proposal is a way of overlooking an accused's mistaken beliefs. Thus, the respondent argues that he did not have the requisite mens rea because he desired only to make money by doing a service to Anthony, the undercover agent. It did not matter to Mr. Dynar whether the money was the proceeds of crime or not. He would have been just as happy to convert funds for the United States Government as for some drug kingpin. Mr. Dynar's only concern was that he should receive a commission for his services. 77 The theoretical basis for this thinking appears in Professor George Fletcher's attempted defence of the distinction between factual impossibility and legal impossibility (in Rethinking Criminal Law (1978)). Fletcher, on whom the respondent relies, says that an accused's legally relevant intention comprises only those mental states that move the accused to act as he does (at p. 161): [M]istaken beliefs are relevant to what the actor is trying to do if they affect his incentive in acting. They affect his incentive if knowing of the mistake would give him a good reason for changing his course of conduct.78 Thus, to take one of Fletcher's examples, it does not matter what day a criminal thought it was when he committed a crime, because whatever he might have thought the day was, he would still have acted as he did. In Fletcher's view, similar reasoning explains why it is not a crime to deal with "legitimate" property thinking that one is dealing with the proceeds of crime (at p. 162): [I]t seems fairly clear that the fact that the [goods were] stolen does not affect the actor's incentive in paying the price at which [they were] offered to him by the police. If he were told that the goods were not stolen, that would not have provided him with a reason for turning down the offer. If they were not stolen, so much the better. It follows, therefore, that it is inappropriate to describe his conduct as attempting to receive stolen [goods].79 But this view confounds motivation and intention. If attention were paid only to the former, then the number of crimes would be greatly, if not very satisfactorily, reduced, because what moves many criminals to crime is some desire relatively more benign than the desire to commit a crime. We suspect that only the most hardened criminals commit crimes just for the sake of breaking the law. To at least many malefactors, it must be a matter of indifference whether their actions constitute crimes. Probably most thieves would not turn up their noses at the opportunity to loot a house simply because it has been abandoned and so is the property of no one. The goal is the making of a quick dollar, not the flouting of the law. In this, we again agree completely with Glanville Williams, who said: Normally, motivation is irrelevant for intention. Every receiver of stolen goods would prefer to have non-stolen goods at the same price, if given the choice; but if he knows or believes the goods are stolen, he intends to receive stolen goods. We have to say that a person intends his act in the circumstances that he knows or believes to exist. This being the rule for consummated crimes, no good reason can be suggested why it should differ for attempts.80 In this case, it is almost certainly true that Mr. Dynar would have been content to convert the United States Government's money even if he had known that it had nothing to do with the sale of drugs. Presumably his only concern was to collect his percentage. The provenance of the money must have been, for him, largely irrelevant. But, from the point of view of the criminal law, what is important is not what moved Mr. Dynar, but what Mr. Dynar believed he was doing. "We have to say that a person intends his act in the circumstances that he knows or believes to exist." And the evidence is clear that Mr. Dynar believed that he was embarked upon a scheme to convert "drug money" from New York City. 81 Looking to intent rather than motive accords with the purpose of the criminal law in general and of the law of attempt in particular. Society imposes criminal sanctions in order to punish and deter undesirable conduct. It does not matter to society, in its efforts to secure social peace and order, what an accused's motive was, but only what the accused intended to do. It is no consolation to one whose car has been stolen that the thief stole the car intending to sell it to purchase food for a food bank. Similarly, the purpose of the law of attempt is universally acknowledged to be the deterrence of subsequent attempts. A person who has intended to do something that the law forbids and who has actually taken steps towards the completion of an offence is apt to try the same sort of thing in the future; and there is no assurance that next time his attempt will fail. 82 Applying this rationale to impossible attempts, we conclude that such attempts are no less menacing than are other attempts. After all, the only difference between an attempt to do the possible and an attempt to do the impossible is chance. A person who enters a bedroom and stabs a corpse thinking that he is stabbing a living person has the same intention as a person who enters a bedroom and stabs someone who is alive. In the former instance, by some chance, the intended victim expired in his sleep perhaps only moments before the would-be assassin acted. It is difficult to see why this circumstance, of which the tardy killer has no knowledge and over which he has no control, should in any way mitigate his culpability. Next time, the intended victim might be alive. Similarly, even if Mr. Dynar could not actually have laundered the proceeds of crime this time around, there is hardly any guarantee that his next customer might not be someone other than an agent of the United States Government. 83 The import of all of this is that Mr. Dynar committed the crime of attempt; and for having done so he should be extradited to the United States. The facts disclose an intent to launder money and acts taken in furtherance of that design. Section 24(1) of the Criminal Code requires no more.... * * *
People v. Dlugash
Jasen, Judge. B. Counselling
R. v. Hamilton The judgment of McLachlin C.J. and Bastarache, Binnie,
LeBel, Deschamps and Fish JJ. was delivered by 464. ...15 The actus reus for counselling will be established where the materials or statements made or transmitted by the accused actively induce or advocate—and do not merely describe—the commission of an offence: R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 57, per McLachlin C.J. .... 21 Our concern here is with the imposition of criminal liability on those who counsel others to commit crimes. In this context, "counsel" includes "procure, solicit or incite": see s. 22(3) of the Criminal Code. 22 In their relevant senses, the Canadian Oxford Dictionary (2nd ed. 2004) defines "counsel" as "advise" or "recommend (a course of action)"; "procure" as "bring about"; "solicit" as "ask repeatedly or earnestly for or seek or invite", or "make a request or petition to (a person)"; and "incite" as "urge". "Procure" has been held judicially to include "instigate" and "persuade": R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont. C.A.). 23 Those who encourage the commission of crimes in any of these ways are criminally responsible for their conduct by way of "secondary liability". 24 The rationale underlying secondary liability was described by the Law Reform Commission of Canada as "straightforward, obvious and justifiable" -- in principle, though not always in practice: Working Paper 45, Secondary Liability: Participation in Crime and Inchoate Offences (1985), at p. 5. 25 According to the Commission (at pp. 5-6): ... the rationale for secondary liability is the same as that for primary liability. Primary liability attaches to the commission of acts which are outlawed as being harmful, as infringing important human interests and as violating basic social values. Secondary liability attaches on the same ground to their attempted commission, to counselling their commission and to assisting their commission. 26 These passages, in my view,
aptly explain why Parliament has imposed criminal
responsibility on those who counsel, procure, solicit or
incite others to commit crimes, whether or not the
crimes are in fact committed. His motivation was monetary, and he sought to pique the curiosity of readers who might acquire the information in the same way that he was initially attracted to the information. Further, he struck me as utterly unsophisticated and naÔve to the point that he cannot be said to have been wilfully blind or reckless. [Emphasis added; para. 53.]40 Essentially, on my reading of this passage, the trial judge acquitted Mr. Hamilton on this count because his motivation was mercenary as opposed to malevolent. 41 In my respectful view, this was an error of law requiring our intervention. 42 The distinction between motive and intent has been well understood by Canadian courts since at least 1979, when Dickson J. stated: 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. ... 43 Cory and Iacobucci JJ. also
underlined this distinction in United States of
America v. Dynar, [1997] 2 S.C.R. 462,
emphasizing the importance, as a matter of legal policy,
of maintaining it with vigilance: "It does not matter to
society, in its efforts to secure social peace and
order, what an accused's motive was, but only what the
accused intended to do. It is no consolation to one
whose car has been stolen that the thief stole the car
intending to sell it to purchase food for a food bank"
(para. 81). See also R. v. Hibbert, [1995] 2
S.C.R. 973. The reasons of Major, Abella and Charron JJ. were
delivered by B. Why Criminalize Acts of Counselling?65 The criminalization of
counselling the commission of an offence creates a
form of secondary liability. Where the counselled
offence is committed, the act of counselling
constitutes participation; where the counselled
offence is not committed, the crime is said to be
inchoate. Black's Law Dictionary (8th ed.
2004) defines an inchoate crime as "[a] step toward
the commission of another crime, the step in itself
being serious enough to merit punishment." The
rationale for imposing criminal liability for
participation and inchoate offences is the same as
that for primary liability. As noted by my colleague
Fish J., the Law Reform Commission of Canada, as it
was then called, provided a useful summary of the
rationale in its Working Paper 45, Secondary
Liability: Participation in Crime and Inchoate
Offences (1985).... C. The Actus Reus for Counselling an Offence Not Committed67 As stated earlier, only mens rea is at issue on this appeal. However, in order to properly determine the fault requirement for any offence, it is necessary to consider the actus reus of the offence so as to identify the circumstances and consequences to which the offence is directed. The actus reus under s. 464 consists of "counsel[ling] another person to commit an indictable offence" (or an offence punishable on summary conviction). Hence, there must be:
It is readily apparent from the language of the
provision that the interpretation of the word
"counsel", in large part, will determine the scope of
criminal liability. D. The Mens Rea for Counselling an Offence Not Committed75 No constitutional
challenge is raised in this case. Nonetheless, the
Court must be mindful of the potential overbreadth of
a criminal sanction whose sole target is speech. As
reiterated in Sharpe, Parliament is presumed to have
intended to enact legislation in conformity with the
Charter (para. 33). This concern over the potential
sweep of the provision does not end with the analysis
of the requisite actus reus and the level of risk
targeted by Parliament. The persons who could
potentially fall within the reach of the criminal law
must be considered. Because of the stigma attached to
a criminal prosecution and to a conviction, it is
important that the offence not catch the morally
innocent. The present case is one of those rare instances where, despite the appellant's intention that his words be taken seriously, the Crown does not maintain that he intended the commission of the crimes counselled. While the appellant's actions were reprehensible, I am not convinced that the reach of the criminal law should be extended, at the expense of established principle, to ensnare the likes of the appellant. 79 The Crown's position
before this Court is consonant with this "dual" mens
rea requirement. The Crown is no longer contending, as
it did at trial, that an accused's intention in
respect of the commission of the counselled offence is
irrelevant. The Crown, however, submits that
recklessness as to whether the person counselled will
commit the offence suffices. Hence, on that approach,
the counsellor's knowledge, without more, of the
communication's objective potential to persuade would
meet the standard. For the same reasons expressed in
respect of the actus reus, it is my view that this
interpretation, which would result in criminal
liability even when the counsellor does not intend to
see that act committed, but is simply reckless as to
the reaction of the person counselled, would unduly
widen the scope of criminality. As aptly noted by the
intervener Canadian Civil Liberties Association, the
interpretation advocated by the Crown would risk
criminalizing legitimate forms of protest, advocacy or
dissent and, arguably, even the reproduction and
distribution, for historical or teaching purposes, of
classic texts. The value placed on freedom of
expression militates in favour of a more restricted
interpretation. E. Application to This Case83 As noted earlier, the
trial judge concluded that the actus reus of the
offence had been proven in respect of each of the four
counts. While this conclusion in respect of the fraud
count appears well founded, it is difficult to find
support on the record in respect of the three
remaining counts. As discussed earlier, a simple "how
to" recipe for committing a crime, without more, does
not appear to meet the test adopted in Sharpe.
However, no issue was raised with respect to the trial
judge's conclusion on the actus reus and it is not
necessary to decide the matter to dispose of this
appeal. The trial judge did not err as alleged by the Crown. As she was entitled to do, the trial judge considered motive as part of her fact findings. But her decision was based on other facts relating to the respondent's knowledge. She found, for example, that the respondent had not read most of the "Top Secret" files. She also found that he was not interested in their contents and that he was, overall, "naive, lazy or ignorant". Dealing with the credit card number generator, the trial judge accepted the respondent's testimony that he did not think any generated numbers could be used because they lacked an expiry date. On the basis of these facts, she found the respondent lacked sufficient knowledge of the consequences of his actions to satisfy the mens rea requirement. It is clear that she understood the nature of the test she was bound to apply and did not err in law. * * * LRCC § 4(4) * * * MPC § 5.02 C. Conspiracy
R. v. Dèry The judgment of the Court was delivered by I1 Jacques
Dèry stands convicted of attempting to conspire to
commit theft, and of attempting to conspire to
unlawfully possess the proceeds. II5 December
brings with it, in Canada and elsewhere, a holiday
season widely and joyously celebrated by "raising a
glass". Liquor merchants must frequently replenish
their shelves to keep the glasses filled. In the
Quebec City region, the Sociètè des alcools du Quèbec
("SAQ") is forced by the increased demand to stock
more of its products than its secure warehouses can
contain. The inevitable overflow is stored temporarily
in trailers parked outdoors at an SAQ compound. III11 The
alleged crime of attempting to conspire has received
sparse judicial consideration in Canada. If the offence of conspiracy is an auxiliary to the law which creates the crime agreed to be committed, and if the object of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of an attempt, there appears to be little justification in attaching penal sanction to an act which falls short of a conspiracy to commit the substantive offence.16 Dubin J.A. concluded that "there is no such offence as attempt to conspire to commit a further substantive offence" (p. 98), "leav[ing] for further consideration whether there could be an attempt to conspire where the conspiracy is the substantive offence, and the question of remoteness would not arise, as distinguished from a case such as this where the offence alleged was a conspiracy to commit a further substantive offence" (p. 99). 17 This case, like Dungey, concerns an attempt to conspire to commit a substantive offence. The trial judge nonetheless found that Dungey turned on its own particular facts and had no application here. In his view: [TRANSLATION] It is true that an attentive reading of [Dungey] may lead to the conclusion - a conclusion that some in Canada have perhaps too quickly arrived at - that this offence does not exist. However, the Court of Appeal did not itself rule on its existence, having determined that the facts did not lend themselves to such a judgment. [para. 38]18 The majority of the Quebec Court of Appeal quoted this passage with approval (at para. 32) and found that Dubin J.A., in the passage I have quoted at para. 17, left open the decisive question in this case: Is an attempt to conspire to commit a substantive offence - here, theft and culpable possession - a crime in Canada? 19 On the contrary and with respect, this is the very question answered by the Court of Appeal in Dungey. It answered that question in the negative, as would I, and it did so in the clearest of terms, which I again reproduce: "[T]here is no such offence as attempt to conspire to commit a further substantive offence" (p. 98). 20 The question left open by Dungey relates instead to offences such as conspiracy in restraint of trade and conspiracy to commit treason or seditious conspiracy, where conspiracy is the substantive offence: See A. W. Mewett and M. Manning, Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 345; D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p. 705, fn. 424. And that question, unlike the one that concerns us here, remains open to this day. 21 In support of its conclusion, the majority of the Court of Appeal referred as well to R. v. May (1984), 13 C.C.C. (3d) 257 (Ont. C.A.). The conviction in May was for conspiracy to obstruct justice. Obstruction of justice, a distinct offence under the Criminal Code, is framed in the language of attempt: "every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice". It was argued on that basis that the charge of conspiracy to obstruct justice impermissibly combined two forms of inchoate liability. This was said to violate the policy considerations underlying Dungey. 22 In brief reasons delivered orally, Martin J.A. found it unnecessary to consider in detail the reasons set out in Dungey. Speaking for a unanimous court, he considered it sufficient to say that obstruction of justice was a substantive offence and that the accused's submission failed for that reason alone. 23 Nothing in May supports the view that it is a crime in Canada to attempt to conspire to commit a substantive offence. On the contrary, Martin J.A. specifically noted that the court in Dungey "held that the offence of attempting to conspire to commit a substantive offence is not an offence under Canadian law" (p. 260 (emphasis in original)). And, in characterizing obstruction of justice as a substantive offence, he simply applied the legal principles set out in Dungey to the facts in May. Despite the inchoate elements of its statutory definition, obstruction of justice was held to fall within the exception posited by Dubin J.A. in Dungey. 24 I turn now to a third relevant Canadian decision. 25 In R. v. Kotyszyn (1949), 8 C.R. 246, 95 C.C.C. 261 (Que. C.A.), the accused was a suspected professional abortionist ("avorteuse professionnelle"). She was approached by an undercover police officer who claimed to be pregnant and in need of an abortion. The accused agreed to perform the abortion for $100, which was paid by the "boyfriend" - a sergeant-detective. The accused and her "pregnant" client then entered a bedroom. With her implements visibly laid out, the accused declared that she was ready to proceed. The officer thereupon revealed her true identity, arrested the accused and charged her with: (1) conspiracy to commit an abortion; and (2) attempted conspiracy to commit that same indictable offence. 26 At the close of the Crown's case, acquittals were entered on both charges. Agreement - an essential ingredient of conspiracy - was not made out, since the apparent co-conspirator, an undercover police officer, only wished to set a trap and not to have an abortion. Conceding that no conviction could therefore lie on the first charge, the Crown appealed only the acquittal on the charge of attempted conspiracy. Though for somewhat different reasons, all five members of the court agreed that the appeal should be dismissed. 27 Mackinnon J. (ad hoc), with whom Galipeault and Barclay JJ.A. concurred, held that the charge did not properly attach to the facts of the case. The accused had gone much further than a mere attempt to agree and, if anything, the charge ought to have been for conspiracy. On that charge, however, she had already been finally acquitted. In this light, the Crown's appeal on the count for attempt was seen as an improper endeavour to circumvent the accused's acquittal on the substantive charge. 28 Of the five members of the court, only Gagnè J.A. discussed attempted conspiracy. He held that attempting to conspire was a crime: [TRANSLATION] Certainly, there may be an attempt to conspire. A presents herself at the home of B and suggests to her an agreement to commit an offence. B refuses. There is no conspiracy, but an attempt on the part of A, an attempt which did not succeed. If she succeeded, that is to say, if there had been acquiescence, the offence of attempt disappeared; it is that of conspiracy that is committed. [p. 265 C.C.C.]Gagnè J.A. found, however, that this construct could not be applied to the case before him, since the accused had not proposed the agreement, but merely acquiesced in the officer's proposition: [TRANSLATION] "It is not she who suggested the agreement, it is the other person. She acquiesced" (p. 265 C.C.C.). 29 By emphasizing offer rather than acquiescence as the touchstone for responsibility, Gagnè J.A. focussed on enticing another into crime - the evil meant to be caught by counselling. Under our law, it will be remembered, "counsel" includes "procure", "solicit" or "incite": See s. 22(3) of the Criminal Code. By treating counselling and attempt as legal equivalents, Gagnè J.A. mistook counselling for attempted conspiracy. 30 To conflate counselling and attempt to conspire is to rely on semantics where principle fails. While it may well be true that to counsel another to conspire is, in the ordinary sense of the word, to "attempt" (or try) to form a conspiracy, not all efforts to conspire amount, in law, to counselling. Yet we are urged by the Crown in this case to recognize attempted conspiracy as an offence different from, and wider than, the established offence of counselling. 31 In R. v. Hamilton, [2005] 2 S.C.R. 432, 2005 SCC 47, this Court held that "the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence" (para. 29 (emphasis in original)): See also R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 57, per McLachlin C.J. This relatively high threshold for the actus reus of incitement is an essential safeguard. As Charron J. (dissenting, but not on this point) observed at para. 72, "[i]t is th[e] concern of potential overbreadth that informed this Court's adoption in Sharpe of a more restricted meaning of counselling". Charron J. noted as well that counselling an offence not committed is rarely prosecuted (para. 48). 32 Here, the Crown proposes an actus reus for attempted conspiracy that, if not open-ended, is much broader than the actus reus of counselling. Even a tentative and vain effort to reach an unlawful agreement would suffice (respondent's factum, at para. 40). The safeguard that governs counselling would thus be removed for attempted conspiracy. Even if we were to criminalize an attempt to conspire as a form of counselling, I fear that the Crown attempts in this case to squeeze from it more than it yields. 33 I also note that the court in Kotyszyn declined to recognize attempt to conspire as a way of addressing what are sometimes called "unilateral conspiracies". The justification for criminalizing such acts would be that, from the perspective of a compliant accused, the degree of moral turpitude is no different when an accepted invitation to crime is genuine than when it is made by an agent provocateur or double agent. There is at least a baseline of moral blameworthiness in such cases because the accused has agreed to join an ostensibly criminal enterprise. Arguably, the offender should thus be punished equally in both cases. 34 In the United States, a free-standing doctrine of unilateral conspiracy has bridged what was seen in that country as a gap in the law of conspiracy. Would-be conspirators are guilty of unilateral conspiracy where there is no true conspiracy because the agreement of their interlocutors is feigned: See American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) (1985), s. 5.04(1)(b). As one American court noted, the unilateral conspiracy approach rendered attempt to conspire superfluous: People v. Schwimmer, 411 N.Y.S. 2d 922 (App. Div. 1978), at pp. 925-28. 35 A consistent line of case law in this country precludes us from adopting the American approach. Most notably, the recent decision of this Court in United States v. Dynar, [1997] 2 S.C.R. 462, takes a strictly bilateral view of conspiracy. See also R. v. O'Brien, [1954] S.C.R. 666, at p. 670, quoted with approval and reaffirmed in Dynar, at para. 88; R. v. Lessard (1982), 10 C.C.C. (3d) 61 (Que. C.A.); R. v. Campeau, [1999] Q.J. No. 5436 (QL) (Que. C.A.). It is thus well established in Canada that there must be actual agreement for a conspiracy to be formed. And actual agreement requires genuine intention. The unilateral conspiracy doctrine, however well-established in the American legal environment, is thus not viable here. 36 Recognition of attempted conspiracy as a crime might well capture cases of feigned agreement, but this sort of change in the law is best left to Parliament. Moreover, the evil targeted by criminalizing unilateral conspiracies will in any event normally be caught under our law by the offence of "counselling an offence not committed". That offence, to which I referred earlier, is set out in s. 464 of the Criminal Code: 464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,37 It seems to me as well that this would be an inappropriate occasion for this Court to recognize attempt to conspire as a crime for unilateral conspiracies, even if it were within our power and we were inclined on principle to do so. This is not a case with only one willing party. Nor was there any agreement, bogus or bona fide, for Mr. Dèry to join. The appeal turns entirely on whether criminal liability attaches to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions. I am satisfied that it does not. 38 This conclusion is consistent with the state of the law in other jurisdictions that share with us a common legal heritage - and little contemporary support for characterizing attempt to conspire as a crime. In England, the crime of attempt to conspire was abolished by the Criminal Law Act 1977 (U.K.), 1977, c. 45, modified by the Criminal Attempts Act 1981 (U.K.), 198l, c. 47. Most courts in the United States that have considered the existence of the alleged crime of attempt to conspire have rejected it. See N. Zimmerman, Attempted Stalking: An Attempt-to-Almost-Attempt-to- Act (2000), 29 N. Ill. U.L. Rev. 219, at p. 222. There does not appear to be a record of any convictions of attempt to conspire in either Australia or New Zealand, and the crime was specifically abolished in Australia and in several of its states: See Australian Criminal Code Act 1995, s. 11.1(7), Criminal Code 2002 (A.C.T.), s. 44(10), and the Crimes Act 1958 (Vict.), s. 321F(3). 39 The Attorney General of Canada has brought to our attention decisions in other common law jurisdictions that appear to recognize the crime of attempting to conspire. Even then, however, attempt to conspire has served essentially as a stand-in for counselling or incitement (see Parshu Ram v. R. (1967), 13 F.L.R. 138 (Fiji C.A.), and Kabunga S/O Magingi v. R. (1955), 22 E.A.C.A. 387 (East African C.A.)), or as a means to capture unilateral conspirators (see Harris v. Rex (1927), 48 N.L.R. 330 (Supreme Court of South Africa, Natal Provincial Division)). In none of these jurisdictions has attempt to conspire expanded the sphere of criminal liability in the manner urged upon us here. IV40 The
argument in favour of attempted conspiracy is that the
provisions governing inchoate liability can be stacked
one upon the other, like building blocks. Pursuant to
s. 463(d), attempting to commit any "offence
for which the offender may be prosecuted by
indictment" is an indictable offence punishable by
half the maximum penalty for the attempted offence.
Conspiracy to commit an indictable offence is itself
an indictable offence, punishable by the maximum
penalty provided for the underlying substantive
offence: S. 465(1)(c). Likewise, it is
argued, attempt to conspire is an offence punishable
by half the penalty provided for the completed
conspiracy. 24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.43 The intent of the legislator in s. 24(2) is to fix the threshold of criminal responsibility. Applying the test provided, courts must situate on a continuum from antisocial contemplation to prohibited conduct—or bad thought to substantive crime—the point where the criminal law intervenes. This continuum was aptly described a half-century ago by Laidlaw J.A. in R. v. Cline (1956), 115 C.C.C. 18 (Ont. C.A.): The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate. [p. 28]44 In Dynar, Cory and Iacobucci JJ. observed that conspiracy is an act that precedes the next step after preparing to carrying out a plan: Conspiracy is in fact a more "preliminary" crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful. [Emphasis added; para. 87.]And they explained that "the reason for punishing conspiracy before any steps are taken toward attaining the object of the agreement is to prevent the unlawful object from being attained and therefore to prevent this serious harm from occurring" (para 90 (emphasis added)). The serious harm referred to is not the conspiracy but the substantive offence. By criminalizing conspiracy, the legislature has intervened earlier along the continuum because of the increased danger represented by a cohort of wrongdoers acting in concert. See G. Cùtè-Harper, P. Rainville and J. Turgeon, Traitè de droit pènal canadien (4th ed. 1998), at pp. 661-63. 45 The question this Court must now answer is whether acts that precede a conspiracy are sufficiently proximate to a substantive offence to warrant criminal sanction. In Dungey, Dubin J.A. answered this question in the negative: Notwithstanding that the charge was one of conspiracy, the conduct of the respondent should be viewed as a step preparatory to committing the substantive offence of fraud and, in that sense, what he did would be too remote to constitute an attempt. [p. 98]In R. v. Chan (2003), 178 C.C.C. (3d) 269 (Ont. C.A.), Simmons J.A. was of a similar view: Strictly inchoate crimes are a unique class of criminal offences in the sense that they criminalize acts that precede harmful conduct but do not necessarily inflict harmful consequences in and of themselves. It can thus be appreciated that it could extend the criminal law too far to reach behind those acts and criminalize behaviour that precedes those acts. [para. 69]46 I agree with these observations. In Dungey, Dubin J.A. left the door open to a possible exception for substantive conspiracy precisely because, in that context, "the question of remoteness would not arise" (p. 99) since substantive conspiracies are themselves the legislative focus of the perceived harm, and not simply the risk of its possible commission. 47 Given that conspiracy is essentially a crime of intention, and "[c]riminal law should not patrol people's thoughts" (Dynar, at para. 169, per Major J.), it is difficult to reach further than the law of conspiracy already allows. Even if it were possible, it has never been the goal of the criminal law to catch all crime [TRANSLATION] "in the egg", as the Attorney General for Canada has put it in this case (Factum, at para. 58). In this sense, conspiracies are criminalized when hatched. And they can only be hatched by agreement. 48 This basic element of conspiracy - agreement - exposes the otherwise hidden criminal intentions of the parties to it. This demonstrates their commitment to a prohibited act. By contrast, the criminal law intervenes later in the progression from thought to deed where someone acts alone. Overt steps are then thought necessary to disclose and establish with sufficient certainty the criminal intention that is an essential element of the attempt to commit an offence. 49 By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission. Early intervention through the criminalization of conspiracy is therefore both principled and practical. 50 Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm. When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize. 51 Finally, though Mr. Dèry discussed a crime hoping eventually to commit it with others, neither he nor they committed, or even agreed to commit, the crimes they had discussed. The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them. V52 For these reasons, I would allow the appeal, set aside Mr. Dèry's convictions and order that acquittals be entered instead.
United States of America v.
Dynar [For the facts of the case, see supra.] (3) Could Mr. Dynar's Conduct Justify His Surrender on the Conspiracy Charge? 84 Mr. Dynar's extradition has also been requested on a charge of conspiracy. The warrant of committal issued by Keenan J. listed the two charges against Mr. Dynar that are the subject of the American indictment, and indicated that the conduct underlying both charges would constitute crimes in Canada. As a result, Mr. Dynar was extraditable on both. The conduct which would establish a prima facie case for the conspiracy charge is somewhat different from that which would establish the prima facie case for the attempt charge. Thus it is necessary to determine whether Mr. Dynar's conduct in combination with Mr. Cohen's could also constitute the crime of conspiracy in this country. The applicability of the defence of "impossibility" under Canadian criminal law is as much an issue with respect to the conspiracy charge as it is with regard to the attempt charge. 85 The issue is not whether Mr. Dynar's conduct can support a conviction for conspiracy (or for that matter for attempt), but only whether a prima facie case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada. Section 465(1)(c) of the Criminal Code makes it an offence to conspire with another person to commit any indictable offence, other than murder or false prosecution, which are governed by paragraphs (a) and (b) of the same subsection. There is no doubt that laundering proceeds of crime is an indictable offence in Canada. The question that must be decided, however, is whether a conspiracy can exist even where all the elements of the full indictable offence are not present because the circumstances are not as the accused believed them to be. (a) What is a Criminal Conspiracy? 86 In R. v. O'Brien, [1954] S.C.R. 666, at pp. 668-69, this Court adopted the definition of conspiracy from the English case of Mulcahy v. The Queen (1868), L.R. 3 H.L. 306, at p. 317: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties . . . punishable if for a criminal object. . . .There must be an intention to agree, the completion of an agreement, and a common design. Taschereau J., in O'Brien, supra, at p. 668, added that: Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement. [Emphasis in original.]87 In Papalia v. The Queen, [1979] 2 S.C.R. 256, at p. 276, Dickson J. (as he then was) described the offence of conspiracy as "an inchoate or preliminary crime". In setting out the necessary elements of the offence, he noted at pp. 276-77 that: The word "conspire" derives from two Latin words, "con" and "spirare", meaning "to breathe together". To conspire is to agree. The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v. R., at p. 168. The actus reus is the fact of agreement: D.P.P. v. Nock, at p. 66. The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of persons may be privy to it. Additional persons may join the ongoing scheme while others may drop out. So long as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy. [Emphasis added.]Conspiracy is in fact a more "preliminary" crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence. See s. 465(1)(c) of the Criminal Code. 88 A conspiracy must involve more than one person, even though all the conspirators may not either be identified, or be capable of being convicted. See for example O'Brien, supra; Guimond v. The Queen, [1979] 1 S.C.R. 960. Further, each of the conspirators must have a genuine intention to participate in the agreement. A person cannot be a conspirator if he or she merely pretends to agree. In O'Brien, Rand J. held at p. 670 that: a conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed; mere words purporting agreement without an assenting mind to the act proposed are not sufficient.89 There can be no doubt that a criminal conspiracy constitutes a serious offence that is properly extraditable. Indeed, it was so recognized in the 1976 treaty between Canada and the U.S. in force at the time of the sting operation. The crime has a long and malevolent history. Conspirators have plotted to overthrow monarchs from biblical times through the time of the Plantaganets and Tudors. Guy Fawkes conspired with others to blow up the parliament buildings. Today conspirators plot to carry out terrorist acts, to commit murders or to import forbidden drugs. Society is properly concerned with conspiracies since two or more persons working together can achieve evil results that would be impossible for an individual working alone. For example, it usually takes two or more conspirators to manufacture and secrete explosives or to arrange for the purchase, importation and sale of heroin. The very fact that several persons in combination agree to do something has for many years been considered to constitute "a menace to society": O'Brien, supra, at p. 669. In fact, the scale of injury that might be caused to the fabric of society can be far greater when two or more persons conspire to commit a crime than when an individual sets out alone to do an unlawful act. 90 As a result, it is obvious that the reason for punishing conspiracy before any steps are taken towards attaining the object of the agreement is to prevent the unlawful object from being attained, and therefore to prevent this serious harm from occurring. See Glanville Williams, Criminal Law —The General Part (2nd ed. 1961), at p. 710. It is also desirable to deter similar conduct in the future. Those who conspire to do something that turns out to be impossible betray by their actions a propensity and aptitude to commit criminal acts; and there is no reason to believe that schemers who are thwarted on one occasion will not be successful on the next. Thus, the rationale for punishing conspirators coincides with the rationale for punishing persons for attempted crimes. Not only is the offence itself seen to be harmful to society, but it is clearly in society's best interests to make it possible for law enforcement officials to intervene before the harm occurs that would be occasioned by a successful conspiracy or, if the conspiracy is incapable of completion, by a subsequent and more successful conspiracy to commit a similar offence. (b) Is Impossibility a Defence to Conspiracy? 91 By virtue of the "preliminary" nature of the offence of criminal conspiracy, the mere fact that money was not transferred to Mr. Cohen for laundering by Mr. Dynar would not preclude a finding that a conspiracy existed between them. Criminal liability will still ensue, as long as the agreement and the common intention can be proved. Does it make any difference to the potential liability of the conspirators that they could not have committed the substantive offence even if they had done everything that they set out to do? Put another way, should conspirators escape liability because, owing to matters entirely outside their control, they are mistaken with regard to an attendant circumstance that must exist for their plan to be successful? Such a result would defy logic and could not be justified. 92 Impossibility as a defence to a charge of criminal conspiracy has received comparatively little attention by courts or academic writers. Director of Public Prosecutions v. Nock, [1978] 2 All E.R. 654 (H.L.), is the leading English case which considered the applicability of the defence of impossibility in a charge of conspiracy. In that case, the conspiracy was found to consist of an agreement to produce cocaine on a particular occasion from a specific substance. The agreement was impossible to carry out because the substance chosen was incapable of producing cocaine. The impossibility of carrying out this agreement was the basis for the conclusion that the same distinction between factual and legal impossibility that we have criticized in the law of attempt ought to apply to the law of conspiracy. The respondent relies upon Nock, and urges the adoption of legal impossibility as a defence to criminal conspiracy in Canada. This submission cannot be accepted. 93 In England, Nock has been specifically overtaken by the Criminal Attempts Act 1981, s. 5, which now makes criminal liability for conspiracy possible where the accused are mistaken as to an attendant circumstance that is necessary to prove the full offence. Effectively, this precludes the defence of legal impossibility as understood in Nock, supra, but preserves the defence for "imaginary crimes". As we have seen, the latter term encompasses situations where individuals do something they believe contravenes the law when it does not. Thus, for example, in England it is not a crime to conspire to purchase Scotch whisky, because the purchase of that whisky is not a crime known to English law. 94 Section 465(1)(c) of the Canadian Criminal Code does not specifically state that criminal liability for conspiracy can ensue where the substantive offence is impossible to commit. However, even in the absence of such an explicit legislative direction, the analysis of the House of Lords in Nock should not be accepted. The case has been rightly subjected to both academic and judicial criticism, and to the extent that it is based on the same distinction between factual and legal impossibility that has been applied in the law of attempt, it too is conceptually untenable. 95 In England, the acceptance of legal impossibility as a defence to conspiracy in Nock was predicated on the adoption by the House of Lords of the same position regarding the law of attempt: see Haughton v. Smith, [1973] 3 All E.R. 1109. The House of Lords has now expressly overruled the Haughton decision in R. v. Shivpuri, [1986] 2 All E.R. 334. They did so on the basis that quite apart from the provisions of the Criminal Attempts Act 1981, the distinction between factual and legal impossibility is untenable in the law of attempt. The application of the distinction in Nock must now be questioned as well, even in the absence of legislative amendment. Accordingly, the desirability of using the Nock principles in Canada has been appropriately doubted by Cadsby Prov. Ct. J. in R. v. Atkinson, [1987] O.J. No. 1930. The New Zealand Court of Appeal has also rejected Nock, except perhaps in the case of "imaginary crimes": R. v. Sew Hoy, [1994] 1 N.Z.L.R. 257. 96 A number of Canadian academic authorities have also been justly critical of the use of the distinction between factual and legal impossibility in the law of conspiracy, and in particular, have criticized the Nock case for this reason. Most writers take the position that if the distinction between factual and legal impossibility is rejected in the case of attempt, it should a fortiori be rejected for conspiracy. Thus, for example, Colvin in Principles of Criminal Law, supra, at p. 358, indicates, in a discussion that deals primarily with the law of attempt, that he prefers the view that "impossibility of execution is never a defence to inchoate liability in Canada". Since this position is clear in the Criminal Code with regard to attempt, "there is no good reason to treat conspiracy and other forms of inchoate liability any differently". 97 Professor Stuart in Canadian Criminal Law, supra, at pp. 644-45, convincingly contends that the same rationale for rejecting the distinction between factual and legal impossibility in the law of attempt should apply to the law of conspiracy. He puts his position in this way (at p. 644): If conspiracy is considered, as it has been suggested that it should, as a preventive crime owing its existence to the fact that it is a step, even though a limited one, towards the commission of a full offence, it is difficult to see why the approach to impossibility should differ.98 According to Professor Alan Mewett and Morris Manning in Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 341, if it were not for the decision in Nock, the question as to whether impossibility should constitute a defence to the offence of conspiracy ought not to arise at all. In Nock, the House of Lords held that because the offence can never materialize, "[t]here was no actus reus because there was no act of agreeing to commit an offence". Mewett and Manning criticize this reasoning as unsound because "[i]t is wrong to think that there is something that can, in the abstract, be called an actus reus". It is the agreement that is the actus, and the intention to do the act that is unlawful (the mens rea) that turns the agreement into an actus reus, or a "guilty act". These authors would restrict the availability of the defence of impossibility to situations of "true" legal impossibility (which we have referred to as imaginary crimes), where persons conspire to do something that is not a crime known to law regardless of whether the facts are as the accused believe them to be. 99 Canadian courts have only rarely considered this issue. In R. v. Chow Sik Wah, [1964] 1 C.C.C. 313, the Ontario Court of Appeal, in a case involving conspiracy to commit forgery, held at p. 315 that "[i]n a prosecution for conspiracy a conviction may not be registered if the operation for the commission of which the accused allegedly conspired would, if accomplished, not have made the accused guilty of the substantive offence". The respondent obviously finds comfort in this case. 100 Although some of the language in Chow Sik Wah suggests a more general acceptance of the defence of legal impossibility in a case of conspiracy, the case was decided on a much narrower basis. There the substantive offence was defined as involving the making of a false document, knowing it to be false. The resolution of the case turned on the definition of "false document". Kelly J.A. held that the photograph of the false document was not itself a false document. Therefore, the crime could not be committed regardless of the intention of the accused. There was no issue as to mistaken belief regarding particular circumstances. The accused simply intended to do something which was not prohibited by law. In addition, Kelly J.A. found that the Crown had not established that the photograph was intended to be used to induce anyone to believe that the reproduced document was genuine. 101 Chow Sik Wah should only be accepted as authority for the proposition that impossibility can be a defence to a charge of conspiracy where the conspirators intend to commit an "imaginary crime". This approach to impossibility and conspiracy has also been taken in older cases dealing with economic conspiracies: see for example Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403, at p. 406, citing R. v. Whitchurch (1890), 24 Q.B.D. 420. 102 None of these authorities stands in the way of a conclusion that, from a purely conceptual perspective, the distinction between factual and legal impossibility is as unsound in the law of conspiracy as it is in the law of attempt. As we concluded in discussing impossible attempts, cases of so-called "legal" impossibility turn out to be cases of factual impossibility and the distinction collapses, except in cases of "imaginary crimes". Conspiracy to commit such fanciful offences of course cannot give rise to criminal liability. 103 Furthermore, like attempt, conspiracy is a crime of intention. The factual element—or actus reus—of the offence is satisfied by the establishment of the agreement to commit the predicate offence. This factual element does not have to correspond with the factual elements of the substantive offence. The goal of the agreement, namely the commission of the substantive offence, is part of the mental element—or mens rea—of the offence of conspiracy. 104 The conspiracy alleged in the case at bar involves the commission of an offence that requires knowledge of a circumstance as one of its essential elements. When a substantive offence requires knowledge of a particular circumstance, the Crown is required to prove a subjective element, which is best described as belief that the particular circumstance exists. The Crown is also required to prove an objective element, namely the truth of the circumstance. It is the presence of the objective circumstance that translates the subjective belief into knowledge or "true belief". 105 However, since the offence of conspiracy only requires an intention to commit the substantive offence, and not the commission of the offence itself, it does not matter that, from an objective point of view, commission of the offence may be impossible. It is the subjective point of view that is important, and from a subjective perspective, conspirators who intend to commit an indictable offence intend to do everything necessary to satisfy the conditions of the offence. The fact that they cannot do so because an objective circumstance is not as they believe it to be does not in any way affect this intention. The intention of the conspirators remains the same, regardless of the absence of the circumstance that would make the realization of that intention possible. It is only in retrospect that the impossibility of accomplishing the common design becomes apparent. 106 If the failure of a conspiracy as a result of some defect in the attendant circumstances were to be considered to constitute "legal" impossibility and as such a defence to a charge of conspiracy, the fact that the conspirators are not culpable becomes a matter of pure luck, divorced from their true intentions. This result is unacceptable. Rather it would be consistent with the law of conspiracy to hold that the absence of the attendant circumstance has no bearing on the intention of the parties, and therefore no bearing on their liability. 107 It has long been accepted that conspirators can be punished for their agreement (actus reus) and their intention to commit the offence (mens rea). This is true even though the police intervene to prevent the conspirators from committing the substantive offence which was the aim of the conspiracy. By the same token, it should make no difference to the culpability of the conspirators if the police intervene in a way that makes the offence impossible to commit because, for example, the money to be laundered is not derived from crime. The conspirators could still be properly convicted on the basis that the agreement to do the unlawful object is considered dangerous to society and reprehensible in itself. 108 This approach does not substitute a different mental element for the offence of conspiracy from that required for the substantive offence of money laundering. In those offences that require knowledge, the mental element is belief. Therefore, the subjective state of mind of a money launderer is the belief that the money is derived from an illicit source. Similarly, the subjective state of mind of the person who conspires with others to launder money is also the belief that the money is derived from an illicit source. For the substantive offence to be committed, the objective circumstance —the existence of actual proceeds of crime—must also exist. But this is not the objective element of the offence of conspiracy. The essential element of conspiracy is the existence of the agreement to put the intention of the conspirators into effect. 109 It follows from all that has been said above that a conspiracy to commit a crime which cannot be carried out because an objective circumstance is not as the conspirators believed it to be is still capable of giving rise to criminal liability in Canada. Legal impossibility cannot be invoked as a defence to the charge. (c) Application of These Principles to this Case 110 The only reason that the conspiracy alleged to exist between Mr. Dynar and Mr. Cohen was considered "impossible" was because one external circumstance—the existence of actual proceeds of crime—was absent. Yet, the absence of this circumstance is not a defence to a charge of conspiracy. 111 There is evidence that Mr. Dynar was a member of a conspiracy that included Mr. Cohen. On several occasions in the wiretapped conversations between Anthony and Mr. Dynar, Maurice Cohen was implicated as the intimate associate of Mr. Dynar in his money laundering operations. In the recorded conversations that took place between Mr. Cohen and Agent McCarthy in Buffalo, Mr. Cohen clearly indicated that he was working for Mr. Dynar and demonstrated a basic knowledge of the exchanges that took place between Mr. Dynar and Anthony. The very fact that Mr. Cohen showed up in Buffalo as arranged between Mr. Dynar and Anthony supports an inference that he and Mr. Dynar were acting in concert. 112 At a minimum, the evidence clearly supports the existence of an agreement to launder what the conspirators believed were the proceeds of crime. Furthermore, there is evidence that the agreement extended beyond the scheme that was being discussed in the "sting" operation. Mr. Dynar spoke of his operations as well-established, with worldwide affiliates, and of his ability to launder large sums of illicit money very quickly. Mr. Cohen demonstrated an intimate knowledge of the logistics of money laundering in Canada, which he indicated was a function of his association with Mr. Dynar. Finally, the appearance of Mr. Cohen in Buffalo, as arranged between Anthony and Mr. Dynar, was an overt act that suggested that Mr. Dynar's claims about his abilities, and about his association with Mr. Cohen, were not mere "puff" and exaggeration. It is reasonable to infer that Dynar's claims, pursuant to the agreement between Dynar and Cohen, were intended to be translated into action. 113 An RCMP officer, qualified as an expert in organized crime, testified to the interpretation of various references made by Mr. Dynar to the origin of the money. In the expert's opinion, Mr. Dynar was clearly under the impression that he would be laundering money derived from the drug trade. The evidence discloses that Mr. Cohen was under the same impression. This is demonstrated by his desire to ensure that he was not detected by the Canadian border officials while transporting the funds into Canada. It can therefore be said that both alleged conspirators had the requisite intention to commit the substantive offence of laundering money. 114 It is clear that the evidence presented demonstrated a prima facie case for extradition purposes, since it would warrant committing Mr. Dynar and Mr. Cohen for trial for conspiracy in Canada if their conduct had taken place here. Keenan J. was therefore correct in holding that Mr. Dynar was extraditable on both the charge of attempt to launder money, and conspiracy to launder money. * * * LRCC § 4(5) * * * MPC § 5.03(1), (5), (6) Chapter 11. Liability for Another’s ConductA. Concepts and Types of Derivative Liability* * * * * * MPC § 2.06(1)-(3), (6)(c) B. Complicity
R. v. Dunlop and Sylvester DICKSON, J.:—The appellants were twice tried and convicted on a charge of rape. The indictment alleges that on June 26, 1975, they did unlawfully have sexual intercourse with Brenda Ross without her consent. They were sentenced to serve six years in penitentiary. In an appeal taken following the second trial, the Manitoba Court of Appeal found error on the part of the trial Judge, but by a three to two majority sustained the conviction by applying s. 613(1)(b)(iii) {now s. 686(1)(b)(iii)} of the Code [37 C.C.C. (2d) 90]. It is from that judgment that the present appeal is taken. The factsA rather detailed recital of the facts is essential
to an understanding of the issues. In June, 1975,
Brenda Ross was 16 years of age. On the night of the
alleged offence, accompanied by a friend, Anne
McGibney, she went to the Waldorf Hotel in the City of
Winnipeg to listen to a band and drink beer. If you accept the evidence of Brenda Ross, and if after weighing all the evidence you come to the conclusion that you are satisfied beyond a reasonable doubt that the two accused did have sexual intercourse with Brenda Ross without her consent, then you may find them both guilty as charged.That is all the case was about. The Judge chose, however, to instruct the jury upon parties to an offence under s. 21 of the Code, and it is in this respect that the convictions are challenged. The general effect of s. 21 is to make equally culpable (i) the person who actually commits the offence; (ii) any person who aids or abets in committing the offence, and (iii) persons who form an intention in common to carry out an unlawful purpose leading to the commission of the offence.... Section 21(1) of the Criminal CodeThe second ground of appeal was set out in the formal
judgment of the Court of Appeal in this manner: 2. That the Learned Trial Judge erred in charging the Jury with respect to Section 21(1) of the Criminal Code, as there was insufficient evidence in law to make the Appellant ... a party to the offence....On s. 21(1) of the Code, the jury was instructed as follows: Secondly, I should also instruct you on the law relating to parties to an offence. Section 21(1) of the Criminal Code, reads as follows:Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. Thus, in an early work, Foster’s Crown Law, p.350, we read: ... in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary, and therefore if A. happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoureth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behaviour of his, though highly criminal, will not of itself render him either principal or accessory.The leading case of R. v. Coney (1882), 8 Q.B.D. 534, decided that non-accidental presence at the scene of the crime was not conclusive of aiding and abetting. The accused were present at a prize fight, then illegal, though taking no part in the management of the fight. It did not appear that the accused said or did anything. The Chairman of the Quarter Sessions directed the jury that, prize fights being illegal, all persons who went to a fight to see the combatants strike each other, and being present when they did so, were guilty of assault unless they were casually passing by. If they stayed at the place, they encouraged it by their presence although they did not say or do anything. Eight of the 11 Judges hearing the case reserved were of the opinion that the direction was not correct. Two passages from the judgment of Cave, J., at p. 539 bear repeating: Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon.Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is not accidental it is evidence, but no more than evidence, for the jury. Hawkins, J., in a well-known passage had this to say, pp. 557-8: In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, on non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting....The case of R. v. Salajko, [1970]1 C.C.C. 352, [1970]1 O.R. 824, 9 C.R.N.S. 145 (Ont. C.A.), is like the instant case in many respects. A girl was raped by 15 young men in a lonely field. Three were charged. Two of these were identified as having had intercourse with the girl. She admitted, however, that the third accused, Salajko, though seen to be near the girl with his pants down while she was being raped by others, did not have intercourse with her. The Crown placed its case against him on s. 21(1)(b) and (c) of the Criminal Code. One might be forgiven for thinking that it was open to the jury to infer encouragement by conduct, but the Ontario Court of Appeal thought otherwise. Chief Justice Gale, delivering the judgment of the Court, stated that in the absence of evidence to suggest something in the way of aiding, or counselling, or encouraging on the part of the accused with respect to that which was being done by the others, there was simply no evidence upon which a jury could properly arrive at a verdict of guilty against the particular accused. The learned Chief Justice also found error in the trial Judge’s charge which seemed to indicate that a person could abet another in the commission of an offence if, knowingly, he stood by while the offence was being committed. Finally, there are the cases of R. v. Black, [1970] 4 C.C.C. 251, 10 C.R.N.S. 17, 72 W.W.R. 407, and R. v. Clarkson, [1971] 3 All E.R. 344. The victim in Black’s case was conveyed to a clubhouse where he was subjected to various sordid indignities. Many of the accused took an active part in torturing the victim while others stood around laughing and yelling. The British Columbia Court of Appeal confirmed the convictions, being of the view that the spectators furnished encouragement to the perpetrators of the outrages and their mere presence in the circumstances of the case ensured against the escape of the victim. There was thus something more than “mere presence”, as in R. v. Coney, supra. Most important, the trial Judge directed the jury in language drawn from the judgment of Hawkins, J., in Coney and reviewed the evidence relating to the presence of the accused in clear terms. In contrast to R. v. Black isthe case of R. v. Clarkson, a decision of the Court Martial Appeal Court. A girl was raped in a room in a barracks in Germany by a number of soldiers. Another group of soldiers clustered outside the door and later “piled in” to the room. They remained there for a considerable time while the girl was raped. There was no evidence that the appellants had done any physical act, or uttered any word which involved direct physical participation or verbal encouragement. There was no evidence that they touched the girl, or did anything to prevent others from assisting her or to prevent her from escaping. The Appeal Court held that it was not enough that the presence of the accused, in fact, gave encouragement. “It must be proved that the accused intended to give encouragement; that he wilfully encouraged” (p. 347). There must be, the Court held, an intention to encourage and encouragement in fact. The convictions were quashed. The case at barIn the case at bar I have great difficulty in finding
any evidence of anything more than mere presence and
passive acquiescence. Presence at the commission of an
offence can be evidence of aiding and abetting if
accompanied by other factors, such as prior knowledge
of the principal offender’s intention to commit the
offence or attendance for the purpose of encouragment.
There was no evidence that while the crime was being
committed either of the accused rendered aid,
assistance or encouragement to the rape of Brenda
Ross. There was no evidence of any positive act or
omission to facilitate the unlawful purpose. One can
infer that the two accused knew that a party was to be
held, and that their presence at the dump was not
accidental or in the nature of casual passers-by, but
that is not sufficient. A person cannot properly be
convicted of aiding or abetting in the commission of
acts which he does not know may be or are intended: per
Viscount Dilhorne in Director of Public
Prosecutions for North Ireland v. Maxwell, [1978]3
All E.R. 1140 at p. 1144 (H.L.). One must be able to
infer that the accused had prior knowledge that an
offence of the type committed was planned, i.e.,that
their presence was with knowledge of the intended
rape. On this issue, the Crown elicited no evidence.
R. v. Popen The judgment of the Court was delivered by Where D has a right to control the actions of another and he deliberately refrains from exercising it, his inactivity may be a positive encouragement to the other to perform an illegal act, and, therefore, an aiding and abetting. A husband who stands by and watches his wife drown their children is guilty of abetting the homicide. His deliberate abstention from action gives encouragement and authority to his wife's act. If a licensee of a public house stands by and watches his customers drinking after hours, he is guilty of aiding and abetting them in doing so. Again in Du Cros v. Lambourne, [[1907] 1 K.B. 40] it was proved that D's car had been driven at a dangerous speed but it was not proved whether D or E was driving. It was held that, nevertheless, D could be convicted. If E was driving she was doing so in D's presence, with his consent and approval; for he was in control and could and ought to have prevented her from driving in a dangerous manner. D was equally liable whether he was a principal or an abettor. We refer also to the judgment of this Court in R.
v. Halmo, [1941] 76 C.C.C. at p. 116. In that
case this Court upheld the conviction of the appellant
on a charge of aiding, abetting, counselling and
procuring one Mayville to drive a motor vehicle
recklessly or in a manner dangerous to the public
contrary to section 285(6) (as it then existed) of the
Criminal Code. The appellant was the owner of a car
which was being driven by Mayville. Robertson C.J.O.
after referring to a number of authorities said at p.
120: These cases and many others establish the principle that the conduct of the accused, to constitute aiding and abetting, need not be some active participation at the moment the crime is committed. Here the appellant, the owner of the motor-car, had placed it in the hands of Mayville to drive, as his servant, he himself also riding in the car. He was there when Mayville, in an intoxicated condition, resumed driving on leaving the restaurant at Chatham, and he then permitted Mayville to continue to drive in spite of early and continued evidence of his incapacity. In the above cases, the person having a right and a
duty to control the actions of another, was present
when the illegal acts occurred.
Section 202 {now s. 219} of the Code reads:
Section 205 {now s. 222}, in part reads:
18 We are disposed to think
that the words "necessaries of life" in section 197
may be wide enough to include not only food, shelter,
care, and medical attention necessary to sustain life,
but also necessary protection of a child from harm. It
is, however, not necessary to decide that question
since, in any event, 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. In our
opinion such parent is criminally liable under the
Code for failing to discharge that duty in
circumstances which show a wanton or reckless
disregard for the child's safety, where the failure to
discharge the legal duty has contributed to the death
of the child or has resulted in bodily harm to the
child....
R. v. Dooley
[Appeal by the accused Anthony and Marcia Dooley from convictions for second degree murder, and an appeal by Marcia from sentence. She had been sentenced to life imprisonment without eligibility for parole for 18 years, based on the trial judge's findings that she had struck the fatal blow and had inflicted the vast majority of the prior abuse. The appellants were spouses and had been charged with murdering Anthony's seven-year-old son. Post-mortem medical examinations revealed extensive injuries sustained through prior abuse.] The judgment of the Court was delivered by 4 It was
accepted at trial that one of the appellants caused
Randal's death. Each blamed the other. The perpetrator
of the fatal assault was guilty of at least
manslaughter (causing death by means of an unlawful
act contrary to s. 222(5)(a)). It was also clear on
the evidence that the parent who did not actually
inflict the injury that caused Randal's death was
guilty of at least manslaughter for failing to protect
Randal from the assaultive parent and/or failing to
obtain medical care for Randal the night he died
(criminal negligence causing death contrary to s.
220). As I read the trial record, the appellants'
liability for manslaughter, through their failure to
provide medical assistance to Randal on the day he
died, was beyond any realistic debate....
R. v. Logan LAMER C.J.C.:— FactsThe two respondents, Sutcliffe Logan Jr. and Warren
Leroy Johnson, together with two other co-accused,
Hugh Logan (the brother of respondent Logan) and Clive
Brown, were all charged with a number of offences
arising from a series of robberies in the Toronto
area. This appeal pertains only to the charges against
the two respondents for attempted murder which
resulted from an incident during one of the robberies. Relevant statutory provisionCriminal Code, s. 21: 21.(1) Every one is a party to an offence who... IssuesThe following constitutional questions were stated by
the Chief Justice: AnalysisR. v. VaillancourtThe appellant is challenging the constitutionality of
s. 21(2) in general and, in particular, of the
objective component of the section (“ought to have
known”). However, the Court of Appeal, quite
correctly, did not declare the objective component of
s. 21(2) inoperative for all offences. They dealt
specifically with the operation of the provision in
relation to the offence of attempted murder and the
possibility that a party to an attempted murder could
be convicted upon proof of objective intent, whereas a
conviction of the principal would require proof of
subjective intent. More generally, as a basis for
their decision, the court determined that it is a
principle of fundamental justice that a party to any
offence cannot be found guilty of the offence based on
a lower standard of requisite mens rea than
that required for convicting the principal. Requisite mens rea for conviction pursuant to s. 21(2)Therefore, the question whether a party to an offence
had the requisite mens rea to found a
conviction pursuant to s. 21(2) must be answered in
two steps. First, is there a minimum degree of mens
rea which is required as a principle of
fundamental justice before one can be convicted as a
principal for this particular offence? This is an
important initial step because if there is no such
constitutional requirement for the offence, the
objective component of s. 21(2) can operate without
restricting the constitutional rights of the party to
the offence. Secondly, if the principles of
fundamental justice do require a certain minimum
degree of mens rea in order to convict for
this offence, then that minimum degree of mens
rea is constitutionally required to convict a
party to that offence as well. Section 1 analysis...Given that a minimum degree of mens rea
(subjective foresight) is constitutionally required to
convict a principal of the offence of attempted
murder, the restriction of s. 7 in this case is in
convicting, through the operation of s. 21(2), a
non-principal who does not have that same degree of mens
rea. It is not the legislative objective of s.
21(2) as a whole which this court must scrutinize, but
only the legislative objective of that portion of s.
21(2) that restricts the accused’s rights under s. 7
of the Charter in issue in the present case. This
differential treatment of parties and principals
charged with attempted murder is the restriction which
must undergo the s. 1 test. ConclusionI would, therefore, as did the Court of Appeal,
declare inoperative the words “or ought to have known”
when considering under s. 21(2) whether a person is a
party to any offence where it is a constitutional
requirement for a conviction that foresight of the
consequences be subjective, which is the case for
attempted murder. Once these words are deleted, the
remaining section requires, in the context of
attempted murder, that the party to the common venture
know that it is probable that his accomplice would do
something with the intent to kill in carrying out the
common purpose. L’HEUREUX-DUBÉ J.:—Having had the
advantage of the reasons of my colleague, Chief
Justice Lamer, and given my position in R. v.
Martineau [ante, p. 353] and R. v. Rodney
[post, p. 408], released concurrently, I
cannot completely agree either with his reasons or
with his answers to the constitutional questions
although I concur in his ultimate disposition of this
appeal. 222. Everyone who attempts by any means to commit murder is guilty of an indictable offence and liable to imprisonment for life.As this court held in R. v. Ancio (1984), 10 C.C.C. (3d) 385, 6 D.L.R. (4th) 577, [1984] 1 S.C.R. 225, a conviction for attempted murder requires proof of the specific intent to kill. No lesser mens rea will suffice. Parliament has decided to create a distinct offence for attempted murder, recognizing that the results of criminal acts are not to be ignored. The death of a victim renders a standard of objective foreseeability constitutionally permissible. When the attempt does not result in death, logic as well as principles of fundamental justice enshrined in the Canadian Charter of Rights and Freedoms, dictate that the specific intent to commit the attempted murder crime must be conclusively proven. As I said in Martineau [ante, p. 375]: If both components, actus reus as well as mens rea, are not considered when assessing the level of fault attributable to an offender, we would see manslaughter and assault causing bodily harm as no more worthy of condemnation than an assault. Mere attempts would become as serious as full offences.When mere attempts are at issue, mens rea assumes a dominant role. The rationale for invoking a test of subjective foresight for attempted murder does not stem from the crime’s relationship to the crime of completed murder, but rather from its connection to crimes of attempt generally. Therefore, I do not choose to follow my colleague’s dialectic on the impact of fundamental justice, or of constitutional compulsion upon parliamentary sovereignty when legislating with respect to these crimes. The motivation for requiring subjective foresight for attempt crimes radiates from the primacy of the mens rea component, not from any potential penalties or social stigma that might attend conviction for the completed offence. Part of the policy justification for enacting s. 213(a), invoked in Martineau, was that the act of killing cannot be disassociated from the mental element that motivated it. An exclusive examination of intent would ignore the fact that someone has been unlawfully killed. In the aftermath of such a killing it is appropriate to ask whether such a killing was objectively foreseeable, given the circumscribed list of predicate offences under s. 213, coupled with the intent to inflict bodily harm. For mere attempts, no other unlawful act is necessary. Intent is what is being punished by s. 222, not the act itself. The mens rea criteria for the full offence of murder and mere attempt are necessarily different. As McIntyre J., for the court, held in Ancio at pp. 401-2 C.C.C., pp. 593-4 D.L.R.: Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent.After citing this authority, the Ontario Court of Appeal concluded at p. 400 C.C.C., p. 104 D.L.R.: ... in so far as s. 21(2) permits a conviction of a party for the offence of attempted murder on the basis of objective foreseeability, a lesser degree of mens rea than is required for the principal, it is contrary to the principles of fundamental justice. Nor do we think that this departure from the principles of fundamental justice can be saved by s. 1 of the Charter.The solution adopted by the Court of Appeal, at p. 401 C.C.C., p.105 D.L.R., was to read down the provision as follows: Thus, on a charge of attempted murder, where s. 21(2) is invoked to determine the liability of a party to the offence, the words of s. 21(2), “ought to have known”, must be held to be inoperative and cannot be resorted to by the trier of fact to determine the guilt of such an accused person.The words “ought to know” are not to be read out of the section in all cases. This measure of objective foreseeability is certainly appropriate when the mens rea of the principal can be ascertained according to an objective standard as well. For example, a party to a completed murder can be convicted under s. 21(2) in its present form, if, as in Martineau and Rodney, the stringent criteria of s. 213(a), including the objective foreseeability of death, have all been proven. That is precisely the “guaranteed minimum” degree of mens rea prescribed by this court in R. v. Vaillancourt, supra. However, in the present case no killing took place. The crime was one for which the specific intent of the principal had to be shown. In those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard. In this regard the actus reus component of the offence cannot be ignored. Policy considerations addressed in Martineau justify treating completed killings more harshly than attempted ones. If someone who attempts to kill cannot be convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable. Therefore, I would dismiss this appeal.
R. v. Kirkness
[Snowbird and Kirkness broke into a house. As
Snowbird sexually assaulted the inhabitant, an elderly
woman, Kirkness placed a chair against the front door.
After the assault, Snowbird strangled the victim to
death, even though Kirkness told him to stop.]
R. v. Hibbert [for the facts of the case, and further analysis, see supra] The judgment of the Court was delivered by [T]he person aiding or abetting the crime [of murder] must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not.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): In this case, Jackson [the principal] committed the offence of murder. It was open on the evidence for the jury to find that Davy aided and abetted him in that offence, and is guilty under s. 21(1)(b) and (c) of the Criminal Code. If he possessed the necessary mens rea for murder he could be guilty of murder.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.
R. v. Briscoe The judgment of the Court was delivered by
The person who provides the gun, therefore, may be
found guilty of the same offence as the one who pulls
the trigger. The actus reus and mens rea for aiding or
abetting, however, are distinct from those of the
principal offence.
The same rationale applies regardless of the
principal offence in question. Even in respect of
murder, there is no "additional requirement that an
aider or abettor subjectively approve of or desire the
victim's death" (Hibbert, at para. 37
(emphasis deleted)).
The same analysis applies where it is alleged that
the accused aided a perpetrator in the commission of a
first degree murder that was planned and deliberate.
The accused is liable as an aider only if the accused
did something to assist the perpetrator in the planned
and deliberate murder and if, when the aider rendered
the assistance, he did so for the purpose of aiding
the perpetrator in the commission of a planned and
deliberate murder. Before the aider could be said to
have the requisite purpose, the Crown must prove that
the aider knew the murder was planned and deliberate.
Whether the aider acquired that knowledge through
actual involvement in the planning and deliberation or
through some other means, is irrelevant to his or her
culpability under s. 21(1).
23 It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:
24 Professor Don Stuart makes
the useful observation that the expression "deliberate
ignorance" seems more descriptive than "wilful
blindness", as it connotes "an actual process of
suppressing a suspicion". Properly understood in this
way, "the concept of wilful blindness is of narrow
scope and involves no departure from the subjective
focus on the workings of the accused's mind" (Canadian
Criminal Law: A Treatise (5th ed. 2007), at p.
241). While a failure to inquire may be evidence of
recklessness or criminal negligence, as for example,
where a failure to inquire is a marked departure from
the conduct expected of a reasonable person, wilful
blindness is not simply a failure to inquire but, to
repeat Professor Stuart's words, "deliberate
ignorance". R. v. Hughes The judgment of the Court was delivered by [26] I have grounded the Count 1 to 5 findings of guilty against the accused on Code s. 21(1)(a). He was a s. 21(1)(a) actual committer. The fact that on the evidence before me there was another s. 21(1)(a) actual committer - the driver of the BMW - is, in law, of no moment. Another way to put it is that if two people participate directly in the actus reus of an offence, each of them is a s. 21(1)(a) actual committer of the offence if the mens rea required for conviction is established by the Crown: (citations omitted.)75 Section 21(1) provides:
76 In this case, there is no
suggestion that either s. 21(1)(b) or (c) is
applicable. ... for purposes of liability under s. 21(1)(a) of the Code, ... agreement to carry out a common purpose is not necessary. The question is whether there is an indication of common participation, not common purpose.78 None of the foregoing articulations of the law supports the appellant's submission that an additional nexus such as a "race" or a "chase" was necessary to support the trial judge's conclusion that under s. 21(1)(a), the appellant was a principal offender or, as he described it, an actual committer. The fact that a nexus was found in the cases to which the appellant referred does not make it a requirement in every case. [An] agreement to carry out a common purpose is not necessary. 79 In my opinion, no issue can be taken with the trial judge's conclusion that an intention in common is not demanded for the appellant's criminal liability to be founded on s. 21(1)(a).
R. v. J.F. The judgment of the Court was delivered by 1 M. ROSENBERG J.A.:—The appellant appeals in writing from his conviction and sentence for conspiracy to commit murder. The appellant was tried as a youth by a court composed of Van Melle J. and a jury. He was sentenced to an 18 month custody and supervision order. ... 3 ... In the fall of 2002, two sisters agreed to kill their mother. While the older sister, R, first came up with the idea, the younger sister, T, joined in the agreement. At different times, the sisters may have abandoned the plan, but it was clear that by January 2003, they had a settled intention to kill their mother. The two sisters were ultimately convicted of first degree murder. The motive for the murder was the deceased's behaviour as a result of her alcoholism. At the time the sisters were 16 and 15 years of age. The appellant, then 15 years of age, was a close friend of T and they were dating prior to their arrests.... 11 Although the Crown's main position was that the appellant was a principal in the conspiracy to commit murder, Crown counsel asked the trial judge to leave liability on the basis that the appellant was a party to the conspiracy under s. 21(1) of the Criminal Code. The trial judge agreed to do so, feeling that she was bound by decisions of this court. ... 12 Later in the charge, the trial judge reviewed the position of the Crown, which set out the basis for its theory of party liability: It is the position of the Crown that [the appellant] can be convicted of conspiracy as either a full partner like [T] and [R] or if he was a party to the conspiracy. He is a party to the conspiracy by aiding, which means assisting, or abetting, which means encouraging [T] and [R] in their plan to murder—in the plan to murder [the deceased].13 The appellant raises a number of grounds of appeal concerning these directions: (i) There is no offence known to law of party to conspiracy. (ii) Alternatively, while a person may be a s. 21(1) party to conspiracy under subpara. (c) by encouraging the conspiracy, one cannot be a party under subpara. (b) by aiding the conspiracy.... 14 Appellate courts in this and other provinces have held that s. 21(1) of the Criminal Code applies to conspiracy to commit a substantive offence, such as murder. In Ontario, the seminal case is R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.).... 18 In R. v. Vucetic (1998), 129 C.C.C. (3d) 178 (Ont. C.A.), this court again considered party liability for a conspiracy. In that case, it was argued, as here, that a person could not be a s. 21(1) party to a conspiracy. The court disagreed, holding as follows at para. 6: Despite the able argument presented by counsel for the appellant, we are not persuaded that we should, or could, ignore the clear statement of the law in R. v. McNamara, albeit as obiter, that a person may become a party to the criminal offence of conspiracy (as opposed to a participant in the conspiracy) by virtue of s. 21 of the Code; R. v. McNamara, supra, at 453. 19 The appellant seeks to avoid the binding effect of McNamara and Vucetic by reference to the subsequent decision of the Supreme Court of Canada in R. v. Dèry, [2006] 2 S.C.R. 669, where the court held that there was no offence known to law of attempted conspiracy. In Dèry, the Supreme Court of Canada agreed with this court's decision in R. v. Dungey (1979), 51 C.C.C. (2d) 86 (Ont. C.A.), which had held to the same effect; that one cannot be convicted of attempt to conspire to commit a substantive offence. Dèry and Dungey turn on the issue of remoteness. The crime of conspiracy is more preliminary than the crime of attempt and acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. At paras. 49 and 50 of Dèry, Fish J. speaking for the court, explained the rationale for the crimes of conspiracy and attempt and why that rationale did not justify a crime of attempt to conspire: 20 In my view, the holding in Dèry does not warrant reconsideration of this court's decisions in McNamara and Vucetic. Party liability for conspiracy does not suffer from the problem of remoteness identified in Dèry with respect to attempt to conspire. A person can be liable as a s. 21(1) party to conspiracy only if the Crown proves an agreement by at least two other people to commit a substantive offence. If no agreement materialized, the alleged party's conduct would be at most an attempt to conspire and would fail on the holding in Dèry. If, however, the accused is a party to the conspiracy, for example, by either encouraging someone to join the conspiracy or aiding or abetting the furtherance of its object (a matter I will explore below), the risk of commission of the criminal offence has sufficiently materialized to warrant criminal sanction. ... 23 I can see no principled basis for limiting party liability to abetting to the exclusion of aiding. Aiding a conspiracy within the meaning of s. 21(b) is no less harmful than abetting. Liability for aiding a conspiracy would require proof that the accused did or omitted to do something for the specific purpose of aiding another to commit the offence of conspiracy. That degree of mens rea imports a sufficient level of fault to warrant criminal liability. As pointed out in McNamara, it would not be enough that the accused's acts had the effect of aiding the conspiracy, the accused must also have the requisite mens rea. 24 The appellant submits, however, that even if a person can be liable as a party to conspiracy either for aiding or abetting, liability is limited to aiding or abetting the formation of the conspiracy or to aid or abet someone to join the conspiracy. This is the position taken by the Alberta Court of Appeal in R. v. Trieu (2008), 429 A.R. 200 (C.A.). In that case, the court noted that the essence of the conspiracy is the agreement and that the crime is carried out whether or not the unlawful object is achieved. The court would therefore limit liability to acts for the purpose of aiding or abetting the actual formation of the agreement. ... 26 Again, I can see no basis in principle for refusing to follow McNamara and Vucetic on this issue. I appreciate the point made in Trieu that the essence of a conspiracy is an agreement, but it is not an agreement in the abstract; it is an agreement to attain a common goal, a particular unlawful object. In R. v. Cotroni, [1979] 2 S.C.R. 256 at p. 277, Dickson J. speaking for the majority adopted the following from R. v. Meyrick and Ribuffi (1929), 21 Cr. App. R. 94 (C.C.A.), at p. 102: It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.27 Admittedly, including party liability for aiding or abetting pursuit of the unlawful object blurs the line between the conspiracy and the substantive offence. The distinction, however, is that party liability for conspiracy requires proof of an agreement, there is no requirement of proof that the unlawful object was attained. Liability as a party to the substantive offence requires proof that the substantive offence was committed. Thus, in this case, the appellant could be guilty of conspiracy if he aided or abetted the sisters within the meaning of s. 21(1) to pursue their unlawful object, even if they ultimately did not carry out the plan or the deceased had survived the attempt on her life. C. Abandonment
R. v. Ball The judgment of the Court was delivered by Curiously, Canadian authority is lacking on the question of whether an aider and [sic] abettor can raise the defence that he abandoned his purpose. This argument has succeeded in respect of the doctrine of common intent under section 21(2) [see R. v. Whitehouse (1940), 75 C.C.C. 65; [1941] 1 D.L.R. 683 "Whitehouse"] and should be equally applicable here. There is abundant English authority for such a defence [R. v. Becerra (1975) 62 Crim. App. R. 212 (C.A.); R. v. Grundy [1977] Crim. L. Rev. 543 (C.A.)], provided that the accused took effective steps to attempt to prevent the commission of the offence.45 In Whitehouse the accused was a party to a robbery in which the victim was struck and killed by one of Whitehouse's accomplices. Whitehouse argued that he could not be found liable under s. 21(2) of the Code for murder as he had run off before the killing occurred. In dealing with that submission, Sloan J.A. said this at para. 7: Can it be said on the facts of this case that a mere change of mental intention and a quitting of the scene of the crime just immediately prior to the striking of the fatal blow will absolve those who participate in the commission of the crime by overt acts up to that moment from all the consequences of its accomplishment by the one who strikes in ignorance of his companions' change of heart? I think not. After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is "timely communication" must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.... 47 Beyond the question of what is required to abandon one's role as an aider or abettor or party under s. 21(1), it seems logical that a person who commits a crime as a co-perpetrator (in the rare case where it cannot be said that he or she aided or abetted the others) should be able to argue that he is responsible for whatever occurred during the time of his involvement but not for what occurred after his involvement ended. 48 Those questions need not be explored on this appeal. The evidence in this case supports the conclusion that Mr. Ball ended his part in the assaults after the damage had been done. In his statement to the police Mr. Ball described his physical engagement with Ian Johnston and how he moved back and over to the area where Bradley Johnston was being attacked at the same time as Mr. Rosborough continued to strike Ian Johnston. Mr. Ball followed that description with this statement: And then as I started to walk over there I see Don back hand the guy with the orange hair and Chris pulling on Paul to get him off and then I got up and I was saying stop too and then Paul got off and then that was the end of it the two guys walked the other way and everyone else walked the other way.49 In my view this evidence does not demonstrate that Mr. Ball ended his involvement in the assaults before Bradley Johnston might have been fatally injured. It does show that after or at the same time Bradley Johnston was struck by Mr. Clarke for the last time, Mr. Ball believed that there had been enough violence and that he called, as did others, for the fight to end. This cannot amount to an abandonment no matter how the argument is put.
* * * R. v. Gonzague The judgment of the court was delivered by Martin J.A. (orally): 1
The appellant appeals from his conviction by the
verdict of a general sessions jury on an indictment
alleging that he: 422. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel, procure or incite other persons to commit offences, namely, 9
It was an offence at common law to solicit or incite
another person to commit either a felony or a
misdemeanour and s. 422(a) merely codifies the common
law rule. The word "procure" in the context in which
it is used in s. 422 means to instigate, persuade or
solicit. The common law offence of incitement (or solicitation) is committed when one person 'counsels, procures or commands' another to commit a crime whether or not the other actually commits it. (If he commits it the inciter will, of course, be an accessory and will normally be charged as such; but on a charge of incitement it is no defence to show that the crime was actually committed.)11 The word "procure", which I have indicated is equivalent to incite, does not necessarily mean that the inciter must originate or initiate the transaction and a person may be convicted of incitement although the plan originated with the party alleged to have been incited: see Glanville Williams, Criminal Law (The General Part), 2nd ed. (1961), at p. 612, para. 195. He also states in his Textbook of Criminal Law, at p. 310: A person who has incited a crime can still (in general) escape complicity in it if he expressly and clearly countermands the crime or withdraws his assent before it is committed, but he will remain liable for any previous incitement, as an inchoate offence. Annotation (by Allan Manson): ... Martin J.A. [ruled] that the defence of
abandonment is not available with respect to the
offence of counselling another to commit an offence
not subsequently committed. In his view, the offence
is complete when the initial solicitation is made with
the requisite intention and any renunciation or
abandonment of intention after that point affords no
defence. Relying heavily on Glanville Williams, Criminal
Law (The General Part), 2nd ed. (1961), and Textbook
of Criminal Law (1978), Martin J.A. accepted
that a renunciation of intention could apply to sever
the liability of a counsellor as a party to the
subsequent offence (s. 22 of the Criminal Code, R.S.C.
1970, c. C-34), but rejected the notion of abandonment
for the offence of counselling (s. 422). Thus, as far
as the defence of abandonment is concerned,
counselling is placed in the same category as its
related inchoate offences of attempt and
conspiracy....
* * * REPPY, J. Defendant was charged in an information with
attempted burglary (Pen. Code, §§ 664, 459).... * * * StGB § 24 * * * MPC §§ 2.06(6)(c), 5.01(4), 5.02(3), 5.03(6) * * * N.Y. Penal Law § 40.10 Renunciation. 1. In any prosecution for an offense, other than an
attempt to commit a crime, in which the defendant's
guilt depends upon his criminal liability for the
conduct of another ..., it is an affirmative defense
that, under circumstances manifesting a voluntary and
complete renunciation of his criminal purpose, the
defendant withdrew from participation in such offense
prior to the commission thereof and made a substantial
effort to prevent the commission thereof. D. Vicarious Liability (Respondeat Superior)
R. v. Hawinda Taverns Ltd. APPEAL from a conviction for an offence against the Liquor
Licence Act (Ont.). “We now turn to the cases in which knowledge has been imputed to a licensee because of the knowledge of his manager or servant. It is unnecessary to go through them all because the principle which applies was laid down, not for the first time, in Linnett v. Metropolitan Police Comr. ([1946] 1 All E.R. 380). All the cases on the subject were quoted and, in giving judgment, I said ([1946] 1 All E.R. 382):A quotation also from an article in the Modern Law Review, the issue of July 1954, vol. 17, No. 4, at p. 295, might be useful: “A glance at the avalanche of new offences created during the past decade by statute and regulation reveals the frequent resort by the legislature to such epithets as ‘knowingly,’ ‘permitting,’ ‘allowing,’ and ‘suffering,’ or such double-barrelled expressions as ‘knowingly suffers,’ ‘knowingly permits,’ or ‘wilfully suffers or permits.’ Space does not permit a full analysis of the cases in which one or other of these words or phrases has been the subject of interpretation by the courts, but it can be said with confidence that the general consensus of judicial opinion deems it necessary in such cases for mens rea, in the form of knowledge of all the elements constituting the prohibited act or conduct, to be proved.” Therefore, the appeal is allowed and the conviction quashed without costs. There will also be the usual order for refund or repayment of any monies paid in or deposited by the accused for costs or otherwise. Appeal allowed. E. Corporate Liability
1. Statutory
definitions of personhood Canada Interpretation
Act R.S.C., 1985, c. I-21 General
definitions S.
35 (1)
In every enactment, … person / personne: “person”,
or any word or expression descriptive of a person,
includes a corporation. corporation / personne morale: “corporation” does
not
include a partnership that is considered to be a
separate legal entity under provincial law India The Indian Penal Code, 1860 Ch. II.
General Explanations S. 6.
Definitions in the Code to be understood subject to
exceptions … S. 11.
"Person" – The word "person" includes any Company or
Association or body of persons, whether incorporated or
not.
South
Africa Close Corporations Act, 1984 (Act
No. 69 of 1984) P. 1, s. 2:
Formation and juristic personality of close
corporations … (2)
A corporation formed in accordance with
the provisions of this Act is on registration in
terms of those provisions a juristic person and
continues, subject to the provisions of this Act,
to exist as a juristic person notwithstanding
changes in its membership until it is in terms of
this Act deregistered or dissolved. … (4) A
corporation shall have the capacity and powers of
a natural person of full capacity in so far as a
juristic person is capable of having such capacity
or of exercising such powers.
California
Business
& Professions Code Department
of
Consumer Affairs – Consumer Affairs – General
Provisions and Definitions S.
302. As
used in this chapter, the following terms have the
following meanings: … (d)
"Person" means an individual, partnership,
corporation, limited liability company,
association, or other group, however organized. (e) "Individual"
does not include a partnership, corporation,
association, or other group, however organized.
Haw. Rev. Stat. Hawaii Penal Code Codification –
Preliminary Provisions § 701-118: General
definitions. In this Code, unless a different meaning
plainly is required: … (7) "Person,"
"he," "him," "actor," and "defendant" include any
natural person, including any natural person whose
identity can be established by means of scientific
analysis, including but not limited to scientific
analysis of deoxyribonucleic acid and fingerprints,
whether or not the natural person's name is known, and,
where relevant, a corporation or an unincorporated
association; …
N.Y. Penal Law § 10.00 –
Definitions of terms of general use in this
chapter. Except where different meanings are
expressly specified in subsequent provisions of
this chapter, the following terms have the
following meanings: … 7. "Person"
means a human being, and where appropriate, a
public or private corporation, an unincorporated
association, a partnership, a government or a
governmental instrumentality. §
125.05
– Homicide, abortion and related offenses;
definitions of terms. The following definitions
are applicable in this article: … 1. "Person,"
when referring to the victim of a homicide, means
a human being who has been born and is alive.
New York Central and Hudson River Railway Co. v. United
States
Supreme
Court of the United States 212
U.S. 481 (1909) MR.
JUSTICE DAY delivered the opinion of
the court: — This is
a writ of error to the Circuit Court of the
United States for the Southern District of New
York, sued out be the New York Central and
Hudson River Railroad Company, plaintiff in
error. In the Circuit Court the railroad
company and Fred L. Pomeroy, its assistant
traffic manager, were convicted for the
payment of rebates to the American Sugar
Refining Company and others, upon shipments of
sugar from the city of New York to the city of
Detroit, Michigan. … Numerous
objections and exceptions were taken at every
stage of the trial to the validity of the
indictment and the proceedings thereunder. The
principal attack in this court is upon the
constitutional validity of certain features of
the Elkins act. 32 Stat. 847. That act, among
other things, provides: 1) That
anything done or omitted to be done by a
corporation common carrier subject to the act to
regulate commerce, and the acts amendatory
thereof, which, if done or omitted to be done by
any director or officer thereof, or any
receiver, trustee, lessee, agent or person
acting for or employed by such corporation,
would constitute a misdemeanor under said acts,
or under this act, shall also be held to be a
misdemeanor committed by such corporation, and
upon conviction thereof it shall be subject to
like penalties as are prescribed in said acts,
or by this act, with reference to such persons,
except as such penalties are herein changed. * * * [***621] "In construing and
enforcing the provisions of this section, the
act, omission or failure of any officer, agent
or other person acting for or employed by any
common carrier, acting within the scope of his
employment, [**306] shall in every case be
also deemed [*492] to be the act, omission
or failure of such carrier, as well as of that
person." It is
contended that these provisions of the law are
unconstitutional because Congress has no
authority to impute to a corporation the
commission of criminal offenses, or to subject a
corporation to a criminal prosecution by reason
of the things charged. The argument is that to
thus punish the corporation is in reality to
punish the innocent stockholders, and to deprive
them of their property without opportunity to be
heard, consequently without due process of law.
And it is further contended that these
provisions of the statute deprive the
corporation of the presumption of innocence, a
presumption which is part of due process in
criminal prosecutions. It is urged that as there
is no authority shown by the board of directors
or the stockholders for the criminal acts of the
agents of the company, in contracting for and
giving rebates, they could not be lawfully
charged against the corporation. As no action of
the board of directors could legally authorize a
crime, and as indeed the stockholders could not
do so, the arguments come to this: that owing to
the nature and character of its organization and
the extent of its power and authority, a
corporation cannot commit a crime of the nature
charged in this case. Some of the
earlier writers on common law held the law to be
that a corporation could not commit a crime. It
is said to have been held by Lord Chief Justice
Holt (Anonymous, 12 Modern, 559) that "a
corporation is not indictable, although the
particular members of it are." In Blackstone's
Commentaries, chapter 18, § 12, we find it
stated: "A corporation cannot commit treason, or
felony, or other crime in its corporate
capacity, though its members may in their
distinct individual capacities." The modern
authority, universally, so far as we know, is
the other way. In considering the subject,
Bishop's New Criminal Law, § 417, devotes a
chapter to the capacity of corporations to
commit crime, and states the law to be: "Since a
corporation acts by its officers and agents
their purposes, motives, and intent are just as
much those of the corporation as are the things
done. If, for example, the invisible, intangible
essence of air, which we term a corporation, can
level mountains, fill up valleys, lay down iron
tracks, and run railroad cars on them, it can
intend to do it, and can act therein as well
viciously as virtuously." … It is held in
England that corporations may be criminally
prosecuted for acts of misfeasance as well as
nonfeasance (Queen v. Great North of England
Railway Company, 9 Queen's Bench, 315). …
In
this case we are to consider the criminal
responsibility of a corporation for an act done while
an authorized agent of the company is exercising the
authority conferred upon him. … [T]he
agents were bound to respect the regulation of
interstate commerce enacted by Congress, requiring the
filing and publication of rates and punishing departures
therefrom. Applying the principle governing civil
liability, we go only a step farther in holding that the
act of the agent, while exercising the authority
delegated to him to make rates for transportation, may
be controlled, in the interest of public policy, by
imputing his act to his employer and imposing penalties
upon the corporation for which he is acting in the
premises. It is true that there are some crimes, which in their nature cannot be committed by corporations. But there is a large class of offenses, of which rebating under the Federal statutes is one, wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them. … If it were not so, many offenses might go unpunished and acts be committed in violation of law, where, as in the present case, the statute requires all persons, corporate or private, to refrain from certain practices forbidden in the interest of public policy. …
House
of Lords [1915]
A.C. 705 VISCOUNT
HALDANE L.C.:—The Edward
Dawson was a tank steamer designed for the
carriage of oil in bulk. She was chartered by
her owners, the appellants, on a time charter to
a company known as the Anglo-Saxon Petroleum
Company, and in the course of her employment she
proceeded to Novorossisk in the Black Sea. There
she loaded in bulk 2011 tons of benzine, and the
bills of lading, six in number, were indorsed by
the Anglo-Saxon Petroleum Company to the Asiatic
Petroleum Company, who are the respondents in
this case. My Lords, the benzine has been lost,
and the respondents have brought an action
against the appellants to recover damages for
the loss of their cargo. … My Lords, in that state of things the
loss of the cargo took place, and the case came
before Bray J., who tried it, and Bray J. found
a number of facts. He found these facts after
hearing the evidence on both sides, and I think
that his findings of fact were justified. They
were these: The first was that the ship when she
left Novorossisk was unseaworthy by reason of
defects in her boilers. The second finding of
fact was that the stranding on the Botkill Bank,
just off the mouth of the Scheldt, was caused by
the want of steam, which in its turn was caused
by the unseaworthy condition of the boilers; and
he found the same causes as regards the
subsequent stranding in the Scheldt itself. Then
in the third place he found that the loss was
not caused by any negligence or want of
precautions on the part of the engineers,
because he does not find it proved that anything
they could have done could have altered the
consequences. He found that the loss of the
cargo was caused by the unseaworthiness of the
ship due to the condition of the boilers. Then
there are other findings which are findings of
mixed fact and law. One of these is that the
duty of supervision remained with the managing
owners, and that the fault of the managing
owners was a fault that affected the company
itself. My
Lords, that last question gives rise to the real
question of law which occurs in this case.
Taking the facts to be as the learned judge has
found them, what is the consequence as regards
the liability of the appellants? The appellants
are a limited company and the ship was managed
by another limited company, Messrs. John M.
Lennard & Sons, and Mr. J. M. Lennard, who
seems to be the active director in J. M. Lennard
& Sons, was also a director of the appellant
company, Lennard’s Carrying Company, Limited. My
Lords, in that state of things what is the
question of law which arises? I think that it is
impossible in the face of the findings of the
learned judge, and of the evidence, to contend
successfully that Mr. J. M. Lennard has shown
that he did not know or can excuse himself for
not having known of the defects which manifested
themselves in the condition of the ship,
amounting to unseaworthiness. Mr. Lennard is the
person who is registered in the ship’s register
and is designated as the person to whom the
management of the vessel was entrusted. He
appears to have been the active spirit in the
joint stock company which managed this ship for
the appellants; and under the circumstances the
question is whether the company can invoke the
protection of s. 502 of the Merchant Shipping
Act to relieve it from the liability which the
respondents seek to impose on it. That section
is in these words: “The owner of a British
sea-going ship, or any share therein, shall not
be liable to make good to any extent whatever
any loss or damage happening without his actual
fault or privity in the following cases; namely,
– (i.) Where any goods, merchandise, or other
things whatsoever taken in or put on board his
ship are lost or damaged by reason of fire on
board the ship." Now,
my Lords, did what happened take place without
the actual fault or privity of the owners of the
ship who were the appellants? My Lords, a
corporation is an abstraction. It has no mind of
its own any more than it has a body of its own;
its active and directing will must consequently
be sought in the person of somebody who for some
purposes may be called an agent, but who is
really the directing mind and will of the
corporation, the very ego and centre of the
personality of the corporation. That person may
be under the direction of the shareholders in
general meeting; that person may be the board of
directors itself, or it may be, and in some
companies it is so, that that person has an
authority co-ordinate with the board of
directors given to him under the articles of
association, and is appointed by the general
meeting of the company, and can only be removed
by the general meeting of the company. My Lords,
whatever is not known about Mr. Lennard’s
position, this is known for certain, Mr. Lennard
took the active part in the management of this
ship on behalf of the owners, and Mr. Lennard,
as I have said, was registered as the person
designated for this purpose in the ship’s
register. Mr. Lennard therefore was the natural
person to come on behalf of the owners and give
full evidence not only about the events of which
I have spoken, and which related to the
seaworthiness of the ship, but about his own
position and as to whether or not he was the
life and soul of the company. For if Mr. Lennard
was the directing mind of the company, then his
action must, unless a corporation is not to be
liable at all, have been an action which was the
action of the company itself within the meaning
of s. 502. It has not been contended at the Bar,
and it could not have been successfully
contended, that s. 502 is so worded as to exempt
a corporation altogether which happens to be the
owner of a ship, merely because it happens to be
a corporation. … Under
the circumstances I think that the company and
Mr. Lennard have not discharged the burden of
proof which was upon them, and that it must be
taken that the unseaworthiness, which I hold to
have been established as existing at the
commencement of the voyage from Novorossisk, was
an unseaworthiness which did not exist without
the actual fault or privity of the owning
company. My Lords, if that is so, then the
judgment of the majority of the Court of Appeal
and of Bray J. was right. Appeal
dismissed. * * *
Criminal Code of the Russian Federation, No. 63-Fz Of June 13, 1996 Ch 4 – Persons Subject to
Criminal Liability Art. 19. General
Conditions for Criminal Liability – Only a sane natural
person who has reached the statutory age envisaged by
this Code shall be subject to criminal liability.
* * *
Thomas
Weigend, "Societas delinquere non potest? A
German Perspective" A.
History, and a Compromise Solution
* * *
Sara Sun Beale, "A Response to the
Critics of Corporate Criminal Liability"
46
Am.
Crim. L. Rev. 1481 (2009) … I. CORPORATIONS ARE REAL A good deal of scholarship begins from
the premise that corporations are fictional
entities, which have no existence apart from the
various individuals who act on behalf of the
fictitious entity. This premise can lead quickly
to the conclusion that corporate liability is
unjust because it effectively punishes innocent
third parties (shareholders, employees, and so
forth) for the acts of individuals who commit
offenses while in the employ of these fictional
entities. What this account misses is the
reality that corporations are not fictions.
Rather, they are enormously powerful, and very
real, actors whose conduct often causes very
significant harm both to individuals and to
society as a whole. In a variety of contexts,
the law recognizes this reality by allowing
corporations to own property, make contracts,
commit torts, and to sue and be sued. Indeed,
the Supreme Court has held that corporations
have many constitutional rights under the U.S.
constitution. Moreover, the power now wielded by
corporations is both enormous and unprecedented
in human history. It misses a lot to compare
corporations like Exxon Mobil, Microsoft, or AIG
to a horse or a cart that was treated as a
deodand under ancient English law. The wealth of
the top Fortune 500 corporations is one measure
of corporate power. In 2008, annual revenues
from the top ten revenue- producing corporations
in the U.S. were more than $2.1 trillion; the
profits from the ten most profitable U.S.
corporations were more than $176 billion. Exxon
Mobil topped both lists, recording almost $445
billion in revenue and over $45 billion in
profit. Corporations also wield power more
directly via their lobbying efforts. Since 1998
Exxon Mobil has spent over $120 million on
lobbying, including $29 million in 2009. The
U.S. Chamber of Commerce has spent over $477
million since 1998, more than twice the amount
of any other corporation or industry group.
Other industry groups, like the Pharmaceutical
Research and Manufacturers of America, spent
hundreds of millions of dollars in the last ten
years to lobby on behalf of multiple
corporations. Modern corporations not only wield
virtually unprecedented power, but they do so in
a fashion that often causes serious harm to both
individuals and to society as a whole. In some
recent cases, corporate misconduct and
malfeasance destabilized the stock market and
led to the loss of billions in shareholder
equity and the loss of tens (or perhaps even
hundreds) of thousands of jobs. Enron was the
seventh-most valuable company in the U.S., until
the revelation of its use of deceptive
accounting devices to shift debt off its books
and hide corporate losses led to losses of more
than $100 billion in shareholder equity before
it filed for bankruptcy. But Enron was not alone
in the use of fraudulent accounting practices.
The revelation of similar misconduct by other
corporations (including Dynergy, Adelphia
Communications, WorldCom, and Global Crossing)
also led to massive losses. Federal prosecutors
have also uncovered widespread wrongdoing in
other industries, though the nature of the
violations has varied over time. In the past
decade, virtually every major pharmaceutical
company has pled guilty to or settled charges
arising out of serious misconduct. In the
previous decade, the 1990s, the most prominent
cases concerned antitrust violations. The
largest single fine imposed was $500 million for
a worldwide scheme to fix the price of vitamins,
and fines from the nine most serious antitrust
cases of the decade totaled $1.2 billion. Because of their size, complexity, and
control of vast resources, corporations have the
ability to engage in misconduct that dwarfs that
which could be accomplished by individuals. For
example, Siemens, the German engineering giant,
paid more than $1.4 billion in bribes to
government officials in Asia, Africa, Europe,
the Middle East, and Latin America, using its
slush funds to secure public works contracts
around the world. There is nothing wrong with
recognizing that it was Siemens, not simply some
of its officers or employees, who should be held
legally accountable. U.S. investigators found
that the use of bribes and kickbacks were not
anomalies, but the corporation’s standard
operating procedure and part of its business
strategy. In my view, Siemens was properly
prosecuted and convicted. … II. DOES CORPORATE CRIMINAL LIABILITY
RAISE UNIQUE PROBLEMS? The short answer is no. The critics of
corporate criminal liability argue that it is
(1) unnecessary, because civil liability is
sufficient and more efficient, (2) so broad that
it encompasses conduct that is not blameworthy,
and (3) punished excessively. By themselves,
these critiques are powerful, but critics add
that the current regime gives prosecutors far
too much leverage: in essence, the stakes are so
high under the current regime and the playing
field so slanted in the government’s favor that
corporations have no choice but to make whatever
concessions the government demands whenever it
raises the specter of criminal charges. There is
some truth to these criticisms, but they are
endemic to U.S. criminal law, rather than unique
to corporate criminal liability. A.
Criminal Prosecutions as a Substitute for Civil
Liability or Regulation There is no question that American law
imposes criminal sanctions on conduct that might
more efficiently (and more humanely) be dealt
with in a civil regulatory regime. Indeed, our
reliance on harsh criminal sanctions is a
central feature of U.S. law that divides us from
many other developed western nations. That said,
corporate criminal liability is not the most
egregious example of our excessive reliance on
criminal sanctions. If we are going to have a
debate about cutting back on the use of criminal
sanctions when we could use civil or regulatory
mechanisms, we have to talk about our approach
to drugs. By all critical measures, such as
government expenditures for investigations and
prosecutions, number of prosecutions, or overall
societal impact, the need to rethink our
approach to corporate crime pales in comparison
to the need to rethink our reliance on a
criminal justice approach to drug enforcement. Federal prosecutors bring criminal
charges against no more than a few hundred
corporations each year, and a few dozen more
avoid prosecution by entering into
deferred-prosecution or no-prosecution
agreements. In contrast, in the five-year period
from 2004 to 2008, approximately 25,000 people
were convicted and sentenced for federal drug
offenses each year, and more than 95 percent of
those defendants were sentenced to terms of
imprisonment. The cost of our current approach to drugs
is truly staggering. While federal drug cases
dwarf the number of federal corporate
prosecutions, both are insignificant when
compared with state and local law drug
enforcement. In 2007, non-federal agencies made
approximately 1.8 million arrests on charges of
drug sales, manufacturing, and possession. The cost of enforcing our country’s drug
laws is an enormous drag on the economy.
Incarceration of approximately half a million
drug offenders alone costs taxpayers nearly $20
billion each year, in addition to billions of
dollars in lost productivity. The federal
government budgeted another $14.1 billion for
fiscal year 2009 for use in drug crime
prevention. Accounting for enormous financial
burdens fails to capture the social costs of
racial disparities in arrests and sentencing,
the lost opportunity to spend funds on education
or health and safety, and the disgrace of having
the highest incarceration rate in the world. The financial and social concerns raised
by drug law enforcement illustrate that the
criminal system’s flaws are larger and go far
beyond those perceived by corporate interests.
If we are to take seriously the idea of
restricting the use of criminal sanctions to the
kinds of cases when regulatory or civil
sanctions cannot be effective, it would be
inconceivable to limit the discussion to
corporate criminal liability. There are many
reasons to put this issue on the agenda for
Congress and state legislatures, and the current
economic crisis might even open a window of
opportunity given the crushing costs of the
current penal system. But we can’t, in good
conscience, see this as an issue of corporate
liability alone. B.
Liability Without True Fault Many critics argue that corporate
criminal liability, especially in the federal
system, imposes liability when there has been no
true fault on the part of the corporation. The
paradigm case is the misconduct of a single
rogue employee, which can be attributed to the
corporation by the doctrine of respondeat
superior . There is general agreement that the
corporation should be held civilly liable for a
tort under these circumstances, if the harm was
caused by an employee acting within the scope of
his employment. The question, then, is whether
in sufficiently serious cases where the conduct
also breaches a criminal law, the corporation
should be held to answer for the criminal
offense. Note that in either the civil or the
criminal setting, the typical punishment is a
judgment of corporate fault and an order to pay
a fine. Thus the argument that a corporation has
no soul to damn and no body to imprison cuts
both ways. Critics use it to argue that there is
no reason to prosecute a corporation. Supporters
of corporate criminal liability might turn the
argument around and ask what’s the big deal,
since the corporation can’t go to jail (or
hell)? But both supporters and opponents of
corporate criminal liability assume that there
are differences between civil and criminal
liability, and there are good arguments that the
current federal approach can impose criminal
liability when there is not, by some measures,
corporate blameworthiness. This is an important
issue, but the difficulty of confining criminal
punishments to moral blameworthiness is endemic
to the definition of crimes and defenses. I will
give three examples. The first is the scope of
the insanity defense. Even if both the
government and defense experts agree that a
defendant suffers from schizophrenia and that
his condition made it impossible for him to
control the conduct that constituted the
offense, he has no defense under current federal
law. The situation is as bad or worse in most
states; indeed, five states have eliminated the
defense completely, and most of the remainder
also have a fairly narrow version of the
M’Naghten test. It’s highly debatable, of
course, whether a defendant with severe mental
illness can be said to be blameworthy and held
criminally responsible. My second example concerns accomplice
liability. In the federal courts and many
states, a defendant may be convicted as an
accomplice to conduct including homicide that he
did not intend to aid, and did not actually aid,
if he was an accomplice to other related
conduct. This principal is part of the felony
murder rule, and the extension of accomplice
liability through the Pinkerton doctrine in
conspiracy cases and the more general doctrine
of natural and probable consequences. And, finally, an individual’s moral
culpability is irrelevant to many of the weapons
and immigration offenses that make up the most
rapidly growing part of the federal criminal
docket. Jeffrey Meyer provides the following
examples: An immigrant
alien may be criminally convicted for unlawfully
reentering the United States even if she
believed that she had proper government approval
to return; A defendant charged with
felon-in-possession-of-a-firearm may be
convicted even if mistaken about his felony
history (e.g., he had been previously assured by
a court that he did not have a felony history or
he believed that his prior conviction had never
been formally entered or had been expunged); A
defendant charged with criminal possession of an
unregistered firearm may be convicted even if he
mistakenly thought the firearm was registered as
required; A defendant charged with illegal
disposal of toxic waste may be convicted even if
she is ignorant of the waste’s toxic qualities
or even if she thought that her employer had a
proper permit to allow disposal. I do not mean to endorse the imposition
of criminal sanctions in all of these settings.
Rather, I want to make a more limited point:
criminal liability in the federal system (and in
the U.S. more generally) does not match up
closely with many people’s definition of
blameworthiness or moral guilt. These are
critical issues, and they should be reexamined.
But if we have to triage, and give priority to
only a few of these issues, neither the number
of cases nor the severity of the sanctions would
place corporate criminal liability at the top of
my list for reform. C.
Excessive Punishment In the past three decades, the U.S. has
set international (and historic) records for the
use of imprisonment, whether measured by the
percentage of the population that is
incarcerated or the length of the terms of
incarceration. The short answer to any
complaints that corporate (or white-collar)
punishments are excessive is that all of our
punishment policies must be reevaluated, and
that this should be a top priority. For example, Senator Jim Webb has listed
the following reasons why a comprehensive
overhaul of the criminal justice system is
urgently needed: The United
States has by far the world’s highest
incarceration rate. With five percent of the
world’s population, our country now houses
twenty-five percent of the world’s reported
prisoners. More than 2.38 million Americans are
now in prison, and another 5 million remain on
probation or parole. Our prison population has
skyrocketed over the past two decades as we have
incarcerated more people for non-violent crimes
and acts driven by mental illness or drug
dependence. The costs to our federal, state, and
local governments of keeping repeat offenders in
the criminal justice system continue to grow
during a time of increasingly tight budgets.
Existing practices too often incarcerate people
who do not belong in prison and distract from
locking up the more serious, violent offenders
who are a threat to our communities. .... Mass
incarceration of illegal drug users has not
curtailed drug usage. The multi-billion dollar
illegal drugs industry remains intact, with more
dangerous drugs continuing to reach our streets.
Incarceration for drug crimes has had a
disproportionate impact on minority communities,
despite virtually identical levels of drug use
across racial and ethnic lines.
Post-incarceration re-entry programs are
haphazard and often nonexistent, undermining
public safety and making it extremely difficult
for ex-offenders to become full, contributing
members of society. Revising the approach to sentencing
policy in corporate cases can appropriately be a
part of this agenda, though not its centerpiece.
In the case of corporate sentences, as well as
sentences for other offenses and offenders, our
sentencing law should be revised in light of the
best empirical research. Examples of research
topics which should be surveyed as part of that
effort include: the tradeoff between the
certainty of punishment (which increases as more
resources are provided for investigation) and
the severity of punishment, the consequences of
allocating funds for prevention and treatment in
lieu of investigation and punishment of
offenses; and the effect that different
sentencing policies will have on corporate
behavior. D.
Excessive Prosecutorial Power In the past few years, prosecutorial
power has become one of the focal points for
critics of corporate criminal liability. Critics
express shock that corporations are unable to
contest any charges prosecutors choose to bring
against them, and must therefore not only
concede liability but also become the
prosecutor’s agents in the investigation and
prosecution of corporate officers and employees.
This imbalance is said to arise from the
excessively broad definition of corporate
liability under the federal doctrine of
respondeat superior , the risk averse behavior
of corporate boards of directors, and other
doctrines that strip corporations of their
rights and reward their heavily coerced
cooperation. Indeed, Professor Alschuler has
suggested that the real function of corporate
liability is similar to the ancient system of
frankpledge, which held a group of individuals
responsible for the wrongdoing of their neighbor
unless they helped the authorities to apprehend
the wrongdoer. There is, however, very little new or
distinctive about this description of the
tremendous leverage possessed by federal
prosecutors and the coercive power they can
exert to compel cooperation from those who may
be charged with a crime. The necessity to
cooperate in order to get concessions is a fact
of life in the federal system (and in the states
as well). There is a culture of waiver in the
federal courts, but it extends to all
defendants, not just corporate defendants. More
than 95 percent of federal defendants plead
guilty, conceding their guilt and waiving all of
their procedural rights. If the defendant agrees
to plead guilty, prosecutors have the authority
to drop charges and to make plea recommendations
or agreements under the Federal Rules of
Criminal Procedure, and the federal sentencing
guidelines create powerful incentives for guilty
pleas through the provisions for downward
departures for acceptance of responsibility. The
prosecutor’s leverage is greatest in
prosecutions for the many federal offenses that
carry long mandatory minimum sentences. By
statute, the sentencing judge is required to
impose the mandatory minimum sentence unless the
federal prosecutor moves for a sentence below
the minimum on the ground that the defendant has
provided a sufficient degree of assistance in
the investigation and prosecution of another
person. This system creates enormous pressures
to cooperate in the case of defendants facing
many decades of mandatory imprisonment for drugs
or weapons offenses in a system that makes no
provision for parole. Do federal prosecutors have too much
leverage in the current system? Perhaps so, but
the issue is one that cannot, in good
conscience, be limited to corporate defendants.
… * * *
LRCC § 2(5) * * * MPC § 2.07 * * *
Yesawich, J.
R. v. Waterloo Mercury Sales
Ltd. LEGG, D.C.J.:—Waterloo Mercury
Sales Ltd. is charged with two counts of fraud under
s. 338(1) {now s. 380(1)} of the Criminal Code. Accused convicted.
R. v. Canadian Dredge and
Dock Co. Ltd. The Supreme Court of Canada unanimously dismissed
the accused’s appeal, Estey J.
stating in part for the Court: (a) Absolute liability offencesWhere the Legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutory prohibition, no particular state of mind is a prerequisite to guilt. Corporations and individual persons stand on the same footing in the face of such a statutory offence. It is a case of automatic primary responsibility. Accordingly, there is no need to establish a rule for corporate liability nor a rationale therefor. The corporation is treated as a natural person. (b) Offences of strict liabilityWhere the terminology employed by the Legislature is such as to reveal an intent that guilt shall not be predicated upon the automatic breach of the statute but rather upon the establishment of the actus reus, subject to the defence of due diligence, an offence of strict liability arises: see R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, 1197812 S.C.R. 1299. As in the case of an absolute liability offence, it matters not whether the accused is corporate or unincorporate, because the liability is primary and arises in the accused according to the terms of the statute in the same way as in the case ofabsolute offences. It is not dependent upon the attribution to the accused of the misconduct of others. This is so when the statute, properly construed, shows a clear contemplation by the Legislature that a breach of the statute itself leads to guilt, subject to the limited defence above noted. In this category, the corporation and the natural defendant are in the same position. In both cases liability is not vicarious but primary. (c) Offences requiring mens reaThese are the traditional criminal offences for
which an accused may be convicted only if the
requisite mens rea is demonstrated by
the prosecution. ... The test of corporate responsibility for the acts of its officers and agents, whether such acts be criminal or tortious, is whether the agent or officer in doing the thing complained of was engaged in “employing the corporate powers actually authorized” for the benefit of the corporation “while acting within the scope of his employment in the business of the principal.” If the act was done it will be imputed to the corporation whether covered by the agent or officer’s instructions, whether contrary to his instructions, and whether lawful or unlawful. Such acts under such circumstances are not ultra vires even though unlawful. There is no longer any distinction in essence between the civil and criminal liability of corporations, based upon the element of intent or wrongful purpose. Malfeasance of their agents is not ultra vires.These principles have been restated as recently as the judgment in U.S. v. Basic Construction et al. (1983), 711 F. 2d 570 (5th C.C.A.). The state courts have not as consistently pursued the course of vicarious liability of corporations in the criminal law. In People v. Canadian Fur Trappers Corp. (1928), 248 N.Y. 159, the New York Court of Appeals, Crane J., speaking for a court that included Chief Justice Cardozo, rejected vicarious liability as a basis for corporate criminal responsibility and seemed to adopt, at pp. 163 and 169, something akin to the identification theory. To the same effect is State of Idaho v. Adjustment Department Credit Bureau Inc. (1971), 483 P. 2d 687 at p. 691, where corporate liability was found only if: ... the commission of the offense was authorised, requested, commanded or performed (i) by the board of directors, or (ii) by an agent having responsibility for formation of corporate policy or (iii) by a “high managerial agent” having supervisory responsibility over the subject matter of the offense and acting within the scope of his employment in behalf of the corporation.State of Louisiana v. Chapman Dodge Center Inc. (1983), 428 S. 2d 413 at pp. 419-20, is to the same general effect. For a position midway between the Canadian Fur Trappers, supra, and these cases, see Commonwealth of Massachusetts v. Beneficial Finance Co. et al. (1917), 275 N.E. 2d 33. At the present time, therefore, the common law in the United States seems to be based, in the federal courts on the doctrine of vicarious liability, and in many of the state courts on something akin to the identification doctrine. Court decisions are not a complete guide to the state law on this matter, however, as some states have adopted the American Institute Model Penal Code, which at para. 2.07 attributes criminal liability to the corporation on much the same basis as did the court in State of Idaho v. Adjusment Department Credit Bureau Inc., supra. On the other hand, at least one state has by statute applied the doctrine of vicarious liability without a limitation as to the level of responsibility of the employee or agent: see State of Maine, Rev. Stats. Anns. 17-A, s. 60.... In summary, therefore, the courts in this country can be said to this date to have declined generally to apply the principle of respondeat superior in the determination of corporate criminal responsibility. Criminal responsibility in our courts thus far has been achieved in the mens rea offences by the attribution to the corporation of the acts of its employees and agents on the more limited basis of the doctrine of the directing mind or identification. Corporate responsibility in both strict and absolute liability offences has been found to arise on the direct imposition of a primary duty in the corporation in the statute in question, as construed by the court. By what appears to be the same purely pragmatic reasoning, the courts of the United Kingdom find criminal liability in a corporation only by the attribution to it of the conduct of its employees and agents where those natural persons represent the core, mind and spirit of the corporation. The United States federal courts are inclined, as we have seen, to find criminal liability in the corporation by vicarious liability where any employee-agent commits, in the course of his employment, the criminal act. The criticisms of the United States federal court doctrine are manifold. The net is flung too widely, it is said. Corporations are punished in instances where there is neither moral turpitude nor negligence. No public policy is served by punishing shareholders where the corporate governing body has been guilty of no unlawful act. The disparity between the treatment of the corporate employer and the natural employer is wide and wholly without a basis in justice or political science. The test as applied in the United States federal courts may be on the broad basis above indicated because so many of the federal statutory crimes are regulatory in nature: see Leigh, p. 267, footnote 134. In the criminal law, a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization. There is no vicarious liability in the pure sense in the case of the natural person. That is to say that the doctrine of respondeat superior is unknown in the criminal law where the defendant is an individual. Lord Diplock, in Tesco Supermarkets Ltd. v. Nattras , [1972] A. C. 153 at p. 199, stated: Save in cases of strict liability where a criminal statute, exceptionally, makes the doing of an act a crime irrespective of the state of mind in which it is done, criminal law regards a person as responsible for his own crimes only. It does not recognise the liability of a principal for the criminal acts of his agent: because it does not ascribe to him his agent’s state of mind. Qui peccat per alium peccat per se is not a maxim of criminal law.On the other hand, the corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to our criminal law is as essential in the case of the corporation as in the case of the natural person. Thus where the defendant is corporate the common law has become pragmatic, as we have seen, and a modified and limited “vicarious liability” through the identification doctrine has emerged.... The identity doctrine merges the board of directors, the managing director, the superintendent, the manager or anyone else delegated by the board of directors to whom is delegated the governing executive authority of the corporation, and the conduct of any of the merged entities is thereby attributed to the corporation. In R. v. St. Lawrence Corp. Ltd. and nineteen other corporations, [1969]3 C.C.C. 263, 5 D. L. R. (3d) 263, [1969] O. R. 305 (Ont. C.A.), and other authorities, a corporation may, by this means, have more than one directing mind. This must be particularly so in a country such as Canada where corporate operations are frequently geographically widespread. The transportation companies, for example, must of necessity operate by the delegation and subdelegation of authority from the corporate centre; by the division and subdivision of the corporate brain, and by decentralizing by delegation the guiding forces in the corporate undertaking. The application of the identification rule in Tesco, supra, may not accord with the realities of life in our country, however appropriate we may find to be the enunciation of the abstract principles of law there made... The identification theory was inspired in the common law in order to find some pragmatic, acceptable middle ground which would see a corporation under the umbrella of the criminal law of the community but which would not saddle the corporation with the criminal wrongs of all of its employees and agents. If there were to be no outer limit on the reach of the doctrine, the common law would have established criminal corporate liability by the doctrine of respondeat superior. What then is the appropriate outer limit of the attribution of criminal conduct of a directing mind when he undertakes activities in fraud of the corporation or for his own benefit?... Were the charge in question a charge of fraud, there would clearly be no benefit to the corporation and indeed the design of the dishonest employee was aimed squarely at reducing the financial stature of the employer. It can hardly be said with any reality that a person designing and executing such a scheme could be, while doing so, the directing mind and the ego of the company itself. That being so, no longer would we be faced with the logical conundrum that a person however dishonest cannot defraud himself. Once the ego is split into its original two parts that problem disappears. The employee would be guilty of fraud and the victim of that fraud would be the company. The victim would, in all logic, have a defence against a charge that it too had committed fraud in its own right. Were the criminal law otherwise, it would not provide protection of any interest in the community. Punishment of the corporation for such acts of its employee would not advantage society by advancing law and order. 1t is otherwise, however, where there is benefit to the corporation, in whole or in part, from the unlawful acts of its directing mind.... In my view, the outer limit of the delegation doctrine is reached and exceeded when the directing mind ceases completely to act, in fact or in substance, in the interests of the corporation. Where this entails fraudulent action, nothing is gained from speaking of fraud in whole or in part because fraud is fraud. What I take to be the distinction raised by the question is where all of the activities of the directing mind are directed against the interests of the corporation with a view to damaging that corporation, whether or not the result is beneficial economically to the directing mind, that may be said to be fraud on the corporation. Similarly, but not so importantly, a benefit to the directing mind in single transactions or in a minor part of the activities of the directing mind is in reality quite different from benefit in the sense that the directing mind intended that the corporation should not benefit from any of its activities in its undertaking. A benefit of course can, unlike fraud, be in whole or in part, but the better standard, in my view, is established when benefit is associated with fraud. The same test then applies. Where the directing mind conceives and designs a plan and then executes it whereby the corporation is intentionally defrauded, and when this is the substantial part of the regular activities of the directing mind in his office, then it is unrealistic in the extreme to consider that the manager is the directing mind of the corporation. His entire energies are, in such a case, directed to the destruction of the undertaking of the corporation. When he crosses that line he ceases to be the directing mind and the doctrine of identification ceases to operate. The same reasoning and terminology can be applied to the concept of benefits. Where the criminal act is totally in fraud of the corporate employer and where the act is intended to and does result in benefit exclusively to the employee-manager, the employee-directing mind, from the outset of the design and execution of the criminal plan, ceases to be a directing mind of the corporation and consequently his acts could not be attributed to the corporation under the identification doctrine. This might be true as well on the American approach through respondeat superior. Whether this is so or not, in my view, the identification doctrine only operates where the Crown demonstrates that the action taken by the directing mind (a) was within the field of operation assigned to him; (b) was not totally in fraud of the corporation, and (c) was by design or result partly for the benefit of the company. ... I therefore would answer both questions as they relate to the defences of “acting wholly or partly in fraud of the corporation”, and “in whole or in part for the benefit of the directing mind”, as follows: 1. On the evidence in these records, the respective directing minds of the appellants did not act wholly in fraud of their respective corporate employers. I would therefore dismiss all four appeals. Appeals dismissed. Tesco Supermarkets v. Nattrass House of Lords [1972] A.C. 153 LORD REID: The Appellants
own a large number of supermarkets in which they sell a
wide variety of goods. The goods are put out for sale on
shelves or stands each article being marked with the
price at which it is offered for sale. The customer
selects the articles he wants, takes them to the
cashier, and pays the price. From time to time the
Appellants, apparently by way of advertisement, sell
"flash packs" at prices lower than the normal price. In
September 1969 they were selling Radiant washing powder
in this way. The normal price was 3s. 11d. but these
packs were marked and sold at 2s. 11d. Posters were
displayed in the shops drawing attention to this
reduction in price. These prices were displayed in the
Appellants' shop at Northwich on 26th September. Mr
Coane, an old age pensioner, saw this and went to buy a
pack. He could only find packs marked 3s. 11d. He took
one to the cashier who told him that there were none in
stock for sale at 2s. 11d. He paid 3s. 11d. and
complained to an Inspector of Weights and Measures. This
resulted in a prosecution under the Trade Descriptions
Act 1968 and the Appellants were fined £25 and costs. Section
11 (2) provides: "If any person offering to supply any goods
gives, by whatever means, any indication likely to be
taken as an indication that the goods are being offered
at a price less than that at which they are in fact
being offered he shall, subject to the provisions of
this Act, be guilty of an offence." It is not disputed that that section
applies to this case. The Appellants relied on section
24(1) which provides: "In any proceedings for an offence under
this Act it shall, subject to subsection (2) of this
section, be a defence for the person charged to
prove—(a) that the commission of the offence was due to
a mistake or to reliance on information supplied to him
or to the act or default of another person, an accident
or some other cause beyond his control; and (b) that he took all reasonable precautions
and exercised all due diligence to avoid the commission
of such an offence by himself or any person under his
control." … Where a
limited company is the employer difficult questions do
arise in a wide variety of circumstances in deciding
which of its officers or servants is to be identified
with the company so that his guilt is the guilt of the
company. I must
start by considering the nature of the personality which
by a fiction the law attributes to a corporation. A
living person has a mind which can have knowledge or
intention or be negligent and he has hands to carry out
his intentions. A corporation has none of these: it must
act through living persons, though not always one or the
same person. Then the person who acts is not speaking or
acting for the company. He is acting as the company and
his mind which directs his acts is the mind of the
company. There is no question of the company being
vicariously liable. He is not acting as a servant,
representative, agent or delegate. He is an embodiment
of the company or, one could say, he hears and speaks
through the persona of the company, within his
appropriate sphere, and his mind is the mind of the
company. If it is a guilty mind then that guilt is the
guilt of the company. It must be a question of law
whether, once the facts have been ascertained, a person
in doing particular things is to be regarded as the
company or merely as the company's servant or agent. In
that case any liability of the company can only be a
statutory or vicarious liability. In Lennard's
Carrying Co. v. Asiatic Petroleum Co. [1915] A.C.
705 the question was whether damage had occurred without
the " actual fault or "privity" of the owner of a ship.
The owners were a company. The fault was that of the
registered managing owner who managed the ship on behalf
of the owners and it was held that the company could not
dissociate itself from him so as to say that there was
no actual fault or privity on the part of the company.
Lord Haldane L.C. said at page 713: "For if Mr. Leonard
was the directing mind of the company, then his action
must, unless a corporation is not to be liable at all,
have been an action which was the action of the company
itself within the meaning of section 502... It must be
upon the true construction of that section in such a
case as the present one that the fault or privity is the
fault or privity of somebody who is not merely a servant
or agent for whom the company is liable upon the footing
respondent superior, but somebody for whom the
company is liable because his action is the very action
of the company itself." Reference
is frequently made to the judgment of Lord Denning in Bolton
(Engineering) Co. v. Graham [1957] 1
Q-B. 159. He said (at page 172): "A company may in many
ways be likened to a human body. It has a brain and
nerve centre which controls what it does. It also has
hands which hold the tools and act in accordance with
directions from the centre. Some of the people in the
company are mere servants and agents who are nothing
more than hands to do the work and cannot be said to
represent the mind or will. Others are directors and
managers who represent the directing mind and will of
the company, and control what it does. The state of mind
of these managers is the state of mind of the company
and is treated by the law as such." In that
case the directors of the company only met once a year:
they left the management of the business to others, and
it was the intention of those managers which was imputed
to the company. I think that was right. There have been
attempts to apply Lord Denning's words to all servants
of a company whose work is brain work, or who exercise
some managerial discretion under the direction of
superior officers of the company. I do not think that
Lord Denning intended to refer to them. He only referred
to those who "represent the directing mind and will of
the company, and "control what it does." I think
that is right for this reason. Normally the Board of
Directors, the Managing Director and perhaps other
superior officers of a company carry out the functions
of management and speak and act as the company. Their
subordinates do not. They carry out orders from above
and it can make no difference that they are given some
measure of discretion. But the Board of Directors may
delegate sonic part of their functions of management
giving to their delegate full discretion to act
independently of instructions from them. I see no
difficulty in holding that they have thereby put such a
delegate in their place so that within the scope of the
delegation he can act as the company. It may not always
be easy to draw the line but there are cases in which
the line must be drawn. Lennard's case was one
of them. In some
cases the phrase alter ego has been used. I
think it is misleading. When dealing with a company the
word alter is I think misleading. The person
who speaks and acts as the company is not alter. He
is identified with the company. And when dealing with an
individual no other individual can be his alter ego.
The other individual can be a servant, agent,
delegate or representative but I know of neither
principle nor authority which warrants the confusion tin
the literal or original sense) of two separate
individuals. … What good
purpose could be served by making an employer criminally
responsible for the misdeeds of some of his servants but
not for those of others? It is sometimes argued—it was
argued in the present case—that making an employer
criminally responsible, even when he has done all that
he could to prevent an offence, affords some additional
protection to the public because this will induce him to
do more. But if he has done all he can how can he do
more? I think that what lies behind this argument is a
suspicion that magistrates too readily accept evidence
that an employer has done all he can to prevent
offences. But if magistrates were to accept as
sufficient a paper scheme and perfunctory efforts to
enforce it they would not be doing their duty—that would
not be " due diligence " on the part of the employer. Then it is
said that this would involve discrimination in favour of
a large employer like the Appellants against a small
shopkeeper. But that is not so. Mr. Clement was the
"opposite number" of the small shopkeeper and he was
liable to prosecution in this case. The purpose of this
Act must have been to penalise those at fault, not those
who were in no way to blame. The
Divisional Court decided this case on a theory of
delegation. In that they were following some earlier
authorities. But they gave far too wide a meaning to
delegation. I have said that a Board of Directors can
delegate part of their functions of management so as to
make their delegate an embodiment of the company within
the sphere of the delegation. But here the Board never
delegated any part of their functions. They set up a
chain of command through regional and district
supervisors, but they remained in control. The shop
managers had to obey their general directions and also
to take orders from their superiors. The acts or
omissions of shop managers were not acts of the company
itself. In my
judgment the Appellants established the statutory
defence. I would therefore allow this appeal. Appeal
allowed.
R. v. Safety Kleen
Inc. (1997) 32 O.R. (3d) 493
DOHERTY
J.A.:—
I The appellant and Paul
Howard, one of its employees, were jointly charged with
three offences under the Environmental Protection Act,
R.S.O. 1980, c. 141, as amended (the "Act"). The first
count alleged that they were in possession of waste for
which the generator of the waste had not completed a
manifest. Count 2 alleged that the appellant and Howard
had knowingly given false information in a return made
to a provincial officer. Count 3 alleged that they used
a truck for transportation of the waste for which a
provincial certificate of approval had not been issued.
… The appellant and
Howard were convicted on counts 1 and 2 and acquitted on
count 3 by a Justice of the Peace. Howard did not
appeal. The appellant unsuccessfully appealed both
convictions to the Ontario Court (Provincial Division).
The appellant then obtained leave to appeal to this
court pursuant to s. 131 of the Provincial Offences Act,
R.S.O. 1990, c. P.33. Leave to appeal was granted at
large, however, by statute, the appellant is limited to
questions of law alone. II The appellant operates a fleet of waste oil collection trucks and several waste oil transfer stations in Ontario. The waste oil collected by the appellant is eventually taken to its facility in Breslau, Ontario for refining and resale.
The waste disposal industry is heavily regulated. Part of that regulatory scheme requires the preparation of a document, called a manifest, each time waste is moved from the generator of the waste to the ultimate recipient of it. By regulation (R.R.O. 1980, Reg. 309), the manifest must have three parts. Part A must be completed by the generator of the waste, Part B by the transporter of the waste, and Part C by the recipient of the waste. Copies of Parts A and C must be forwarded to the Ministry by the generator and recipient, respectively.
On November 12, 1991, Ken Corcoran, a principal of Ken's Vacuum Pumping, an independent contractor, picked up a load of oily waste water at a Petro-Canada station in Perth. … Mr. Corcoran's truck
developed mechanical problems and he could not make it
to Trenton. He drove his truck to his garage and called
Mr. Howard, who was the appellant's representative in
the area. Mr. Corcoran had dealt with Mr. Howard on
numerous previous occasions. Mr. Howard drove his truck
to the appellant's garage. He and Mr. Corcoran decided
to transfer the waste water from Mr. Corcoran's disabled
truck to Mr. Howard's truck. Both men knew that they
needed verbal authorization from the Ministry of the
Environment to do so. They also knew that the transfer
required a new manifest complete with a new generator
number. After one attempt to contact the Ministry proved
unsuccessful, Mr. Corcoran and Mr. Howard went ahead
without authorization and transferred the waste water
into Mr. Howard's truck. Mr. Howard immediately
completed Part C of the original manifest showing that
the waste water had been received at the appellant's
transfer site in Trenton at 2:30 p.m. This was patently
false. In fact the waste water was transferred at Mr.
Corcoran's garage at about 9:30 a.m. …
III
This appeal concerns
the liability of the appellant, a corporate employer,
for the misconduct of Mr. Howard, its employee. The
appeal from the conviction on count 2 involves a
consideration of the scope of corporate responsibility
for offences which require proof of a culpable state of
mind. The appeal from the conviction on count 1 involves
a consideration of the due diligence defence as applied
to the employer where the employee's acts are admittedly
negligent. I will address the appellant's liability on
count 2 first.
IV
Count 2 alleged that
the appellant knowingly gave false information in a
return to a provincial officer. Section 145 of the Act
provided:
145. No
person shall knowingly give false information in any
application, return or statement made to the Minister, a
provincial officer or any employee of the Ministry in
respect of any matter under this Act or the regulations.
Assuming that the
manifest was a return, it is clear that the offence was
made out against Mr. Howard. The manifest was false and
Mr. Howard knew it was false. In determining the
appellant's liability it is necessary to begin by
placing the offence created by s. 145 into one of the
three categories identified in R. v. Sault Ste. Marie
(City), [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161. The
parties agree that this offence falls into the first
category (mens rea offences) as it is an offence which
requires proof of a culpable state of mind.
Specifically, the prosecution had to prove that Mr.
Howard knew the document was false.
Corporations can be
convicted of crimes involving a culpable mental state.
Absent a statutory basis for that liability, corporate
liability for such crimes is determined by the
application of the identification theory set down in
Canadian Dredge & Dock Co. v. R., [1985] 1 S.C.R. 662, 19
D.L.R. (4th) 314, and developed in The "Rhône" v. The
"Peter A.B. Widener", [1993] 1 S.C.R. 497, 101 D.L.R.
(4th) 188. In Rhône, Iacobucci J. succinctly summarized
the inquiry demanded by the identification theory at pp.
520-21:
...the
focus of [the] inquiry must be whether the impugned
individual has been delegated the "governing executive
authority" of the company within the scope of his or her
authority. I interpret this to mean that one must
determine whether the discretion conferred on an
employee amounts to an express or implied delegation of
executive authority to design and supervise the
implementation of corporate policy rather than simply to
carry out such policy. In other words, the courts must
consider who has been left with the decision-making
power in a relevant sphere of corporate activity.
The inquiry described
by Iacobucci J. is a fact-driven one which looks beyond
titles and job descriptions to the reality of any given
situation. Mr. Howard was a truck driver for the
appellant. He was also the appellant's sole
representative in a very large geographical area. He was
responsible for collecting waste, completing necessary
documentation, maintaining the appellant's property in
the region, billing, and responding to calls from
customers and regulators. When Mr. Howard was on
holidays, the appellant did not do business in the
region. Mr. Howard did not, however, have any managerial
or supervisory function. He took no role in shaping any
aspect of the appellant's corporate policies.
Unlike the judge at
the first level of appeal, I do not read the trial
judge's reasons as including a finding that Mr. Howard
was a directing mind of the appellant for the relevant
purpose. The trial judge clearly rejected the
characterization of Mr. Howard as a "low level employee"
and found that he had wide authority in his region.
Beyond this, she made no finding. Rather, she based her
conviction on this count on a finding that the company
did not take all reasonable steps to avoid the event. In
my view, since the offence alleged in count 2 requires
proof of a culpable mental state, a finding of a lack of
due diligence is irrelevant. The determinative question
of whether Mr. Howard's actual authority was sufficient
to justify attributing his culpable mind to the
appellant was never addressed. Consequently, no finding
on the crucial question of whether Mr. Howard was the
directing mind of the appellant for the relevant purpose
exists.
There is no doubt that
Mr. Howard had many responsibilities and was given wide
discretion in the exercise of those responsibilities. It
is equally clear that those, like Mr. Corcoran, who
dealt with the appellant in the area, equated Mr. Howard
with the appellant corporation. Neither of these facts
establish the kind of governing executive authority
which must exist before the identification theory will
impose liability on the corporation. Mr. Howard had
authority over matters arising out of the performance of
the task he was employed to do. It was his job to
collect and transport waste to its eventual destination
in Breslau. His authority extended over all matters,
like the preparation of necessary documentation, arising
out of the performance of those functions. I find no
evidence, however, that he had authority to devise or
develop corporate policy or make corporate decisions
which went beyond those arising out of the transfer and
transportation of waste. In my opinion, Mr. Howard's
position is much like that of the tugboat captain in The
Rhône, supra. Both had extensive responsibilities and
discretion, but neither had the power to design and
supervise the implementation of corporate policy. The
majority of the Supreme Court of Canada concluded that
the captain was not a directing mind of his corporate
employer. I reach the same conclusion with respect to
Mr. Howard. …
In my opinion, there
was no basis on which the corporation could be held
liable on count 2 of the information. I would quash that
conviction and enter an acquittal. I need not address
the appellant's argument that the giving of the manifest
to the investigator did not constitute a "return" for
the purposes of s. 145 of the Act.
V
Count 1 in the
information is a strict liability offence. Mr. Howard
pleaded guilty to that charge. The appellant could
escape liability only if it could show on the balance of
probabilities that it exercised due diligence. The words
of Dickson J. in R. v. Sault Ste. Marie, supra, at p.
1331 aptly describe the meaning of due diligence in this
context:
One
comment on the defence of reasonable care in this
context should be added. Since the issue is whether the
defendant is guilty of an offence, the doctrine of
respondeat superior has no application. The due
diligence which must be established is that of the
accused alone. Where an employer is charged in respect
of an act committed by an employee acting in the course
of employment, the question will be whether the act took
place without the accused's direction or approval, thus
negating wilful involvement of the accused, and whether
the accused exercised all reasonable care by
establishing a proper system to prevent commission of
the offence and by taking reasonable steps to ensure the
effective operation of the system. The availability of
the defence to a corporation will depend on whether such
due diligence was taken by those who are the directing
mind and will of the corporation, whose acts are
therefore in law the acts of the corporation itself. (Emphasis
added)
As the above passage
makes clear, an employer must show that a system was in
place to prevent the prohibited act from occurring and
that reasonable steps had been taken to ensure the
effective operation of that system. The trial judge
addressed the question of due diligence in her reasons.
She said in part:
I cannot
accept the defence of due diligence on behalf of the
company. Certainly the court does not look for
perfection, but it is necessary that there appears to be
a sense of compliance to the regulations by the company.
The company had put their drivers in a position of a
self-reporting situation. They had delegated to their
drivers a degree of trust to comply with the
regulations. Nevertheless, it is still their
responsibility to ensure strict compliance. They cannot
delegate and then close their eyes to non-compliance.
There are not sufficient safety guards within their
system to check for this type of irregularity in
completion of such an important document.
The trial judge was
also critical of the appellant's training program in so
far as it failed to adequately deal with emergency
situations like that encountered by Mr. Howard in this
case.
The judge of the
Provincial Division did not interfere with the trial
judge's finding that the appellant failed to exercise
due diligence. This court cannot interfere with that
finding absent an error in law. I see no error in law
either in the trial judge's treatment of the evidence or
the ultimate conclusion arrived at by her. I would
dismiss the appeal on count 1. … VII I would quash the
conviction on count 2 and enter an acquittal. I would
affirm the conviction on count 1 and the sentence
imposed by the judge of the Ontario Court (Provincial
Division). If the appellant has paid the fine imposed on
count 2, it is entitled to the return of that fine.
Appeal allowed, in part.
5. Corporations and the Charter
R. v. CIP Inc.
11. Any
person charged with an offence has the right (b) to
be tried within a reasonable time; 2.
There are two issues to be resolved:
(1) whether the appellant has a right to be tried
within a reasonable time pursuant to s. 11(b); and (2)
if the appellant can rely upon s. 11(b), whether there
has been unreasonable delay in the circumstances of this
case. … Analysis …
29. In Hunter v. Southam Inc., [1984] 2 S.C.R.
145, a corporation applied for an interim injunction to
prevent a search of its premises made pursuant to the
Combines Investigation Act, R.S.C. 1970, c. C-23. As one
of the bases for its application, the plaintiff invoked
the right to be secure against unreasonable search or
seizure enshrined in s. 8 of the Charter. The trial
judge held that the word "everyone" in the context of s.
8 includes "all human beings and all entities that are
capable of enjoying the benefit of security against
unreasonable search", but nonetheless dismissed the
application (Southam Inc. v. Hunter (1982), 136 D.L.R.
(3d) 133, at p. 141, emphasis added). The Alberta Court
of Appeal allowed the corporation's appeal, holding that
the statutory provisions authorizing the search were
inconsistent with s. 8 of the Charter (Southam Inc. v.
Hunter (1983), 147 D.L.R. (3d) 420, at p. 437). That decision was unanimously
affirmed by this Court. Neither the Court of Appeal nor
this Court took issue with the noted conclusion of the
trial judge.
30. It should be kept in mind that "person"
includes a corporation under the general provisions of
the Interpretation Act, R.S.C., 1985, c. I-21. We must
also remember that corporate criminal liability is
essentially vicarious liability based upon the acts and
omissions of individuals: "a corporation may only act
through agents " (Canadian Dredge & Dock Co. v. The
Queen, [1985] 1 S.C.R. 662, at p. 675). Extending
Charter guarantees to corporations will, in some
circumstances, afford a measure of protection to those
individuals. … 33.
The Occupational Health and Safety Act, under
which the appellant is charged, provides pursuant to s.
37(2)(c) that it "shall be a defence for the accused to
prove that every precaution reasonable in the
circumstances was taken". The availability of witnesses
and the reliability of their testimony could have a
significant impact upon the appellant's ability to put
forward that defence. I am of the view that the
appellant has a legitimate interest in being tried
within a reasonable time. The right to a fair trial is
fundamental to our adversarial system. Parliament has
seen fit to accord that right constitutional protection.
I can find no principled reason for not extending that
protection to all accused. To that end, I find apposite
the comments of MacDonnell Prov. Div. J. in R. v. 741290
Ontario Inc. (1991), 2 O.R. (3d) 336, at pp. 351-52:
37.
In my view, the societal interest applies to corporate
offenders as it does to individual accused. To hold
otherwise would be to suggest that the community is
somehow less interested in seeing the former brought
to trial. It would also suggest that the status of an
accused can determine whether that accused is to be
accorded "fair" and "just" treatment. I am not
prepared to accept either of those propositions. …
57.
We are reviewing the decision that was made on
November 1, 1988. The delay after that motion was
granted is appellate delay. The bulk of that delay is
attributable to the appellant's decision to pursue
appeals. The appellant invoked the processes of which
it now complains and must accept the burdens inherent
in full appellate review. There is no evidence or
argument to support a finding that some extraordinary
factor lengthened that review process. …
Appeal
dismissed
A. Canada
Criminal Code Offences of negligence — organizations Other offences — organizations
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