Criminal Law Web

Chapter 9. Causation

 

R. v. Roberts
Court of Criminal Appeal, England
(1971) 56 Cr. App. R. 95

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....

Next, they had to consider: was the appellant guilty of an assault occasioning her actual bodily harm? Of course, for that to be established, it had to be established that he was responsible in law and in fact for her injuries caused by leaving in a hurry the moving car, and it is the Chairman’s direction with regard to the law on the second count which leads to this appeal. So far as the assault occasioning actual bodily harm was concerned, said the Chairman, “the matter arises in this way. The prosecution say, that is to say, Miss Bell says, that driving along in the car, after the scene on the car park, the defendant, she says, started trying to take her coat off. That act, in the context of the conversation that had been going on, if it was against her will, was an assault. The prosecution say that was, for her, ‘the last straw’.”

The prosecution were using the girl’s words. The Chairman continued: “That act, that assault, say the prosecution, caused her to jump from the car. If, therefore, you find that it was an assault, that is to say, find that the defendant did try to take her coat off and that she was not consenting and because of that she jumped out of the car and injured herself, then that would be an assault occasioning actual bodily harm, but you have to be satisfied that there was an assault and that it was that assault that caused the harm.”

Then he gave an illustration, possibly misleading to the jury and not very helpful, about the way in which the harm could be caused. Then later on he came back to the second charge: “That, in point of time and space, takes us some five or ten minutes on and about two miles down the road. At that stage Miss Bell says, ‘He was telling me what he had done to other women, the effect of his conversation was that he was going to have his way with me, and then he started to take off my coat. That was the last straw. I opened the car door and jumped’” -- the evidence of the girl to which I have already referred.

He then used these words: “If that be true, then without doubt, that is an assault and it occasioned actual bodily harm. Your verdict would be Guilty upon that charge. His version is, ‘We were arguing. Of course, I was frustrated at being stopped when I was stopped, but I had nothing really to do with her jumping out of the car. It was merely a result of a verbal battle between us. She suddenly opened the door and before I could do anything she had gone.’ If that be right, there was no assault. Certainly you would acquit on that charge. But, once more, remember it is for the prosecution who have brought the charge to prove it. If you are sure that their version be right, convict, but not otherwise.”

He then went in detail into the accounts of the girl and of the man....

We have been helpfully referred to a number of reported cases, some well over a century old, of women jumping out of windows, or jumping or throwing themselves into a river, as a consequence of threats of violence or actual violence. The most recent case is the case of LEWIS [1970] Crim.L.R. 647. An earlier case is that of BEECH (1912) 7 Cr.App.R. 197, which was a case of a woman jumping out of a window and injuring herself, and of a man who had friendly relations with her, whom she knew and might have had reason to be afraid of, being prosecuted for inflicting grievous bodily harm upon her, contrary to section 20 of the Offences against the Person Act. In that case the Court of Criminal Appeal (at p. 200) approved the direction given by the trial judge in these terms:

“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
Court of Appeal
[1983] 76 Cr. App. R. 279

Appeal against conviction.

In the early hours of one morning on the first floor of a block of flats where he lived, the appellant, who was armed with a shotgun and cartridges, shot at police officers who were attempting to arrest him for various serious offences. The appellant had with him a 16-year-old girl who was pregnant by him, and against her will used her body to shield him from any retaliation by the officers. The officers in fact returned the appellant’s fire and as a result the girl was killed. The appellant was charged, inter alia, with her murder. The jury acquitted the appellant of murder and convicted him of manslaughter....

ROBERT GOFF L.J.: The judgment I am about to deliver is the judgment of the Court, on which we are all agreed....
In our judgment, the question whether an accused person can be held guilty of homicide, either murder or manslaughter, of a victim the immediate cause of whose death is the act of another person must be determined on the ordinary principles of causation, uninhibited by any such rule of policy as that for which Lord Gifford has contended.....

We turn to the first ground of appeal, which is that the learned judge erred in directing the jury that it was for him to decide as a matter of law whether by his unlawful and deliberate acts the appellant caused or was a cause of Gail Kinchen’s death....

Now the whole subject of causation in the law has been the subject of a well-known and most distinguished treatise by Professors Hart and Honoré, Causation in the Law. Passages from this book were cited to the learned judge, and were plainly relied upon by him; we, too, wish to express our indebtedness to it. It would be quite wrong for us to consider in this judgment the wider issues discussed in that work. But, for present purposes, the passage which is of most immediate relevance is to be found in Chapter XII, in which the learned authors consider the circumstances in which the intervention of a third person, not acting in concert with the accused, may have the effect of relieving the accused of criminal responsibility. The criterion which they suggest should be applied in such circumstances is whether the intervention is voluntary, i.e. whether it is “free, deliberate and informed.” We resist the temptation of expressing the judicial opinion whether we find ourselves in complete agreement with that definition; though we certainly consider it to be broadly correct and supported by authority. Among the examples which the authors give of non-voluntary conduct, which is not effective to relieve the accused of responsibility, are two which are germane to the present case, viz. a reasonable act performed for the purpose of self-preservation, and an act done in performance of a legal duty.

There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused’s own act, does not operate as a novus actus interveniens. If authority is needed for this almost self-evident proposition, it is to be found in such cases as Pitts (1842) C. & M. 284, and Curley (1909) 2 Cr.App.R. 96. In both these cases, the act performed for the purpose of self-preservation consisted of an act by the victim in attempting to escape from the violence of the accused, which in fact resulted in the victim’s death. In each case it was held as a matter of law that, if the victim acted in a reasonable attempt to escape the violence of the accused, the death of the victim was caused by the act of the accused. Now one form of self-preservation is self-defence; for present purposes, we can see no distinction in principle between an attempt to escape the consequences of the accused’s act, and a response which takes the form of self-defence. Furthermore, in our judgment, if a reasonable act of self-defence against the act of the accused causes the death of a third party, we can see no reason in principle why the act of self-defence, being an involuntary act caused by the act of the accused, should relieve the accused from criminal responsibility for the death of the third party. Of course, it does not necessarily follow that the accused will be guilty of the murder, or even of the manslaughter, of the third party; though in the majority of cases he is likely to be guilty at least of manslaughter. Whether he is guilty of murder or manslaughter will depend upon the question whether all the ingredients of the relevant offence have been proved; in particular, on a charge of murder, it will be necessary that the accused had the necessary intent, on the principles stated by the House of Lords in Hyam v. D.P.P. (1974), 59 Cr.App.R. 91; [1975] A.C. 55.

No English authority was cited to us, nor we think to the learned judge, in support of the proposition that an act done in the execution of a legal duty, again of course being an act itself caused by the act of the accused, does not operate as a novus actus interveniens. Before the judge, the cases relied on by the prosecution in support of this proposition were the two Pennsylvanian cases already referred to, Commonwealth v. Moyer (supra) and Commonwealth v. Almeida (supra). However, since the case of Redline (supra), neither of these cases can be regarded as authority in the State of Pennsylvania: Redline was not cited to the learned judge, we suspect because it is not referred to in Hart and Honoré Causation in the Law, almost certainly because the report of Redline was not available to the learned authors when their treatise went to the press. Even so, we agree with the learned judge that the proposition is sound in law, because as a matter of principle such an act cannot be regarded as a voluntary act independent of the wrongful act of the accused....

Appeal dismissed

 

R. v. Cheshire
Court of Appeal, Criminal Division
[1991] 3 All E.R. 670

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.

At about midnight on December 1987 the appellant was in the ‘Ozone’ fish and chip shop in Greenwich when he became involved in an argument with Trevor Jeffrey, the deceased. The appellant produced a handgun and fired it at the ceiling. The deceased grappled with him but the appellant fired two more shots. They were fired at the deceased at close range. One bullet entered the top of the thigh and shattered the thigh bone. The other entered the deceased’s stomach. The appellant fled from the shop, and an ambulance and the police were summoned. The deceased was taken to the accident and emergency department of the Greenwich District Hospital. There, in the early hours of the morning, he underwent surgery. Both bullets had caused extensive damage. The thigh injury was cleaned, the bone joined and his leg placed in traction. There was substantial damage in the abdominal cavity, which was contaminated. A fairly extensive bowel resection and wound toilet was carried out and he was given blood transfusions. In due course he was transferred to the intensive care unit. He there developed respiratory problems and his breathing had to be maintained by a ventilator using a tube placed in the windpipe. A week later this tube was replaced by a tracheotomy tube, which remained in place for the next four weeks. His condition did not improve and after a marked deterioration on Christmas Day a further operation to explore his abdomen was carried out.

From time to time he suffered from chest infections, from vomiting and from discharges from the abdominal wound and it was not until 2 February 1988 that he began to show improvement. During his time in intensive care the deceased’s lungs had become congested and filled with fluid and he suffered considerable difficulty with breathing. On 8 February he again complained of difficulty in breathing and it was at first thought that this was a recurrence of the problem with his lungs. An X-ray was taken but it showed no recurrence of lung trouble. Whilst in intensive care the deceased had on several occasions shown signs of anxiety and a tentative diagnosis was made that the intermittent problem with his breathing of which he complained after 8 February was due to attacks of anxiety. He was seen by several doctors of differing experience during the ensuing week. He was probably seen by Mr Harrison, the consultant general surgeon at Greenwich District Hospital, on one occasion. He was also seen by the surgical registrar, Mr Saunders, and the orthopaedic registrar. Later, on the evening of 14 February, he complained of further difficulty with breathing and was attended by a house surgeon, Dr Clare Jones. Dr Jones had qualified in the summer of 1987 and had been a medical houseman for six months before becoming house surgeon on X February. She was worried about the deceased’s condition and sat with him for three-quarters of an hour recording in the notes that he was making a noise through his respiratory passages which she described as ‘stridor’. The deceased’s condition deteriorated and the medical registrar was called. Urgent resuscitation, including cardiac massage, was given but the deceased died shortly after midnight.

At post-mortem it was found that the deceased’s windpipe had become obstructed due to narrowing near the site of the tracheotomy scar. Such a condition is a rare but not unknown complication of intubation of the windpipe. The deceased’s windpipe had become so narrowed that even a small amount of mucus could block it and cause asphyxiation.

The experienced pathologist who conducted the post-mortem gave evidence that the immediate cause of death was cardio-respiratory arrest–

‘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
Supreme Court of Canada
[1977] 34 C.C.C. (2d) 427; [1978] 1 S.C.R. 506

The judgment of the Court was delivered by
DICKSON, J.:–This is an appeal from a judgment of the Court of Appeal for Ontario dismissing an appeal brought by the appellant from his conviction by Judge and jury on a charge of manslaughter. The indictment alleges that the appellant did unlawfully kill Barrie Ross Cobby by kicking him....

I agree with the majority view in the Ontario Court of Appeal that the issue as to the cause of death was properly and sufficiently delineated by the trial Judge. It was not an unduly complicated issue. The assault by the appellant upon the deceased boy was undoubtedly an unlawful act. The principal issue was whether the appellant had committed homicide by directly or indirectly, by any means, causing the death of Cobby and whether such homicide was culpable for the reason that it was caused by an unlawful act. The Crown quite properly chose to establish causation principally through medical evidence and the doctors, men of high professional standing, understandably were disinclined to speak in absolute terms....

The jury was not limited to the evidence of the medical experts. In considering the issue of causation the jury had the benefit of uncontradicted evidence of a number of lay witnesses to the effect that the appellant kicked the deceased boy in the stomach area, that the kick was followed by immediate distress, and that the death occurred within minutes. This was cogent evidence to which the jury could apply common sense in considering the issue of causality....

... [T]here 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. It is immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the appellant may, or may not, have contributed. No question of remoteness or of incorrect treatment arises in this case....

...A person commits homicide, according to s. 205(1) of the Code {now s. 222(1)}, when directly or indirectly, by any means, he causes the death of a human being. Once evidence had been led concerning the relationship between the kick and the vomiting, leading to aspiration of stomach contents and asphyxia, the contributing condition of a malfunctioning epiglottis would not prevent conviction for manslaughter. Death may have been unexpected, and the physical reactions of the victim unforeseen, but that does not relieve the appellant....

It is a well-recognized principle that one who assaults another must take his victim as he finds him. An extreme example of the application of the principle will be found in the English case of R. v. Blaue, [1975] 1 W.L.R. 1411, in which the Court upheld a conviction for manslaughter where the victim’s wounds were only fatal because of her refusal, on religious grounds, to accept a blood transfusion. The Court rejected the argument that the victim’s refusal had broken the chain of causation between the stabbing and the death.

Although causation in civil cases differs from that in a criminal case, the “thin skulled man” may appear in the criminal law as in the civil law. The case of R. v. Nicholson (1926), 47 C.C.C. 113, 59 N.S.R. 323, will serve as an illustration. In that case, the accused dealt the deceased man two heavy blows. The man who was struck was in poor physical condition. His heart was abnormally small and he was suffering from Bright’s disease. An eminent medical specialist was asked if the blow or blows could cause death, given the condition of the body which was described, and he said it was possible. The blow might be one of the causes. Over-indulgence in alcohol, bad health, and the blow and tussle combined, in his opinion, to account for the result. The appeal from conviction was dismissed. Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some way to the death. I myself presided at a jury trial in which the accused, one Alan Canada, following an argument, struck his brother lightly on the head with a piece of firewood as a result of which the brother died some time later without regaining consciousness. The medical evidence showed that the bony structure of his skull was unusually thin and fragile. The accused, on the advice of counsel, pleaded guilty to a charge of manslaughter and I have never considered that he was wrong in doing so....

I would dismiss the appeal.

Appeal dismissed.

 

R. v. Blaue
Court of Appeal
[1975] 1 W.L.R. 1411; [1976] 61 Crim. App. Rep. 271

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.

The victim was a young girl aged 18. She was a Jehovah’s Witness. She professed the tenets of that sect and lived her life by them. During the late afternoon of May 3, 1974, the defendant came into her house and asked her for sexual intercourse. She refused. He then attacked her with a knife inflicting four serious wounds. One pierced her lung. The defendant ran away. She staggered out into the road. She collapsed outside a neighbour’s house. An ambulance took her to hospital, where she arrived at about 7.30 p.m. Soon after she was admitted to the intensive care ward. At about 8.30 p.m. she was examined by the surgical registrar who quickly decided that serious injury had been caused which would require surgery. As she had lost a lot of blood, before there could be an operation there would have to be a blood transfusion. As soon as the girl appreciated that the surgeon was thinking of organising a blood transfusion for her, she said that she should not be given one and that she would not have one. To have one, she said, would be contrary to her religious beliefs as a Jehovah’s Witness. She was told that if she did not have a blood transfusion she would die. She said that she did not care if she did die. She was asked to acknowledge in writing that she had refused to have a blood transfusion under any circumstances. She did so. The prosecution admitted at the trial that had she had a blood transfusion when advised to have one she would not have died. She did so at 12.45 a.m. the next day. The evidence called by the prosecution proved that at all relevant times she was conscious and decided as she did deliberately, and knowing what the consequences of her decision would be. In his final speech to the jury, Mr. Herrod for the prosecution accepted that her refusal to have a blood transfusion was a cause of her death. The prosecution did not challenge the defence evidence that the defendant was suffering from diminished responsibility.

Towards the end of the trial and before the summing up started counsel on both sides made submissions as to how the case should be put to the jury. Counsel then appearing for the defendant invited the judge to direct the jury to acquit the defendant generally on the count of murder. His argument was that her refusal to have a blood transfusion had broken the chain of causation between the stabbing and her death. As an alternative he submitted that the jury should be left to decide whether the chain of causation had been broken. Mr. Herrod submitted that the judge should direct the jury to convict, because no facts were in issue and when the law was applied to the facts there was only one possible verdict, namely, manslaughter by reason of diminished responsibility.

When the judge came to direct the jury on this issue he did so by telling them that they should apply their common sense. He then went on to tell them they would get some help from the cases to which counsel had referred in their speeches. He reminded them of what Lord Parker CJ. had said in Reg. v. Smith [1959] 2 Q.B. 35, 42 and what Maule J. had said 133 years before in Reg. v. Holland (1841) 2 Mood. & R. 351, 352- He placed particular reliance on what Maule J. had said. The jury, he said might find it “most material and most helpful.” He continued:

‘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
Ontario Court of Appeal
[1994] 17 O.R. (3d) 548

The judgment of the court was delivered by
ARBOUR J.A.:—The appellant, along with his co-accused Charles Reid, was charged with second degree murder in the death of Dominic Ginell. In the course of the trial, Reid pleaded guilty to second degree murder. The appellant was convicted of manslaughter and he was sentenced to eight years’ imprisonment and a ten-year firearm prohibition. He appeals his conviction and, alternatively, seeks leave to appeal his sentence.

[T]he appellant challenges the constitutionality of the causation test for manslaughter articulated by the Supreme Court of Canada in R. v. Smithers, [1978] 1 S.C.R. 506, 34 C.C.C. (2d) 427....

(2) The Constitutionality of the Smithers Test

(a) Introduction

.... The appellant submits that the test in Smithers sets the causation threshold in homicide so low as to infringe upon the principles of fundamental justice in s. 7 of the Charter. In Smithers, Dickson J. held that on a charge of manslaughter, all the Crown has to establish is that the assault inflicted upon the victim “was at least a contributing cause of death, outside the de minimis range” (p. 518 S.C.R., p. 435 C.C.C.). Dickson J. added, at p. 519 S.C.R., p. 436 C.C.C.:

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):
There are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide, e.g., the most trivial assault, if it should, through some unforeseen weakness in the deceased, cause death, will render the actor guilty of culpable homicide....
In the case of so-called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least. The act of the accused in R. v. Larkin fell within the class of intentional crimes because he was engaged in committing an assault upon Nielsen, and the fact that he caused a different type of harm to that which he intended did not free him from criminal responsibility.
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”.

Although the word does not appear in the statute, it is clearly a convenient word to use to indicate to the jury that it must be something more than de minimis, and also to avoid possibly having to go into details of legal causation, remoteness and the like.
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:
It is a well-recognized principle that one who assaults another must take his victim as he finds him....
Although causation in civil cases differs from that in a criminal case, the “thin skulled man” may appear in the criminal law as in the civil law....Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some way to the death.
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. That is not, in my view, contrary to fundamental justice.
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.
(Williams, Textbook of Criminal Law, 2nd ed. (1983), at pp. 381-82.)
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
Supreme Court of Canada
[2001] 3 S.C.R. 488

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
L’HEUREUX-DUBÉ J.:—I had the benefit of reading my colleague Madam Justice Arbour’s reasons and while I concur in the result she reaches, I do not agree with her suggestion to rephrase the standard of causation for culpable homicide set out by this Court in Smithers v. The Queen, [1978] 1 S.C.R. 506. Writing for the Court, Dickson J. (as he then was) articulated the causation test in the following manner (at p. 519):

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.
...
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. [Emphasis added.]
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.
...
The imposition of a “substantial” or “significant” cause standard in a second degree murder case would permit a trier of fact to find that an accused did intend to cause the death of the victim, and that pursuant to that intent the accused contributed to the victim’s death in a manner that was not minimal, insignificant, or trivial, but then acquit the accused on the basis that the accused’s contribution could not be classified as an “important” [or “significant”] cause of death... . It is submitted that the wording of the standard which most accurately captures the proper broad causation threshold for second degree murder is that which instructs a jury that the accused’s conduct had to be a contributing cause of death which is more than insignificant, minimal, or trivial. [Emphasis added.]
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
ARBOUR J.:—

I. Introduction

The 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

...
The only medical evidence at trial on the issue of cause of death was the evidence of Dr. Roy, the forensic pathologist who investigated Mrs. Loski’s death and who testified for the Crown. Dr. Roy concluded that Mrs. Loski died as a result of asphyxiation due to an upper airway obstruction. Dr. Roy could not isolate one factor from among the circumstances of Mrs. Loski’s death and state that it alone caused her death by asphyxiation. In his view, a number of factors contributed to the asphyxial process, in particular, her hog-tied position, the ligature around her neck, as well as her age and corresponding lack of muscle tone. In cross-examination, Dr. Roy agreed that other factors, including Mrs. Loski’s congestive heart failure and asthma may possibly have speeded up the process of asphyxiation.

The appellant was charged with first degree murder on the basis that he had committed murder while committing the offence of unlawfully confining Mrs. Loski. The Crown’s position at trial was that the act of causing death and the acts comprising the offence of unlawful confinement all formed part of one continuous sequence of events making up a single transaction, and that the appellant was therefore guilty of first degree murder pursuant to s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant was tried before a judge and jury. The jury returned a verdict of second degree murder and the Court of Appeal dismissed the appellant’s appeal from that verdict. The only ground of appeal both before the Court of Appeal and before us concerns the test of causation applicable to second degree murder.
...

VI. Analysis

A. Introduction

There 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.

The respondent and the intervener Attorney General for Ontario submit that the applicable standard for second degree murder is the standard of “beyond de minimis” articulated in Smithers, supra. Their position is that the “substantial cause” test of causation is a higher standard of causation that only applies to the offence of first degree murder under s. 231(5) of the Criminal Code. As well, the Attorney General for Ontario submits that the higher Harbottle standard also applies to first degree murder under s. 231(6) of the Criminal Code, which uses the same terminology of “caused by that person” found in s. 231(5) in relation to murder committed in the course of criminal harassment. The respondent and intervener therefore say that the trial judge properly charged the jury on the applicable standard of causation in relation to second degree murder and that the appeal should accordingly be dismissed.

While the standard of causation for second degree murder has not been raised squarely before this Court until now, it was before the Ontario Court of Appeal in Cribbin, supra, and Meiler, supra. In both of these cases, the Smithers standard of “beyond de minimis” was expressly approved of in relation to a charge of second degree murder.

B. The Standard of Causation for Homicide Offences

The 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.

In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.

Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished: see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513; R. v. Vaillancourt, [1987] 2 S.C.R. 636,  at p. 652-53; R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336; R. v. Creighton, [1993] 3 S.C.R. 3, at p. 17; Cribbin, supra, at p. 568. In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. The nature of the inquiry at the stage of determining legal causation is expressed by G. Williams as follows in his Textbook of Criminal Law (2nd ed. 1983), at pp. 381-82, quoted in Cribbin, at p. 568:

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:]

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 standard of causation was more recently revisited by this Court in Harbottle, supra, in relation to a conviction of first degree murder under s. 214(5) (now s. 231(5)) of the Criminal Code. Harbottle involved the rape, forcible confinement and killing of a young woman. The appellant and his accomplice forcibly confined the victim and the appellant watched as his accomplice brutally sexually assaulted her and mutilated her with a knife. His accomplice then proceeded to kill the victim, first trying to slash her wrists and, when that proved unsuccessful, strangling her with her brassiere. To stop the victim from kicking to defend herself, the appellant held down her legs so that his accomplice could succeed in strangling her.

The trial judge in Harbottle charged the jury on first degree murder on the basis of planning and premeditation and also on the basis of the murder having been committed while the victim was being sexually assaulted or forcibly confined pursuant to s. 214(5) of the Code. The issue before this Court was whether the trial judge had properly charged the jury with respect to s. 214(5). The appellant conceded that he was a party to the murder of the victim while participating in her forcible confinement or sexual assault, but he argued that the words “caused by that person” in s. 214(5) of the Code meant that he could only be found guilty of first degree murder if his actions in holding down the victim’s legs were the diagnostic cause of death. The medical evidence revealed that the diagnostic cause of death was asphyxia. Clearly the asphyxia was not directly caused by the holding of her legs but rather by the actions of the appellant’s accomplice in strangling her. The Crown argued that the words “caused by that person” in s. 214(5) did not create a causation requirement distinct from the causation required for murder generally.

Cory J., writing for the Court in Harbottle, rejected the interpretations of both the Crown and defence as to the correct interpretation of the words “caused by that person” in s. 214(5) of the Code. He noted that s. 214(5) is in essence a sentencing provision, and only comes into play once the jury has found the accused guilty of murder for having caused the death of the victim. Once the jury has found the accused guilty of murder, the next step is to determine whether the accused is guilty of first degree murder under s. 214(5). In order for the accused to be found guilty under s. 214(5), with the increased stigma and sentence a conviction of first degree murder entails, Cory J. concluded that the accused must play a very active role --- usually a physical role --- in the killing and his actions must form an essential, substantial and integral part of the killing of the victim. Cory J. expressly stated that this substantial causation test under s. 214(5) is much higher than the Smithers standard of “a contributing cause of death, outside the de minimis range”: Harbottle, supra, at p. 324.

The appellant submits that Harbottle was a parties case and not a causation case and that it should not be interpreted as having adopted a more stringent legal test of causation for multiple cause cases. The appellant says that there was no debate as to what caused the victim’s death in Harbottle: she was strangled by the co-accused Ross. Harbottle was therefore not a multiple cause case, in the appellant’s submission. The real issue in Harbottle, says the appellant, was whether the accused had played an active enough role in the killing that he could be liable for first degree murder. What Harbottle did, according to the appellant, was to clarify the law on parties in the context of first degree murder under s. 231(5) of the Code, not create a higher standard of causation for offences under s. 231(5). The appellant’s position is that the terminology of “substantial cause” used in Harbottle should be used in charging the jury for all homicide offences and that it does not represent a more stringent standard of causation than the “beyond de minimis” standard set out in Smithers.

In oral argument, the appellant submitted that the Smithers test applies to all culpable homicide but that the Smithers test should be reformulated and “crystallized” to the specific standard of “significant” or “substantial” rather than using the Smithers terminology of “beyond de minimis” or “more than trivial”. The “crystallized” test of “significant” or “substantial” cause simply clarifies the language of causation so that the jury can properly focus on the correct standard, in the appellant’s submission, and does not raise the threshold of causation required. The alleged errors made by the trial judge are first that the jury was instructed on the Smithers standard of “more than a trivial cause” rather than the “crystallized” test of “significant” or “substantial” and, second, that the trial judge twice erred in expressing the Smithers standard of “more than a trivial cause” by describing it instead as a “slight or trivial cause”. The appellant submits that, as a result of these errors, the trial judge incorrectly explained the standard of causation for second degree murder to the jury and the jury may therefore have failed to understand the correct standard of causation.

The position of the respondent and the intervener Attorney General for Ontario is that Harbottle did establish an elevated causation threshold with the use of the terminology of “substantial cause” but that this elevated standard only applies to the offence of first degree murder pursuant to s. 231(5) of the Criminal Code and possibly also s. 231(6) of the Code. With respect to second degree murder and manslaughter, the respondent and intervener submit that the Smithers standard continues to apply.

There appears to be an inconsistency in the appellant’s argument in the present case. On the one hand, he is arguing that the “substantial cause” terminology of Harbottle does not represent a higher standard of causation than the Smithers standard and that using the terminology of “substantial cause” in relation to all homicide offences would not raise the causation threshold. On the other hand, however, he is arguing that Wilkinson J.’s use of the Smithers terminology instead of the Harbottle terminology in charging the jury on second degree murder was an error of law so serious that it justifies overturning the conviction for second degree murder and ordering a new trial. If, as the appellant submits, “substantial cause” is not a higher standard of causation than the Smithers formulation of “beyond de minimis”, it would seem to follow that using the Smithers terminology instead of the Harbottle terminology could not be an error of law, much less an error so serious that it should result in a new trial.

I agree with the appellant that what Harbottle really stresses is not solely or even primarily a higher causation requirement to raise murder to first degree murder under s. 231(5) of the Code, but rather the increased degree of participation required before the accused may be convicted of first degree murder under s. 231(5). However, I do not agree that the terminology of “substantial cause” should be used to describe the requisite degree of causation for all homicide offences.

Harbottle caused the victim’s death within the requirements of s. 231(5) of the Code because he was a co-principal in the murder. The degree of participation in the killing by a party whose liability for murder is based on aiding or abetting under s. 21(1)(b) or (c) of the Criminal Code or common intention under s. 21(2) of the Code, may, under the Harbottle formulation, be insufficient to permit a finding that the murder amounts to first degree under s. 231(5), which requires that the murder be committed “by that person” in the course of committing the underlying offence. In the present case, the underlying offence was the unlawful confinement of Mrs. Loski. The underlying offences listed in s. 231(5) of the Code all involve the unlawful domination of victims. Where an accused exploits this position of power and commits murder, such an egregious crime warrants the increased stigma and sentence attached to first degree murder:  see Paré, supra. As explained by Cory J. in Harbottle, in order to raise culpability to first degree murder under s. 231(5), something more is required. The “something more” is not that the accused caused more the death of the victim. What is required is that his participation in the killing be sufficiently immediate, direct and substantial to warrant the greater stigma and sentence attached to first degree murder.

As Harbottle, Cribbin and the present case illustrate, causation issues tend to arise in homicides involving multiple parties. Absent s. 21 of the Criminal Code, the attribution of criminal responsibility to an individual who aided or abetted another in the commission of the offence would indeed be problematic. However, the law of parties provides that individuals may bear criminal responsibility for the acts of another, and in that way speaks conclusively on some issues of causation. By virtue of s. 21 of the Code, Cory J. in Harbottle found it unnecessary to engage in fine distinctions as to the degree of participation of the two perpetrators in the killing. Rather, he focused on the meaning of the words “when the death is caused by that person” in s. 214(5) (now s. 231(5)) in deciding whether the appellant could be found guilty of first degree murder. Cory J. concluded that the use of the word “caused” in s. 214(5) imposed an additional causation requirement separate from the causation required for the offence of murder, which comes into play once the jury has already concluded that the accused is guilty of murder for having caused the death of the victim: Harbottle, supra, at pp. 316-17. Although not relevant to the present appeal, I note that s. 231(6) of the Code also uses the wording “when the death is caused by that person” found in s. 231(5) to elevate murder to first degree murder where the murder is committed in the course of the offence of criminal harassment under s. 264 of the Code. ...

Once the jury concludes that the accused has committed murder, Harbottle indicates that the jury should then move on to consider whether aggravating circumstances exist that justify the increased sentence and stigma of a first degree murder conviction under s. 231(5). The additional “causation” requirement under s. 231(5) does not refer to factual causation but rather to an increased degree of legal causation. In other words, once the jury has determined that the accused committed murder, which entails a finding that the accused caused the victim’s death in both factual and legal terms, it is then necessary to consider whether the moral culpability of the accused, as evidenced by his role in the killing, justifies a verdict of first degree murder. As Cory J. states in Harbottle, “[t]he gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established in order to convict an accused of first degree murder” (p. 323 (emphasis deleted)). Such a high degree of blameworthiness would only be established where the actions of the accused were found to be “an essential, substantial and integral part of the killing of the victim” (Harbottle, at p. 324). The terminology of “substantial cause” is used to indicate a higher degree of legal causation but it is a standard that only comes into play at the stage of deciding whether the accused’s degree of blameworthiness warrants the increased penalty and stigma of first degree murder.

It is clear from a reading of Harbottle that the “substantial cause” test expresses the increased degree of moral culpability, as evidenced by the accused person’s degree of participation in the killing, that is required before an accused can be found guilty under s. 231(5) of the Criminal Code of first degree murder. The increased degree of participation in the killing, coupled with a finding that the accused had the requisite mens rea for murder, justifies a verdict of guilty under s. 231(5) of the Code.

D. Explaining the Standard of Causation to the Jury

As 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. ...

In describing the Smithers standard of causation, Lambert J.A. concluded that the phrase “a contributing cause that is not trivial or insignificant” reflected the applicable standard without the need to resort to the use of the Latin expression “beyond de minimis”. He further found that a cause that is “not insignificant” can be expressed positively as a cause that is “significant” and that it would therefore be correct to describe the Smithers standard as a “significant contributing cause” (para. 29).

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. I agree with Lambert J.A. that even if it were desirable to formulate a causation test for second degree murder that is higher than the Smithers standard for manslaughter but less strict than the Harbottle standard for first degree murder under s. 231(5), which I conclude it is not, it would be difficult to formulate such a test in a meaningful way and even more difficult for a jury to grasp the subtle nuances and apply three different standards of causation.

The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. In addition, in the case of first degree murder under s. 231(5) of the Code, Harbottle requires additional instructions, to which I will return. The only potential shortcoming with the Smithers test is not in its substance, but in its articulation. Even though it causes little difficulty for lawyers and judges, the use of Latin expressions and the formulation of the test in the negative are not particularly useful means of conveying an abstract idea to a jury. In order to explain the standard as clearly as possible to the jury, it may be preferable to phrase the standard of causation in positive terms using a phrase such as “significant contributing cause” rather than using expressions phrased in the negative such as “not a trivial cause” or “not insignificant”. Latin terms such as “de minimis” are rarely helpful.

In deciding how the applicable standard of causation should be articulated to the jury, trial judges have a discretion in choosing the terminology they wish to use to explain the standard. Causation issues are case-specific and fact-driven. For that reason, it is important to afford a trial judge with the flexibility to put issues of causation to the jury in an intelligible fashion that is relevant to the circumstances of the case, including whether or not there are multiple accused persons or parties. ...

In light of Harbottle, where the jury must be instructed on first degree murder under s. 231(5) of the Code in addition to manslaughter or second degree murder, the terminology of “substantial cause” should be used to describe the applicable standard for first degree murder so that the jury understands that something different is being conveyed by the instructions concerning s. 231(5) of the Code with respect to the requisite degree of participation of the accused in the offence. In such cases, it would make sense to instruct the jury that the acts of the accused have to have made a “significant” contribution to the victim’s death to trigger culpability for the homicide while, to be guilty of first degree murder under s. 231(5), the accused’s actions must have been an essential, substantial and integral part of the killing of the victim.

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 appellant submits that the present appeal is a case involving multiple causation in which the trier of fact must decide whether the acts of the accused were a “beyond de minimis” contribution that triggers criminal liability. The respondent and intervener do not take issue with the appellant’s characterization of this appeal as a case involving multiple causes.

The appellant submits that in this case several causes contributed to Mrs. Loski’s death. The appellant submits that the Crown’s medical expert, Dr. Roy, agreed that there were probably multiple factors contributing to Mrs. Loski’s asphyxia, namely, being hog-tied, the ligature around her neck, her congestive heart failure, her cardiac abnormality, her asthma and the old-fashioned corset girdle that she was wearing. In the appellant’s submission, the acts of the appellant and the victim’s pre-existing medical conditions may both have contributed to her death. The appellant submits that the medical evidence in the present case is equivocal as to what caused asphyxiation. The appellant submits that in a case involving only one cause of death, the “but for” test usually resolves the causation issue. However, in a case such as the present one involving two or more causes of death, the appellant submits that the trier of fact must decide whether the accused’s act contributed to the victim’s death sufficiently to attract criminal liability.

The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal conclusion that there were multiple operative causes of death. In a homicide trial, the question is not what caused the death or who caused the death of the victim but rather did the accused cause the victim’s death. The fact that other persons or factors may have contributed to the result may or may not be legally significant in the trial of the one accused charged with the offence. It will be significant, and exculpatory, if independent factors, occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the prohibited result.

In my view, this case does not involve truly multiple independent causes, as for instance, when improper treatment can also be responsible for the victim’s death. An example of a case that involves multiple causes is Hallett, supra. In that case, the victim was beaten and left unconscious by the sea and was drowned by the incoming tide. The question in that case was whether the accused’s actions were such that he should be held responsible for the death despite the intervening cause of the incoming tide. The court expressed the test of causation as follows at p. 149:

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 Verdict

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.

In this case, the charge to the jury was entirely satisfactory. The trial judge charged the jury on the elements of manslaughter, second degree murder and first degree murder under s. 231(5) of the Criminal Code. With respect to manslaughter and second degree murder, the trial judge told the jurors that they must find that the accused was “more than a trivial cause” of death in order to conclude that the accused caused Mrs. Loski’s death. In essence, this reflects the test of causation set out in  Smithers, and accurately states the correct standard of causation for second degree murder. On two occasions, once in the main charge and once in responding to a question from the jurors, Wilkinson J. misspoke in describing the appropriate test of causation for second degree murder, by contrasting the high standard of causation for first degree murder with the “slight or trivial cause necessary to find second degree murder”. In my view, these errors, which reflect the difficulty of expressing a standard in the negative, would not have caused the jury to believe that the applicable standard of causation for second degree murder was lower than the Smithers standard of “more than a trivial cause”. What the slips in the jury charge do illustrate is the fact that it is easier to express the standard of causation in positive terms, by referring to a “significant” contribution or cause, instead of using the negative phraseology of “beyond de minimis” or “more than a slight or trivial cause” in explaining causation to the jury....

VII. Conclusion and Disposition

For 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
[2009] M.J. No. 252
Manitoba Court of Appeal

The judgment of the Court was delivered by
1     B.M. HAMILTON and M.H. FREEDMAN JJ.A:— Three males beat Adam Lecours and left him injured in the middle of the road. Ten minutes later a car ran over him. He died from injuries that were consistent with the assault and the impact from the car.
...
26     [T]he sole issue for Pruden-Wilson's conviction appeal is whether the judge erred in law when she found that the Crown had proved causation beyond a reasonable doubt despite the involvement of the car in the death of Mr. Lecours. Pruden-Wilson argues that because the car broke the chain of causation, the assault on Mr. Lecours was not a significant contributing cause of his death.
...
35     As recognized by counsel, Nette is the leading decision with respect to homicide and causation. While Nette concerned second degree murder and focussed primarily on how the standard of causation for second degree murder should be expressed in charging a jury, the decision is the appropriate starting point for the analysis for Pruden-Wilson's appeal....
38     Causation does have two components: factual causation and legal causation. As stated by Arbour J., factual causation is "concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result" (at para. 44). Factual causation is often answered by the "but for" inquiry. See R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415. Legal causation, which is also referred to as "imputable causation" (Nette, at para. 45), is concerned with "the question of whether the accused person should be held responsible in law for the death that occurred" (ibid.).
39     Notwithstanding these two components, a distinct two-step analysis is not required when instructing a jury (Nette, at para. 46). Rather, the two inquiries are joined into one. Doherty J.A., in Talbot, wrote that this is done by instructing the jury "to decide whether the accused's actions significantly contributed to the victim's death" (at para. 81)....
42     The judge referred at some length to the applicable law, particularly Smithers and Nette. She identified that the Crown had to prove beyond a reasonable doubt that "the accused's unlawful act was a contributing cause of the death beyond de minimis" (at para. 26). Later, she refers to the test for causation in terms of a "significant contributing cause" (at para. 40).
43     Earlier, we stated that factual causation is usually a "but for" inquiry. Using the words of Doherty J.A. in Talbot, "[i]f the victim would not have died when he or she died but for the act of the accused, that act is a factual cause of death" (at para. 79)....
45     Pruden-Wilson places great reliance on the fact that the car was not roadworthy and that Mr. McLean was distracted just before he saw Mr. Lecours on the road. The Crown responds that a car on the roadside, no matter its condition or how it is driven, is foreseeable.
46     Cromwell J.A. (as he then was) wrote about the law of intervening cause in R. v. Tower, 2008 NSCA 3, 54 C.R. (6th) 338 (at paras. 25-26):

.... 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....
48     Thus, the intervening act must, in some way, be extraordinary or unusual. Being run over by a car when left helpless, lying in the middle of the road, is not an extraordinary or unusual event. We repeat the judge's words in her reasons (at para. 40): "They left him in the road, apparently not able to move out of the way. In such circumstances, the ordinary course of events would be that a car may strike him" (emphasis added). We agree with the judge that the condition of Mr. McLean's car and his momentary inattention "[do] not change this" (at para. 36).

 

People v. Kibbe
Court of Appeals of New York
35 N.Y.2d 407 (1974)

Gabrielli, Judge.
The factual setting of the bizarre events of a cold winter night of December 30, 1970, as developed by the testimony, including the voluntary statements of the defendants, reveal the following: During the early evening the defendants were drinking in a Rochester tavern along with the victim, George Stafford. The bartender testified that Stafford was displaying and ‘flashing’ one hundred dollar bills, was thoroughly intoxicated and was finally ‘shut off’ because of his inebriated condition. At some time between 8:15 and 8:30 p.m., Stafford inquired if someone would give him a ride to Canandaigua, New York, and the defendants, who, according to their statements, had already decided to steal Stafford’s money, agreed to drive him there in Kibbe’s automobile. The three men left the bar and proceeded to another bar where Stafford was denied service due to his condition. The defendants and Stafford then walked across the street to a third bar where they were served, and each had another drink or two.

After they left the third bar, the three men entered Kibbe’s automobile and began the trip toward Canandaigua. Krall drove the car while Kibbe demanded that Stafford turn over any money he had. In the course of an exchange, Kibbe slapped Stafford several times, took his money, then compelled him to lower his trousers and to take off his shoes to be certain that Stafford had given up all his money; and when they were satisfied that Stafford had no more money on his person, the defendants forced Stafford to exit the Kibbe vehicle.

As he was thrust from the car, Stafford fell onto the shoulder of the rural two-lane highway on which they had been traveling. His trousers were still down around his ankles, his shirt was rolled up towards his chest, he was shoeless and he had also been stripped of any outer clothing. Before the defendants pulled away, Kibbe placed Stafford’s shoes and jacket on the shoulder of the highway. Although Stafford’s eyeglasses were in the Kibbe vehicle, the defendants, either through inadvertence or perhaps by specific design, did not give them to Stafford before they drove away. It was some time between 9:30 and 9:40 p.m. when Kibbe and Krall abandoned Stafford on the side of the road. The temperature was near zero, and, although it was not snowing at the time, visibility was occasionally obscured by heavy winds which intermittently blew previously fallen snow into the air and across the highway; and there was snow on both sides of the road as a result of previous plowing operations. The structure nearest the point where Stafford was forced from the defendants’ car was a gasoline service station situated nearly one half of a mile away on the other side of the highway. There was no artificial illumination on this segment of the rural highway.

At approximately 10:00 p.m. Michael W. Blake, a college student, was operating his pickup truck in the northbound lane of the highway in question. Two cars, which were approaching from the opposite direction, flashed their headlights at Blake’s vehicle. Immediately after he had passed the second car, Blake saw Stafford sitting in the road in the middle of the northbound lane with his hands up in the air. Blake stated that he was operating his truck at a speed of approximately 50 miles per hour, and that he ‘didn’t have time to react’ before his vehicle struck Stafford. After he brought his truck to a stop and returned to try to be of assistance to Stafford, Blake observed that the man’s trousers were down around his ankles and his shirt was pulled up around his chest. A deputy sheriff called to the accident scene also confirmed the fact that the victim’s trousers were around his ankles, and that Stafford was wearing no shoes or jacket.

At the trial, the Medical Examiner of Monroe County testified that death had occurred fairly rapidly from massive head injuries. In addition, he found proof of a high degree of intoxication with a .25%, by weight, of alcohol concentration in the blood.

For their acts, the defendants were convicted of murder, robbery in the second degree and grand larceny in the third degree. However, the defendants basically challenge only their convictions of murder, claiming that the People failed to establish beyond a reasonable doubt that their acts ‘caused the death of another’, as required by the statute (Penal Law, § 125.25, subd. 2)[1] . . . In answering this question, we are required to determine whether the defendants may be convicted of murder for the occurrences which have been described. They contend that the actions of Blake, the driver of the pickup truck, constituted both an intervening and superseding cause which relieves them of criminal responsibility for Stafford’s death. There is . . . no statutory provision regarding the effect of an intervening cause of injury as it relates to the criminal responsibility of one who sets in motion the machinery which ultimately results in the victim’s death; and there is surprisingly little case law dealing with the subject. Moreover, analogies to causation in civil cases are neither controlling nor dispositive, since, as this court has previously stated: ‘A long distance separates the negligence which renders one criminally liable from that which establishes civil liability’ (People v. Rosenheimer, 209 N.Y. 115, 123, 102 N.E. 530, 533); and this is due in large measure to the fact that the standard or measure of persuasion by which the prosecution must convince the trier of all the essential elements of the crime charged, is beyond a reasonable doubt (In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368). Thus, actions which may serve as a predicate for civil liability may not be sufficient to constitute a basis for the imposition of criminal sanctions because of the different purposes of these two branches of law. . . . However, to be a sufficiently direct cause of death so as to warrant the imposition of a criminal penalty therefor, it is not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can be here said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.
* * *
We subscribe to the requirement that the defendants’ actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability. Applying these criteria to the defendants’ actions, we conclude that their activities on the evening of December 30, 1970 were a sufficiently direct cause of the death of George Stafford so as to warrant the imposition of criminal sanctions. In engaging in what may properly be described as a despicable course of action, Kibbe and Krall left a helplessly intoxicated man without his eyeglasses in a position from which, because of these attending circumstances, he could not extricate himself and whose condition was such that he could not even protect himself from the elements. The defendants do not dispute the fact that their conduct evinced a depraved indifference to human life which created a grave risk of death, but rather they argue that it was just as likely that Stafford would be miraculously rescued by a good samaritan. We cannot accept such an argument. There can be little doubt but that Stafford would have frozen to death in his state of undress had he remained on the shoulder of the road. The only alternative left to him was the highway, which in his condition, for one reason or another, clearly foreboded the probability of his resulting death.

Under the conditions surrounding Blake’s operation of his truck (i.e., the fact that he had his low beams on as the two cars approached; that there was no artificial lighting on the highway; and that there was insufficient time in which to react to Stafford’s presence in his lane), we do not think it may be said that any supervening wrongful act occurred to relieve the defendants from the directly foreseeable consequences of their actions. In short, we will not disturb the jury’s determination that the prosecution proved beyond a reasonable doubt that their actions came clearly within the statute and ‘cause(d) the death of another person’.

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LRCC § 2(6)

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MPC § 2.03

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Chapter 10. Inchoate Crimes

A. Attempt

1. Concepts and Types of Attempt

LRCC § 4(3)

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StGB §§ 22-23

* * *

MPC §§ 5.01, 5.05(1)

2. Mens Rea

 

R. v. Lajoie
Supreme Court of Canada
(1973) 10 C.C.C. (2d) 313; [1974] S.C.R. 399

The judgment of the Court (FAUTEUX C.J.C., ABBOTT, HALL, JUDSON, LASKIN, MARTLAND, PIGEON, RITCHIE, and SPENCE JJ.) was delivered by
MARTLAND J.: This appeal is from a judgment of the Court of Appeal for British Columbia which, by a majority of two to one, allowed the appeal of the present respondent from the acquittal of the appellant on a charge of attempted murder, and ordered a new trial on that issue.

The facts are summarized in the reasons for judgment of Nemetz J.A., as follows [4 C.C.C. (2d) 402 at pp. 412-3, 16 C.R.N.S. 180, [1971] 5 W.W.R. 385, sub nom. R. v. Lajoie]:

“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.

In charging the jury, the learned trial Judge said, in part, “in order that this person may be found guilty of the crime of the attempt to murder... you must be satisfied beyond a reasonable doubt that at the time he did that shooting he had the intent to kill that taxi driver.” The jury found the accused guilty, not of attempted murder, as charged, but of the lesser offence of discharging a firearm with intent to endanger life.”
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.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
Section 201 (now s. 212) of the Criminal Code defines culpable homicide amounting to murder as follows:
201. {now s. 229} Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
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:

“In murder the jury is told—and it has always been the law—that if a person wounds another or attacks another either intending to kill or intending to do grievous bodily harm, and the person attacked dies, that is murder, the reason being that the requisite malice aforethought, which is a term of art, is satisfied if the attacker intends to do grievous bodily harm. Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intent to do grievous bodily harm.”
With great respect, it is difficult for me to resolve the illogicality referred to by Goddard L.C.J., with such facility. I prefer to follow the reasoning set out by Schroeder J.A., in R. v. Ritchie [1970] 5 C.C.C. 336. [1970] 3 O.R. 417. He said, in part [at pp. 342-3]:
“I feel great difficulty in concluding that the attempt is only proven when a direct intent rather than an indirect intent within the meaning of s. 201(a)(ii)is established. The attempt to commit murder must surely be an attempt to commit the act with the intent as defined in s. 201 (a)(i) and (ii) of the Code. Section 24 and s. 201 must be read together and due regard must be had to both sections in determining whether or not an attempt to murder has been established.
The bare intention does not constitute a crime and an innocent act acquires the quality of criminality only if it is coupled with an unlawful and malicious intent. There is nothing in the statement of this proposition to suggest that the mens rea for attempt should be restricted to direct intention. In R. v. Cunningham, [1957] 2 Q.B. 396at pp. 399-400, the Court of Criminal Appeal adopted the following principle which had been propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902and repeated at p. 186 of the 16th edition published in 1952:
‘In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2)recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured.’”
(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, if
(a) he means to cause bodily harm for the purpose of
(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or attempting to commit the offence,
and the death ensues from the bodily harm; ...
(d)he uses a weapon or has it upon his person
(i) during or at the time he commits or attempts to commit the offence, or
(ii) during or at the time of his flight after committing or attempting to commit the offence,
and the death ensues as a consequence.
As 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
Supreme Court of Canada
[1984] 10 C.C.C. (3d) 385

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.

At the date of the events which give rise to this appeal the respondent had been married some 25 years. His wife had left the matrimonial home and was living with one Kurely. The respondent was depressed and had been drinking to excess on the date in question. He telephoned his wife at Kurely’s residence and told her he was afraid that their 23-year-old son was about to commit suicide and asked her to meet him. She refused to co-operate. Later the same evening the respondent broke into a friend’s home while its owners were absent and took away three shot-guns. He sawed off the barrel of one, loaded it, and taking some extra ammunition with him went to Kurely’s apartment building and gained entry by breaking the glass in the front door. On hearing the noise caused by the breaking glass, Kurely came from his bedroom to investigate, carrying a chair with a jacket hanging on it. He saw the respondent, carrying the shot-gun, ascending the stairs to the second floor. He threw the chair and jacket, hitting the respondent. The gun went off. The blast missed Kurely by some three feet but put a hole in the jacket which had been on the chair. A struggle followed in which Kurely appears to have wrested the gun from the respondent. When the police arrived, having been called during the course of the fight between the two men, Kurely was on the floor with his head partly under a bed and with the respondent upon him striking him weakly.

Shortly after his arrest the respondent stated to the police:

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
Ontario Court of Appeal
[1956] 115 C.C.C. 18

The judgment of the Court was delivered by
LAIDLAW J.A.:—After trial in the Magistrate’s Court of the City of Hamilton, the appellant was convicted on the 28th February 1956 of the crime of indecent assault on Peter C., aged 12 years. Thereafter, upon application to the Court, pursuant to s. 661 {since repealed} of The Criminal Code, 1953-54 (Can.), c. 51, and upon hearing evidence adduced in support thereof, the Court found the appellant to be a criminal sexual psychopath. The Court sentenced the appellant to a term of imprisonment of 10 years in respect of the offence of which he was convicted and in addition imposed a sentence of preventive detention. He appeals to this Court from his conviction and asks for leave to appeal from the sentence imposed on him for committing the offence.

I shall summarize the evidence adduced in support of the case for the prosecution.

Peter C., aged 12 years, was sworn after due inquiry by the magistrate. He testified that on Christmas Eve 1955, at about 8 o’clock, he was walking on Cannon Street in the city of Hamilton on the way to his home on that street. The appellant stopped him and asked him if he would carry his suitcases. The appellant had no suitcases with him. Peter said “No” and kept on his way. Peter started to run and the appellant pursued him “down Hughson Street” to a little alley, up that alley, around the school, around the A. & P. Store, up Hughson Street again, and into a yard “where they make pipes for sewers and such things”. The appellant caught up with Peter at that place and grabbed him by the sleeve and stopped him. Peter states: “He told me I didn’t have to carry his suitcases unless I wished to do so, and he told me not to tell anybody and said they would be after him if I told anybody, and he gave me some money.” The appellant then ran away.

On 18th January 1956, at night-time, Peter was near the corner of Catherine and Cannon Streets when the appellant again approached him and asked him “what street it was” and then “he asked me if I wanted to make a couple of dollars carrying his suitcases”. Again the appellant had no suitcases with him. Peter said “No”, and the appellant went on his way. On cross-examination Peter stated that the place where he first met the appellant was in front of his school; that it was very dark and the electric light was some distance away from the place where the appellant approached him; that the appellant was wearing big, dark sun-glasses and “they almost covered his whole face”.

The Crown Attorney proceeded to adduce evidence of similar acts of the appellant on other occasions. Counsel for the appellant took objection to the admission of such evidence, but the learned Magistrate ruled that the evidence was properly admissible.

[A number of similar incidents were then detailed including the following two.]

Dennis C. (sworn after due inquiry), 9 years old, saw the appellant first on Barton St. near the corner of James St., shortly after 6.00 o’clock in the evening in January, 1956. It was quite dark at that place. The appellant came up to Dennis and asked him “what street this was” and if he wanted to “earn a dollar carrying a suitcase.” They walked down the street into a laneway and the appellant did an indecent act, which was undoubtedly done without the boy’s consent.

Wayne S. (sworn after due inquiry), 12 years old, saw the appellant first on January 18, 1956, about 7.30 o’clock in the evening. The appellant walked up to him on the street and asked him if he wanted to make a “couple of bucks” carrying a couple of suitcases. Wayne said “No” and the appellant walked away. ...

The main grounds of the appeal presented in argument to this Court were that the learned Magistrate “erred in admitting all the evidence relating to the alleged ‘similar acts’,” and that “there was insufficient evidence to constitute the offence.” In respect of the sentence, counsel simply set forth in the notice of appeal that the “sentence was excessive.”

Early in the course of the argument of counsel for the appellant, the Court intimated to him that although there might not be sufficient evidence to support the conviction for indecent assault, the appellant might be found guilty of an attempt to commit that offence. The argument proceeded then to completion as if the appellant had been convicted of the lesser offence. Counsel for the Crown in opening his argument conceded at once that the conviction for indecent assault could not stand because the evidence did not support it. He contended, however, that the evidence showing acts of similar conduct was properly admitted; that such evidence established a definite pattern of conduct from which the Court could find that on the occasion in question the accused intended to commit the offence of indecent assault; and that the whole evidence established an attempt to commit that offence. He asked the Court to substitute a conviction for such attempt in place of the conviction for the offence as charged, and to impose an appropriate sentence.

I shall discuss, first, the question of admissibility of evidence of similar acts of the appellant. It is my opinion that the evidence was properly admitted by the learned Magistrate. It tended to establish guilty design and criminal intent. It was evidence of the intention of the accused to commit the offence of indecent assault as charged against him.

[A number of authorities were then examined.]

Counsel then proceeded to his argument that the conduct and acts of the appellant from the moment he approached the boy were innocent in se, and that to constitute an attempt there must be “an act of such nature that it is itself evidence of the criminal intent with which it is done”. He endeavoured to apply the “unequivocality theory”, so-called, and the test suggested therein to determine whether or not an act done by an accused person is too remote to constitute an attempt to commit a crime. Salmond on Jurisprudence, 10th ed. 1947, s. 140, p. 388, accepts the “unequivocality theory” and likewise the learned editor of Archbold, Criminal Pleading, Evidence and Practice, 33rd ed. 1954, at p. 1489. But the theory is not universally accepted and has been much criticized: see Glanville Williams, Criminal Law; The General Part, 1953, s. 160, p. 495, and Hall, Principles of Criminal Law, 1947, p. 107, where the learned author says: “Despite the high competence of its proponents, it can readily be shown that the unequivocality theory is fallacious.”

Other theories and tests have been formulated with a view to finding an answer to the question whether or not an act is sufficient in law to constitute an actus reus: see Hall, op. cit., pp. 104 et seq., also The Cambridge Law Journal, vol. V, 1935, p. 236. It is my respectful opinion that there is no theory or test applicable in all cases, and I doubt whether a satisfactory one can be formulated. Each case must be determined on its own facts, having due regard to the nature of the offence and the particular acts in question. Much of the difficulty and confusion is attributable, in my humble opinion, to an insufficient understanding of the nature and gist of the crime of criminal attempt; and arises also in respect of the vexed question whether a particular act is an act of preparation only, or is an attempt. Perhaps, therefore, it will be helpful to observe carefully certain features of a criminal attempt as the doctrine of that offence was developed and established in the common law.

In ancient common law an attempt to commit a crime was not a misdemeanour. Apparently the established maxim was: “‘For what harm did the attempt cause, since the injury took no effect?’”: Hall, op. cit., p. 64, quoting from Bracton. But the Court of Star Chamber in the 16th century, and, after that Court was abolished in 1641, its successor the Court of King’s Bench, treated many acts in the nature of preparation to commit a crime of misdemeanours. Thus, in the Case of Duels (1615), 2 State Trials 1033 referred to in Hall, op. cit., p. 80, Sir Francis Bacon, the Attorney-General, in a Court which included the Archbishop of Canterbury, Lord Chancellor Ellesmere, Lord Chief Justice Sir Edward Coke, and Lord Chief Justice Hobart, described the prevalent evil of duelling and suggested that the wisest method of prevention was “to nip the practice...in the head” by punishing “all acts of preparation”....

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.

A learned writer, Mr. J.W. Cecil Turner, in an article, “Attempts to Commit Crimes” (1935), 5 Camb. L.J. 230 at p. 235, says:

“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
and one for attempt substituted.

 

R. v. Sorrell & Bondett
Ontario Court of Appeal
[1978] 41 C.C.C. (2d) 9

BY THE COURT:—The Attorney-General of Ontario appeals against the acquittal of the respondents on a charge of attempted robbery.

The respondents were tried at Kingston before His Honour Judge Campbell, sitting without a jury, on an indictment containing three counts.

Count 1 charged the respondents jointly with, on or about March 3, 1977, attempting to rob Peter Mason of Aunt Lucy’s Fried Chicken store at 240 Montreal St. in Kingston. Count 2 charged the respondent Sorrell with carrying, at the time and place aforesaid, a concealed weapon, to wit: a Smith and Wesson revolver. Count 3 charged the respondent Sorrell with having in his possession, at the time and place aforesaid, a Smith and Wesson revolver, knowing the same was obtained by an offence committed in Canada punishable on indictment. The respondent Sorrell, on arraignment, pleaded guilty to the charge of carrying a concealed weapon contained in count 2; his plea of guilty was accepted by the trial Judge after the evidence was completed, and he was sentenced to imprisonment of 18 months. The trial Judge acquitted the respondent Sorrell on count 3, on the ground that the Crown had failed to prove the necessary element of guilty knowledge. The Crown does not appeal the acquittal of Sorrell on count 3, and we are not further concerned with it.

On the evening of Thursday, March 3, 1977, Miss Dawn Arbuckle was the cashier at Aunt Lucy’s Fried Chicken store at 240 Montreal St. in Kingston. The store is located at the corner of Montreal and Markland Sts., the customer entrances being on Montreal St. Mr. Peter Mason was the manager of the store. The regular closing time for the store was 11:00 p.m., but, on the evening in question, since almost all the chicken had been sold, the manager decided to close the store earlier, and locked the customer entrances at approximately 10:45 p.m. Around 10 minutes to 11:00 Miss Arbuckle noticed two men, wearing balaclavas, on the Markland St. side of the store; they then came to one of the customer entrances on Montreal St. The area outside the store was illuminated, and the lights normally on in the store, when open, were still on.

One of the men was wearing a blue ski jacket and the other was wearing a brown coat. The balaclavas worn by the two men were pulled down completely over their heads, and one man was also wearing sunglasses. Miss Arbuckle said that the balaclava worn by one man was blue and white in colour, and that worn by the other man was brown and white.

One of the men rapped on the door and on the window. The manager, who had been mopping the floor, turned around and said, “Sorry we are closed”, and returned to his mopping. The two men turned toward each other, and made a gesture of surprise. At this time Miss Arbuckle noticed that one of the men had a silver-coloured gun in his hand. The two men then walked away on Montreal Street in the direction of Princess St.; whereupon Mr. Mason, the manager, telephoned the police. Two officers in a cruiser responded to the call, drove to the area and saw two men, whose clothing corresponded to the description that the officers had been given, walking on Montreal St. The officers drove past the two men, then made a U-turn and drove back towards them.

As the officers passed the two men, before making the U-turn, they saw one of the men throw “an article of material” towards a snow bank on the side of the street. The two men, who proved to be the respondents, were then arrested. The respondent Sorrell had a loaded .357 Magnum revolver concealed in his waistband. The gun was loaded with six Dominion .38 shells, and another five Dominion .38 shells were removed from the respondent Sorrell’s pants’ pocket.

An officer conducted a search of the immediate area where the respondents had been arrested, and found a brown balaclava on a snowbank on the side of Montreal St. The point on Montreal St. where the respondents were arrested was some 411 yards from the Aunt Lucy’s store, where the attempted robbery is alleged to have occurred. The officer proceeded along Montreal St. in the direction of the Aunt Lucy’s store, and found a blue balaclava in the middle of the sidewalk on Montreal St. at the intersection of Raglan St.

Neither of the respondents testified in his defence.

The Crown appeals against the acquittal of the respondents on the charge of attempted robbery on the ground that the trial Judge erred in law in holding that the acts of the respondents did not go beyond mere preparation, and hence did not constitute an attempt.

Section 24 of the Code defines an attempt 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.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. (Emphasis supplied.)
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
2. took steps in carrying out that intent which amounted to more than mere preparation (actus reus).

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.

In R. v. Cline, 91956), 115 C.C.C. 18 at p. 29, 4 D.L.R. (2d) 480, [1956] O.R. 539, at pp. 550-1, Laidlaw, J.A., in his much-quoted judgment, said:

(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....
(5) The actus reus must be more than mere preparation to commit a crime. But (6) when the reparation [sic] 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.
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.

I am obliged to counsel for their references to cases on the point, one of which endeavours to lay down tests for the assistance of the Court, and subsequent cases, but all of which have their own set of facts and circumstances with which the Court then in those cases had to deal. 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. I am conscious of the fact that the accused timed their arrival at the store such that they could expect a fund of money to be in the till, such they could expect there would likely be few if any persons there other than the store personnel, and that they had costumed themselves for the purpose of disguising their features to render subsequent identification difficult, but I am also of the view that it is important for me to consider the fact that apart from rattling the door and perhaps rattling on the window—that would be consistent with an innocent person’s endeavour to get in the food store—there was no gesture of threat of violence or threat of force. The case before me is attempted robbery and not attempted break, enter and theft, or break and enter with intent, or conspiracy, or whatever. So that the endeavour to open the door would—any way that it should have been before me—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 brief, in my finding, the accused by virtue of I suppose good luck of not having been able to progress further in doing whatever they were going to do had not yet crossed the line between mere preparation and attempt. Accordingly, I am finding that count 1 as regards both accused has not been proved on that narrow ground, and I have endorsed the indictment on count 1: both accused not guilty.
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
Supreme Court of Canada
[1986] 27 C.C.C. (3d) 385; [1986] 2 S.C.R. 2

BEETZ and MCINTYRE JJ. concur with Le Dain J.
LAMER J.:—I agree with the reasons of my brother Le Dain. In concurring with his judgment, I should like to add a brief comment. While I agree with the scope of his definition of the expression “illicit sexual intercourse” I should like to underline the fact that this agreement is to the extent those words are resorted to in the context of the procuring or soliciting thereof in s. 195(1)(a) of the Criminal Code. While under the facts of this case it is clear that Deutsch was acting for the purpose of gain, and there is no need to address the question of whether such a purpose is an essential ingredient of the notion of procuring or soliciting, I should say that my accepting such a wide definition of “illicit sexual intercourse” is dependent upon being of the view (and if and as long as that view prevails) that it is an essential ingredient of “procuring” or of “soliciting” under s. 195(1)(a) {now s. 212(1)(a)} that what is being done is done for lucre, gain, or some advantage to the accused.

WILSON J. concurs with Le Dain J.
LE DAIN J.:—This appeal, which involves a charge of attempting to procure a person to have illicit sexual intercourse with another person contrary to s. 195(1)(a) of the Criminal Code, raises two issues: the distinction between attempt and mere preparation, and the meaning of “illicit sexual intercourse”.

The appeal is from the judgment of the Ontario Court of Appeal on March 17, 1983 [5 C.C.C. (3d) 41], setting aside the acquittal of the appellant by Graburn Co. Ct. J. on August 13, 1982, of the charge of attempting to procure a person to have illicit sexual intercourse with another person and ordering a new trial of the appellant on that charge.

I

During 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 TRAVEL
Secretary—Sales Assistant to Sales Executive. $600-$800 per month to start plus commission, bonuses, company benefits and expenses. Must be free to travel extensively. Call 746-2440 ask for Mel.
In 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
2. Whether the Court of Appeal erred in holding that the sexual intercourse contemplated by the appellant would be illicit intercourse within s. 195(1)(a) of the Code.
...

III

I 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.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
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
Supreme Court of Colorado
163 P.3d 1111 (2007)

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.

Evidence at her trial indicated that in July 2001, the owner of a gun shop contacted the Denver Police Department and reported that a suspicious woman had attempted to buy gunpowder from him but refused to say why she wanted it. He declined to sell the gunpowder to her and instead notified the police. Through the license plate number he gave them, the police were able to identify the defendant.

Days later a friend of the defendant contacted the police, reporting that the defendant told her she was planning to kill two "pigs," using two pipe bombs. One of the officers was a male correctional officer at the Denver Women's Correctional Facility, where the defendant had been an inmate, and the other was a female officer named "Shelly." The friend testified that the defendant had borrowed a drill and made holes in the end caps of the bomb, and had asked for wooden clothespins to serve as a switch and a soldering iron to connect two small wires, saying that she only needed a few more parts to complete the bomb. The friend also testified that the defendant told her that she had learned how to construct bombs while in prison and had written instructions at her home. In addition, she testified that Lehnert had not only found out extensive family information and the home address of the correctional officer, but also had driven past his house numerous times.

The defendant's friend became concerned that the defendant was actually going to carry out the killings, and she called the police. In addition to telling the police about the defendant's statements and actions, she also told them that she had found in her home a business card for a second gun shop. By inquiring at the second gun shop, the police learned that the defendant had managed to purchase two boxes of shotgun shells.

A search warrant was issued for the defendant's apartment, where police discovered doorbell wire, electrical tape, a nine-volt battery, two metal pipes (which had been scored, weakening them and increasing their destructive potential), two metal end caps (with drilled out center holes), latex gloves, screwdrivers, wire cutters, safety glasses, magnets, two boxes of shotgun shells full of gunpowder, flashlight bulbs (sometimes used as an ignition device for a pipe bomb), and directions to the victim's house. In addition, the police found materials for making false identification cards, the defendant's driver's license, falsified birth certificates, an application for a new social security card, and a falsified high school transcript.

A police detective testified that the materials recovered from the defendant's apartment were explosive parts, capable of being assembled to make a bomb. The detective further testified that the defendant possessed everything required for a pipe bomb except a completed switch and that a switch could probably be made from the wire found at the scene or from a clothespin, which the defendant had tried to acquire from her friend.

At the close of the People's evidence, defense counsel moved for a judgment of acquittal on all counts, arguing that the evidence was insufficient to sustain the attempted first degree murder count because it did not include any evidence from which a reasonable jury could find that the defendant had yet taken a "substantial step" toward committing the murder, as required by the statute. The trial court disagreed and denied the motion. The court of appeals reversed the defendant's conviction for attempted murder, concluding that the evidence was insufficient. Largely because the pipe bombs were not fully assembled and placed in close proximity to the intended victim, the appellate court found that the defendant's conduct did not progress beyond "mere preparation." The People petitioned this court for a writ of certiorari.

A person commits criminal attempt in this jurisdiction if, acting with the kind of culpability otherwise required for commission of a particular crime, he engages in conduct constituting a substantial step toward the commission of that crime. See § 18-2-101(1), C.R.S. (2006).[2] ...

Until 1963, Colorado had not codified the law of attempt in a general statute. In that year, the General Assembly enacted with few modifications the Model Penal Code's proposed codification, including its enumeration of specific kinds of conduct, which would, under certain circumstances, be considered sufficient, as a matter of law, to overcome a motion for judgment of acquittal. In 1971, with the adoption of the Colorado Criminal Code, the unadulterated Model Penal Code approach was abandoned in favor of the approach of the proposed Federal Criminal Code [which itself was fashioned after the Model Penal Code]. See ch. 121, sec. 1, § 40-2-101(1), 1971 Colo. Sess. Laws 414, 414-15; People v. Frysig, 628 P.2d 1004 (Colo. 1981) ("The original formulation of criminal attempt in the Colorado Criminal Code was patterned after proposed federal legislation."); The Nat'l Comm'n on Reform of Fed. Criminal Laws, Study Draft of a New Federal Criminal Code § 1001, at 61-62 (1970).

Prior to the enactment of a general criminal attempt statute, the sporadic treatment of attempt by this court focused largely on the dangerousness of the actor's conduct in terms of its proximity to, or the likelihood that it would result in, a completed crime. Emphasizing that neither preparation alone nor a "mere intention" to commit a crime could constitute criminal attempt, we described an attempt as "any overt act done with the intent to commit the crime, and which, except for the interference of some cause preventing the carrying out of the intent, would have resulted in the commission of the crime." Lewis v. People, 124 Colo. 62, 67, 235 P.2d 348, 350 (1951). By also making clear, however, that the overt act required for an attempt need not be the last proximate act necessary to consummate the crime, we implicitly acknowledged that acts in preparation for the last proximate act, at some point attain to criminality themselves. The question of an overt act's proximity to, or remoteness from, completion of the crime therefore remained, without detailed guidance, a matter for individual determination under the facts of each case.

By contrast, the statutory requirement of a "substantial step" signaled a clear shift of focus from the act itself to "the dangerousness of the actor, as a person manifesting a firm disposition to commit a crime." See Model Penal Code § 5.01 cmt. 1 (1985); cf. People v. Thomas, 729 P.2d 972, 976 (Colo. 1986) ("[T]he probability of future dangerousness that has given rise to the justified legislative judgment that criminal attempt liability should be imposed . . . ."). While some conduct, in the form of an act, omission, or possession, see § 18-2-101(1), is still necessary to avoid criminalizing bad intentions alone; and the notion of "mere preparation"[3] continues to be a useful way of describing conduct falling short of a "substantial step;" the ultimate inquiry under the statutory definition concerns the extent to which the actor's conduct is strongly corroborative of the firmness of his criminal purpose, rather than the proximity of his conduct to consummation of the crime. Even more directly than the Model Penal Code formulation, which makes strong corroboration of criminal purpose a necessary but not sufficient condition of a substantial step, see Model Penal Code § 5.01(2)(1985) (not a substantial step "unless" strongly corroborative), the statute adopted by this jurisdiction in 1971 actually equates a substantial step with "any conduct that is strongly corroborative of the firmness of his purpose to complete the commission of the offense." § 18-2-101(1).

The question whether particular conduct constitutes a substantial step, of course, remains a matter of degree and can no more be resolved by a mechanical rule, or litmus test, than could the question whether the actor's conduct was too remote or failed to progress beyond mere preparation. The requirement that the defendant's conduct amount to a "substantial step," statutorily defined as it now is, however, provides the fact-finder with a much more specific and predictable basis for determining criminality. Rather than leaving to the fact-finder (as well as the court evaluating the sufficiency of evidence) the task of resolving the policy choices inherent in deciding when acts of preparation have become criminal, the statutory requirement of a substantial step simply calls for a determination whether the actor's conduct strongly corroborates a sufficiently firm intent on his part to commit the specific crime he is charged with attempting.

By actually defining a "substantial step" as "any conduct . . . which is strongly corroborative of the firmness of the actor's purpose," the Colorado statute has no need to further enumerate particular circumstances in which strongly corroborative conduct may constitute a substantial step. Conduct strongly corroborative of the firmness of the actor's criminal purpose is sufficient in itself. Drawn as they are largely from decisional law, however, the acts enumerated in the former statute and Model Penal Code, such as searching out a contemplated victim, reconnoitering the place contemplated for commission of a crime, and possessing materials specially designed for unlawful use and without lawful purpose, remain useful examples of conduct considered capable of strongly corroborating criminal purpose, and in those instances where they do, of being sufficient to establish criminal attempt. See United States v. Rahman, 189 F.3d 88, 128-29 (2d Cir. 1999) (finding the factors listed in the Model Penal Code relevant to the existence of sufficient evidence of a "substantial step" in attempted bombing prosecution).

A motion for judgment of acquittal may be granted only if the relevant evidence, both direct and circumstantial, when viewed as a whole in the light most favorable to the prosecution, is not substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.

According to this standard, there was evidence at the defendant's trial from which the jury could find that she repeatedly articulated her intent to kill two law enforcement officers with pipe bombs. Unlike many prosecutions for attempt, it was therefore unnecessary for the jury to be able to infer the defendant's criminal intent or purpose from her conduct. The jury need only have been able to find that the defendant committed acts that were strongly corroborative of the firmness of that purpose.

There was also evidence from which the jury could reasonably find that the defendant was determined to make the pipe bombs she needed to implement her plan and that she made substantial efforts and overcame hurdles to do so. Over many days she not only managed to acquire almost all of the materials required to create a bomb but also feloniously altered them to suit her criminal purpose, conduct for which she was separately convicted of possessing explosive or incendiary parts. When rebuffed in her attempt to acquire gunpowder directly from one gun shop, for example, she found a way to do so indirectly from another gun shop. There was testimony from which the jury could believe that she had eventually succeeded in acquiring all but a few necessary materials and that she had already acquired the drawings and written instructions necessary for final assembly.

Beyond the tenacity exhibited by the defendant in actually fabricating the bombs, her friend testified that she also had gathered significant personal information about one of her intended victims, including his address and information about his children and the car his family drove. There was evidence that she had reconnoitered his house and neighborhood more than once, reportedly being forced to leave on one occasion after being noticed. Finally there was evidence from which the jury could believe that she was simultaneously producing forged documents, which would permit her to assume false identities for purposes including the purchase of additional weapons.

The complexity of some criminal schemes, and the extent and uniqueness of the preparatory acts required to implement them without detection, lend themselves, by their very nature, to corroborating the actor's firmness of purpose. Regardless of the fact that the defendant was arrested before producing operational bombs or placing them within striking range of her victims in this case, there was in fact an abundance of evidence of her determined and sustained efforts to implement her plan, which could be found by reasonable jurors to be strongly corroborative of the firmness of her purpose to commit murder. Nothing more was required.


4. Impossibility

 

United States of America v. Dynar
Supreme Court of Canada
[1997] 2 S.C.R. 462

The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was delivered by
1      CORY AND IACOBUCCI JJ.:—The issue in this appeal is whether the respondent's conduct in the United States would constitute a crime if carried out in this country, thereby meeting the requirement of "double criminality" which is the precondition for the surrender of a Canadian fugitive for trial in a foreign jurisdiction. This issue requires the Court to consider the scope of the liability for attempted offences and conspiracy under Canadian criminal law, specifically, whether impossibility constitutes a defence to a charge of attempt or conspiracy in Canada....

I.  Facts

3      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.
4      The events that formed the basis of the indictment began with a telephone call placed on January 2, 1990, from Canada, by Mr. Dynar to a former associate, Lucky Simone, who was living in Nevada. The call was apparently made to seek investors for a business operation in the United States. Lucky Simone had, unbeknownst to Mr. Dynar, become a confidential informant working for FBI agent William Matthews. He informed Agent Matthews of Mr. Dynar’s call, and Agent Matthews requested that Mr. Simone return the call. Mr. Simone gave his consent for Agent Matthews to record the conversation.
5      Affidavit evidence filed by the Requesting State indicates that, during the 1980s, Mr. Dynar was the subject of investigations in the United States pertaining to the laundering of substantial amounts of money originating in the State of Nevada. Agent Matthews’ involvement in the investigation of Mr. Dynar’s activities began in 1988. When Mr. Dynar made contact with Lucky Simone in 1990, Agent Matthews deposed that he decided to determine whether or not Mr. Dynar was still involved in laundering money which was the proceeds of crime. He had Mr. Simone introduce a second confidential informant, known as “Anthony”, to Mr. Dynar. Anthony was instructed to ask if Mr. Dynar would be willing to launder large sums obtained as a result of illegal trafficking. When asked, Mr. Dynar agreed with alacrity to launder money for Anthony.
6      A great many conversations between the two men were recorded over the course of some months. On all of these occasions, Anthony was in Las Vegas, Nevada and Mr. Dynar was in Canada. Eventually, Mr. Dynar and Anthony arranged an initial meeting. The meeting was purportedly to allow Anthony to give money to Mr. Dynar for laundering as a first step towards developing a relationship in which Mr. Dynar would regularly launder money for him. During several of the conversations, it was made clear that the money to be laundered was “drug money”. Mr. Dynar insisted more than once that the amounts had to be large in order to make his efforts worthwhile. The conversations also disclosed that Mr. Dynar had an associate named “Moe”, who was subsequently identified as Maurice Cohen. Agent Matthews recorded all of the conversations in Las Vegas pursuant to the applicable law of the United States, which only requires the consent of one party for the lawful interception of the conversation. Special Agent Charles Pine of the Internal Revenue Service (IRS) was able to identify the voice of Maurice Cohen in the background of several of the conversations.
7      The initial plan of the American authorities was to set up the transfer of funds to Mr. Dynar in the United States. However, Mr. Dynar believed that he was the subject of a sealed indictment in the United States charging him with laundering very large sums of money and that if he travelled to that country, he would be arrested. It was accordingly agreed that Mr. Dynar’s associate, Maurice Cohen, would meet Anthony’s associate in Buffalo. Mr. Cohen was to take the money to Toronto where it would be laundered by Mr. Dynar. It would then be taken back to Buffalo by Mr. Cohen on the following day, after a commission for Mr. Dynar had been deducted.
8      In Buffalo, Mr. Cohen met with Special Agent Dennis McCarthy of the IRS, who was posing as Anthony’s associate. The conversations that took place between them in preparation for the transfer of funds were recorded by Agent McCarthy. They contain several statements to the effect that Mr. Cohen was working for Mr. Dynar, as well as some explanations of the logistics of the laundering scheme. In the end, however, the money was not transferred to Mr. Cohen. The FBI aborted the operation by pretending to arrest Agent McCarthy just prior to the transfer of the money. Mr. Cohen was allowed to return to Canada.
9      A committal hearing under s. 13 of the Extradition Act, R.S.C., 1985, c. E-23, was held before Keenan J. of the Ontario Court (General Division). In support of the request for extradition of Mr. Dynar and Mr. Cohen, the United States as the Requesting State relied upon affidavits from the investigating officers and transcripts of the recorded telephone conversations. This evidence formed the basis for the decision to commit Mr. Dynar for extradition....
12      Mr. Dynar appealed to the Ontario Court of Appeal from Keenan J.’s committal decision, and sought judicial review of the Minister’s decision to order his surrender. Galligan J.A., for a unanimous court, allowed the appeal and the application for judicial review on the basis that the activities of Mr. Dynar would not constitute a criminal offence in Canada, even though they did constitute an offence under the applicable United States law: (1995), 25 O.R. (3d) 559, 85 O.A.C. 9, 101 C.C.C. (3d) 271. Mr. Dynar was therefore discharged.
13      The Minister of Justice and the United States have appealed Mr. Dynar’s discharge....

II. Applicable Legislation

14      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.
15      The Criminal Code provision that establishes the substantive "money laundering" offence is:

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
(a) the commission in Canada of an enterprise crime offence or a designated drug offence; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated drug offence.
16      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 of
(a) the commission in Canada of an offence under section 4, 5 or 6; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence under section 4, 5, or 6.
17      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.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
. . .
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable;
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. . . .
(3) For the purposes of the Constitution Act, 1982, a judge who is a superior court judge or a county court judge has, with respect to the functions that that judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge or a county court judge.

13. The fugitive referred to in section 12 shall be brought before a judge, who shall, subject to this Part, hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.

18. (1) The judge shall issue a warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,
. . .
(b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify the committal of the fugitive for trial, if the crime had been committed in Canada.

...

IV. Issues

35      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. Analysis

A. The Criminality of Mr. Dynar's Conduct Under Canadian Law

(1) Introduction
37      In our view, Mr. Dynar's conduct would have amounted to a criminal attempt and a criminal conspiracy under Canadian law.
38      An accused may not be extradited from Canada unless it appears that his conduct, if it had taken place in Canada, would have amounted to a crime under the laws of this country. See Extradition Act, s. 18(1)(b). Mr. Dynar resists extradition on the ground that he did nothing that the criminal law of Canada proscribes. The appellants answer that, if Mr. Dynar had done in Canada what he did (telephonically) in the United States, he would have been guilty of the crimes of attempt and conspiracy.
39      It is clear that, if Mr. Dynar had successfully consummated in Canada a scheme like the one that he embarked upon in the United States, he would not have been guilty of any completed offence known to the law of Canada. The conversion of monies that are believed to be the proceeds of crime but that are not in fact the proceeds of crime was, at the relevant time in the history of this proceeding, not an offence in Canada.
40      There were two statutory provisions (s. 462.31(1) of the Criminal Code and s. 19.2(1) of the Narcotic Control Act) under which Canadian authorities might have prosecuted money-laundering schemes like the one that Mr. Dynar attempted to consummate. However, both required that an accused, if he was to be convicted, should have known that the money he converted was the proceeds of crime:

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].

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 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.
(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.
(3) In any case where --
(a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence; but
(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,
then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.
(Criminal Attempts Act 1981 (U.K.), 1981, c. 47.)

If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.
(N.Y. Penal Law sec. 110.10 (Consol. 1984).)

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.
Because most facts are, from the accused's point of view, of no consequence, what the accused thinks about most facts is legally irrelevant.
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.
("The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?", [1986] Cambridge L.J. 33, at p. 78.)
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
Court of Appeals of New York
41 N.Y.2d 725 (1977)

Jasen, Judge.
The criminal law is of ancient origin, but criminal liability for attempt to commit a crime is comparatively recent. At the root of the concept of attempt liability are the very aims and purposes of penal law. The ultimate issue is whether an individual’s intentions and actions, though failing to achieve a manifest and malevolent criminal purpose, constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions. . . .
* * *
On December 22, 1973, Michael Geller, 25 years old, was found shot to death in the bedroom of his Brooklyn apartment. . . . Defendant stated that, on the night of December 21, 1973, he, [Joe] Bush and Geller had been out drinking. Bush had been staying at Geller’s apartment . . . . When Geller . . . pressed his demand for rent money, Bush drew his .38 caliber pistol, aimed it at Geller and fired three times. Geller fell to the floor. After the passage of a few minutes, perhaps two, perhaps as much as five, defendant walked over to the fallen Geller, drew his .25 caliber pistol, and fired approximately five shots in the victim’s head and face. Defendant contended that, by the time he fired the shots, “it looked like Mike Geller was already dead”. . . .

After [Officer] Carasquillo had taken the bulk of the statement, he asked the defendant why he would do such a thing. According to Carasquillo, the defendant said, “gee, I really don’t know.” Carasquillo repeated the question 10 minutes later, but received the same response. After a while, Carasquillo asked the question for a third time and defendant replied, “well, gee, I guess it must have been because I was afraid of Joe Bush.”
* * *
. . . . [T]he evidence did not establish, beyond a reasonable doubt, that Geller was alive at the time defendant fired into his body. To sustain a homicide conviction, it must be established, beyond a reasonable doubt, that the defendant caused the death of another person. The People were required to establish that the shots fired by defendant Dlugash were a sufficiently direct cause of Geller’s death. While the defendant admitted firing five shots at the victim approximately two to five minutes after Bush had fired three times, all three medical expert witnesses testified that they could not, with any degree of medical certainty, state whether the victim had been alive at the time the latter shots were fired by the defendant. . . . Whatever else it may be, it is not murder to shoot a dead body.
* * *
. . . . The modern concept of attempt has been said to date from Rex v. Scofield (Cald 397), decided in 1784. In that case, Lord Mansfield stated that “(t)he intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality. Is it no offence to set fire to a train of gunpowder with intent to burn a house, because by accident, or the interposition of another, the mischief is prevented?” . . . .

The most intriguing attempt cases are those where the attempt to commit a crime was unsuccessful due to mistakes of fact or law on the part of the would-be criminal. A general rule developed in most American jurisdictions that legal impossibility is a good defense but factual impossibility is not. Thus, for example, it was held that defendants who shot at a stuffed deer did not attempt to take a deer out of season, even though they believed the dummy to be a live animal. The court stated that there was no criminal attempt because it was no crime to “take” a stuffed deer, and it is no crime to attempt to do that which is legal. (State v. Guffey, 262 S.W.2d 152 (Mo.App.); see, also, State v. Taylor, 345 Mo. 325, 133 S.W.2d 336 (no liability for attempt to bribe a juror where person bribed was not, in fact, a juror).) These cases are illustrative of legal impossibility. A further example is Francis Wharton’s classic hypothetical involving Lady Eldon and her French lace. Lady Eldon, traveling in Europe, purchased a quantity of French lace at a high price, intending to smuggle it into England without payment of the duty. When discovered in a customs search, the lace turned out to be of English origin, of little value and not subject to duty. The traditional view is that Lady Eldon is not liable for an attempt to smuggle. (1 Wharton, Criminal Law (12th ed.), § 225, p. 304, n.9)

On the other hand, factual impossibility was no defense. For example, a man was held liable for attempted murder when he shot into the room in which his target usually slept and, fortuitously, the target was sleeping elsewhere in the house that night. (State v. Mitchell, 170 Mo. 633, 71 S.W. 175.) Although one bullet struck the target’s customary pillow, attainment of the criminal objective was factually impossible. . . .

The New York cases can be parsed out along similar lines. One of the leading cases on legal impossibility is People v. Jaffe, 185 N.Y. 497, 78 N.E. 169, in which we held that there was no liability for the attempted receipt of stolen property when the property received by the defendant in the belief that it was stolen was, in fact under the control of the true owner. Similarly, in People v. Teal, 196 N.Y. 372, 89 N.E. 1086, a conviction for attempted subornation of perjury was overturned on the theory that the testimony attempted to be suborned was irrelevant to the merits of the case. Since it was not subornation of perjury to solicit false, but irrelevant, testimony, “the person through whose procuration the testimony is given cannot be guilty of subornation of perjury and, by the same rule, an unsuccessful attempt to that which is not a crime when effectuated, cannot be held to be an attempt to commit the crime specified.” (196 N.Y., at p. 377, 89 N.E. at p. 1088.) Factual impossibility, however, was no defense. Thus, a man could be held for attempted grand larceny when he picked an empty pocket.

As can be seen from even this abbreviated discussion, the distinction between “factual” and “legal” impossibility was a nice one indeed and the courts tended to place a greater value on legal form than on any substantive danger the defendant’s actions posed for society. The approach of the draftsmen of the Model Penal Code was to eliminate the defense of impossibility in virtually all situations. Under the code provision, to constitute an attempt, it is still necessary that the result intended or desired by the actor constitute a crime. However, the code suggested a fundamental change to shift the locus of analysis to the actor’s mental frame of reference and away from undue dependence upon external considerations. The basic premise of the code provision is that what was in the actor’s own mind should be the standard for determining his dangerousness to society and, hence, his liability for attempted criminal conduct.

In the belief that neither of the two branches of the traditional impossibility arguments detracts from the offender’s moral culpability, the Legislature substantially carried the code’s treatment of impossibility into the 1967 revision of the Penal Law. Thus, a person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (Penal Law, § 110.00.) It is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, “if such crime could have been committed had the attendant

circumstances been as such person believed them to be.” (Penal Law, § 110.10.) Thus, if defendant believed the victim to be alive at the time of the shooting, it is no defense to the charge of attempted murder that the victim may have been dead.

Turning to the facts of the case before us, we believe that there is sufficient evidence in the record from which the jury could conclude that the defendant believed Geller to be alive at the time defendant fired shots into Geller’s head. Defendant admitted firing five shots at a most vital part of the victim’s anatomy from virtually point blank range. Although defendant contended that the victim had already been grievously wounded by another, from the defendant’s admitted actions, the jury could conclude that the defendant’s purpose and intention was to administer the coup de grace.

B.   Counselling

 

R. v. Hamilton
[2005] 2 S.C.R. 432; [2005] S.C.J. No. 48
Supreme Court of Canada

The judgment of McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps and Fish JJ. was delivered by
FISH J.:
1     The respondent, René Luther Hamilton, offered for sale through the Internet access to a "credit card number generator" —in terms that extolled its use for fraudulent purposes. As part of the same package of "Top Secret" files, he also offered for sale bomb "recipes" and information on how to commit burglaries.
2     Mr. Hamilton was charged under s. 464(a) of the Criminal Code, R.S.C. 1985, c. C-46, in four separate counts, with counselling the commission of indictable offences that were not in fact committed [making explosive substances with intent; doing anything with intent to cause an explosion; break and enter with intent; and fraud].
3     The trial judge was not satisfied that Mr. Hamilton had acted with the requisite mens rea, or culpable intent, and she therefore acquitted him on all four counts: (2002), 3 Alta. L.R. (4th) 147, 2002 ABQB 15. The Court of Appeal for Alberta dismissed the Crown's appeal: (2003), 25 Alta. L.R. (4th) 1, 2003 ABCA 255....
13     The Crown contends that recklessness satisfies the fault requirement of counselling and that, even if intent (as opposed to recklessness) must be proved, the trial judge erred in grafting onto the required element of intention an additional requirement of motive.
14     At common law, counselling or procuring a felony was a substantive offence, whether or not the felony was subsequently committed: Brousseau v. The King (1917), 56 S.C.R. 22. The charges that concern us here are now codified in s. 464(a) of the Criminal Code, which provides:

464. ...
(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable;
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.

This is clear with participation. If the primary act (for example, killing) is harmful, then doing it becomes objectionable. But if doing it is objectionable, it is also objectionable to get another person to do it, or help him do it. For while killing is objectionable because it causes actual harm (namely, death), so too inducing and assisting killing are objectionable because of the potential harm: they increase the likelihood of death occurring.

The same arguments hold for inchoate crimes. Again, if the primary act (for example, killing), is harmful, society will want people not to do it. Equally, it will not want them even to try to do it, or to counsel or incite others to do it. For while the act itself causes actual harm, attempting to do it, or counselling, inciting or procuring someone else to do it, are sources of potential harm -- they increase the likelihood of that particular harm's occurrence. Accordingly, society is justified in taking certain measures in respect of them: outlawing them with sanctions, and authorizing intervention to prevent the harm from materializing. [Emphasis added.]

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.
27     And it seems to me that the plain meaning of the terms used by Parliament to achieve this purpose point to a fault element that combines advertent conduct with a "conscious disregard of unjustified (and substantial) risk" that it entails: L. Alexander and K. D. Kessler, "Mens Rea and Inchoate Crimes" (1997), 87 J. Crim. L. & Criminology 1138, at p. 1175 (emphasis in original).
28     The "substantial and unjustified risk" standard of recklessness has venerable roots in Canada and in other common law jurisdictions as well: see, for example, Leary v. The Queen, [1978] 1 S.C.R. 29, at p. 35 (Dickson J., as he then was, dissenting on other grounds); and, generally, M. L. Friedland and K. Roach, Criminal Law and Procedure: Cases and Materials (8th ed. 1997), at pp. 508 ff., where Herbert Wechsler explains, at pp. 510-11, why the American Law Institute required in its Model Penal Code that the risk consciously disregarded be both "substantial" and "unjustifiable".
29     In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused's conduct.
30     I would resist any temptation to depart in this case from that relatively demanding standard. The Internet provides fertile ground for sowing the seeds of unlawful conduct on a borderless scale. And, at the hearing of the appeal, Crown counsel expressed with eloquence and conviction the urgent need for an appropriate prophylactic response.
31     In my view, however, this task must be left to Parliament. Even if they were minded to do so, courts cannot contain the inherent dangers of cyberspace crime by expanding or transforming offences, such as counselling, that were conceived to meet a different and unrelated need. Any attempt to do so may well do more harm than good, inadvertently catching morally innocent conduct and unduly limiting harmless access to information.
32     Finally, a brief word on R. v. Sansregret, [1985] 1 S.C.R. 570. The Court in that case defined recklessness as the conduct of "one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk... . in other words, the conduct of one who sees the risk and who takes the chance" (p. 582). The Court, in Sansregret, did not set out the degree of risk required to attract criminal sanction. As Don Stuart points out, courts have arbitrarily endorsed varying standards: "uncertainty, probability, likelihood [and] possibility" -- and, in some instances, "probability" and "possibility" in the very same case (Canadian Criminal Law: A Treatise (4th ed. 2001), at pp. 225-26).
33     We have not been invited in this case to revisit Sansregret or to consider afresh the governing principles of recklessness as a fault element under the criminal law of Canada. And I should not be taken to have done so.
IV
....
39     The trial judge ... acquitted Mr. Hamilton on the charge of counselling fraud because she had "a doubt that Mr. Hamilton had subjective intent to counsel fraud" (para. 53). And she explained her conclusion this way:

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. ...
(Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 831)

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.
44     In this case, of course, the motive attributed to the accused was far less laudable. He sought to make "a quick buck" by encouraging the intended recipients of his Internet solicitation to purchase a device that generated credit card numbers easily put to fraudulent use.
45    The trial judge's conclusion that Mr. Hamilton did not intend to induce the recipients to use those numbers is incompatible with the plain meaning of the "teaser" e-mail and with her other findings of fact, including her finding that Mr. Hamilton well understood that use of the generated numbers was illegal. Her assertion that "[h]is motivation was monetary" immediately after her reference to these facts demonstrates an error of law as to the mens rea for counselling the commission of a crime, and warrants a new trial.

The reasons of Major, Abella and Charron JJ. were delivered by
47     CHARRON J. (dissenting):—At issue in this appeal is the requisite mental element for the offence of counselling the commission of an indictable offence which is not committed. More specifically, must the counsellor intend that the counselled offence be committed or is it sufficient to show recklessness as to the consequences? As we shall see, the debate concerns not so much language as it does the limits of criminal liability.
48     Prosecutions for counselling an offence which is not committed have been rare. The Crown in this case seeks to breathe new life into the provision to counter the risk posed by modern day mass communications through cyberspace....
64     [T]he Criminal Code provisions do not spell out the required mens rea, nor do they provide much specificity on the nature and quality of expression that constitutes counselling or the circumstances in which counselling will be held to have occurred. As is the case with many other offences, these matters are left to judicial interpretation. To this end, I will begin by considering the rationale for criminalizing acts of counselling.

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)....
66     Of course, subject to minimal constitutional requirements, it is up to Parliament to draw the line between criminal and permissible behaviour. However, the language used to express Parliament's intention is often imprecise and open to competing interpretations. In adding flesh to Criminal Code provisions it is important not to overreach the purpose of the criminal sanction at the expense of other important social values. This is particularly so in a case such as this one where the conduct in question consists of communications.

C.        The Actus Reus for Counselling an Offence Not Committed

67     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:

(a)       an act of counselling;
(b)       communicated to another person;
(c)        in respect of the commission of an offence.

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.
68     In its ordinary sense, counselling means simply to advise. If given that meaning, the scope of targeted activity would potentially be very wide. The simple communication of information on "how to" commit an offence would suffice to make out the actus reus of the offence. The criminalization of all such communications could easily be justified on the basis that society seeks to protect itself against the potential harm occasioned by acts of counselling -- the increased likelihood that the counselled offence be committed. After all, it is at least arguable that the communication of this kind of information may plant a seed in the recipient's mind and increase the likelihood of the crime materializing. Should then all such communications be banned? More significantly, should they be subject to society's severest sanction, the criminal law?
69     We must ask ourselves if the resulting encroachment on freedom of speech would exact too high a cost. If "counsel" meant simply to advise, a lawyer's advice to a client on the law with respect to the various means of committing an offence could potentially be caught. Movies, video games, textbooks, and other literary works that describe or depict the commission of an offence may be subject to state scrutiny. I would think it obvious that such a prohibition on expression would be too wide. It is for this reason, as we shall see, that such an interpretation of the word "counsel" has been rejected in the criminal context.....
74     [A]s held in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, nothing short of active inducement or encouragement will suffice to make out the actus reus of the offence of counselling. In other words, when viewed objectively, the communication must be one that actively seeks to persuade the person counselled to commit the crime. In this way, the scope of targeted activity is not extended to the mere possibility of planting a seed in the recipient's mind; it is limited to those communications that are likely to cause that seed to sprout, creating a resolve to commit the crime. It is only then that the potential risk justifies the criminal prohibition. However, it is well established that it is not necessary that the person counselled be in fact persuaded: R. v. Walia (No. 1) (1975), 9 C.R. (3d) 293 (B.C.C.A.), at pp. 293-95; R. v. Glubisz (1979), 47 C.C.C. (2d) 232 (B.C.C.A.), at pp. 235 and 241-42; R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont. C.A.), at pp. 508-9. The focus on a prosecution for counselling is on the counsellor's conduct and state of mind, not that of the person counselled.

D.        The Mens Rea for Counselling an Offence Not Committed

75     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.
76     The requisite mens rea is not expressly set out in s. 464. However, this is not unusual. The mental element of an offence is not always described in the enactment. Often it must be inferred from the nature of the prohibited activity and the harm it is meant to guard against. In this case, because of the nature of the offence, our earlier discussion on the requisite actus reus can largely inform the determination of the necessary mens rea. As we have seen, it is not sufficient that the communication simply raise the possibility of affecting its recipient; it must actively seek to persuade that person to commit the crime. It follows that the counsellor must, at the very least, intend to persuade the person counselled to commit the offence. In this respect, it is my view that mere recklessness as to the counselled person's reaction to the communication is insufficient. In other words, it is not enough that the counsellor, knowing that the communication is objectively capable of persuading a person to commit an offence, goes ahead and does the act anyway. If mere recklessness as to the communication's potential power of persuasion were to suffice, some may argue that the publication of Shakespeare's Henry VI, with its famous phrase "Let's kill all the lawyers", should be subject to state scrutiny!
77     Hence, the counsellor must intend to persuade the person counselled to commit the offence. Simply intending the communication, as advocated by the Crown at trial, is not sufficient. An additional question has been posed, mostly in academic writings: must the counsellor also intend that the offence be committed? This is often referred to as a "dual mens rea" requirement. In my view, in all but the most unusual circumstances, it is not necessary to adopt a distinct "two-step" approach to determine whether the accused possesses the necessary mens rea. It is logical to infer that the counsellor who intends to persuade the person counselled to commit an offence intends that the offence be committed. However, unusual circumstances did arise in R. v. Janeteas (2003), 172 C.C.C. (3d) 97 (Ont. C.A.), and it became necessary for the court to examine whether the counsellor must also intend the commission of the counselled offence. The question was fully canvassed by Moldaver J.A. who concluded that such an intent was required. I agree with his analysis.
78     The peculiar facts of Janeteas are as follows. Mr. Janeteas came to befriend J.B. and her mother B.G., subsequently learning of J.B.'s marital difficulties with her husband Dr. M.B. According to Mr. Janeteas, he began to fear for Dr. M.B.'s safety as a result of conversations with J.B. and B.G. in which they made it known that they wanted to have Dr. M.B. harmed or even killed. He felt that Dr. M.B. should be warned, and in an attempt to obtain hard evidence, tape-recorded a conversation with J.B. and B.G. in which he actively encouraged them to have Dr. M.B. harmed or killed and expressed his willingness to make the necessary arrangements. He then met with Dr. M.B., and over the next few months was able to obtain $35,000 from him. Moldaver J.A. found that Mr. Janeteas did not possess the requisite mens rea, stating, at para. 43:

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.
80     [T]he restricted meaning of the word "counsel", as an active inducing, procuring or encouraging the commission of an offence, connotes the [a] requirement that there be a subjective intent to persuade the person counselled to commit the offence. This requirement, from a logical standpoint, can only be met if the counsellor intends that the offence be committed. Recklessness alone cannot suffice....
81    There is no question that the Crown is correct in saying that the Internet poses particular risks because of the ease with which mass communications may be disseminated worldwide. The particular nature of communications through cyberspace may well provide justification to limit the diffusion of the most dangerous expression on a lesser standard, even on objective grounds alone. However, it is my view that the remedy does not lie in an expansive interpretation of the offence of counselling. The offence of counselling, applying as it does to all crimes, is too blunt an instrument to address this situation without imperiling a range of harmless and/or valuable expression.
82     For these reasons, I agree with the Court of Appeal that the more demanding standard of subjective mens rea should apply: the counsellor must intend that the counselled offence be committed for the offence to be made out. As noted by the Ontario Court of Appeal in Janeteas and the Alberta Court of Appeal in this case, this approach has the support of many in the legal community. For Canadian writings, see: D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at pp. 227 and 703; K. Roach, Criminal Law (3rd ed. 2004), at pp. 125-26; E. Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 377. For American academic support, see: W. R. LaFave, Substantive Criminal Law (2nd ed. 2003), vol. 2, at pp. 194-95; J. Dressler, Understanding Criminal Law (3rd ed. 2001), at pp. 415-16. For British support, see: A. Ashworth, Principles of Criminal Law (4th ed. 2003), at p. 466; G. Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 442; Smith & Hogan, Criminal Law (9th ed. 1999), at p. 271.

E. Application to This Case

83     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.
84     The trial judge concluded that Mr. Hamilton did not have the necessary mens rea on any standard. The Court of Appeal saw no reason to interfere with her conclusion. Nor do I. My colleague Fish J. is of the view that the trial judge erred by confounding "motive" and "intent". He rests this conclusion on the trial judge's finding that Mr. Hamilton's motivation was monetary. With respect, I disagree. The trial judge's consideration of Mr. Hamilton's motivation must be examined in the context of the evidence before her, and her reasons must be read as a whole.
85     Mr. Hamilton testified that he had not intended to induce the commission of any criminal offence. He had not written any of the files; he had himself purchased them off the Internet and did not even know what much of the information was about. The files consisted of roughly 2,000 pages of text, only 13 of which related to the charges before the court. In particular, he had not read any of the files about bombs or break and enters. The teaser made no reference to these files. As for the material on the credit card generator, he thought readers would simply be interested, as he had been, in discovering how easy it was to generate valid credit card numbers. He did not think anyone could use the credit card numbers without a valid name, expiry date or security number. Notably, at the relevant time Mr. Hamilton had never owned a credit card....
86     The trial judge was entitled to consider motive. It is a piece of circumstantial evidence that may assist in determining an accused's state of mind. In reading her reasons as a whole, I see no reason to interfere with the conclusion reached by the Court of Appeal on this issue, at para. 44:

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
Supreme Court of Canada
[2006] 2 S.C.R. 669

The judgment of the Court was delivered by
FISH J.:—

I

1     Jacques Dèry stands convicted of attempting to conspire to commit theft, and of attempting to conspire to unlawfully possess the proceeds.
2     Never before has anyone been convicted in Canada of an attempt to conspire to commit a substantive offence of any sort. That should come as no surprise: Attempting to conspire to commit a substantive offence has never previously been recognized as a crime under Canadian law.
3     I would decline to do so now.
4     Accordingly, I would allow the appeal, set aside Mr. Dèry's convictions and order that acquittals be entered instead.

II

5     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.
6     An unrelated investigation resulted in the interception of discussions between Mr. Dèry, Daniel Savard and others, concerning the possibility of stealing this liquor stored outdoors. On the strength of the intercepted conversations, Messrs. Dèry and Savard were both charged with conspiracy to commit theft and conspiracy to possess stolen goods.
7     There was no evidence that either accused had taken any steps to carry out the proposed theft, and the trial judge was not persuaded that they had at any point agreed to steal or possess the liquor that was the object of their covetous musings: (2002), 7 C.R. (6th) 325. In the absence of a proven agreement, the judge quite properly felt bound to acquit the accused of the conspiracies charged. On each count, however, he convicted both co-accused of attempting to conspire, which he believed to be an included offence.
8     A majority of the Court of Appeal of Quebec affirmed their convictions at trial: [2005] Q.J. No. 5350 (QL), 2005 QCCA 483; [2005] Q.J. No. 5351 (QL), 2005 QCCA 484. Forget J.A., dissenting, would have allowed their appeals on the ground that attempted conspiracy is an offence unknown to Canadian law.
9     This further appeal, by Mr. Dèry alone, comes to this Court as of right. The decisive issue is whether there is any legal basis for concluding that attempt to conspire to commit an indictable offence is a crime in Canada. In the absence of a statutory basis for concluding that the crime exists, there is of course no need to find authority that it does not: Section 9(a) of the Criminal Code, R.S.C. 1985, c. C-46, makes clear that no one in Canada may be convicted of "an offence at common law". To affirm Mr. Dèry's convictions, we must therefore find that attempt to conspire has until now lain dormant within the statutory confines of the Criminal Code, ready to be roused by a proper sounding of its governing provisions.
10     Like Forget J.A., I would let sleeping laws lie.

III

11     The alleged crime of attempting to conspire has received sparse judicial consideration in Canada.
12     R. v. Dungey (1979), 51 C.C.C. (2d) 86 (Ont. C.A.), is the most relevant reported decision. Dungey, a lawyer, instructed one of his clients to seek a backdated legal-aid certificate covering services for which he had already been paid in full. Dungey's scheme failed. His client did apply for and obtain legal aid, but the certificate granted was for future services only.
13     Dungey was charged with conspiracy to defraud. No charges were laid against the client. The trial judge was not persuaded that the client had agreed to the scheme. He therefore acquitted Dungey, since there could be no conspiracy without an unlawful agreement.
14     The Crown appealed but did not challenge Dungey's acquittal on the conspiracy charge, seeking instead a conviction for attempted conspiracy. In the Crown's view, though no agreement had been established, Dungey had attempted to conspire to defraud the Law Society of Upper Canada by soliciting his client's participation in the fraud.
15     The Court of Appeal dismissed the Crown's appeal. Writing for a unanimous court, Dubin J.A. (later C.J.O.) traced the history and considered the purpose of the offence of conspiracy. He then stated:

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.

In the instant case the substantive offence was fraud. To hold that there is an offence of attempting to conspire to defraud is tantamount to convicting a person of an attempt to attempt to defraud. [p. 95]
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,
(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.
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.

IV

40     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.
41     I agree with Forget J.A. that this argument is seductive in appearance but unsound in principle (para. 79). It assumes, but does not establish, that attempt to conspire is an offence under the Criminal Code, and it leaves unresolved the question whether the definition of attempt in s. 24 captures, as a matter of law, an attempt to conspire.
42     In virtue of s. 24, a test of proximity separates "mere preparation" from attempt:

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.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. [Emphasis added]
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.

V

52     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
Supreme Court of Canada
[1997] 2 S.C.R. 462


[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.

Where one member of a so-called conspiracy is a police informant who never intends to carry out the common design, there can be no conspiracy involving that person. Nonetheless, a conspiracy can still exist between other parties to the same agreement. It is for this reason that the conspiracy in this case is alleged to involve Mr. Dynar and Mr. Cohen, and not the confidential informant "Anthony".
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 LawThe 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 Conduct

A.        Concepts and Types of Derivative Liability

LRCC §§ 4(1), 4(2)

* * *

StGB §§ 25-27, 29

* * *

MPC § 2.06(1)-(3), (6)(c)

B.        Complicity

 

R. v. Dunlop and Sylvester
Supreme Court of Canada
[1979] 99 D.L.R. (3d) 301; [1979] 2 S.C.R. 881

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 facts

A 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.

A number of members of a motorcycle club known as the Spartans were present at the hotel. The two girls were joined at their table by two members of the club, one Hawryluk and the appellant Dunlop, and by a prospective member, one Douglas. During the evening the complainant consumed five or six glasses of beer. At about 11:30 p.m. she, riding on the back of Douglas’ motorcycle, and Anne McGibney, riding on the back of Hawryluk’s motorcycle, went briefly to the Balmoral Hotel. Leaving there, they proceeded on the motorcycles to an isolated area, the site of a former dump, located in Elmwood on the outskirts of Winnipeg. The Elmwood dump was favoured as a rendezvous by motorcyclists because of the hillocks. After arrival, the four sat on the grass and talked for about five minutes, following which McGibney and Hawryluk went for a walk. The complainant and Douglas remained for three or four minutes, then Douglas left to repair his bike, leaving the complainant alone.

Lonely, she arose and went looking for McGibney and Hawryluk. At this moment, four men in black leather jackets bearing the Spartan emblem arrived on motorcycles. They approached the complainant, picked her up by the arms and legs, carried her to a nearby area bordering a creek and threw her on the ground. By this time, quite a few other men, similarly dressed, arrived. The complainant’s clothes were torn from her, and each of the men, about 18 in number, had intercourse with her while she was being held by two of the others. On direct examination the complainant was asked whether she was able to recognize any of the men who had had intercourse, to which she replied, “Yes, those two right there”, looking at the appellants Dunlop and Sylvester. The night was very dark, but the complainant explained that after the men had laid her down a bonfire had been lighted, and she could see by the light of the fire. At one point she was threatened with a knife. There are more unpleasant details, but they need not be here recounted.

The following day the complainant picked Dunlop from a police line-up as one of the men who had attacked her. Sylvester was identified in a second line-up later the same day. Asked by Crown counsel what it was about them that made it possible for her to recall the two men so clearly, the complainant answered: “Well, not really that much, but I seen their faces as they were getting on top of me.” Later, she testified that she remembered very clearly the two accused, and that she was positive in her identification. She conceded on cross-examination that neither of the two accused was among the four men who first approached her, nor had either of them pinned her arms or produced a knife. Her sole testimony implicating the two accused was to the effect that each of them had performed the physical act of intercourse with her during the course of the sexual attack. The case for the Crown was put forward on that footing.

Each of the accused gave evidence. Dunlop testified that he had attended a meeting of the Spartan Motorcycle Club at the Elmwood dump early in the evening in question, at which time Douglas had been introduced as a prospective member. Later, according to his evidence, Dunlop went to the Waldorf Hotel, joined the two girls at a table for a while, and then played pool until he left the hotel at about 1:00 a.m. He explained that Sylvester had been asked to bring beer to the dump for a party. He, Dunlop, accompanied Sylvester in the latter’s car to the Vibrations discotheque, where they remained about half-an-hour and then proceeded to the dump, arriving at 2:15 a.m. Upon arrival, he said, he and Sylvester “grabbed the beer which was four cases”, walked over to the top of a knoll and set down the beer. Douglas was there. He told Sylvester that everyone was angry over the delay in delivering the beer. Dunlop walked to the other side of the knoll and noticed a few people down near the creek bed about 25 yd. distant. Some of them displayed their ire at the delay in fetching the beer, by yelling at Dunlop and Sylvester. Dunlop saw a female having intercourse; with whom, he could not say, but he believed the person to be a Spartan. After three minutes he and Sylvester left. Dunlop denied having intercourse with Brenda Ross, or in any way assisting anyone else to have intercourse with her. Sylvester’s evidence was to the same effect as that of Dunlop.

The issue for the jury was a simple one—did the two accused have intercourse with Brenda Ross? She said that they had, and they denied it. The issue was well formulated by the trial Judge just before the conclusion of his summing up, in these words:

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.

If, on the other hand you have a reasonable doubt that either one or both accused participated in this way, then you must give that particular accused the benefit of that reasonable doubt and acquit the accused on the charge.
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 Code

The 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:

“Everyone is a party to an offence who:
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any person to commit it, or
(c) abets any person in committing it.”

Abets, that word abets means encourages, supports, upholds. It is another way of expressing a person giving assistance to someone committing the offence. Everyone who aids and encourages the person in the commission of the offence is as guilty as the person who commits the actual criminal act.

To find that the accused is guilty of aiding or abetting the commission of an offence by another person, it is only necessary to show that he understood what was being done and by some act on his part assisted or encouraged the attainment of that act.
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.
and [at p. 540]:
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 bar

In 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.

In concluding that there was evidence of a nature which would permit the jury to draw an inference that the accused were more than merely present at a crime and had done nothing to prevent it, Mr. Justice Matas referred to the earlier meeting of the Spartans at the dump (with Sylvester and Dunlop present) when Douglas was introduced as a prospect, the presence of members of the group at the Waldorf beverage room where the complainant and her friend were spending some time, the bringing of the complainant by Douglas to the dump, the reappearance of a group of Spartans at the same location (where the gang rape took place), the arrival of the accused with a substantial quantity of beer, and the observation by both accused of intercourse taking place by the complainant and one male, but with other men nearby.

The activities of Douglas are twice mentioned by Mr. Justice Matas, but it must be recalled that Douglas was not one of the accused. Dunlop and Sylvester bear no responsibility for what he may or may not have done. Apart from presence earlier in the evening at the dump and at the Waldorf beverage room, the evidence Mr. Justice Matas marshalls against Dunlop and Sylvester is (i) their arrival at the dump with a substantial quantity of beer, and (ii) their observation of intercourse. In my view, for the reasons I have earlier sought to express, neither of these facts is capable in law of affording evidence that the appellants aided and abetted the commission of the crime of rape. They go only to mere presence and not to complicity.

With great respect, I am unable to find in the evidence to which Mr. Justice Matas alludes, or elsewhere, any facts as distinguished from surmise or suspicion, upon which any jury could conclude beyond reasonable doubt that the accused had assumed a role which would qualify them as aiders and abettors under s. 21(1) of the Code.

In these circumstances, in my view, the trial Judge erred in charging the jury on the alternative bases of (i) principal offender, and (ii) aider and abettor.

I would allow the appeals, set aside the judgment of the Manitoba Court of Appeal, and direct a verdict of acquittal in respect of each appellant.

BEETZ, J., concurs with PRATTE, J.
ESTEY, J.,concurs with DICKSON, J.

 

R. v. Popen
[1981] O.J. No. 921
Ontario Supreme Court - Court of Appeal

The judgment of the Court was delivered by
1     MARTIN J.A. (orally):—The appellant, Annals Ambrose Popen was jointly charged with his wife, Jennifer Angela Popen, in the Court of the General Sessions of the Peace for the County of Lambton on an indictment as follows:
That on or about the 11th day of August, 1976, at the City of Sarnia, in the County of Lambton, being together, they did kill Kim Ann Marie Popen and thereby commit manslaughter, contrary to s. 217 {now s. 234} of the Criminal Code of Canada.
2     During the course of the trial, Jennifer Popen changed her plea from "not guilty" to "guilty" and the jury returned a verdict of guilty against her. The appellant did not testify. The learned trial judge sentenced Jennifer Popen to seven years and endeavoured to ensure that her sentence was served in a psychiatric facility. The appellant was sentenced to a term of one year. He appeals against his conviction only.
3     The deceased, Kim Ann Marie Popen, was the daughter of the appellant and Jennifer Popen, and was some nineteen (19) months old at the time of her death on August 11, 1976. Her brief life was inexpressibly sad....
11     The principal ground of appeal was that the verdict was unreasonable and that there was no evidence upon which a jury could find that the appellant either inflicted the injuries upon the child from which she died or that he was a party to the inflicting of those injuries by the appellant's wife.
12     There was no evidence that the appellant had inflicted the injuries that resulted in the death of the child or that he was present when those injuries occurred. Indeed, the reasonable inference to be drawn from the evidence is that the appellant was not present and was at work when the injuries which resulted in the child's death were sustained. Moreover, there is no evidence that the appellant had, himself, mistreated the child or that he was present on any occasion when his wife mistreated the child. There was, on the contrary, evidence that the appellant was a gentle person who was fond of the child and was patient with her. The case for the Crown, however, was not that the appellant inflicted the injuries on the child from which she died, but rather that the appellant must have been aware of the mistreatment of the child by his wife and failed to take any steps to prevent such mistreatment. The Crown's position was that under section 21 of the Code the appellant was a party to his wife's offence. The trial judge left with the jury the provisions of section 21(1)(b) and section 21(2) of the Code, but did not leave with the jury section 21(1)(c).
13     After giving this matter our most careful consideration, we are of the view that there was no evidence that the appellant had done or omitted to do anything for the purpose of aiding his wife inflict the injuries to the child. Even if the appellant's omission to take action to prevent his wife mistreating the child had the effect of assisting the wife, we are all of the view that there was no evidence upon which a jury could reasonably find that the appellant's inaction was for the purpose of assisting his wife and there was, consequently, no basis for the application of section 21(1)(b). It was also the case for the Crown that the appellant was a party under section 21(2), in that he and his wife had formed an intention in common to carry out the unlawful purpose of child abuse and to assist each other therein, that the wife in carrying out the unlawful common purpose had inflicted the injuries on the child from which she died and that the appellant knew or ought to have known that the infliction of such injuries would be a probable consequence of carrying out the common purpose. We are also of the view that there is no evidence that the appellant formed an intention in common with his wife to abuse the child and to assist her therein and there was consequently no basis for the application of section 21(2). ...
14     Although as previously mentioned, the trial judge did not leave section 21(1)(c) with the jury we think that he did not err in this respect and that there is no basis for the application of section 21(1)(c). In some circumstances, a person who is present at the commission by another of an illegal act, which he has a duty to prevent, may by mere inactivity encourage the illegal act. The law, in our view, is correctly stated in Smith and Hogan, Criminal Law, 4th Ed. at pp. 118-19:

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.

15     As previously mentioned, the appellant was not shown to have been present on any occasion when his wife mistreated the child ....
16     We think, however, that it would have been open to a jury, properly charged, to find that the appellant was criminally negligent in failing to protect his child from his wife's mistreatment, when under a duty to do so, and that such failure contributed to the child's death. If the jury reached the conclusion that the appellant was criminally negligent in failing to take proper steps to protect the child, and that his criminal negligence contributed to her death, he would, of course, be independently guilty of manslaughter, as distinct from being a party to his wife's offence.
17     Section 197 {now s. 215}, in part reads:

197.(1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family to provide necessaries of life for a child under the age of sixteen years;
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
...
(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently...

Section 202 {now s. 219} of the Code reads:

202.(1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, "duty" means a duty imposed by law.

Section 205 {now s. 222}, in part reads:

205.(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(2) Homicide is culpable or not culpable....
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act,
(b) by criminal negligence...

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....
21     A parent may be criminally negligent in permitting a child to remain in an environment where, to the knowledge of the parent, it is subject to brutal treatment by the other parent or a third person with whom the parent is living, and may be convicted of manslaughter where the death of the child has been caused by such brutal treatment: see Palmer v. State of Maryland 164 A 2d 467 (1960); Commonwealth of Pennsylvania v. Howard 402 A 2d 674 (1979); State of South Dakota v. Zobel 134 N.W. 2d 101 (1965).
22     Although there was no direct evidence that the appellant knew of the mistreatment of the child by his wife, it would be open to the jury to infer such knowledge from the circumstances, including the long continued mistreatment of the child, the visible evidence of bruises and the fact that the appellant was living in the same house with his wife and the child. It would be for the jury to weigh those circumstances together with the evidence previously referred to, of witnesses who observed the child and did not appear to be alarmed....

 

R. v. Dooley
 [2009] O.J. No. 5483
Ontario Court of Appeal

[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
D.H. DOHERTY J.A.:–

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....
6     At trial, the Crown argued that Randal died as a result of a head injury inflicted within 24 hours of his death. The Crown maintained that one of the appellants (probably Marcia) had inflicted the fatal head injury. The Crown contended that the perpetrator was guilty of murder as defined in s. 229(a)(ii) in that he or she caused bodily harm to Randal knowing that the bodily harm was likely to cause death and being reckless as to that result. ....
7     The Crown argued that the parent who did not commit the fatal assault (probably Tony) was guilty of second degree murder as an aider and abetter. The Crown advanced the position that the non-perpetrator parent had a legal duty to intervene and stop the other parent's abuse of Randal. On the Crown's theory, the failure to perform that legal duty assisted or encouraged the perpetrator in the continuation of their abuse of Randal. ... The Crown contended that the non-perpetrator failed to intervene for the purpose of aiding or abetting the perpetrator in the commission of murder. As with its case against the perpetrator, the Crown relied on the non-perpetrator's knowledge of the ongoing assaults against Randal and his severely compromised physical condition as of the day he died....
116     Counsel for the appellants submit that the trial judge erred in law by failing to properly instruct the jury on the conduct requirement of aiding and abetting. They submit the jury must be instructed that to find liability as an aider or abetter, the non-perpetrator's conduct must have the effect of assisting or encouraging the perpetrator in the infliction of the fatal assault. In their factum, counsel for Tony Dooley argued that conduct or an omission could only have the effect of aiding and abetting if that conduct or omission "caused" the perpetrator to commit the homicide. I do not understand counsel to have gone so far as to argue that the Crown must prove that "but for" the act of aiding or abetting, the homicide would not have occurred. Rather, as I understand the submission, the jury should have been told that before the alleged act of aiding or abetting could render the non-perpetrator liable for the homicide as an aider or abetter, that alleged act must have played some causative role in bringing about the homicide....
121     While I am satisfied that in order to find liability there must be a connection between the offence and the acts of alleged aiding or abetting, I would not use the language of causation to describe that connection. The connection required in the context of accessorial liability varies. Some kinds of culpable assistance have no causative link to the crime committed. If "A" holds the victim down while the perpetrator kills the victim, "A" could not escape liability if, before "A" held him down, the victim had been rendered defenceless by the acts of others. Similarly, if "A" encouraged the perpetrator to commit a homicide and the perpetrator did so after receiving that encouragement, "A" could not escape liability even if the perpetrator would have killed the individual irrespective of the encouragement. The varying nature of the causal link between the accessorial act and the substantive crime renders a description of accessorial liability in terms of causation difficult and unhelpful: see J.C. Smith, "Aid, Abet, Counsel, or Procure" in P.R. Glazebrook, ed., Reshaping the Criminal Law: Essays in honour of Glanville Williams (London: Stevens & Sons, 1978), at p. 120; K.J.M. Smith, "Complicity and Causation", [1986] Crim. L. Rev. 663.
122     Another reason for avoiding the language of causation when describing accessorial liability arises in the context of a jury charge. Causation must be explained to a jury in terms of the perpetrator's liability for the alleged crime. Causation in the accessorial context can take on quite a different meaning. An attempt to explain two different kinds of causation to a jury in the same case could well lead to confusion.
123     The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime. The necessary connection between the accessory's conduct and the perpetrator's commission of the crime is captured by phrases such as "actual assistance or encouragement" or "assistance or encouragement in fact" or as the appellants argue, conduct that "has the effect" of aiding or abetting: R. v. Mariani (2007), 220 C.C.C. (3d) 74 (Ont. C.A.), at p. 93; R. v. Calhaem, [1985] Q.B. 808 (C.A.), at pp. 814-16; R. v. Bryce, [2004] 2 Cr. App. R. 592 (C.A.), at paras. 72-76; A.G. v. Able, [1984] Q.B. 795, at p. 809; R. v. Clarkson, [1971] 3 All E.R. 344 (Ct. Martial App. Ct.), at pp. 347-48; Peter Gillies, Criminal Law, 4th ed. (North Ryde, Austl.: LBC Information Services, 1997), at pp. 162-63; Fisse, Howard's Criminal Law, at p. 326; Rose, Parties to an Offence, at p. 25.
124     While the phrases set out above, and others, I am sure, could be used to explain the necessary connection between the accessorial act and the perpetrator's commission of the crime, often the plain words "assistance", "encouragement" or "help", without more, will convey the same message. This is especially true where it is accepted that the alleged perpetrator was aware of the alleged acts of aiding or abetting when he or she committed the offence. ...

 

R. v. Logan
Supreme Court of Canada
[1990] 2 S.C.R. 731; [1990] 73 D.L.R. (4th) 40

LAMER C.J.C.:—

Facts

The 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.

The facts surrounding the incident are as follows. At around 11:00 p.m. on September 23, 1983, Hugh Logan, Clive Brown and the respondent Warren Johnson entered a convenience store, wearing masks and armed with revolvers. Hugh Logan shot the lone clerk, Barbara Turnbull, in the neck, causing severe injuries. The cash register was robbed and the men fled.

While awaiting trial on the charges, the respondents were held in protective custody in a jail in the Toronto area. Shortly before the trial, the police received information from an informer that the respondent Sutcliffe Logan was boasting openly about his involvement in the planning of the robberies, including the one from which the attempted murder charges arose. Two undercover police officers were placed in protective custody with the respondents, posing as two persons arrested on drug charges. The officers struck up an acquaintance with the two respondents who made certain inculpatory statements. The officers testified that they did not encourage the respondents to talk, but merely provided the opportunity for the making of the statements. The officers made notes of the conversation immediately following the conversation during what they pretended was a visit from an articling student from their lawyer’s office.

These statements were admitted into evidence at trial. Also during the course of the trial, the respondent Warren Johnson took the stand and, while admitting that he was one of the robbers, testified that he had no intention to shoot anyone and that there had been no discussion concerning the use of guns.

In his charge to the jury with respect to the respondent Warren Johnson, the trial judge said that “you may well have considerable doubt whether he knew or should have known that one of his group would probably shoot somebody with the intention to kill”. With respect to the respondent Sutcliffe Logan, he stated that “you would then have to consider whether he knew or should have known that one of the group would probably, in the course of the robbery, shoot someone with intent to kill”. In his explanation of s. 21 of the Criminal Code, R.S.C. 1970, c. C-34, the trial judge instructed the jury that “[i]t must be established beyond a reasonable doubt that the accused knew or ought to have known that someone would probably shoot with the intention of killing”.

Hugh Logan was found by the jury to have been the one who shot the victim. The respondents were convicted by the jury of a number of offences including the attempted murder of Barbara Turnbull. The respondents appealed their convictions to the Court of Appeal for Ontario. The Court of Appeal allowed their appeals with respect to the convictions for attempted murder, and substituted convictions for armed robbery in their stead. The only issue before this court is the constitutionality of s. 21(2) of the Criminal Code.

Relevant statutory provision

Criminal Code, s. 21:

21.(1) Every one is a party to an offence who
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any person to commit it, or
(c) abets any person in committing it.
(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.
...

Issues

The following constitutional questions were stated by the Chief Justice:

1. Does s. 21(2) of the Criminal Code contravene the rights and freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is in the affirmative, is s. 21(2) of the Criminal Code justified under s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

Analysis

R. v. Vaillancourt

The 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.

For this proposition, the court relied on our judgment in Vaillancourt. In that case, this court held that for a few offences the principles of fundamental justice require that a conviction cannot stand unless there is proof beyond a reasonable doubt of a minimum degree of mens rea, and that legislation providing for any lesser degree violates the Charter and is inoperative. Murder was one of those offences.

With respect, I cannot construe Vaillancourt as saying that, as a general proposition, Parliament cannot ever enact provisions requiring different levels of guilt for principal offenders and parties. Although I readily admit that, as a matter of policy, the proposition seems more equitable than not, I am not ready to characterize it as a principle of fundamental justice. It must be remembered that within many offences there are varying degrees of guilt and it remains the function of the sentencing process to adjust the punishment for each individual offender accordingly. The argument that the principles of fundamental justice prohibit the conviction of a party to an offence on the basis of a lesser degree of mens rea than that required to convict the principal could only be supported, if at all, in a situation where the sentence for a particular offence is fixed. However, currently in Canada, the sentencing scheme is flexible enough to accommodate the varying degrees of culpability resulting from the operation of ss. 21 and 22.

That said, however, there are a few offences with respect to which the operation of the objective component of s. 21(2) will restrict the rights of an accused under s. 7. If an offence is one of the few for which s. 7 requires a minimum degree of mens rea, Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of mens rea below the constitutionally required minimum.

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.

Step one: s. 7 and attempted murder

With respect to the case at bar, then, the first question which must be answered is whether the principles of fundamental justice require a minimum degree of mens rea in order to convict an accused of attempted murder. Ancio established that a specific intent to kill is the mens rea required for a principal on the charge of attempted murder. However, as the constitutional question was not raised or argued in that case, it did not decide whether that requisite mens rea was a constitutional requirement. The case simply interpreted the offence as currently legislated.

In R. v. Martineau, a judgment handed down this day, this court has decided, as a constitutional requirement, that no one can be convicted of murder unless the Crown proves beyond a reasonable doubt that the person had subjective foresight of the fact that the death of the victim was likely to ensue. Because of both the stigma and the severe penal consequences which result from a conviction for murder, the Constitution Act, 1982 requires at least that degree of intent.

As defined in Ancio, the elements of mens rea for attempted murder are identical to those for the most severe form of murder, murder under s. 212(a)(i) {now s. 229}. For each, the accused must have had the specific intent to kill. All that differs is the “consequences” component of the actus reus. Quite simply, an attempted murderer is, if caught and convicted, a “lucky murderer”. Therefore, it would seem logical that the requisite mens rea for a murder conviction, as described in Martineau, must be the same for a conviction of attempted murder. However, logic is not sufficient reason to label something a “constitutional requirement”. As I have stated in Vaillancourt, the principles of fundamental justice require a minimum degree of mens rea for only a very few offences. The criteria by which these offences can be identified are, primarily, the stigma associated with a conviction and, as a secondary consideration, the penalties available.

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that, although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky—the ambulance arrived early, or some other fortuitous circumstance—but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.

It should be noted that, as a basis for a constitutionally required minimum degree of mens rea, the social stigma associated with a conviction is the most important consideration, not the sentence. Few offences have a high minimum sentence such as that for murder. For some-offences, there is a high maximum and a low minimum penalty available; for other offences, the maximum penalty is much reduced and there is no minimum imposed whatsoever. In either situation, the fact that a lesser sentence is available or imposed, by statute or through the exercise of judicial discretion, in no way ends the inquiry. The sentencing range available to the judge is not conclusive of the level of mens rea constitutionally required. Instead, the crucial consideration is whether there is a continuing serious social stigma which will be imposed on the accused upon conviction....

For these reasons, the mens rea for attempted murder cannot, without restricting s. 7 of the Charter, require of the accused less of a mental element than that required of a murderer under s.212(a)(i), that is, subjective foresight of the consequences. While Parliament, as I have already implied, could well extend our definition of attempted murder in Ancio to include the unsuccessful murderers of s. 212(a)(ii), it cannot go further and include objective foresight as being sufficient for a conviction without restricting s. 7 of the Charter.

Step two: mens rea for attempted murder pursuant to s. 21(2) to s. 21(2)

Having completed the initial step of the inquiry, one can proceed to the second step in determining the requisite mens rea for the conviction of a party pursuant to s. 21(2) on a charge of attempted murder. When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder. Any conviction for attempted murder, whether of the principal directly or of a party pursuant to s. 21(2), will carry enough stigma to trigger the constitutional requirement. To the extent that s. 21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foresight, its operation restricts s. 7 of the Charter.

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.

In this case, the objective of such a differentiation is to deter joint criminal enterprises and to encourage persons who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful purpose. This is a legislative objective of sufficient importance to justify overriding the rights of an accused under s. 7 of the Charter.

The next question to be addressed is whether the means by which Parliament has chosen to achieve that purpose are reasonable and justified, that is, if they are proportional to the objective they are meant to achieve.

First, a rational connection must be shown between the legislative objective and the restriction. By operation of s. 21(2) with respect to attempted murder, any person involved with others in an unlawful purpose is held responsible for the acts of all accomplices, whether or not that person actually foresaw that the accomplice would try to kill someone in furtherance of the unlawful purpose. The objective of the legislation is that this possibility of conviction through s.21(2) will make parties more responsible for the actions of their accomplices. Clearly, then, there is a rational connection between the restriction and the legislative objective.

However, even though Parliament has sought to achieve an important legislative objective by enacting the restriction in issue in this appeal and even though such restriction is rationally connected to that objective, I am of the view that it does not satisfy the proportionality test because it unduly impairs an accused’s rights under s. 7 of the Charter: see Vaillancourt, supra, at p. 132 C.C.C., p. 413 D.L.R.

The objective component of s. 21(2) unduly impairs rights under s. 7 of the Charter when it operates with respect to an offence for which a conviction carries severe stigma and for which, therefore, there is a constitutionally required minimum degree of mens rea. The words “ought to know” allow for the possibility that while a party may not have considered and accepted the risk that an accomplice may do something with the intent to kill in furtherance of the common purpose, the party, through this negligence, could still be found guilty of attempted murder. In other words, parties could be held to be criminally negligent with respect to the behaviour of someone else. For most offences under the Criminal Code, a person is only convicted for criminal negligence if consequences have ensued from their actions. While a person may be convicted, absent consequences, for criminal negligence (e.g., dangerous operation of a motor vehicle), none of these forms of criminal negligence carry with them the stigma of being labelled a “killer”. In a situation where s. 21(2) is operating in relation to the offence of attempted murder, no consequences have resulted from the actions of the party and yet the party could be convicted of this offence and suffer severe accompanying stigma and penalty.

Because of the importance of the legislative purpose, the objective component of s. 21(2) can be justified with respect to most offences. However, with respect to the few offences for which the Constitution requires subjective intent, the stigma renders the infringement too serious and outweighs the legislative objective which, therefore, cannot be justified under s. 1.

Conclusion

I 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.

I would dismiss the appeal. ...

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.

The sole issue in this case is the constitutionality of s. 21(2) of the Criminal Code, R.S.C. 1970, c. C-34. This appeal does not challenge the constitutionality of s. 213(a) {now s. 230} of the Criminal Code. Therefore, my colleague’s oblique reference to Martineau is somewhat inopposite. In that decision, a minimum standard of subjective foresight for murder was imposed based on the severity of punishment and the stigma associated with that crime. I disagreed that those factors operated to render an objective foreseeability standard unconstitutional, and I certainly do not believe that they are importable to the crime that is at issue in the present appeal.

In this case, the accused were charged with attempted murder. Such an offence must be treated differently, especially as regards the connection between actus reus and mens rea, than the crime of murder.

Only the offence of attempted murder is at issue in this appeal, and it is defined by s. 222 {now s. 239} of the Criminal Code:

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.
. . .
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 213 [now ss. 229 and 230] of 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.
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
 [1990] 3 S.C.R. 74; [1990] S.C.J. No. 119
Supreme Court of Canada

[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.]
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier and Cory JJ. was delivered by
1     CORY J.:—
7     Both the appellant and Snowbird were charged with first degree murder. Snowbird was convicted of that crime while the appellant was acquitted....
20     Kirkness could only be implicated, pursuant to the provisions of s. 21 of the Code, as a party to the sexual assault. He was not the prime mover in the crime. He neither sexually assaulted, strangled nor suffocated the victim. In the case of an accused who aids or abets in the killing of another, the requisite intent that the aider or abettor must have in order to warrant a conviction for murder must be the same as that required of the person who actually does the killing. That is to say, the person aiding or abetting the crime must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not. If the intent of the aiding party is insufficient to support a conviction for murder, then that party might still be convicted of manslaughter if the unlawful act which was aided or abetted is one he or she knows is likely to cause some harm short of death. Neither intent was demonstrated by the appellant in the present case....
21     Nor can it be said that the appellant, who had formed an intent in common with Snowbird to carry out the unlawful purpose of breaking and entering, knew before entering that Snowbird would either commit a sexual assault or kill the victim. [T]he only evidence against the appellant was that contained in his statement that he placed a chair against the front door knowing that a sexual assault was taking place in the bedroom. There is no indication that he knew that death or bodily harm short of death might result from the sexual assault. He did not enter into the bedroom. Indeed, it appears that the bedroom door was closed for some period of time so that he could not be aware of everything that was taking place....
22     There is no evidence that the appellant was a party to the suffocation of Elizabeth Johnson. Rather, he told Snowbird not to strangle the victim as he was going to kill her. His statement makes it clear that he was not aiding or abetting Snowbird in the strangulation or suffocation of Mrs. Johnson. These words of the appellant constituted "timely notice" to Snowbird that he was, from that point on, acting on his own and that the appellant was not a party to the strangulation and suffocation. See R. v. Whitehouse, [1941] 1 D.L.R. 683 (B.C.C.A.), quoted with approval in Miller v. The Queen, [1977] 2 S.C.R. 680. Thus in those misdeeds Snowbird was acting on his own. It is therefore apparent that even if the appellant could be considered a party to the sexual assault, by the time of the attempted strangulation he had clearly resiled from any agreement or arrangement with Snowbird and was not a party to the suffocation of the victim....
31     WILSON J. (dissenting [on other grounds]):—
55     ... I agree with my colleague that the accused neither aided nor abetted the murder of Elizabeth Johnson....
59     Turning to the accused's state of mind during this period, Kirkness stated to the police that he told Snowbird to stop choking the victim because he might kill her. This statement is completely inconsistent with any intent to aid in the killing. Since the accused did not have the specific intent to assist in bringing about the death of the victim, conviction for murder as an aider or abettor is foreclosed....

 

R. v. Hibbert
[1995] 2 S.C.R. 973; [1995] S.C.J. No. 63
Supreme Court of Canada

[for the facts of the case, and further analysis, see supra]

The judgment of the Court was delivered by
1     LAMER C.J.:
36     ... Parliament's use of the term "purpose" in s. 21(1)(b) should not be seen as incorporating the notion of "desire" into the mental state for party liability, and that the word should instead be understood as being essentially synonymous with "intention".
37     This interpretation is ... consistent with the approach that has been taken on previous occasions by this Court in connection with s. 21(1)(b). In R. v. Kirkness, [1990] 3 S.C.R. 74, for instance, Cory J. (writing for a majority of the Court) stated (at p. 88):

[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
[2010] 1 S.C.R. 411
Supreme Court of Canada

The judgment of the Court was delivered by
CHARRON J.:—...
7     What happened to Ms. Courtepatte was not the main question at trial. There was no real question about whether she had been a victim of a kidnapping, aggravated sexual assault, or culpable homicide. There was also no serious question that the homicide fell within the category of first degree murder, either because it was planned and deliberate, or because it was committed during the commission of a crime of domination within the meaning of s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. The issue was whether each accused was involved and, if so, whether criminal liability flowed from this involvement.
8     The Crown's theory was that Mr. Laboucan was "the mastermind behind these offences" who had formulated the plan, selected the victim, and communicated the plan to the others. Mr. Briscoe's actions, carried out with knowledge of Mr. Laboucan's plan, made him a party to the offences. ...
9     The trial judge essentially accepted the Crown's theory. He found that Mr. Laboucan had committed the offences as a principal offender and that Mr. Briscoe had aided in the commission of the crimes by doing four things: he "drove the group to the place" where the crimes were committed; he "selected a place to stop the characteristics of which facilitated" the commission of the crimes; he "opened the trunk of the car at Mr. Laboucan's request" and "gave him one of the tools that was taken to the grassy area, albeit a tool apparently not used to murder Ms. Courtepatte"; and he "angrily told Ms. Courtepatte to be quiet ..." (para. 277). Therefore, the actus reus for being a party to the offences was proven.
10     The trial judge then examined whether Mr. Briscoe had the requisite mens rea for any of the offences. Did he intend to assist Mr. Laboucan in the commission of the crimes? In order to have such intention, he would have to have known of Mr. Laboucan's intention to commit each of the crimes. The crucial question then became whether he had such knowledge. The trial judge concluded that Mr. Briscoe did not have the requisite knowledge. Although Mr. Briscoe did not testify at trial, the Crown introduced statements he had made to the police following his arrest. The trial judge ruled the statements voluntary and relied heavily on their contents in concluding that Mr. Briscoe lacked the requisite knowledge. ...
11     In brief, the trial judge's conclusions on mens rea were the following. On the charge of kidnapping, despite finding that Mr. Briscoe knew that Mr. Laboucan intended to at least seriously scare Ms. Courtepatte, the trial judge determined that the evidence did not support the conclusion that Mr. Briscoe knew "Ms. Courtepatte ... had been lured by fraud into his car" (paras. 283-84). On the charge of aggravated sexual assault, although Mr. Briscoe's "statement does suggest that he understood Mr. Laboucan anticipated to be sexually intimate with Ms. Courtepatte", there was "nothing to indicate he understood that Mr. Laboucan intended to sexually assault Ms. Courtepatte" (para. 285). Finally, on the charge of first degree murder, the trial judge held that "the evidence does not establish that he knew Mr. Laboucan in fact intended to kill Ms. Courtepatte. Further the evidence certainly does not establish that he himself had the requisite intent for murder" (para. 286). The trial judge concluded that, in these circumstances, the evidence was not sufficient to prove beyond a reasonable doubt "that Mr. Briscoe did any of the assistive things he did knowing, much less intending, that they would assist Mr. Laboucan" to commit any of the crimes (para. 287). The trial judge did not consider whether Mr. Briscoe was wilfully blind, despite the Crown's submissions. He acquitted Mr. Briscoe on all charges.
12     The Crown appealed Mr. Briscoe's acquittals to the Court of Appeal of Alberta. Writing for a unanimous court, Martin J.A. held that the trial judge erred in law by failing to consider whether Mr. Briscoe was "wilfully blind to the harm his cohorts intended to cause the victim" and that, "[b]ut for this error, the verdicts may well have been different" on all three charges (para. 41). The Court of Appeal set aside the acquittals and ordered a new trial on all charges. Mr. Briscoe now appeals to this Court.
13     Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable:

21. (1) Every one is a party to an offence who  
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

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.
14     The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed": R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. ...
15     Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. As the Court of Appeal for Ontario wrote in R. v. F. W. Woolworth Co. (1974), 3 O.R. (2d) 629, "one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs" (p. 640). The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.
16     The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that "purpose" in s. 21(1)(b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that "purpose" should not be interpreted as incorporating the notion of "desire" into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35). The Court held, at para. 32, that the perverse consequences that would flow from a "purpose equals desire" interpretation of s. 21(1)(b) were clearly illustrated by the following hypothetical situation described by Mewett and Manning:

If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle for which he will pay him $100, when that person is ... charged under s. 21 for doing something for the purpose of aiding his friend to commit the offence, can he say "My purpose was not to aid the robbery but to make $100"? His argument would be that while he knew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not.
(A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 112)

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)).
17     As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89):

... a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v. Kirkness (1990), 60 C.C.C. (3d) 97 (S.C.C.) at 127.

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).
18     It is important to note that Doherty J.A., in referring to this Court's decision in R. v. Kirkness, [1990] 3 S.C.R. 74, rightly states that the aider to a murder must "have known that the perpetrator had the intent required for murder". While some of the language in Kirkness may be read as requiring that the aider share the murderer's intention to kill the victim, the case must now be read in the light of the above-noted analysis in Hibbert. The perpetrator's intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.
19     Having set out the relevant legal principles for assessing the mens rea of a person charged with aiding and abetting murder, I now turn to Mr. Briscoe's main argument in this appeal: that the doctrine of wilful blindness should find no application in determining the requisite knowledge for murder, either as a principal or as an aider or abettor.
20     In essence, Mr. Briscoe argues that wilful blindness is but a heightened form of recklessness which is inconsistent with the very high mens rea standard for murder under s. 229(a) of the Criminal Code. He argues further that allowing fault for murder, as either a principal or party, to be established by wilful blindness could run afoul of the principle that "subjective foresight of death" is the minimum standard of fault for murder under s. 7 of the Canadian Charter of Rights and Freedoms: R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645. The Court of Appeal rejected these arguments and, in my view, rightly so. As I will explain, wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused's state of mind which must be undertaken to establish an aider or abettor's knowledge.
21     Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"
22     Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

... while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.

23     It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.
(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret, at p. 586).)

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".
25     In this case, I agree with Martin J.A. that the trial judge erred in law by failing to consider wilful blindness. As he noted, even Mr. Briscoe's own statements to the police suggest that he had a "strong, well-founded suspicion that someone would be killed at the golf course" (para. 30) and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. As he put it, "whatever you guys wanna do just do it. Don't do it around me I don't want to see nothing I don't know what the fuck you're gonna do." The trial judge relied heavily upon the statements in his reasons but did not refer to the doctrine of wilful blindness. Of course, whether Mr. Briscoe had the requisite mens rea for the three offences was a question for the trier of fact, and Mr. Briscoe is entitled to the benefit of any reasonable doubt on this issue. However, from a legal standpoint, it is my respectful view that the evidence cried out for an analysis on wilful blindness. In these circumstances, the Court of Appeal rightly concluded that the trial judge's failure to consider Mr. Briscoe's knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges.
26     In my view, the Crown has met its heavy onus on appealing an acquittal of showing that the errors of the trial judge "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal" on the three charges: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14 (per Fish J.). Consequently, I would dismiss the appeal and confirm the order for a new trial.

 

R. v. Hughes
[2011] B.C.J. No. 852; 2011 BCCA 220
British Columbia Court of Appeal
Vancouver, British Columbia

The judgment of the Court was delivered by
M.A. ROWLES J.A.:
1     Benjamin Brian Hughes appeals his conviction on four counts of criminal negligence causing death, one count of criminal negligence causing bodily harm, and five counts of failing to stop at the scene of an accident.
2     The accident leading to the charges against the appellant occurred in the early morning hours of 28 January 2006, in the westbound lanes of Highway 1 near the First Avenue exit into Vancouver. At the time, the visibility and road conditions on the highway were very poor: it was windy, dark and raining heavily, and there was a lot of water on the road.
3     Nicola Jozic, driving a BMW at a very high rate of speed, struck the rear driver's side passenger door and the mirror of a slower moving Mazda sedan, driven by Heather Morin. After striking the Mazda, Jozic lost control of the vehicle. The BMW hit the centre median and then slammed into a lamp standard on the right side of the highway and sheared in half. The two pieces of the BMW went over an embankment onto the First Avenue off-ramp. As a result of the accident, the driver and three of the passengers in the BMW were killed and a fourth passenger, Phillip Miller, was injured.
4     Morin's Mazda was in the right hand lane of the two westbound lanes when it was struck by the BMW. Prior to her Mazda being stuck, Morin saw two sets of headlamps coming up behind her very quickly. Morin had been travelling at about 80 kph but on seeing the headlamps, she took her foot off the accelerator but did not brake.
5     Immediately before and for some time prior to the accident, the appellant had been driving his Cadillac in the lane to the left of the BMW, more or less adjacent to it, at a similarly high rate of speed.
6     The BMW struck the Mazda while attempting to pass it.
7     The trial judge found that both the appellant and the driver of the BMW had been criminally negligent during the time leading up to and at the time of the accident. The judge further found that the appellant's criminal negligence had been, in fact and in law, a significant contributing cause of the deaths and the bodily harm as alleged in counts 1 to 5 of the indictment. The judge's finding of criminal liability was grounded on the appellant's being an "actual committer" of the offences, that is, a principal offender under s. 21(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46....
74     The trial judge grounded his finding of guilt for the offences of criminal negligence causing death and criminal negligence causing bodily harm on the basis that the appellant was a principal party under s. 21(1)(a) of the Criminal Code as an "actual committer". In that regard, the trial judge said:

[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.)

[27] The case law that deals with the question of two or more s. 21(1)(a) actual committers of one offence sometimes employs language such as "combined" or "in concert," even though it is clear that s. 21(1)(a) is under discussion and, by definition, formation of an intention in common is not demanded by Parliament. In my respectful opinion, language such as "combined" or "in concert" means only that the two or more individuals in question participated directly in the actus reus and the result was the harm that is an irreducible element of the offence in question. ...
75     Section 21(1) provides:

21.(1) Every one is a party to an offence who
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any person to commit it, or
(c) abets any person in committing it.

76     In this case, there is no suggestion that either s. 21(1)(b) or (c) is applicable.
77     This is not a case in which the appellant and the driver of the BMW acted under a common intention. Each acted independently, but that fact does not defeat the Crown's case against the appellant as a principal offender. A person may be liable as a principal if he actually does or contributes to the doing of the actus reus with the requisite mens rea: R. v. Mammolita (1983), 9 C.C.C. (3d) 85 at 89, [1983] O.J. No. 151 at para. 12 (C.A.). Further support for the judge's application of s. 21(1)(a) may be found in R. v. Pickton, 2009 BCCA 299 at para. 227, aff'd 2010 SCC 32, [2010] 2 S.C.R. 198, in which a principal party was described as one who "played an active role in the physical act of killing". That two persons may both be "actual committers", even though each has not performed every act that makes up the actus reus of the offence, was recently affirmed by this Court in R. v. Ball, 2011 BCCA 11 at paras. 21-27. Justice Ryan stated at para. 25:

... 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.
[2011] O.J. No. 1577
Ontario Court of Appeal


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].

Some of you might think that [the appellant] was a main partner of the plan that he agreed to murder [the deceased]. Others might agree at the end of the day that he was only a party to the conspiracy in that he assisted or encouraged the girls in their murder plot. The Crown's position is that [the appellant] was involved in this conspiracy because he provided at least one of the following:

*           Advice about the drowning process and how to act when interacting with the police.
*           Help with details of the plan including combining alcohol and Tylenol 3's and what to do if she woke up part way through.
*           An agreement to assist with the alibi and attended at Jack Astor's the night of the murder.
*           Or Tylenol 3's to facilitate her death.
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:

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.

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.
Dickson J. continued on the same page: "There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal."
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
[2011] B.C.J. No. 39; 2011 BCCA 11
British Columbia Court of Appeal
 Vancouver, British Columbia

The judgment of the Court was delivered by
C.A. RYAN J.A.:
2     ... Adam Ball and Paul Rosborough appeal their convictions for manslaughter in the death of Bradley Johnston.
3     Bradley Johnston, a young man 24 years of age, died shortly after midnight on January 10, 2005 in Victoria General Hospital. He had suffered a skull fracture with an associated menigeal artery tear from a blow or blows received in an altercation outside the Rec Room bar in Parksville one day earlier. His brother, Ian Johnston, suffered bodily harm in the same incident.
...
44     Whether and how one abandons their role as an aider or abetter is an interesting question. As Don Stuart has noted, Canadian Criminal Law, 5th ed. (Thompson Canada Ltd., 2007) at 640:

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
Ontario Supreme Court, Court of Appeal
[1983] 34 C.R. (3d) 169

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:
... between the 30th day of May, 1982, and the 1st day of June, 1982, at the City of Timmins, in the District of Cochrane, did procure Charles Charbonneau to commit an indictable offence of first degree murder, which offence was not committed, contrary to the Criminal Code of Canada [R.S.C. 1970, c. C-34], Section 422 {now s. 464}.

2          The facts are these. The appellant operated a window cleaning business in the town of Timmins. Neil Roy had formerly been employed by him and, after Roy had ceased to be employed by the appellant, he established his own window cleaning business and became a competitor of the appellant.

3          The Crown called a number of witnesses for the purpose of showing that the appellant was angry with Roy and had made threats against him.

4          On Sunday, 30th May 1982, the appellant, in the early afternoon, went to a bootlegging establishment in the city of Timmins. There were a number of other persons present, including one Charbonneau. The appellant knew Charbonneau by sight but was not otherwise acquainted with him. The appellant spoke to Charbonneau and offered to buy him a beer. According to Charbonneau, the appellant stated that he nearly went bankrupt because Roy was cutting prices and he wanted him "wiped off the map". The appellant, so Charbonneau said, stated that he had a "couple of guys" coming from Montreal to do the job. Charbonneau testified that he did not want his friend Roy to be hurt and he said "I'll do it for you".

5          The appellant left the bootleggers' about mid-afternoon, and Charbonneau went to the home of Roy. The police were subsequently notified. Charbonneau testified that in the early evening of that day he went to the appellant's place of business and asked for $500 on account and that the appellant gave him a cheque for $200 after discussing various ways in which Roy might be disposed of. Charbonneau gave the cheque to the police and it was ultimately cashed and the money retained by them.

6          On 1st June 1982 Charbonneau was fitted with a body pack recorder by the police and he went back to the appellant's place of business. Charbonneau testified that on this occasion the appellant told him to forget about the matter and that Charbonneau could keep the $200.

7          The appellant's version of what occurred was this. He testified that at the bootlegger's Charbonneau asked him if he knew Neil Roy and asked the appellant if he could give Charbonneau a job. He also asked the appellant for an advance of $1,000. The appellant said he asked Charbonneau if he had worked for Roy and Charbonneau replied that he had and that Roy owed him $800. The appellant, so he said, told Charbonneau "that he could forget the $800", because Roy could not pay. Charbonneau said he had a gun and would "fix" Roy. The appellant testified that he told Charbonneau to forget about the gun. He said he left the bootlegger's around mid-afternoon, and Charbonneau came to his place around 6:00 p.m. and asked for a cheque. He said that he gave Charbonneau a cheque for $200, and told Charbonneau that when he went to work for the appellant he could pay him back. The appellant's explanation for the conversation with Charbonneau on 1st June 1982, which, unknown to him, had been recorded, was that in the conversation he was telling Charbonneau to forget the gun that Charbonneau had mentioned, and that the appellant was telling Charbonneau that he did not want to hear any more of the talk that had emanated from Charbonneau at the bootlegger's.

8          The charge was laid under s. 422 {now s. 464} of the Criminal Code, which reads as follows:

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,
(a) every one who counsels, procures or incites another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and is liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) every one who counsels, procures or incites another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.

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.

10        Glanville Williams, in his work Textbook of Criminal Law (1978), states at p. 384:

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.)
Any persuasion or encouragement (including a threat) is sufficient; so probably, is a mere suggestion.
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.
12          Counsel for the appellant advanced as one of the grounds of appeal, in his statement of law and fact, that the learned trial judge erred in failing to instruct the jury that a renunciation by the appellant of the previous act of incitement constituted a defence. The offence of procuring under s. 422 is complete when the solicitation or incitement occurs even though it is immediately rejected by the person solicited, or even though the person solicited merely pretends assent and has no intention of committing the offence. There is no authority in either the Canadian or Commonwealth decisions in support of the view that renunciation of the criminal purpose constitutes a defence to a charge of "counselling, procuring or inciting" under s. 422, although renunciation is an affirmative defence under s. 5.02(3) of the American Model Penal Code to a charge of criminal solicitation: see "Abandoning Criminal Intent" by Martin Wasik, [1980] Crim. L. Rev. 785. ...

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....

It is important to note that the defence of abandonment is not unknown to our criminal law. Martin J.A. recognized that it applied to liability pursuant to s. 22. As well, English courts have long recognized a defence of abandonment in respect of culpability based on common intention... The Canadian view has been articulated by Sloan J.A. in R. v. Whitehouse, 55 B.C.R. 420, [1941] 1 W.W.R. 112, 75 C.C.C. 65 at 67-68, [1941] 1 D.L.R. 683 (C.A.); he explained the defence as requiring at least "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 it".

Why is it that abandonment has not been extended to the inchoate offences of counselling, attempts and conspiracy? Other jurisdictions and some authors support an extended application of the defence: see American Model Penal Code, s. 5.02; G. Fletcher, Rethinking Criminal Law (1978), pp. 184-97; D. Stuart, Canadian Criminal Law (1982), pp. 540-43, 577.

The answer cannot be as simple as saying that, with respect to the inchoate offences, all the necessary elements of liability are complete before any renunciation of intention because the requisite elements of liability as a party under ss. 21(2) and 22 are also complete before renunciation. To resolve the question one must attempt to define the rationale for liability according to the various offences in order to understand why abandonment should apply to liability as a party (ss. 21(1) and 22) but not with respect to the inchoate defences. This would then lead to the question of what policy would be furthered by convicting an accused who had abandoned his intention before commission. For example, an examination of common intention liability to probable consequences is based on the encouragement and strengthening of resolve which is generated when one party joins with another in a common enterprise. If this is true, severing oneself from ultimate consequences by a timely and unequivocal renunciation to one's confederate recognizes the value of attempting to negative the encouragement already given.... One could characterize this result as requiring an attempt to neutralize the harm caused by entering into the common enterprise. This view would explain why in R. v. Becerra; R. v. Cooper (1975), 62 Cr. App. R. 212, the English Court of Criminal Appeal found no effective withdrawal from a common purpose in a case where A provided B with a knife to use in a robbery. The court speculated that only some physical intervention by A to prevent the use of the knife by B could sever A from liability for the subsequent stabbing. If neutralizing harm is the central issue one would think that the strongest case for a defence of abandonment would apply with respect to attempts where a voluntary renunciation of intention best ensures that a harmful consequence will not occur, since the actor controls his own actions. With common intention, counselling and conspiracy, renunciation by one participant cannot guarantee that others will be discouraged from pursuing their objective.

Ultimately our concern must be that our courts have not embarked on a careful analysis of the relationship between abandonment and liability as a party and liability pursuant to the inchoate offences. An inquiry into the interests promoted by recognizing abandonment with respect to common intention liability might compel extending the defence to other situations. On the other hand, it may be that abandonment applies to common intention simply because of judicial concern over the extraordinary net of responsibility for ultimate consequences which flows from s. 21(2). If this is the case, it would provide a useful caution to courts, legislators and law reformers involved in considering the appropriate scope of liability as a party. In any event, the issue of abandonment begs for further consideration in Canada.

 

* * *
People v. Staples
Court of Appeal of California, Second District
6 Cal. App. 3d 61 (1970)

REPPY, J.

Defendant was charged in an information with attempted burglary (Pen. Code, §§ 664, 459)....

In October 1967, while his wife was away on a trip, defendant, a mathematician, under an assumed name, rented an office on the second floor of a building in Hollywood which was over the mezzanine of a bank. Directly below the mezzanine was the vault of the bank. Defendant was aware of the layout of the building, specifically of the relation of the office he rented to the bank vault. Defendant paid rent for the period from October 23 to November 23. The landlord had 10 days before commencement of the rental period within which to finish some interior repairs and painting. During this prerental period defendant brought into the office certain equipment. This included drilling tools, two acetylene gas tanks, a blow torch, a blanket, and a linoleum rug. The landlord observed these items when he came in from time to time to see how the repair work was progressing. Defendant learned from a custodian that no one was in the building on Saturdays. On Saturday, October 14, defendant drilled two groups of holes into the floor of the office above the mezzanine room. He stopped drilling before the holes went through the floor. He came back to the office several times thinking he might slowly drill down, covering the holes with the linoleum rug. At some point in time he installed a hasp lock on a closet, and planned to, or did, place his tools in it. However, he left the closet keys on the premises. Around the end of November, apparently after November 23, the landlord notified the police and turned the tools and equipment over to them. Defendant did not pay any more rent. It is not clear when he last entered the office, but it could have been after November 23, and even after the landlord had removed the equipment....

... There was definitely substantial evidence entitling the trial judge to find that defendant's acts had gone beyond the preparation stage. Without specifically deciding where defendant's preparations left off and where his activities became a completed criminal attempt, we can say that his "drilling" activity clearly was an unequivocal and direct step toward the completion of the burglary....

... Usually the actors in cases falling within [the] category of ["incomplete"] attempts are intercepted or caught in the act. Here, there was no direct proof of any actual interception. But it was clearly inferable by the trial judge that defendant became aware that the landlord had resumed control over the office and had turned defendant's equipment and tools over to the police. This was the equivalent of interception.

The inference of this nonvoluntary character of defendant's abandonment was a proper one for the trial judge to draw. However, it would seem that the character of the abandonment in situations of this type, whether it be voluntary (prompted by pangs of conscience or a change of heart) or nonvoluntary (established by inference in the instant case), is not controlling. The relevant factor is the determination of whether the acts of the perpetrator have reached such a stage of advancement that they can be classified as an attempt. Once that attempt is found there can be no exculpatory abandonment. "One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime."

* * *

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.

2. In any prosecution for criminal facilitation ..., it is an affirmative defense that, prior to the commission of the felony which he facilitated, the defendant made a substantial effort to prevent the commission of such felony.

3. In any prosecution ... for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

4. In any prosecution for criminal solicitation ... or for conspiracy ... in which the crime solicited or the crime contemplated by the conspiracy was not in fact committed, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant prevented the commission of such crime.

5. A renunciation is not "voluntary and complete" within the meaning of this section if it is motivated in whole or in part by (a) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose, or (b) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective

            D. Vicarious Liability (Respondeat Superior)


 

R. v. Hawinda Taverns Ltd.
Ontario County Court
[1955] 112 C.C.C. 361

APPEAL from a conviction for an offence against the Liquor Licence Act (Ont.).

HARVIE CO. CT. J.: This is an appeal by the accused Hawinda Taverns Ltd. from a conviction by His Worship, Magistrate Cameron, on March 24, 1955, on a charge that the accused did on or about January 14, 1955, at the town of Penetanguishene in the County of Simcoe, being a holder of a licence under the Liquor Licence Act, for the Brule Hotel, suffer a person under the age of 21 years to be upon that part of the licensed premises where liquor is sold, other than a dining room or dining lounge, contrary to the Liquor Licence Act, s. 51(5), R.S.O. 1950 c. 211, as amended. The said section 51(5) provides as follows: “No person holding a licence under this Actshall permit or suffer any person under or apparently under the age of 21 years to enter or be upon that part of the licensed premises where liquor is sold, or kept for sale, except in a dining room or dining lounge.” ...

Counsel for the accused takes the position that there is only one point of importance arising in the case and that is whether or not mens rea or knowledge must be proved on the part of the accused (a) of the presence of the person upon the premises and (b) of the fact that such person is or was apparently under the age of 21 years.

The facts are that the young man in question along with two or three companions strolled into the beverage room, ordered a bottle of beer from the waiter, was supplied same, drank it and then wandered into the ladies beverage room, sat there chatting for five minutes or so, when the manager of the tavern, accompanied by an inspector or police officer, came in and challenged the boy as to his age. At first he said he was twenty-one and then finally admitted that he was under twenty-one and produced a birth certificate to prove it. He was immediately removed. Counsel for the accused contends that it must be proven affirmatively that either the licence holder of the premises or some person delegated by him knew (1) that the person in question was on the premises and (2) he was under the age of 21 years. He discounts the responsibilities of the ordinary waiter who supplied the boy with the bottle of beer as being delegated to ascertain the true age of the boy in the absence of proof to that effect. In any event, there is no evidence that the proprietor or manager knew that the boy came upon the premises or that he was under the age of 21 years. On the contrary, as soon as he was advised of the questionable age of this boy he took the necessary steps to have him removed.

Counsel for the Crown contends that under this section there is an absolute prohibition requiring the proprietor or somebody under him to prevent such person under the age of 21 years from entering upon or being upon the premises. In my opinion, if this contention were correct there would be a duty cast upon the licence holder to keep his doors shut against every one entering upon the premises and permit to enter only those who he can be sure or is sure are over the age of 21 years. That would appear to impose an undue hardship and obligation on a licence holder as well as produce a situation almost farcical in its rigid sternness and harshness, for usually these premises have several entrances, two outside, and one inside from the hotel proper, which would entail the presence of a policeman or similar watch-dog at each entrance. Apparently this is not the intention of the Legislature, and, in any event, there is no place in the whole of this country, that I am aware of at least, which places that interpretation on the Act and in doing so erects a veritable “iron curtain” for perfect and absolute prevention. ...

All the other decisions above referred to [apart from R. v. Bruin Hotel Co. (1954) 109 C.C.C. 174 (Alta. C.A.)] seem to agree that you cannot make a beginning of this problem without mens rea; that “suffer” or “permit” imports mens rea or previous knowledge, or knowledge, and that you must have such knowledge before you can be said to be within the section or the meaning thereof. ...

Whether, in the case at bar, it can be assumed that the knowledge of the waiter who served the beer to the boy in question can be said to be knowledge of the licence holder is questionable. In any event, it was not proven in evidence that authority or instructions to watch for and prohibit minors etc. was delegated to the waiter. After all, he was merely a waiter and so far as the evidence was concerned apparently was not delegated with any authority or instructions but to serve customers. Lord Goddard C.J., in the case of Ferguson v. Weaving, [1983] All E.R. 412, deals with this aspect of the situation in the following words (p. 415):

“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):
‘The principle does not, in my opinion, depend merely upon the legal relationship between the two persons, the person who actually permitted with knowledge and the person who is convicted although he had no actual knowledge. The point does not, as I say, depend merely on the fact that the relationship of master and servant exists; it depends on the fact that the person who is responsible in law as the keeper of the house, or the licensee of the house if the offence is under the Licensing Act [1872], has chosen to delegate his duties, powers and authority to somebody else.’” ...
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.


United States

 

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.



                        2. Foundations of Corporate Criminal Liability

 

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. …




Lennard's Carrying Co. v. Asiatic Petroleum Co.

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"
6 Journal of International Criminal Justice 927 (2008)


A. History, and a Compromise Solution


While the majority of European states have moved toward recognizing corporate criminal responsibility, Germany, along with a few allies, has so far held out in a position of at least partial denial. Germany recognizes an indirect form of corporate liability for wrongdoing of officers and managers of legal persons, but has so far refrained from making corporations subject to ‘genuine’ criminal sanctions. Germany’s reluctance in that regard can be traced back to certain tenets of nineteenth-century idealistic philosophy. All the way until the end of the eighteenth century, criminal liability of collective entities had been a well-recognized and frequently practised phenomenon under the law applicable on the territory that today is Germany. For example, communities were fined for violations of the laws imposed by imperial or regional sovereigns. The ancient rule that corporations cannot be held criminally responsible (societas delinquere non potest) had been abandoned in favour of a practical approach that made it possible for emerging regional powers to subdue recalcitrant local entities. It was only in the wake of Immanuel Kant’s individualistic understanding of responsibility that the notion of the criminal guilt of a corporation lost credit. At the same time, the great German jurist Carl Friedrich von Savigny developed the ‘fiction theory’ of corporations, maintaining that the recognition of legal persons was rooted in the fiction that the individual will of each of their representatives was regarded as the will of the legal person. Such fiction, Savigny concluded, could lead to civil liability but never to criminal liability of the corporation. Although Savigny’s theory was later challenged by Otto von Gierke, who postulated the existence of a ‘real corporate personality’ of legal persons, the Penal Code for the new German empire, written in 1870, adhered to Savigny’s concept and limited criminal liability to natural persons. ...

[In 1968,] a legislative compromise had resolved the conflict between doctrinal opposition to corporate criminal responsibility and the practical demand for confiscating the profits of criminal activities from corporations. [Since then,] the Code on Administrative Infractions (Gesetz über Ordnungswidrigkeiten) permits the imposition of an administrative fine against a legal person if an organ, a representative or a person with control functions of the legal person committed a criminal offence or an administrative infraction by which an obligation of the legal person was violated or the legal person was enriched. In order to impose an administrative fine, it is not necessary to identify an individual officer or representative who did wrong; it only has to be shown that someone acting for the legal person in a capacity designated by the statute committed an offence. The offence can also consist in a culpable lack of supervision over lower-rank employees. The appropriate state agency can thus impose an administrative fine on a legal person when all that is known is the fact that one of its employees committed a criminal or administrative offence on behalf of the legal person and that a responsible officer of the legal person failed to prevent or discourage the commission of that offence through proper supervision of the subordinate. The maximum amount of an administrative fine against the legal person is one million Euro. If the legal person obtained an illicit profit from the offence, the fine can exceed one million Euro and is limited only by the amount of the legal person’s gain. The Penal Code also provides for the possibility of confiscating the proceeds of a crime from a legal person when a natural person has committed a criminal offence on its behalf.

This legal arrangement ... fulfils the main functions of corporate criminal responsibility. It permits the state to hold the corporation financially responsible for offences committed by its agents on its behalf, and even for offences of mere employees if they were not sufficiently supervised, and to deprive the corporation of any illicit profit it may have drawn from violations committed on its behalf. It can therefore be argued that the Federal Republic of Germany lives up to its commitment under various international conventions to provide for proportional and deterrent sanctions against legal persons.


B. The Debate Continues


…Those who argue in favour of extending the core criminal law to corporations emphasize the penological need for and practical advantages of punishing legal persons in the same way as natural persons. Legal persons, they claim, are in today’s economic system responsible for the bulk of business and environmental crime. At the same time, a fragmentation of tasks and responsibilities within business enterprises makes it difficult, if not impossible, to trace criminal violations back to individual actors. Even if that is possible, the requisite mens rea is frequently lacking or impossible to prove against an individual who may only be a small cog in a large wheel. High-level corporate managers, on the other hand, will often deny knowledge of criminal conduct, claiming that individual employees were acting on their own and against company rules. Another ground advanced for holding corporations criminally responsible is that companies encourage criminal conduct by maintaining a corporate culture that condones or even rewards violations of the law. Only criminal sanctions, it is being said, sufficiently affect the legal person to make it change its lawless corporate attitude....


C. Two Models of Corporate Criminal Responsibility


Two models have been suggested to provide a rationale for corporate criminal responsibility and to reconcile that notion with general principles of German criminal law.

Under the first approach, the corporation is punished for its officer’s guilty conduct. The blame that the officer deserves is also attributed to the corporation. That transfer of blame is based on the assumption that the corporation has not properly selected or supervised the officer or has tolerated a corporate culture fostering illegal conduct.

Critics of that model question the legitimacy of imposing criminal sanctions for someone else’s guilty behaviour, even if the primary offender is closely related to the entity sanctioned and has acted on its behalf. Attribution seems to require a split of personality (or a duplication of responsibility) on behalf of the officer: he commits an offence that makes him criminally liable for his personal fault, and at the same time creates additional liability for that same act on the part of the corporation. Moreover, this model requires that an individual representative of the corporation can be shown to have culpably committed a criminal act. Yet, it is the very difficulty of identifying an individual responsible for a violation that has given rise to the creation of corporate criminal responsibility, hence this version of the attribution model fails to resolve one of the core problems that punishing legal persons is supposed to resolve. This model would also create a great incentive for the corporation to conceal officers’ individual responsibility, because it would thereby also protect itself from (transferred) liability. Under a different version of this model, transfer of blame is possible even from an unknown actor. But, if an individual offender becomes a mere fiction, so does the model itself. ‘Transfer’ of blame then amounts to ascribing blame that some anonymous person may have deserved. Such ‘transfer’, if it can still be called that, is in dire want of a justification.

The second model deals less with the way in which guilt can be attributed to a legal person, but with the substantive argument for doing so. This model makes the legal person directly criminally responsible, not for the criminal act committed by someone else, but for its own malfeasance. The fault of the corporation under that theory lies in its deficient organization and the lack of proper supervision over its officers and employees. According to that view, the corporation’s imperfect self-organization is the reason for its punishability, whereas the criminal offence committed by an individual is only the trigger for prosecuting the corporation. Moreover, in such case there need not even be proof that an offence was culpably committed but only that some damage was caused by the corporation and there was a lack of supervision when proper supervision would have (or could have) prevented the harm from happening. One German author has compared corporate liability to voluntary intoxication, where the actor drinks himself into a state of temporary insanity but remains criminally liable for what he does in that state of intoxication.

This model has the advantage of avoiding the necessity of proving and transferring guilt, because it attaches blame directly to the corporation. But at closer inspection serious flaws appear. First, who is the ‘corporation’ whose lack of sufficient organization lies at the root of criminal responsibility? Can a corporation organize itself, properly or not? Is it not natural persons who do that job? Even the very first step of ascribing responsibility thus appears to be built on a fiction, namely that a legal person is a person with the ability to act, to understand norms and to let himself be guided by these norms. One should be wary of flowery images and ways of speaking when it comes to attaching criminal responsibility. In a way, it is the corporation itself that develops a certain corporate culture and establishes structures of supervision and control, but in reality, it is not the ‘corporation’ but natural persons operating alone or in groups that actually devise plans, take certain measures or abstain from doing so, albeit in the name of the legal person.

Assuming that the legal person itself is responsible for its organization, what then are the obligations it has to fulfil? Remember that in this model the reason for punishing the legal person is not, for example, the death of a customer or the pollution of a river, but the lack of proper self-organization and/or the development of a ‘criminal’ corporate culture. Yet, these are mere metaphors, not descriptions of conduct precise enough to provide a reliable basis for criminal liability. Where are the standards that a legal person must comply with to avoid being faulted with a defective self-organization? What exactly is the ‘culture’ that a corporation must strive to build? And who is to decide? A government-appointed council of corporate ethics or a management consulting firm? Even when standards of good corporate governance48 meet with widespread agreement, it is doubtful whether and under what conditions individual enterprises are legally bound to adhere to them. On the other hand, the strict observance of such soft law standards has repeatedly been found not to be a defense against liability when the concrete situation was such that a deviation from generally applicable standards was called for in order to avoid imminent harm.

Even if it could be shown that a corporation has neglected a duty to put into place structures and procedures necessary to prevent illegal conduct by its employees, criminal responsibility should require proof that the actual harm would have been avoided by better self-organisation. Leaving the general problem of proving hypothetical causation apart, it may in retrospect often be possible to plausibly show that optimal safety measures and stringent controls would (or might) have served as a safeguard against the harm that occurred. But shifting the burden to corporations to demonstrate post factum that they had, over the years, done everything reasonably possible to prevent the harm in question, including constant supervision of every officer and employee, could lead to a paralysis of entrepreneurial activity. Business firms would indeed be run by prosecutors, or rather by the fear of later being found criminally deficient by prosecutorial hindsight.


D. ‘Fundamental’ Objections


Given the deficiencies of the two ‘models’ of corporate criminal responsibility, it is not surprising that a strong group of German theorists oppose the introduction of full-scale corporate liability. These authors argue that corporate criminal responsibility conflicts with basic tenets of German criminal law. They see three fatal deficiencies: corporations cannot act, corporations cannot be blamed, and corporations cannot be subject to criminal punishment.

To understand this argument remember that, according to traditional German doctrine, criminal law is a profoundly moral business. Criminal sanctions, as opposed to civil liability for damages or administrative sanctions, are said to have an inherent element of moral blame, a negative socio-ethical value judgment addressed to the offender and relating to the offence. This negative value judgment can be justified only when the person has acted (or omitted to act) according to his voluntary decision and could have avoided the act of wrongdoing. Attribution of blame, under these high standards, is not a pragmatic tool employed to bring about desired behaviour on the part of citizens, but the outcome of a dialogue between the state and the citizen, a dialogue with strong ethical overtones.

Seen from this perspective, the problems of corporate criminal responsibility become easily apparent. The criminal law presupposes the existence of and is addressed to a moral agent. His fault is the reason for the law’s moral condemnation of his criminal act. A legal person, even though it can be subject to legal obligations, lacks all ingredients of a moral agent in the true sense: it has no moral conscience, it cannot recognize moral or legal norms, and it cannot stop itself from violating such norms. This significant difference suggests prima facie that criminal liability cannot be imposed on corporations, at least not in the same way as they are imposed on natural persons. If one wishes to make corporations criminally liable it would, in any event, be necessary to adapt and transform basic concepts of criminal law so that they ‘fit’ the special characteristics of a legal person. Whether or not such transformation is possible and, if so, desirable is the issue on which the debate in Germany has centred.

Let us now take a closer look at the requirements for individual criminal responsibility.

1. Corporations Do Not Act

The primary pre-condition for criminal liability is an act done by the offender. On the basis of an extensive debate among criminal law theorists in the 1950s and 1960s, there has emerged a consensus that an act is a volitional movement, typically geared toward an effect determined by the will of the actor. Corporations, it has been argued, cannot act in that sense, because they neither have a will nor can they make movements. This somewhat naturalistic argument against corporate criminal liability has been countered on several levels. Simply referring to positive law, some authors maintain that since the law confers obligations upon legal persons, the law must assume that legal persons can act to fulfil these obligations. Others refer not to positive law but to the views of society: since corporations are recognized in social life as actors with an identity distinct from their individual members, they claim, whatever is an expression of the ‘sense’ of the corporation can be regarded as its act for the purposes of criminal law. A more sophisticated argument describes legal persons as self-referential, autopoietic systems which, just like natural persons, possess recursivity and self-reflexivity. What these authors have in common is a perspective of legal persons as anthropomorphous entities that act like humans do. That parallel is, however, more metaphoric than precise; and it may overlook a critical difference between natural and legal persons, namely that a legal person’s identity exists on paper only—the natural persons acting on behalf of the corporation change over time so that there is no ‘real’ identity and self-consciousness that links the corporation’s present to its past or future. This difference may well give the corporation’s ‘acts’ a different quality from those of a natural person whose volition is linked to and part of a coherent personal history.

An alternative approach is to attribute the acts of the corporation’s organs to the corporation itself. According to this view, legal persons can and do act, but only through their organs. It has correctly been pointed out, however, that there is no persuasive reason for attributing the corporate officers’ acts to the corporation since the corporation as such lacks control over what its officers do.

None of the attempts to define ‘acts’ of legal persons in parallel to those of natural persons thus comes across as truly convincing, at least as long we adhere to a naturalistic view of human acts. In order to make corporations ‘actors’ under criminal law, we have to adapt the concept of an ‘act’. Something like ‘organizational dominance’ of certain processes would have to be regarded as an equivalent of a human act. If a persuasive reason for the necessity of this adaptation could be given—and needs of criminal policy might be cited in that context—it would further be necessary to precisely describe what it is that creates ‘organizational dominance’. The fact that processes leading to harmful results have been controlled by the legal person’s officers might be a relevant criterion in that respect. But, regardless of the fact that many jurisdictions have introduced corporate criminal responsibility, we still move in unchartered waters when we strive to find appropriate requirements for ascribing human acts to legal persons. The task of spelling out such requirements, at least in civil law systems, certainly belongs to the legislature, which is to give guidance to citizens and courts alike beyond merely stating that corporations can be held liable for acts of their officers, as the French Penal Code does.

2. Corporations Cannot be Morally Guilty

Matters become even more complicated when we consider the issue of a corporation’s blameworthiness. Schuld—which I will interchangeably translate as ‘guilt’ or ‘blameworthiness’—has been another hot topic of debate in German criminal law theory, especially after the Second World War. As early as in 1952, the Federal Court of Appeals declared in a landmark ruling that a person cannot be found guilty of a crime if he was unable to recognize the fact that his conduct was prohibited. In that judgment, the Court, referring to principles of natural law, declared that ‘man is directed toward free, responsible moral self-determination’ and that only for that reason moral and legal blame can be imposed on him when he commits a crime. The Federal Constitutional Court has since then repeatedly declared that the rule nulla poena sine culpa, although not specifically mentioned in the German Basic Law of 1949, is an important constitutional principle. According to the Court, this principle is rooted in the protection of human dignity and the right to develop one’s personality and is also supported by the fact that the Federal Republic of Germany is a state based on the rule of law.

It is easy to see that ‘moral self-determination’ is not something that can easily be attributed to legal persons. For that reason, the German legislature did not provide for criminal punishment of corporations, but relegated their liability to the law of administrative infractions. In that part of the law, so the theory goes, sanctions, although they can amount to millions of Euro, do not imply moral blame and therefore can be applied to legal persons.

In recent years, however, several theorists have challenged the idea that criminal guilt presupposes moral self-determination and can therefore not be attributed to legal persons. The main lines of argument are similar to those used with respect to a corporation’s ability to act. Some authors propose a concept of ‘corporate guilt’, supposed to reflect popular thinking about the responsibility of corporations for harm caused under their name. Others maintain that the legislature, by providing for administrative sanctions against corporations, has indicated its belief that corporations can act culpably. Beyond that positivistic argument, many authors would be willing to re-define the concept of guilt to fit the conditions of decision-making of a corporation. They argue that although a legal person cannot be said to have a free will in the same way as is postulated for natural persons, a legal person does have a choice to act legally or in violation of the law, a choice that is eventually determined by its organs. One author even suggests that a corporation as such can act intentionally and negligently, depending on the kind of fault its organs or employees commit in defectively organising the corporation. Other writers would transfer the guilt of officers to the corporation, thereby sidestepping the question of whether a corporation itself can act culpably.  

Yet others have gone so far as to abandon strict adherence to the guilt requirement and would regard the necessity to prove an actor’s blameworthiness as only one factor in assessing the legitimacy of a criminal statute. If the evil to be repressed is serious enough and the sanction can generally be termed proportionate, then guilt in any traditional sense need not be a prerequisite for conviction.

The proposals to lower the traditional guilt standard have nevertheless met with serious opposition. For example, Günther Jakobs, one of Germany’s leading criminal law theorists, has insisted that blameworthiness presupposes a capacity to comprehend the meaning of a moral norm and to take a position with respect to that norm; even an organ of a legal person, Jakobs maintains, cannot transfer that capacity to the legal person itself.

Jakobs’ statement, I think, draws a correct conclusion from a ‘personal’ concept of guilt. But it remains an open question whether the traditional concept of blameworthiness, which would indeed preclude introduction of corporate criminal responsibility, can be altered when activities of legal persons are concerned. Tatjana Hörnle has recently shown that the proclaimed connection between the guilt principle and the dignity of man is not so strict and close as had been assumed. The guilt principle, Hörnle says, is necessary to protect the citizen against unwarranted reprobation, which would interfere with his right to freely develop his personality. The protection of the guilt principle is thus needed only to the extent moral reprobation is pronounced by formally convicting a person of a crime. Only when the reprobation inherent in criminal punishment is personal, Hörnle concludes, personal guilt is required. If that is correct, the very fact that legal persons do not partake of the autonomy and free will that forms the basis of human dignity means that the ‘guilt principle’ in its traditional form need not be applied to them. To the extent that sanctions against corporations do not imply moral blame, corporations do not need protection against unwarranted blaming. In other words, sanctions against corporations may neither presume nor express the notion that the corporation has committed a moral wrong in the same sense in which a natural person could have culpably violated a norm. The guilt principle does thus not stand in the way of introducing sanctions that do not impose moral blame.

3. Criminal Sanctions do not Apply to Corporations

But there still is the third, somewhat related issue: Is a corporation a proper subject of criminal punishment? Leaving aside the facetious argument that you cannot put a company into prison, the main objection to punishing corporations is that a legal person cannot realize that it is being sanctioned and cannot make a conscious effort to avoid punishment in the future. Since a legal person has no conscience, criminal sanctions can neither make it realize its fault nor turn it into a better legal person.

This is a serious objection, and bland assertions that the preventive purposes of criminal punishment can still be reached83 miss the point. If sanctioning a corporation leads to law-abiding ‘behaviour’ on the part of the corporation, this is not because the corporation has been impressed by the sanction and has decided to mend its ways, but because the consequences of punishing the corporation have had a collateral effect on natural persons, namely managers, shareholders, or customers, who then took measures to curb the violations. Corporations can be influenced through criminal sanctions only in a twice mediated way: the punishment of the legal person affects natural persons, and these natural persons change the corporation’s leadership or organization. It is a legitimate question to ask whether this detour is worth taking. Might it not be better to address criminal sanctions directly at those responsible for the wrongdoing ascribed to the corporation?

Assuming there exists a need, based on criminal policy concerns, to impose sanctions directly on the corporation, several authors have suggested that these sanctions should be distinguished from criminal penalties imposed on natural persons in order to avoid confusion between punishment connoting moral reproach and corporate punishment imposed without conferring reprobation. Nice linguistic distinctions have been made between criminal fines and corporate fines. Some authors have suggested a more radical approach. They would introduce prevention-oriented sanctions not conferring blame, such as German law recognizes, for example, for insane offenders. Such sanctions would resolve the problem of (the lack of) corporate guilt. It has been objected, however, that the whole idea of mobilizing the criminal law for sanctioning legal persons would be undercut if in the end one only imposed morally neutral sanctions (as already happens under the law of administrative infractions). Moreover, devising measures to reduce the dangerousness of enterprises is being seen as a typical function of administrative agencies, not of criminal courts.

The issue of naming and shaping sanctions for legal persons may indeed be heavily contingent not only on each jurisdiction’s semantic possibilities, but more importantly, on the way a jurisdiction distinguishes among civil, administrative and criminal consequences of misconduct or impending risk. From the perspective of the offender, a fine is a fine, regardless of whether the imposed payment is deemed to have moral overtones, and whether it is mainly a reaction to past behaviour or an incentive for future conduct. Which sanction is regarded as ‘criminal’ also varies from one jurisdiction to the other—some regard even illegal parking as a ‘criminal’ offence (because there is no alternative system for minor violations), some entertain special—typically gray—areas between administrative and criminal law, and some make only a civil versus criminal distinction. Thus, to say that a sanction for legal persons is ‘criminal’ (rather than civil or administrative or administrative-penal) may have a quite different meaning depending on the legal environment in which that sanction exists. Given these ambiguities, it may not be worthwhile to change a functioning system of corporate responsibility just in order to attach the label ‘criminal’ to whatever sanctions are already in use, especially given the problems of distinguishing such ‘criminal’ corporate sanctions from ‘truly criminal’ sanctions against individuals.

 

* * *

 

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. …

 

* * *


                        3. Vicarious Liability Doctrine

LRCC § 2(5)

* * *

MPC § 2.07

* * *


People v. Congregational Khal Chaisidei Skwere, Inc.

Supreme Court of New York, Appellate Division, Third Department
232 A.D. 2d 919 (1996)

Yesawich, J.
On August 6, 1990, Chaim Kolodny, working as a driver for defendant, a corporation which owns and operates a children’s summer camp, drove approximately 18 other employees of defendant to another camp for a basketball game. En route, the 15-person van broke down and most of the passengers reached their destination by other means. In the early morning hours of August 7, 1990, Kolodny, using defendant’s recently acquired 1983 Chevrolet Suburban, drove to the other camp to retrieve the employees. The Suburban contained a front and back seat as well as a cargo area and was suited for six passengers. Kolodny and 16 others occupied the vehicle when they set off, in the rain, for their own campground. On the way, the Suburban hydroplaned, left the road and ultimately struck a tree; two of the passengers died and seven others were injured.

In September 1990, defendant was indicted on two counts of criminally negligent homicide, seven counts of reckless endangerment in the second degree, one count of unsafe tires and one count of invalid inspection. Following a nonjury trial, which commenced in February 1995, defendant was found guilty on all charges. On each of the counts of criminally negligent homicide, defendant was sentenced to pay a $ 10,000 fine, and for each of the counts of reckless endangerment, a fine of $ 5,000 was imposed. Pursuant to Penal Law § 80.15, the fines merged into a maximum fine of $ 10,000. Defendant was also sentenced to an unconditional discharge with respect to its convictions for unsafe tires and invalid inspection. On this appeal, defendant challenges the sufficiency of the evidence underlying the convictions for criminally negligent homicide and reckless endangerment in the second degree . . . .

The evidence, viewed most favorably to the People, is legally sufficient to sustain the convictions. Specifically, the trial testimony revealed that Philip Gross, defendant’s executive director, purchased the Suburban on behalf of the corporation in late July 1990, shortly before its State inspection certificate was to expire, placed it in operation with a temporary certificate and failed to have it inspected within the 10 days allowed for that purpose. As a consequence, on the date of the accident the vehicle was being operated without a valid State inspection sticker, conduct that is proscribed both by the Vehicle and Traffic Law (see, Vehicle and Traffic Law § 306 [b]) and by the State Sanitary Code governing children’s camps (see, 10 NYCRR 7-2.10 [c]). More importantly, the evidence credited by County Court at trial demonstrated that Gross had not taken any steps to evaluate the vehicle’s safety before turning the keys over to Kolodny, but had, at most, delegated that task to the youthful driver without making any effort to ascertain the latter’s ability to carry it out.[4] In addition, Kolodny had not been furnished the required safety training (see, 10 NYCRR 7-2.5 [k]).

Even without taking into consideration the fact that defendant was also in violation of its own rules as to transportation operators, Gross’ conduct in allowing Kolodny to operate this lately purchased, uninspected, used vehicle to transport staffers and, on occasion, campers created a substantial and unjustifiable risk of injury or death. Gross’ disregard of that risk was a “gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]; see, Penal Law § 15.05 [4]), sufficient to justify findings of criminally negligent homicide and reckless endangerment in the second degree (see, Penal Law §§ 120.20, 125.10). As Gross was undeniably a high managerial agent of defendant, his wrongdoing in this respect may form the basis for a finding of criminal liability on the part of the corporation (see, Penal Law § 20.20 [2] [b]).

Moreover, there is no question that defendant’s failure to remedy the unsafe conditions that would have been uncovered by a timely inspection, prior to placing the vehicle in service, was a direct cause of the accident. The uncontroverted testimony of the People’s expert established that the vehicle, which was traveling at a speed in excess of 60 miles per hour, hydroplaned as a result of the inadequacy of the tread depth of the two front tires, and that at least one of those tires would not have passed inspection. That an accident might occur in this fashion, as a result of Gross’ dereliction, was foreseeable under the circumstances. ...

Ordered that the judgment is affirmed.


                        4. Identification Doctrine

 

R. v. Waterloo Mercury Sales Ltd.
Alberta Dist. Ct.
[1974] 18 C.C.C. (2d) 248

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.

The accused corporation through its used-car sales manager, Walter Golinowski, purchased some 26 automobiles in Ontario and shipped them to Alberta. After the vehicles were unloaded, but before being placed on the used-car sales lot, the odometers of some of these vehicles were turned back so that the odometer reading showed that the vehicle had been driven a substantially smaller number of miles than it had in fact been driven.

The vehicles which are the subject-matter of the two counts of fraud in the indictment were two of the vehicles purchased in Ontario on which the odometers were turned back.

The odometers were altered by a third party on the instructions of the used car sales manager, Golinowski, and when the vehicles were offered for sale the odometer reading was incorrect. ...

The main issue in this trial is whether the accused corporation can be held criminally liable for the act of its used-car sales manager if such act is done within the scope of his authority. ...

In the case at bar the used-car sales manager, Golinowski, was not an officer or director of the accused company. He operated two used car lots for the accused, which was situated close to, but did not form part of the main offices of the accused. His responsibilities were to buy used cars, clean them up, do minor reconditioning on them, fix the sales price, arrange advertising and promotion, demonstrate them to and make sales to the public. In these duties he was assisted by a sales and other staff consisting of 12 people. He approved all sales made by the salesmen.

In my opinion, Golinowski was not a lesser employee. I find that it was the policy of the accused corporation to delegate to him “the sole active and directing will” of the corporation in all matters relating to the used car operation of the company, and as such he was its directing mind and will. His actions and intent were those of the accused itself and his conduct renders the company criminally liable. ...

I am mindful of the fact that the findings I have arrived at may be a further extension of the criminal liability of a corporation. None the less, having regard to the facts of this particular case I am of the opinion that it is in line with the judgments of Ford, J.A., in R. v. Fane Robinson Ltd., supra, and that of Jessup, J., in R. v. J.J. Beamish Construction Co. Ltd., [1967] 1 C.C.C. 301.

I accept the evidence of Mr. Purvis that he had no personal knowledge of the circumstances which led to these charges being laid and that he had circulated written instructions to all segments of his company not to alter odometers on the vehicles. However, this is not, in my opinion, a defence in light of the findings I have made.

Waterloo Mercury Sales Ltd. is guilty on both counts in the indictment.

Accused convicted.

 

R. v. Canadian Dredge and Dock Co. Ltd.
Supreme Court of Canada
[1985] 19 C.C.C. (3d) 1; [1985] 1 S.C.R. 662

The Supreme Court of Canada unanimously dismissed the accused’s appeal, Estey J. stating in part for the Court:
The position of the corporation in criminal law must first be examined. Inasmuch as all criminal and quasi-criminal offences are creatures of statute the amenability of the corporation to prosecution necessarily depends in part upon the terminology employed in the statute. In recent years there has developed a system of classification which segregates the offences according to the degree of intent, if any, required to create culpability.

(a) Absolute liability offences

Where 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 liability

Where 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 rea

These are the traditional criminal offences for which an accused may be convicted only if the requisite mens rea is demonstrated by the prosecution. ...

The route which was taken in this country and in the United Kingdom is not that which has been followed by the federal courts of the United States. Criminal responsibility in the corporation has for many years, in those courts, been placed upon the basis of the doctrine of respondeat superior. The resultant vicarious liability seems to arise in the corporation out of the criminal acts of any employee, supervisory, menial or otherwise. The United States Supreme Court expounded this principle as far back as New York Central and Hudson R. v. U.S. (1909), 212 U.S. 481. Although the statute there before the court specifically imposed liability in the corporation for the sets of its employees (without limitation), the courts have construed the case as establishing vicarious criminal liability in a corporation for the wrongful acts of its employees of all grades and classes. The rule was restated by the Court of Appeal of the 8th Circuit in Egan v. U.S. (1943), 137 F. 2d 369 at p. 379, per Thomas J.:

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.
2. Neither did the four directing minds act wholly for their own benefit in the sense that no benefit from their actions would accrue to the appellants, and in any event the record clearly reveals an intention on their part to benefit their respective corporations.
3. Express or implied instructions prohibiting the unlawful acts specifically, or unlawful conduct generally, are not a defence whether the corporate liability springs from authorization of the acts of an agent or the unlawful acts of a directing mind. In any case, only in the record relating to CD is there any evidence of any such prohibition....

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)
Ontario Court of Appeal

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.
Supreme Court of Canada
[1992] 1 S.C.R. 843


1.   STEVENSON J.: This case examines the right of a corporate accused to rely upon the protection afforded by s. 11(b) of the Canadian Charter of Rights and Freedoms, which reads as follows:

 

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:


Any accused, corporate or human, can be denied full answer and defence by reason of delay. A corporation is just as vulnerable to the deterioration of recollection which can prejudice any person on trial for an offence. Its witnesses, like those of any accused, can die, move away, or disappear. If, as seems clear, the right of an accused to make full answer and defence is a fundamental principle of the Canadian system of justice, and if that system regards corporations as being susceptible to the same criminal process as humans, it would seem to follow that protection of the fairness of a corporation's trial is a concern which is well within ... s. 11(b). …


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


                        6. Reforms

                                A. Canada


Criminal Code

Offences of negligence — organizations
22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if
(a) acting within the scope of their authority
(i) one of its representatives is a party to the offence, or
(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and
(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs—or the senior officers, collectively, depart—markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

Other offences — organizations
22.2 In respect of an offence that requires the prosecution to prove fault—other than negligence –an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers
(a) acting within the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.
2003, c. 21, s. 2.