Criminal Law Web

Part II. General Part

Chapter 7. Actus Reus

A.        Actness          

 

People v. Davis
Court of Appeals of New York
33 N.Y.2d 221 (1973)

Jasen, Judge.
Wilbert Davis, a heroin addict, has been convicted of criminal possession of a dangerous drug in the sixth degree and criminal possession of a hypodermic instrument.

* * *
The facts are undisputed. On February 4, 1971, the landlord of the premises at 34 Fort Green Place, Brooklyn, approached a uniformed patrolman on duty in the area. He led the officer to that address, a three story ‘walk up’, and permitted him to enter. The officer ascended one flight of stairs and observed the defendant standing in a bathroom, about to inject himself with a syringe later determined to contain heroin. When approached by the officer, the defendant pleaded with him to be allowed to take the injection. In effecting the arrest, the officer observed fresh needle marks on defendant’s right arm. Defendant admitted that he had been using heroin for about a year and one half.

At trial, the defendant offered evidence designed to show the nature of narcotic addiction and that he was, in fact, a narcotic addict. The defendant conceded his addiction to heroin and this concession was amply supported by medical testimony not disputed by the People.

The argument for reversal is predicated on Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 and Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254. In Robinson, the petitioner was convicted under a California statute making it a criminal offense for a person to be addicted to narcotics. The Trial Judge instructed the jury that it was a misdemeanor under the statute “either to use narcotics, or to be addicted to the use of narcotics”, that the “portion of the statute referring to ‘addicted to the use’ of narcotics is based upon a condition or status”, and that “(i)t is a continuing offense” which “subjects the offender to arrest at any time before he reforms.”

The Supreme Court reversed. Implicitly recognizing that narcotic addiction is a disease, the court held that a State law making the ‘status’ of narcotic addiction a criminal offense inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. By way of rationale, the court emphasized the absence of an actus reus, that under the statute the criminal sanction was imposed even though a person has “never touched any narcotic drug within the State or been guilty of any irregular behavior there.” The court was careful to point out, however, that the States retained broad power to regulate narcotic drugs traffic within their borders. Such regulation, it said, could take a variety of valid forms, citing, by way of example, the power to impose criminal sanctions against the unauthorized sale, manufacture, purchase or possession of narcotics.

In dissent, Justice White voted to affirm the conviction, being of the view that the appellant was not being punished on the basis of status, illness or condition, but for the regular and habitual use of narcotics in violation of California law. In dicta, particularly pertinent here, he observed: “If it is ‘cruel and unusual punishment’ to convict appellant for addiction, it is difficult to understand why it would be any less offensive to the Fourteenth Amendment to convict him for use on the same evidence of use which proved he was an addict. It is significant that in purporting to reaffirm the power of the States to deal with the narcotics traffic, the Court does not include among the obvious powers of the State the power to punish for the use of narcotics. I cannot think that the omission was inadvertent.”

In Powell v. Texas, supra, the Supreme Court . . . was asked to extend Robinson by prohibiting a State from punishing a chronic alcoholic for public drunkenness. Leroy Powell was convicted of violating a Texas statute declaring it unlawful to “get drunk or be found in a state of intoxication in any public place.” The Trial Judge, sitting without a jury, made certain “findings of fact”: that “chronic alcoholism is a disease which destroys the afflicted person’s will power to resist the constant, excessive consumption of alcohol”; that “a chronic alcoholic does not appear in public of his own volition but under a compulsion symptomatic” of his disease; and that Powell was afflicted with disease as described.

The Supreme Court affirmed. The plurality opinion per Justice Marshall, rejecting the trial court’s findings of fact, observed that one could not “conclude, on the state of this record or on the current state of medical knowledge, that chronic alcoholics in general, and Leroy Powell in particular, suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both these acts and thus cannot be deterred at all from public intoxication.”  Robinson was distinguished on the ground that Powell was not convicted for being a chronic alcoholic, but for being in public while drunk. Unlike Robinson, the sanctions of the Texas statute were not directed at “mere status”, but at socially offensive behavior:  appearing in public drunk.

In a dissent joined by three Justices, Justice Fortas adopted the trial court’s findings and viewed the Texas statute as imposing punishment for the “mere condition of being intoxicated in public” and read Robinson as barring the imposition of criminal sanctions “upon a person for being in a condition he is powerless to change.” As a corollary, Justice Fortas declared that “a person may not (consistent with the Eighth Amendment) be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease.” Justice White . . . observed:

“If it cannot be a crime to have an irresistible compulsion to use narcotics, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law. Similarly, the chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or for being drunk.”

* * *
Implicit in the defendant’s argument that it constitutes cruel and unusual punishment to impose a criminal penalty upon an addict who possesses narcotics and associated paraphernalia for his own use, is an appeal for judicial recognition of a drug dependence defense to criminal responsibility, an argument better addressed, at this juncture, to the Legislature. Doubtless, the argument is logically appealing that if an addict cannot, consistent with the Federal and State Constitutions, be punished for being in the status or condition of addiction, he cannot be punished for the acts of possessing for his personal use narcotics and associated instruments, the necessary incidents of his condition, which acts are realistically inseparable from the status or condition itself.

There is, however, no square holding for defendant’s position that acts incident to addiction may not be punished. Robinson did not so hold. Indeed it is authority for the proposition that actual behavior may be punished but not the condition or status of addiction itself. . . . [Moreover,] it is unmistakably clear that the majority in Powell recoiled from the asserted Eighth Amendment claim and the recognition of new lines of defense to criminal accountability by reason of the compulsions attributable to alcoholism, and presumably narcotic addiction, conditions from which it is still widely assumed, rightly or wrongly, that the victim retains some capacity to extricate himself. . . .

The ramifications of recognizing the asserted cruel and unusual punishment defense, and impliedly the defense of drug dependence, are startling. The difficulty lies in knowing where to stop. The obvious danger is that the defense will be extended to other crimes—robberies, burglaries and the like—which can be shown to arise from the compulsive craving for drugs. And if “mere purchase or possession” by the addict for his own use is protected, what of the “mere sale” to the same addict by an obliging trafficker in illicit drugs? Could not the sale to the addict who is driven to acquire drugs by his compulsive craving be defended as a humane act inflicting no harm on other members of society?

Moreover, any attempted limitation on the availability of the drug dependence defense to those acts such as purchase, possession or receipt of narcotics for the addict’s personal use, finds little justification in the cruel and unusual punishment clause with which it intertwines. For example, assuming the drug dependence defense be recognized, is it somehow less offensive to contemporary concepts of human decency, as embodied in the constitutional proscription of cruel and unusual punishment (Trop v. Dulles, 356 U.S. 86, 101) to punish an addict who, out of a compulsive craving for drugs, steals to fund his habit than it is to punish an addict who, out of the same craving, merely purchases or possesses illicit drugs for his own use? If the compulsion is the same, why is the one act blameworthy and not the other? Such a distinction smacks of limitation by fiat and invites accusations of arbitrariness.
* * *
[W]hile it may be that the policy of rehabilitation would be well served by affording addicts a cruel and unusual punishment and drug dependence defense to possession for their own use, we should not lose sight of the utility of such penalties to law enforcement. For example, these possible penalties may, through the exercise of prosecutorial discretion, enable law enforcement to enlist addict informers in ferreting out the wholesalers of illicit drugs, thereby facilitating the policy of elimination of the drug traffic. Then, too, punishment may persuade some addicts to undertake rehabilitation through various State or private programs. On the other hand, recognition of the defense might conceivably make the addict the witting or unwitting tool of the drug trafficker.

In sum, recognition of defendant’s constitutional claim and implicitly, at least, the drug dependence defense, does not follow inexorably from the Robinson and Powell decisions and, indeed, strong reasons of public policy militate against any such recognition by this court.

* * *

LRCC §§ 2(2) to 2(3)(a)

* * *

MPC §§ 1.13(5), (9), 2.01

B.        Voluntariness

 

R. v. Larsonneur
Court of Criminal Appeal
[1933] 24 Cr.App.R. 74

Appeal against conviction.
On March 14, 1933, the appellant, who was a French citizen, landed at Folkestone with a French passport, which was endorsed “Leave to land granted at Folkestone this day on condition that the holder does not enter any employment, paid or unpaid, while in the United Kingdom.” On March 22, 1933, the condition was varied by the following endorsement signed by an Under-Secretary of State: “The condition attached to the grant of leave to land is hereby varied so as to require departure from the United Kingdom not later than the 22nd March, 1933.” On that day the appellant went to the Irish Free State. An order for her deportation from the Irish Free State was made by the executive of that country, and on April 20, 1933, she was brought back in the custody of the Irish Free State police to Holyhead and handed over to the police there, where she was detained until a police officer from London, Det.-Sgt. Minter, arrived. On the following day she was taken to London in custody, and on April 22 was charged before a police magistrate there. She was later convicted by a jury on a charge that she “being an alien to whom leave to land in the United Kingdom has been refused was found in the United Kingdom,” contrary to Arts. 1(3)(g) and 18(1)(b) of the Aliens Order, 1920, as amended. The jury returned a verdict of “Guilty through circumstances beyond her own control,” and the Chairman passed a sentence of three days imprisonment and made an order recommending the appellant for deportation.

HEWART L.C.J.: …The fact is, as the evidence shows, that the appellant is an alien. She has a French passport, which bears this statement under the date March 14, 1933, “Leave to land granted at Folkestone this day on condition that the holder does not enter any employment, paid or unpaid, while in the United Kingdom,” but on March 22 that condition was varied and one finds these words:” The condition attached to the grant of leave to land is hereby varied so as to require departure from the United Kingdom not later than March 22, 1933.” Then follows the signature of an Under-Secretary of State. In fact, the appellant went to the Irish Free State and afterwards, in circumstances which are perfectly immaterial, so far as this appeal is concerned, came back to Holyhead. She was at Holyhead on April 21, 1933, a date after the day limited by the condition on her passport.

In these circumstances, it seems to be quite clear that Art. 1 (4) of the Aliens Order, 1920 (as amended by the Orders of March 12, 1923, and August 11, 1931), applies. The Article is in the following terms: “ An immigration officer, in accordance with general or special directions of the Secretary of State, may, by general order or notice or otherwise, attach such conditions as he may think fit to the grant of leave to land, and the Secretary of State may at any time vary such conditions in such manner as he thinks fit, and the alien shall comply with the conditions so attached or varied. An alien who fails to comply with any conditions so attached or varied, and an alien who is found in the United Kingdom at any time after the expiration of the period limited by any such condition, shall for the purposes of this Order be deemed to be an alien to whom leave to land has been refused.”

The appellant was, therefore, on April 21, 1933, in the position in which she would have been if she had been prohibited from landing by the Secretary of State and, that being so, there is no reason to interfere with the finding of the jury. She was found here and was, therefore, deemed to be in the class of persons whose landing had been prohibited by the Secretary of State, by reason of the fact that she had violated the condition on her passport. The appeal, therefore, is dismissed and the recommendation for deportation remains.

Appeal dismissed.

 

R. v. Shaw
Ontario Court of Appeal
[1938] O.R. 269

The judgment of the Court was delivered by
Middleton J.A.: An appeal by the Crown from the dismissal of a charge preferred before Judge Thomas Moore Costello, Judge of the County Court of the County of Huron, under the provisions of Part XVIII of The Criminal Code, R.S.C. 1927, ch. 36, for that the said W. G. Shaw, in the said County of Huron, on or about the 8th day of August, 1937, by omitting to do that which it was his duty to do, to wit, to refrain from driving a motor vehicle upon a public highway, he being a person subject to sudden attacks of fainting, caused grievous bodily harm to the persons of one Rose Hamilton and of one Betty Hamilton, passengers in the said motor vehicle driven by the said Shaw, who, while driving a motor vehicle on highway No. 4, suddenly fainted causing the said motor vehicle to run into a tree off the travelled portion of the said highway, contrary to sec. 284 {now s. 249} of The Criminal Code.

The case, as presented by the Crown, showed that Shaw, a butcher working at Anderson’s Meat Market in the City of London, suffered from some physical disability, probably epilepsy rather than fainting as described in the charge.

Shaw took a party of five from London to Goderich on the day in question, including his own mother, Mrs. Hamilton and Miss Hamilton. When near Clinton, Shaw was attacked by one of these spells. The result was that he slumped or fell and caused the car to accelerate. It left the highway, travelled a considerable distance, and collided with a tree. Mrs. Hamilton and her daughter were both killed, other passengers injured.

Evidence was given to show that Shaw had suffered from these attacks before, yet he did not refrain from driving a motor car. A physician was called who stated that he had attended Shaw and treated him for epilepsy, both the grand mal type and the petit mal type, which seizure is associated with a disturbance of consciousness associated with convulsive elements. It does not appear whether Shaw was advised of the nature of these attacks and warned of the danger of operating a car, and he may have thought that all he suffered from was an attack of fainting, but it was quite evident that, while possibly not aware of the exact nature of his malady, he must have been perfectly aware of the danger this would occasion if, operating a car at the time, he were attacked by his malady.

At the end of the Crown’s case the learned Judge ruled that there was no case calling upon the defendant for his defence. In so doing, we think he was clearly wrong.

At the time of Shaw’s application for a licence he was asked the usual questions touching his physical fitness. He stated that he used glasses but had no other physical defect. Although he was for a number of years well aware of his recurrent fits or spells, he, on each application for a renewal of his licence, reiterated these former answers, which may have been true at the time they were originally made, but which were false on the subsequent occasions.
Those operating motor cars must be impressed with the terrible danger there is, not only to the passengers and themselves, but to others using the highway when one subject to attacks such as these does not refrain from driving cars at all. The drunken driver is dangerous; even more dangerous is the man who is afflicted as Shaw was, and who is subject to fainting spells or periods of unconsciousness.

In the result we must direct a new trial upon the ground that the Crown’s case was upon the evidence established and the accused ought to have been called upon for his defence.

Appeal allowed and new trial ordered.

 

Hill v. Baxter
English Divisional Court
[1958] 1 Q.B. 277

The defendant Baxter drove a motor-van across a road junction at a fast speed, ignoring an illuminated “Halt” sign, and collided with a motorcar. He was later charged with dangerous driving contrary to section 11(1) of the Road Traffic Act, 1930, and with failing to conform to a traffic sign contrary to section 49(b) of that Act.

A police constable arrived at the scene of the accident and saw the defendant, who was in a dazed condition and suffering from cuts to his head. The defendant was taken to hospital where the police constable saw him about one hour after the accident. The defendant then said: “I remember being in Preston Circus going to Withdean. I don’t remember anything else until I was searching for my glasses. I don’t know what happened.” After caution, the defendant said: “I cannot remember a thing.”

It was contended by the defendant that he became unconscious as a result of being overcome by a sudden illness while driving at Preston Circus and that he was not therefore liable at criminal law. It was further contended that against the background of the medical reports in evidence and in view of the unlikelihood of retrograde amnesia having resulted from the accident when the defendant was conscious immediately thereafter, the loss of memory could only be attributed to the defendant being overcome by illness without warning of its onset.

The justices were of opinion that the defendant was not conscious of what he was doing after leaving Preston Circus, with the implication that he was not capable of forming any intention as to his manner of driving. They believed the defendant was speaking the truth when he said that he could not remember what had happened after leaving Preston Circus, and accepted the submission of his counsel that the defendant was “unconscious” at the time of the accident, and, accordingly, they dismissed the informations.

The prosecutor appealed.

LORD GODDARD C.J.:—There was no evidence for the defence other than that of the respondent himself, but it seems that, as the prosecution did not object, the justices allowed two letters from a doctor, who had examined the respondent, to be put in. The justices have referred to these letters in the case, so we have looked at them. They are certainly in no way favourable to the respondent; the consultant neurologist who examined the respondent could find no trace of illness or abnormality. He said in his first report that he had had an E.E.G.—that is some form of encephalogram done and was going to examine the respondent again when the report would be through in a fortnight’s time. In his further report on May 2 the doctor said that the report showed no abnormality, and that from a medical point of view it was impossible to say whether he had “a black out” or not. So there is no medical or scientific evidence of any illness at all.

The first thing to be remembered is that the Road Traffic Act, 1930, contains an absolute prohibition against driving dangerously or ignoring “Halt” signs. No question of mens rea enters into the offence; it is no answer to a charge under those sections to say: “I did not mean to drive dangerously” or “I did not notice the ‘Halt’ sign.” The justices’ finding that the respondent was not capable of forming any intention as to the manner of driving is really immaterial. What they evidently mean is that the respondent was in a state of automation. But he was driving and, as the case finds, exercising some skill, and undoubtedly the onus of proving that he was in a state of automation must be on him. This is not only akin to a defence of insanity, but it is a rule of the law of evidence that the onus of proving a fact which must be exclusively within the knowledge of a party lies on him who asserts it. This, no doubt, is subject to the qualification that where an onus is on the defendant in a criminal case the burden is not as high as it is on a prosecutor.

The main contention before us on the part of the appellant was that there was no evidence on which the justices could find that the respondent was in a state of automatism or whatever term may be applied to someone performing acts in a state of unconsciousness. There was in fact no evidence except that of the respondent, and while the justices were entitled to believe him, his evidence shows nothing except that after the accident he cannot remember what took place after he left Preston Circus. This is quite consistent with being overcome with sleep or at least drowsiness. That drivers do fall asleep is a not uncommon cause of serious road accidents, and it would be impossible as well as disastrous to hold that falling asleep at the wheel was any defence to a charge of dangerous driving. If a driver finds that he is getting sleepy he must stop.

I agree that there may be cases where the circumstances are such that the accused could not really be said to be driving at all. Suppose he had a stroke or an epileptic fit, both instances of what may properly be called acts of God; he might well be in the driver’s seat even with his hands on the wheel, but in such a state of unconsciousness that he could not be said to be driving. A blow from a stone or an attack by a swarm of bees I think introduces some conception akin to novus actus interveniens. In this case, however, I am content to say that the evidence falls far short of what would justify a court holding that this man was in some automatous state. There was no evidence that he was suffering from anything to account for what is so often called a “black out,” and which probably, if genuine, is epileptic in origin. Nor was there any evidence that he had ever had an attack of this description before. As I have said above, his own evidence, and that is all there was, is consistent with having fallen asleep, or having his mind full of other matters and not paying proper attention.
This is certainly not a case of a perverse finding by the justices, who obviously considered the case with great care and anxiety. The case must go back with a direction to convict.

DEVLIN J.:— I agree that if the onus lies upon the defence to produce some evidence of automatism, they have failed to do so, with the result that the justices came to a wrong conclusion in law.

* * *

LRCC § 3(1)

* * *

MPC § 2.01

C.        Omission

 

R. v. Instan
Court for Crown Cases Reserved, England
[1893] 1 Q.B. 450

The following case was stated by DAY J:
Kate Instan was tried before me at the last assizes for the county of Worcester upon a charge of feloniously killing one Ann Hunt. The prisoner, who is between thirty and forty years of age and unmarried, had no occupation and no means of her own of living. She was a niece of the deceased.

At the time of the committal of the alleged offence, and for some time previous thereto, she had been living with and had been maintained by the deceased. Deceased was a woman of some seventy-three years of age, and until a few weeks before her death was healthy and able to take care of herself. She was possessed of a small life income, and had in the house in which she lived some little furniture, and a few other articles of trifling value. The two women lived together in a house taken by the deceased; no one lived with them or in any way attended to them.

The deceased shortly before her death suffered from gangrene in the leg, which rendered her during the last ten days of her life quite unable to attend to herself or to move about or to do anything to procure assistance. No one but the prisoner had previous to the death any knowledge of the condition in which her aunt thus was. The prisoner continued to live in the house at the cost of the deceased, and took in the food supplied by the tradespeople: but does not appear to have given any to the deceased, and she certainly did not give or procure any medical or nursing attendance to or for her, or give notice to any neighbour of her condition or wants, although she had abundant opportunity and occasion to do so.

The body of the deceased was on August 2, while the prisoner was still living in the house, found much decomposed, partially dressed in her day clothes, and lying partly on the ground and partly prone upon the bed. The death probably occurred from four to seven days before August 3, the date of the post-mortem examination of the body. The cause of death was exhaustion caused by the gangrene, but substantially accelerated by neglect, want of food, of nursing, and of medical attendance during several days previous to the death. All these wants could and would have been supplied if any notice of the condition of the deceased had been given by the prisoner to any of the neighbours, of whom there were several living in adjoining houses, or to the relations of the deceased, who lived within a few miles. It was proved that the prisoner, while the deceased must have been just about dying, had conversations with neighbours about the deceased, but did not avail herself of the opportunities thus afforded of disclosing the condition in which she then was.

At the close of the case it was objected on behalf of the prisoner, that there was no evidence of any legal duty such as would bind the prisoner to give or to procure any food, or nursing, or attendance to or for the deceased, or to give any notice to any one that such was required. I thought it better not to stop the case, but to leave it to the jury to say whether, having, regard to the circumstances under which the prisoner lived with the deceased, and continued to occupy the house, and to take the food provided at the expense of the deceased, while the deceased was, as she knew, unable to communicate with any other person and thus to procure necessaries for herself, the prisoner did or did not impliedly undertake with the deceased either to wait upon and attend to her herself, or to communicate to persons outside the house the knowledge of her helpless condition; and I told them that if they came to the conclusion that she did so undertake, and that the death of the deceased was substantially accelerated by her failure to carry out such undertaking, they might find the prisoner guilty of manslaughter, but that otherwise they should acquit her. The jury found the prisoner guilty.

If the facts above stated do not afford evidence of the existence of any such undertaking or duty, then the conviction is to be quashed; if otherwise, it is to stand.

Vachell, for the prisoner. There was no legal duty imposed upon the prisoner to provide food or attendance for the deceased during the last ten days of her life; there was certainly no such duty before that time, for the deceased was the head of the household and able to help herself. Such a duty as is here sought to be enforced can only arise by virtue of a statute or a contract, or at common law. It must be conceded that there was no statutory duty, neither was there any duty at common law; there is no authority for the existence of any such common law duty in the case of a person of full age; in such a case the duty can only arise in respect of an undertaking, express or implied. In Fez v. Friend, it was held to be an indictable offence to refuse or neglect to provide sufficient food, bedding, &c., to an infant of tender years, unable to provide for and take care of itself, whom a man was obliged by duty or contract to provide for; but the decision was in terms confined to such cases, and the indictment was held to be defective in not stating the child to be of tender years and unable to provide for itself. In Reg. v. Shepherd (1), it was held that there was no duty upon a woman to procure a midwife for her daughter, a girl of eighteen, and that she could not be convicted of manslaughter for omitting to do so. In his judgment, Erle, C.J., says:

“Here the girl was beyond the age of childhood, and was entirely emancipated.” In the case of a person of full age such a duty may indeed arise out of an express or implied undertaking: Reg. v. Marriott, where a man was convicted of the manslaughter of an elderly and infirm woman, whom he had taken home to live in his house, promising to make her happy and comfortable. In summing up in that case, Patteson, J., said: “ The cases which have happened of this description have been generally cases of children and servants, where the duty was apparent. This is not such a case; but it will be for you to say whether, from the way in which the prisoner treated her, he had not by way of contract, in some way or other, taken upon him the performance of that duty which she, from age and infirmity, was incapable of doing.” 

In the present case there was no evidence of any contract or undertaking by the prisoner to take care of her aunt, though no doubt she was under a moral obligation to do so.

[HAWKINS, J.: Why should not a contract be implied from such circumstances as those in this case ? Suppose two people agreed to live together for their mutual benefit, would not the mere fact of their living together be evidence from which an undertaking might be implied ?]
[CAVE, J.: When the prisoner took in food paid for with the deceased’s money, she had no right to apply it all for her own use. Did she not then undertake a duty towards the deceased ?]

Not by way of contract so as to raise a legal duty; it was nothing more than a duty of imperfect obligation.

LORD COLERIDGE, C.J.:  We are all of opinion that this conviction must be affirmed. It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement. There can be no question in this case that it was the clear duty of the prisoner to impart to the deceased so much as was necessary to sustain life of the food which she from time to time took in, and which was paid for by the deceased’s own money for the purpose of the maintenance of herself and the prisoner; it was only through the instrumentality of the prisoner that the deceased could get the food. There was, therefore, a common law duty imposed upon the prisoner which she did not discharge.

Nor can there be any question that the failure of the prisoner to discharge her legal duty at least accelerated the death of the deceased, if it did not actually cause it. There is no case directly in point; but it would be a slur upon and a discredit to the administration of justice in this country if there were any doubt as to the legal principle, or as to the present case being within it. The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty. It is unnecessary to say more than that upon the evidence this conviction was most-properly arrived at.
[HAWKINS, CAVE, DAY, and COLLINS, JJ., concurred.]

Conviction affirmed.

* * *

People v. Robbins
Supreme Court of New York, Appellate Division, Fourth Department
83 A.D.2d 271 (1981)

      Pamela Robbins, a young woman of fragile health, had suffered from epilepsy and diabetes for many years. She required Phenobarbital and Dilantin to control her epilepsy and two daily injections of insulin for her diabetes. She had lapsed into diabetic coma on many occasions and her husband, defendant Robert Robbins, had often summoned an ambulance for her or taken her to an emergency room. Both Pamela and Robert Robbins were deeply religious “born again” Christians. They met defendant Jerry Stephanski, a self-professed minister, at a revival meeting. The Robbins joined a religious group founded and led by Stephanski at which he preached that if one had sufficient faith, God would cure all illnesses. The Robbins shared this belief. During a religious meeting Pamela apparently believed that she had a revelation that she was healed of epilepsy and she resolved to stop taking all medication. She discussed the divine origin of her revelation with Stephanski and her husband and they agreed that she should not continue with her medication. As a result, she had several seizures, became very weak and ill, and lapsed into diabetic coma from which she died. Robert Robbins was indicted for criminally negligent homicide (Penal Law, § 125.10) for failure to summon medical aid for his wife . . . .

The People contend that Robert Robbins owed his wife, by virtue of their marital relationship, a legal duty of care which he breached by his failure to summon medical aid or administer insulin to his wife when she was incapacitated. Unquestionably there is a common-law marital duty to provide medical attention to one’s spouse but we must examine when, and under what circumstances, the breach of such duty will result in criminal culpability.
In examining this issue, it is instructive to turn to our sister States which have had occasion to weigh the relevant factors.

* * * 

The common thread in [these] cases is that the courts have not hesitated to impose criminal liability when a decedent spouse was in a helpless condition obviating the exercise of free will or the ability to make a rational choice to refuse medical care.

The People urge us to follow the Superior Court of Pennsylvania in Commonwealth v. Konz (265 Pa Super Ct 570) which reinstated the conviction of a wife for involuntary manslaughter arising from the death of her diabetic husband from insulin withdrawal where he had made a conscious decision to cease taking insulin on religious grounds. We believe, however, that the Konz case is factually distinguishable from the case before us. Reverend David Konz, like Pamela Robbins, decided to withdraw from insulin and rely on his faith that God would heal him. Unlike Pamela, however, Reverend Konz assured others that he would resume taking insulin if he thought his condition warranted it. When he began exhibiting symptoms of insulin debt and went to the refrigerator to get his insulin, he discovered that his wife had hidden it. When he attempted to leave the house, his departure was blocked by defendant Stephen Erikson, a friend whose aid had been enlisted to help him resist temptation. Erikson physically forced him into his bedroom and held him captive while he and Mrs. Konz talked to him. When Konz attempted to make a telephone call, Erikson and the wife disconnected the telephone. Thus there are two factors present in Konz which do not appear in the facts before us—overt acts by the defendants and evidence of duress. It is thus clear that the convictions of Mrs. Konz and Erikson are supported by evidence of overt acts rather than mere omission.

It would be an unwarranted extension of the spousal duty of care to impose criminal liability for failure to summon medical aid for a competent adult spouse who has made a rational decision to eschew medical assistance. In New York such a rationale would be in direct conflict with the related rule that a competent adult has a right to determine whether or not to undergo medical treatment (Matter of Storar, 52 NY2d 363; Schloendorff v. Society of N. Y. Hosp., 211 NY 125). There is no basis under New York law for denying an adult the right to refuse medical care where such refusal does not pose a threat to the life or health of others. “In this State, however, there is no statute which prohibits a patient from declining necessary medical treatment or a doctor from honoring the patient’s decision. To the extent that existing statutory and decisional law manifests the State’s interest on this subject, they consistently support the right of the competent adult to make his own decision by imposing civil liability on those who perform medical treatment without consent, although the treatment may be beneficial or even necessary to preserve the patient’s life (see, e.g., Schloendorff v. Society of N. Y. Hosp., 211 NY 125, supra; Matter of Erickson v. Dilgard, 44 Misc 2d 27; Matter of Melideo, 88 Misc 2d 974; Public Health Law, § 2504, 2805-d; CPLR 4401-a). The current law identifies the patient’s right to determine the course of his own medical treatment as paramount to what might otherwise be the doctor’s obligation to provide needed medical care. A State which imposes civil liability on a doctor if he violates the patient’s right cannot also hold him criminally responsible if he respects that right.”(Matter of Storar, 52 NY2d 363, 377, supra.)

A construction of the law which would give Pamela Robbins the right to decline medical aid and would impose civil liability on anyone who subjected her to treatment without her consent, but at the same time would impose criminal sanctions on her husband if he respected that right of refusal, is not only paradoxical, but totally irrational and fundamentally unfair. Although the indictment against Robert Robbins alleges that he failed to seek medical aid “at a time when the said Pamela Robbins was unable to provide or seek the same for herself,” it is defective for failure to state that Pamela Robbins was incapacitated or otherwise unable to make a rational decision and indeed the evidence would not support such claim. The record indicates, rather, that up until a very short time before her death, Pamela and Robert Robbins were praying, he was attempting to ease her discomfort, and was behaving in a very solicitous manner. The failure of medical assistance which resulted in her death was unquestionably the consequence of Pamela Robbins’ conscious choice to rely on her faith and forego medical interference.

 

State v. Miranda
Supreme Court of Connecticut
715 A.2d 680 (1998)

KATZ, J.
... The defendant commenced living with his girlfriend and her two children in an apartment in September, 1992. On January 27, 1993, the defendant was twenty-one years old, his girlfriend was sixteen, her son was two, and her daughter, the victim in this case, born on September 21, 1992, was four months old. Although he was not the biological father of either child, the defendant took care of them and considered himself to be their stepfather. He represented himself as such to the people at Meriden Veteran’s Memorial Hospital where, on January 27, 1993, the victim was taken for treatment of her injuries following a 911 call by the defendant that the child was choking on milk. Upon examination at the hospital, it was determined that the victim [suffered from multiple injuries] . . . . [T]he trial court found that the injuries, many of which created a risk of death, had been caused by great and deliberate force [and] that the defendant had been aware of [the injuries]. . . .

The trial court . . . found the defendant guilty of one count of § 53-21[1] and six counts of § 53a-59 (a) (3).[2] The trial court found the defendant not guilty of nineteen counts of assault in the first degree. Those counts had charged him with either personally inflicting the injuries or not preventing the child’s mother from inflicting the injuries.[3] The court imposed a total effective sentence of forty years imprisonment.

The defendant appealed to the Appellate Court, which . . . reversed the assault convictions concluding that the defendant had no legal duty to act under the circumstances of this case. . . .

II

We … turn to the issue of whether the duty to protect can be imposed on the defendant, an adult member of the household unrelated to the child. . . .
We conclude that, based on the trial court’s findings that the defendant had established a family-like relationship with the mother and her two children, that he had voluntarily assumed responsibility for the care and welfare of both children, and that he had considered himself the victim’s stepfather, there existed a common-law duty to protect the victim from her mother’s abuse, the breach of which can be the basis of a conviction under § 53a-59 (a) (3). …

There are many statutes that expressly impose a legal duty to act and attach liability for the failure to comply with that duty. With other statutes, however, the duty to act can be found outside the statutory definition of the crime itself, either in another statute; or in the common law.
We note initially that the question of whether a duty, and thus, liability for the breach of that duty, should be recognized in this state is not foreclosed by our penal code. . . . Section 53a-4 of the code provides: ‘The provisions of this chapter shall not be construed as precluding any court from recognizing other principles of criminal liability or other defenses not inconsistent with such provisions.’…

We do not believe that the principle of imposing a common-law duty in and of itself is inconsistent with any other principle of criminal liability provided in the code. “Failure to act when there is a special relationship does not, by itself, constitute a crime. The failure must expose the dependent person to some proscribed result. The definition of proscribed results constitutes the substantive crime, and it is defined in the criminal code. . . .”

. . . Although one generally has no legal duty to aid another in peril, even when the aid can be provided without danger or inconvenience to the provider, there are four widely recognized situations in which the failure to act may constitute breach of a legal duty: (1) where one stands in a certain relationship to another; (2) where a statute imposes a duty to help another; (3) where one has assumed a contractual duty; and (4) where one voluntarily has assumed the care of another. 1 W. LaFave & A. Scott, supra, § 3.3 (a) (1)-(4), pp. 284-87.[4]

The state argues that this case falls within both the first and fourth situations, or some combination thereof.

We begin with the duty based upon the relationship between the parties. One standing in a certain personal relationship to another person has some affirmative duties of care with regard to that person. “Legal rights and duties ... may arise out of those complex relations of human society which create correlative rights and duties the performance of which is so necessary to the good order and well-being of society that the state makes their observance obligatory.” Annot., supra, 100 A.L.R.2d 488.

It is undisputed that parents have a duty to provide food, shelter and medical aid for their children and to protect them from harm. “The inherent dependency of a child upon his parent to obtain medical aid, i.e., the incapacity of a child to evaluate his condition and summon aid by himself, supports imposition of such a duty upon the parent.”Commonwealth v. Konz, 498 Pa. 639, 644, 450 A.2d 638 (1982). Additionally, “‘the commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health,  education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.’” In re Adoption of Webb, 14 Wash. App. 651, 653, 544 P.2d 130 (1975). . . .

In addition to biological and adoptive parents and legal guardians, there may be other adults who establish familial relationships with and assume responsibility for the care of a child, thereby creating a legal duty to protect that child from harm. “Recognizing the primary responsibility of a natural parent does not mean that an unrelated person may not also have some responsibilities incident to the care and custody of a child. Such duties may be regarded as derived from the primary custodian, i.e., the natural parent, or arise from the nature of the circumstances.”People v. Berg, 171 Ill. App. 3d 316, 320, 525 N.E.2d 573, 121 Ill. Dec. 515 (1988).

Most courts deciding whether, under a particular set of facts, liability for an omission to act may be imposed under a statute that does not itself impose a duty to act, have looked to whether a duty to act exists in another statute, in the common law or in a contract. Of those courts acting outside the context of a statutory or contractual duty that have held a defendant criminally liable for failing to protect a child from injury, most have relied on a combination of both the first and fourth situations described by Professors LaFave and Scott to establish a duty as the predicate for the defendant’s conviction. More specifically, these courts have examined the nature of the relationship of the defendant to the victim and whether the defendant, as part of that relationship, had assumed a responsibility for the victim….

In State v. Orosco, 113 N.M. 789, 833 P.2d 1155 (1991), the court examined whether the defendant, who lived with the victim and his mother and who failed to intervene when one of his friends sexually abused the victim, could be held criminally liable for the abuse. [T]he court held that, by assuming the care and welfare of the child, the defendant stood in the position of a parent.

In Leet v. State, 595 So. 2d 959 (Fla. App. 1991), the court examined whether the defendant could be held criminally responsible for abuse of a child by his mother although he was not the child’s father. . . . Although the defendant had argued that he was not financially responsible for the child and could not have authorized his medical treatment, the court, nevertheless, concluded that he had the authority, and indeed, the duty to prevent the mother’s conduct.

In People v. Wong, 182 A.D.2d 98, 588 N.Y.S.2d 119 (1993), the court examined whether the defendants, who had been babysitters for the child victim’s parents, could be convicted of manslaughter for harming the child and for failing to provide him with necessary medical care. To support a conviction based upon their failure to provide medical attention, the prosecution relied on two theories: (1) that the defendants had contracted with the child’s parents to care for the child while the parents worked; and (2) that the defendants voluntarily had assumed care for the child....

As these cases demonstrate, the traditional approach in this country is to restrict the duty to save others from harm to certain very narrow categories of cases. We are not prepared now to adopt a broad general rule covering other circumstances. We conclude only that, in accordance with the trial court findings, when the defendant, who considered himself the victim’s parent, established a familial relationship with the victim’s mother and her children and assumed the role of a father, he assumed, under the common law, the same legal duty to protect the victim from the abuse as if he were, in fact, the victim’s guardian. . . . That duty does not depend on an ability to regulate the mother’s discipline of the victim or on the defendant having exclusive control of the victim when the injuries occurred. Nor is the duty contingent upon an ability by the state or the mother to look to the defendant for child support. Moreover, whether the defendant had created a total in loco parentis relationship with the victim by January, 1993, is not dispositive of whether the defendant had assumed a responsibility for the victim. “If immediate or emergency medical attention is required from a child’s custodian it should not matter that such custodian is not the primary care provider or for that matter a legally designated surrogate.”

Nor should we reject the concept of a duty in this case because the defendant might not have been able to authorize medical treatment for the victim had he taken her to the hospital. The status required to impose the legal duty to safeguard the victim is not coextensive with the status that permits one to authorize treatment. . . .

Finally, we recognize the continuing demographic trend reflecting a significant increase in nontraditional alternative family arrangements. Consequently, more and more children will be living with or may depend upon adults who do not qualify as a natural or adoptive parent. . . . To distinguish among children in deciding which ones are entitled to protection based upon whether their adult caregivers have chosen to have their relationships officially recognized hardly advances the public policy of protecting children from abuse. …

The judgment of the Appellate Court is reversed …

PALMER, J., with whom MCDONALD, J., joins, concurring.
I join the opinion of the majority. A serious question remains, however, as to whether the defendant, Santos Miranda, had fair warning that his failure to act, in the particular circumstances of this case, could give rise to the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The legal duty that we recognize today has never before been expressly recognized in this state; indeed, the Appellate Court, upon consideration of the defendant’s appeal, unanimously concluded that no such duty existed. In such circumstances, it is by no means clear that the due process clauses of the federal and state constitutions permit such a duty to be imposed on this defendant for purposes of criminal liability under the assault statute.[5]

Since the defendant will have the opportunity to raise a due process claim on remand, however;[6] and because I agree with the analysis and conclusions of the majority, I join the opinion of the majority.

* * *

R. v. Browne
Ontario Court of Appeal
[1997] 33 O.R. (3d) 775

Abella J.A.:
1          The appellant, Dexter Browne, was charged with criminal negligence causing the death of Audrey Greiner by failing “to render assistance to [her] by failing to take her immediately to the hospital after undertaking to render such assistance.” He was convicted and sentenced to 4 1/2 years’ imprisonment. The issue in this appeal is whether the trial judge erred in concluding that the appellant had caused Audrey Greiner’s death by breaching a legal duty arising from an “undertaking” within the meaning of s. 217 of the Criminal Code to take her to the hospital. Only if the appellant can be found to have given an undertaking giving rise to a legal duty under s. 217 can he be found criminally negligent for “omitting to do anything that it is his duty to do” within the meaning of s. 219 of the Code. …

s. 217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.
s. 219.  (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.

Facts

2          Audrey Greiner and Dexter Browne were drug dealers. At the time of her death, Greiner was 19 and Browne was 22. They had met several months earlier and sold crack cocaine together. They were also, the trial judge found, “at the very least close friends, probably boyfriend-girlfriend”, though they did not live together.
3          Just before 11:00 p.m. on April 13, 1994, Greiner and Browne were stopped by police on the street when they came out of a house being kept under surveillance. Both were arrested and strip-searched. No drugs were found. The police also searched the house Greiner and Browne had been in and, finding no drugs, released Greiner and Browne at about 11:30 p.m.
4          Audrey Greiner had swallowed a plastic bag containing crack cocaine to avoid its detection by the police. After she and Browne were released, she tried unsuccessfully to throw up the bag. The two then spent almost an hour driving around Oshawa in a taxi looking for Browne’s partner to warn him about the police raid.
5          Between midnight and 1:00 a.m., Browne brought Greiner to the home he shared with his family. His 21-year old brother, Marlon, was awake at the time and testified that he noticed nothing unusual about Greiner’s behaviour. Browne took Greiner to his room in the basement, and left her alone for 10 or 15 minutes while he went upstairs to make something to eat. When the phone in his room rang unanswered, Browne went downstairs to find out why. He found Greiner shaking and sweating. The time was about 2:00 a.m.
6          The trial judge described Browne’s testimony on what happened next as follows. The statement found by the trial judge to constitute an “undertaking” by Browne is underlined.

He called her name a couple of times and she did not answer at first, but then she said yes. He said, “I’m going to take you to the hospital.” He helped her up the stairs. He asked her if she could get up and there was no response. She sat up and she put her arm around him and he put his arm around her waist and they walked up the stairs. She could not walk on her own. He called a taxi.
He testified she got heavy and he laid her on the floor by the front door and waited 10 to 15 minutes for the taxi. She was still sweating, shaking, and was mumbling. The taxi arrived and he could not pick her up and asked his brother to help him take her to the taxi….
8          At about 2:45 a.m., the taxi arrived at the hospital and was met by three nurses who brought Greiner into the emergency unit by stretcher. Browne told the nurses that his friend needed her stomach pumped. He gave them Greiner’s street name, “Carrie Norrie”, rather than her real name. When specifically asked by one of the nurses if Greiner had consumed street drugs, he said at first that he did not know. Only after repeated requests by the nurses did he reveal that Greiner had taken drugs….
9          On her arrival at the hospital, Greiner had no pulse and no heartbeat. She was pronounced dead at 3:10 a.m.
10          The trial judge found that the appellant told Ms. Greiner at about 2:00 a.m. that he would take her to the hospital and “immediately thereafter embarked on that act.” She concluded that this statement was an “undertaking” within the meaning of s. 217 of the Criminal Code.
11          The circumstances giving rise to a legal duty were summarized by the trial judge in the following passage:
By taking charge of Audrey Greiner after he knew that she had ingested crack, Dexter Browne undertook to care for her while the crack was in her body. That undertaking included rendering assistance to her which required taking her to the hospital immediately. On this basis, the legal duty to Audrey Greiner within the meaning of Section 217 arose just after 11:30 when the accused knew that Audrey Greiner had not vomited the crack cocaine.
Although Dexter Browne testified that he did not say to Audrey Greiner that he would take care of her if something bad happened, he did admit that he would take care of her if she sold to someone who tried to rob her or anything like that.

Given the frequency of swallowing drugs described by the accused and by Penny Marrotte, swallowing drugs was part of the activity and risk in dealing in drugs. His duty to his friend and co-dealer included seeing her through such times, and this included taking her to the hospital.

Throughout all of these events, the accused was not a bystander. Whether the legal duty arose at 2:00 a.m. or earlier, I am satisfied beyond a reasonable doubt that Dexter Browne undertook to do the act alleged and such was an undertaking within the meaning of Section 217 of the Criminal Code.
12          Using a taxi instead of calling 911 reflected, according to the trial judge, a “wanton and reckless disregard” for Audrey Greiner’s life contrary to s. 219(1) of the Criminal Code.

Analysis

13          The charge of criminal negligence against the appellant was particularized as follows, mirroring the language found in s. 217 of the Criminal Code:
...that he ... failed to render assistance to Audrey Greiner by failing to take her immediately to the hospital after undertaking to render such assistance and did thereby cause the death of Audrey Greiner....
14          The particularization of the charge in this way meant that to find a legal duty, there had first to be a finding of an undertaking. … In other words, the legal duty does not flow from the relationship between the parties, as it does in s. 215, which creates legal duties between spouses, between parents and children, and between dependants and their caregivers. Under s. 217, there is no pre-existing relationship or situation that creates a legal duty; there must be an undertaking before a legal duty is introduced into the relationship. The relationship or context is relevant only to the determination of whether the breach reflected a “wanton or reckless disregard” under s. 219(1), not to whether there was an undertaking under s. 217.
15          What kind of an undertaking gives rise to a legal duty within the meaning of s. 217, the breach of which can result in criminal culpability? In my view, the ordinary dictionary definition of “undertaking” is of little assistance. There is no doubt that the definition embraces an interpretive continuum ranging from an assertion to a promise. But it seems to me that when we are deciding whether conduct is caught by the web of criminal liability, the threshold definition we apply must justify penal sanctions. A conviction for criminal negligence causing death carries a maximum penalty of life imprisonment. The word “undertaking” in s. 217 must be interpreted in this context. The threshold definition must be sufficiently high to justify such serious penal consequences. The mere expression of words indicating a willingness to do an act cannot trigger the legal duty. There must be something in the nature of a commitment, generally, though not necessarily, upon which reliance can reasonably be said to have been placed.
16          Any other interpretation of “undertaking” imports theories of civil negligence, rendering individuals who breach civil standards of care susceptible to imprisonment. The criminal standard must be - and is - different and higher. Before someone is convicted of recklessly breaching a legal duty generated by his or her undertaking, that undertaking must have been clearly made, and with binding intent. Nothing short of such a binding commitment can give rise to the legal duty contemplated by s. 217.
17          The trial judge found that the relationship between Dexter Browne and Audrey Greiner as partners in drug dealing gave rise to an implicit undertaking by Browne that he would take Audrey Greiner to the hospital whenever she swallowed cocaine. The fundamental error made by the trial judge was in reversing the analytical steps under s. 217 by starting her analysis with whether a duty of care existed, finding that it did, and then basing her finding of an undertaking on the existence of a legal duty. The inquiry should have begun with whether there was an undertaking. Only if there was an undertaking in the nature of a binding commitment could a legal duty have arisen under s. 217, regardless of the nature of the relationship between the appellant and Audrey Greiner.
18          In my view, the evidence does not disclose any undertaking of a binding nature. These were two drug dealers who were used to swallowing bags of drugs to avoid detection by the police. There was no evidence that the appellant knew that Audrey Greiner was in a life-threatening situation until 2:00 a.m., when he immediately phoned for a taxi. His words to her at that time - “I’ll take you to the hospital” - hardly constitute an undertaking creating a legal duty under s. 217. He said he would take her to the hospital when he saw the severity of her symptoms, and he did. There is no evidence either that a 911 call would have resulted in a significantly quicker arrival at the hospital at that hour, or even that had she arrived earlier, Audrey Greiner’s life could have been saved.
19          There being no undertaking within the meaning of s. 217 of the Criminal Code, there can be no finding of a legal duty. There being no duty, there can be no breach contrary to s. 219 of the Code.

* * *

Fagan v. Commissioner of Metropolitan Police
Court of Criminal Appeal
[1969] 1 Q.B. 439

LORD PARKER C.J.: I will ask James J. to read the judgment which he has prepared, and with which I entirely agree.
JAMES J.: The appellant, Vincent Martel Fagan, was convicted by the Willesden magistrates of assaulting David Morris, a police constable, in the execution of his duty on August 31, 1967. He appealed to quarter sessions. On October 25, 1967, his appeal was heard by Middlesex Quarter Sessions and was dismissed. This matter now comes before the court on appeal by way of case stated from that decision of quarter sessions.

The sole question is whether the prosecution proved facts which in law amounted to an assault.

On August 31, 1967, the appellant was reversing a motor car in Fortunegate Road, London, N.W.10, when Police Constable Morris directed him to drive the car forwards to the kerbside and standing in front of the car pointed out a suitable place in which to park. At first the appellant stopped the car too far from the kerb for the officer’s liking. Morris asked him to park closer and indicated a precise spot. The appellant drove forward towards him and stopped it with the offside wheel on Morris’s left foot. “ Get off, you are on my foot,” said the officer. “Fuck you, you can wait,” said the appellant. The engine of the car stopped running. Morris repeated several times “Get off my foot.” The appellant said reluctantly “ Okay man, okay,” and then slowly turned on the ignition of the vehicle and reversed it off the officer’s foot. The appellant had either turned the ignition off to stop the engine or turned it off after the engine had stopped running.

The justices at quarter sessions on those facts were left in doubt as to whether the mounting of the wheel on to the officer’s foot was deliberate or accidental. They were satisfied, however, beyond all reasonable doubt that the appellant “knowingly, provocatively and unnecessarily allowed the wheel to remain on the foot after the officer said ‘Get off, you are on my foot’.” They found that on those facts an assault was proved.

Mr. Abbas for the appellant relied upon the passage in Stone’s Justices’ Manual (1968), Vol. 1, p. 651, where assault is defined. He contends that on the finding of the justices the initial mounting of the wheel could not be an assault and that the act of the wheel mounting the foot came to an end without there being any mens rea. It is argued that thereafter there was no act on the part of the appellant which could constitute an actus reus but only the omission or failure to remove the wheel as soon as he was asked. That failure, it is said, could not in law be an assault, nor could it in law provide the necessary mens rea to convert the original act of mounting the foot into an assault.

Mr. Rant for the respondent argues that the first mounting of the foot was an actus reus which act continued until the moment of time at which the wheel was removed. During that continuing act, it is said, the appellant formed the necessary intention to constitute the element of mens rea and once that element was added to the continuing act, an assault took place. In the alternative, Mr. Rant argues that there can be situations in which there is a duty to act and that in such situations an omission to act in breach of duty would in law amount to an assault. It is unnecessary to formulate any concluded views on this alternative.

In our judgment the question arising, which has been argued on general principles, falls to be decided on the facts of the particular case. An assault is any act which intentionally—or possibly recklessly—causes another person to apprehend immediate and unlawful personal violence. Although “ assault “ is an independent crime and is to be treated as such, for practical purposes today “assault “ is generally synonymous with the term “battery” and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case the “assault” alleged involved a “battery.” Where an assault involves a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. An assault may be committed by the laying of a hand upon another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. So for our part we see no difference in principle between the action of stepping on to a person’s toe and maintaining that position and the action of driving a car on to a person’s foot and sitting in the car whilst its position on the foot is maintained.

To constitute the offence of assault some intentional act must have been performed: a mere omission to act cannot amount to an assault. Without going into the question whether words alone can constitute an assault, it is clear that the words spoken by the appellant could not alone amount to an assault: they can only shed a light on the appellant’s action. For our part we think the crucial question is whether in this case the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot or whether his act is to be regarded as a continuing act operating until the wheel was removed. In our judgment a distinction is to be drawn between acts which are complete—though results may continue to flow—and those acts which are continuing. Once the act is complete it cannot thereafter be said to be a threat to inflict unlawful force upon the victim. If the act, as distinct from the results thereof, is a continuing act there is a continuing threat to inflict unlawful force. If the assault involves a battery and that battery continues there is a continuing act of assault.

For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. The “actus reus“ is the action causing the effect on the victim’s mind. The “mens rea” is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed upon an existing act. On the other hand the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault.

In our judgment the Willesden magistrates and quarter sessions were right in law. On the facts found the action of the appellant may have been initially unintentional, but the time came when knowing that the wheel was on the officer’s foot the appellant (1) remained seated in the car so that his body through the medium of the car was in contact with the officer, (2) switched off the ignition of the car, (3) maintained the wheel of the car on the foot and (4) used words indicating the intention of keeping the wheel in that position. For our part we cannot regard such conduct as mere omission or inactivity.

There was an act constituting a battery which at its inception was not criminal because there was no element of intention but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. The fallacy of the appellant’s argument is that it seeks to equate the facts of this case with such a case as where a motorist has accidentally run over a person and, that action having been completed, fails to assist the victim with the intent that the victim should suffer.

We would dismiss this appeal.

BRIDGE J. (dissenting):— I fully agree with my Lords as to the relevant principles to be applied. No mere omission to act can amount to an assault. Both the elements of actus reus and mens rea must be present at the same time, but the one may be superimposed on the other. It is in the application of these principles to the highly unusual facts of this case that I have, with regret, reached a different conclusion from the majority of the court. I have no sympathy at all for the appellant, who behaved disgracefully. But I have been unable to find any way of regarding the facts which satisfies me that they amounted to the crime of assault. This has not been for want of trying. But at every attempt I have encountered the inescapable question: after the wheel of the appellant’s car had accidentally come to rest on the constable’s foot, what was it that the appellant did which constituted the act of assault? However the question is approached, the answer I feel obliged to give is: precisely nothing. The car rested on the foot by its own weight and, remained stationary by its own inertia. The appellant’s fault was that he omitted to manipulate the controls to set it in motion again.

Neither the fact that the appellant remained in the driver’s seat nor that he switched off the ignition seem to me to be of any relevance. The constable’s plight would have been no better, but might well have been worse, if the appellant had alighted from the car leaving the ignition switched on. Similarly I can get no help from the suggested analogies. If one man accidentally treads on another toe or touches him with a stick, but deliberately maintains pressure with foot or stick after the victim protests, there is clearly an assault. But there is no true parallel between such cases and the present case. It is not, to my mind, a legitimate use of language to speak of the appellant “ holding “ or “ maintaining “ the car wheel on the constable’s foot. The expression which corresponds to the reality is that used by the justices in the case stated. They say,quite rightly, that he “ allowed “ the wheel to remain.

With a reluctantly dissenting voice I would allow this appeal and quash the appellant’s conviction.

Appeal dismissed.

* * *

R. v. Miller
Court of Appeal
[1982] 2 W.L.R. 937; [1982] Q.B. 532

One night, while squatting in someone else’s house, the appellant lit a cigarette and then lay down on a mattress in one of the rooms. He fell asleep before he had finished smoking the cigarette and it dropped onto the mattress. Later he woke up and saw that the mattress was smouldering. He did nothing about it; he merely moved to another room and went to sleep again. The house caught fire. The appellant was rescued and subsequently charged with arson contrary to the Criminal Damage Act 1971.

MAY L.J. read the following judgment of the court.
…[I]n both Fagan’s case [[1969] 1 Q.B. 439] and the present, justice and good sense required that the defendant should not escape liability merely because the last thing that happened in the relevant story was an omission on his part. With respect to the Divisional Court in Fagan’s case, we agree with Professor Glanville Williams’s criticism of the reasoning of the majority of the court. In reality, driving the car wheel on to the policeman’s foot was an act, was something which the driver did: the latter’s failure thereafter to drive it off, despite the officer’s request, was something which the driver did not do, it was an omission, and we think that it is unreal to describe it as any more than that.

On the other hand, in the driver’s failure to release the officer’s foot in the knowledge that he had just driven on to it, we think that there was clearly a substantial element of adoption by the driver at the later stage of what he had done a little earlier. We think that the conduct of the driver in that case can and should have been looked at as a whole and as the whole contained both the actus reus and mens rea they were sufficiently coincident to render the driver guilty of an assault, without having to resort to the somewhat artificial reasoning of the majority of the Divisional Court. In our opinion, an unintentional act followed by an intentional omission to rectify that act or its consequences can be regarded in toto as an intentional act. We do not seek to define the rule, if rule it be, any more precisely because each case must depend on its own facts and we prefer to leave it to the trial judge to give the jury what he considers to be the appropriate direction in any given case. We would only say that an unintentional act followed by an intentional omission to rectify it or its consequences, or a reckless omission to do so when recklessness is a sufficient mens rea for the particular case, should only be regarded in toto as an intentional or reckless act when reality and common sense so require: this may well be a matter to be left to the jury. Further, in the relevant analysis we think that whether or not there is on the facts an element of adoption on the part of the alleged offender of what he has done earlier by what he deliberately or recklessly fails to do later, is an important consideration.

In these circumstances, although we doubt whether the recorder was correct in holding that when the appellant in the present case woke up there was any duty on him at criminal law to extinguish the smouldering mattress, nevertheless we do think that the whole of the appellant’s conduct in relation to the mattress from the moment he lay on it with a lighted cigarette until the time he left it smouldering and moved to the adjoining room, can and should be regarded as one act. Clearly his failure with knowledge to extinguish the incipient fire had in it a substantial element of adoption on his part of what he had unintentionally done earlier, namely set it on fire. In these circumstances,we think that on the admitted facts the recorder was nevertheless correct in leaving the case to the jury, as he did, on the basis that the question was whether the appellant’s failure to act was reckless, as defined by their Lordships’ House in Reg. v. Caldwell [1981] 1 All E.R. 961.

For these reasons, this appeal is dismissed.

Appeal dismissed.


R. v. Miller
[1983] 1 All E.R. 978
House of Lords

Lord Diplock:
            …The recorder, in his lucid summing up to the jury (they took 22 minutes only to reach their verdict), told them that the accused, having by his own act started a fire in the mattress which, when he became aware of its existence, presented an obvious risk of damaging the house, became under a duty to put it out. The Court of Appeal upheld the conviction, but its ratio decidendi appears to be somewhat different from that of the recorder. As I understand the judgment, in effect it treats the whole course of conduct of the accused, from the moment at which he fell asleep and dropped the cigarette on the mattress until the time the damage to the house by fire was complete, as a continuous act of the accused, and holds that it is sufficient to constitute the statutory offence of arson if at any stage in that course of conduct the state of mind of the accused, when he fails to try to prevent or minimise the damage which will result from his initial act, although it lies within his power to do so, is that of being reckless whether property belonging to another would be damaged.

My Lords, these alternative ways of analysing the legal theory that justifies a decision which has received nothing but commendation for its accord with common sense and justice have, since the publication of the judgment of the Court of Appeal in the instant case, provoked academic controversy. Each theory has distinguished support. Professor J.C. Smith espouses the ‘duty theory’ (see [1982] Crim LR 526 at 528); Professor Glanville Williams who, after the decision of the Divisional Court in Fagan v Metropolitan Police Commissioner [1968] 3 All ER 442, [1969] 1 QB 439 appears to have been attracted by the duty theory, now prefers that of the continuing act (see [1982] Crim LR 773). When applied to cases where a person has unknowingly done an act which sets in train events that, when he becomes aware of them, present an obvious risk that property belonging to another will be damaged, both theories lead to an identical result; and, since what your Lordships are concerned with is to give guidance to trial judges in their task of summing up to juries, I would for this purpose adopt the duty theory as being easier to explain to a jury; though I would commend the use of the word ‘responsibility’, rather than ‘duty’ which is more appropriate to civil than to criminal law since it suggests an obligation owed to another person, i.e., the person to whom the endangered property belongs, whereas a criminal statute defines combinations of conduct and state of mind which render a person liable to punishment by the state itself.

 

R. v. Thornton
3 C.R. (4th) 381, 1 O.R. (3d) 480, 42 O.A.C. 206
Ontario Court of Appeal

The judgment of the Court was delivered by Galligan J.A.:
1        The presence in a person's blood of antibodies to Human Immunodeficiency Virus ("HIV") indicates that the person is probably infected with Acquired Immune Deficiency Syndrome ("AIDS"). AIDS is a grave illness which is usually fatal. It is infectious and particularly contagious through the blood.
2        All of this is now well known. The appellant knew it in November 1987. In fact, he was well-informed about AIDS and its means of transmission. He knew as well that he was a member of a group which was highly at risk of contracting AIDS. Moreover, he knew that he had twice tested positive for HIV antibodies and that he was therefore infectious. He knew that the Canadian Red Cross collected blood for transfusion to persons in need of it, and that AIDS is transmitted by blood. He also knew that the Red Cross would not knowingly accept donations of blood from persons who had tested positive to HIV antibodies or who were members of his high-risk group. Nevertheless, on November 16, 1987, he donated blood to the Red Cross at a clinic in Ottawa. Fortunately, the Red Cross's screening process detected the contaminated blood and it was put aside.
3        The appellant was charged with an offence contrary to s. 176(a) of the Criminal Code of Canada, R.S.C., c. C-34. That provision is now s. 180….
He was convicted of the charge by Flanigan J., sitting without a jury, and sentenced to a term of 15 months' imprisonment….
5        The provisions of s. 180 of the Code are:

180. [176] (1) Every one who commits a common nuisance and thereby
(1) endangers the lives, safety or health of the public, or
(b) causes physical injury to any person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby
(a) endangers the lives, safety, health, property or comfort of the public; or
(b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.

6        …. If, in the circumstances, the appellant's act of donating blood which he knew was HIV contaminated to the Red Cross was neither an unlawful act nor a failure to discharge a legal duty, then the indictment does not allege an offence known to law.
7        Section 180(2)(a) provides that a common nuisance is committed by either the doing of an unlawful act, or the failure to discharge a legal duty which endangers the lives or health of the public. For the purposes of this appeal, I am prepared to assume the correctness of Mr. Greenspon's cogent argument that the words "unlawful act" must be taken to mean conduct which is specifically proscribed by legislation. The Code does not make it an offence to donate contaminated blood. Counsel were unable to refer the Court to any other statutory provision, federal or provincial, which does so. On the assumption, therefore, that the appellant's conduct could not constitute an "unlawful act", I will examine whether it amounted to a failure to discharge a "legal duty".
8        I am unable to find any provision in the Code, or any other statute which I can read, as specifically imposing a legal duty upon a person to refrain from donating contaminated blood. The immediate issue therefore is two-fold. Can a "legal duty" within the meaning of s. 180(2) be one which arises at common law, or must it be one found in a statute? Is there a "legal duty" arising at common law the breach of which, assuming the other essential elements of the offence were proved, could be the basis of an offence under s. 180?
9        There are no cases deciding whether the "legal duty" in s. 180(2) must be a duty imposed by statute or whether it can be a duty according to common law. However, the "duty imposed by law" which forms part of the definition of criminal negligence set out in s. 219 of the Code has been held to be either a duty imposed by statute or a duty arising at common law. The provisions of s. 219 are as follows:

219. [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.

10        In R. v. Coyne (1958), 31 C.R. 335, 124 C.C.C. 176, the New Brunswick Supreme Court, Appeal Division, considered the criminal negligence provisions of the Code in relation to a hunting accident. Speaking for that Court, Ritchie J.A. held at pp. 179-180 [C.C.C., p. 338 C.R.]:

The 'duty imposed by law' may be a duty arising by virtue of either the common law or by statute. Use of a firearm, in the absence of proper caution, may readily endanger the lives or safety of others. Under the common law anyone carrying such a dangerous weapon as a rifle is under the duty to take such precaution in its use as, in the circumstances, would be observed by a reasonably careful man. If he fails in that duty and his behaviour is of such a character as to show or display a wanton or reckless disregard for the lives or safety of other persons, then, by virtue of s. 191, his conduct amounts to criminal negligence.

11        In R. v. Popen (1981), 60 C.C.C. (2d) 232, this Court also had occasion to consider the nature of the "duty imposed by law" contained in the definition of criminal negligence. It was a child abuse case. In giving the judgment of the Court, Martin J.A. said at p. 240:

[A] parent is under a legal duty at common law to take reasonable steps to protect his or her child from illegal violence used by the other parent or by a third person towards the child which the parent foresees or ought to foresee.

The effect of that judgment is to hold that the common law duty, which was there described, was a "duty imposed by law" within the meaning of s. 219 because the Court held that its breach could amount to criminal negligence.
12        These decisions lead me to the opinion that it is well settled that, for the purpose of defining criminal negligence, a "duty imposed by law" includes a duty which arises at common law.
13        While the words "legal duty" in s. 180(2) are not the same as a "duty imposed by law" used in s. 219, they have exactly the same meaning. It follows therefore that the meaning given to a "duty imposed by law" in s. 219 should also be given to the "legal duty" contained in s. 180(2). Thus, I am of the opinion that the legal duty referred to in s. 180(2) is a duty which is imposed by statute or which arises at common law. It becomes necessary, then, to decide whether at common law there is a duty which would prohibit the donating of blood known to be HIV contaminated to the Red Cross.
14        While this is not a civil case and the principles of tort law are not directly applicable to it, the jurisprudence on that subject is replete with discussions about the legal duties of one person to another which arise at common law. The jurisprudence is constant that those duties are legal ones: that is, they are ones which are imposed by law. Throughout this century and indeed since much earlier times, the common law has recognized a very fundamental duty, which while it has many qualifications, can be summed up as being a duty to refrain from conduct which could cause injury to another person….
18        [T]here is deeply embedded in the common law a broad fundamental duty which, although subject to many qualifications, requires everyone to refrain from conduct which could injure another. It is not necessary to decide in this case how far that duty extends. At the very least, however, it requires everyone to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons. Accepting, as I have, that a "legal duty" within the meaning of that term in s. 180(2) includes a duty arising at common law, I think that the common law duty to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons is a "legal duty" within the meaning of that term in s. 180(2).
19        Donating blood which one knows to be HIV contaminated, to an organization whose purpose is to make the blood available for transfusion to other persons, clearly constitutes a breach of the common law duty to refrain from conduct which one foresees could cause serious harm to another person. It is thus a failure to discharge a "legal duty" within the contemplation of s. 180(2). It is therefore my conclusion that the indictment which alleges the commission of a nuisance by the donation of blood which the appellant knew to be HIV contaminated does allege an offence known to law.…

 

R. v. Thornton
[1993] 2 S.C.R. 445
Supreme Court of Canada

The judgment of the court was delivered by Lamer C.J.C. (orally):—
1        We are all of the view that this appeal fails. Section 216 imposed upon the appellant a duty of care in giving his blood to the Red Cross. This duty of care was breached by not disclosing that his blood contained HIV antibodies. This common nuisance obviously endangered the life, safety and health of the public.
2        The appeal is dismissed.

Annotation

Section 216 of the Criminal Code reads as follows:

Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.

            The court appears to read s. 216 literally to impose a duty of care on those doing lawful acts which endanger others' lives. The trial judge, His Honour Judge Flanigan, then of the Ontario District Court, (June 15, 1989), Doc. Ottawa-Carleton 759/89, [1989] O.J. 1814, had also found a duty in s. 216 but only on the basis the accused was involved in a medical procedure. Section 216 is widely drafted and can well bear the Supreme Court's construction to criminalize Thornton's despicable and life-threatening omission.

It is nevertheless disappointing that the Supreme Court did not seize the opportunity to fully consider a contentious issue of general principle — whether a criminal omission can be based on a non-criminal duty. In the court below, the Ontario Court of Appeal had found a breach of legal duty by turning to civil jurisprudence, including Lord Atkin's famous pronouncement in M'Alister (or Donoghue) v. Stevenson, [1932] A.C. 562 (sub nom. Donoghue (or McAlister) v. Stevenson) [1932] All E.R. Rep. 1 (H.L.) that:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour ... (at p. 580 [A.C.])

Whatever one thinks of Thornton's conduct, resort to the common law of torts to justify criminal responsibility is quite inconsistent with the clear wording of s. 9(a) of the Criminal Code which states that:

... no person shall be convicted ... of an offence at common law

The Supreme Court ought to have pronounced on whether such wide resort to the common law is permissible. The important principle of legality was at stake. The issue of the source of legal duties had previously split the Supreme Court in R. v. Moore, [1979] 1 S.C.R. 195, 5 C.R. (3d) 289, [1978] 6 W.W.R. 462, 24 N.R. 181, 43 C.C.C. (2d) 83, 90 D.L.R. (3d) 112.

In Moore, the Supreme Court was agreed that criminal responsibility for an omission could be based on a breach of duty imposed by a provincial statute. Recently, Canadian law reform proposals have urged far greater restraint. The now defunct Law Reform Commission of Canada, in Recodifying Criminal Law (Report; 31) (Ottawa: The Commission, 1988), at p. 20, suggested legal duties to ground criminal responsibility for omission should be limited to special duties declared in the Criminal Code or "some other Act of the Parliament of Canada". The Canadian Bar Association, Criminal Recodification Task Force, Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (Ottawa: 1992), at pp. 22-23, arguing that a Criminal Code should be comprehensive and accessible, would further restrict criminal responsibility for omissions to breaches of duties declared in the Code itself. However, the Parliamentary Subcommittee, First Principles (1993), pp. 25-27, considered the inclusion of all legal duties in the Code as "impractical and unrealistic" and agreed with the Commission that, apart from special duties declared in a Code, duties could also be found in other federal statutes. These three bodies thus agree that breach of a common law or provincial statutory duty should never be the sole source of criminal responsibility. The 1993 Government White Paper, Minister of Justice, Proposals to amend the Criminal Code (general principles) (June 28, 1993), disappointingly ignoresall this advice and has no general provision on omissions. The law is left to the vagaries of judges and provincial politicians.

Don Stuart

* * *

LRCC § 2(3)

* * *

MPC § 2.01

* * *

StGB § 13

* * *

French Penal Code Art. 223-6

Anyone who, being able to prevent by immediate action a felony or a misdemeanour against the bodily integrity of aperson, without risk to himself or to third parties, wilfully abstains from doing so, is punished by five years’ imprisonmentand a fine of €75,000.
The same penalties apply to anyone who wilfully fails to offer assistance to a person in danger which he couldhimself provide without risk to himself or to third parties, or by initiating rescue operations.

Art. 223-7

Anyone who voluntarily abstains from taking or initiating measures, which involve no risk to himself or to thirdparties, to combat a natural disaster likely to endanger the safety of others is punished by two years’ imprisonment and afine of €30,000.

* * *

StGB § 323c. Omission to effect an easy rescue

Whosoever does not render assistance during accidents or a common danger or emergency although it is necessary and can be expected of him under the circumstances, particularly if it is possible without substantial danger to himself and without violation of other important duties shall be liable to imprisonment of not more than one year or a fine.

* * *

LRCC § 10(2) Failure to Rescue

* * *

Quebéc Charter of Human Rights and Freedoms

Right to life.
1. Every human being has a right to life, and to personal security, inviolability and freedom.
Juridical personality.
He also possesses juridical personality.

Right to assistance.
2. Every human being whose life is in peril has a right to assistance.
Aiding person whose life is in peril.
Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.

 

D.        Possession

1.         Significance and Variety

 

Markus D. Dubber, “Policing Possession: The War on Crime and the End of Criminal Law,” 91 J. Crim. L. & Criminology 829 (2002)

Possession offenses have not attracted much attention. Yet they are everywhere in modern American criminal law, on the books and in action. Possession offenses . . . are everywhere in modern American criminal law, on the books and in action. They fill [American] statute books, … arrest statistics, and, eventually, … prisons. By last count, New York law recognized no fewer than 153 possession offenses; one in every five prison or jail sentences handed out by New York courts in 1998 was imposed for a possession offense. That same year, possession offenses accounted for over 100,000 arrests in New York State, while drug possession offenses alone resulted in over 1.2 million arrests nationwide. …

So broad is the reach of possession offenses, and so easy are they to detect and then to prove, that possession has replaced vagrancy as the sweep offense of choice. Unlike vagrancy, however, possession offenses promise more than a slap on the wrist. Backed by a wide range of penalties, they can remove undesirables for extended periods of time, even for life. . . .

New York boasts no fewer than 115 felony possession offenses, all of which require a minimum of one year in prison; eleven of them provide for a maximum sentence of life imprisonment.
* * *
Millions of people commit one of its variants every day, from possessing firearms and all sorts of other weapons, dangerous weapons, instruments, appliances, or substances, including toy guns, air pistols and rifles, tear gas, ammunition, body vests, and anti-security items, to burglary tools or stolen property, and of course drugs, and everything associated with them, including drug paraphernalia, drug precursors, not to mention instruments of crime, graffiti instruments, computer related material, counterfeit trademarks, unauthorized recordings of a performance, public benefit cards, forged instruments, forgery devices, embossing machines (to forge credit cards), slugs, vehicle identification numbers, vehicle titles without complete assignment, gambling devices, gambling records, usurious loan records, prison contraband, obscene material, obscene sexual performances by a child, “premises which [one] knows are being used for prostitution purposes,” eavesdropping devices, fireworks, noxious materials, and taximeter accelerating devices (in New York), spearfishing equipment (in Florida), or undersized catfish (in Louisiana), and the list could go on and on.
* * *
One way of thinking of possession offenses is to view them as criminalized presumptions of some other offense. In criminalizing possession, the legislature really criminalizes import, manufacture, purchase. Or forward-looking, the legislature really criminalizes use, sale, or export. In the latter variety, the prospective presumption resembles an implicit inchoate offense. So possession really is an attempt to use, sell, or export, or more precisely, possession is an attempt to attempt to use, sell, or export, that is, an inchoate inchoate offense. . . .

[T]he implicit presumption inherent in the concept of a possession offense reveals the modus operandi of possession, the secret of its success as a policing tool beyond legal scrutiny. Possession succeeds because it removes all potentially troublesome features to the level of legislative or executive discretion, an area that is notoriously difficult to scrutinize. In its design and its application, possession is, in doctrinal terms, a doubly inchoate offense, one step farther from the actual infliction of personal harm than ordinary inchoate offenses like attempt. In practical terms, it is an offense designed and applied to remove dangerous individuals even before they have had an opportunity to manifest their dangerousness in an ordinary inchoate offense. On its face, however, it does not look like an inchoate offense, nor does it look like a threat reduction measure targeting particular types of individuals.

* * *

Possession in the Canadian Criminal Code

The Canadian Criminal Code contains over 50 possession offenses, punishable by imprisonment up to fourteen years, not counting the possession offenses found in other statutes, including the Controlled Drugs and Substances Act, some of which are punishable by life imprisonment (notably possession of certain drugs for the purpose of trafficking and for the purpose of exporting). Possession offenses are notoriously difficult to count since they often appear in closely related variations (e.g., possession, possession with intent to distribute, possession with intent to use, possession of one item, possession of another similar item). The Canadian Criminal Code also not once but twice uses the ingenious device of transforming a slate of sale offenses into possession offenses by defining sale as including possession for sale. Several possession are accompanied by presumptions and reverse proof burdens (of unlawfulness or lack of authorization). Possession offenses found in the Code include, more or less in order of appearance:

  • identity documents, identity information (“in circumstances giving rise to a reasonable inference that the information is intended to be used to commit an indictable offence”), forged passports
  • explosive substances
  • property for terrorist purposes
  • weapons, firearms, cross-bows, prohibited devices, ammunition (in fact an entire section of the Code is devoted to “Possession Offenses” related to weapons of various kinds by various persons in various places and for various purposes, or no particular purpose at all)
  • voyeuristic recordings
  • “crime comics”
  • child pornography
  • intercepting devices, devices to obtain telecommunication service, devices to obtain computer service
  • property obtained by crime
  • forged documents, forgery instruments, counterfeit money (with another section entitled Possession)
  • tobacco product, alcohol
  • property obtained by excise offences,
  • stolen or forged credit cards
  • computer passwords
  • break-in instruments, “instruments for breaking into coin-operated or currency exchange devices”
  • automobile master keys
  • stolen property (again, an entire section of the Code is entitled “Having in Possession”)
  • VINs
  • “anything that they know has been used to commit an offence (of mail theft) or anything in respect of which they know that such an offence has been committed”
  • exchequer bill papers, public seals, revenue paper, paper that is used to make bank-notes
  • counterfeiting stamps, dies, or marks
  • fraudulently obtained minerals
  • military commissions
  • as well as “stink or stench bombs” (unless by a peace officer in the discharge of his duty!)
  • cattle found astray, and
  • lumber—and lumbering equipment—found adrift.

2.         "Actus Reus"

 

An Act for the Better Prevention of Offences, 1851

An Act Preventing the Counterfeiting Coin

* * *

R. v. Lennard
168 Eng. Rep. 147; S.C. 2 Wm. Bl. 807, 822; 1 East, P. C. 170; 1 Leach 90 (1772)

 (A prisoner may be indicted for having the unlawful custody of a mould; for a mould being mentioned in the first clause of the Act, it is to be considered as included in the general words tool or instrument, in the subsequent clause.)

At the Lent Assizes for Taunton, in the county of Somerset, on 26th March, 1772, Hugh Lennard was indicted and tried before Mr. Justice Blackstone[7] on the statute of the 8 & 9 Will. III. c. 26, for High Treason, for having in his custody and possession, without any lawful authority or sufficient excuse, one mould made of lead, on which was made and impressed the figure, stamp, resemblance, and similitude of one of the sides or flats, viz. the head side, of a shilling. There was another count for having in his custody a mould on which was made (or impressed the figure, stamp, resemblance, and similitude of the reverse side of a shilling.

The prisoner alledged in his defence that he was a buttonmaker, and that this was a mould for the casting of buttons, but produced no evidence; and the fact of custody being clearly proved, the Jury found the prisoner guilty; but Mr. Justice Blackstone, there being no counsel for the prisoner, conceiving some doubts upon the case, respited the judgment in order to take the opinion of the twelve Judges.

The statute on which the indictment was framed enacts, “That whoever (other than the persons employed in the Mint) shall make or mend, or assist in making or mending, any puncheon, counter-puncheon, matrix, stamp, die, pattern or  mould, of any materials whatsoever, in or upon which there shall be, or be made or impressed, or which will make or impress the figure, stamp, resemblance, or similitude, of both or either of the sides or flats of any gold or silver coin current within this kingdom.” The Act then proceeds through a variety of other clauses, and concludes, “ or shall have in their houses, custody, or possession, any such puncheon, counter-puncheon, matrix, stamp, die (omitting the word mould), or other tool or instrument before-mentioned, shall be adjudged guilty of High Treason.”

The doubt of the learned Judge arose from the words pattern or mould being omitted in this latter clause of the Act, it being the particular clause upon which the indictment was framed. He therefore submitted the following points:

First, Whether the mould found in the custody of the prisoner is, comprized under the general words other tool or instrument before-mentioned, so as to make the unlawful custody of it High Treason?

Secondly, If it be so comprized, Whether it should not have been laid in theindictment to be a tool or instrument mentioned in the statute ?

On the first day of Easter Term all the Judges, except L. C. J. De Grey, met to consider this case: and they were unanimously of opinion, that this mould was a tool or instrument mentioned in the former part of the statute, and therefore comprized under these general words; and secondly, as a mould is expressly me tioned by name in the first clause of the Act which respects the making or mending, it need not be averred to be a tool or instrument so mentioned.

But after this opinion was given, a new doubt arose upon a different point in this case, which was:

Whether the mould which was found in the prisoner’s custody, it having only the resemblance of a shilling inverted, viz. the convex parts of the shilling being concave in the mould, and vice versa, the head or profile being turned the contrary way of the coin, and all the letters of the inscription reversed, was not properly an instrument which would make and impress the resemblance, stamp, &c. rather than an instrument on which the same were made and impressed, as laid in this indictment, the statute seeming to distinguish between such as will make and impress the similitude, &c. as the matrix, die, and mould; and such on which the same is made and impressed, as a puncheon, counter-puncheon, or pattern.

But on 19th June 1772, a great majority of the Judges were of opinion, that this evidence sufficiently maintained the indictment; because the stamp of the current coin was certainly impressed on the mould in order to form the cavities thereof. They agreed, however, that the indictment would have been more accurate, had it charged that “he had in his custody a mould that would make and impress the similitude,” and in this opinion some who otherwise doubted acquiesced.

The prisoner died in gaol before judgment could be pronounced upon him.

 

R. v. Dugdale
Queen’s Bench
[1853] 1 El. & Bl. 435

In some counts of an indictment, the defendant was charged with unlawfully and knowingly obtaining and procuring indecent and obscene prints and libels, in order and for the purpose of afterwards publishing and disseminating them. In other counts with unlawfully and knowingly preserving and keeping in his possession, indecent and obscene prints and libels, with the intent and for the purpose of afterwards publishing and disseminating them:—

Held, on writ of error, that the former counts were good, as the obtaining and procuring the indecent prints and libels, for the purpose alleged, was an act done in commencing a misdemeanor, and, therefore, an indictable offence. But that the latter counts were bad, as they alleged no act done, and the possession of the prints and libels may hare been come by innocently.

This was an indictment for a misdemeanor, upon which the defendant had been tried and found guilty at the General Sessions of the Peace for the county of Middlesex, and the record and proceedings had been removed into this court by writ of error.

The first count of the indictment alleged that the defendant “being a person of most wicked and depraved mind and disposition, and unlawfully and wickedly devising, contriving, and intending, as much as in him lay, to vitiate and corrupt the morals of the liege subjects of our said lady the queen, and to incite and encourage the said liege subjects to indecent, obscene, and immoral practices, and bring them to a state of wickedness, lewdness, and debauchery, heretofore, to wit, &c, unlawfully, wickedly, knowingly, wilfully, and designedly, and in order to effect and bring about such his most wicked devices and contrivances, did obtain and procure divers, to wit, 100 indecent, lewd, filthy, bawdy, and obscene prints, and divers, to wit, 100 indecent, lewd, filthy, bawdy, and obscene pictures, then and there respectively tending to scandalize and debase human nature, and then and there representing and exhibiting the persons of men and women, naked, and partly naked, in obscene and indecent attitudes, postures, and situations, in order, and for the purpose of afterwards, unlawfully and wickedly uttering, publishing, selling, and disseminating, and causing to be uttered, published, sold, and disseminated the said prints and pictures, to and amongst the liege subjects of our said lady the queen, and thereby contaminating, vitiating, and corrupting the morals of the said liege subjects, and bringing the said liege subjects to a state of wickedness, lewdness, debauchery, and immorality. In contempt,”.

The second count charged, that the defendant “unlawfully, wickedly, knowingly, wilfully, and designedly, did preserve and keep in his possession” divers other indecent, lewd, filthy, bawdy, and obscene prints and pictures, &c. (as in the first count,) “with the intent, and for the purpose of unlawfully and wickedly uttering, publishing, and disseminating the said last-mentioned prints and pictures, and causing the same to be uttered, sold, published, and disseminated,”. (as in the first count.)

There were several other counts in the same form, charging the obtaining and procuring, and preserving and keeping in possession certain obscene libels, in one or which a portion of one of the obscene libels was set out.

The errors assigned were, that it was not an indictable offence to procure obscene and indecent pictures, prints, and libels, for the purpose of afterwards unlawfully publishing and selling them. That it was also not an indictable offence to preserve and keep in possession such pictures, prints, or libels, for the like purpose.

Metcalfe, for the plaintiff in error. The counts charging as an offence the having possession of the prints and libels, with the intent of afterwards publishing and selling them, are clearly bad. The mere allegation of an intention to publish, without any act done, does not make the possession an offence. Any attempt to sell would be an offence, but nothing of the kind is alleged. The case of The King v.Sutton, 2 Str. 1074, in which it was held, that the having possession of coining tools, with the intent to impress sixpences, and to color and pass them off for half-guineas, was indictable, is overruled by the case of The King v. Heath, Russ. & R. 184, which decides, that having counterfeit silver in possession, with intent to utter it, there being no criminal act done, is no offence. This case is in point to show that this class of counts cannot be sustained. Then, as to the other class of counts, which charge the obtaining and procuring the prints and libels, with the same intent. They also cannot be sustained. It is difficult, no doubt, to distinguish them from the case of The King v. Fuller, Russ. &. R. 308, in which it was held, that procuring base coin, with intent to utter it as good, is a misdemeanor.

[Lord Campbell, C. J. That case seems in point, and as at present advised, I entirely concur in that decision, and highly approve of it.]

If these counts charge an offence at common law, the enactment in 14 & 15 Vict. c. 19, s. 1, could hardly have been necessary.[8] Another point here is, that this is an offence against public morals, and all that the indictment alleges is, an intent to publish, and by so doing to corrupt the public morals. There is no averment of the doing of any act by the defendant, such as could be considered an act against public morals.

[Lord Campbell, C. J. There is an allegation of what the words of one of the obscene libels are.]
But they remain in the defendant’s possession.
Clarkson (Bodkin with him) was not heard.

Lord Campbell, C. J. I am of opinion that on one class of counts the conviction must be affirmed. We have decisions to guide us as to both classes of counts. As to the first class, which allege simply that the party indicted had the prints in his possession, with intent to publish them, I think, upon the authority of The King v. Heath, those counts are bad; there is no act alleged to have been done, and the prints may have come innocently into his possession; and he might have had only for one moment any intention of making them public. That is not the commencing to commit a misdemeanor, and the case of The King v. Heath is in point. But with regard to the other counts for obtaining and procuring the indecent prints and libels, we have the decision of all the judges, in The King v. Fuller, in Easter term, 1816, when it is reported the judges met, and were of opinion that the procuring counterfeit coin, with intent to utter it, was an offence. Applying the principle of that decision to this case, it is equally a misdemeanor to procure indecent prints with the intention of publishing them. The publication of such prints is forbidden by the common law of England, and procuring them, with the intention to publish them, is an overt act done in commencing a misdemeanor. I have, therefore, no doubt in saying that these counts are good, and that the conviction must be affirmed.

Coleridge, J. I am of the same opinion. The law does not take cognizance of mere intent; but the circulation of indecent prints, which contaminate public morals, is a misdemeanor, and one of the first steps in committing it, is the procuring the prints, and it is impossible to say that is not an act done towards the completion of the offence.

Wightman, J., and Crompton, J., concurred.

Conviction affirmed

* * *

LRCC § 2(3) (comment)

* * *

MPC § 2.01(4)

* * *

Markus D. Dubber, “Policing Possession: The War on Crime and the End of Criminal Law,” 91 J. Crim. L. & Criminology 829 (2002)

Possession is not a conduct offense. As commentators have pointed out for centuries, possession is not an act, it is a state of being, a status.[9] To possess something is to be in possession of it.

To dismiss possession simply on the ground that it violates the so-called act requirement … , however, would be premature. The act requirement, from the outset, applied to common law offenses only, i.e., to offenses that traced their origins back through a grand chain of common law precedents, rather than to a specific statute that created a new offense. . . . English judges from very early on threw out possession indictments as violative of the act requirement only if they alleged a common law offense of possession, rather than invoked a statutory possession provision. Once it was settled that the possession indictment was brought under one of the increasing number of possession statutes, the common law’s act requirement was no longer an issue.[10] The act requirement was as irrelevant to statutory possession as the mens rea requirement was to “statutory” rape.[11]

… Then there is the [often professed] uneasiness regarding omission offenses [in the common law of crimes]. Absent a clear duty to act, the failure to act is not criminal. If possession isn’t an act, perhaps one should think of it as an omission, the omission to get rid of the item one possesses. But what is the duty that compels me to drop the shiny new pistol that my friend has just bought himself at the local gun store, or to toss out the baggie of cocaine I noticed in the glove compartment of my rental car?  If one looked hard enough, perhaps one could find such a duty nestled in the criminalization of a possession that is defined as the failure to end it. But the point of requiring a specific duty for omission liability, the significance of the general unwillingness to criminalize omission, is precisely to reject omission liability absent specific and unambiguous provisions to the contrary.

 

3.         Varieties of Possession

a.   actual (physical)

 

R. v. Hess
British Columbia Court of Appeal
[1948] B.C.J. No. 65

1 O’HALLORAN J.A.:—Three little girls found a parcel near the sidewalk by a sign post at the intersection of 14th Avenue and Manitoba Street in Vancouver. One of them had tripped over it. They broke it open and brought it home to the mother of one of them. Suspecting narcotic drugs the mother telephoned the police. The police removed most of the drugs, and put the parcel back at the same spot near the sign post, and kept watch from a garage about 50 feet away.
2     About 1:15 p.m. the following afternoon, two men (Kushman and the appellant Hess) came along the other side of Manitoba Street and crossed the intersection diagonally after looking up and down the street several times. Arriving at the sign post they looked in all directions and then both looked at the base of the sign post. Hess bent down and Kushman stooped over. Hess picked up the parcel and began to open it with Kushman looking on, when the three officers in the garage rushed them, knocking Hess down and the parcel flew out of his hands. Both men were arrested. They were charged under s. 4(1) (d) of The Opium and Narcotic Drug Act, 1929, c. 49, {now the relevant statute is TheControlled Drugs and Substances Act} with having narcotic drugs in their possession, and were tried together before Magistrate McInnes. The defence called no evidence, maintaining the prosecution case was insufficient. Both men were convicted. Kushman was sentenced to seven years’ imprisonment and a fine. Hess, who had admitted being a drug addict, was sentenced to three years’ imprisonment and a fine.
3     Kushman’s conviction was quashed by this Court (Sloan C.J.B.C., O’Halloran and Sidney Smith JJ.A., the latter dissenting) on 29th November 1948, for reasons which appear in Rex v. Kushman, 7 C.R. 291, [1949] 1 W.W.R. 24, 93 C.C.C. 231. For the purposes of that decision it was assumed that Hess was in possession of the drugs in accordance with his conviction which was not then before this Court. The Hess appeal was heard on 20th December and judgment was given quashing the conviction on 22nd December with the intimation written reasons would be handed down later.
4     In addition to the facts already stated it is noteworthy that the evidence is entirely consistent with the two men being casual finders of the parcel. The parcel was not hidden in a way that it could be found only by a person who knew in advance where it was. The police officers could see it from the garage 50 feet away (pp. 37 and 40). Constable Carter testified (p. 28) that a person walking along the street would have no difficulty seeing it; “if they looked at all, they couldn’t help seeing it.” Nor is there any evidence from which it may be inferred that Hess was sent by some one to pick up the parcel or was directed to it in advance by any one. Moreover the parcel was picked up in broad daylight in the middle of the day at an intersection of two streets; and when Hess picked it up he did not immediately walk away. Instead he remained where he was and opened it up at the street intersection.
5     Counsel for the appellant argued that the manual handling by Hess was not “possession” within the meaning of s. 4(1) (d) of The Opium and Narcotic Drug Act, 1929, since the surrounding circumstances negatived any inferences that he went there to pick up the parcel of drugs or that he had any knowledge what it was. Appellant’s counsel submitted the surrounding circumstances pointed overwhelmingly to the inference that Hess was a casual finder in the same way the little girls were who found the parcel the day before. In conjunction with this submission it was urged that the precipitate action of the police in rushing Hess while he was in the course of opening the parcel destroyed the prosecution’s foundation for inferences which the subsequent conduct of the two men might perhaps otherwise have furnished.
6     To constitute “possession” within the meaning of the criminal law it is my judgment that where, as here, there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control (outside public duty). When these three elements exist together, I think it must be conceded that under s. 4(l)(d) it does not then matter if the thing is retained for an innocent purpose. It is “possession” in this sense that is the offence under s. 4, and when it is proved it matters not if there was no intention to break the law. But the issue in this appeal is one which is antecedent to any question of mens rea. For once possession is established in this sense the purpose of the statute makes it clear that mens rea is not an essential. If Hess, knowing the parcel to contain drugs, gave it to a friend, or took it to his room, he would in my opinion be guilty of possession. But if, before or after learning what the parcel contained, he took it down to the police station and handed it in with an explanation of how he found it (which I regard as a public duty) in my opinion he would not be guilty of possession.
7     It is not easy to find in the decisions any clear-cut statement of what constitutes possession under all circumstances without exception. It may be extremely difficult to formulate any such description or definition which is universally embracing. But in my view the elements of possession to which I have referred are implicit in the statute as well as in the leading decisions which have had occasion to examine any of the many aspects of the subject. I do not find that the precise point in the form presented by this case has arisen in a leading decision. If knowledge of what the thing is were not an essential element, then we would have the ridiculous result that the children who found the parcel in the first place, and brought it home to the mother, would by that act alone be automatically guilty of possession under s. 4(l)(d), and be compulsorily subject to a minimum of six months’ imprisonment with a substantial fine. Even with knowledge of what the thing is, if some act of control (outside public duty) is not essential, then we would have the equally ridiculous result that the little girl’s mother, who received the parcel of drugs and telephoned the police, would be automatically guilty of possession under s. 4(l)(d), and compulsorily subject to imprisonment and a substantial fine.
8     I cannot satisfy myself that Parliament intended “possession” in s. 4 to be interpreted in a way to produce the foregoing absurd results, by eliminating the elements of knowledge and some act of control (outside public duty), and thus making manual handling simpliciter a crime. When s. 4(l)(d) was first introduced in the House of Commons, if a member had inquired if “possession” as there found was to include manual handling as exemplified in the examples of the little girl and the mother in this case, the Minister of Justice would undoubtedly have assured the House that it did not. It may be said that legislation may not be avoided because its language produces absurd results. But we know that the purpose or intent of Parliament is not to produce absurd results. Parliament cannot be presumed to act unreasonably or absurdly.
9     If words employed in a statute seem to achieve that result it is a strong ground for concluding that Parliament did not intend the words should be construed in the sense which brings that about. Words are not mechanical things; they mean little in themselves. They are vehicles of meaning and not self-contained things. They reflect shades of meaning. The same word may even have opposite meanings. The very concept of interpretation connotes the introduction of elements extrinsic to the words themselves. The reasonableness or unreasonableness conveyed by the language of the statute may be examined for the purpose of interpreting the applicable meaning of the terms-it employs to all the differing circumstances to which it is directed….
12     If I have stated correctly the essential elements of possession in a case where the testimony is restricted to the extent that it is against Hess, the questions then arise whether there are objective facts in evidence from which it may be inferred (a) that Hess knew what the parcel contained before he opened it; (b) that, once Hess learned what it was, he exercised any act of control (outside public duty). For reasons presently stated, I must conclude that no such inferences are legitimate in this case. In Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152, 108 L.J.K.B. 779, Lord Wright discussed the distinction in a civil case between legitimate inference and conjecture or speculation. But even if in a civil case these inculpatory inferences could be drawn (which I do not concede) equally with the exculpatory inferences, nevertheless in a criminal case, under the principle in Hodge’s Case (1838), 2 Lewin C.C. 227, 168 E.R. 1136, the objective facts must point to the inculpatory inferences conclusively, and be incapable of any rational inferences excluding guilt.
13     To my mind if we approach the case with the presumption of innocence in favour of Hess as we must, and would do so in the case of, say, the mayor of Vancouver, there is nothing whatever in the record from which it may be legitimately inferred that Hess knew what was in the parcel before he picked it up. He and Kushman looked around before they crossed the intersection. But that is consistent with ordinary conduct in watching traffic as was readily admitted by Constable Carter (p. 28) and Corporal Downey (p. 39). They looked around again before Hess picked up the parcel. That is a circumstance of suspicion, but of suspicion only; it is consistent with the conduct of that kind of an individual who will steal anything he sees if he thinks he is unobserved. The parcel was not hidden; it was not secreted in some place where only a person who knew where it was could go directly to the spot. It was placed near a sign post at the street intersection, and hence the act of crossing the street at the intersection was not in itself significant, as it would have been perhaps if the men had crossed in the middle of the block for example and had gone directly to a cache hidden in a garage.
14     As already mentioned the evidence is clear it was visible from the street. Moreover the conduct of Hess after he picked up the parcel clearly negatives even conjecture or suspicion that he knew what it was. Drug addicts and pedlars are notoriously wily as we learn from the evidence in cases constantly before this Court. If Hess knew what the parcel contained it is unlikely he would have come there in broad day-light and picked it up. Even then one would have expected him to put it in his pocket and get away from there without delay. The circumstance that he stayed at the spot to open the parcel is significant. It is a convincing external reflection of what was in his mind as related to his prior knowledge or lack of knowledge of what was in the parcel. Coming to pick up a cache by pre-arrangement, he would be expected to be alert and constantly on the lookout. But instead he opened the parcel then and there at a street intersection and the police officers although within the line of vision of both men were able to come from a point 50 feet away and take them both by surprise. If Hess had known what was in the parcel there was no occasion for him to open it there. Again the circumstance that he was a drug addict would be all the more reason for him not to open it at the spot if he knew what it was, but to get away from there quickly.
15     Next, when Hess picked up the parcel and opened it, did he exercise any act of control over it? Unfortunately the precipitate act of the police has deprived the Court of any assistance from this source. The police knocked the parcel out of his hands, while he was still looking at it, and obviously still in the state of finding out what it really was. If the officers had deferred action for even a few minutes, and kept the two men under observation the case might have been quite different. The actions of the two men thereafter ought to have provided evidence one way or the other which does not now exist. What Hess would have done with the drugs once he knew they were drugs was left in the future. The accused must commit the crime before he can be convicted of committing it.
16     For the foregoing reasons I must conclude no objective facts were presented in evidence from which it may be legitimately inferred that Hess had knowledge of what the parcel contained, or that after he had opened it and found what it was, he exercised any act of control over it. He was given no opportunity to do so. But even if it could be said that there is any foundation for such inferences, they are not strong enough in my opinion for reasons stated to point only to guilt as they must under Hodge’s principle, supra. The precipitate action of the police has left the evidence in a state where in my view a rational hypothesis of innocence cannot be excluded.
17     The drug traffic is serious on this Pacific coast, but that is all the more reason that cases against persons accused of offences thereunder shall be thoroughly prepared. Established principles of criminal law cannot be strained to the point that a man who is a known addict may be convicted of “possession” solely on evidence that he is an addict. If it were the statutory intention to punish addicts because they are addicts the statute would have said so explicitly. An addict is naturally surrounded with the certainty that he is getting drugs from some source. But that source is shrouded in suspicion until it is established by legal proof. Hence in such a case the duty is all the greater upon the Court as the law now stands to preserve the balance between legal proof and suspicion or conjecture as such. If the mayor of Vancouver had picked up the parcel under the circumstances of this case, in my opinion no suspicion would have attached to him, and the transparent weakness of the prosecution case would have been evident at once.
18     In the absence of testimony to crystallize suspicion into legal proof, it is my judgment the conviction cannot be sustained. I would quash the conviction, and allow the appeal accordingly.

 

* * *

R. v. Beaver
Supreme Court of Canada
[1957] S.C.R. 531

The judgment of Rand, Locke and Cartwright JJ. was delivered by
CARTWRIGHT J.: … It is not necessary to set out the facts in detail. There was evidence on which it was open to the jury to find (i) that Max Beaver sold to a police officer, who was working under cover, a package which in fact contained diacetylmorphine, (ii) that the appellant [Louis Beaver] was a party to the sale of the package, (iii) that while the appellant did not have the package on his person or in his physical possession he and Max Beaver were acting jointly in such circumstances that the possession which the latter had of the package was the possession of both of the accused, and (iv) that the appellant had no knowledge that the substance contained in the package was diacetylmorphine and believed it to be sugar of milk.

The learned trial judge, against the protest of the appellant, charged the jury, in effect, that if they were satisfied that the appellant had in his possession a package and sold it, then, if in fact the substance contained in the package was diacetylmorphine, the appellant was guilty on both counts, and that the questions (i) whether he had any knowledge of what the substance was, or (ii) whether he entertained the honest but mistaken belief that it was a harmless substance were irrelevant and must not be considered. …
The problem is one of construction of the Opium and Narcotic Drug Act, R.S.C. 1952, c. 201 {since replaced by Controlled Drugs and Substances Act (S.C. 1996, c. 19)}, and particularly the following sections, which at the date of the offences charged read as follows:

4. (1) Every person who...

(d)       has in his possession any drug save and except under the authority of a licence from the Minister first had and obtained, or other lawful authority;...
(f)        manufactures, sells, gives away, delivers or distributes or makes any offer in respect of any drug, or any substance represented or held out by such person to be a drug, to any person without first obtaining a licence from the Minister, or without other lawful authority;...

is guilty of an offence, and is liable

(i) upon indictment, to imprisonment for any term not exceeding seven years and not less than six months, and to a fine not exceeding one thousand dollars and not less than two hundred dollars, and in addition, at the discretion of the judge, to be whipped; or
(ii) upon summary conviction, to imprisonment with or without hard labour for any term not exceeding eighteen months and not less than six months, and to a fine not exceeding one thousand dollars and not less than two hundred dollars.

(2) Notwithstanding the provisions of the Criminal Code, or of any other statute or law, the court has no power to impose less than the minimum penalties herein prescribed, and shall, in all cases of conviction, impose both fine and imprisonment;...

11.     (1) No person shall, without lawful authority or without a permit signed by the Minister or some person authorized by him in that behalf, import or have in his possession any opium pipe, opium lamp, or other device or apparatus designed or generally used for the purpose of preparing opium for smoking, or smoking or inhaling opium, or any article capable of being used as or as part of any such pipe, lamp or other device or apparatus.
(2) Any person violating the provisions of this section is liable, upon summary conviction, to a fine not exceeding one hundred dollars, and not less than fifty dollars, or to imprisonment for a term not exceeding three months, or to both fine and imprisonment.

15. Where any person is charged with an offence under paragraph (a), (d), (e), (f), or (g) of subsection (1) of section 4, it is not necessary for the prosecuting authority to establish that the accused had not a licence from the Minister or was not otherwise authorized to commit the act complained of, and if the accused pleads or alleges that he had such licence or other authority the burden of proof thereof shall be upon the person so charged.

17. Without limiting the generality of paragraph (d) of subsection (1) of section 4, any person who occupies, controls, or is in possession of any building, room, vessel, vehicle, enclosure or place, in or upon which any drug or any article mentioned in section 11 is found, shall, if charged with having such drug or article in possession without lawful authority, be deemed to have been so in possession unless he prove that the drug or article was there without his authority, knowledge or consent, or that he was lawfully entitled to the possession thereof.

In the course of the argument counsel also referred to the following provisions of other statutes of Canada:

The Interpretation Act, R.S.C. 1952, c. 158, s. 28(1):
28(1) Every Act shall be read and construed as if any offence for which the offender may be

  1. (a) prosecuted by indictment, howsoever such offence may be therein described or referred to, were described or referred to as an indictable offence;
  2. (b) punishable on summary conviction, were described or referred to as an offence; andall provisions of the Criminal Code relating to indictable offences, or offences, as the case may be, shall apply to every such offence.

The Criminal Code, R.S.C. 1927, c. 36, s. 5 {now s. 4(3)}:

5. In this Act, unless the context otherwise requires,...

(b) having in one’s possession includes not only having in one’s own personal possession, but also knowingly,
(i) having in the actual possession or custody of any other person, and
(ii) having in any place, whether belonging to or occupied by one’s self or not, for the use or benefit of one’s self or of any other person.

2. {now s. 4(3)(b)}If there are two or more persons, and any one or more of them, with the knowledge and consent of the rest, has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.


It may be of assistance in examining the problem to use a simple illustration. Suppose X goes to the shop of Y, a druggist, and asks Y to sell him some baking-soda. Y hands him a sealed packet which he tells him contains baking-soda and charges him a few cents. X honestly believes that the packet contains baking-soda but in fact it contain heroin. X puts the package in his pocket takes it home and later puts it in a cupboard in his bathroom. There would seem to be no doubt that X has had actual manual and physical possession of the package and that he continues to have possession of the package while it is in his cupboard. The main question raised on this appeal is whether, in the supposed circumstances, X would be guilty of the crime of having heroin in his possession?

It will be observed at once that we are not concerned with the incidence of the burden of proof or of the obligation of adducing evidence. The judgment of the Court of Appeal states the law to be that X must be convicted although he proves to the point of demonstration that he honestly believed the package to contain baking-soda.

The rule of construction has often been stated.

In The Company of Proprietors of the Margate Pier v. Hannam et al. [(1819), 3 B. & Ald. 266 at 270, 106 E.R. 661.], Lord Coke is quoted as having said:

Acts of Parliament are to be so construed as no man that is innocent, or free from injury or wrong, be by a literal construction punished or endamaged.
In The Attorney General v. Bradlaugh [(1885), 14 Q.B.D. 667 at 689-90.], Brett M.R. said:

Now, to my mind, it is contrary to the whole established law of England (unless the legislation on the subject has clearly enacted it), to say that a person can be guilty of a crime in England without a wrongful intent -- without an attempt to do that which the law has forbidden. I am aware that in a particular case, and under a particular criminal statute, fifteen judges to one held that a person whom the jury found to have no intent to do what was forbidden, and whom the jury found to have been deceived, and to have understood the facts to be such that he might with impunity have done a certain thing, was by the terms of that Act of Parliament guilty of a crime, and could be imprisoned. I say still, as I said then, that I cannot subscribe to the propriety of that decision. I bow to it, but I cannot subscribe to it: But the majority of the judges forming the Court so held because they said that the enactment was absolutely clear.

In Reynolds v. G.H. Austin & Sons Ld. [[1951] 2 K.B. 135, [1951] 1 All E.R. 606.], Devlin J. says at pp. 147-8:
It has always been a principle of the common law that mens rea is an essential element in the commission of any criminal offence against the common law. In the case of statutory offences it depends on the effect of the statute. In Sherras v. De Rutzen, [1895] 1 Q.B. 918, 921, Wright J., in his well-known judgment, laid it down that there was a presumption that mens rea was an essential ingredient in a statutory offence, but that that presumption was liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it dealt... .Kennedy, L.J. in Hobbs v. Winchester Corporation, [1910] 2 K.B. 471, 483, thought that in construing a modern statute this presumption as to mens rea did not exist. In this respect, as he said, he differed from Channell, J., in the court below. But the view of Wright J., in Sherras v. De Rutzen has consistently been followed. I need refer only to the dictum of Lord Goddard, C.J., in Harding v. Price, [1948] 1 K.B. 695,700: “The general rule applicable to criminal cases is actus non facit reum nisi mens sit rea, and I venture to repeat what I said in Brend v. Wood (1946), 62 T.L.R. 462, 463: ‘It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind’.”
In Regina v. Tolson [(1889), 23 Q.B.D. 168.], Stephen J. says at p. 188:

...I think it may be laid down as a general rule that an alleged offender is deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence.

I am unable to suggest any real exception to this rule, nor has one ever been suggested to me.
and adds at p. 189:
Of course, it would be competent to the legislature to define a crime in such a way as to make the existence of any state of mind immaterial. The question is solely whether it has actually done so in this case.

I adhere to the opinion which, with the concurrence of my brother Nolan, I expressed in The Queen v. Rees (2), that the first of the statements of Stephen J. quoted above should now be read in the light of the judgment of Lord Goddard C.J., concurred in by Lynskey and Devlin JJ., in Wilson v. Inyan [[1951] 2 K.B. 799, [1951] 2 All E.R. 237.], which, in my opinion, rightly decides that the essential question is whether the belief entertained by the accused is an honest one and that the existence or non-existence of reasonable grounds for such belief is merely relevant evidence to be weighed by the tribunal of fact in determining that essential question.

In Watts and Gaunt v. The Queen (4), Estey J. says:

While an offence of which mens rea is not an essential ingredient may be created by legislation, in view of the general rule a section creating an offence ought not to be so construed unless Parliament has, by express language or necessary implication, disclosed such an intention.

When the decisions as to the construction of the Opium and Narcotic Drug Act on which the respondent relies are examined it appears that two main reasons are assigned for holding that mens rea is not an essential ingredient of the offence created by s. 4(1)(d), these being (i) the assumption that the subject-matter with which the Act deals is of the kind dealt with in the cases of which Hobbs v. Winchester Corporation [[1910] 2 K.B. 471.] is typical and which are sometimes referred to as “public welfare offence cases”, and (ii) by implication from the wording of s. 17 of the Act.

As to the first of these reasons, I can discern little similarity between a statute designed, by forbidding the sale of unsound meat, to ensure that the supply available to the public shall be wholesome, and a statute making it a serious crime to possess or deal in narcotics; the one is to ensure that a lawful and necessary trade shall be carried on in a manner not to endanger the public health, the other to forbid altogether conduct regarded as harmful in itself. As a necessary feature of his trade, the butcher holds himself out as selling meat fit for consumption; he warrants that quality; and it is part of his duty as trader to see that the merchandise is wholesome. The statute simply converts that civil personal duty in to a public duty.

A few passages from the judgment in Hobbs v. Winchester Corporation will show the view taken of the purpose of the legislation there under consideration:

Cozens-Hardy M.R., at p. 476:

Before reading the material words of these sections it is perhaps convenient to indicate what is the plain and apparent object of the Act with regard to the sale of unsound meat. The object is to prevent danger to the public health by the sale of meat for human consumption in a state or condition in which it is dangerous to human health.

Farwell L.J., at p. 481:

Who is to take the risk of the meat being unsound, the butcher or the public? In my opinion the Legislature intended that the butcher should take the risk and that the public should be protected, irrespective of the guilt or innocence of the butcher. The knowledge or possible means of knowledge of the butcher is not a matter which affects the public; it is the unsound meat which poisons them; and I think that the Legislature intended that the butcher should sell unsound meat at his peril.

Kennedy L.J., at pp. 484-5:

A man takes upon himself to offer goods to the public for their consumption with a view to making a profit by the sale of them. Those goods may be so impregnated with disease as to carry death or at any rate serious injury to health to any one consuming them. To say that the difficulty of discovering the disease is a sufficient ground for enabling the seller to excuse himself on the plea that he cannot be reasonably expected to have the requisite technical knowledge or to keep an analyst on his premises, is simply to say that the public are to be left unprotected and must submit to take the risk of purchasing an article of food which may turn out to be dangerous to life or health. I think that the policy of the Act is this: that if a man chooses for profit to engage in a business which involves the offering for sale of that which may be deadly or injurious to health he must take that risk, and that it is not a sufficient defence for any one who chooses to embark on such a business to say “I could not have discovered the disease unless I had an analyst on the premises.”

Assuming that Hobbs v. Winchester Corporation was rightly decided I do not think that its reasoning supports the decision of the Court of Appeal in the case at bar. The difference between the subject-matter of the legislation there considered and that of the Act with which we are concerned is too wide.

As to the second reason, the argument is put as follows: Using again the illustration I have taken above, it is said (i) that the words of s. 17 would require the conviction of X if the package was found in his bathroom cupboard “unless he prove that [it] was there without his authority, knowledge or consent”, that is, he is prima facie presumed to be guilty but can exculpate himself by proving lack of knowledge, and (ii) that since no such words as “unless he prove that the drug was in his possession without his knowledge” are found in s. 4(1)(d) it must be held that Parliament intended that lack of knowledge should be no defence.

In my view all that s. 17 accomplishes, still using the same illustration, is, on proof that the package was in his cupboard, to shift to X the onus of proving that he did not have possession of the package. To this X would answer: “Of course I had possession of the package, I bought it, paid for it, carried it home and put it in my cupboard. My defence is that I thought it contained baking-soda. I had no idea it contained heroin.” If it be suggested that X could not usefully make this reply if what was found in his house was not a sealed package but an article of the sort described in s. 11 the answer would appear to be that many persons might not recognize an opium lamp or an article capable of being used as part of such a lamp. The wording of s. 17 does not appear to me to compel the Court to construe s. 4 as the Court of Appeal has done. It still leaves unanswered the question: Has X possession of heroin when he has in his hand or in his pocket or in his cupboard a package which in fact contains heroin but which he honestly believes contains only baking-soda? In my opinion that question must be answered in the negative. The essence of the crime is the possession of the forbidden substance and in a criminal case there is in law no possession without knowledge of the character of the forbidden substance. Just as in Regina v. Ashwell [(1885), 16 Q.B.D. 190.] the accused did not in law have possession of the complainant’s sovereign so long as he honestly believed it to be a shilling so in my illustration X did not have possession of heroin so long as he honestly believed the package to contain baking-soda. The words of Lord Coleridge C.J. in Regina v. Ashwell at p. 225, quoted by Charles J. delivering the unanimous judgment of the Court of Criminal Appeal in Rex v. Hudson [[1943] 1 K.B. 458 at 462, [1943] 1 All E.R. 642, 29 Cr. App R. 65.]:

In good sense it seems to me he did not take it till he knew what he had got; and when he knew what he had got, that same instant he stole it.; might well be adapted to my illustration to read: “In good sense it seems to me he did not have possession of heroin till he knew what he had got.”

In my view the law is correctly stated in the following passage in the judgment of O’Halloran J.A., with whom Robertson J.A. concurred, in Rex v. Hess [[1949] 1 W.W.R. 577 at 579, 94 C.C.C. 48 at 50-1, 8 C.R. 42.]:

To constitute “possession” within the meaning of the criminal law it is my judgment that where, as here, there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these element must be co-existent with some act of control (outside public duty). When those three elements exist together, I think it must be conceded that under sec. 4(1)(d) it does not then matter if the thing is retained for an innocent purpose.
If the matter were otherwise doubtful I would be drawn to the conclusion that Parliament did not intend to enact that mens rea should not be an essential ingredient of the offence created by s. 4(1)(d) by the circumstance that on conviction a minimum sentence of 6 months’ imprisonment plus a fine of $200 must be imposed. Counsel informed us that they have found no other statutory provision which has been held to create a crime of strict responsibility, that is to say, one in which the necessity for mens rea is excluded, on conviction for which a sentence of imprisonment is mandatory. …

It would, of course, be within the power of Parliament to enact that a person who, without any guilty knowledge, had in his physical possession a package which he honestly believed to contain a harmless substance such as baking-soda but which in fact contained heroin, must on proof of such facts be convicted of a crime and sentenced to at least 6 months’ imprisonment; but I would refuse to impute such an intention to Parliament unless the words of the statute were clear and admitted of no other interpretation. To borrow the words of Lord Kenyon in Fowler v. Padget [(1798), 7 Term Rep. 509 at 514, 101 E.R. 1103.]:

I would adopt any construction of the statute that the words will bear, in order to avoid such monstrous consequences as would manifestly ensue from the construction contended for...

… For the above reasons I would quash the conviction on the charge of having possession of a drug.

b.   constructive

                        (i) personal

 

R. v. Christie
New Brunswick Supreme Court—Appeal Division
[1978] N.B.J. No. 68

1 HUGHES, C.J.N.B.:—This is an appeal by counsel acting on the instructions of the Attorney General of Canada against the judgment of His Honour Judge Abbis delivered September 15, 1977, acquitting the respondent on a charge that on or about July 8, 1977, at the City of Fredericton she did unlawfully have in her possession a narcotic, to wit: Cannabis (marijuana) for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act{now s. 5(2) Controlled Drugs and Substances Act}.

5     The evidence given by the Crown witnesses at the preliminary inquiry was to the following effect:

“Corporal Donald Hanscom of the Fredericton City Police Department investigated an accident at the corner of Westmorland and Aberdeen Streets in the City of Fredericton at approximately 10:30 p.m. on July 8, 1977. The accused, Norma Jean Christie, was pinned in a small car behind the steering wheel and was the only occupant thereof. The trunk appeared to be down and closed and the rear of the car was undamaged. The front was badly damaged from its collision with another car and with the verandah of a house against which it had come to rest. It took twenty minutes to release the accused and she was taken to the Dr. Everett Chalmers Hospital. This witness pushed the trunk button and it opened without a key as he was looking for a tire jack to change a tire on the car to allow it to be moved by a wrecker. When he examined the trunk’s contents he noticed money wrapped in brown paper lodged behind an electrical cable clipped onto the side of the trunk wall. The money was in two lots. One lot wrapped in brown paper contained $ 50.00 in cash and a cheque payable to the accused for $ 25.00, the other contained eleven 20 dollar bills and one 10 dollar bill for a total of $ 230.00. The witness found six bags of marijuana in a brown paper bag about four inches from the money. It was partially covered by one of the three tires in the trunk. The drugs and money were delivered by the witness to Constable Mark Fleming of the R.C.M.P. at approximately 11:20 p.m.

Constable Basil Hobbs, a law student and summer constable with the City Police Force testified he and Constable Vickers answered an accident call and arrived at 10:13 p.m. at the intersection of Westmorland and Aberdeen Streets. He accompanied the accused to the hospital and soon thereafter arrested her and warned her with the standard police precautionary warning.

Constable Mark Fleming, a member of the R.C.M.P. Drug Section, received the exhibits from Corporal Hanscom on the night of July 8 and later arranged for their analysis which proved to be Cannabis (marijuana).

The Crown closed its case against the accused to prove possession following the procedure of section 8 of the Act.”
6     The accused then gave evidence before the trial Judge. She stated she was 39 years of age and lived at the time of the alleged offence on Oak Avenue which is on the north side of the river within the City of Fredericton. She was employed by Central Mortgage and Housing Corporation and was living separate from her husband who lived in Bathurst. A 15 year old daughter was living with her and another daughter, 16, was living with her husband. The accused testified that on the weekend of July 2nd to 4th she had visited Bathurst with her younger daughter, that her car was used by her older daughter that weekend in taking driving instructions. She said it was her practice to leave the keys in her car.
7     She said on July 8 she loaned the car to Allison Brewer, a daughter of her friend, Jacqueline Webster, who was hospitalized at the time. She had, in fact, visited Jacqueline Webster early that evening and Mrs. Webster had given her the $25.00 cheque which she had received from a friend of the accused from Bathurst. The accused stated that on the evening of July 8 she intended to join friends for a swim at the Diplomat Motel in Fredericton and that upon arriving at the motel she put her money and cheque in a brown paper bag containing a novel in the trunk of the car to ensure its safety. In the process of doing so she noticed another brown bag in the trunk. As soon as she realized it contained marijuana, she slammed the trunk closed and entered the motel and stated she desired to obtain counsel from her friends as she feared her children were involved with drugs. Her friends did not arrive at the motel as she had expected and she left and drove to her home on Oak Avenue for the purpose of contacting her children or other friends for counsel, but without success. She stated she then drove around the city looking for some of her friends - on Charlotte Street, at the Press Club on St. John Street and thence along Westmorland Street to where the accident occurred. In the process she had stopped for gas at the Waterloo Esso Service Station.
8     The accused estimated that from the time she discovered the drugs in the trunk of her car until the accident approximately one hour had elapsed. The owner of the drugs was never found. The accused alleged that she was in a state of panic and feared drug involvement by her children as an explanation for her conduct.
9     On cross-examination she admitted she was the registered owner and driver of a motor vehicle which was involved in the accident; that at the time of the accident she had no real reason to suspect her daughter’s involvement with drugs other than normal parental worries about teenagers; that she did not think about calling the police when she discovered the drugs in her car; that at one time she was a free lance writer in Bathurst and knew something about the court system; that the trunk of her car locked automatically when she slammed it closed following the finding of the drugs; that she had tried marijuana herself 5 years previously; that she gave no thought of consulting legal counsel for any help agency such as Chimo when she was at the Diplomat Motel; that she had never found narcotics in her car before; and that the owner of the drugs is unknown.
13     The learned trial Judge adjourned the hearing for 2 days when he delivered an oral judgment in which he reviewed certain parts of the evidence stating he found the accused knew the marijuana in her car was Cannabis, that she could have destroyed the substance but that she simply neglected to do anything noting she stated that she panicked and did not know what to do. …The learned trial Judge concluded:
“In sum, I do not think that the defendant consented to the possession of the drug, and that her lack of consent applies to “personal possession” in the Criminal Code, Section 3(4)(a){now s. 4(3)(a)}, as well as to the other aspects of possessions.”
16     In my opinion there was ample evidence upon which the learned trial Judge could have convicted the accused of possession of a narcotic, but he took a view of the facts which led him to the opposite conclusion holding there was reasonable doubt as to the guilt of the accused. To entitle this Court to reverse that finding we would have to conclude that the evidence which the accused gave at trial is conclusive as to her guilt of possession of a narcotic. In Rex v. Hess (No. 1) O’Halloran, J.A., said at p. 51:
“It is not easy to find in the decisions any clear cut statement of what constitutes possession under all circumstances without exception. It may be extremely difficult to formulate any such description or definition which is universally embracing. But in my view the elements of possession to which I have referred are implicit in the statute as well as in the leading decisions which have had occasion to examine any of the many aspects of the subject. I do not find that the precise point in the form presented by this case has arisen in a leading decision. If knowledge of what the thing is were not an essential element, then we would have the ridiculous result that the children who found the parcel in the first place and brought it home to the mother, would by that act alone be automatically guilty of possession under s. 4(1)(d), and be compulsorily subject to a minimum of 6 months’ imprisonment with a substantial fine. Even with knowledge of what the thing is, if some act of control (outside public duty) is not essential, then we would have the equally ridiculous result that the little girl’s mother who received the parcel of drugs and telephoned the police, would be automatically guilty of possession under s. 4 (1)(d) and compulsorily subject to imprisonment and a substantial fine.

I cannot satisfy myself that Parliament intended “possession” in s. 4 to be interpreted in a way to produce the foregoing absurd results, by eliminating the elements of knowledge and some act of control (outside public duty), and thus making manual handling simpliciter a crime.”
19     In my opinion there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he has not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think such a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession. In the instant case the accused contended, under oath, that she was panic stricken and did not know what she should do when she found the narcotic in the trunk of her car, and that she drove around the City for about an hour before the accident in an attempt to find some of her friends from whom she might obtain advice as to what she should do with it. While the evidence is extremely suspicious, I cannot say that the learned trial Judge erred in failing to convict the accused if he had a reasonable doubt as to whether she intended to exercise dominion or control over the narcotic.
20     For the foregoing reasons I would dismiss the appeal.


(ii) joint

 

R. v. Chambers
Supreme Court of Ontario - Court of Appeal
[1985] O.J. No. 143

The judgment of the Court delivered by
MARTIN J.A.:—The respondent, Sandra Chambers, was jointly charged with Rafael Cardenas on count one in an information alleging that on February 24, 1984, they unlawfully had in their possession a narcotic, to wit: cocaine, for the purpose of trafficking. The respondent, following a preliminary hearing, was committed for trial on that charge. On October 9, 1984, Mr. Justice Gray quashed the respondent’s committal for trial on the ground that there was no evidence that the applicant, Sandra Chambers, was in possession of the cocaine which was the subject of the charge, and that there was no evidence that she aided or abetted the possession of the cocaine by her co-accused, Rafael Cardenas.

The Crown adduced the following evidence at the preliminary hearing. On Friday, February 24, 1984, at 7:15 p.m. Constable Ralph Brookes, assisted by other officers from Number 5 District Drug Squad, executed a warrant to search “the dwelling house of Ralph Cardines (sic) and person(s) unknown at 106 Rhodes Avenue, Toronto” for the narcotic cocaine….

The respondent opened the door in response to the officer’s knock. She was shown the warrant which she appeared to read. Two of the officers, Valentine and Wretham, went upstairs and searched the front bedroom which faces on Rhodes Avenue. The bedroom contained a double bed and a dresser. Constable Valentine found a plastic bag containing one hundred and four grams of cocaine of ninety-five per cent purity on the top shelf of an open closet, at the north end of the bedroom. The closet contained mostly women’s clothing and the plastic bag containing the cocaine was underneath some women’s sweaters. A number of photographs of the respondent, showing her modelling women’s clothing, were also found underneath the sweaters. The dresser contained women’s clothing and on the top of the dresser were lipstick, nail polish and other things of that kind. Constable Wretham also found on top of the dresser a drug debt list or a drug price list and an empty “deck”, that is, a folded paper used for carrying drugs, such as cocaine. Men’s clothing was scattered at the foot of the bed, and a rack hanger at the south end of the bedroom held men’s clothing. The respondent’s purse containing identification papers was found at the foot of the bed.

Constable Brookes, in the meantime, had a conversation in the living room with the respondent. Constable Brookes asked the respondent who else lived on the premises and she replied, “Just my roommate.” He then asked her who the person named in the warrant was and she said that he was her boyfriend. In response to further questions, the respondent said that her boyfriend came from Detroit and was visiting her, but he had not arrived home yet. She said that he had been there for a week, that he was staying with her and that he stored his clothes in her bedroom. Constable Brookes asked the respondent where her boyfriend slept, and she replied, “In my bedroom.”

… From the top of the refrigerator Constable Brookes seized a set of scales described as standard drug scales, capable of weighing as little as two grams…. Constable Wretham conducted a further search of the front bedroom, and found at the south end of the bedroom a gym bag containing men’s clothing. He found in the gym bag a “deck” with the writing “1/2” on it containing a small quantity of cocaine. Cardenas admitted that the gym bag belonged to him.

Mr. Justice Gray in quashing the respondent’s committal for trial held that the occupancy of the room by the respondent was not per se evidence of possession. He also held that even if there was some slight evidence that the respondent knew of the presence of the cocaine, that the necessary measure of control over the drug was lacking….
… Section 3(4)(b) of the Criminal Code {now s. 4(3)(b)} reads:

(4) For the purposes of this Act,…
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

The law is now settled that “consent” within s. 3(4)(b) of the Code requires a measure of control over the subject matter. See R. v. Terrence (1983), 4 C.C.C. (3d) 193 (S.C.C.), affirming (1980), 55 C.C.C. (2d) 183 (Ont. C.A.).

There was evidence that the room in which the drug was found was the respondent’s room and, consequently, she could give or withhold her consent to the drug being in her room. [Respondent] contended, however, that … control over the room where the cocaine was found cannot be equated with a measure of control over the drug itself which … imports the right to the benefit of the drug or its proceeds. We disagree. In our view, the respondent’s right to grant or withhold her consent to the drug being stored in her room gave her the necessary measure of control over the drug essential to constitute “consent” within s. 3(4)(b) of the Code. [Respondent’s] argument, if pressed to its logical conclusion, leads to the startling result that a warehouseman who knowingly stores on his premises drugs for drug traffickers is not in possession of the drugs in his warehouse, since he has no right to the benefit of the drugs themselves.

The foundation of the modern law that “consent” under s. 3(4)(b) of the Code requires a measure of control over the subject matter is the judgment of O’Halloran J.A. of the British Columbia Court of Appeal in R. v. Colvin and Gladue (1942), 78 C.C.C. 282 (B.C.C.A.).

It is helpful to examine the circumstances which gave rise to the much-quoted judgment of Mr. Justice O’Halloran. In R. v. Colvin and Gladue, supra, the Crown appealed against the respondents’ acquittal on a charge of unlawful possession of a drug, morphine. One Harmann Singh was the tenant of a room in which he had morphine and the respondents were visiting Singh in his room. The magistrate found that the respondents had knowledge of Singh’s possession of the morphine, but was of the opinion that that evidence did not establish “consent” within then s. 5(2) of the Code (the predecessor of present s. 3(4)(b) of the Code) in the absence of evidence of control.

The British Columbia Court of Appeal, by a majority of three judges to two, dismissed the Crown’s appeal from the acquittal. Mr. Justice O’Halloran stated that if consorting with one who is in physical possession of a drug, or who has it in his control or has the right to its custody is to be regarded by itself as “knowledge and consent” sufficient to constitute joint possession then one would expect unequivocal authority for it in the Opium and Narcotic Drug Act (the predecessor of the Narcotic Control Act). Mr. Justice O’Halloran then went on to say at p. 287:

The “knowledge and consent” which is an integral element of joint possession in s. 5(2) must be related to and read with the definition of “possession” in the previous s. 5(1)(b). It follows that “knowledge and consent” cannot exist without the coexistence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked. The principle of “sufficient reason” applies. For example it would be an irrational act for A to attempt to consent to or refuse B the use of C’s motorcar unless A has some measure of control over it. [Emphasis added.]

… The respondents in R. v. Colvin and Gladue, supra, being mere visitors, had no power to withhold their consent to Harmann Singh, the tenant, having the morphine in his possession. The mere consorting with Singh knowing that he had possession of morphine did not constitute “consent” within s. 5(2) of the Code. In contrast, the respondent in the present case had the power to either consent or withhold her consent to her room being used to store cocaine.
In holding that the respondent’s occupancy of the room did not constitute any evidence that the respondent was in possession of the cocaine found therein, Mr. Justice Gray placed considerable emphasis on the fact that s. 17 of the Opium and Narcotic Drugs Act, R.S.C. 1952, c. 201 (as am. by S.C. 1953-54, c. 38, s. 8), is not found in the Narcotic Control Act. Section 17(1) read:

(1) Without limiting the generality of subsection (1) or paragraph (b) of subsection (3) of section 4, any person who occupies, controls, or is in possession of any building, room, vessel, vehicle, enclosure or place in or upon which any drug is found shall be deemed to be in possession thereof unless he proves that the drug was there without his authority, knowledge or consent.

Section 17 was held to be inapplicable where the accused had no control over that part of the premises where the drugs were found: R. v. Lou Hay Hung, supra. Where s. 17 was applicable the accused was deemed to be in possession of a drug found in premises over which he had the necessary control unless he or she proved on a balance of probabilities that the drug was there without his or her authority, knowledge or consent. The fact that this provision was not introduced into the present Act has the effect only of requiring the prosecution on a charge of unlawful possession to prove in the ordinary way without the aid of a deeming provision that the accused was in possession of the drug even though the drug is found in premises subject to his control. The failure of Parliament to enact in the present Act a provision similar to s. 17 does not, however, preclude a court from drawing appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug.

Crown counsel submitted before the Provincial Court judge that the test was whether the respondent had authority real or potential over the drug, that the respondent had authority to remove the drugs and she chose to leave them in her room which constituted a measure of control over the drug. …

One reading of the judge’s reasons for committing the respondent for trial is that he found the necessary measure of control in the respondent permitting Cardenas to store the cocaine in her room. In my view, there was some evidence upon which the Provincial Court judge could commit the respondent for trial either on the basis that there was evidence that she had the necessary measure of control over the cocaine or that there was evidence upon which a jury properly instructed could find that she was a party under s. 21 of the Code. I think I should add that the appeal was argued on the basis that the cocaine belonged to Cardenas and that the respondent had no interest in the drug or its proceeds. Although it appears likely that the drug belonged to Cardenas, I do not think it can be assumed on this record that the respondent had no interest in the drug. However, even if it be assumed that the cocaine belonged to Cardenas, there was … some evidence upon which a reasonable jury properly instructed could find that the respondent had possession of the drug under s. 3(4)(b) of the Code or was a party under s. 21 to Cardenas’ possession by allowing him to store the cocaine in her room.

It is scarcely necessary to add that the provincial Court judge was not trying the respondent and determining her guilt. That, of course, was not his function. He decided only that there was some evidence upon which a properly instructed jury could convict. A jury might, of course, entertain a reasonable doubt as to the respondent’s guilt, and, indeed, additional facts might cast a different light on the case.

 

4.         Presumptions

 

R. v. Oakes
Supreme Court of Canada
[1986]24 C.C.C. (3d) 321; [1986] 1 S.C.R. 103

DICKSON C.J.C.:—This appeal concerns the constitutionality of s. 8 of the Narcotic Control Act, R.S.C. 1970, c.N-1. The section provides, in brief, that if the court finds the accused in possession of a narcotic, he is presumed to be in possession for the purpose of trafficking. Unless the accused can establish the contrary, he must be convicted of trafficking. The Ontario Court of Appeal held that this provision constitutes a “reverse onus” clause and is unconstitutional because it violates one of the core values of our criminal justice system, the presumption of innocence, now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. The Crown has appealed.…

Facts

The respondent, David Edwin Oakes, was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act{now the relevant act is The Controlled Drugs and Substances Act}. He elected trial by magistrate without a jury. At trial, the Crown adduced evidence to establish that Mr. Oakes was found in possession of eight one gram vials of cannabis resin in the form of hashish oil. Upon a further search conducted at the police station, $619.45 was located. Mr. Oakes told the police that he had bought 10 vials of hashish oil for $150 for his own use, and that the $619.45 was from a workers’ compensation cheque. He elected not to call evidence as to possession of the narcotic. Pursuant to the procedural provisions of s. 8 of the Narcotic Control Act, the trial judge proceeded to make a finding that it was beyond a reasonable doubt that Mr. Oakes was in possession of the narcotic.

Following this finding, Mr. Oakes brought a motion to challenge the constitutional validity of s. 8 of the Narcotic Control Act, which he maintained imposes a burden on an accused to prove that he or she was not in possession for the purpose of trafficking. He argued that s. 8 violates the presumption of innocence contained in s. 11(d) of the Charter.…

(b) The presumption of innocence and s. 11(d) of the Charter

Section 11(d) of the Charter constitutionally entrenches the presumption of innocence as part of the supreme law of Canada.…

11. Any person charged with an offence has the right…
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

To interpret the meaning of s. 11(d), it is important to adopt a purposive approach. As this Court stated in R. v. Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385 at pp. 423 4, 18 D.L.R. (4th) 321 at pp. 359-60, [1985] 1 S.C.R. 295 at p. 344:

The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view, this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms.

To identify the underlying purpose of the Charter right in question, therefore, it is important to begin by understanding the cardinal values it embodies.

The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s. 11(d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter. See Reference re s. 94(2) of Motor Vehicle Act, December 17, 1985, unreported, per Lamer J. [since reported 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, [1986] 1 W.W.R. 481]. The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.

The presumption of innocence has enjoyed long-standing recognition at common law. In the leading case, Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.), Viscount Sankey L.C. wrote at pp. 481-2:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Subsequent Canadian cases have cited the Woolmington principle with approval: see, for example, Manchak v. The King (1938), 70 C.C.C. 161 at p. 167, [1938] 3 D.L.R. 693 at p. 699, [1938] S.C.R. 341 at p. 349; R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 at pp. 366-7, 85 D.L.R. (3d) 161 at p. 174, [1978] 2 S.C.R. 1299 at p. 1316.

Further evidence of the widespread acceptance of the principle of the presumption of innocence is its inclusion in the major international human rights documents. Article 11(1) of the Universal Declaration of Human Rights, adopted December 10, 1948, by the General Assembly of the United Nations, provides:

 11(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

 In the International Covenant on Civil and Political Rights, 1966, art. 14(2) states:

 14(2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

 Canada acceded to this covenant, and the optional protocol which sets up machinery for implementing the covenant, on May 19, 1976. Both came into effect on August 19, 1976. 

In light of the above, the right to be presumed innocent until proven guilty requires that s. 11(d) have, at a minimum, the following content. First, an individual must be proven guilty beyond a reasonable doubt. Secondly, it is the State which must bear the burden of proof. As Mr. Justice Lamer stated in Dubois v. The Queen (November 21, 1985, unreported), at p. 6 [since reported 22 C.C.C. (3d) 513 at p. 531, 23 D.L.R. (4th) 503 at pp. 521-2, [1985] 2 S.C.R. 350]:

Section 11(d) imposes upon the Crown the burden of proving the accused’s guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence.

Thirdly, criminal prosecutions must be carried out in accordance with lawful procedures and fairness. The latter part of s. 11(d), which requires the proof of guilt “according to law in a fair and public hearing by an independent and impartial tribunal”, underlines the importance of this procedural requirement.…

d) Conclusion regarding s. 11(d) of the Charter and s. 8 of the Narcotic Control Act

This review of the authorities lays the groundwork for formulating some general conclusions regarding reverse onus provisions and the presumption of innocence in s. 11(d). We can then proceed to apply these principles to the particulars of s. 8 of the Narcotic Control Act.

In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue. 

The fact that the standard is only the civil one does not render a reverse onus clause constitutional. As Sir Rupert Cross commented in the Rede Lectures, “The Golden Thread of the English Criminal Law: The Burden of Proof“, delivered in 1976 at the University of Toronto, at pp. 114:

 It is sometimes said that exceptions to the Woolmington Rule are acceptable – because, whenever the burden of proof on any issue in a criminal case is borne by the accused, he only has to satisfy the jury on the balance of probabilities, whereas on issues on which the Crown bears the burden of proof the jury must be satisfied beyond a reasonable doubt . . . The fact that the standard is lower when the accused bears the burden of proof than it is when the burden of proof is borne by the prosecution is no answer to my objection to the existence of exceptions to the Woolmington Rule as it does not alter the fact that a jury or bench of magistrates may have to convict the accused although they are far from sure of his guilt.

 As we have seen, the potential for a rational connection between the basic fact and the presumed fact to justify a reverse onus provision has been elaborated in some of the cases discussed above and is now known as the “rational connection test”. In the context of s. 11(d), however, the following question arises: if we apply the rational connection test to the consideration of whether s. 11(d) has been violated, are we adequately protecting the constitutional principle of the presumption of innocence? As Professors MacKay and Cromwell point out in their article “Oakes: A Bold Initiative Impeded by Old Ghosts”, 32 C.R. (3d) 221 (1983), p. 233:

The rational connection test approves a provision that forces the trier to infer a fact that may be simply rationally connected to the proved fact. Why does it follow that such a provision does not offend the constitutional right to be proved guilty beyond a reasonable doubt?

A basic fact may rationally tend to prove a presumed fact, but not prove its existence beyond a reasonable doubt. An accused person could thereby be convicted despite the presence of a reasonable doubt. This would violate the presumption of innocence.

I should add that this questioning of the constitutionality of the “rational connection test” as a guide to interpreting s. 11(d) does not minimize its importance. The appropriate stage for invoking the rational connection test, however, is under s. 1 of the Charter. This consideration did not arise under the Canadian Bill of Rights because of the absence of an equivalent to s. 1. At the Court of Appeal level in the present case, Martin J.A. sought to combine the analysis of ss. 11(d) and 1 to overcome the limitations of the Canadian Bill of Rights jurisprudence. To my mind, it is highly desirable to keep ss. 1 and 11(d) analytically distinct. Separating the analysis into two components is consistent with the approach this Court has taken to the Charter to date: see R. v. Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, [1985] 1 S.C.R. 295; Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, [1984] 2 S.C.R. 145; Law Society of Upper Canada v. Skapinker (1984), 11 C.C.C. (3d) 481, 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357. 

To return to s. 8 of the Narcotic Control Act, I am in no doubt whatsoever that it violates s. 11(d) of the Charter by requiring the accused to prove on a balance of probabilities that he was not in possession of the narcotic for the purpose of trafficking. Mr. Oakes is compelled by s. 8 to prove he is not guilty of the offence of trafficking. He is thus denied his right to be presumed innocent and subjected to the potential penalty of life imprisonment unless he can rebut the presumption. This is radically and fundamentally inconsistent with the societal values of human dignity and liberty which we espouse, and is directly contrary to the presumption of innocence enshrined in s. 11(d). Let us turn now to s. 1 of the Charter.

Is s. 8 of the Narcotic Control Act a reasonable and demonstrably justified limit pursuant to s. 1 of the Charter?

It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and, secondly, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Charter) against which limitations on those rights and freedoms must be measured. Accordingly, any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms—rights and freedoms which are part of the supreme law of Canada. As Madam Justice Wilson stated in Re Singh and Minister of Employment & Immigration and 6 other appeals (1985), 17 D.L.R. (4th) 422 at p. 468, [1985] 1 S.C.R. 177 at p. 218, 58 N.R. 1: “ . . . it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter”. 

A second contextual element of interpretation of s. 1 is provided by the words a free and democratic society”. Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. 

The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s. 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of the two contextual considerations discussed above, namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society. 

The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. It is clear from the text of s. 1 that limits on the rights and freedoms enumerated in the Charter are exceptions to their general guarantee. The presumption is that the rights and freedoms are guaranteed unless the party invoking s. 1 can bring itself within the exceptional criteria which justify their being limited. This is further substantiated by the use of the word  “demonstrably” which clearly indicates that the onus of justification is on the party seeking to limit: Hunter v. Southam Inc., supra. 

The standard of proof under s. 1 is the civil standard, namely, proof by a preponderance of probability. The alternative criminal standard, proof beyond a reasonable doubt, would, in my view, be unduly onerous on the party seeking to limit. Concepts such as “reasonableness”, “justifiability” and “free and democratic society” are simply not amenable to such a standard. Nevertheless, the preponderance of probability test must be applied rigorously. Indeed, the phrase “demonstrably justified” in s. 1 of the Charter supports this conclusion. Within the broad category of the civil standard, there exist different degrees of probability depending on the nature of the case: see Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto, 1974), p. 385. As Lord Denning explained in Bater v. Bater, [1950] 2 All E. R. 458 at p. 459 (C.A.): 

The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.

This passage was cited with approval in Hanes v. Wawanesa Mutual Ins. Co., [1963] 1 C.C.C. 321 at p. 339, 36 D.L.R. (2d) 718 at p. 733, [1963] S.C.R. 154 at p. 161. A similar approach was put forward by Cartwright J. in Smith v. Smith and Smedman, [1952] 3 D.L.R. 449 at p. 463, [1952] 2 S.C.R. 312 at pp. 331-2: 

I wish, however, to emphasize that in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment is formed including the gravity of the consequences…

Having regard to the fact that s. 1 is being invoked for the purpose of justifying a violation of the constitutional rights and freedoms the Charter was designed to protect, a very high degree of probability will be, in the words of Lord Denning, “commensurate with the occasion”. Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the court the consequences of imposing or not imposing the limit: see Law Society of Upper Canada v. Skapinker, supra, at p. 502 C.C.C., p. 182 D.L.R., p. 384 S.C.R.; Re Singh and Minister of Employment & Immigration, supra, at p. 467 D.L.R., p. 217 S.C.R. A court will also need to know what alternative measures for implementing the objective were available to the legislators when they made their decisions. I should add, however, that there may be cases where certain elements of the s. 1 analysis are obvious or self-evident. 

To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. Big M Drug Mart Ltd., supra, at p. 430 C.C.C., p. 366 D.L.R., p. 352 S.C.R. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressingand substantial in a free and democratic society before it can be characterized as sufficiently important. 

Secondly, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: R. v. Big M Drug Mart Ltd., supra. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd., supra. Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. 

With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.  

Having outlined the general principles of s. 1 inquiry, we must apply them to s. 8 of the Narcotic Control Act. Is the reverse onus provision in s. 8 a reasonable limit on the right to be presumed innocent until proven guilty beyond a reasonable doubt as can be demonstrably justified in a free and democratic society? 

The starting point for formulating a response to this question is, as stated above, the nature of Parliament’s interest or objective which accounts for the passage of s. 8 of the Narcotic Control Act. According to the Crown, s. 8 of the Narcotic Control Act is aimed at curbing drug trafficking by facilitating the conviction of drug traffickers. In my opinion, Parliament’s concern that drug trafficking be decreased can be characterized as substantial and pressing. The problem of drug trafficking has been increasing since the 1950’s at which time there was already considerable concern: see Report of the Special Committee on Traffic in Narcotic Drugs, Appendix to Debates of the Senate, Canada, Session 1955, pp. 690-700; see also Final Report, Commission of Inquiry into the Non-Medical Use of Drugs (Ottawa, 1973). Throughout this period, numerous measures were adopted by free and democratic societies, at both the international and national levels. 

At the international level, on June 23, 1953, the Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium, to which Canada is a signatory, was adopted by the United Nations Opium Conference held in New York. The Single Convention on Narcotic Drugs, 1961, was acceded to in New York on March 30, 1961. This treaty was signed by Canada on March 30, 1961. It entered into force on December 13, 1964. As stated in the preamble, “addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind…”. 

At the national level, statutory provisions have been enacted by numerous countries which, inter alia, attempt to deter drug trafficking by imposing criminal sanctions: see, for example, Misuse of Drugs Act, 1975 (N.Z.), No. 116; Misuse of Drugs Act, 1971 (U.K.), c. 38.

The objective of protecting our society from the grave ills associated with drug trafficking, is, in my view, one of sufficient importance to warrant overriding a constitutionally protected right or freedom in certain cases. Moreover, the degree of seriousness of drug trafficking makes its acknowledgement as a sufficiently important objective for the purposes of s. 1, to a large extent, self-evident. The first criterion of a s. 1 inquiry, therefore, has been satisfied by the Crown. 

The next stage of inquiry is a consideration of the means chosen by Parliament to achieve its objective. The means must be reasonable and demonstrably justified in a free and democratic society. As outlined above, this proportionality test should begin with a consideration of the rationality of the provision: is the reverse onus clause in s. 8 rationally related to the objective of curbing drug trafficking? At a minimum, this requires that s. 8 be internally rational; there must be a rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking. Otherwise, the reverse onus clause could give rise to unjustified and erroneous convictions for drug trafficking of persons guilty only of possession of narcotics.

In my view, s. 8 does not survive this rational connection test. As Martin J.A. of the Ontario Court of Appeal concluded, possession of a small or negligible quantity of narcotics does not support the inference of trafficking. In other words, it would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics. The presumption required under s. 8 of the Narcotic Control Act is overinclusive and could lead to results in certain cases which would defy both rationality and fairness. In light of the seriousness of the offence in question, which carries with it the possibility of imprisonment for life, I am further convinced that the first component of the proportionality test has not been satisfied by the Crown.

Having concluded that s. 8 does not satisfy this first component of proportionality, it is unnecessary to consider the other two components.

Conclusion  

The Ontario Court of Appeal was correct in holding that s. 8 of the Narcotic Control Act violates the Canadian Charter of Rights and Freedoms and is therefore of no force or effect. Section 8 imposes a limit on the right guaranteed by s. 11(d) of the Charter which is not reasonable and is not demonstrably justified in a free and democratic society for the purpose of s. 1. 

* * *

Markus D. Dubber, “Policing Possession: The War on Crime and the End of Criminal Law,” 91 J. Crim. L. & Criminology 829 (2002)


[A]s though proving possession weren’t easy enough, the law of possession also teems with evidentiary presumptions. Not only can you constructively possess something you don’t have in your hands or on your person, you can also be presumed to constructively possess it. In our example, this means that it will be up to you to prove to the jury … that you did not in fact possess the gun, constructively, which is a tough row to hoe, given … how little it takes to establish possession [in the first place].

The most popular choice among legislatures anxious to further reduce prosecutorial inconvenience associated with the enforcement of possession offenses is to establish the rule that mere presence constitutes presumptive possession. The more eager the state is to get certain possessors off the street, and the more dangerous these possessors have revealed themselves to be through their possession, the more dangerous the item possessed, the greater the temptation will be to do away with evidentiary requirements, and thereby to accelerate the incapacitation process. Small wonder that these presumptions from presence to possession pop up in gun and drug possession cases.

[M]erely being around drugs not only amounts to presumptively possessing them. It further simplifies the prosecutor’s incapacitative task by also establishing a presumption of “knowing” [or “unlawful” or “unauthorized”] possession. So, from evidence of being in the same car or room with a controlled substance, the prosecutor gets, without additional evidence, to jump to the conclusion that you possessed the drugs, and knew that you did. And, [given the presumption], this conclusion will stand, unless you convince the fact finder otherwise. And that fact finder is, in virtually every possession case, none other than the prosecutor himself, who offers you a reduced sentence in exchange for a guilty plea.

The use of mere presence as a foundation of criminal liability has an additional benefit. Presence not only simplifies the prosecutorial task of connecting a given object with a particular possessor. Presence can with one fell swoop ensnare not just one, but several, persons in the web of possession liability emanating from a piece of contraband at its center. Presence-to-possession has this useful feature thanks to a generous interpretation of possession that makes room for non-exclusive possession of chattels, notwithstanding that “real” is supposed to differ from “movable” property precisely in that non-exclusive possession was possible in the former, but impossible in the latter: “if we concede possession to the one, we must almost of necessity deny it to the other.”

Chapter 8. Mens Rea (Subjective Offense Elements)


A. Voluntariness and Culpable Mental States    

 

In the Matter of Ronnie L.
Family Court, New York County
121 Misc. 2d 271 (1983)


Kaplan, Judge.

      [The present juvenile delinquency petition alleges that Respondent Ronnie L criminally possessed a loaded weapon in violation of N.Y. Penal Law § 265.02(4) (“A person is guilty of criminal possession of a weapon in the third degree when: . . . (4) Such person possesses any loaded firearm.”)]       

On the morning of February 3, 1982 Respondent was observed . . . with Gregory P, a non-student, on the first floor of Park West High School. Since P was considered an intruder, both youths were taken to Mr. Jefferson’s office in accordance with school security policy. At that juncture, Respondent was wearing a black leather jacket, and Gregory P was wearing a maroon sheepskin coat.      

In Mr. Jefferson’s office, confusion arose as to which boy owned which jacket. Gregory P’s mother advised Mr. Jefferson that Gregory owned a black leather jacket, and did not own a maroon sheepskin coat. This fact was confirmed by Respondent’s testimony that he and Gregory had switched jackets while on the fourth floor.      

While the youths were in his office, Mr. Jefferson first patted down Gregory P, and then patted down the Respondent about five minutes later. Mr. Jefferson testified that as he patted down the Respondent, he felt a hard object, and asked the Respondent to remove whatever it was from his coat pocket. Mr. Jefferson further testified that when he felt the hard object, and before he removed the object from Respondent’s pocket, Respondent said “It’s not mine, Mr. Jefferson.”  The object which Respondent removed from his pocket was a holstered and loaded .22 caliber pistol. Respondent’s testimony differed in that he claimed that he did not discover that he had a gun until he was removing it from his jacket pocket and, out of surprise, said “It’s not mine, Mr. Jefferson.” 

Respondent claimed that the petition cannot be sustained because he was not in knowing possession of a loaded weapon.      

The court cannot accept this argument since the offense is one of strict liability. However, even a strict liability offense must be the result of a voluntary act. If that fact is not established by proof beyond a reasonable doubt the petition cannot be sustained.

Penal Law section 15.10 contains the definition of strict liability. It provides: 

The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If such conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of “strict liability.”  If a culpable mental state on the part of the actor is required with respect to every material element of an offense, such offense is one of “mental culpability.”

The concept of a voluntary act is central to this definition. It is defined by Penal Law section 15.00, subd. 2 in the following manner:

“Voluntary act” means a bodily movement performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.      

A crime of strict liability stands in contrast to one requiring a culpable mental state. The description of the latter is set forth in Penal Law section 15.15 subd. 1 which provides:

1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms “intentionally,”“knowingly,”“recklessly” or “criminal negligence, or by use of terms, such as “with intent to defraud” and “knowing it to be false,” describing a specific kind of intent or knowledge.

These culpable mental states are set out in Penal Law section 15.05. We need only concern ourselves with the term “intentionally” which is defined as follows:

“Intentionally.”  A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.  

We face a conundrum when we attempt to draw a meaningful distinction between ”voluntary act” (P.L. section 15.00 subd. 2) and, acting “intentionally” (P.L. section 15.05 subd. 1) in the context of an offense whose gravamen is mere possession.

In the first instance the law speaks of a voluntary act as one “consciously performed as a result of effort or determination.”  It includes possession of property if the actor was aware of his physical possession, and had hold of it sufficiently long to terminate that possession. In the second the law speaks of acting intentionally “when one’s conscious objective is to cause a result or engage in particular conduct.” 

These definitions are substantially similar . . . . The same volitional processes are involved in the offense of possessing a firearm, a strict liability offense, as would be implicated if the statute were one of mental culpability and required that the firearm be possessed either “intentionally” or “knowingly”.              

If conduct necessarily involves a culpable mental state—is there any reason not to expressly make it a material element of the offense?

* * *

Nonetheless the court concludes that there was a legislative intent to make P.L. section 265.02 subd. 4 a strict liability crime. Article 265 of the Penal Law deals with firearms and other dangerous weapons. Criminal possession of a weapon in the third degree (P.L. section 265.02), a class D felony, prohibits possession of a loaded firearm without regard to a culpable mental state.

In contrast, criminal possession of a weapon in the second degree (P.L. section 265.03), a class C felony, requires that a person possess a loaded firearm with intent to use the same unlawfully against another. It is the addition of a culpable mental state that distinguishes the two offenses, makes the latter a more serious one, and clearly establishes that the former (265.02 subd. 4) was clearly intended to be a strict liability offense.

* * *

In similar situations other Courts have considered what degree of volition a Defendant must exhibit before he can be convicted of a crime. . . . [I]n People v. Davis, 112 Misc.2d 138, 446 N.Y.S.2d 159 (Crim.Ct., Bronx Co., 1981). The Court, in ruling that P.L. section 265.05 [12]

was a crime of strict liability, stated “[t]he doing of an act such as possession of a weapon may by statute be made criminal per se without regard to the doer’s intent or knowledge, but nevertheless the act of possessing must not be involuntary as an involuntary act is not criminal. These two concepts are not the same. They are mutually exclusive.”  112 Misc.2d at 141.

The court credits Mr. Jefferson’s testimony, and concludes that respondent was aware that he possessed the gun before he started to remove it from his pocket. Respondent was wearing the coat in which the gun was found from the time he and P. exchanged coats on the fourth floor until it was removed approximately five minutes after they entered Mr. Jefferson’s first floor office. . . . The holstered revolver is both bulky and weighty. Respondent had navigated four flights of stairs with the gun in the side pocket of a waist-length jacket. It is inconceivable that he would not feel it bumping against him as he descended the staircase, and not investigate what was in his pocket.

* * *

Probation is ordered to conduct an investigation, prepare a report and be prepared to recommend an appropriate disposition at Part V of the New York County Family Court…

 


B.        Schemes of Mental States

 


C.         Definitions

 

1. Canada (per CCC) (not defined; see case-law & commentary)

2. Canada (LRCC) (see LRCC § 2(4))

"Purposely."
(i) A person acts purposely as to conduct if he means to engage in such conduct, and, in the case of an omission, if he also knows the circumstances giving rise to the duty to act or is reckless as to their existence.
(ii) A person acts purposely as to a consequence if he acts in order to effect:
(A) that consequence; or
(B) another consequence which he knows involves that consequence.

"Recklessly." A person is reckless as to consequences or circumstances if, in acting as he does, he is conscious that such consequences will probably result or that such circumstances probably obtain.

[Alternative
"Recklessly." A person is reckless as to consequences or circumstances if, in acting as he does, he consciously takes a risk, which in the circumstances known to him is highly unreasonable to take, that such consequences may result or that such circumstances may obtain.]


"Negligently." A person is negligent as to conduct, circumstances or consequences if it is a marked departure from the ordinary standard of reasonable care to engage in such conduct, to take the risk (conscious or otherwise) that such consequences will result, or to take the risk (conscious or otherwise) that such circumstances obtain.

 

3. MPC and NY Penal Law (see MPC § 2.02)



Model Penal Code § 2.02. General Requirements of Culpability

(2) Kinds of Culpability Defined.

(a) Purposely.
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation.

(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
N.Y. Penal Law § 15.05. Culpability; definitions of culpable mental states.

The following definitions are applicable to this chapter:

1. "Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

2. "Knowingly." A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.

3. "Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation....

4. "Criminal negligence." A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.











 

4. Germany (per StGB) (not defined; see caselaw & commentary)

 

StGB § 15. Intentional and negligent conduct.

Only intentional conduct is punishable, unless the statutory lawexpressly threatens negligent conduct with punishment.

 

StGB (Alternative Draft) § 17. Intention.

(1) He acts intentionally whoever knowingly and wilfully causes astatutorily proscribed harm to occur.

(2) He also acts intentionally whoever seriously considers theaccomplishment of a crime to be possible and who takes that intoaccount.

(3) He acts knowingly whoever knows that the circumstanceswhich the statute requires in order to establish voluntary conduct arepresent, or whoever foresees as certain the occurrence of these circumstances.

 

StGB (Alternative Draft) § 18. Negligence.

He acts negligently whoever fails to exercise the care to which heis obligated and of which he is capable, and who thereby causes astatutorily proscribed harm to occur.

 

 

D.        The Boundaries of Intent: Varieties of Subjective Fault

 

R. v. Lewis
Supreme Court of Canada
[1979] 98 D.L.R (3d) 111; [1979] 2 S.C.R. 821
 

The judgment of the Court was delivered by

DICKSON, J.:—The appellant Lewis and one Santa Singh Tatlay were jointly charged with the murder of Parmjeet K. Sidhu, Tatlay’s daughter, and, under a separate count, with the murder of Gurmail Singh Sidhu, her husband. The plot alleged by the Crown was both novel and satanic. The instrument which caused the deaths was an electric kettle rigged with dynamite in such a manner as to explode when plugged into an electric outlet. The kettle was sent to the couple by mail. It exploded with tragic results. 

After a two-week trial before Judge and jury, the two accused were found guilty. The present appeal is brought from a judgment of the Court of Appeal for British Columbia, dismissing an appeal by Lewis against conviction. The sole question upon which leave to appeal was granted by this Court, is whether the trial Judge erred in failing to define “motive”, and in failing to direct jury as to that concept having regard to the fact that, relative to the appellant, the case for the Crown was totally devoid of such evidence.

Motive in law

In ordinary parlance, the words “intent” and “motive” are frequently used interchangeably, but in the criminal law they are distinct. In most criminal trials, the mental element, the mens rea with which the Court is concerned, relates to “intent”, i.e., the exercise of a free will to use particular means to produce a particular result, rather than with “motive”, i.e., that which precedes and induces the exercise of the will. The mental element of a crime ordinarily involves no reference to motive: 11 Hals., 4th ed. (1976), p. 17, para. 11. 

Difficulty arises, however, from the vagueness in law of the notion of “motive”. There would appear to be substantial agreement amongst textwriters that there are two possible meanings to be ascribed to the term. Glanville Williams in his Criminal Law: The General Part, 2nd ed. (1961), p. 48, §21, distinguishes between these meanings: 

(1) It sometimes refers to the emotion prompting an act, e.g., “D killed P, his wife’s lover, from a motive of jealousy.” (2) It sometimes means a kind of intention, e.g., “D killed P with the motive (intention, desire) of stopping him from paying attentions to D’s wife.”

It is this second sense, according to Williams, which is employed in criminal law: 

. . . motive is ulterior intention—the intention with which an intentional act is done (or, more clearly, the intention with which an intentional consequence is brought about). Intention, when distinguished from motive, relates to the means, motive to the end . . .

Smith and Hogan in their Criminal Law, 4th ed. (1978), p. 63, put the matter in slightly sharper perspective. Dealing with the first of the above meanings: 

If D causes an actus reus with mens rea, he is guilty of the crime and it is entirely irrelevant to his guilt that he had a good motive. The mother who kills her imbecile and suffering child out of motives of compassion is just as guilty of murder as is the man who kills for gain.

The authors discuss also the species of intention implicit in the second meaning above (pp. 63-4):

For example, D intends (a) to put poison in his uncle’s tea, (b) to cause his uncle’s death and (c) to inherit his money. We would normally say that (c) is his motive. Applying our test of “desired consequence” (c) is certainly also intended. The reason why it is considered merely a motive is that it is a consequence ulterior to the mens rea and the actus reus; it is no part of the crime. If this criterion as to the nature of motive be adopted then it follows that motive, by definition, is irrelevant to criminal responsibility—that is, a man may be lawfully convicted of a crime whatever his motive may be, or even if he had no motive.

Both of these texts were drawn upon in a brief discussion of motive by Lord Hailsham of St. Marylebone in Hyam v. Director of Public Prosecutions, [1975] A.C. 55 at pp. 73-4 (H.L.). The appellant in that case had had a relationship with a man who became engaged to another woman B. The appellant had gone to B’s house at night and set fire to the house. While B escaped, her two daughters did not and the two died of suffocation. The appellant’s defence was that she had only intended to frighten B. If one were to use the first sense of motive as emotion, the appellant’s admitted motive was jealousy of B; if the second sense of motive as ulterior intention, her motive was to frighten B so that she would leave the neighbourhood. In the former sense, states Lord Hailsham (p. 73):

It is the emotion which gives rise to the intention and it is the latter, and not the former, which converts an actus reus into a criminal act . . .

It is, however, important to realise that in the second sense too motive, which in that sense is to be equated with the ultimate “end” of a course of action, often described as its “purpose” or “object,” although “a kind of intention,” is not co-extensive with intention, which embraces, in addition to the end, all the necessary consequences of an action including the means to the end and any consequences intended along with the end.

In the case at bar, the parties have employed the notion of “motive” in the second of Williams’ senses. 

Accepting the term “motive” in a criminal law sense as meaning “ulterior intention”, it is possible, I think, upon the authorities, to formulate a number of propositions.

(1) As evidence, motive is always relevant and hence evidence of motive is admissible.

….

(2) Motive is no part of the crime and is legally irrelevant to criminal responsibility. It is not an essential element of the prosecution’s case as a matter of law.

(3) Proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of note in a charge to the jury.

(4) Conversely, proved presence of motive may be an important factual ingredient in the Crown’s case, notably on the issues of identity and intention, when the evidence is purely circumstantial.

(5) Motive is therefore always a question of fact and evidence and the necessity of referring to motive in the charge to the jury falls within the general duty of the trial Judge “to not only outline the theories of the prosecution and defence but to give the jury matters of evidence essential in arriving at a just conclusion”.

….

(6) Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree.

 

The necessity of charging a jury on motive may be looked upon as a continuum, at one end of which are cases where the evidence as to identity of the murderer is purely circumstantial and proof of motive on the part of the Crown so essential that reference must be made to motive in charging the jury…. At the other end of the continuum, and requiring a charge on motive, is the case where there is proved absence of motive and this may become of great significance as a matter in favour of the accused. Between these two end points in the continuum there are cases where the necessity to charge on motive depends upon the course of the trial and the nature and probative value of the evidence adduced. In these cases, a substantial discretion must be left to the trial Judge….

The present case

Applying the propositions which I have outlined earlier, it will be seen that motive was not proven as part of the Crown’s case, nor was absence of motive proven by the defence. There was, therefore, no clear obligation in law to charge on motive. 

Whether or not to charge became, therefore, a matter of judgment for the trial Judge and his decision should not be lightly reversed. 

Counsel at trial did not ask the Judge to instruct on motive, and the Judge obviously felt that such instruction was not called for, in the light of the entire trial.… 

In the result, I am unable to find error on the part of the trial Judge, and I therefore reach the same conclusion as the Court of Appeal of British Columbia. I would, accordingly, dismiss the appeal.

  

R. v. Dunbar
Supreme Court of Canada
[1936] 67 C.C.C. 20; [1936] S.C.J. No. 52

HUDSON, J.:—This is an appeal from a judgment of the British Columbia Court of Appeal which by a majority of three to one dismissed an appeal from a conviction of the appellant for murder.…

The facts not open to controversy are as follows:—

On January 15, 1936, three men entered and robbed a branch of the Canadian Bank of Commerce in Vancouver and in the course of the robbery the teller was fatally shot. The appellant Dunbar was not among those who entered the bank but he had brought the robbers to the bank in an automobile and after the robbery was over drove back for them and took them away to the house where they had all been living together. He subsequently shared with them in the proceeds of the robbery. He had a criminal record, had met one or other of the robbers in the penitentiary and had been living with them in the same house for some days prior to the robbery. He knew when driving the car to the bank that his associates were going there with the purpose of robbing the bank that these men were armed and that in the course of such robbery it was not improbable that someone might be killed. His sole excuse for his conduct was that he had acted under compulsion as one of his associates had threatened his life unless he accompanied them and had further threatened that if he did anything to betray them that he would be killed. The point of alleged misdirection most stressed by counsel for the prisoner before us was a statement as follows:— 

“If you accept Dunbar’s evidence that he was so bereft of reason that his reasoning faculties were suspended and that he was really in the position of having his hand held by somebody, that he had two men standing over him—you had this story of the thing put to you in the way that he would have you believe—well, then it seems to me there should be some evidence to show his mental condition.” 

Section 20 of the Criminal Code {now s. 17}, dealing with compulsion, excludes murder and robbery and therefore is inapplicable to this case, but it was argued that if compulsion were shown it might be sufficient to negative any common intention under the provision of s. 69(2) {now s. 21(2)} of the Code. It seems to me that this argument fails to recognize the distinction between intention and the motive giving rise to intention. 

If Dunbar’s story of the threat to him was true then he was faced with a choice between endangering his own life or assisting those about to commit a robbery which might, as he knew, be accompanied by murder of an innocent person. The motive giving rise to his choice between these two courses is irrelevant. This being so, in my opinion the issue was not unfairly put before the jury in the learned trial Judge’s charge. I would, therefore, dismiss the appeal. 

CROCKET, J. (dissenting):—

…Whatever the true construction of s. 20 may be in this regard, I am of opinion that the exclusion by it of robbery as one of the offences for which compulsion is an excuse, does not necessarily exclude compulsion as an element for consideration upon the question of the formation by several persons of “a common intention to prosecute any unlawful purpose” under s. 69(2), notwithstanding such unlawful purpose may be robbery. If Dunbar’s evidence be true, it presents the case of three persons, who have formed a common intention to rob a bank, forcing a fourth at the point of a gun to get into a stolen car and drive them to the immediate vicinity of the bank to carry out their purpose. Can the fourth in these circumstances, if there were nothing more, properly be held to have formed a common intention with the other three within the meaning of s. 69(2)? I do not think so. The proof of such a fact, it seems to me, if there were nothing else to connect an accused person with the robbery, must be taken to negative the formation of “a common intention” on the part of the fourth with the other three to commit that offence as well as to negative the requisite mens rea.

[Sir Lyman P. Duff C.J.C. and Rinfret, Davis, and Kerwin JJ. concurred with Hudson J.]

Appeal dismissed.

  

R. v. Paquette
Supreme Court of Canada
[1977] 2 S.C.R. 189

 

MARTLAND, J.:—The facts which give rise to this appeal are as follows:

During the course of a robbery at the Pop Shoppe, in the City of Ottawa, on March 18, 1973, an innocent bystander was killed by a bullet from a rifle fired by one Simard. The robbery was committed by Simard and one Clermont, both of whom, together with the appellant, were jointly charged with non-capital murder. Simard and Clermont pleaded guilty to this charge.

The appellant was not present when the robbery was comitted or when the shooting occurred. The charge against him was founded upon s. 21(2) of the Criminal Code. Section 21 provides as follows: 

21.(1) Every one is a party to an offence who

(a) actually commits it
(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.

The appellant made a statement to the police, which was admitted in evidence at the trial and which described his involvement in the matter as follows: On the day of the robbery Clermont telephoned the appellant for a ride as his own car was broken. Clermont asked the appellant where he used to work and was told at the Pop Shoppe. Clermont told him to drive to the Pop Shoppe because Clermont wanted to rob it, and, when the appellant refused, Clermont pulled his gun and threatened to kill him. Simard was picked up later and also a rifle. The appellant drove them to the Pop Shoppe. The appellant had been threatened with revenge if he did not wait for Clermont and Simard. The appellant, in his statement, stated he was afraid and drove around the block. After the robbery and homicide Clermont and Simard attempted twice, unsuccessfully, to get into the appellant’s car. Three of the Crown’s witnesses supported this latter statement.

The appellant did not testify at trial but relied on the above statement and two other statements also introduced at the trial by the Crown to support his argument that he had no intention in common with Simard and Clermont to carry out the robbery; i.e.

  • an oral statement to a police officer on his arrest that he had been threatened with death “if he squealed”;
  • the written statement to the police outlined above in which he stated that he had only participated in the robbery by driving because he was threatened with death;
  • a statement to his girl friend the day after the robbery that he was forced to do it. 

The trial Judge charged the jury as follows:

Now, the defence are asserting that Paquette participated in this robbery because he was compelled to do so, and in that connection I charge you that if Paquette joined in the common plot to rob the Pop Shoppe under threats of death or grievous bodily harm, that would negative his having a common intention with Simard to rob the Pop Shoppe, and you must find Paquette not guilty.

The appellant was acquitted. The Crown appealed to the Court of Appeal for Ontario [19 C.C.C. (2d) 154, 5 O.R. (2d) 1]. The reasons delivered by that Court make it clear that the appeal would have been dismissed had it not been for the decision of this Court in Dunbar v. The King (1936),67 C.C.C. 20, [1936] 4 D.L.R. 737…           

In my opinion the application of s. 17 is limited to cases in which the person seeking to rely upon it has himself committed an offence. If a person who actually commits the offence does so in the presence of another party who has compelled him to do the act by threats of immediate death or grievous bodily harm, then, if he believes the threats would be carried out, and is not a party to a conspiracy whereby he is subject to such compulsion, he is excused for committing the offence. The protection afforded by this section is not given in respect of the offences listed at the end of the section, which include murder and robbery…. 

The appellant could only be considered to be a party to the murder on the basis of the application of s. 21(2)…. 

Subsection (2) is only applicable if it is established that the appellant, in common with Simard and Clermont, formed an intention to commit robbery. The question in issue is as to whether the trial Judge erred in law in telling the jury that if the appellant joined in the plot to rob under threats of death or of grievous bodily harm, this would negative such common intention.           

I have already stated my reasons for considering s. 17 to be inapplicable. That being so, the appellant is entitled, by virtue of s. 7 (3) {s. 8(3)}of the Code to rely upon any excuse or defence available to him at common law. The defence of duress to a charge of murder against a person who did not commit the murder, but who was alleged to have aided and abetted, was recently considered by the House of Lords in Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653.… 

[There] Lord Wilberforce, at pp. 682-3, cited with approval a passage from the dissenting reasons of Bray, C.J., in R. v. Broom and Morley, [1968] S.A.S.R. 467 at p. 494: 

“The reasoning generally used to support the proposition that duress is no defence to a charge of murder is, to use the words of Blackstone cited above, that ‘he ought rather to die himself, than escape by the murder of an innocent.’ Generally speaking I am prepared to accept this proposition. Its force is obviously considerably less where the act of the threatened man is not the direct act of killing but only the rendering of some minor form of assistance, particularly when it is by no means certain that if he refuses the death of the victim will be averted, or conversely when it is by no means certain that if he complies the death will be a necessary consequence. It would seem hard, for example, if an innocent passer-by seized in the street by a gang of criminals visibly engaged in robbery and murder in a shop and compelled at the point of a gun to issue misleading comments to the public, or an innocent driver compelled at the point of a gun to convey the murderer to the victim were to have no defence. Are there any authorities which compel us to hold that he would not?”

I am in agreement with the conclusion reached by the majority that it was open to Lynch, in the circumstances of that case, to rely on the defence of duress, which had not been put to the jury. If the defence of duress can be available to a person who has aided and abetted in the commission of murder, then clearly it should be available to a person who is sought to be made a party to the offence by virtue of s. 21(2). A person whose actions have been dictated by fear of death or of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate. 

The Dunbar case could be distinguished from the present case on its facts. The accused, in that case, had been living with the persons who committed the robbery in which the shooting occurred. He drove them to and from the scene of the crime and shared with them in the proceeds of the robbery. However, the decision is based upon the proposition that on a charge of murder founded on the operation of what is now s. 21(2) of the Code, duress does not negative the intention of the accused to carry out an unlawful purpose in common with others, but only relates to his motive for joining in that common purpose, which is irrelevant to the issue of his guilt. I am not in agreement with this view and I am of the opinion that it should not be followed. 

I would allow the appeal, set aside the judgment of the Court of Appeal, and restore the verdict of acquittal.

 

Appeal allowed.

  

R. v. Buzzanga
Ontario Court of Appeal
[1979] O.J. No. 4345

The judgment of the Court was delivered by

1 MARTIN, J.A.:—The appellants, Robert Buzzanga and Jean Wilfred Durocher, after a trial at Windsor before His Honour Judge J. P. McMahon, sitting without a jury, were convicted on an indictment charging them with wilfully promoting hatred against an identifiable group, namely, the French Canadian public in Essex County by communicating on or about January 12, 1977, at Windsor, statements contained in copies of a handbill entitled “Wake Up Canadians Your Future Is At Stake!”, contrary to s. 281.2(2) [enacted R.S.C. 1970, c. 11 (1st Supp.), s. 1] {now s. 319(2)} of the Criminal Code.

2     Following the conviction of the appellants, the learned trial Judge suspended the passing of sentence and directed that they be released on probation for a period of two years. The appellants now appeal against their convictions and the appellant Durocher also appeals, in the alternative, against the sentence imposed upon him, on the ground that the learned trial Judge erred in not granting him a conditional or absolute discharge.

3     This case is somewhat incongruous in that the appellants identify with French-speaking Canadians against whom they are alleged to have wilfully promoted hatred.

The factual background

4     The appellant Durocher was born in Windsor, and is bilingual. His early education was received in a French-language public school, a bilingual high school and a French oblate seminary. He attended the University of Windsor for three years where he formed a bilingual theatre group which produced plays designed to show the harmony between the official languages of Canada. He was subsequently employed by the Essex County Board of Education and taught French. In August, 1976, he commenced to work for the Association Canadian Francais de L’Ontario (hereafter, LACFO), an organization funded by the Secretary of State. His role in that organization, as he perceived it, was to stimulate and assist the French-speaking community of Essex County with respect to political, social and cultural matters, and in particular, in relation to the issue of the construction of a French-language secondary school.

5     The appellant Buzzanga was born of Italian parents in Egypt where he learned the French language. He said he went to France, but did not “fit in” and immigrated to Canada where he felt that he could achieve a sense of personal identity. He testified that he embraced the culture of the French Canadian people and identified himself with their aspirations for preserving their culture. He completed his education in Quebec and took courses at Laval University leading to a degree in French literature, but did not obtain a degree. He was employed for a time by the Canadian Broadcasting Corporation, and afterwards as a teacher at St. Bernard’s school in Amherstberg. He became a director of LACFO in 1972.

6     There had been a movement for some time for the construction in Essex County of a French-language high school. The appellant Durocher testified that there had been an agreement between the Ministry of Education and the Essex County School Board for the construction of a French-language high school, under the terms of which the Essex County Board of Education received a grant of $500,000 to renovate two English-language schools and the Ministry of Education agreed to pay 95% of the cost of constructing a French-language high school. He testified that the Ministry subsequently reduced the grant rate from 95% to 77% of the cost of the proposed French-language high school, and the board decided not to build the school, although it had received and spent the grant to renovate the two English-language schools.

7     Eventually, the Essex County Board of Education was required by the Essex County French-language Secondary School Act, 1977 (Ont.), c. 5, to construct the school. In the meantime, however, the French-speaking community, according to the testimony of the appellant Durocher, was “quite upset” by the position taken by the board of education.

8     There was a great deal of opposition, not entirely confined to the English-speaking community of Essex County, to the construction of the French-language high school. One of the strongest opponents of the construction of the high school was the Essex County Ratepayers Association, the chairman of which was Wilfred Fortowsky.

9     There was to be an election in the month of December, 1976, of members for the Essex County Board of Education. An action committee was formed by LACFO which set up an election office to inform the Francophone community of the stand taken by school-board candidates on the high school issue. The action committee compiled a list of the candidates whom they endorsed, but most of the candidates rejected the endorsement.

10     The list itself became an issue in the election and the appellant Durocher was accused of being an outside agitator sent in to stir up trouble in the francophone community of Essex County. The appellants were angered by the issue created by the action committee’s endorsement of a list of candidates, and by the candidates’ rejection of the endorsement. They were, of course, disappointed when the majority of candidates elected to the school board were persons who opposed the construction of the French-language high school.

11     After the election, the appellant Durocher began to organize a dinner-dance that “was designed as a political evening to engender protest against the treatment of Francophones and to put pressure on the government and the school board to react favourably to the school issue”.

12     On January 5, 1977, Durocher issued a press release which read:

 

The Essex County Action Committee for a French-language high school

On January 29, 1977, approximately 1000 French-speaking ratepayers of Essex County and the Province of Ontario will assemble at 6 PM at Windsor’s Cleary auditorium for a festive dinner-dance. What have we to celebrate? It was 65 years ago that the Provincial Government passed the infamous “Regulation 17” which forbade the teaching of the French language in Ontario. Today the same principle holds true in Essex County re the teaching of that language on the secondary level. We will celebrate 65 years of injustice. It was 8 years ago that the Francophones of Essex County actively began to fight for a French-language high school. We will celebrate 8 years of struggle. It has been 2 years since the Provincial Government has guaranteed the grants to cover construction of said school. We will celebrate 2 years of promises. It has been 1 year since the Essex Board of Education broke its promise to build said school after having spent the 1/2 million dollar “conditional grant” given them by the Provincial Government to secure that promise. We will celebrate 1 year of treachery. It was Lord Durham who said that the French-Canadians were a people without history & without culture and that they should & would be assimilated. It was a local Essex County politician who said last year that the Francophones of Essex County should accept assimilation and that our tax dollars should not be spent to prevent it. We will celebrate the perpetuation of racism and bigotry in Canadian history. But we will also act. On January 29, 1977, the Action Committee For A French-Language High School will exhort its fellow compatriots to take action, to no longer tolerate their status of second-class citizens, to openly and publicly condemn those “Canadians” who deny us our rights and thereby undermine the very foundations of our country and place its future in jeopardy. We invite all English-speaking medias of Ontario and Canada to come and cover this event at the Cleary Auditorium, to learn something of Canadian history and to witness the celebration of people who will not accept cultural and linguistic genocide. Jean W. Durocher Spokesman, Essex County Action Committee For A French-Language High School.

 

At about the same time, the appellants began preparing for dissemination the following document, the distribution of which is the subject of the charge:

 

WAKE UP CANADIANS

 YOUR FUTURE IS AT STAKE! 

IT IS YOUR TAX DOLLARS THAT SUBSIDIZE THE ACTIVITIES OF THE FRENCH MINORITY OF ESSEX COUNTY. 

DID YOU KNOW THAT THE ASSOCIATION CANADIAN FRANCAIS DE L’ONTARIO HAS INVESTED SEVERAL HUNDREDS OF THOUSANDS OF DOLLARS OF YOUR TAX MONEY IN QUEBEC? 

AND THAT NOW THEY ARE STILL DEMANDING 5 MILLION MORE OF YOUR TAX DOLLARS TO BUILD A FRENCH LANGUAGE HIGH SCHOOL? 

YOU ARE SUBSIDIZING SEPARATISM WHETHER IN QUEBEC OR ESSEX COUNTY. 

DID YOU KNOW THAT THOSE OF THE FRENCH MINORITY WHO SUPPORT THE BUILDING OF THE FRENCH LANGUAGE HIGH SCHOOL ARE IN FACT A SUBVERSIVE GROUP AND THAT MOST FRENCH CANADIANS OF ESSEX COUNTY ARE OPPOSED TO THE BUILDING OF THAT SCHOOL? 

WHO WILL RID US OF THIS SUBVERSIVE GROUP IF NOT OURSELVES? 

IF WE GIVE THEM A SCHOOL, WHAT WILL THEY DEMAND NEXT ... INDEPENDENT CITY STATES? CONSIDER THE ETHNIC PROBLEM OF THE UNITED STATES AND TAKE HEED. 

WE MUST STAMP OUT THE SUBVERSIVE ELEMENT WHICH USES HISTORYTO JUSTIFY ITS FREELOADING ON THE TAXPAYERS OF CANADA, NOW. 

THE BRITISH SOLVED THIS PROBLEM ONCE BEFORE WITH THE ACADIANS, WHAT ARE WE WAITING FOR ...? 

13     The statement was composed by the appellant Durocher whose facility with the English language was greater than that of Buzzanga.

14     The appellant Durocher testified that the francophone community seemed to be “fed up” with the issue of the French-language high school and was becoming apathetic. He said that although economics was the stated reason for not building the school, this was merely an excuse and the real reason was prejudice. The appellant Buzzanga shared Durocher’s feeling in this respect.

15     Both appellants testified as to their purpose in preparing and distributing the pamphlet. The appellant Durocher testified that his purpose was to show the prejudice directed towards French Canadians and expose the truth about the real problem that existed with respect to the French-language school. He said that the statement was largely composed from written material he had seen and from experiences he had had, although the paragraph: “WHO WILL RID US OF THIS SUBVERSIVE GROUP, IF NOT OURSELVES?” was pure theatrics and has its origin in the quotation “Who will rid me of this meddlesome priest”, attributed to Henry II. He testified in some detail as to the origin of various parts of the document and endeavoured to show that it reflected statements contained in such sources as letters to the editor of the Windsor Star, a document alleged to have been circulated by a member of the Essex County Ratepayers Association, a paid advertisement published in several newspapers, a book entitled “Bilingual Today, French Tomorrow”, and the like. He said that he thought the pamphlet would be a catalyst that would bring a quick solution to the problem of the French-language school by provoking a Government reaction and thereby put pressure on the school board. He thought that by stating these things people would say: “This is ridiculous.” A fair reading of his evidence is that he did not want to promote hatred against the ‘‘French people”, for to do so would be to promote hatred against himself.

16     The appellant Buzzanga, too, said that he wanted to expose the situation, to show the things that were being said so that intelligent people could see how ridiculous they were. The pamphlet was intended as a satire. He wanted to create a furor that would reach the “House of Commons” and compel the Government to do something that would compel the opposing factions on the school question to reopen communications. He said it was not his intention “to raise hatred towards anyone”.

17     The appellant Buzzanga arranged for the printing and distribution of the document. He placed the order for the printing of the document in the name of Wilfred Fortowsky, the president of the Essex County Ratepayers Association, but asked the printer to delete the name of Mr. Fortowsky when he picked up the material, leaving, however, the name of the Essex County Ratepayers Association on the order form. Neither Mr. Fortowsky nor the Essex County Ratepayers Association were, of course, aware that their names had been so used.

18     The appellant Buzzanga procured two 16-year-old boys, Martin Foley and Kevin Seguin, to distribute the handbills. Martin Foley testified that the appellants picked up Seguin and him in Buzzanga’s car and drove them around while he and Seguin distributed the handbills. The appellants told them not to say anything about it and not to let anyone see them delivering the handbills. The handbills were distributed in apartment buildings, office buildings, a church and at the University of Windsor; the remainder were thrown in a snow bank at the Essex County Education Centre.

19     Apparently, the two youths were later questioned by Kevin Seguin’s mother about their involvement and, a day or two later, Martin Foley called the appellant Buzzanga and asked him if the papers that he and Kevin Seguin had distributed were “French hate literature papers”. He testified that the appellant Buzzanga said: “Don’t say anything or I’ll kill you, and tell Kevin that too.” He later met both the appellants who were angry because they thought Kevin had told his mother, and he testified that the appellant Buzzanga said that if Kevin were there he would “run him over”. The appellant Buzzanga denied making these statements but, in any event, it is clear that these extravagant statements, if made by the appellant Buzzanga, were neither intended nor understood by Foley to be serious threats to harm him or Kevin Seguin. The appellants then obtained some other documents for Foley to give to Mrs. Seguin to convince her that the youths were not involved in the distribution of the pamphlets which form the basis of the charge. Foley gave the papers, with which he had been supplied by the appellants, to Mr. Seguin but afterwards told him the truth.

20     The appellants testified that it had been their intention to come forward and acknowledge the authorship of the pamphlet but when the police investigation commenced they remained silent as a result of legal advice.

21     Father Claude Vincent of the Department of Sociology of the University of Windsor, a witness of eminent qualifications, testified that all persons belong to an ethnic group. He said that the Canadian Government Census assumes the existence of ethnic groups and that for census purposes a person’s ethnic group is traced through the father. He testified that the term French Canadian represents the type of ethnic group. It has a distinct sense of identity, distinct sense of history, a common culture, a continuing tradition and, above all else, a consciousness of kind. He said that there is an identifiable French Canadian culture or community in Essex County. Within the term “culture” are subsumed the ideas of language, religion and history. He said that the more opposition there is to a particular group, the stronger the “in-group” solidarity becomes. It is, I think, clear that one of the purposes of the appellants in preparing and distributing the pamphlet was to “rally” the French-speaking community on the French-language secondary school issue.

Grounds of appeal

22     Although additional grounds of appeal were advanced, only the following grounds of appeal require discussion. The first and principal ground of appeal was that the learned trial Judge misdirected himself with respect to the meaning of the word “wilfully” in the expression “wilfully promotes hatred” in s. 281.2(2) of the Code by holding that “wilfully” meant intentionally as opposed to accidentally.

“Wilfully promotes hatred”

23     The following are the relevant provisions of the Code: 

281.1(1) {now s. 318} Every one who advocates or promotes genocide is guilty of an indictable offence and is liable to imprisonment for five years.

(2) In this section “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely: 

(a) killing members of the group, or

(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General

(4) In this section “identifiable group” means any section of the public distinguished by colour, race, religion or ethnic origin. [enacted idem]

281.2(1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace, is guilty of

(a) an indictable offence and is liable to imprisonment for two years; or

(b) an offence punishable on summary conviction.

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for two years; or

(b) an offence punishable on summary conviction.

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.

(4) Where a person is convicted of an offence under section 281.1 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, upon such conviction, may, in addition to any other punishment imposed, be ordered by the presiding magistrate or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.

(5) Subsections 181(6) and (7) apply mutatis mutandis to section 281.1 or subsection (1) or (2) of this section.

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.

(7) In this section

“communicating” includes communicating by telephone, broadcasting or other audible or visible means;

“identifiable group” has the same meaning as it has in section 281.1;

“public place” includes any place to which the public have access as of right or by invitation, express or implied;

“statements” includes words spoken or written or recorded electronically or electromagnetically or otherwise, and gestures, signs or other visible representations.

 

24     The threshold question to be determined is the meaning of “wilfully” in the term “wilfully promotes hatred” in s. 281.2(2) of the Criminal Code. It will, of course, be observed that the word “wilfully” modifies the words “promotes hatred”, rather than the words “communicating statements”.

25     The word “wilfully” has not been uniformly interpreted and its meaning to some extent depends upon the context in which it is used. Its primary meaning is “intentionally”, but it is also used to mean “recklessly”: see Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), pp. 51-2; Glanville Williams, Textbook of Criminal Law (1978), p. 87; Smith and Hogan, Criminal Law, 4th ed. (1978), pp. 104-5. The term “recklessly” is here used to denote the subjective state of mind of a person who foresees that his conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about: see Glanville Williams, Textbook of Criminal Law, pp. 70 and 76; Smith and Hogan, Criminal Law, 4th ed., pp. 52-3.

26     The word “wilfully” has, however, also been held to mean no more than that the accused’s act is done intentionally and not accidentally. In R. v. Senior, [1899] 1 Q.B. 283, Lord Russell of Killowen, C.J., in interpreting the meaning of the words “wilfully neglects” in s. 1 of the Prevention of Cruelty to Children Act, 1894 (U.K.), c. 41, said at pp. 290-1: “‘Wilfully’ means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it.”

27     On the other hand, in Rice v. Connolly, [1966] 2 Q.B. 414, where the accused was charged with wilfully obstructing a constable in the execution of his duty, Lord Parker, L.C.J., said at p. 419: “‘Wilful’ in this context not only in my judgment means ‘intentional’ but something which is done without lawful excuse ... “.

28     In Willmott v. Atack, [1976] 3 All E.R. 794, the appellant was convicted on a charge of wilfully obstructing a peace officer in the execution of his duty. A police officer, acting in the execution of his duty, arrested a motorist who struggled and resisted. The appellant, who knew the motorist, intervened with the intention of assisting the officer but, in fact, his conduct obstructed the officer. The Queen’s Bench Divisional Court quashed the conviction and held that it was not sufficient to prove the appellant intended to do what he did, and which resulted in an obstruction, but that the prosecution must prove that the appellant intended to obstruct the officer.

29     The judgment of the Court of Criminal Appeal of Queensland in R. v. Burnell, [1966] Qd. R. 348, also illustrates that, depending on its context, the word ‘‘wilfully” may connote an intention to bring about a proscribed consequence. In that case the appellant was charged with arson in having set fire to a shed. Section 461 of the Queensland Criminal Code provides that “... any person who wilfully and unlawfully sets fire to ... any building or structure is guilty of a crime ...”. The accused had deliberately set fire to some mattresses in a shed whereby the shed was set on fire. The trial Judge instructed the jury that “wilfully” connoted no more than a willed and voluntary act as distinguished from the result of an accident or mere negligence. The Queensland Court of Criminal Appeal, in setting aside the conviction, held that in the context of the section “wilfully” required proof that the accused did an act which resulted in setting fire to the building with the intention of bringing about that result. Gibbs, J. (with whom Douglas, J., concurred), said at p. 356: 

Under s. 461 it is not enough that the accused did the act which resulted in setting fire to the building foreseeing that his act might have that effect but recklessly taking the risk; it is necessary that the accused did the act which resulted in setting fire to the building with the intention of bringing about that result. 

Mr. Manning conceded that in some cases the element of wilfulness is supplied by recklessness but he contended that in its context in s. 281.2(2) of the Criminal Code “wilfully” means with the intention of promoting hatred. In the course of his argument, Mr. Manning stressed the definition of “wilfully” contained in s. 386(1) {now s. 429(1)} of the Code, which reads:

386(1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event. 

30     Mr. Manning emphasized that s. 386(1) provides that wilfully is to have the meaning specified in that section for the purposes of Part IX of the Code. He argued with much force that the state of mind specified in s. 386(1) is recklessness and that where Parliament intends to extend the meaning of wilfully to include recklessness it does so expressly. In R. v. Rese, [1968] 1 C.C.C. 363 at p. 366, [1967] 2 O.R. 451 at p. 454, 2 C.R.N.S. 99, Laskin J.A. (as he then was), referred to the definition now contained in s. 386(1) as an extended meaning of “wilfully”.

31     As previously indicated, the word “wilfully” does not have a fixed meaning, but I am satisfied that in the context of s. 281.2(2) it means with the intention of promoting hatred, and does not include recklessness. The arrangement of the legislation proscribing the incitement of hatred, in my view, leads to that conclusion.

32     Section 281.2(1), unlike s. 281.2(2), is restricted to the incitement of hatred by communicating statements in a public place where such incitement is likely to lead to a breach of the peace. Although no mental element is expressly mentioned in s. 281.2(1), where the communication poses an immediate threat to public order, mens rea is, none the less, required since the inclusion of an offence in the Criminal Code must be taken to import mens rea in the absence of a clear intention to dispense with it: see R. v. Prue; R. v. Baril (1979), 46 C.C.C. (2d) 257 at pp. 260-1, 96 D.L.R. 577 at pp. 580-1, 8 C.R. (3d) 68 at p. 73. The general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent and, hence, under s. 281.2(1) is either the intentional or reckless inciting of hatred in the specified circumstances.

33     The insertion of the word “wilfully” in s. 281.2(2) was not necessary to import mens rea since that requirement would be implied in any event because of the serious nature of the offence: see R. v. Prue, supra. The statements, the communication of which are proscribed by s. 281.2(2), are not confined to statements communicated in a public place in circumstances likely to lead to a breach of the peace and they, consequently, do not pose such an immediate threat to public order as those falling under s. 281.2(1); it is reasonable to assume, therefore, that Parliament intended to limit the offence under s. 281.2(2) to the intentional promotion of hatred. It is evident that the use of the word “wilfully” in s. 281.2(2), and not in s. 281.2(1), reflects Parliament’s policy to strike a balance in protecting the competing social interests of freedom of expression on the one hand, and public order and group reputation on the other hand.

34     The recent judgment of the House of Lords in R. v. Lemon; R. v. Gay News Ltd., [1979] 1 All E.R. 898, in my view, is not relevant to the interpretation of s. 281.2(2). In that case, the appellants, the editor and publisher of a newspaper for homosexuals, were convicted of publishing a blasphemous libel in publishing a poem accompanied by a drawing ascribing to Christ homosexual practices.

35     The House of Lords, by a majority, held that the mental element of the offence of publishing a blasphemous libel was satisfied by proof of an intention to publish matter which, in fact, is likely to shock and outrage the feelings of believing Christians, and that it is unnecessary to prove, in addition, that in publishing the blasphemous material the accused intended to produce that effect. Lord Scarman, who shared the majority view, referred to the charge to the jury by Lord Denman, C.J., in R. v. Hetherington (1841), 4 State Tr. N.S. 563 at p. 593, where he told the jury that the only question for them to decide was whether in their opinion the publication in question was blasphemous and whether the defendant “issued it knowingly and wilfully”, and then said of this passage: “In context his adverb ‘wilfully’ meant no more than ‘deliberately’“ (at p. 926).

36     Lord Diplock and Lord Edmund-Davies, however, were of the view that the subjective intention to insult or outrage, or recklessness in producing that result, must be brought home to the accused.

37     The divergence of opinion between the majority and the minority reflects different views as to the elements of the offence of publishing a blasphemous libel, and does not assist in the interpretation of s. 281.2(2) of the Criminal Code.

38     The majority, as previously indicated, were of the view that the only mental element required to be proved in a prosecution for publishing a blasphemous libel is the intent to knowingly publish the words which are, in fact, blasphemous. Thus, that offence consists in the “wilful” publication of the blasphemous matter. On the other hand, the offence created by s. 281.2(2) is not committed by “wilfully” communicating statements which promote hatred, but by “wilfully” promoting hatred by communicating statements.

39     Having concluded that proof of an intention to promote hatred is essential to constitute the offence under s. 281.2(2), it is necessary to consider the mental attitude which must be established to constitute an intention to promote hatred. The state of mind connoted by “intention”, where an intention to bring about a certain result is an element of the offence, has been the subject of much discussion, and writers on jurisprudence, as well as Judges, have not always been in agreement as to its meaning. Some eminent legal scholars hold the view that a consequence is not intended unless it is desired, recognizing that a consequence may be desired not as an end in itself but desired in order to accomplish some other purpose: see Salmond on Jurisprudence, 8th ed. (1930), pp. 393-6 (but cf., the view of P. J. Fitzgerald, the editor of the 12th edition, pp. 367-9; Holmes, The Common Law, pp. 52-3; Glanville Williams, Textbook of Criminal Law, p. 51). Other eminent legal scholars hold that the test of intention is not whether the actor desired the relevant consequence, but whether he decided or resolved to bring it about, even though it may have been distasteful to him: see Jerome Hall, General Principles of Criminal Law, 2nd ed. (1960), p. 112; Russell on Crime, 12th ed. (1964), vol. 1, p. 41. The latter description of intention is in accord with the views expressed by Lord Hailsham as to the meaning of intention in Hyam v. Director of Public Prosecutions, [1975] A.C. 55 at p. 74, and with those of the Court of Appeal (Criminal Division) in R. v. Mohan (1975), 60 Cr. App. R. 272 at pp. 276 and 278.

40     There are cases which appear to provide support for the proposition that where an intention to produce a particular consequence is essential to constitute the offence, an act is not done with intent to produce the prohibited consequence unless it is the actor’s conscious purpose to bring it about, and that the actor’s foresight of the certainty of the consequence is not synonymous with an intention to produce it.

41     There is, however, substantial support for the proposition that in the criminal law a person intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct; see Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), p. 38; Walter Wheeler Cook, Act, Intention, and Motive in the Criminal Law (1916-17), 26 Yale L.J. 645 at pp. 654-8; Rollin Perkins, “A Rationale of Mens Rea”, 52 Harv. L. Rev. 905 at pp. 910-1 (1938-39).

42     Smith and Hogan, the learned authors of Criminal Law, 4th ed., state at p. 51, that the authorities referred to by them:

... suggest that in the criminal law generally, though not universally, a person intends a consequence if it is his purpose to achieve it or if he knows that the achievement of some other purpose is certain, or “morally” certain, to produce the consequence in question.

43     In R. v. Lemon; R. v. Gay News Ltd., supra, Lord Diplock, however, defined intention in much wider terms. He said that where intention to produce a particular result is a necessary element of an offence, no distinction is to be drawn in law between the state of mind of one who does an act because he desires to produce that particular result, and the state of mind of one who, when he does the act, is aware that it is likely to produce that result but is prepared to take the risk that it may do so in order to achieve some other purpose. He considered that the law has been settled by Hyam v. Director of Public Prosecutions, supra, “that both states of mind constitute ‘intention’ in the sense in which that expression is used in the definition of a crime whether at common law or in a statute” (at p. 905).

44 Hyam v. Director of Public Prosecutions, supra, was concerned with the mental element required to constitute “malice aforethought”. It may well be that either an intention to kill or cause serious bodily harm, or foresight that death or serious bodily harm is a highly probable consequence of an act done for some other purpose, is a sufficient mens rea for murder at common law. I do not consider, however, that the actor’s foresight that a consequence is highly probable, as opposed to substantially certain, is the same thing as an intention to bring it about: see Hyam v. Director of Public Prosecutions, supra, per Lord Hailsham at p. 75; R. v. Belfon, [1976] 3 All E.R. 46; Smith and Hogan, Criminal Law, 4th ed., pp. 47-51; “Commentary on R. v. Lemon et al.”, [1979] Crim. L.R. 311 at p. 314. In my view, the mental attitude described by Lord Diplock is a form of recklessness.

45     I agree, however (assuming without deciding that there may be cases in which intended consequences are confined to those which it is the actor’s conscious purpose to bring about), that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. The actor’s foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective.

46     I conclude, therefore, that the appellants “wilfully” (intentionally) promoted hatred against the French Canadian community of Essex County only if: (a) their conscious purpose in distributing the document was to promote hatred against that group, or (b) they foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet, but distributed it as a means of achieving their purpose of obtaining the French-language high school.

Whether the trial Judge misdirected himself as to the meaning of wilfully?

47     The learned trial Judge in comprehensive reasons first considered whether the document objectively promoted hatred and concluded that the cumulative effect of the document rendered it a communication that promoted hatred against the French- speaking community of Essex County. He then said: 

It is, however, encumbent upon the Crown to prove beyond a reasonable doubt that the two accused wilfully promoted such hatred. In other words, has the Crown established the necessary element of mens rea. In considering the meaning to be given to the word “wilfully” in this section the Court must distinguish between what has been described by learned writers as primary and secondary intent; or to phrase it in a more understanding way, the distinction between intent and motive. I have earlier discussed the purpose or motive as explained by the accused themselves. They wished to create a situation that would require the intervention of senior levels of Government and result in the construction of the high school. It is in evidence that the handbill was, in fact, shown to a mediator representing the Minister of Education who was in this area attempting to resolve the school issue. It is, of course, a matter of judicial notice that the Province did pass special legislation requiring the construction of the school. It is extremely doubtful, however, that this document played any part in the formulation of that decision. It was also their desire to unify the French Canadian community. As Father Vincent stated, opposition from outside often cements an ethnic group and tends to strengthen people rather than weaken them.


This is what the Court would refer to as the purpose or motive of the accused.


Wilful in this section, however, means intentional as opposed to accidental. Miss Susan Moylan who testified for the accused was involved in the early discussions between the accused in the preparation of the handbill. She testified that the document was not to create strong feelings but to create strong actions and strong reactions. How one can do the latter without the former is beyond the comprehension of this Court. The accused themselves testified they wished to create controversy, furor and an uproar. What better way of describing active dislike, detestation, enmity or ill will. The motives of the accused may or may not be laudable. The means chosen by the accused was the wilful promotion of hatred. 

48     Mr. Manning contended before us that the learned trial Judge erred in his interpretation of the meaning of “wilfully”. He said that the trial Judge, in concluding that the document, viewed objectively, promoted hatred, separated the word “wilfully” from the words “promotes hatred” and, consequently, fell into error in only considering the question whether the document was distributed intentionally as opposed to accidentally, when the offence charged was committed only if the appellants’ purpose in distributing the document was to promote hatred. Mr. Manning said that the trial Judge was concerned only with the effect of the document, whereas if he had “looked for” an intention to promote hatred, he would have come to a different conclusion with respect to the appellants’ guilt. Mr. Hunt for the Crown did not dispute that the central issue in the case is whether the appellants, when they distributed the pamphlet, intended to promote hatred. He contended, however, that the trial Judge found that the appellants intended to promote hatred as a means of accomplishing their purpose.

49     Despite Mr. Manning’s able argument I am not persuaded that the learned trial Judge fell into the error of detaching the word “wilfully” from the words “promotes hatred” and applied it only to the distribution of the pamphlet. I am of the view, however, that the learned trial Judge erred in holding that “wilfully” means only “intentional as opposed to accidental”. Although, as previously indicated, “wilfully” has sometimes been used to mean that the accused’s act, as distinct from its consequences, must be intended and not accidental (as in R. v. Senior, [1899] 1 Q.B. 283), it does not have that meaning in the provisions under consideration.

50     The learned trial Judge’s view of the meaning of “wilfully” inevitably caused him to focus attention on the intentional nature of the appellants’ conduct, rather than on the question whether they actually intended to produce the consequence of promoting hatred. I observe that even if, contrary to the view which I have expressed, recklessness satisfies the mental element denoted by the word “wilfully”, recklessness when used to denote the mental element attitude which suffices for the ordinary mens rea, requires actual foresight on the part of the accused that his conduct may bring about the prohibited consequence, although I am not unmindful that for some purposes recklessness may denote only a marked departure from objective standards. Where the prosecution, in order to establish the accused’s guilt of the offence charged, is required to prove that he intended to bring about a particular consequence or foresaw a particular consequence, the question to be determined is what was in the mind of this particular accused, and the necessary intent or foresight must be brought home to him subjectively: see R. v. Mulligan (1974), 18 C.C.C. (2d) 270 at pp. 274-5, 26 C.R.N.S. 179; affirmed 28 C.C.C. (2d) 266, [1977] 1 S.C.R. 612, 66 D.L.R. (3d) 627.

51     What the accused intended or foresaw must be determined on a consideration of all the circumstances, as well as from his own evidence, if he testifies, as to what his state of mind or intention was.

52     Since people are usually able to foresee the consequences of their acts, if a person does an act likely to produce certain consequences it is, in general, reasonable to assume that the accused also foresaw the probable consequences of his act and if he, nevertheless, acted so as to produce those consequences, that he intended them. The greater the likelihood of the relevant consequences ensuing from the accused’s act, the easier it is to draw the inference that he intended those consequences. The purpose of this process, however, is to determine what the particular accused intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances, where doubt exists as to the actual intention of the accused. The accused’s testimony, if he gives evidence as to what was in his mind, is important material to be weighed with the other evidence in determining whether the necessary intent has been established. Indeed, Mr. Justice Devlin, in his charge to the jury in R. v. Adams (The Times, April 10, 1957), said that where the accused testified as to what was in his mind and the jury “thought he might be telling the truth”, they would “have the best evidence available on what was in his own mind”. The background of the appellants and their commitment to preserving the French Canadian culture was, of course, relevant to the credibility of their denial that they intended to promote hatred against the French-speaking community of Essex County. The appellants’ evidence as to their state of mind or intention is not, of course, conclusive.

53     In some cases the inference from the circumstances that the necessary intent existed may be so strong as to compel the rejection of the accused’s evidence that he did not intend to bring about the prohibited consequence. The learned trial Judge did not, however, state that he disbelieved the appellants’ evidence that they did not intend to promote hatred. He appears to have treated the appellants’ testimony that they wished to create “controversy, furor and an uproar” as a virtual admission that they had the state of mind requisite for guilt.

54     I am, with deference to the learned trial Judge, of the view that an intention to create “controversy, furor and an uproar” is not the same thing as an intention to promote hatred, and it was an error to equate them. I would, of course, agree that if the appellants intentionally promoted hatred against the French-speaking community of Essex County as a means of obtaining the French-language high school, they committed the offence charged. The appellants’ evidence, if believed, does not, however, as the learned trial Judge appears to have thought, inevitably lead to that conclusion. The learned trial Judge, not having disbelieved the appellants’ evidence, failed to give appropriate consideration to their evidence on the issue of intent and, in the circumstances, his failure so to do constituted self-misdirection….

Conclusion

63     I have concluded that the self-misdirection with respect to the meaning of the word “wilfully”, and the failure to appreciate the significance of the appellants’ evidence on the issue of intent requires a new trial. The outrageous conduct of the appellants in preparing and distributing this deplorable document was evidence to be weighed in determining their intent, but in the peculiar circumstances of this case I am not satisfied that the inferences to be drawn from it are such as to inevitably lead to a conclusion that they had the requisite intent or that the trial Judge would inevitably have reached that conclusion but for his self-misdirection.

64     In the result, I would allow the appeal, set aside the convictions and order new trials.

Appeal allowed; new trial ordered.

 

* * *

Wilfulness under the Model Penal Code
The Model Penal Code drafters thought the term wifulness (“a dreadful word”) had come to mean so many things to so many people in so many contexts that it—like other traditional common law mental state terms such as malice or intent or, for that matter, mens rea—had outlived whatever usefulness it might have had at one point. Abandoning it altogether, however, was not an option because it was “so common in the regulatory statutes” in particular. Rather than integrate it into the Code’s mental state scheme, the drafters instead decided “to superimpose some norm of meaning on it” (ALI Proceedings 160 (1955)):

Model Penal Code § 2.02. General Requirements of Culpability.
(8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.

* * *

R. v. Hibbert
Supreme Court of Canada
[1995] 2 S.C.R. 973

The judgment of the court was delivered by
LAMER C.J.C.:—…

I. Factual Background

On November 25, 1991, shortly before 1:00 a.m., Fitzroy Cohen was shot four times with a semi-automatic handgun as he stood in the lobby of the apartment building he lived in. The shots were fired by Mark Bailey, an acquaintance of Cohen whom Cohen knew by his street names, “Quasi” or “Dogheart”. At the time of the shooting, Bailey was accompanied by the appellant, Lawrence Hibbert, who was a close friend of Cohen. Cohen had descended from his apartment to the lobby at the appellant’s request, unaware that Bailey was waiting below with gun in hand.

Cohen survived the shooting. At the appellant’s trial, Cohen testified that for some time prior to the shooting he had been aware that Bailey was seeking a confrontation with him. Bailey, Cohen believed, was seeking revenge for an incident that had taken place the previous year, in which Bailey had been robbed by a rival drug dealer named Andrew Reid while Cohen and several others stood by, watching and laughing. Cohen testified that he had been told that Bailey had subsequently attacked one of the men involved in the robbery on a busy street, firing several shots at him (but missing). He also knew that Andrew Reid had been murdered. Cohen said that he had told the appellant, whom he described as his “best friend”, about the robbery of Bailey.

The appellant, who testified at trial, stated that at the time of the shooting he owed Bailey $100 as payment for drugs he had purchased from him some months earlier.  He testified that he had been attempting to avoid Bailey, but that on the evening of November 24, 1991 he had accidentally run into him in the lobby of an apartment building in Etobicoke where he had gone to visit friends. Bailey had approached the appellant and indicated that he was armed with a handgun. The appellant testified that Bailey ordered him to take him to Cohen’s apartment. When he refused, the appellant stated, Bailey had led him to the basement and punched him in the face several times. The appellant testified that he feared for his life, and that he believed that Bailey would shoot him if he continued to refuse to assist him. He stated that it was this fear that led him to agree to lead Bailey to Cohen’s apartment.

Bailey and the appellant went out to Bailey’s car, where Bailey’s girlfriend and another young woman were waiting. The appellant got into the back seat, while Bailey drove. The women testified that the appellant was quiet during the drive, but that his mood was neither noticeably happy or unhappy. At trial, one of the young women recalled that the appellant had made a remark to the effect that “this might be the last time [I’m] going to see you”.

Bailey dropped the two women off at their apartment, and told the appellant to get into the front seat. The appellant testified that they stopped at a telephone booth, and that Bailey ordered him to call Cohen and ask him to meet him downstairs in twenty minutes. The appellant  did so, telling Cohen that he “had something for him”. According to the appellant, Bailey stood by the phone booth during his conversation with Cohen, and could hear what the appellant said to Cohen. Cohen and his girlfriend, Beverley St. Hillaire, confirmed that they had received a telephone call from the appellant, essentially as the appellant described. They testified that the appellant had sounded “normal”, but that he had been more abrupt than he usually was.

Bailey and Hibbert arrived at Cohen’s apartment building approximately half an hour after making the phone call. The appellant testified that Bailey drew his gun and pointed it at him as they got out of the car. They went to the front door of the building where, following Bailey’s orders, the appellant called Cohen’s apartment on the building intercom, while Bailey kept his gun trained on him. The appellant’s testimony, which was confirmed by Cohen, was that ordinarily when visiting Cohen he would not use the building’s front door, but would instead enter the  building through a side door that could be opened from the outside using a technique Cohen had taught him. Cohen also confirmed the appellant’s testimony that he had asked Cohen to “come down” to the lobby, but that he had not asked Cohen to “buzz him in” (i.e., press a button on the intercom that would unlock the building’s outer door). The appellant testified that he had hoped that Cohen would not unlock the building’s front door, so that when he came downstairs he would see Bailey through the locked glass outer door and have a chance to retreat to safety. However, Cohen buzzed the outer door open without being asked to do so, and Bailey and the appellant went into the lobby.

According to the testimony of both Cohen and Hibbert, Cohen took the stairs from his second-floor apartment to the lobby. When he emerged into the lobby, he was met by Bailey, who grabbed him and pointed the gun at his chest, saying “You’re dead now pussy.”  Bailey led Cohen into the ground floor hallway, where (according to both Cohen and the appellant’s testimony) he turned to Hibbert and told him to “stay some place where I [can] see you”. After a brief exchange of words with Cohen, Bailey pushed Cohen away and fired four shots at him, striking him in the groin, legs and buttocks. Saying “Come, Pigeon” (the appellant’s nickname), Bailey and the appellant left the building by the side door. Cohen testified that during the incident the appellant said nothing, and made no effort to intervene. He described the appellant as “all sweating”, and said that the appellant was unable to look at him. The appellant, however, testified that he had repeatedly pleaded with Bailey, “Quasi don’t kill him.”

The appellant testified that from the moment he first encountered Bailey that evening he had believed Bailey would shoot him if he refused to cooperate, and stated that he had been “terrified” throughout his time in Bailey’s company. Under cross-examination, he declared that he believed that he had had no opportunity to run away or warn Cohen without being shot.

After leaving the building, Bailey drove the appellant back to Etobicoke. The appellant testified that Bailey threatened to kill him if he went to the police. Upon his return to Etobicoke, the appellant spoke to Cohen’s brother about what had happened, and called Cohen’s mother and Cohen’s apartment. He subsequently called his own mother, before going to sleep. The next morning, he turned himself in to the police. Bailey, however, was never apprehended.

The appellant was charged with attempted murder. On March 19, 1992, following a trial by jury in the Ontario Court of Justice (General Division) presided over by Webber J., he was acquitted of this charge, but was convicted of the included offence of aggravated assault and sentenced to four years imprisonment. On July 15, 1993 his appeal of his conviction to the Court of Appeal for Ontario was dismissed, although the court allowed his appeal from sentence, reducing his sentence from four years to time served (some fifteen months).…

IV. Grounds for Appeal

Lawrence Hibbert appeals his conviction to this Court on the grounds that the trial judge’s charge to the jury on the issue of duress contained several errors. First, he argues, the trial judge erred by instructing the jury that the defence of duress operated by “negativing common intention”.…

V. Analysis

B. The Relationship Between Mens rea and the Defence of Duress

(1) The Common Law Defence of Duress in Canada

The defence of “duress per minas” (“duress by threat”) has a long history at common law. References to the defence can be found in the writings of such venerable commentators as Hale and Blackstone (see J. Ll. J. Edwards, “Compulsion, Coercion and Criminal Responsibility” (1951), 14 Mod. L. Rev. 297, at pp. 298-99; and P. Rosenthal, “Duress in the Criminal Law” (1989-90), 32 Crim. L.Q. 199, at pp. 200ff.). In spite of the defence’s antiquity, however, many important aspects of its nature and its details have remained unresolved, or have been shrouded with uncertainty. As Professor Edwards, supra, observed in 1951 (at p. 297):

Judged by the absence of any satisfactory modern authority, it must be very rare for the accused to set up as a defence that he committed the alleged crime under the compulsion of another person. Indeed the whole field of learning on this defence to criminal liability is both meagre and unsatisfactory.

In Canada, a defence of duress was included in the first Criminal Code enacted in 1892 (S.C. 1892, c. 29). Section 12 of the original Code (the predecessor of the current Code’s s. 17) provided that “compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence shall be an excuse for [its] commission” (subject to certain specified conditions being met). For many years, it seems to have been generally assumed (although never conclusively established) that the existence of a codified  version  of the defence of duress left no room for further development of the common law defence in Canada. As Ritchie J. remarked, obiter, in R. v. Carker, [1967] S.C.R. 114, at p. 117:

[I]n respect of proceedings for an offence under the CriminalCode the common law rules and principles respecting “duress” as an excuse or defence have been codified and exhaustively defined in s. 17....

In Paquette v. The Queen, [1977] 2 S.C.R. 189, however, this Court determined that s. 17 of the Code does not constitute an exhaustive codification of the law of duress. Rather, the Court held, s. 17 applies only to persons who commit offences as principals. Accordingly, it remains open to persons who are liable as parties to offences to invoke the common law defence of duress, which remains in existence by virtue of s. 8(3) of the Code (which preserves those common law defences not expressly altered or eliminated by Parliament). ….

Martland J. went on, however, to make an observation regarding duress and the mental element of party liability under s. 21(2) of the Code, stating (at p. 197):

A person whose actions have been dictated by fear of death or of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate. [Emphasis added.]

The significance of this comment in terms of the judgment as a whole is rather difficult to determine. Martland J. had earlier endorsed the decision of the House of Lords in Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653, in which a majority of the House of Lords had clearly taken the view that the common law defence of duress provided an excuse, rather than operating by negating mens rea. Thus, Martland J. evidently did not intend to suggest that duress provides a defence at common law only when the accused’s culpable mental state can be said to have been “negated”. Instead, he appears to have been holding out an alternative route by which a person charged as a party under s. 21(2) could escape criminal liability, distinct from the “defence of duress” per se -- that is, a “defence” founded not on concepts of excuse or justification, but based instead on the absence of an essential element of the offence.

Seen in this way, Paquette stands for the proposition that duress can provide a “defence” in either of two distinct ways -- as an excuse, or by “negating”mens rea. In the present case, the appellant argues that this is a correct view of the law, and submits that the trial judge erred by not placing both alternatives before the jury. What falls to be considered, therefore, is the validity of the proposition that the mens rea for party liability under the Criminal Code can be “negated” by threats of death or bodily harm. That is, the Court is called upon to reconsider whether the second aspect of our judgment in Paquette reflects a correct understanding of the law of duress in Canada.

(2) Duress and Mens rea

That threats of death or serious bodily harm can have an effect on a person’s state of mind is indisputable. However, it is also readily apparent that a person who carries out the actus reus of a criminal offence in response to such threats will not necessarily lack the mens rea for that offence. Whether he or she does or not will depend both on what the mental element of the offence in question happens to be, and on the facts of the particular case. As a practical matter, though, situations where duress will operate to “negate”mens rea will be exceptional, for the simple reason that the types of mental states that are capable of being “negated” by duress are not often found in the definitions of criminal offences.

In general, a person who performs an action in response to a threat will know what he or she is doing, and will be aware of the probable consequences of his or her actions. Whether or not he or she desires the occurrence of these consequences will depend on the particular circumstances. For example, a person who is forced at gunpoint to drive a group of armed ruffians to a bank will usually know that the likely result of his or her actions will be that an attempt will be made to rob the bank, but he or she may not desire this result -- indeed, he or she may strongly wish that the robbers’ plans are ultimately foiled, if this could occur without risk to his or her own safety. In contrast, a person who is told that his or her child is being held hostage at another location and will be killed unless the robbery is successful will almost certainly have an active subjective desire that the robbery succeed. While the existence of threats clearly has a bearing on the motive underlying each actor’s respective decision to assist in the robbery, only the first actor can be said not to desire that the robbery take place, and neither actor can be said not to have knowledge of the consequences of their actions. To determine whether mens rea is “negated” in a particular case, therefore, the first question that must be asked is whether the mental element of the offence in question is defined in such a way that either an actor’s motives or his or her immediate desires have any direct relevance. As A. W. Mewett and M. Manning explain:

Mens rea...has more than one meaning. It can entail a purpose, a desire to achieve an objective; it can entail merely knowledge that consequences will follow or that circumstances exist; it can entail only recklessness, that is, some advertent or perhaps inadvertent disregard of the consequences or circumstances. What suffices for liability depends upon the particular offence with which we are dealing. If a person is compelled to do an act which he does not wish to do, and therefore does it “against his will”, why, it may be asked, does he have a defence not of compulsion but simply of lack of mens rea?  The answer is that this is quite true, but only if the mens rea required for the particular offence in question is of the sort that is negatived by a person being compelled to do something against his will.
(Mewett & Manning on Criminal Law (3rd ed. 1994), at p.520.)

As Dickson J. (as he then was) observed in Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 831, “[t]he mental element of a crime ordinarily involves no reference to motive”. Instead, he noted, “[i]n most criminal trials, the mental element, the mens rea with which the court is concerned, relates to ‘intent’”. Intention, however, is distinct from desire or subjective wish. As Lord Simon of Glaisdale (dissenting, but on another issue) stated in Lynch, supra, at p. 690:

[A]n intention to bring about a consequence of an act can co-exist with a desire that such consequence should not ensue.... [A] wish is a particular instance of desire.... [T]herefore, an intention to perform the act with foreseen consequences can co-exist with a wish not toperform an act or that its consequences should not ensue (this is crucial in considering the juridical effect of duress). [Emphasis in original.]

Parliament is, of course, entitled to define the mental element of criminal offences in whatever manner it sees fit (subject, of course, to the requirements of s. 7 of the Canadian Charter of Rights and Freedoms: see, for instance, Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Martineau, [1990] 2 S.C.R. 633; and R. v. Logan, [1990] 2 S.C.R. 731). Thus, Parliament could choose to make it an element of a given offence that the perpetrator have some particular desire at the time of the commission of the actus reus, or even make it a precondition for liability that an actor have a particular motive for performing a prohibited act. In the present appeal, of course, we are not called upon to conduct an exhaustive review of the Criminal Code for the purposes of identifying any or all offences with mental elements that might be capable of being negated by duress. Rather, the present case, like Paquette, involves the special situation of liability under s. 21 of the Code. Thus, our analysis can be restricted to the question of whether the mens rea requirements for party liability contained in s. 21 are of the sort that can, in some circumstances, be “negated” by coercion. Since the sole aspect of s. 21 left with the jury in the appellant’s trial was s. 21(1)(b), the analysis could, strictly speaking, be restricted to that subsection. It is difficult, however, to embark upon an examination of the mental element of s. 21(1)(b) without being seen as inferentially commenting on s. 21(2), thereby calling into question the Court’s holding in Paquette, supra. In my view, in order to avoid creating undue confusion and uncertainty in the law, it is appropriate that we address the issue of the continued validity of Paquette’s statements on the relation between duress and mens rea under s. 21(2) head on. I will thus extend my analysis beyond what is strictly necessary for the resolution of the present appeal by, considering s. 21(2) in addition to s. 21(1)(b).

(3) The Mens rea Requirements for Party Liability Under Section 21

(a) Section 21(1)(b)

As noted earlier, s. 21(1)(b) imposes criminal liability as a party on anyone who “does or omits to do anything for the purpose of aiding any person to commit” an offence. Although a person who is a party to an offence is guilty of committing that offence, rather than a separate crime (as is the case for accessories after the fact), s. 21(1)(b) contains its own mens rea requirement, distinct from that applicable to the principal who actually commits the underlying offence. As the subsection states, party liability as an “aider” requires acts or omissions “for the purpose” of aiding the commission of the offence. In order to understand what effect, if any, duress might have on the mens rea of an aider, it is thus necessary to determine what “for the purpose” means in this context.

It is impossible to ascribe a single fixed meaning to the term “purpose”. In ordinary usage, the word is employed in two distinct senses. One can speak of an actor doing something “on purpose” (as opposed to by accident) thereby equating purpose with “immediate intention”. The term is also used, however, to indicate the ultimate ends an actor seeks to achieve, which imports the idea of “desire” into the definition. This dual sense is apparent in the word’s dictionary definition. For instance, the Oxford English Dictionary (2nd ed. 1989) defines “purpose” alternatively as “[t]hat which one sets before oneself as a thing to be done or attained; the object which one has in view” and as “[t]he action or fact of intending or meaning to do something; intention, resolution, determination”. The first of these definitions reflects the notion of one’s “purpose” as relating to one’s ultimate object or desire, while the latter conveys the notion of “purpose” as being synonymous with “intention”.

Commentators who have considered the meaning of “purpose” in definitions of criminal offences have come to differing conclusions on the question of which of these alternate meanings is more appropriate in this context. Professor E. Colvin, for instance, argues on behalf of the “purpose as desire” interpretation in his text Principles of Criminal Law (2nd ed. 1991). He states (at pp. 121-22):

The terms “direct intention” and “desire” are sometimes used instead of purpose. The latter term, however, best describes the relevant state of mind. In ordinary language descriptions of action, the concept of purpose usually refers to an actor’s reasons for doing what he did.... [Emphasis in original.]

According to Colvin, “an actor’s purpose was to accomplish something if the prospect of its occurrence played a causal role in his decision to do what he did” (p. 122). The actor’s knowledge that his actions will result in the occurrence, however, is not determinative. As Colvin states (at p. 123):

If it is to be concluded that an actor’s purpose in doing something did not include an outcome which was foreseen, then the actor must have been genuinely opposed or indifferent to it. Purpose is not negatived where an actor chose to bring about the outcome as a means of attaining some further objective. [Emphasis in original.]

Other commentators, however, have questioned this equation of “purpose” with “desire”, arguing instead that a person who consciously performs an act knowing the consequences that will (with some degree of certainty) flow from it “intends” these consequences or causes them “on purpose”, regardless of whether he or she desired them. As Mewett and Manning state:

[T]he distinction between purpose/intent and knowledge/intent does not work, because if there is, given an awareness of the consequences of an act, a freedom of choice as to whether one acts or not, by choosing to act those consequences have been chosen. If intent is the choosing of consequences, it does not make any difference to the existence of the intent whether theaccused wants those consequences to follow or merely knows that they will follow, without necessarily desiring them to do so.

“Intent”, is not a very descriptive word. Mens rea connotes volition on the part of the accused, that is to say, given an awareness that certain consequences will follow (or will probably follow) if he acts, an accused who chooses to act when he has the alternative of not acting “intends” those consequences in the sense of choosing to bring them about. It seems not only unnecessary but positively misleading to attempt to distinguish between purpose/intent and knowledge/intent. (Criminal Law (2nd ed. 1985), at p. 113.)

A similar argument is made by the English authors J. C. Smith and B. Hogan:

[A] person may know that he cannot achieve his purpose, A, without bringing about some other result, B. If he is to bring about A, he knows he must also, at the same time or earlier, bring about B. It may be that, in any other circumstances, he would much rather B did not happen, indeed its occurrence may be abhorrent to him. But, the choice being between going without A and having A and B, he decides to have A and B. It seems fair to say that he intends to cause B as well as A. (Criminal Law (7th ed. 1992), at p. 55.)

As this debate reveals, the term “purpose” is capable of bearing two distinct meanings, both of which can be supported by reasoned arguments. In a case, such as this one, where an interpretation of the term in a specific statutory context is required, the court’s task is to determine which of the two possible meanings best accords with Parliament’s intention in drafting the particular statutory provision at issue. In other words, our task in the present case is to consider the meaning of “purpose” as it is employed in s. 21(1)(b) of the Code in light of the Parliamentary objective underlying the subsection. It must be emphasized, however, that the word “purpose” is employed in many different sections of the Criminal Code, in a number of distinct contexts. My conclusions in the present case on the proper interpretation of the word “purpose” as it is employed in s. 21(1)(b) of the Code are thus restricted to this particular subsection. It may well be that in the context of some other statutory provision a different interpretation of the term will prove to be the most appropriate.

As I said, when Parliament drafts a statute in language that, on its face, supports more than one meaning, it is appropriate for a court to consider which of the alternative interpretations that are available best accords with Parliament’s intention (see my remarks in R. v. McIntosh, [1995] 1 S.C.R. 686, at pp. 697ff.). As I will explain, I am of the view that in the context of s. 21(1)(b) of the Code, the second of the two meanings of “purpose” discussed above -- that is, the interpretation that equates “purpose” with “intention” -- best reflects the legislative intent underlying the subsection. In contrast, adopting the first interpretation of “purpose” (the “purpose” equals “desire” interpretation) to describe the mens rea for aiding in s. 21(1)(b) would, in my view, create a number of theoretical and practical difficulties that Parliament is unlikely to have envisioned or intended.

The problems associated with the “purpose equals desire” interpretation are several. First, incorporating the accused’s feelings about the desirability of the commission of an offence by the principal into the definition of the mens rea for “aiding” can result in distinctions being made which appear arbitrary and unreasonable in light of the policy underlying s. 21(1)(b). As Professor Colvin notes, under the “purpose equals desire” interpretation a person would not be guilty of aiding in the commission of an offence if he or she were “genuinely opposed or indifferent to it” (p. 123). The reason for the aider’s indifference or opposition would be immaterial. The perverse consequences that flow from this are clearly illustrated by the following hypothetical situation described by Mewett and Manning:

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.
(Criminal Law, supra, at p. 112.)

I agree with the authors’ conclusion that “[t]hat would seem an absurd result” (p. 112). As I noted in McIntosh, supra, at pp. 704-5, “[a]bsurdity is a factor to consider in the interpretation of ambiguous statutory provisions”. That is, to quote the words of La Forest J.A. (as he then was) in New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201, at p. 210, “[t]he fact that the words as interpreted would give an unreasonable result...is certainly ground for the courts to scrutinize a statute carefully to make abundantly certain that those words are not susceptible of another interpretation”. In my view, the absurdity that would flow from the equation of “purpose” with “desire” cannot legitimately be ascribed to Parliamentary intention. his serves to cast considerable doubt on the correctness of this interpretation of the word “purpose” in this context, especially when one recalls that there exists an alternative interpretation of the word that can just as accurately be said to reflect its “plain meaning”, under which this absurdity would be avoided.

A further guide to Parliament’s intention can be gleaned from an examination of the common law governing party liability. Although s. 21 of the Code was intended to simplify the law governing parties by eliminating the old distinctions drawn at common law between principals in the first and second degree, accessories before the fact, etc., there is no indication, in the section or elsewhere, of any intention by Parliament to radically alter the basic principles of party liability, including its mental element. As Mewett and Manning state:

It must...be kept in mind that the conduct that gave rise to criminal liability at common law remains the basis of modern liability and while the former labels have gone, the principles remain.
(Mewett & Manning on Criminal Law, supra, at p. 268.)

For this reason, cases dealing with party liability at common law can be instructive when interpreting s. 21 of the Code.

The leading English case on the issue of whether duress negates the mens rea of parties to offences (under the common law governing party liability) is the House of Lords’ decision in Lynch, supra. As Professor G. Williams observes in his Textbook of Criminal Law (2nd ed. 1983), at p. 624:

The view taken by the majority of the House of Lords in Lynch was that duress is a defence on its own, and does not negative either the doing of the act charged or the mens rea. This is plainly right.

Although five separate speeches were delivered in Lynch, the general tenor of the reasons of those members of the House who considered the issue is typified by Lord Edmund-Davies’ statement (at p. 710) that:

At the end of the day, the defence of duress is probably best evaluated without reference to its supposed relation to either actus reus or mens rea, for, in the words of Professor Turpin [1972] C.L.J. 205, “not every morally exculpatory circumstance has a necessary bearing on these legal ingredients of crime.”

While another aspect of the judgment in Lynch -- the holding that the common law defence of duress was available to persons charged with aiding or abetting murder -- was subsequently overruled in R. v. Howe, [1987] 1 A.C. 417, in Howe the House of Lords confirmed the statements that had been made in Lynch on the relation between duress and mens rea. As Lord Hailsham of Marylebone L.C. stated in Howe (at p. 428):

The . . . unacceptable view is that, possibly owing to a misunderstanding which has been read into some judgments, duress as a defence affects only the existence or absence of mens rea. The true view is stated by Lord Kilbrandon (of the minority) in Lynch [1975] A.C. 653 and by Lord Edmund-Davies (of the majority) in his analysis at p. 709.

Lord Bridge of Harwich took a similar position, declaring (at p. 436), with reference to Lynch, that “[t]he theory that the party acting under duress is so far deprived of volition as to lack the necessary criminal intent has been clearly shown to be fallacious....”

These English cases reveal that the mens rea for party liability at common law is not of the sort that is capable of being “negated” by duress. Put another way, it is not a precondition for party liability at common law that an accused actively desire that the underlying criminal offence be successfully committed. As Lord Morris of Borth-y-Gest stated in Lynch, supra, at p. 678 (referring to the facts in that case):

If in the present case the jury were satisfied that the car was driven towards the garage in pursuance of a murderous plan and that the appellant knew that that was the plan and intentionally drove the car in execution of that plan, he could be held to have aided and abetted even though he regretted the plan or indeed was horrified by it. However great his reluctance, he would have intended to aid and abet.

The position at common law, of course, does not in and of itself determine the meaning to be ascribed to the word “purpose” in the context of s. 21(1)(b) of the Code. It can, however, provide useful guidance when it comes to choosing between the two interpretations of the term that are available -- one that accords with the common law position and the other that contradicts it. In the absence of reason to believe that Parliament intended its enactment of s. 21(1)(b) to radically alter the common law principles governing party liability, the interpretation that accords with the common law would seem to also be the most likely to accurately embody Parliament’s intentions. This observation strengthens my conclusion that Parliament’s use of the term “purpose” in s. 21(1)(b) should not be seen as incorporating the notion of “desire” into the mental state for party liability, and that the word should instead be understood as being essentially synonymous with “intention”.

This interpretation is, moreover, consistent with the approach that has been taken on previous occasions by this Court in connection with s. 21(1)(b). In R. v. Kirkness, [1990] 3 S.C.R. 74, for instance, Cory J. (writing for a majority of the Court) stated (at p. 88):

[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.

Finally, I am satisfied that the interpretation of the mens rea for liability under s. 21(1)(b) that I am proposing will not result in unjust convictions in cases involving coercion by threats of death or bodily harm, since in these cases the common law defence of duress will remain available to the accused. As I will explain shortly, this defence, properly understood, provides an excuse to persons who assist in the commission of offences as a result of threats of serious violence. On the other hand, interpreting “purpose” as equivalent to “desire” in s. 21(1)(b) would result in the introduction of unnecessary complication into the law. Under such an interpretation, juries in duress cases would have to be provided with extremely complex instructions that would, in the end, have very little, if any, impact on the final determination of guilt or innocence. As a matter of logic, the issue of whether an accused can invoke an excuse or justification arises only after the Crown has proven the existence of all the elements of the offence, including mens rea. Thus, if “purpose” were understood as incorporating “desire”, and hence as being susceptible to “negation” by duress, trial judges would have to instruct juries accordingly. This would require judges, and juries, to delve into the arcane issue of whether a person who intentionally commits an offence in order to save his or her own skin commits the offence “on purpose” -- a question of some philosophical significance, perhaps, but no easy matter for a judge to explain succinctly, or for a jury to comprehend readily. At the same time, trial judges would also have to provide juries with alternative instructions on the excuse-based common law defence of duress. While in many cases an aider who actively desires the commission of the offence he or she aids will not be able to legitimately claim that he or she acted under duress, this will not inevitably be so (consider, for instance, the hypothetical example, discussed earlier, of the parent whose child is held hostage by confederates of robbers, who is told that the child will be released unharmed only if he or she assists in the successful commission of a robbery). Consequently, in at least some cases juries would be forced to consider two alternate legal routes leading to an acquittal by reason of duress. This complication would, however, have little or no practical effect, since there will be few, if any, cases involving parties in which a “defence” of “negation of mens rea by duress” would succeed where recourse to the excuse-based common law defence of duress would not also lead to an acquittal. As Professor D. Stuart observes (Canadian Criminal Law: A Treatise (3rd ed. 1995)), introducing the notion of duress “negating”mens rea into the analysis serves only to muddy the conceptual waters. As he points out (at p. 420):

The advantages [of viewing the operation of duress solely in terms of an excuse] are more than linguistic. If the defence of duress is viewed like any other justification or excuse as based squarely on policy considerations allowing one who has committed an actus reus with mens rea to escape in certain circumstances, the policy issues are focussed without confusing the matter as one of mens rea.

For these reasons, I conclude that the expression “for the purpose of aiding” in s. 21(1)(b), properly understood, does not require that the accused actively view the commission of the offence he or she is aiding as desirable in and of itself. As a result, the mens rea for aiding under s. 21(1)(b) is not susceptible of being “negated” by duress. The trial judge’s charge to the jury in the present case was thus incorrect in two respects. First, the reference to the relevant mental state in the present case as being a “common intention to carry out an unlawful purpose” was erroneous since, unlike Paquette, what was at issue in the present case was s. 21(1)(b), as opposed to s. 21(2). Second, in light of the mental element for commission of an offence  under s. 21(1)(b), the suggestion that duress might “negate” the accused’s mens rea was also incorrect.

(b) Section 21(2) and the Decision in Paquette

The preceding discussion suffices to resolve the question of the relation between duress and mens rea that directly arises in the present case. As I indicated earlier, however, I believe that in the interests of avoiding undue confusion in the law that applies to duress cases I should proceed further, and look expressly at the question of whether the interpretation of s. 21(2)’s mental element that was adopted by the Court in Paquette, supra, remains correct in light of the interpretation of s. 21(1)(b) I am now adopting. To be sure, the respective mens rea requirements of the two subsections are defined differently  -- while s. 21(1)(b) imposes party liability on persons who “do or omit to do anything for the purpose of aiding any person to commit [an offence]”, s. 21(2) establishes that “persons [who] form an intention in common to carry out an unlawful purpose and to assist each other therein” are liable for criminal offences committed by the principal that are foreseeable and probable consequences of carrying out the “common purpose”. There is, however, a close connection between the two subsections, arising from the evident similarities that exist between certain aspects of s. 21(2)’s requirements and the terms of s. 21(1)(b). As I have explained in the previous section, a person who does something “for the purpose of aiding” another to commit a criminal offence (and who is thus liable under s. 21(1)(b)) invariably “intends” to assist the principal to carry out “an unlawful purpose” -- an “intention” that is not susceptible of being “negated” by the fact that it arises as the result of threats of death or bodily harm. Furthermore, the terms “aid” and “assist” are virtually synonymous. Section 21(2), however, contains two further qualifications -- the accused’s intention must be “an intention in common” with the principal, and the intention to assist must be reciprocal (that is, two or more persons must have “an intention in common ... to assist each other therein”). The question that must be addressed, therefore, is whether these additional qualifications on the requisite “intention” raise the prospect of an accused’s mens rea being “negated” by duress. In particular, we must consider whether the requirement that the accused have an “intention in common” with another person has this effect.

As was the case with the term “purpose” in s. 21(1)(b), the phrase “intention in common” is capable of being understood in more than one sense. One possible interpretation is that “intention in common” means no more than that the two persons must have in mind the same unlawful purpose. Alternatively, however, it might be argued that the requirement of “commonality” requires that the two persons’ intentions match in greater detail -- in particular, that their motives or subjective views as to the desirability of the commission of the “unlawful purpose” match up. If this latter interpretation were adopted, it could be argued that although persons who assist others to commit criminal acts as a result of threats made by the others would “intend” to provide such assistance, their intention would not be “in common” with the intentions of the threatener, due to the different motives and, possibly, views as to the immediate desirability of the criminal activity at issue. In contrast, under the former interpretation a person would fall within the ambit of s. 21(2) if they intended to assist in the commission of the same offence envisioned by the principal, regardless of the fact that their intention might be due solely to the principal’s threats. Of course, it would be open to such a person to avoid criminal liability through the common law defence of duress.

As noted earlier, in Paquette, supra, Martland J. took the position that “intention in common” meant something more than “intention to commit or aid in the same offence”, arguing (at p. 197) that:

A person whose actions have been dictated by fear of death or of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate.

The phrase “intention in common” is certainly open to being interpreted in this manner. However, notwithstanding the considerable weight I place on and the respect I have for the opinion of Martland J., I have come to the conclusion that, in the context of s. 21(2), the first interpretation discussed above is more consistent both with Parliament’s intention and with the interpretation of s. 21(1)(b) I have adopted in these reasons. Many of the factors I considered earlier in the course of determining the meaning to be ascribed to the term “purpose” in s. 21(1)(b) apply with similar force to the problem of interpreting s. 21(2). Parliament’s purpose in enacting s. 21(2) is clear. As the Ontario Court of Appeal (per Doherty J.A.) noted in R. v. Jackson (1991), 68 C.C.C. (3d) 385, at p. 421 (aff’d [1993] 4 S.C.R. 573):

[Section 21(1)] is aimed at those who participate in the actual offence for which liability is imposed. Section 21(2) widens the circle of criminal culpability to include those who do not participate in the alleged crime but who do engage in a different criminal purpose and foresee the commission of the alleged offence by a party to that criminal purpose as a probable consequence of the pursuit of the criminal purpose....

That is, Parliament has chosen to impose liability on persons who engage in criminal conduct with others for additional criminal acts that could be foreseen as likely to be committed in furtherance of the underlying offence (within the limits imposed by the Charter: see Logan, supra). Interpreting the expression “intention in common” as connoting a mutuality of motives and desires between the party and the principal would restrict the scope of this section in a manner that is difficult to justify on the basis of Parliamentary intention. As was the case with the interpretation of “purpose” in s. 21(1)(b), adopting this interpretation of “intention in common” would remove all manner of persons from the scope of s. 21(2) in addition to those whose intention is the product of threats of death or serious bodily harm since, once again, the reason for the divergence in motive and desire would be immaterial to the question of whether the party’s and principal’s “intentions” matched to a sufficient degree. This result, I believe, can no more be ascribed to Parliament’s intention than could the similar result that would flow from equating “purpose” with “desire” in s. 21(1)(b), which I discussed earlier. In my opinion, a much more plausible interpretation of Parliament’s purpose is that the “commonality” qualification on the subsection’s mental element is simply meant to ensure that accused persons are not convicted of crimes committed in furtherance of offences to which they are not party.

Furthermore, as was the case with s. 21(1)(b), the interpretation of s. 21(2)’s mens rea requirement that was adopted by the Court in Paquette is not essential as a means of ensuring the avoidance of unjust convictions in duress cases, since here, as in cases involving s. 21(1)(b), accused persons who act under duress have recourse to the protection from criminal liability provided by the common law defence of duress. At the same time, it can be seen that the interpretation of s. 21(2) adopted in Paquette significantly complicates the law of duress, in so far as it requires juries to be instructed on both the manner in which duress might “negate”mens rea and on the common law defence of duress itself, notwithstanding the fact that both cover essentially the same ground. This problem would be exacerbated if the interpretation of s. 21(2) in Paquette was preserved alongside the interpretation of s. 21(1)(b) that we are adopting in the present appeal. In a significant number of cases, the two subsections will be presented to the jury as alternative bases for liability. In such cases, a trial judge who was required to follow both the holding in this case and Paquette would have to instruct the jury that the accused’s subjective view as to the desirability of the commission of the offence was not relevant to s. 21(1)(b), but that it was relevant to s. 21(2), and that the existence of duress might “negate”mens rea under the latter (but not the former) provision. He or she would then have to go on to charge the jury, in the alternative, on the common law defence of duress. While complex jury instructions are sometimes unavoidable if justice is to be done, I am of the view that unnecessary complexity is something that courts should strive to avoid. The Canadian justice system places considerable faith in jurors’ ability to follow the trial judge’s instructions. In exchange, I believe it is incumbent on the courts to do what they can to ease, rather than add to, the difficult burden we call upon jurors to bear, subject, of course, to the overriding imperative that trial fairness be preserved.

For these reasons, I am of the view that the comments of Martland J. in Paquette, supra, on the relation between duress and mens rea in the context of s. 21(2) can no longer be considered the law in Canada. I hasten to point out, however, that overturning this holding in Paquette does not affect the validity of that case’s first aspect, namely, that the common law defence of duress continues to apply in cases involving party liability under s. 21 of the Code. Furthermore, it can be noted in passing that, on the facts of Paquette, the accused’s acquittal could well have been supported on the basis of the excuse provided by the common law defence of duress rather than on the notion that his intention to assist in the commission of the robbery was “negated” by duress.


(4)   Conclusions on Duress and Mens rea

The conclusions that can be extracted from the discussion in the previous sections may be summarized as follows:

The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can in some instances be relevant to the question of whether he or she possessed the mens rea necessary to commit an offence. Whether or not this is so will depend, among other things, on the structure of the particular offence in question -- that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea. If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he or she possessed the mental state required for liability.

[A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse-based defence (either the statutory defence set out in s. 17 or the common law defence of duress, depending on whether the accused is charged as a principal or as a party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea.][13]

The mental states specified in ss. 21(1)(b) and 21(2) of the Criminal Code are not susceptible to being “negated” by duress. Consequently, it is not open to persons charged under these sections to argue that because their acts were coerced by threats they lacked the requisite mens rea. Such persons may, however, seek to have their conduct excused through the operation of the common law defence of duress.

It should be reiterated, however, that the holding in the present case is based on an interpretation of the particular terms of two specific offence-creating statutory provisions, ss. 21(1)(b) and 21(2) of the Criminal Code. The question of whether other offences can be found, either in the Code or in some other statute, that are defined in such a way that the presence of coercion is relevant to the existence of mens rea remains open.

 

R. v. Moo
[2009] O.J. No. 3706
Ontario Court of Appeal

The judgment of the Court was delivered by
1     D. WATT J.A.:—Kolumbus Saw Moo and his wife, Deena Naw, argued constantly about money and where Ms. Naw's parents should live. Ms. Naw wanted to buy a new home, a bigger place where her parents, she and Moo could live together. Moo thought otherwise. Moo didn't like his wife's father and wanted no part of any shared accommodation, much less going into debt to purchase it.
2     Despite their differences, Moo and Naw went house hunting on September 8, 2001. During preparations for their evening meal, the couple re-invigorated their long-standing acrimony over where Ms. Naw's parents should live. Moo picked up a four and one-half pound mortar in which he had been grinding chili peppers, then hit his wife at least twice over the head with it. The force of the blows shattered Ms. Naw's skull and caused her irreversible brain damage. She died later in hospital.
3     The jury convicted Moo (the appellant) of second degree murder, the offence with which he was charged. The appellant claimed that his crime was manslaughter, not murder. He says that his conviction is flawed and a new trial should be directed [because] the trial judge misdirected the jury in responding to their question about the definition of murder in s. 229(a)(ii) of the Criminal Code and, in particular, about the meaning of recklessness…

32     Shortly after noon on the second day of their deliberations, the jury sent this question to the trial judge:

"We, the Jury, would like clarification on the wording of the second clause of state of mind for murder 2 and a definition of the word 'reckless'. And can we get the exact wording of the state of mind for murder 2."

35     When the jury returned to the courtroom, the trial judge read them the text of s. 229(a). He explained the meaning of "reckless" in these terms:

Reckless is he who seeks the risks and takes it anyway. Recklessness is found in the attitude of one who is aware there is danger that his conduct could bring about the result prohibited by criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risks and who takes the chance.

I think that is basically what we see with reckless, someone who does something and gives no consideration to the consequences or, you know, is completely - doesn't care what the consequences are, So I hope that definition of reckless, as I have read to you in that case, will be of assistance to you.

36     The trial judge then turned to the contemporaneity requirement as expressed in Cooper. He read paragraphs 34 and 35 of the decision in Cooper, which include this passage:
Thus the section requires the accused to intend to cause the gravest of bodily harm that is so dangerous and serious that he knows it is likely to result in death and to persist in that conduct despite the knowledge of the risk.

37     The jury asked no further questions. They returned their verdict about five hours after their question had been answered.
38     The parties agree that the trial judge erred in the meaning he assigned to recklessness in the re-charge. Like others before him, and at the express urging of both counsel at trial (neither of whom were counsel on appeal), the trial judge explained recklessness as it had been defined in Sansregret [v. The Queen, [1985] 1 S.C.R. 570]. There, recklessness was described as the attitude of a person who, "aware that there is a danger that his conduct could bring about" the prohibited result, nevertheless persists despite the risk. Recklessness is the conduct of a person who sees the risk and takes the chance. In the fault element of murder in s. 229(a)(ii), the accused must foresee a likelihood of death flowing from the bodily harm she or he is intentionally causing the victim - foresight of a mere danger of death is not sufficient.

45     The fault element in the definition of murder in s. 229(a)(ii) consists of three components:

Intention (to cause bodily harm);
Knowledge (that the bodily harm will probably be fatal);
Recklessness (whether the victim dies or lives);

Subjective foresight of death is a constitutional requirement for the crime of murder: R. v. Martineau, [1990] 2 S.C.R. 633, at p. 646.
46     The most prominent among the three components of the fault element in s. 229(a)(ii) is the intention to cause bodily harm of such a grave and serious nature that the person inflicting the harm, the accused, knows that the harm is likely to kill the victim. This combination of intention and subjective foresight of the likelihood of death renders the recklessness component in s. 229(a)(ii) almost an afterthought: R. v. Nygaard, [1989] 2 S.C.R. 1074, at pp. 1087-1088.
47     The recklessness component of the fault element in s. 229(a)(ii) does not exist in a vacuum as the only mental or fault element, rather works together with the intentional infliction of horrible bodily harm: Nygaard, at p. 1088. The variation in the degree of culpability as between the fault elements of ss. 229(a)(i) and 229(a)(ii) is too slight to warrant distinction: Nygaard, at pp. 1088-1089.
48     The requirement in s. 229(a)(ii) that the fatal assault be carried out in a reckless way, in other words by heedlessly proceeding with the deadly assault well-knowing the obvious risks, adds nothing to the vital element of the intent to cause bodily harm that the killer knows is likely to cause death and yet persists in the assault: Nygaard, at p. 1088. Anyone who causes bodily harm that she or he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences that she or he knows are likely to happen: R. v. Cooper, [1993] 1 S.C.R. 146, at pp. 154-155. In other words, such a person must, perforce, be reckless whether the victim lives or dies: Cooper, at p. 155.
49     Several recent decisions of this court have considered the effect of erroneous instructions on various aspects of the fault element in s. 229(a)(ii).
50     In R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.), the trial judge defined recklessness as "if a person knows that the bodily harm that he is inflicting will likely cause death but goes ahead and inflicts it anyway, that person is reckless or heedless of the consequences", and later as "careless as to the consequences or lacking in prudence or caution". The court considered that the instructions accurately captured the meaning of recklessness, although the terms "careless" and "lacking in prudence" were better avoided: Portillo, at para. 59.
51     In R. v. Czibulka (2004), 189 C.C.C. (3d) 199 (Ont. C.A.), the trial judge described a person as reckless "if the person is aware that there is a danger that their conduct could bring about death from bodily harm". The court considered that the use of "danger" rather than "likelihood" constituted an error: Czibulka, at para. 68.
52     The instructions in Czibulka contained a second error—substitution of "bodily harm" for "death" in the phrase "he knows is likely to cause death" in s. 229(a)(ii). In other words, the Czibulka instructions contained errors in connection with two of the three components of the fault element in s. 229(a)(ii): knowledge and recklessness. The appeal was allowed on another ground (the wrongful admission of hearsay), thus the court was not required to examine the effect of the errors in the instructions on the fault element on the verdict rendered at trial.
53     The trial judge in R. v. Latoski (2005), 200 C.C.C. (3d) 361 (Ont. C.A.) also substituted "danger" for "likelihood" in discussing the knowledge and recklessness components in s. 229(a)(ii). The court considered the error in the context of the instructions on the fault element as a whole, and concluded that the jury's attention had been properly focused on likely consequences: Latoski, at para. 18. Of importance in considering the effect of the misdirection were prior and subsequent correct recitations of the statutory language and trial counsel's failure to object to the instructions. See also, R. v. Lessey (2006), 208 C.C.C. (3d) 186 (Ont. C.A.), at paras. 11-12.
54     In R. v. Patterson (2006), 205 C.C.C. (3d) 171 (Ont. C.A.), the jury sought clarification of the "state of mind required for murder". The trial judge and counsel thought that a definition of recklessness was required. The trial judge explained recklessness in these terms:

Now as to the word reckless, that I didn't expand on but I will give you the meaning of that word now or express it in another way.

In effect, it means that Patterson saw the risk that Gomes could die from the injury but went ahead anyway and took the chance. That is the meaning of the word reckless.
The jury convicted the appellant of murder one hour after this instruction had been given.

55     In Patterson, as in Czibulka, the erroneous instruction was given in answer to a question posed by the jury well into their deliberations. The verdict followed shortly. The court in Patterson ordered a new trial, principally, if not entirely, on the basis that certain propensity evidence tendered by the defence had been wrongly excluded. It is not clear from Patterson whether, on its own, the flaw in the re-charge on recklessness would have required a new trial: Patterson, at para. 52.
56     In R. v. MacDonald (2008), 236 C.C.C. (3d) 269 (Ont. C.A.), the trial judge diluted the foresight requirement in assigning meaning to "reckless" in s. 229(a)(ii). The error, which substituted risk of death for likelihood of death, occurred in both the main charge and in the judge's response to a jury question seeking clarification of the intent necessary for murder. Despite the error and its repetition in response to the jury's question, the court was not prepared to conclude that what occurred had amounted to misdirection, much less to reversible misdirection: MacDonald, at para. 53. Of importance to the court in its assessment of the effect of the error were:

i.          the redundance of recklessness in most circumstances to which s. 229(a)(ii) applies;
ii.         the fact that the instruction on recklessness did not detract from instructions that described the Crown's obligation to prove the accused's knowledge of the likelihood that death would follow from the bodily harm inflicted;
iii.        the terms of the question posed by the jury in connection with the fault element in murder;
iv.        the several correct repetitions of the precise words of s. 229(a)(ii); and
v.         the unlikelihood that the erroneous description of recklessness would obscure the clear, straightforward statutory language of s. 229(a)(ii).

See also, R. v. Rybak (2008), 233 C.C.C. (3d) 58 (Ont. C.A.), at paras. 126-133. Leave to appeal refused, [2008] S.C.C.A. No. 311, 237 C.C.C. (3d) vi (S.C.C.).
57     To round out this canvas of governing principles, it is helpful to recall that, although jury instructions must always be read as a whole, questions from the jury, which reveal that the jury, or at least one or more of its members, have encountered a specific problem during their deliberations, require clear, correct and comprehensive judicial response: R. v. S. (W.D.), [1994] S.C.R. 521, at p. 528. As a general rule, errors made in responses to jury questions during deliberations cannot be saved by prior correct instructions in the main charge: S. (W.D.), at pp. 530-531. The greater the passage of time between the main charge and the jury question and judicial answer, the more imperative it is that the response be correct and comprehensive: S. (W.D), at p. 531.
58     I would not give effect to this ground of appeal despite the fact that the misdirection occurred in a recharge in response to a question from the jury….
67     In this case, the jury was properly and repeatedly instructed on the critical intention and knowledge components of the fault element in s. 229(a)(ii): the intention to cause bodily harm that the appellant knew would likely kill his wife. The single error was in an answer provided to a jury question on the recklessness component of the fault element in s. 229(a)(ii). A correct instruction followed. The appellant struck his wife over the head at least twice, more likely four times, with a four and one-half pound mortar he held in both hands and applied to her head with significant force. In these circumstances, the use of "danger" instead of "likelihood" in the definition of recklessness recedes to background noise.

 

E.        The Boundaries of Culpability: Subjective vs. Objective Fault

 

R. v. G and another
House of Lords
[2003] UKHL 50

LORD BINGHAM OF CORNHILL:— My Lords,
[1]        the point of law of general public importance certified by the Court of Appeal to be involved in its decision in the present case is expressed in this way:

‘Can a defendant properly be convicted under s 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics, the risk would not have been obvious to him, even if he had thought about it?’

The appeal turns on the meaning of ‘reckless’ in that section. This is a question on which the House ruled in R v Caldwell [1981] 1 All ER 961, [1982] AC 341, a ruling affirmed by the House in later decisions. The House is again asked to reconsider that ruling.
[2]        The agreed facts of the case are very simple. On the night of 21-22 August 2000 the appellants, then aged 11 and 12 respectively, went camping without their parents’ permission. In the early hours of 22 August they entered the back yard of the Co-op shop in Newport Pagnell. They found bundles of newspapers which they opened up to read. The boys then lit some of the newspapers with a lighter they had with them. Each of them threw some lit newspaper under a large plastic wheelie-bin, between which and the wall of the Co-op there was another similar wheelie-bin. The boys left the yard without putting out the burning papers. The newspapers set fire to the first wheelie-bin and the fire spread from it to the wheelie-bin next to the shop wall. From the second bin the fire spread up under the overhanging eave, to the guttering and the fascia and then up into the roof space of the shop until eventually the roof of the shop and the adjoining buildings caught fire. The roof collapsed. Approximately £1m worth of damage was caused. The appellants’ case at trial was that they expected the newspaper fires to extinguish themselves on the concrete floor of the yard. It is accepted that neither of them appreciated that there was any risk whatsoever of the fire spreading in the way that it eventually did.
[3]        An indictment was preferred against the appellants charging them with arson contrary to s 1(1) and (3) of the 1971 Act. The particulars of the offence charged were that they on 22 August 2000 ‘without lawful excuse damaged by fire commercial premises belonging to . . . others being reckless as to whether such property would be damaged’.
[4]        Section 1 of the 1971 Act provides:

‘(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.’

Section 4(1) of the Act provides that a person guilty of arson under s 1 shall on conviction on indictment be liable to imprisonment for life.

The trial

[5]        The appellants stood trial before Judge Maher in March 2001. At the outset of the trial, submissions were made on the meaning of ‘reckless’ in s 1(1) of the 1971 Act since the appellants were charged with being reckless whether the premises would be destroyed or damaged and not with intending to destroy or damage them. The judge ruled (in effect) that he was bound to direct the jury in accordance with R v Caldwell, [1982] A.C. 341….
[After the jury returned a guilty verdict,] the judge made a one-year supervision order in the case of each appellant. It was not suggested in argument before the House that the judge’s directions to the jury were other than correct on the law as then understood and applied….
[18]      In a leading opinion [in R v Caldwell] with which Lord Keith of Kinkel and Lord Roskill agreed, but from which Lord Wilberforce and Lord Edmund-Davies dissented, Lord Diplock … held [that it was] no less blameworthy for a man whose mind was affected by rage or excitement or drink to fail to give his mind to the risk of damaging property than for a man whose mind was so affected to appreciate that there was a risk of damage to property but not to appreciate the seriousness of the risk or to trust that good luck would prevent the risk occurring. He observed ([1981] 1 All ER 961 at 965, [1982] AC 341 at 352):

‘My Lords, I can see no reason why Parliament when it decided to revise the law as to offences of damage to property should go out of its way to perpetuate fine and impracticable distinctions such as these, between one mental state and another. One would think that the sooner they were got rid of the better.’

… Lord Diplock … preferred the ordinary meaning of ‘reckless’ which --
‘surely includes not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.

If one is attaching labels, the latter state of mind is neither more nor less “subjective” than the first. But the label solves nothing. It is a statement of the obvious; mens rea is, by definition, a state of mind of the accused himself at the time he did the physical act that constitutes the actus reus of the offence; it cannot be the mental state of some non-existent hypothetical person.’

To decide whether a person had been reckless whether harmful consequences of a particular kind would result from his act it was necessary to consider the mind of ‘the ordinary prudent individual’ ([1981] 1 All ER 961 at 966, [1982] AC 341 at 354). In a passage which has since been taken to encapsulate the law on this point, and which has founded many jury directions (including that in the present case) Lord Diplock then said ([1981] 1 All ER 961 at 967, [1982] AC 341 at 354):

‘In my opinion, a person charged with an offence under s 1(1) of the 1971 Act is “reckless as to whether or not any property would be destroyed or damaged” if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has none the less gone on to do it. That would be a proper direction to the jury; cases in the Court of Appeal which held otherwise should be regarded as overruled.’
….
[19]      In his dissenting opinion Lord Edmund-Davies … drew attention to the Law Commission’s preparation of the 1971 Act and its definition of recklessness in Working Paper No 31 and continued:

‘It was surely with this contemporaneous definition and the much respected decision of R v Cunningham in mind that the draftsman proceeded to his task of drafting the 1971 Act.’

He observed ([1981] 1 All ER 961 at 970, [1982] AC 341 at 358):

‘In the absence of exculpatory factors, the defendant’s state of mind is therefore all-important where recklessness is an element in the offence charged, and s 8 of the Criminal Justice Act 1967 has laid down that:

“A court or jury, in determining whether a person has committed an offence,-(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.”…

Conclusions

[28]      The task confronting the House in this appeal is, first of all, one of statutory construction: what did Parliament mean when it used the word ‘reckless’ in s 1(1) and (2) of the 1971 Act?  In so expressing the question I mean to make it as plain as I can that I am not addressing the meaning of ‘reckless’ in any other statutory or common law context….
[29]      Since a statute is always speaking, the context or application of a statutory expression may change over time, but the meaning of the expression itself cannot change. So the starting point is to ascertain what Parliament meant by ‘reckless’ in 1971. As noted at [13], above, s 1 as enacted followed, subject to an immaterial addition, the draft proposed by the Law Commission. It cannot be supposed that by ‘reckless’ Parliament meant anything different from the Law Commission. The Law Commission’s meaning was made plain both in its report (Law Com no 29) and in Working Paper No 23 which preceded it. These materials (not, it would seem, placed before the House in R. v. Caldwell) reveal a very plain intention to replace the old-fashioned and misleading expression ‘maliciously’ by the more familiar expression ‘reckless’…. In treating this authority as irrelevant to the construction of ‘reckless’ the majority fell into understandable but clearly demonstrable error. No relevant change in the mens rea necessary for proof of the offence was intended, and in holding otherwise the majority misconstrued s 1 of the Act.
[30]      That conclusion is by no means determinative of this appeal. For the decision in R. v. Caldwell was made more than 20 years ago. Its essential reasoning was unanimously approved by the House in R. v. Lawrence. Invitations to reconsider that reasoning have been rejected. The principles laid down have been applied on many occasions, by Crown Court judges and, even more frequently, by justices. In the submission of the Crown, the ruling of the House works well and causes no injustice in practice. If Parliament had wished to give effect to the intention of the Law Commission it has had many opportunities, which it has not taken, to do so. Despite its power under Practice Statement (Judicial Precedent) [1966] 3 All ER 77, [1966] 1 WLR 1234 to depart from its earlier decisions, the House should be very slow to do so, not least in a context such as this.
[31]      These are formidable arguments, deployed by Mr Perry with his habitual skill and erudition. But I am persuaded by Mr Newman QC for the appellants that they should be rejected. I reach this conclusion for four reasons, taken together.
[32]      First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication (see D.P.P. v. Majewski [1976] 2 All ER 142, [1977] AC 443)) one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.
[33]      Secondly, the present case shows, more clearly than any other reported case since R. v. Caldwell [1981] 1 All ER 961, [1982] AC 341, that the model direction formulated by Lord Diplock (see [18], above) is capable of leading to obvious unfairness. [T]he trial judge regretted the direction he (quite rightly) felt compelled to give, and it is evident that this direction offended the jury’s sense of fairness. The sense of fairness of 12 representative citizens sitting as a jury (or of a smaller group of lay justices sitting as a bench of magistrates) is the bedrock on which the administration of criminal justice in this country is built. A law which runs counter to that sense must cause concern.… I share their sense of unease. It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension. Nor, the defendant having been convicted, is the problem cured by imposition of a nominal penalty.
[34]      Thirdly, I do not think the criticism of R. v. Caldwell expressed by academics, judges and practitioners should be ignored. A decision is not, of course, to be overruled or departed from simply because it meets with disfavour in the learned journals. But a decision which attracts reasoned and outspoken criticism by the leading scholars of the day, respected as authorities in the field, must command attention. One need only cite (among many other examples) the observations of Professor John Smith [1981] Crim LR 392 at 393-396 and Professor Glanville Williams ‘Recklessness Redefined’ (1981) 40 CLJ 252. This criticism carries greater weight when voiced also by judges as authoritative as Lord Edmund-Davies and Lord Wilberforce in R. v. Caldwell itself, Robert Goff LJ in Elliott v. C. (a minor) [1983] 2 All ER 1005, [1983] 1 WLR 939 and Ackner LJ in R. v. Stephen Malcolm R (1984) 79 Cr App R 334. The reservations expressed by the trial judge in the present case are widely shared. The shop floor response to R. v. Caldwell may be gauged from the editors’ commentary, to be found in Archbold’s Pleading, Evidence and Practice in Criminal Cases (41st edn, 1982) pp 1009-1010 (para 17-25). The editors suggested that remedial legislation was urgently required.
[35]      Fourthly, the majority’s interpretation of ‘reckless’ in s 1 of the 1971 Act was, as already shown, a misinterpretation. If it were a misinterpretation that offended no principle and gave rise to no injustice there would be strong grounds for adhering to the misinterpretation and leaving Parliament to correct it if it chose. But this misinterpretation is offensive to principle and is apt to cause injustice. That being so, the need to correct the misinterpretation is compelling….
[37]      In the course of argument before the House it was suggested that the rule in R. v. Caldwell might be modified, in cases involving children, by requiring comparison not with normal, reasonable adults but with normal, reasonable children of the same age. This is a suggestion with some attractions but it is open to four compelling objections. First, even this modification would offend the principle that conviction should depend on proving the state of mind of the individual defendant to be culpable. Second, if the rule were modified in relation to children on grounds of their immaturity it would be anomalous if it were not also modified in relation to the mentally handicapped on grounds of their limited understanding. Third, any modification along these lines would open the door to difficult and contentious argument concerning the qualities and characteristics to be taken into account for purposes of the comparison. Fourth, to adopt this modification would be to substitute one misinterpretation of s 1 for another. There is no warrant in the Act or in the travaux préparatoires which preceded it for such an interpretation.
[38]      A further refinement, advanced by Professor Glanville Williams (1981) 40 CLJ 252 at 270-271, adopted by the justices in Elliott’s case and commented upon by Robert Goff LJ in that case is that a defendant should only be regarded as having acted recklessly by virtue of his failure to give any thought to an obvious risk that property would be destroyed or damaged, where such risk would have been obvious to him if he had given any thought to the matter. This refinement also has attractions, although it does not meet the objection of principle and does not represent a correct interpretation of the section. It is, in my opinion, open to the further objection of over-complicating the task of the jury (or bench of justices). It is one thing to decide whether a defendant can be believed when he says that the thought of a given risk never crossed his mind. It is another, and much more speculative, task to decide whether the risk would have been obvious to him if the thought had crossed his mind. The simpler the jury’s task, the more likely is its verdict to be reliable. Robert Goff LJ’s reason for rejecting this refinement ([1983] 2 All ER 1005 at 1011-1012, [1983] 1 WLR 939 at 950) was somewhat similar.
[39]      I cannot accept that restoration of the law as understood before R. v. Caldwell would lead to the acquittal of those whom public policy would require to be convicted. There is nothing to suggest that this was seen as a problem before R. v. Caldwell, or (as noted at [12]-[13], above) before the 1971 Act. There is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time. Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done….
[41]      For the reasons I have given I would allow this appeal and quash the appellants’ convictions….

Lord Steyn:—

Justice and policy

[52]      In the case before the House the two boys were 11 and 12 respectively. Their escapade of camping overnight without their parents’ permission was something that many children have undertaken. But by throwing lit newspapers under a plastic wheelie-bin they caused £ 1m of damage to a shop. It is, however, an agreed fact on this appeal that the boys thought there was no risk of the fire spreading in the way it eventually did. What happened at trial is highly significant. The jury were perplexed by the Caldwell directions which compelled them to treat the boys as adults and to convict them. The judge plainly thought this approach was contrary to common sense but loyally applied the law as laid down in R v Caldwell. The view of the jurors and the judge would be widely shared by reasonable people who pause to consider the matter. The only answer of the Crown is that where unjust convictions occur the judge can impose a lenient sentence. This will not do in a modern criminal justice system. Parliament certainly did not authorise such a cynical strategy.
[53]      Ignoring the special position of children in the criminal justice system is not acceptable in a modern civil society. In 1990 the United Kingdom ratified the United Nations Convention on the Rights of the Child (New York, 20 November 1989; TS 44 (1992); Cm 1976) (the UN convention) which entered into force on 15 January 1992. Article 40(1) provides:

‘States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and whichtakes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.’ (Emphasis added)

This provision imposes both procedural and substantive obligations on state parties to protect the special position of children in the criminal justice system. For example, it would plainly be contrary to art 40(1) for a state to set the age of criminal responsibility of children at, say, five years. Similarly, it is contrary to art 40(1) to ignore in a crime punishable by life imprisonment, or detention during Her Majesty’s pleasure, the age of a child in judging whether the mental element has been satisfied. It is true that the UN convention became binding on the United Kingdom after R v Caldwell was decided. But the House cannot ignore the norm created by the UN convention. This factor on its own justified a reappraisal of R v Caldwell.
[54]      If it is wrong to ignore the special characteristics of children in the context of recklessness under s 1 of the 1971 Act, an adult who suffers from a lack of mental capacity or a relevant personality disorder may be entitled to the same standard of justice. Recognising the special characteristics of children and mentally disabled people goes some way towards reducing the scope of s 1 of the 1971 Act for producing unjust results which are inherent in the objective mould into which the Caldwell analysis forced recklessness. It does not, however, restore the correct interpretation of s 1 of the 1971 Act. The accepted meaning of recklessness involved foresight of consequences. This subjective state of mind is to be inferred ‘by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances’ (per Lord Edmund-Davies [1981] 1 All ER 961 at 970, [1982] AC 341 at 358, citing s 8 of the Criminal Justice Act 1967). That is what Parliament intended by implementing the Law Commission proposals.
[55]      This interpretation of s 1 of the 1971 Act would fit in with the general tendency in modern times of our criminal law. The shift is towards adopting a subjective approach. It is generally necessary to look at the matter in the light of how it would have appeared to the defendant. Like Lord Edmund-Davies I regard s 8 of the 1967 Act, as of central importance. There is, however, also a congruence of analysis appearing from decisions of the House. In Director of Public Prosecutions v Morgan [1975] 2 All ER 347, [1976] AC 182 the House ruled that a defence of mistake must be honestly rather than reasonably held. In Beckford v R [1987] 3 All ER 425 at 432, [1988] AC 130 at 145 per Lord Griffiths, the House held that self-defence permits a defendant to use such force as is reasonable in the circumstances as he honestly believed them to be. B (a minor) v Director of Public Prosecutions [2000] 1 All ER 833, [2000] 2 AC 428 concerned the offence contrary to s 1(1) of the Children Act 1961 (inciting a girl under 14 to commit an act of gross indecency). The House held that the accused’s honest belief that a girl was over 14 need not be based on reasonable grounds. Lord Nicholls of Birkenhead observed ([2000] 1 All ER 833 at 837, [2000] 2 AC 428 at 462):

‘Considered as a matter of principle, the honest belief approach must be preferable. By definition the mental element in a crime is concerned with a subjective state of mind, such as intent or belief.’

To same effect is R v K [2001] UKHL 41, [2001] 3 All ER 897, [2002] 1 AC 462 where it was held that while a girl under the age of 16 cannot in law consent to an indecent assault, it is a defence if the defendant honestly believed she was over 16. It is true that the general picture is not entirely harmonious. Duress requires reasonable belief (see Lord Lane CJ in R v Graham [1982] 1 All ER 801 at 806, [1982] 1 WLR 294 at 300, approved by the House of Lords in R v Howe [1987] 1 All ER 771, [1987] AC 417; R v Martin [1989] 1 All ER 652). Duress is a notoriously difficult corner of the law. However, in R v Graham [1982] 1 All ER 801 at 806, [1982] 1 WLR 294 at 300 Lord Lane CJ stated that in judging the accused’s response the test is:

‘. . . have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part in the [offence].’ (Emphasis added)

The age and sex of the defendant (but possibly no other characteristics) are relevant to the cogency of the threat (see R. v. Bowen [1996] 4 All ER 837, [1997] 1 WLR 372). In regard to provocation a wider view of the impact on defendant has prevailed (see R. v. Smith [2000] 4 All ER 289, [2001] 1 AC 146 (by a three to two majority)).

[Lord Hutton agreed with Lord Bingham and Lord Steyn. Lord Rodger delivered a separate speech agreeing with Lord Bingham.]

 

R. v. Tutton and Tutton
Supreme Court of Canada
[1989] 48 C.C.C. (3d) 129; [1989] 1 S.C.R. 1392

MCINTYRE J.:—This appeal raises again the question of criminal negligence, as defined in s. 202 {now s. 219} of the Criminal Code, R.S.C. 1970, c. C-34, and the test to be applied by a jury in its application to a given case.

The respondents, Carol Anne Tutton and Arthur Thomas Tutton, were the parents of a five-year-old child, Christopher Tutton, who died on October 17, 1981. After a trial before judge and jury, the Tuttons were convicted of manslaughter because of his death. They appealed the conviction. The Court of Appeal (Dubin, Goodman, Tarnopolsky JJ.A.) in a judgment written for the court by Dubin J.A. (as he then was) allowed the appeals, set aside the convictions, and directed new trials. This appeal is taken by the Crown, by leave granted May 23, 1985.

The Tuttons, according to the evidence, which was unquestioned on this point, had a good reputation in their community for honesty and integrity and, as well, they were loving and responsible parents. They were also deeply religious and they belonged to a religious sect which believes in faith healing. Their religious convictions did not prevent them from seeking and acting on medical advice nor from taking medicines, but they believed that divine intervention could miraculously effect cures for illnesses and ailments beyond the power of modern medical science.

In April, 1979, their family physician, a general practitioner named Dr. Love, diagnosed the child, Christopher, as a diabetic and admitted him to hospital where he remained for some weeks. While the child was in hospital, his mother attended classes at a diabetic education centre where she received instruction regarding insulin injections and the impact of diet and exercise on diabetes and diabetics. She also attended in July 1979, a full week of seminars at a juvenile diabetic clinic to gain an understanding of her son’s condition and to learn how to deal with it. There was then evidence upon which the jury could conclude that Mrs. Tutton had made herself competent to deal with her child’s illness under general supervision from the family, physician.

Throughout the son’s illness, the Tuttons main concern was to find a cure for the boy. They both believed that there would be a spiritual cure. They discussed this possibility with Dr. Love who considered that there was no possibility of a miraculous cure, and in November, 1979, a diabetic specialist from the Sick Children’s Hospital in Toronto advised the respondents that their son would never be able to discontinue his insulin injections. He told the respondents not to discontinue the insulin treatments. However, on October 2, 1980, Mrs. Tutton stopped giving the child insulin in the belief that he was being healed by the power of the Holy Spirit. In two days, the child became quite ill and was taken to a hospital emergency unit. The physician who attended the child said that on admission to hospital the child was dangerously ill, suffering from diabetic acidosis, a potentially fatal disorder which was due to the absence of insulin. The doctor admonished the parents when he learned that they had consciously withheld the insulin. He told the parents that insulin would be required by their son for life, and after this incident Mr. Tutton assured the family physician that insulin would not be withheld in future without consulting a doctor. A year later, however, insulin was again stopped. Mrs. Tutton believed that she had a vision of God in which she was told that Christopher was cured, that no more insulin was needed, and that God would take care of her son. The insulin injections were stopped on October 14, 1981. Mr. Tutton did not know of the withdrawal of insulin until October 15th but on learning of it he approved. The child sickened quickly. On October 17th, he was taken to the hospital where he was pronounced dead on arrival. The forensic pathologist who conducted a post-mortem examination gave his opinion that death was caused by complications of diabetic hyperglycemia. The respondents were jointly charged with manslaughter in an indictment which provided:

ARTHUR TUTTON AND CAROL TUTTON stand charged that between the period of the 14th day of October, 1981, and the 17th day of October, 1981, both dates inclusive, at the Township of Wilmot, in the Judicial District of Waterloo, being the parents of Christopher Tutton, they did cause the death of Christopher Tutton, age five years, by criminal negligence, to wit, they did, without lawful excuse, omit to provide necessaries of life to Christopher Tutton, which was their duty to provide, thereby showing wanton or reckless disregard for the life or safety of the said Christopher Tutton, and did thereby commit manslaughter, contrary to the Criminal Code.

Particulars were given in these terms:

It is further particularized that the said Arthur Tutton and Carol Tutton failed, without lawful excuse, while their said son, Christopher, was in necessitous circumstances,
(1) to provide insulin to him
(2) to obtain timely medical assistance for him.

The relevant statutory provisions which were considered in the Courts below are set out hereunder:

197.(1) {now s. 215} Every one is under a legal duty
(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),
(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
(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; or…

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.

At trial, the defence was that as far as the Crown’s case rested on the failure to provide insulin the Tuttons honestly believed that Christopher had been cured by divine intervention and, therefore, no further insulin was necessary. This would raise the defence of an honest though mistaken belief in the existence of a circumstance or circumstances which, if present, would render their conduct non-culpable. It was also argued that as far as the Crown’s case depended upon a failure to provide timely medical assistance for their son, the parents were unaware of the fact that he was seriously ill as a result of the withdrawal of the insulin and, accordingly, their conduct in this regard could not be said to exhibit a wanton or reckless disregard for the life or safety of their son.…

In reaching a conclusion as to whether the conduct of an accused person has shown, within the meaning of s. 202 of the Criminal Code, wanton or reckless disregard for the lives or safety of other persons, the authorities dictate an objective test: see the review of the authorities on this subject by Cory J.A. for the Court of Appeal in R. v.Waite (1986), 28 C.C.C. (3d) 326, 52 C.R. (3d) 355, 41 M.V.R. 119 (Ont. C.A.), approved in this court (Judgment given concurrently) [ante, p. 1]. Indeed, in the Court of Appeal, Dubin J.A. accepted the objective test as one of general application, but made an exception in cases where the conduct complained of consisted of an act or acts of omission, as opposed to those of commission. In such cases, it was his view that occasions would arise where a subjective test would be required where acts of omission were under consideration. He considered this was such a case. It is my view, however, that no such distinction as Dubin J.A. would adopt may be made. I am wholly unable to see any difference in principle between cases arising from an omission to act and those involving acts of commission. Indeed, the words of s. 202 of the Criminal Code make it clear that one is criminally negligent who, in doing anything or in omitting to do anythingthat it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. The objective test must, therefore, be employed where criminal negligence is considered for it is the conduct of the accused, as opposed to his intention or mental state, which is examined in this inquiry.

Our concept of criminal culpability relies primarily upon a consideration of the mental state which accompanies or initiates the wrongful act, and the attribution of criminal liability without proof of such a blameworthy mental state raises serious concerns. None the less, negligence has become accepted as a factor which may lead to criminal liability and strong arguments can be raised in its favour. Section 202 of the Criminal Code affords an example of its adoption. In choosing the test to be applied in assessing conduct under s. 202 of the Criminal Code, it must be observed at once that what is made criminal is negligence. Negligence connotes the opposite of thought-directed action. In other words, its existence precludes the element of positive intent to achieve a given result. This leads to the conclusion that what is sought to be restrained by punishment under s. 202 of the Code is conduct, and its results. What is punished, in other words, is not the state of mind but the consequence of mindless action. This is apparent, I suggest, from the words of the section, which make criminal, conduct which showswanton or reckless disregard. It may be observed as well that the words “wanton or reckless” support this construction, denying as they do the existence of a directing mental state. Nor can it be said that criminal negligence, as defined in s. 202, imports in its terms some element of malice or intention. This point was made in the Crown’s factum in para. 41, which provided, in part:

The plain and ordinary meaning of the terms “wanton” and “reckless” when used in connection with the concept of negligence would seem to include a state of being heedless of apparent danger. Section 202(1) does not use the term “reckless” as an extended definition of intention or malice, but rather employs the term as part of a definition of conduct which amounts to “negligence” in a criminal context.

In my view, then, an objective standard must be applied in determining this question because of the difference between the ordinary criminal offence, which requires proof of a subjective state of mind, and that of criminal negligence. In criminal cases, generally, the act coupled with the mental state or intent is punished. In criminal negligence, the act which exhibits the requisite degree of negligence is punished. If this distinction is not kept clear, the dividing line between the traditional mens rea offence and the offence of criminal negligence becomes blurred. The difference, for example, between murder and manslaughter, both unlawful killings, is merely one of intent. If the question of an accused’s intent had to be considered and separately proved in offences under s. 202 of the Criminal Code, the purpose of the section would be defeated because intentional conduct would perforce be considered under other sections of the Code and s. 202, aimed at mindless but socially dangerous conduct, would have no function. For these reasons, the objective test should be employed and, in my view, the Court of Appeal was in error in concluding in this case that a subjective test would be required. The test is that of reasonableness, and proof of conduct which reveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances will justify a conviction of criminal negligence.

In reaching this conclusion, I am not overlooking the comments I made in Sansregret v. The Queen (1985), 18 C.C.C. (3d) 223 at p. 233, 17 D.L.R. (4th) 577, [1985] 1 S.C.R. 570 (S.C.C.), which were cited by counsel for the appellant. In Sansregret, I expressed the view that “recklessness, to form a part of the criminal mens rea, must have an element of the subjective”. I then went on to say that “[I]t is in this sense that the term ‘recklessness’ is used in the criminal law and it is clearly distinct from the concept of civil negligence”. It was argued upon the basis of these words and later comments on the nature of negligence in relation to the criminal law that a subjective test should therefore be applied in considering the existence of criminal negligence under s. 202 of the Code. Iwould reject that argument on the basis that the concept of recklessness there described is not applicable in a case under s. 202 of the Code. Sansregret was charged with rape, a crime which involves positive mind-directed conduct on the part of the accused which aims at the accomplishment of a specific result. It is a traditional mens rea offence and a mental state must be proved, in that case an intention to persist with his purpose despite the fact that the complainant’s consent has been extorted by threats and fear. Recklessness on his part forms a part of the mens rea (the blameworthy state of mind) and has to be proved on a subjective basis as part of the mental element of the offence. In this sense, the words in Sansregret are apposite. Section 202, on the other hand, has created a separate offence; an offence which makes negligence—the exhibition of wanton or reckless behaviour—a crime in itself and has thus defined its own terms. As noted by Cory J.A. in R. v.Waite, s. 202 of the Criminal Code was enacted in its present form as a codification of the offence which had emerged in Canadian jurisprudence, and in respect of which the necessary mens rea may be inferred on an objective basis from the acts of the accused.

The application of an objective test under s. 202 of the Criminal Code, however, may not be made in a vacuum. Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct, surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused’s perception of those facts. Since the test is objective, the accused’s perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused’s part but only to form a basis for a conclusion as to whether or not the accused’s conduct, in view of his perception of the facts, was reasonable. This is particularly true where, as here, the accused have raised the defence of mistake of fact. If an accused under s. 202 has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct. For example, a welder, who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death.

As noted earlier, the Tuttons raised the defence of mistake of fact at trial. They argued that the failure to supply insulin was based upon the belief that the child had been cured by divine intervention and that the failure to provide medical care in timely fashion was based upon the belief that the child was not seriously ill, so medical assistance was not necessary. The trial judge, it was argued, was in error in telling the jury that for any such belief to be effective as a defence it must have been reasonably held. It was held in this court in Pappajohn v. The Queen (1980), 52 C.C.C. (2d) 481, 111 D.L.R. (3d) 1, [1980] 2 S.C.R. 120 (S.C.C.), that an honest, though mistaken, belief in the existence of circumstances which, if present, would make the questioned conduct non-culpable would entitle an accused to an acquittal. It was also held in Pappajohn that the honest belief need not be reasonable, because its effect would be to deny the existence of the requisite mens rea. The situation would be different, however, where the offence charged rests upon the concept of negligence, as opposed to that of the guilty mind or blameworthy mental state. In such case, an unreasonable though honest belief on the part of the accused would be negligently held. The holding of such a belief could not afford a defence when culpability is based on negligent conduct. I would therefore conclude that the trial judge made no error in charging the jury to the effect that any mistaken belief which could afford a defence in a charge of criminal negligence would have to be reasonable.

In the case at bar, then, the assertion of the Tuttons that they believed a cure had been effected by divine intervention and that insulin was not necessary for the preservation of the child’s life would have to be considered by the jury. The jury would have to consider whether such belief was honest and whether it was reasonable. In this, they would be required to consider the whole background of the case. They would have to take into account the experience of the Tuttons with the child’s illness; the fact that they had seen the result of the withdrawal of insulin on one occasion and that they had been informed of its necessity for the continued care of the child; and, that Mrs. Tutton had received some formal instruction or training in dealing with diabetes and diabetics. They would, as well, have to consider whether the belief in a miraculous cure leading to the conclusion that insulin and medical care were not required, though honest, was reasonable. Upon these facts and all others concerning the matter which were revealed in the evidence, the jury would be required to decide whether the refusal of insulin and medical attention represented a marked and significant departure from the standard to be observed by reasonably prudent parents.

I would dismiss the appeal and confirm the direction for a new trial.

LAMER J.:—I have read the reasons of my colleague, Mr. Justice McIntyre, and I am in agreement with them, subject to the following remarks. I am of the view that, when applying the objective norm set out by Parliament in s. 202 of the Criminal Code, there must be made “a generous allowance” for factors which are particular to the accused, such as youth, mental development, education: see Don Stuart, Canadian Criminal Law: A Treatise, 2nd ed. (1987), p. 194, Toronto: Carswell; see also Toni Pickard, “Culpable Mistakes and Rape: Relating Mens rea tothe Crime” (1980), 30 U.T.L.J. 75. When this is done, as we are considering conduct which is likely to cause death, that is high-risk conduct, the adoption of a subjective or of an objective test will, in practice, nearly if not always produce the same result: see Eric Colvin, “Recklessness and Criminal Negligence” (1982), 32 U.T.L.J. 345.

I should note that Parliament, when enacting s. 202, did not purport to determine the nature of the negligence which is required when grounding criminal liability thereupon. My understanding of s. 202 is that Parliament has in that section simply defined the expression “criminal negligence” whenever used in the Criminal Code.…

I would, as does my colleague Mr. Justice McIntyre, dismiss these appeals and let the order for a new trial stand.

WILSON J.:—I have had the benefit of the reasons of my colleagues McIntyre and Lamer JJ. and I agree with them that the appeal should be dismissed and a new trial ordered because the trial judge’s charge failed to make clear to the jury that the Crown had the burden to prove all the elements of the offence of manslaughter by criminal negligence. I do not, however, agree with my colleagues’ conclusion that criminal negligence under s. 202 of the Criminal Code, R.S.C. 1970, c. C-34, consists only of conduct in breach of an objective standard and does not require the Crown to prove that the accused had any degree of guilty knowledge. I also have reservations concerning the approach my colleagues suggest is available in order to relieve against the harshness of the objective standard of liability which they find in s. 202 and to ensure that the morally innocent are not punished for the commission of serious criminal offences committed through criminal negligence. …

I wish to deal first with the implications of my colleagues’ approach in this case. By concluding that s. 202 of the Criminal Code prohibits conduct and the consequences of mindless action absent any blameworthy state of mind, they have, in effect, held that the crime of criminal negligence is an absolute liability offence. Conviction follows upon proof of conduct which reveals a marked and substantial departure from the standard expected of a reasonably prudent person in the circumstances regardless of what was actually in the accused’s mind at the time the act was committed.…

In recent years courts and commentators have sought to deal with those aspects of s. 202 which seem to be in tension with a subjective standard. In his valuable treatise, Principles of Criminal Law (1986), Professor Eric Colvin has written at p. 120:

The reference to showing wanton or reckless disregard in s. 202 can be used to support the objective test. It is submitted, however, that it is wrong to interpret s. 202 as a complete definition of criminal negligence which includes its mens rea. The better interpretation is that the section does no more than define the conduct which is involved in criminal negligence. Mens rea then remains to be implied in accordance with general principles and this is in effect what the Supreme Court did in O’Grady. This construction is supported by the statement in another Supreme Court that “conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence.”

The other Supreme Court case to which Professor Colvin refers is Arthurs v. The Queen (1972), 7 C.C.C. (2d) 438 at p. 442, 28 D.L.R. (3d) 565, [1974] S.C.R. 287 (S.C.C.), in which Ritchie J. after examining the wording of s. 202 stated: “conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence.”  Ritchie J. then went on to elaborate on what this test means in the context of deciding whether the trial judge had erred in failing to outline a possible defence to the jury. He stated at p. 444:

I think that the second question must be governed by the test which I indicated at the outset, and that question therefore is whether the learned trial Judge failed to outline to the jury any theory of the defence which was consistent with the appellant having acted otherwise than with wanton or reckless disregard for the lives and safety of others.

What emerges from the test outlined by Ritchie J. in Arthurs is, in my view, a very workable test that is consistent with both the text and purpose of s. 202 and with the basic principles of penal liability. Conduct that displays a wanton or reckless disregard for the lives or safety of others will constitute the actus reus of the offence under s. 202 and the prima facie evidence of the accused’s blameworthy state of mind. It can be assumed that a person functioning with normal faculties of awareness and engaging in conduct which represents such a grave departure from the norm is either aware of the risk or is wilfully blind to the risk. Proof of the conduct will, in other words, cast an evidential burden on the accused to explain why the normal inference of conscious awareness or wilful blindness should not be drawn. The inference will arise in most cases because the intent requirement under s. 202 is the minimal intent requirement of awareness or advertence or wilful blindness to the prohibited risk. As Ritchie J. noted in Arthurs at p. 447 the more expansive intent requirement of deliberation is not a necessary element of the offence set out in s. 202.

As I have suggested above, the words of the section can reasonably bear an interpretation which leaves room for the mental element of awareness or advertence to a risk to the lives or safety of others or wilful blindness to such risk. Conduct which shows a wanton or reckless disregard for the lives and safety of others will by its nature constitute prima facie evidence of the mental element, and in the absence of some evidence that casts doubt on the normal degree of mental awareness, proof of the act and reference to what a reasonable person in the circumstances must have realized will lead to a conclusion that the accused was aware of the risk or wilfully blind to the risk.

Professor Glanville Williams in his work Criminal Law: The General Part, 2nd ed. (1961), explained the minimal nature of the mental element for advertent negligence and the important evidentiary use of objective standards in determining the subjective state of mind of what he terms advertent negligence. He defined the requirement of recklessness in advertent negligence as follows at pp. 53-5:

If the actor foresaw the probability of the consequences he is regarded as reckless, even though he fervently desired and hoped for the exact opposite of the consequence, and even though he did his best (short of abandoning his main project) to avoid it . . . Recklessness is any determination to pursue conduct with knowledge of the risks involved though without a desire that they should eventuate …

... recklessness may be a mere passing realisation, instantly dismissed, which leaves no mark upon conduct.
obje

Likewise, P.J.T. O’Hearn has indicated that the requirements of advertent negligence encompass any consciousness of the prohibited risk or “the mental state of one who is doing what appears to be taking chances but who is blindly wilful in doing so”: “Criminal Negligence: An Analysis in Depth”, ibid., p. 422. To take account of the minimal nature of the mental element of recklessness, Professor Williams explained in Criminal Law: The General Part, ibid., pp. 55-6:

On an issue of recklessness, these considerations may be put before the jury. There is no objection to instructing the jury to consider whether the defendant must have foreseen the consequence, but it is fatally easy to confuse this with the question whether the defendant ought as a reasonable man to have foreseen it. The latter question presupposes an objective test of the reasonable man, and the accused person’s actual foresight is immaterial. The former question is directed exclusively to the accused’s actual foresight, and the test of what a reasonable man would have foreseen is merely a step in reasoning. For example, it may be shown that the accused is mentally subnormal, or that on the occasion in question he was drunk, or suffering from some fear, anger, or other excitement which deprived him of the ability to look circumspectly to the probable outcome of his conduct. These facts would not, according to the usual view, be relevant to an issue of inadvertent negligence, if that were before the court; but they are very relevant to the issue of recklessness. They may lead the tribunal to decide that the accused did not foresee the consequence, even though a person somewhat differently situated would have foreseen it. In short, a judgment of inadvertent negligence rests merely on a comparison between the conduct of the accused and that of a reasonable man, while a judgment of recklessness uses the concept of the reasonable man only as a guide to what went on in the accused’s mind, and only so long as it can plausibly be assumed that the accused’s mind accorded with the normal at the time of his act.

I would add that the importance of what the reasonable person would have foreseen to the determination of whether a particular accused would have become aware or wilfully blind to the prohibited risk will vary with the context. For example, in the case of a licensed driver engaging in high-risk motoring, I am in general agreement with Morden J.A. in R. v. Sharp (1984), 12 C.C.C. (3d) 428 at pp. 4365, 39 C.R. (3d) 367, 26 M.V.R. 279 (Ont. C.A.), that it is open to the jury to find the accused’s blameworthy state of mind from driving which shows wanton or reckless disregard for the lives or safety of others subject to an explanation in the evidence which would account for the deviant conduct such as a sudden mechanical malfunction or a bee sting or other accident beyond the accused’s control. I would think that in the driving context where risks to the lives and safety of others present themselves in a habitual and obvious fashion the accused’s claim that he or she gave no thought to the risk or has simply a negative state of mind would in most, if not all, cases amount to the culpable positive mental state of wilful blindness to the prohibited risk.

The minimal nature of the requirement of a blameworthy state of mind and the relevance of the objective standard as a rebuttable mode of proof suggests to me that a holding that s. 202 requires proof of the mental element of advertence to the risk or wilful blindness to the risk will not undermine the policy objectives of the provision. The loss in terms of deterrence and social protection would seem to be negligible when the retention of a subjective standard would at most offer protection for those who, due to some peculiarity or unexpected accident, commit conduct which, although it shows a reckless or wanton disregard for the lives or safety of others, can be explained as inconsistent with any degree of awareness of or wilful blindness to such a risk. Should social protection require the adoption of an objective standard it is open to Parliament to enact a law which clearly adopts such a standard. In my respectful view this court should not do it for them.

I do not think that a subjective interpretation of s. 202renders the role of manslaughter committed by means of criminal negligence superfluous within the scheme of the homicide provisions of the Criminal Code. The murder provisions will in general be available only if a higher degree of intent is proven than awareness of or wilful blindness to a risk to the lives and safety of others. For example s. 212(a) and (b) {s. 229(a)(i), (ii)}involve the higher degree of mens rea of either meaning to cause death or meaning to cause bodily harm with the knowledge that it is likely to cause death and being reckless as to whether death ensues or not. There may be some overlap between the offence of committing culpable homicide by criminal negligence and the murder offences found in ss. 212(c) and 213{now ss. 229(c), 230}but these murder provisions seem to be a distinct part of the statutory scheme in that they are addressed to the specific issue of killings which result from either the pursuit of an unlawful object or the commission of specified indictable offences. Manslaughter by means of advertent criminal negligence would still, in my view, have a role to play in prohibiting killings done with a more minimal intent than required under s. 212(a) and (b) and in contexts which would not be covered by ss. 212(c) and 213.

In recognition of the harshness of a uniform application of an objective standard of criminal liability, much of the recent work in criminal jurisprudence has canvassed the possibility of introducing a subjective dimension into the objective standard in order to relieve the harshness of imposing an objective standard on those who, because of their peculiar characteristics, could not fairly be expected to live up to the standard set by the reasonable person. H.L.A. Hart was perhaps the first to explore this possibility in his essay “Negligence, Mens rea and Criminal Responsibility” in Oxford Essays in Jurisprudence, c. 2 (1961). He recognized the dangers of the use of an objective standard at p. 47:

If our conditions of liability are invariant and not flexible i.e. if they are not adjusted to the capacities of the accused, then some individuals will be held liable for negligence though they could not have helped their failure to comply with the standard. In such cases, indeed criminal responsibility will be made independent of any “subjective element”: since the accused could not have conformed to the required standard.

In response to this most legitimate fear, Professor Hart proposed the following two-pronged test for criminal negligence:

(i) Did the accused fail to keep those precautions which any reasonable man with normal capacities would in the circumstances have taken?
(ii) Could the accused, given his mental and physical capacities, have taken those precautions?

A similar approach has been taken by the criminal law theorist George Fletcher. Professor Fletcher also proposed that criminal liability for negligent conduct be determined in a two-step process: the first being the determination of wrongdoing which in the case of the prohibition of negligence would proceed on the basis of breach of an objective standard and the second being the process by which the court determines whether it would be fair to hold a particular accused responsible for the act of wrongdoing. Professor Fletcher notes in Rethinking Criminal Law (1978), p. 511:

If the law ignored the question of attribution, namely, the question whether individuals were properly held accountable for their wrongful acts, the criminal law undoubtedly would generate some unjust decisions. If it were true that the only relevant norms of the legal system were those of wrong doing, injustice would be inescapable in cases in which individuals could not but violate the law.

See also G. Fletcher, “The Theory of Criminal Negligence: A Comparative Analysis”, 119 U. Pa L.R. 401 (1971); A. Stalker, “Can George Fletcher Help Solve The Problem of Criminal Negligence” (1981), 7 Queens L.J. 274. Professor Toni Pickard has also adopted an approach to this issue similar to that of Professors Hart and Fletcher. She proposes in “Culpable Mistakes and Rape: Relating Mens rea to the Crime” (1980), 30 U.T.L.J. 75 at p. 79, to modify an objective standard of unreasonableness so that “the relevant characteristics of the particular actor, rather than those of the ordinary person” will be “the background against which to measure the reasonableness of certain conduct or beliefs”. Professor Pickard elaborates:

This individualized standard is neither “subjective” nor “objective”. It partakes of the subjective position because the inquiry the fact finder must conduct is about the defendant himself, not about some hypothetical ordinary person. It partakes of the objective position because the inquiry is not limited to what was, in fact, in the actor’s mind, but includes an inquiry into what could have been in it, and a judgment about what ought to have been in it.

In their judgments in this case my colleagues McIntyre and Lamer JJ. seem to have adopted variations of the above developments. McIntyre J., for example, states:

The application of an objective test under s. 202 of the CriminalCode, however, may not be made in a vacuum. Events occur within the framework of other events and actions when deciding on the nature of the questioned conduct, surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused’s perception of those facts. Since the test is objective, the accused’s perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused’s part but only to form a basis for a conclusion as to whether or not the accused’s conduct, in view of his perception of the facts, was reasonable.

My colleague then, however, goes on to suggest that the factual perceptions of the accused must be not only honest but reasonable in order to be factored into the assessment of the objective standard. For example, he suggests that the appellants in this case should not be held to the standard of honest but mistaken belief in circumstances which would render their conduct not culpable as set out in Pappajohn, supra, but rather that their beliefs and perceptions in order to be considered must not be negligently or unreasonably held. To my mind, when the offence charged is criminal negligence the distinction from Pappajohn lies not in the introduction of an overriding standard of reasonableness, as this in effect holds the accused simply to the standards of what would be expected from the reasonable person, but rather in the degree of guilty knowledge that must be proven. Although a person may have an honest yet unreasonable view of the circumstances which would render him or her in the large sense blameless, this would not necessarily decide the relevant question of whether he or she had any awareness of the prohibited risk or at some time during the relevant transaction wilfully blinded him or herself to an otherwise obvious risk. To require, as does my colleague, that all misperceptions be reasonable will, in my view, not excuse many of those who through no fault of their own cannot fairly be expected to live up to the standard of the reasonable person.

My colleague Justice Lamer takes a somewhat different approach. He suggests that courts when applying the objective standard in s. 202 should make “‘a generous allowance’ for factors which are particular to the accused, such as youth, mental development, education”. I do not doubt that an expansive application of this approach could relieve some of the harshness of applying an objective standard to those who could not fairly be expected to meet the standard and I am cautiously sympathetic to attempts to integrate elements of subjective perception into criminal law standards that are clearly objective: see R. v. Vasil (1981), 58 C.C.C. (2d) 97, 121 D.L.R. (3d) 41, [1981] 1 S.C.R. 469 (S.C.C.); R. v. Hill (1986), 25 C.C.C. (3d) 322, 27 D.L.R. (4th) 187, [1986] 1 S.C.R. 313 (S.C.C.). Despite this, the test proposed by my colleague suffers, in my respectful view, from the various degrees of over and under-inclusiveness that would be expected from a test which is only a rough substitute for a finding of a blameworthy state of mind in each case. For example, an instruction to the trier of fact that they are to hold a young accused with modest intelligence and little education to a standard of conduct that one would expect from the reasonable person of tender years, modest intelligence and little education sets out a fluctuating standard which in my view undermines the principles of equality and individual responsibility which should pervade the criminal law. It tells the jury simply to lower the standard of conduct expected from such people regardless of whether in the particular case the accused attained the degree of guilty knowledge that I have set out above. Professor Fletcher in “The Theory of Criminal Negligence: A Comparative Analysis” has termed the decision whether to make the standard of liability more or less objective by including or excluding specific personal characteristics a “policy question”, “a low visibility device for adjusting the interests of competing classes of litigants” and I respectfully agree with the following criticism he makes of this process at pp. 407-8: “The question in the criminal context is not one of adjusting the interests of competing classes of litigants, but of justifying the state’s depriving an individual of his liberty.” Professor Fletcher’s solution to this problem, the introduction of a comprehensive range of individualized excuses, is in my view far from realization in Canadian criminal law jurisprudence and, as such, the concern he identifies of the culpability of the individual is still, in my view, best served by continued adherence to subjective standards of liability.

One problem with attempts to individualize an objective standard is that regard for the disabilities of the particular accused can only be applied in a general fashion to alter the objective standard. It seems preferable to me to continue to address the question of whether a subjective standard (a standard, I might add, that in its form is applied equally to all and consistent with individual responsibility) has been breached in each case than to introduce varying standards of conduct which will be only roughly related to the presence or absence of culpability in the individual case. Varying the level of conduct by factoring in some personal characteristics may be unavoidable if the court is faced with a clearly objective standard but it should, in my opinion, be avoided if the more exacting subjective test is available as a matter of statutory interpretation. I have no doubt that factors such as the accused’s age and mental development will often be relevant to determining culpability but under a subjective test they will be relevant only as they relate to the question of whether the accused was aware of or wilfully blind to the prohibited risk and will not have to be factored in wholesale in order to adjust the standard of conduct that is expected from citizens.

Attempts to introduce subjective elements into objective standards risk not only being over-inclusive in the sense that they mandate a lowering of the objective standard of liability on a characteristic by characteristic basis, they also risk the danger of being under-inclusive for those accused who have idiosyncrasies that cannot be articulated ex ante into the necessarily limited list of personal characteristics which can be grafted onto an objective standard. For example, the characteristics listed by my colleague Lamer J. would not relieve the harshness of the application of an objective standard for a driver who, because of a sudden injury or ailment, drove a motor vehicle in a fashion which showed a reckless or wanton disregard for the lives and safety of others. It would not matter that the particular accused was not capable of adverting or wilfully closing his or her eyes to the prohibited risk; the conduct in itself would have breached the objective standard.

The limited range of personal characteristics which can be imported into a modified objective standard is often justified by the notion that a thoroughly subjective approach will allow those who deprive themselves of normal awareness through voluntary intoxication or fits of temper to be exempted from criminal liability. My answer to this (it was also my answer in the cases of Bernard, supra, and R. v.Quin (1988), 44 C.C.C. (3d) 570, [1988] 2 S.C.R. 825, 67 C.R. (3d) 162 (S.C.C.), is that greater attention must be paid to the minimal levels of guilty knowledge that are required for conviction of many offences of violence under the Criminal Code. It is, in my respectful view, perfectly permissible for the trier of fact to reason from an objective standard and ask the question: must not the accused have had the minimal awareness of what he or she was doing?  The important point is that this question is rebuttable and leaves room for acquitting an accused who, for whatever reason, lacked the minimal awareness that would normally accompany the commission of high risk or violent acts.

To sum up, although I agree with my colleagues as to the proper disposition of this appeal, I am unable to agree with their conclusion that the offence of manslaughter by criminal negligence consists of conduct in breach of an objective standard.

[Dickson C.J.C. and La Forest J. concurred with Wilson J. L’Heureux-Dubé J. concurred with McIntyre J. Beetz, Estey, and Le Dain JJ. took no part in the judgment.]

Appeal dismissed.

 

R. v. Hundal
Supreme Court of Canada
[1993] 79 C.C.C. (3d) 97; [1993] 1 S.C.R. 867

CORY J.:— At issue on this appeal is whether there is a subjective element in the requisite mens rea which must be established by the Crown in order to prove the offence of dangerous driving described in s. 233 of the Criminal Code, R.S.C. 1970, c. C-34, as amended by 1985, c.19, s 36 (now R.S.C. 1985, c. C-46, s. 249).

Factual background

The accident occurred at about 3:40 in the afternoon in downtown Vancouver. The streets were wet at the time, a situation not uncommon to that city. The downtown traffic was heavy. The appellant was driving his dump truck eastbound on Nelson Street, a four-lane road, approaching its intersection with Cambie Street. At the time, his truck was overloaded. It exceeded by 1160 kilograms the maximum gross weight permitted for the vehicle. He was travelling in the passing lane for eastbound traffic. The deceased was travelling southbound on Cambie Street. He had stopped for a red light at the intersection with Nelson Street. When the light turned green, the deceased proceeded into the intersection through a crosswalk, continued south across the two lanes for westbound traffic on Nelson Street and reached the passing lane for eastbound traffic. At that moment, his car was struck on the right side by the dump truck killing him instantly.

The appellant stated that when he approached the intersection of Nelson and Cambie Streets he observed that the light had turned amber. He thought that he could not stop in time so he simply honked his horn and continued through the intersection when the impact occurred. Several witnesses observed the collision. They testified that the appellant’s truck entered the intersection after the Nelson Street traffic light had turned red. It was estimated that at least one second had passed between the end of the amber light and the time when the dump truck first entered the intersection. A Vancouver police officer gave evidence that the red light for Nelson at this intersection is preceded by a three-second amber light and there is a further one-half-second delay before the Cambie light turned green. One witness observed that the deceased’s vehicle had travelled almost the entire width of the intersection before it was struck by the truck. Another witness, Mr. Mumford, had been travelling close to the appellant’s truck through some 12 intersections. He testified that on an earlier occasion, the appellant went through an intersection as the light turned red. He estimated the speed of the truck at the time of the collision was between 50 and 60 km/h.…

The constitutional requirement of mens rea

The appellant contends that the prison sentence which may be imposed for a breach of s.233 (now s. 249) makes it evident that an accused cannot be convicted without proof beyond a reasonable doubt of a subjective mental element of an intention to drive dangerously. Certainly every crime requires proof of an act or failure to act, coupled with an element of fault which is termed the mens rea. This court has made it clear that s. 7 of the Canadian Charter of Rights and Freedoms prohibits the imposition of imprisonment in the absence ofproof of that element of fault: see Reference re: s 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, and R v.Vaillancourt (1987), 39 C.C.C. (3d) 118, 47 D.L.R. (4th) 399, [1987] 2 S.C.R. 636.

Depending on the provisions of the particular section and the context in which it appears, the constitutional requirement of mens rea may be satisfied in different ways. The offence can require proof of a positive state of mind such as intent, recklessness or wilful blindness. Alternatively, the mens rea orelement of fault can be satisfied by proof of negligence whereby the conduct of the accused is measured on the basis of an objective standard without establishing the subjective mental state of the particular accused. In the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter see R. v. Wholesale Travel GroupInc. (1991), 67 C.C.C. (3d) 193, 84 D.L.R. (4th) 161, [1991] 3 S.C.R. 154. Thus, the intent required for a particular offence may be either subjective or objective.

A truly subjective test seeks to determine what was actually in the mind of the particular accused at the moment the offence is alleged to have been committed. In his very useful text, Professor Stuart puts it in this way in Canadian Criminal Law, ibid., at pp. 123-4, and p. 125:

What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequence and/or circumstance as the case may be. Whether he “could”, “ought” or “should” have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability.…

In trying to ascertain what was going on in the accused’s mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused’s actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused “must” have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused “must have realized it if he had thought about it.”.

On the other hand, the test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person. There is no need to establish the intention of the particular accused. The question to be answered under the objective test concerns what the accused “should” have known. The potential harshness of the objective standard may be lessened by the consideration of certain personal factors as well as the consideration of a defence of mistake of fact: see McIntyre J., and Lamer J. as he then was, in R. v. Tutton (1989), 48 C.C.C. (3d) 129, [1989] l S.C.R. 1392, 69 C.R. (3d) 289, and R. v. Waite(1989), 48 C.C.C. (3d) l, [1989] 1 S.C.R. 1436, 69 C.R. (3d) 323. Nevertheless, there should be a clear distinction in the law between one who was aware (pure subjective intent) and one who should have taken care irrespective of awareness (pure objective intent).

What is the mens rea required to prove the offence of dangerous driving?

The nature of driving offences suggests that an objective test, or more specifically a modified objective test, is particularly appropriate to apply to dangerous driving. I say that for a number of reasons.

(a) The licensing requirement

First, driving can only be undertaken by those who have a licence. The effect of the licensing requirement is to demonstrate that those who drive are mentally and physically capable of doing so. Moreover, it serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. There is a further aspect that must be taken into consideration in light of the licensing requirement for drivers. Licensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads.

As a result, it is unnecessary for a court to establish that the particular accused intended or was aware of the consequences of his or her driving. The minimum standard of physical and mental well-being coupled with the basic knowledge of the standard of care required of licensed drivers obviate that requirement. As a general rule, a consideration of the personal factors, so essential in determining subjective intent, is simply not necessary in light of the fixed standards that must be met by licensed drivers.

(b) The automatic and reflexive nature of driving

Secondly, the nature of driving itself is often so routine, so automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment. Driving motor vehicles is something that is familiar to most adult Canadians. It cannot be denied that a great deal of driving is done with little conscious thought. It is an activity that is primarily reactive and not contemplative. It is every bit as routine and familiar as taking a shower or going to work. Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B.

It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.

(c) The wording of s. 233 (now s. 249)

Thirdly, the wording of the section itself which refers to the operation of a motor vehicle “in a manner that is dangerous to the public, having regard to all the circumstances” suggests that an objective standard is required. The “manner of driving” can only be compared to a standard of reasonable conduct. That standard can be readily judged and assessed by all who would be members of juries.

Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, accused exercised the appropriate standard of care. It is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood and readily recognized by most Canadians. Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.

(d) Statistics

Fourthly, the statistics which demonstrate that all too many tragic deaths and disabling injuries flow from the operation of motor vehicles indicate the need to control the conduct of drivers. The need is obvious and urgent. Section 233 (now s. 249) seeks to curb conduct which is exceedingly dangerous to the public. The statistics on car accidents in Canada indicate with chilling clarity the extent of the problem. The number of people killed and injured each year in traffic accidents is staggering. Data from Transport Canada shows that, in 1991, the number of deaths related to traffic accidents in Canada was 3,654. In 1990, there were 178,423 personal injury traffic accidents, 630,000 property-damage accidents and 3,442 fatal accidents. These figures highlight the tragic social cost which can and does arise from the operation of motor vehicles. There is therefore a compelling need for effective legislation which strives to regulate the manner of driving vehicles and thereby lessen the carnage on our highways. It is not only appropriate but essential in the control of dangerous driving that an objective standard be applied.

In my view, to insist on a subjective mental element in connection with driving offences would be to deny reality. It cannot be forgotten that the operation of a motor vehicle is, as I have said so very often, automatic and with little conscious thought. It is simply inappropriate to apply a subjective test in determining whether anaccused is guilty of dangerous driving.

(e) Modified objective test

Although an objective test must be applied to the offence of dangerous driving, it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct. The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.

There will be occasions when the manner of driving viewed objectively will clearly be dangerous, yet the accused should not be convicted. Take, for example, a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous, yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established. These examples, and there may well be others, serve to illustrate the aim and purpose of the modified objective test. It is to enable a court to take into account the sudden and unexpected onset of disease and similar human frailties as well as the objective demonstration of dangerous driving.

A modified objective test was aptly described by McIntyre J. in R. v. Tutton, supra, at pp. 140-1. Although he was dealing with criminal negligence, his words, at p. 140, are apt in considering the dangerous driving section which is essentially concerned with negligent driving that constitutes a marked departure from the norm:

The application of an objective test under s. 202 of the CriminalCode, however, may not be made in a vacuum. Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct, surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused’s perception of those facts. Since the test is objective, the accused’s perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused’s part but only to form a basis for a conclusion as to whether or not the accused’s conduct, in view of his perception of the facts, was reasonable . . . If an accused under s. 202 has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct. For example, a welder, who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death.

In summary, the mens rea for the offence of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident. That approach will satisfy the dictates both of common sense and fairness. As a general rule, personal factors need not be taken into account. This flows from the licensing requirement for driving which assures that all who drive have a reasonable standard of physical health and capability, mental health and a knowledge of the reasonable standard required of all licensed drivers.

In light of the licensing requirement and the nature of driving offences, a modified objective test satisfies the constitutional minimum fault requirement for s. 233 (now s. 249) of the Criminal Code and is eminently well suited to that offence.

It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place”. In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.

Next, if an explanation is offered by the accused, such as a sudden and unexpected onset of illness, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. If a jury is determining the facts, they may be instructed with regard to dangerous driving along the lines set out above. There is no necessity for a long or complex charge. Neither the section nor the offence requires it. Certainly the instructions should not be unnecessarily confused by any references to advertent or inadvertent negligence. The offence can be readily assessed by jurors who can arrive at a conclusion based on common sense and their own everyday experiences.

Application of these principles to the facts

Let us now consider whether the modified objective test was properly applied in this case. The trial judge carefully examined the circumstances of the accident. He took into account the busy downtown traffic, the weather conditions, and the mechanical conditions of the accused’s vehicle. He concluded, in my view very properly, that the appellant’s manner of driving represented a gross departure from the standard of a reasonably prudent driver. No explanation was offered by the accused that could excuse his conduct. There is no reason for interfering with the trial judge’s finding of fact and application of the law.

In the result the appeal must be dismissed.

MCLACHLIN J.:—I agree with the reasons and disposition proposed by Justice Cory, but wish to add certain observations on the concept of fault and the “modified objective test”.

As my colleague Cory J. points out, fault in criminal offences may be assessed by an objective standard or by a subjective standard. An offence can require proof of a positive state of mind such as intent, recklessness or wilful blindness. If so, the Crown must prove beyond a reasonable doubt that the accused possessed the requisite state of mind. This is a subjective test, based on what was actually in the accused’s mind. On the other hand, the faultmay lie in the accused’s negligence or inadvertence. In this case an objective test applies; the question is not what was in the accused’s mind but the absence of the mental state of care. This want of due care is inferred from conduct of the accused. If that conduct evinces a want of care judged by the standard of a reasonable person in similar circumstances, the necessary fault is established. The relevant circumstances may include circumstances personal to the accused, relating to whether the accused lacked the capacities or powers necessary to attain the mental state of care required in the circumstances.

Although the fault required by the subjective test is arguably greater than that required by the objective test, either is capable of establishing the mens rea of a criminal offence. As Professor Stuart states, “not thinking, or not thinking properly” can be a sufficient basis for attributing fault to an accused (Stuart, in “Criminal Negligence: Deadlock and Confusion in the Supreme Court”, 69 C.R. (3d) 331 (1989), at p. 333). In his view, when engaging in dangerous behaviour,

... a failure to exercise one’s capacities and powers to bring about and control conduct and its risks is a culpable failure, and sufficiently morally culpable to attract the criminal sanction. In terms of deterrence, on this notion, we can and do teach ourselves to take care when we know that, if we do not, we will be punished. We are often capable of becoming less inadvertent. There is also an important pragmatic and realistic consideration. The traditional subjective awareness emphasis cannot cope with the truth that many of our acts in the real world, such as driving a motor vehicle, are automatic and reflexive and occur without conscious thought.

Marc Rosenberg similarly suggests that “sometimes it is the very failure to advert to the circumstances which renders the conduct so dangerous” (M. Rosenberg, “The Mens rea Requirements of Criminal Negligence: R. v. Waite and R. v. Tutton”, 2 J.M.V.L. 243 (1990), at p. 248). Professor Anne Stalker echoes this sentiment: “[n]ot to punish people who engage in such serious behaviour without considering its implications seems to put a premium on ignorance with regard to some very serious conduct” (M. Anne Stalker, “The Fault Element in Recodifying Criminal Law: A Critique”, 14 Queen’s L.J. 119 (1989), at p. 127). Indeed, as Cory J. aptly puts it at p. 12 of his reasons [ante, p.105], “[i]t would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time . . .”.

It follows that a dangerous or repugnant act, coupled with want of care representing a marked departure from the standard of a reasonable person in all the circumstances, may constitute a criminal offence. To accept the appellant’s submission that in all criminal cases the Crown must establish subjective mens rea would be to put the range of culpable conduct described by Stuart, Rosenberg and Stalker—conduct which has long formed part of our criminal law—beyond the law’s reach. That, to me, does not make sense.

Scholars have emphasized the importance of making a clear distinction between subjective and objective mens rea. Not to do so is dangerous. At the very least, it may induce a judge or jury to take into account the accused’s actual state of mind when the only issue is what the accused’s state of mind ought to have been. Thus Professor Stuart, ibid, at p. 336, states that:        

There must be a forthright recognition that there are offences such as criminal negligence which must be based on the objective standard. We need to know very clearly when we are convicting on the basis of the fact that the accused ought to have thought even though he did not.

Cory J. also emphasizes the importance of this distinction at p. 109 of his reasons [ante, p.104]: “. . . there should be a clear distinction in the law between one who was aware (pure subjective intent) and one who should have taken care irrespective of awareness (pure objective intent).” I am in agreement with this conclusion.

This brings me to the modified objective test. The label “modified objective test” might be taken to suggest an amalgam of objective and subjective factors; a test that looks at what ought to have been in the accused’s mind, but goes on to consider what was actually there or not there. If this is what it means, it runs afoul of Professor Stuart’s sensible admonition that jurists should be very clear about whether they are convicting on the basis of the subjective test or the objective test. On the objective test, the Crown is not required to establish what was in the accused’s mind as a matter of fact.

Consideration of the context in which the term has been used suggests that the phrase “modified objective test” was introduced in an effort to ensure that jurists applying the objective test take into account all relevant circumstances in the events surrounding the alleged offence and give the accused an opportunity to raise a reasonable doubt as to what a reasonable person would have thought in the particular situation in which the accused found himself or herself. Thus, Cory J. in discussing the modified objective test at p. 10 [ante, p. 104] stresses that “personal factors” may be raised, and affirms at p. 14 [ante, pp. 106-7] that “it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct”. He goes on to say: “The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.”

If, as my colleague suggests, McIntyre J. was describing a modified objective test in R. Tutton (1989), 48 C.C.C. (3d) 129 at p. 140, [1989] 1 S.C.R. 1392, 69 C.R. (3d) 289, the language and example used indicate that his concern too was to ensure that in applying the objective test all relevant circumstances, including those personal to the accused be considered. He reaffirms the objective test by asserting that only “an honest and reasonably held belief “ can exonerate the accused. In other words, it is no defence to say, on the subjective level, “I was being careful”, or “I believed I could do what I did without undue risk”. The defence arises only if that belief was reasonably held. McIntyre J. goes on to offer the example of a welder who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is nearby. The welder charged in connection with a subsequent explosion, McIntyre J. asserts, should be allowed to introduce evidence that he believed there were no combustible or explosive materials on the premises. This is an objective test; the fact that the welder had been told there were no combustible or explosive materials on the site is one of the circumstances which a jury should take into account in determining what a reasonable person would have thought and done. Was it reasonable for the welder in these circumstances to turn his torch on in the enclosed space? The answer, on the objective test, is “of course”.

Nor does Cory J.’s example of “a totally unexpected heart attack, epileptic seizure or detached retina” (at p. 15) [ante, p. 107], which renders an accused unable to control his or her motor vehicle, require the introduction of an element of subjectivity. The better analysis, in my view, is that the onset of a “disease or disability” makes the act of losing control of the motor vehicle involuntary, with the result that there is no actus reus. Thus, we do not reach the question of what a reasonable person would have been thinking or adverting to as the car goes off the road, much less what the accused was in fact thinking or not thinking. Alternatively, if the actus reus were taken as established in these examples, the heart attack or epileptic seizure might be viewed as a circumstance which negates the ordinary inference of want of care which flows from the fact of having lost control of a motor vehicle.

I would dispose of the appeal as proposed by Cory J.

Appeal dismissed.

 

R. v. Beatty
Supreme Court of Canada
[2008] 1 S.C.R. 49

The judgement of Bastarache, Deschamps, Abella, Charron and Rothstein JJ. Was delivered by
CHARRON J.:
[…]

2. Background

            [10] The tragic accident giving rise to the criminal charges against Mr. Beatty happened on July 23, 2003 at approximately 2:00 p.m. on Highway 1, about 14 km west of Chase, British Columbia. The weather was clear, sunny and very hot; the asphalt surface of the road well travelled, in good repair, bare and dry. The collision occurred when upon reaching a curve on the highway the pick-up truck driven by Mr. Beatty suddenly, and for no apparent reason, crossed the double solid centre line into the path of an oncoming vehicle, killing all three occupants.
[11] Witnesses driving behind the victims’ car observed Mr. Beatty’s vehicle being driven in a proper manner prior to the accident. They testified that the accident happened very quickly or “instantaneous[ly]”. The point of impact was established at about half a metre into the opposite lane of traffic. Both vehicles had been travelling at the posted 90 km/h speed limit and there was no evidence that either vehicle took evasive measures. It was estimated at trial that it would have taken Mr. Beatty’s vehicle .00268 seconds to cross the double line and make contact with the oncoming car. An expert inspection concluded that Mr. Beatty’s vehicle had not suffered from mechanical failure. Intoxicants were not a factor.
[12] After the accident, Mr. Beatty exited his vehicle and appeared stunned. When asked what happened by the attending police officer, he indicated that he was driving the pick-up and then “went unconscious”. He said he had been working in the sun all day. A few minutes later, the police officer overheard Mr. Beatty tell an ambulance attendant “I just lost consciousness. I think it was heat stroke.”  The ambulance attendant testified that Mr. Beatty appeared dazed and uncomprehending when asked what had happened. After several attempts at giving an explanation, Mr. Beatty stated that he was not sure what happened but that he must have fallen asleep and collided with the other vehicle.
[13] After reviewing the evidence, the trial judge instructed herself according to the test laid out in Hundal. I will review the analysis in Hundal in more detail later in these reasons. The trial judge noted that “[t]he application of this objective test has been challenging for trial courts”, as “reflected in a number of decisions that at first blush would appear to be irreconcilable” (para. 28). After reviewing some of the appellate jurisprudence, including cases where the accused’s driving had been held to constitute a “marked departure” from the applicable standard, she concluded as follows:

The circumstances in this case are different. Here there is no evidence of any improper driving by Mr. Beatty before his truck veered into the westbound lane and into the oncoming vehicle. While that act of driving was clearly negligent it occurred within a matter of seconds. Moreover, there was no evidence of any evasive measures or evidence of any obstruction in the eastbound lane that might have caused him to veer into the westbound lane. In my view, the only reasonable inference to be drawn in these circumstances, of Mr. Beatty’s manner of driving, was that he experienced a loss of awareness, whether that was caused by him nodding off or for some other reason. That loss of awareness resulted in him continuing to drive straight instead of following the curve in the road and thereby cross the double solid line. These few seconds of clearly negligent driving, which had devastating consequences, are the only evidence of Mr. Beatty’s manner of driving. In my view, Hundal requires something more than a few seconds of lapsed attention to establish objectively dangerous driving. Criminal culpability cannot be found, beyond a reasonable doubt, on such a paucity of evidence. [para. 36]

[14] The trial judge then expounded on the distinction between criminal and civil  negligence as follows:

This tragic accident occurred from a momentary lapse of attention and snuffed out the lives of three individuals. There is nothing a court can do or say that will adequately redress the loss suffered by the victims’ families in such circumstances. However, in assessing criminal culpability it is not the consequences of a negligent act of driving that determines whether an accused’s manner of driving is objectively dangerous. It is the driving itself that must be examined. In my view, Mr. Beatty’s few seconds of negligent driving, in the absence of something more, is insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver. As contemplated by Hundal Mr. Beatty’s negligent driving undoubtedly falls within the continuum of negligence that is certain to attract considerable civil liability. It is in that forum that redress for his actions will be found. [Emphasis in original; para. 37.]

[15] In light of this conclusion, the trial judge found it unnecessary to consider the limited evidence regarding Mr. Beatty’s explanation for the accident. However, she added the following comment:

If I had concluded that Mr. Beatty’s manner of driving was objectively dangerous, I would have found this evidence of a possible explanation for his dangerous driving insufficient to raise a reasonable doubt that his manner of driving was objectively dangerous. [para. 38]

[16] The trial judge therefore acquitted Mr. Beatty on all three counts. On appeal by the Crown, the Court of Appeal found error in the approach adopted by the trial judge. The court’s reasoning is aptly captured in paras. 22-27 of the reasons for judgment where Finch C.J.B.C., writing for the court, stated as follows:

In this case, there is no evidence that the respondent was speeding, no evidence that he had consumed alcohol or drugs, and no evidence that he was driving erratically or improperly at any time before his vehicle crossed into the oncoming lane of traffic.

However, the evidence showed that there was only one lane for travel in each direction, the traffic was proceeding at or near the posted speed limit of 90 kilometres per hour, the highway was well-travelled, there was limited visibility approaching the curve, and the collision occurred within a split second of the respondent’s crossing onto the oncoming lane of traffic.

Viewed objectively, the respondent’s failure to confine his vehicle to its own lane of travel was in “all the circumstances” highly dangerous to other persons lawfully using the highway, and in particular those approaching in a westerly direction on their own side of the road.
The trial judge addressed her attention to the respondent’s “momentary lack of attention” and his “few seconds of lapsed attention”. She held that such a momentary lapse should not be characterized as dangerous driving.
In my respectful opinion the learned trial judge asked the wrong question. The right question was whether crossing the centre line into the path of oncoming traffic at 90 kilometres per hour, on a well-travelled highway was objectively dangerous. I think that question could only be answered in the affirmative. Driving in that way is clearly a “marked departure” from the standard of care a reasonable person would observe in the accused’s situation.
The second part of the Hundal test is whether, even though the driving is objectively dangerous, there is an explanation for the accused’s conduct that would “raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct”.
[18] The Court of Appeal held that the trial judge’s added comments regarding Mr. Beatty’s explanation were “hypothetical” and that they did “not adequately engage the analysis required under the second step in Hundal” (para. 28). The court therefore set aside the acquittals and ordered a new trial.

3. Analysis

           
[19] In the context of this proceeding, no one disputes that, in crossing the centre lane into the path of an oncoming motor vehicle, Mr. Beatty’s manner of driving fell below the standard of care of a reasonably prudent driver. We recognize here the well‑established standard for the tort of negligence. As noted by the trial judge, Mr. Beatty’s negligent driving would therefore undoubtedly attract civil liability. I will refer to the standard for the tort of negligence simply as “civil negligence”. The more difficult question is whether Mr. Beatty’s act of negligent driving also attracts criminal liability for the offence of dangerous operation of a motor vehicle causing death under s. 249(4) of the Criminal Code.
[…]
[20] It is well established that dangerous driving is based on a form of negligent conduct. As is readily apparent from a reading of s. 249, an act of dangerous operation of a motor vehicle necessarily falls below the standard of care expected of a reasonably prudent driver; among other things, it is expected that a reasonably prudent driver will not drive “in a manner that is dangerous to the public” as proscribed by this provision. The converse, however, does not hold true. An act of negligent driving will not necessarily constitute the offence of dangerous driving. The question raised on this appeal requires the Court to reiterate the important distinction between civil negligence and negligence in a criminal setting. The latter has often been referred to as “penal negligence” so as not to confuse the category of negligence-based offences in a criminal setting with the particular offence of criminal negligence under s. 219 of the Criminal Code which, of course, also forms part of this category. This Court in Hundal adopted what it called a modified objective test for determining the requisite mens rea for negligence-based driving offences.
[21] As evidenced by the decisions in the courts below in this case, the application of this modified objective test has often proved to be challenging. I therefore propose to review the test in Hundal and its underlying rationale in some detail. I will then restate the test in reference to both constituent elements of the offence, the actus reus and the mens rea. Before reviewing the test in Hundal, it may be useful to recall the common law and constitutional principles upon which the decision was based and to briefly review some of the jurisprudence that preceded the decision.
[…]

3.2       Fundamental Principles of Criminal Justice Under the Charter

           
[24] With the advent of the Charter, the parameters of valid federal and provincial legislation became defined, not only along division of powers lines but by minimal constitutional requirements. Therefore, with the Charter came a renewed interest in the mental elements of crimes and regulatory offences. To what extent had the fundamental principles of criminal justice that gave rise to the common law presumptions on mens rea become constitutionally entrenched?...
[…]

3.3  Mens Rea and Negligence-Based Offences

[27] Not surprisingly, in the years that followed, the requisite mens rea for certain negligence-based criminal offences attracted much judicial scrutiny. Even in cases where the constitutional validity of the legislation was not impugned, the constituent elements of the offence were now interpreted  in the light of minimal constitutional requirements. In particular, the question whether the test for determining the requisite mens rea for negligence-based offences was subjective or objective was much debated. In R. v. Tutton, [1989] 1 S.C.R. 1392, and in R. v. Waite, [1989] 1 S.C.R. 1436, released concurrently, the Court was equally divided (three of the nine judges did not participate in the decisions) on the question whether the offence of criminal negligence under s. 202 (now s. 219) of the Criminal Code called for a subjective or objective test. Tutton concerned parents who caused the death of their son by denying him the necessaries of life. Waite concerned an impaired driver who caused the death of four young persons and injured a fifth person when he played chicken with a hayride. Three judges were of the view that, in order to sit comfortably with principles of penal liability and fundamental justice, the mens rea for the offence of criminal negligence must be assessed subjectively, requiring proof of a positive state of mind such as intent, recklessness or wilful blindness. Three other judges held that an objective test must be used in determining criminal negligence, with different opinions on how this objective test should be applied.
[28] A few years later, the question whether the constitutional requirement of mens rea called for a subjective or objective test in respect of the negligence-based offence of dangerous driving was again the precise issue before the Court in Hundal. A unanimous Court (Stevenson J. taking no part in the judgment) resolved the impasse created in Tutton and Waite, at least in the context of driving offences, by adopting a “modified” objective test.
[…]

3.3.2  First Modification to the Objective Test: The Marked Departure

[33] The Court in Hundal, however, made it clear that the requisite mens rea may only be found when there is a “marked departure” from the standard of care expected of a reasonable person in the circumstances of the accused. This modification to the usual civil test for negligence is mandated by the criminal setting. It is only when there is a “marked departure” that the conduct demonstrates sufficient blameworthiness to support a finding of penal liability. One aspect of driving, “the automatic and reflexive nature of driving”, particularly highlights the need for the “marked departure” requirement in a criminal setting. Cory J. described this aspect as follows (at pp. 884-85):

Second, the nature of driving itself is often so routine, so automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment. Driving motor vehicles is something that is familiar to most adult Canadians. It cannot be denied that a great deal of driving is done with little conscious thought. It is an activity that is primarily reactive and not contemplative. It is every bit as routine and familiar as taking a shower or going to work. Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B.
[34] Therefore, as noted by Cory J., the difficulty of requiring positive proof of a particular subjective state of mind lends further support to the notion that mens rea should be assessed by objectively measuring the driver’s conduct against the standard of a reasonably prudent driver. In addition, I would note that the automatic and reflexive nature of driving gives rise to the following consideration. Because driving, in large part, is automatic and reflexive, some departures from the standard expected of a reasonably prudent person will inevitably be the product, as Cory J. states,  of “little conscious thought”. Even the most able and prudent driver will from time to time suffer from momentary lapses of attention. These lapses may well result in conduct that, when viewed objectively, falls below the standard expected of a reasonably prudent driver. Such automatic and reflexive conduct may even pose a danger to other users of the highway. Indeed, the facts in this case provide a graphic example. The fact that the danger may be the product of little conscious thought becomes of concern because, as McLachlin J. (as she then was) aptly put it in R. v. Creighton, [1993] 3 S.C.R. 3, at p. 59:  “The law does not lightly brand a person as a criminal.”  In addition to the largely automatic and reflexive nature of driving, we must also consider the fact that driving, although inherently risky, is a legal activity that has social value. If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.
[35] In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law. The extent of the driver’s liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.
[36] For that reason, the objective test, as modified to suit the criminal setting, requires proof of a marked departure from the standard of care that a reasonable person would observe in all the circumstances. As stated earlier, it is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. With the marked departure, the act of dangerous driving is accompanied with the presence of sufficient mens rea and the offence is made out. The Court, however, added a second important qualification to the objective test — the allowance for exculpatory defences.


3.3.3  Second Modification to the Objective Test: The Allowance for Exculpatory Defences


[37] The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. However, there will be circumstances where this underlying premise cannot be sustained because a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger.  Of course, it is not open to the driver to simply say that he or she gave no thought to the manner of driving because the fault lies in the failure to bring to the dangerous activity the expected degree of thought and attention that it required. As Cory J. explained (at p. 885 of Hundal):

It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.

However, because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted. Cory J., in Hundal, gave some useful examples (at p. 887):

Take for example a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established.

[38] We can readily appreciate the injustice of branding the driver in each of these examples as a criminal. In the same vein, a reasonably held mistake of fact may provide a complete defence if, based on the accused’s reasonable perception of the facts, the conduct measured up to the requisite standard of care. It is therefore important to apply the modified objective test in the context of the events surrounding the incident. In Tutton, McIntyre J. provided the following useful example in the context of a criminal negligence charge (at p. 1432, repeated in Hundal, at pp. 887-88):

If an accused under s. 202 has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct. For example, a welder, who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death.

[39] It is important however not to confuse the personal characteristics of the accused with the context of the events surrounding the incident. In the course of the earlier debate on whether to adopt a subjective or objective test, Lamer J. favoured an objective approach but, in an attempt to alleviate its potential harshness, he would have made generous allowances for factors particular to the accused, such as youth, mental development and education:  see for example, Tutton, at p. 1434. Under this approach, the young and inexperienced driver’s conduct would be measured against the standard expected of a reasonably prudent but young and inexperienced driver. This approach, however, was not favoured by other members of the Court. As Wilson J. stated in Tutton, this individualized approach “sets out a fluctuating standard which in my view undermines the principles of equality and individual responsibility which should pervade the criminal law” (p. 1418).
[40] Some of the language used in Hundal nonetheless left uncertainty about the degree to which personal characteristics could form part of the circumstances which must be taken into account in applying the modified objective test. (See for example the references to “certain personal factors” at p. 883 and to “human frailties” at p. 887.)  This remaining uncertainty was later resolved in Creighton. Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience and education are not relevant. The standard against which the conduct must be measured is always the same — it is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found himself in when the events occurred in order to assess the reasonableness of the conduct. To reiterate the example used above, the reasonable person becomes the one who “without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina” or becomes the one who “in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly” causes him to drive in a manner that is dangerous to the public. By so placing the reasonable person, the test is not personalized and the standard remains that of a reasonably prudent driver, but it is appropriately contextualized.

3.4  Restatement of the Test in Hundal

           
[41] In Hundal, Cory J. summarized the analytical framework for applying the modified objective test in the following oft-quoted passage (at pp. 888-89):

It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place”. In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.

Next, if an explanation is offered by the accused, such as a sudden and unexpected onset of illness, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
[42] In reviewing a number of cases that have applied this test, I have observed two common difficulties. First, there appears to be some confusion on the distinction, if any, between “objectively dangerous driving” on one hand, and a “marked departure from the standard of care” on the other. This difficulty is quite understandable because some departures from the reasonable standard of care may not be “marked” or “significant” but are nonetheless undeniably dangerous. As we shall see, this case is one example. Second, there appears to be much uncertainty in the case law on how to deal with evidence about the accused’s mental state. In particular, when is evidence about the accused’s actual mental state relevant?  Is it relevant in determining whether the conduct constitutes a “marked departure” from the norm or, as the courts below in this case have done, should it be considered only as part of a distinct analysis on potential exculpatory defences?
[43] As we have seen, the requisite mens rea for the offence of dangerous driving was the sole issue before the Court in Hundal, and the test was expressed accordingly. In order to clarify the uncertainties I have mentioned, it may assist to restate the summary of the test in terms of both the actus reus and the mens rea of the offence. I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea, to warrant conviction. In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficientmens rea. I would therefore restate the test reproduced above as follows:

(a) The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of  the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”.
(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’sobjectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[44] I wish to elaborate on certain aspects of this test before applying it to the facts of this case.

3.4.1  Determining the Actus Reus

[45] I deal firstly with the actus reus. The offence is defined by the words of the legislative provision, not by the common law standard for civil negligence. In order to determine the actus reus, the conduct must therefore be measured as against the wording of s. 249. Although the offence is negligence-based, this is an important distinction. As we have seen, conduct that constitutes dangerous operation of a motor vehicle as defined under s. 249 will necessarily fall below the standard expected of a reasonably prudent driver. The converse however is not necessarily true — not all negligent driving will constitute dangerous operation of a motor vehicle. If the court is satisfied beyond a reasonable doubt that the manner of driving was dangerous to the public within the meaning of s. 249, the actus reus of the offence has been made out. Nothing is gained by adding to the words of s. 249 at this stage of the analysis.
[46] As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost begs the question to then ask whether an act that killed someone was dangerous. The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving. The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public. This Court explained this distinction in R. v. Anderson, [1990] 1 S.C.R. 265, as follows:

In the circumstances of this case, the unfortunate fact that a person was killed added nothing to the conduct of the appellant. The degree of negligence proved against the appellant by means of the evidence that he drove after drinking and went through a red light was not increased by the fact that a collision occurred and death resulted. If driving and drinking and running a red light was not a marked departure from the standard, it did not become so because a collision occurred. In some circumstances, perhaps, the actions of the accused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused. That is not the case here. [Emphasis added; p. 273.]

3.4.2  Determining the Mens Rea

[47] In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused’s actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a “marked departure” from the standard expected of a reasonably prudent driver….
[48] However, subjective mens rea of the kind I have just described need not be proven to make out the offence because the mischief Parliament sought to address in enacting s. 249 encompasses a wider range of behaviour. Therefore, while proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a “marked departure” from that norm, the offence will be made out. As stated earlier, what constitutes a “marked departure” from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock, “conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum” (para. 31). Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle.
[49] If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused.

4. Application to this Case

           
[50] First, did Mr. Beatty commit the actus reus of the offence?  Did he operate his motor vehicle “in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”?  I repeat here the Court of Appeal’s analysis of the circumstances for convenience:

However, the evidence showed that there was only one lane for travel in each direction, the traffic was proceeding at or near the posted speed limit of 90 kilometres per hour, the highway was well-travelled, there was limited visibility approaching the curve, and the collision occurred within a split second of the respondent’s crossing onto the oncoming lane of traffic.

Viewed objectively, the respondent’s failure to confine his vehicle to its own lane of travel was in “all the circumstances” highly dangerous to other persons lawfully using the highway, and in particular those approaching in a westerly direction on their own side of the road. [paras. 23-24]
[51] Up to this point in the analysis, I would agree with the Court of Appeal. In all the circumstances, Mr. Beatty’s failure to confine his vehicle to his own lane of traffic was dangerous to other users of the highway. Further, no suggestion was made at trial that Mr. Beatty was in a state of non-insane automatism at the time. However, this conclusion only answers the actus reus part of the offence. The more difficult question is whether Mr. Beatty had the necessary mens rea. There is no evidence here of any deliberate intention to create a danger for other users of the highway that could provide an easy answer to that question. Indeed, the limited evidence that was adduced about the actual state of mind of the driver suggested rather that the dangerous conduct was due to a momentary lapse of attention. Hence, the trial judge was correct in finding that the question of mens rea in this case turns on whether Mr. Beatty’s manner of driving, viewed on an objective basis, constitutes a marked departure from the norm.
[52] In my respectful view, the Court of Appeal erred in faulting the trial judge for addressing her attention to Mr. Beatty’s “momentary lack of attention” and his “few seconds of lapsed attention”. The trial judge appropriately focussed her analysis on Mr. Beatty’s manner of driving in all the circumstances. She noted that there was no evidence of improper driving before the truck momentarily crossed the centre line and that the “few seconds of clearly negligent driving” was the only evidence about his manner of driving (para. 36). She appropriately considered the totality of the evidence in finding that “the only reasonable inference” was that “he experienced a loss of awareness” that caused him to drive straight instead of following the curve in the road (para. 36). In her view, this momentary lapse of attention was insufficient to found criminal culpability. She concluded that there was “insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver” (para. 37).
[53] Based on the totality of the evidence, I see no reason to interfere with the trial judge’s assessment of Mr. Beatty’s conduct in this case and her conclusion on Mr. Beatty’s criminal liability. By contrast, it is my respectful view that the Court of Appeal leaped too quickly to the conclusion that the requisite mens rea could be made out from the simple fact of the accident occurring, leaving no room for any assessment of Mr. Beatty’s conduct along the continuum of negligence.
[54] For these reasons, I would allow the appeal and restore the acquittals.

            The reasons of McLachlin C.J. and Binnie and LeBel JJ. were delivered by
           
[55] THE CHIEF JUSTICE:-- I agree with much of Justice Charron’s analysis as well as with her disposition of the appeal. However, I take a different view on how the test for the offence of dangerous operation of a motor vehicle should be stated and how this impacts on cases of momentary lapse of attention, such as this case.

The Test for the Offence of Dangerous Driving

[56] At para. 43, my colleague describes the actus reus in terms of dangerous  operation of a motor vehicle and the mens rea in terms of a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. In discussing the actus reus,my colleague observes that “[n]othing is gained by adding to the words of s. 249 at this stage of the analysis” (para. 45).
[57] With respect, I take a different view. A clear understanding of what is required to fulfill both the actus reus and mens rea of dangerous operation of a motor vehicle is important, and I see no impediment to judicial clarification of either element. Determining what constitutes dangerous driving without regard to the consequences — as the test requires — is a difficult task, and one that has given rise to confusion. In my opinion the language of s. 249 of the Criminal Code, R.S.C. 1985, c. C-46, is consistent with requiring a marked departure as part of the actus reus of the offence.
[58] The jurisprudence of this Court offers assistance on what constitutes the actus reus and mens rea of dangerous driving and how the two elements of the offence should be described. R. v. Hundal, [1993] 1 S.C.R. 867, confirmed in R. v. Creighton, [1993] 3 S.C.R. 3, indicates that the characterization of “marked departure” from the norm applies to the actus reus of the offence, and that the mens rea of the offence flows by inference from that finding, absent an excuse casting a reasonable doubt on the accused’s capacity.
[59] In Hundal, Cory J., writing for the majority, was concerned mainly with mens rea. However, after settling this matter, he stated the overall requirements of dangerous driving in terms of marked departure, without limiting them to mens rea:

. . . a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place”. In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation. [Emphasis added; p. 888.]

[60] Cory J. then went on to state that even where this is established, the accused may offer an excuse such as a sudden and unexpected onset of illness, thereby raising a reasonable doubt as to mens rea.
[61] In the absence of language in this passage confining the requirement of marked departure to the mens rea of the offence, it is reasonable to conclude that it was intended to apply to both the actus reus and the mens rea of the offence.
[62] Any doubt on the matter was removed by the majority decision of this Court in Creighton,in which Cory J. joined. At pp. 73-74, I wrote:

The foregoing analysis suggests the following line of inquiry in cases of penal negligence. The first question is whether actus reus is established. This requires that the negligence constitute a marked departure from the standards of the reasonable person in all the circumstances of the case. . . .

The next question is whether the mens rea is established. As is the case with crimes of subjective mens rea,the mens rea for objective foresight of risking harm is normally inferred from the facts. The standard is that of the reasonable person in the circumstances of the accused. If a person has committed a manifestly dangerous act, it is reasonable, absent indications to the contrary, to infer that he or she failed to direct his or her mind to the risk and the need to take care. However, the normal inference may be negated by evidence raising a reasonable doubt as to lack of capacity to appreciate the risk. Thus, if a prima facie case for actus reus and mens rea is made out, it is necessary to ask a further question: did the accused possess the requisite capacity to appreciate the risk flowing from his conduct?  If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted. If not, the accused must be acquitted. [Emphasis added.


[63] This analysis, which defines the actus reus in terms of a “marked departure” and the mens rea as the normal inference from that conduct, absent excuse, was penned only a short time after Hundal, and concurred in by the majority of the Court, including Cory J.  Justice Cory’s decision in Hundal was cited and relied on in Creighton as a basis for this formulation.  It follows that Hundal and Creighton should be seen as adopting the same test, and that any ambiguity in the discussion of dangerous driving in Hundal should be resolved in the manner suggested in Creighton.
[64] Requiring that the conduct alleged to constitute the actus reus of the offence constitute a marked departure from the standard of a reasonable person is consistent with the language of s. 249 of the Criminal Code. Section 249(1)(a) defines the actus reus in terms of operating a motor vehicle “in a manner that is dangerous to the public, having regard to all the circumstances”, and goes on to provide a non-exhaustive list of circumstances to be taken into consideration. In this context, dangerousness is properly understood as requiring a marked departure from the conduct of a reasonable person, in the circumstances.
[65] If conduct not representing a marked departure is allowed to satisfy the actus reus requirement for dangerous driving, then it becomes unclear how Criminal Code dangerous driving is to be distinguished from a wide variety of provincial motor vehicle offences, at the level of the actus reus. Provincial motor vehicle legislation exists in part to manage and minimize the risks associated with the widespread use of motor vehicles. Thus in many cases, conduct representing a violation of provincial motor vehicle legislation will be “objectively dangerous” in comparison with strict compliance with the provisions of the legislation. Yet it would stretch the meaning of s. 249(1)(a) to suggest that such conduct would be sufficient to establish the actus reus of dangerous driving. The “marked departure” requirement provides a standard for determining what is objectively dangerous in the context of s. 249(1)(a), allowing relatively minor violations of provincial motor vehicle Acts to fall clearly outside the scope of conduct that Parliament intended to criminalize.
[66] I add that this formulation mirrors the theory on which the criminal law is founded — that the actus reus and mens rea of an offence represent two aspects of the criminal conduct. The actus reus is the act and the mens rea,or guilty mind, the intention to commit that act. If the mens rea of the offence requires a failure to take reasonable care which is inferred from the conduct of driving in a manner that represents a marked departure from the norm, then the actus reus must be the act of driving in a manner that represents a marked departure from the norm.
[67] I therefore conclude that the correct statement of the law is as follows:

1. The actus reus requires a marked departure from the normal manner of driving.
2. The mens rea is generally inferred from the marked departure in the nature of driving.
Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person.
3. While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference.

The Problem of Momentary Lapse of Attention

            [68] The problem at the heart of this case is whether acts of momentary lapse of attention can constitute the offence of dangerous driving. The accused was driving in an entirely normal manner until his vehicle suddenly swerved over the centre line of the road, for reasons that remain unclear. Clearly there was momentary lapse of attention. The issue is whether this is capable of establishing the actus reus and mens rea of the offence.
[69] In my view, momentary lapse of attention without more cannot establish the actus reus or mens rea of the offence of dangerous driving. This flows from this Court’s decision in R. v. Mann, [1966] S.C.R. 238, upholding the constitutionality of the provincial offence of careless driving. The constitutionality of the provincial offence was attacked on the ground that the field was occupied by the federal offence of dangerous driving. In order to resolve this issue, the Court was obliged to define the ambit of dangerous driving and careless driving, respectively. The Court concluded that the two offences were aimed at different conduct. In Mann, the distinction between the levels of negligence required for careless driving and dangerous driving was essential to upholding the constitutionality of the provincial offence of careless driving. Although some of the judges in Mann cast their reasoning in terms of inadvertent versus advertent negligence, concepts which are no longer the focus of the analysis in cases of dangerous driving (Hundal, at p. 889), what is clear is that the offence of dangerous driving requires a higher degree of negligence than careless driving. This Court affirmed the differing levels of negligence for careless driving and dangerous driving in Hundal.
[70] It follows that if the only evidence against the accused is evidence of momentary lapse of attention, the offence of dangerous driving is not established. This, in my view, is as it should be. The heavy sanctions and stigma that follow from a criminal offence should not be visited upon a person for a momentary lapse of attention. Provincial regulatory offences appropriately and adequately deal with this sort of conduct.
[71] In terms of the test for the offence outlined above, momentary lapse of attention does not establish the marked departure from the standard of care of a reasonably prudent driver required for the actus reus of the offence. As the case law teaches, one must consider the entire manner of driving of the accused, in all the circumstances. A moment of  lapse of attention, in the context of totally normal driving, is insufficient to establish the marked departure required for the offence of dangerous driving. In order to avoid criminal liability, an accused’s driving is not required to meet a standard of perfection. Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving.
[72] A momentary lapse of attention without more cannot establish the actus reus and mens rea of the offence of dangerous driving. However, additional evidence may show that the momentary lapse is part of a larger pattern that, considered as a whole, establishes the marked departure from the norm required for the offence of dangerous driving. For example, a momentary lapse might be caused by the consumption of alcohol or by carrying on an activity incompatible with maintaining proper control of the automobile. The trier of fact might conclude in such a case that considering the total driving pattern in all the circumstances, a marked departure from the norm is established.
[…]

Application to this Case

[80] The only evidence adduced by the Crown in the case at bar was evidence of a momentary lapse of attention that caused the accused’s vehicle to cross the centre line of the highway. In all other respects, the accused’s driving was, on the evidence, entirely normal.
[81] It follows that all that has been established is momentary lapse of attention. The marked departure required for the offence of dangerous  operation of a motor vehicle has not been made out. The Crown did not succeed in proving that the accused’s manner of driving, viewed as a whole, constituted a marked departure from the  standard of  care of a reasonably prudent driver. It follows that it did not prove the actus reus of the offence, and its case must fail.

Conclusion

[92] I would allow the appeal and restore the acquittals.




R. v. De Ciantis

British Columbia Court of Appeal

[2011] BCCA 437

 

Bennett J.A. (Levine and Frankel JJ.A. concurring):—On February 21, 2007, an accident occurred on Benvoulin Road in Kelowna, B.C. Mr. De Ciantis struck two pedestrians while driving his Toyota pick-up truck, causing the death of Kim Black and significant injuries to Russell Leon. He was convicted of dangerous driving causing death and dangerous driving causing bodily harm. He appeals those convictions.

In my respectful view, the trial judge’s verdict is unreasonable and not supported by the evidence. This was a tragic accident, but the driving in question was not such that it should attract criminal liability. I would allow the appeal and enter an acquittal on each count. Mr. De Ciantis’ driving was not prudent and illjudged. My conclusion should not be taken as condoning his conduct, but is merely a finding that it did not meet the threshold for a criminal conviction.

 

Background

            Benvoulin Road consists of five lanes, two northbound, two southbound, and a dual direction centre lane for left turns from either side of the road. There are no sidewalks at the location of the accident. There is a fog line on the right side of the road and a paved shoulder...1.4 metres wide. There are street lights every 65 metres. Benvoulin is an arterial road, and local drivers treat it as a highway. The speed limit was 60 km/h at the time of the accident, but was raised to 70 km/h shortly afterwards. It is common for people to drive 70-80 km/h, or faster, on this road.

The accident occurred at approximately 7:30 p.m. Kim Black, Keri Chandler and Russell Leon were proceeding northbound on Benvoulin Road. They were likely travelling three-abreast. Mr. Black was walking on or very close to the fog line. Mr. Leon was to the right of Mr. Black, travelling in a motorized scooter. Ms. Chandler was walking to the right of Mr. Leon. ...Although they were wearing a combination of light and dark clothing, the drivers who testified said the pedestrians’ clothing was dark.

Mr. Leon’s scooter had two red reflector lights on the back, but the drivers who testified did not notice them. All of the drivers, except Mr. De Ciantis, saw the pedestrians prior to passing them, some sooner than others.

The night was clear and cold. It was not raining. The stretch of road where the accident occurred was straight, dry, and in good repair. There was a steady flow of traffic in both directions.

Mr. De Ciantis was driving on K.L.O. Road. He stopped at the light at Benvoulin. There are two lanes which permit left turns onto Benvoulin from K.L.O. He made a left turn from the fast lane northbound onto Benvoulin. Traffic was in a cluster at this point, and Mr. De Ciantis decided to move out of the traffic. On his evidence, he changed lanes to the slow lane and passed some of the traffic beside him. He then changed back into the fast lane. A red truck, driven by Ms. McKamey, cut in front of him, and he changed lanes back to the slow lane. Mr. De Ciantis planned to remain in the slow lane in order to make a right turn ahead, but he came up behind a slower-moving vehicle. He changed lanes to pass the vehicle, and, once past it, performed a shoulder check to change back into the slow lane. He testified that as he was doing the shoulder check, he over-steered and struck something. He did not realize that he had struck anyone. Mr. De Ciantis did not stop immediately, but he stopped shortly afterwards and remained at the scene. He did not see the pedestrians on the side of the road prior to the accident.

Mr. De Ciantis struck and killed Kim Black. Russell Leon was seriously injured. Ms. Chandler was not injured.

The accident reconstruction expert testified that Mr. De Ciantis was travelling at a minimum of 81 km/h when he struck Mr. Black. There was no indication of braking before the collision, which suggested that Mr. De Ciantis did not see Mr. Black before hitting him. His tire went 0.37 metres (or 14 inches) over the fog line, which was less than the width of his tire. ...

 

Issues

The main issue in this case is whether the verdict is unreasonable or not supported by the evidence. This issue raises questions of whether the trial judge correctly applied the legal principles applicable to the offence of dangerous driving.

 

Dangerous Driving

The offence of dangerous driving is found in s. 249(1)(a) of the Criminal Code, set out below:

249(1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

Much judicial ink has been spilled over the past few decades in determining what constitutes the act of dangerous driving and formulating the fault element. The Supreme Court of Canada reviewed the offence of dangerous driving in considerable detail in R. v. Beatty, [2008] 1 S.C.R. 49. Beatty was driving on a two-lane highway in British Columbia on a summer day, in the mid-afternoon. The road was clear and dry. As he approached a curve in the highway, Beatty’s vehicle crossed the centre line for no apparent reason and struck a vehicle in the oncoming lane, killing three people in that vehicle. The trial judge acquitted Beatty. This Court overturned the acquittals and ordered a new trial. On appeal to the Supreme Court of Canada, Charron J., for the majority, took the opportunity to review the applicable tests for the mens rea and actus reus of dangerous driving.

 

The Actus Reus of Dangerous Driving

The actus reus of dangerous driving is not defined in terms of a marked departure from the normal manner of driving. The actus reus is defined by the words of the enactment. It is on this point that the minority and majority in Beatty differed in their analyses. The minority would consider the marked departure from the standard of care as part of the consideration when determining the actus reus (para. 57).

Madam Justice Charron set out the test for the actus reus at para. 43:

 

(a) The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”...

 

Madam Justice Charron elaborated on certain aspects of this test. She emphasized that the consequences of the driving were not to be taken into account in determining whether the driving was dangerous. She said, at para. 46:

“As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost begs the question to then ask whether an act that killed someone was dangerous. The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving. The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public. This Court explained this distinction in R. v. Anderson, [1990] 1 S.C.R. 265, as follows:

In the circumstances of this case, the unfortunate fact that a person was killed added nothing to the conduct of the appellant. The degree of negligence proved against the appellant by means of the evidence that he drove after drinking and went through a red light was not increased by the fact that a collision occurred and death resulted. If driving and drinking and running a red light was not a marked departure from the standard, it did not become so because a collision occurred. In some circumstances, perhaps, the actions of the accused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused. That is not the case here.” (Emphasis added; p. 273.) (Italic and underlining emphasis in original; bold emphasis added.)

 

The Mens Rea of Dangerous Driving

The fault element of dangerous driving has a constitutional component, which is to ensure that the morally innocent are not punished. A civil standard of negligence, which is concerned primarily with the apportionment of loss, is not a constitutionally compliant fault element for the offence of dangerous driving (or any negligence-based offence). Constitutional compliance is achieved by imposing a fault element of a “marked departure” from the standard of the reasonable person. (R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Gosset, [1993] 3 S.C.R. 76; R. v. Naglik, [1993] 3 S.C.R. 122; R. v. Hundal, [1993] 1 S.C.R. 867). This is an objective fault element which takes into account only the capacity of the accused person, and no other personal characteristics. (Creighton at 65-66.) This concept encompasses situations where, for example, an accused has had a sudden unexpected heart attack while driving or takes prescribed medication which has unforeseen side effects. (Hundal at 886-889.)

Madam Justice Charron confirmed that the principles of fundamental justice require more than the civil standard of negligence for the offence of dangerous driving. In her discussion of the mens rea, she said, at para. 7:

The modified objective test established by this Court's jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a “marked departure” from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind. (Italic emphasis in original; underline emphasis added.)

 

Civil negligence is concerned with apportioning damages as a result of conduct which falls below the standard of care of the reasonably prudent person. Penal negligence is concerned with punishing the morally blameworthy. As Cory J. said in Hundal at 885:

Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code. (Emphasis added.)

 

Madam Justice Charron found in Beatty that the mens rea is assessed by objectively measuring the driver’s conduct against the standard of a reasonably prudent driver (para 34). She further pointed out that because driving is an automatic and reflexive activity, there will necessarily be departures from the standard expected of a reasonably prudent driver. Although some of these departures may even pose a danger to other users of the highway, they may still fall short of the “marked” departure required to substantiate the offence of dangerous driving. Madam Justice Charron said the following at para. 34:

Therefore, as noted by Cory J., the difficulty of requiring positive proof of a particular subjective state of mind lends further support to the notion that mens rea should be assessed by objectively measuring the driver's conduct against the standard of a reasonably prudent driver. In addition, I would note that the automatic and reflexive nature of driving gives rise to the following consideration. Because driving, in large part, is automatic and reflexive, some departures from the standard expected of a reasonably prudent person will inevitably be the product, as Cory J. states, of “little conscious thought”. Even the most able and prudent driver will from time to time suffer from momentary lapses of attention. These lapses may well result in conduct that, when viewed objectively, falls below the standard expected of a reasonably prudent driver. Such automatic and reflexive conduct may even pose a danger to other users of the highway. Indeed, the facts in this case provide a graphic example. The fact that the danger may be the product of little conscious thought becomes of concern because, as McLachlin J. (as she then was) aptly put it in R. v. Creighton, [1993] 3 S.C.R. 3, at p. 59: “The law does not lightly brand a person as a criminal.” In addition to the largely automatic and reflexive nature of driving, we must also consider the fact that driving, although inherently risky, is a legal activity that has social value. (Emphasis added.)

 

Madam Justice Charron stated the test for mens rea at para. 43 of her judgment:

 

(b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

 

Thus, the constitutionally mandated mens rea (or fault element) for the offence of dangerous driving is a “marked departure” from the standard of care expected of a reasonably prudent driver.

At para. 48 of Beatty, Charron J. stated that what constitutes a “marked departure” is factually a matter of degree. The trial judge must consider the totality of the evidence (para. 52). The lack of care must be serious enough to merit punishment. A marked departure can arise in relation to conduct occurring in a brief time frame, but if the driving is otherwise proper, it is suggestive of civil rather than criminal negligence. On the other hand, a pattern of driving that satisfies the actus reus of dangerous driving can support finding a “marked departure” (R. v. McIvor, 2009 BCCA 551at para. 19).

I conclude my discussion of the law under this subheading by quoting Charron J. at para. 34 of Beatty:

...If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty. (Emphasis added.)

 

Analysis

Actus Reus

I will now examine the legal framework for dangerous driving in the context of the evidence and the facts found by the trial judge.

The test for actus reus is not whether there was driving that was a marked departure from the standard of care of a reasonably prudent driver. What is examined is the manner of driving, taking into account “all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”. One does not look at the consequences of the driving and then reason backwards. Otherwise, every mishap or accident where there is injury or death would result in a criminal conviction. To amount to dangerous driving, the conduct must be serious enough to warrant criminal punishment. While Beatty acknowledges there may be some cases where the conduct and the consequences are so interwoven that the consequences may be relevant, this is not one of those cases.

The trial judge never directly addressed the question of whether the driving was dangerous, or in other words, whether the actus reus had been proved. ...

The only two bases on which the trial judge found that Mr. De Ciantis’ driving was dangerous was that he was speeding and he was making unnecessary lane changes. In my respectful view, the trial judge's application of the objective standard to Mr. De Ciantis’ driving — that is, whether it was reasonable in all of the circumstances — was based on her conclusion that a reasonable driver travels the speed limit on Benvoulin Road. The evidence in its totality was almost overwhelmingly to the contrary. Benvoulin Road is not a street where people travel the speed limit. Her second reason for concluding that the driving was dangerous was based on her conclusion that he made “unnecessary lane changes”. In reaching this conclusion, she must have overlooked the uncontroverted evidence of Mr. Bobinski, Ms. McKamey, and Mr. De Ciantis himself that he had to change lanes when Ms. McKamey cut him off. She also overlooked the uncontroverted evidence of Mr. De Ciantis that he needed to change to the right lane to execute a right-hand turn. The trial judge did not find that the first four lane changes were executed unsafely or dangerously.

Thus, neither basis on which the trial judge found the actus reus of dangerous driving to be established is supported by the evidence.

 

Mens Rea

The trial judge referred to the appropriate test to determine the mens rea of the offences. In my respectful opinion, she fell into error when assessing whether Mr. De Ciantis' driving was a marked departure from the standard of a reasonably prudent driver. She found that Mr. De Ciantis did not have a "moment of inadvertence" when he misjudged his steering. She then concluded that he did not exercise the appropriate standard of care and found that he possessed the requisite mens rea for dangerous driving. In reaching this conclusion, she failed to consider where Mr. De Ciantis' driving fell on the continuum ranging from civil negligence, to the quasi-criminal offence of careless driving (Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 144(1)), to dangerous driving, and finally to criminal negligence (which requires a marked and substantial departure from the norm).

I repeat the passage from Hundal at 885 (C.C.C.):

Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.

In my respectful view, the trial judge erred in ascribing moral blameworthiness to Mr. De Ciantis at the criminal end of the negligence spectrum. Her conclusion that his driving was a “marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances” was unsupported by the totality of the evidence and “widened the net” too far, branding as criminal driving which was, in reality, at the lower end of the spectrum.

 

Conclusion

In my opinion, when the legal tests are properly applied and the evidence is re-weighed in the limited fashion permitted this Court, there is insufficient evidence to support the convictions and the verdict reached was, therefore, unreasonable.

 

F.         Constitutional Constraints

     
      1. Strict and Absolute Liability

 

R. v. City of Sault Ste. Marie
Supreme Court of Canada
[1978] 40 C.C.C. (2d) 353; [1978] 2 S.C.R. 1299

The judgment of the court was delivered by
DICKSON, J.:—In the present appeal the Court is concerned with offences variously referred to as “statutory”, “public welfare”, “regulatory”, “absolute liability”, or “strict responsibility”, which are not criminal in any real sense, but are prohibited in the public interest:  Sherras v. De Rutzen, [1895] 1 Q.B. 918. Although enforced as penal laws through the utilization of the machinery of the criminal law, the offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application. They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like. In this appeal we are concerned with pollution.

The doctrine of the guilty mind expressed in terms of intention or recklessness, but not negligence, is at the foundation of the law of crimes. In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea: R. v. Prince (1875), L.R. 2 C.C.R. 154; R. v. Tolson (1889), 23 Q.B.D. 168; R. v. Rees (1955), 115 C.C.C. 1, 4 D.L.R. (2d) 406, [1956] S.C.R. 640; Beaver v. The Queen (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193; R. v. King (1962), 133 C.C.C. 1, 35 D.L.R. (2d) 386, [1962] S.C.R. 746. Blackstone made the point over two hundred years ago in words still apt: “. . . to constitute a crime against human laws, there must be, first, a vicious will; and secondly, an unlawful act consequent upon such vicious will . . .”: see Commentaries on the Laws of England (1809), Book IV, 15th ed., c. 15, p. 21. I would emphasize at the outset that nothing in the discussion which follows is intended to dilute or erode that basic principle.…

The City of Sault Ste. Marie was charged that it did discharge, or cause to be discharged, or permitted to be discharged, or deposited materials into Cannon Creek and Root River, or on the shore or bank thereof, or in such place along the side that might impair the quality of the water in Cannon Creek and Root River, between March 13, 1972 and September 11, 1972. The charge was laid under s. 32(1) of the Ontario Water Resources Act, R.S.O. 1970, c. 332, [formerly Ontario Water Resources Commissary Act, renamed by 1972, c. 1, s. 70(1)] which provides, so far as relevant, that every municipality or person that discharges, or deposits, or causes, or permits the discharge or deposit of any material of any kind into any water course, or on any shore or bank thereof, or in any place that may impair the quality of water, is guilty of an offence and, on summary conviction, is liable on first conviction to a fine of not more than $5,000 and on each subsequent conviction to a fine of not more than $10,000, or to imprisonment for a term of not more than one year, or to both fine and imprisonment.…

To relate briefly the facts, the City on November 18, 1970, entered into an agreement with Cherokee Disposal and Construction Co. Ltd., for the disposal of all refuse originating in the City.Under the terms of the agreement, Cherokee became obligated to furnish a site andadequate labour, material and equipment. The site selected bordered Cannon Creek which, it would appear, runs into the Root River. The method of disposal adopted is known as the “area”, or “continuous slope” method of sanitary land fill, whereby garbage is compacted in layers which are covered each day by natural sand or gravel.

Prior to 1970, the site had been covered with a number of freshwater springs that flowed into Cannon Creek. Cherokee dumped material to cover and submerge these springs and then placed garbage and wastes over such material. The garbage and wastes in due course formed a high mound sloping steeply toward, and within 20 ft. of, the creek. Pollution resulted. Cherokee was convicted of a breach of s. 32(1) of the Ontario Water Resources Act, the section under which the City has been charged. The question now before the Court is whether the City is also guilty of an offence under that section.…

The mens rea point

The distinction between the true criminal offence and the public welfare offence is one of prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such inquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.

In sharp contrast, “absolute liability” entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in every sense, yet be branded as a malefactor and punished as such.

Public welfare offences obviously lie in a field of conflicting values. It is essential for society to maintain, through effective enforcement, high standards of public health and safety. Potential victims of those who carry on latently pernicious activities have a strong claim to consideration. On the other hand, there is a generally held revulsion against punishment of the morally innocent.…

Various arguments are advanced in justification of absolute liability in public welfare offences. Two predominate. Firstly, it is argued that the protection of social interests requires a high standard of care and attention on the part of those who follow certain pursuits and such persons are more likely to be stimulated to maintain those standards if they know that ignorance or mistake will not excuse them. The removal of any possible loophole acts, it is said, as an incentive to take precautionary measures beyond what would otherwise be taken, in order that mistakes and mishaps be avoided. The second main argument is one based on administrative efficiency. Having regard to both the difficulty of proving mental culpability and the number of petty cases which daily come before the Courts, proof of fault is just too great a burden in time and money to place upon the prosecution. To require proof of each person’s individual intent would allow almost every violator to escape. This, together with the glut of work entailed in proving mens rea in every case would clutter the docket and impede adequate enforcement as virtually to nullify the regulatory statutes. In short, absolute liability, it is contended, is the most efficient and effective way of ensuring compliance with minor regulatory legislation and the social ends to be achieved are of such importance as to override the unfortunate by-product of punishing those who may be free of moral turpitude. In further justification, it is urged that slight penalties are usually imposed and that conviction for breach of a public welfare offence does not carry the stigma associated with conviction for a criminal offence.

Arguments of greater force are advanced against absolute liability. The most telling is that it violates fundamental principles of penal liability. It also rests upon assumptions which have not been, and cannot be, empirically established. There is no evidence that a higher standard of care results from absolute liability. If a person is already taking every reasonable precautionary measure, is he likely to take additional measures, knowing that however much care he takes, it will not serve as a defence in the event of breach? If he has exercised care and skill, will conviction have a deterrent effect upon him or others? Will the injustice of conviction lead to cynicism and disrespect for the law, on his part and on the part of others? These are among the questions asked. The argument that no stigma attaches does not withstand analysis, for the accused will have suffered loss of time, legal costs, exposure to the processes of the criminal law at trial and, however one may downplay it, the opprobrium of conviction. It is not sufficient to say that the public interest is engaged and, therefore, liability may be imposed without fault. In serious crimes, the public interest is involved and mens rea must be proven. The administrative argument has little force. In sentencing, evidence of due diligence is admissible and therefore the evidence might just as well be heard when considering guilt.…

Public welfare offences involve a shift of emphasis from the protection of individual interests to the protection of public and social interests: see F. B. Sayre, “Public Welfare Offences”, 33 Columbia Law Rev. 55 (1933); Hall, General Principles of Criminal Law (1947), c. 13, p. 427; R. M. Perkins, “Civil Offence”, 100 U.of Pa. L. Rev. 832 (1952); Jobson, “Far From Clear”, 18 Crim. L. Q. 294 (1975/76). The unfortunate tendency in many past cases has been to see the choice as between two stark alternatives: (i) full mens rea; or (ii) absolute liability. In respect of public welfare offences (within which category pollution offences fall) where full mens rea is not required, absolute liability has often been imposed. English jurisprudence has consistently maintained this dichotomy: see “Criminal Law, Evidence and Procedure”, 11 Hals., 4th ed., pp. 202, para. 18. There has, however, been an attempt in Australia, in many Canadian Courts, and indeed in England, to seek a middle position, fulfilling the goals of public welfare offences while still not punishing the entirely blameless. There is an increasing and impressive stream of authority which holds that where an offence does not require full mens rea, it is nevertheless a good defence for the defendant to prove that he was not negligent.

Dr. Glanville Williams has written: “There is a half-way house between mens rea and strict responsibility which has not yet been properly utilized, and that is responsibility for negligence”(Criminal Law: General Part, 2nd ed. (1961), p. 262). Morris and Howard, in Studies in Criminal Law (1964), p. 200, suggest that strict responsibility might with advantage be replaced by a doctrine of responsibility for negligence strengthened by a shift in the burden of proof. The defendant would be allowed to exculpate himself by proving affirmatively that he was not negligent.…

In his work, “Public Welfare Offences”, at p. 78, Professor Sayre suggests that if the penalty is really slight involving, for instance, a maximum fine of $25, particularly if adequate enforcement depends upon wholesale prosecution, or if the social danger arising from violation is serious, the doctrine of basing liability upon mere activity rather than fault, is sound. He continues, however, at p. 79:

On the other hand, some public welfare offenses involve a possible penalty of imprisonment or heavy fine. In such cases it would seem sounder policy to maintain the orthodox requirement of a guilty mind but to shift the burden of proof to the shoulders of the defendant to establish his lack of a guilty intent if he can. For public welfare offenses defendants may be convicted by proof of the mere act of violation; but, if the offense involves a possible prison penalty, the defendant should not be denied the right of bringing forward affirmative evidence to prove that the violation was the result of no fault on his part.

and at p. 82:

It is fundamentally unsound to convict a defendant for a crime involving a substantial term of imprisonment without giving him the opportunity to prove that his action was due to an honest and reasonable mistake of fact or that he acted without guilty intent. If the public danger is widespread and serious, the practical situation can be met by shifting to the shoulders of the defendant the burden of proving a lack of guilty intent.

The doctrine proceeds on the assumption that the defendant could have avoided the prima facie offence through the exercise of reasonable care and he is given the opportunity of establishing, if he can, that he did in fact exercise such care.

The case which gave the lead in this branch of the law is the Australian case of Proudman v. Dayman (1941), 67 C.L.R. 536, where Dixon, J., said, at p. 540:

It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.

This case, and several others like it, speak of the defence as being that of reasonable mistake of fact. The reason is that the offences in question have generally turned on the possession by a person or place of an unlawful status, and the accused’s defence was that he reasonably did not know of this status: e.g., permitting an unlicensed person to drive, or lacking a valid licence oneself, or being the owner of property in a dangerous condition. In such cases, negligence consists of an unreasonable failure to know the facts which constitute the offence...It is clear, however, that in principle the defence is that all reasonable care was taken. In other circumstances, the issue will be whether the accused’s behaviour was negligent in bringing about the forbidden event when he knew the relevant facts. Once the defence of reasonable mistake of fact is accepted, there is no barrier to acceptance of the other constituent part of a defence of due diligence.…

It may be suggested that the introduction of a defence based on due diligence and the shifting of the burden of proof might better be implemented by legislative act. In answer, it should be recalled that the concept of absolute liability and the creation of a jural category of public welfare offences are both the product of the judiciary and not of the Legislature. The development to date of this defence, in the numerous decisions I have referred to, of Courts in this country as well as in Australia and New Zealand, has also been the work of Judges. The present case offers the opportunity of consolidating and clarifying the doctrine.

The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation. Equally, there is nothing wrong with rejecting absolute liability and admitting the defence of reasonable care.

In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would, prima facie, be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully”, “with intent”, “knowingly”, or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The over-all regulatory pattern adopted by the Legislature, the subject-matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

Ontario Water Resources Act, s. 32(1)

Turning to the subject-matter of s. 32(1)—the prevention of pollution of lakes, rivers and streams—it is patent that this is of great public concern. Pollution has always been unlawful and, in itself, a nuisance: Groat v. City of Edmonton, [1928] 3 D.L.R. 725, [1928] S.C.R. 522. A riparian owner has an inherent right to have a stream of water “come to him in its natural state, in flow, quantity and quality”: Chasemore v. Richards (1859), 7 H.L. Cas. 349 at p. 382. Natural streams which formerly afforded “pure and healthy” water for drinking or swimming purposes become little more than cesspools when riparian factory owners and municipal corporations discharge into them filth of all descriptions. Pollution offences are undoubtedly public welfare offences enacted in the interests of public health. There is thus no presumption of a full mens rea.

There is another reason, however, why this offence is not subject to a presumption of mens rea. The presumption applies only to offences which are “criminal in the true sense”, as Ritchie, J., said in The Queen v. Pierce Fisheries, supra, at p. 199 C.C.C., p. 597 D.L.R., p. 13 S.C.R. The Ontario Water Resources Act is a provincial statute. If it is valid provincial legislation (and no suggestion was made to the contrary), then it cannot possibly create an offence which is criminal in the true sense.

The present case concerns the interpretation of two troublesome words frequently found in public welfare statutes: “cause” and “permit”. These two words are troublesome because neither denotes clearly either full mens rea nor absolute liability. It is said that a person could not be said to be permitting something unless he knew what he was permitting. This is an over-simplification. There is authority both ways, indicating that the Courts are uneasy with the traditional dichotomy.…

The conflict in the above authorities … shows that in themselves the words “cause” and “permit” fit much better into an offence of strict liability than either full mens rea or absolute liability. Since s. 32(1) creates a public welfare offence, without a clear indication that liability is absolute, and without any words such as “knowingly” or “wilfully” expressly to import mens rea, application of the criteria which I have outlined above undoubtedly places the offence in the category of strict liability.

Proof of the prohibited act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care. I am strengthened in this view by the recent case of R. v. Servico Ltd. (1977), 2 Alta. L.R. (2d) 388, in which the Appellate Division of the Alberta Supreme Court held that an offence of “permitting” a person under 18 years to work during prohibited hours was an offence of strict liability in the sense which I have described. It also will be recalled that the decisions of many lower Courts which have considered s. 32(1) have rejected absolute liability as the basis for the offence of causing or permitting pollution, and have equally rejected full mens rea as an ingredient of the offence.

The present case

As I am of the view that a new trial is necessary, it would be inappropriate to discuss at this time the facts of the present case.…

Appeal dismissed

 

Reference Re: Section 94(2) of the Motor Vehicle Act
[“Motor Vehicle Reference”]
Supreme Court of Canada
[1985] 23 C.C.C. (3d) 289; [1985] 2 S.C.R. 486

LAMER J.:

INTRODUCTION

A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7 of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, as enacted by the Canada Act, 1982 (U.K.), c. 11).
In other words, absolute liability and imprisonment cannot be combined.

The facts

On August 16, 1982, the Lieutenant-Governor in Council of British Columbia referred the following question to the Court of Appeal of that province, by virtue of s. 1 of the Constitutional Question Act, R.S.B.C. 1979, c. 63:

Is s.94(2)of the Motor Vehicle Act, R.S.B.C.1979, as amended by the Motor Vehicle Amendment Act, 1982, consistent with the Canadian Charter of Rights aced Freedoms?

On February 3, 1983, the Court of Appeal handed down reasons in answer to the question in which it stated that s. 94(2) of the Act is inconsistent with the Canadian Charter of Rights and Freedoms: 4 C.C.C. (3d) 243, 147 D.L.R. (3d) 539, 33 C.R. (3d) 22, [1983] 3 W.W.R. 756, 42 B.C.L.R. 364, 5 C.R.R. 148, 19 M.V.R. 63. The Attorney-General for British Columbia launched an appeal to this Court.

The legislation

            Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 94, as amended by the Motor Vehicle Amendment Act, 1982, c. 36, s. 19:

94(1)A person who drives a motor vehicle on a highway or industrial road while
(a) he is prohibited from driving a motor vehicle under section 90, 91, 92 or 92.1, or
(b)his driver’s licence or his right to apply for or obtain a driver’s licence is suspended under section 82 or 92 as it was before its repeal and replacement came into force pursuant to the Motor Vehicle Amendment Act, 1982,
commits an offence and is liable,
(c) on a first conviction, to a fine of not less than $300 and not more than $2000 and to imprisonment for not less than 7 days and not more than 6 months, and
(d) on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $100 and not more than $2000 and to imprisonment for not less than 14 days and not more than one year.

(2) Subsection (1) creates an absolute liability offence in which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension.

Section 7

1. Introduction

The issue in this case raises fundamental questions of constitutional theory, including the nature and the very legitimacy of constitutional adjudication under the Charter as well as the appropriateness of various techniques of constitutional interpretation. I shall deal first with these questions of a more general and theoretical nature as they underlie and have shaped much of the discussion surrounding s. 7.

2. The nature and legitimacy of constitutional adjudication under the Charter

The British Columbia Court of Appeal has written in the present case that the Constitution Act, 1982 has added a new dimension to the role of the courts in that the courts have now been empowered by s. 52 to consider not only the vires of legislation but also to measure the content of legislation against the constitutional requirements of the Charter.

The concerns with the bounds of constitutional adjudication explain the characterization of the issue in a narrow and restrictive fashion, i.e., whether the terms “principles of fundamental justice” have a substantive or merely procedural content. In my view, the characterization of the issue in such fashion pre-empts an open-minded approach to determining the meaning of “principles of fundamental justice”.…

The task of the court is not to choose between substantive or procedural content per se but to secure for persons “the full benefit of the Charter’s protection” (Dickson C.J.C. in R. v.Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385 at p. 424, 18 D.L.R. (4th) 321 at p. 360, [1985] 1 S.C.R. 295 at p. 344), under s. 7, while avoiding adjudication of the merits of public policy. This can only be accomplished by a purposive analysis and the articulation (to use the words in Curr v. The Queen (1972), 7 C.C.C. (2d) 181 at p. 192, 26 D.L.R. (3d) 603 at p. 614, [1972] S.C.R. 889 at p. 899) of “objective and manageable standards” for the operation of the section within such a framework..…

The main sources of support for the argument that “fundamental justice” is simply synonymous with natural justice have been the Minutes of the Proceedings and Evidence of the Special Joint Committee on the Constitution and the Bill of Rights jurisprudence. In my view, neither the minutes nor the Bill of Rights jurisprudence are persuasive or of any great force. The historical usage of the term “fundamental justice” is, on the other hand, shrouded in ambiguity. Moreover, not any one of these arguments, taken singly or as a whole, manages to overcome in my respectful view the textual and contextual analyses.…

Consequently,  my conclusion may be summarized as follows:

The term “principles of fundamental justice” is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.

Sections 8 to 14 address specific deprivations of the “right” to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of “principles of fundamental justice”; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter, as essential elements of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and the rule of law.

Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system.

We should not be surprised to find that many of the principles of fundamental justice are procedural in nature. Our common law has largely been a law of remedies and procedures and, as Frankfurter J. wrote in McNabb v. U.S. (1942), 318 U.S. 332 at p. 347, “the history of liberty has largely been the history of observance of procedural safeguards”. This is not to say, however, that the principles of fundamental justice are limited solely to procedural guarantees. Rather, the proper approach to the determination of the principles of fundamental justice is quite simply one in which, as Professor Tremblay has written, “future growth will be based oil historical roots”: 18 U.B.C.L. Rev. 201 at p. 254 (1980).

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principles within the judicial process and in our legal system, as it evolves.

Consequently, those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7.…

Absolute liability and fundamental justice in penal law

It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law. It is so old that its first enunciation was in latin actus non facit reum nisi mens sit rea.
As Glanville Williams said:

There is no need here to go into the remote history of mens rea, suffice it to say that the requirement of a guilty state of mind (at least for the more serious crimes) had been developed by the time of Coke, which is as far back as the modern lawyer needs to go. “If one shoot at any wild fowl upon a tree, and the arrow killeth any reasonable creature afar off, without any evil intent in him, this is per infortunium.”
(Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), p. 30, London, Stevens & Sons Limited.)

One of the many judicial statements on the subject worth mentioning is of the highest authority,per Lord Goddard C.J. in Harding v. Price, [1948] 1 K.B. 695 at p. 700, where he said:

The general rule applicable to criminal cases is actus non facit reum nisi mens sit rea, and I venture to repeat what I said in Bread v. Wood ((1946), 62 T.L.R. 462, 463): “It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.”

This view has been adopted by this Court in unmistakable terms in many cases, amongst which the better known are Beaver v. The Queen (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193, and the most recent and often-quoted judgment of Dickson J. (as he then was), writing for the court in R. v. Cityof Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299.

This Court’s decision in the latter case is predicated upon a certain number of postulates one of which, given the nature of the rules it elaborates, has to be to the effect that absolute liability in penal law offends the principles of fundamental justice. Those principles are, to use the words of Dickson J., to the effect that “there is a generally held revulsion against punishment of the morally innocent” [at p. 363 C.C.C., p. 170 D.L.R., p. 1310 S.C.R.]. He also stated [at p. 363 C.C.C., p. 171 D.L.R., p. 1311 S.C.R.] that the argument that absolute liability “violates fundamental principles of penal liability” was the most telling argument against absolute liability and one of greater force than those advanced in support thereof.

In my view, it is because absolute liability offends the principles of fundamental justice that this Court created presumptions against Legislatures having intended to enact offences of a regulatory nature falling within that category. This is not to say, however, and to that extent I am in agreement with the Court of Appeal, that, as a result, absolute liability per se offends s. 7 of the Charter.

A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty or security of the person. Obviously, imprisonment (including probation orders) deprives persons of their liberty. An offence has that potential as of the moment it is open to the judge to impose imprisonment. There is no need that imprisonment, as in s. 94(2), be made mandatory.

I am therefore of the view that the combination of imprisonment and of absolute liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one’s rights under s. 7. …

Before considering s. 94(2) in the light of these findings, I feel we are however compelled to go somewhat further for the following reason. I would not want us to be taken by this conclusion as having inferentially decided that absolute liability may not offend s. 7 as long as imprisonment or probation orders are not available as a sentence. The answer to that question is dependent upon the content given to the words “security of the person”. That issue was and is a live one. Indeed, though the question as framed focuses on absolute liability (s. 94(2)) in relation to the whole Charter, including the right to security of the person in s. 7, because of the presence of mandatory imprisonment in s. 94(1) only deprivation of liberty was considered. As the effect of imprisonment on the right to liberty is a foregone conclusion, a fortiori minimum imprisonment, everyone directed their arguments, when discussing s. 7 to considering whether absolute liability violated the principles of fundamental justice, and then subsidiarily argued pro or contra the effect of s. 1 of the Charter.

Counsel for those opposing the validity of s. 94(2) took the position in this Court that absolute liability and severe punishment, always referring to imprisonment, violated s. 7 of the Charter. From the following passage of the judgment in the Court of Appeal it would appear that counsel for those opposing the validity of the section took the wider position in that court that all absolute liability offences violated s. 7 because of “punishment of the morally innocent” [at p. 250 C.C.C., p. 546 D.L.R.]:

In seeking to persuade the court to that conclusion counsel opposing the validity of s. 94(2) contended all absolute offences are now of no force and effect because of s. 7 of the Charter and that the provisions of s. 1 of the Charter should not be invoked to sustain them. In support of this submission counsel relied upon the view expressed by Mr. Justice Dickson in Sault Ste. Marie that there was “a generally held revulsion against punishment of the morally innocent”. They contended that had the Charter been in effect when Sault Ste. Mane was decided all absolute liability offences would have been struck down.

We accept without hesitation the statement expressed by the learned justice but do not think it necessarily follows that because of s. 7 of the Charter this category of offence can no longer be legislated. To the contrary, there are, and will remain, certain public welfare offences, e.g., air and water pollution offences, where the public interest requires that the offences be absolute liability offences.

While I agree with the Court of Appeal, as I have already mentioned, that absolute liability does not per se violate s. 7 of the Charter, I am somewhat concerned with leaving without comment the unqualified reference by the Court of Appeal to the requirements of the “public interest”.

If, by reference to public interest, it was meant that the requirements of public interest for certain types of offences is a factor to be considered in determining whether absolute liability offends the principles of fundamental justice, then I would respectfully disagree; if the public interest is there referred to by the court as a possible justification under s. 1 of a limitation to the rights protected at s. 7, then I do agree.

Indeed, as I said, in penal law, absolute liability always offends the principles of fundamental justice irrespective of the nature of the offence; it offends s. 7 of the Charter if, as a result, anyone is deprived of his life, liberty or security of the person, irrespective of the requirement of public interest. In such cases it might only be salvaged for reasons of public interest under s. 1.

In this latter regard, something might be added.

Administrative expediency, absolute liability’s main supportive argument, will undoubtedly under s. 1 be invoked and occasionally succeed. Indeed, administrative expediency certainly has its place in administrative law. But when administrative law chooses to call in aid imprisonment through penal law, indeed sometimes criminal law and the added stigma attached to a conviction, exceptional, in my view, will be the case where the liberty or even the security of the person guaranteed under s. 7 should be sacrificed to administrative expediency. Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like. …

Section 94(2)

No doubt s. 94(2) enacts in the clearest of terms an absolute liability offence, the conviction for which a person will be deprived of his or her liberty, and little more, if anything, need be added. …

In the final analysis, it seems that both the appellant and the respondent agree that s. 94 will impact upon the right to liberty of a limited number of morally innocent persons. It creates an absolute liability offence which effects a deprivation of liberty for a limited number of persons. To me, that is sufficient for it to be in violation of s. 7.

Section 1

Having found that s. 94(2) offends s. 7 of the Charter there remains the question as to whether the appellants have demonstrated that the section is salvaged by the operation of s. 1 of the Charter. No evidence was adduced in the Court of Appeal or in this Court. The position in that regard and the argument in support of the operability of s. 94(2) is as follows in appellant’s factum:

If this Court rules that s. 94(2) of the Motor Vehicle Act is inconsistent with s. 7 (or s. 11(d)) of the Charter, then it is submitted that s. 1 of the Charter is applicable. It is submitted that Laskin J. (as he then was) made it clear in Curr v. The Queen, supra, that it is within the scope of judicial notice for this Court to recognize that a statutory provision was enacted as part of a legislative scheme aimed at reducing the human and economic cost of bad driving. Section 94 is but part of the overall scheme laid out in the Motor Vehicle Act by which the Legislature is attempting to get bad drivers off the road. Section 94 imposes severe penalties on those who drive while prohibited from driving and those who drive while their driver’s licence is suspended.

It is submitted that if s. 94(2) is inconsistent with one of the above-noted provisions of the Charter, then s. 94(2) contains a “reasonable limit, etc.” within the meaning of s. 1 of the Charter.

I do not take issue with the fact that it is highly desirable that “bad drivers” be kept off the road. I do not take issue either with the desirability of punishing severely bad drivers who are in contempt of prohibitions against driving. The bottom line of the question to be addressed here is: whether the Government of British Columbia has demonstrated as justifiable that the risk of imprisonment of a few innocent is, given the desirability of ridding the roads of British Columbia of bad drivers, a reasonable limit in a free and democratic society. That result is to be measured against the offence being one of strict liability open to a defence of due diligence, the success of which does nothing more than let those few who did nothing wrong remain free.

As did the Court of Appeal, I find that this demonstration has not been satisfied, indeed, not in the least.
[Dickson C.J.C., Beetz, Chouinard, and Le Dain JJ. concurred with Lamer J. McIntyre and Wilson JJ. each wrote separate concurring reasons.]

Appeal dismissed

 

R. v. Wholesale Travel Group Inc.
Supreme Court of Canada
[1991] 84 D.L.R. (4th) 161; [1991] 3 S.C.R. 154

CORY J.:—The fundamental issue raised on this appeal is whether regulatory statutes which impose a regime of strict liability for breach of their provisions infringe ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

Factual background and pertinent legislation

The Wholesale Travel Group Inc. (“Wholesale Travel”) was charged with five counts of false or misleading advertising contrary to s. 36(1)(a)of the Competition Act, R.S.C. 1970, c. C-23. The charges were laid after Wholesale Travel advertised vacation packages at “wholesale prices” while at the same time charging consumers a price higher than the cost incurred by the company in supplying those vacation packages. The matter proceeded to trial in Provincial Court. Before any evidence was heard, Wholesale Travel brought a motion challenging the validity of ss. 36(1) and 37.3(2) of the Competition Act on the basis that those sections violate ss. 7and 11(d) of the Canadian Charter of Rights and Freedoms and are, therefore, of no force and effect.

The offence of misleading advertising is described in s. 36(1)(a) of the Competition Act. Although the Act has since been amended, the applicable provisions remain unchanged. I shall, therefore, refer to the old section numbers under which the appellant was charged. Section 36(1)(a) {now s. 52(1)(a)} reads as follows:

36(1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever,
(a)make a representation to the public that is false or misleading in a material respect;

Subsection (5)prescribes the penalties available upon conviction. It states:

36(5) Any person who violates subsection (1) is guilty of an offence and is liable
(a) on conviction on indictment, to a fine in the discretion of the court and to imprisonment for five years or to both; or
(b)on summary conviction, to a fine of twenty-five thousand dollars or to imprisonment for one year or to both.
The Act sets forth a statutory defence to the charge. Section 37.3(2) (now s. 60(2)) provides:

37.3(2) No person shall be convicted of an offence finder section 36 or 36.1, if he establishes that
(a)the act or omission giving rise to the offence with which he is charged was the result of error;
(b) he took reasonable precautions and exercised due diligence to prevent the occurrence of such error;
(c) he, or another person, took reasonable measures to bring the error to the attention of the class of persons likely to have been reached by the representation or testimonial; and
(d)the measures referred to in paragraph (c), except where the representation or testimonial related to a security, were taken forthwith after the representation was made or the testimonial published.
It is important to note that all four conditions must be met before the statutory defence can prevail.

Wholesale Travel contends that the statutory scheme and, in particular, the combined operation of the offence prescribed in s. 36(1)(a) and the statutory defence set forth in s. 37.3(2), infringes ss. 7 and 11(d) of the Charter. …

Issues

On July 26, 1990, the Chief Justice stated the following constitutional questions:

1.  Does s. 37.3(2) of the Competition Act, R.S.C. 1970, c. C-23, as amended, in whole or in part violate ss.7 or 11(d) of the Canadian Charter of Rights and Freedoms?
2.  Does s. 36(1)(a) of the Competition Act, in and of itself or when read in combination with s. 37.3(2) of the Competition Act, violate ss.7 or 11(d) of the Charter?
3.  If either question 1 or question 2 is answered in the affirmative, is (are) the impugned provision(s) saved by s. 1 of the Charter?

1. Regulatory offences and strict liability

A. The distinction between crimes and regulatory offences

The common law has long acknowledged a distinction between truly criminal conduct and conduct, otherwise lawful, which is prohibited in the public interest. Earlier, the designations mala in se and mala prohibita were utilized; today prohibited acts are generally classified as either crimes or regulatory offences.

While some regulatory legislation such as that pertaining to the content of food and drink dates back to the Middle Ages, the number and significance of regulatory offences increased greatly with the onset of the Industrial Revolution. Unfettered industrialization had led to abuses. Regulations were, therefore, enacted to protect the vulnerable—particularly the children, men and women who laboured long hours in dangerous and unhealthy surroundings. Without these regulations many would have died. It later became necessary to regulate the manufactured products themselves and, still later, the discharge of effluent resulting from the manufacturing process. There is no doubt that regulatory offences were originally and still are designed to protect those who are unable to protect themselves.

English courts have for many years supported and given effect to the policy objectives animating regulatory legislation. In Sherras v. De Rutzen, [1895] 1 Q.B. 918 at p. 922, it was held that, while the mens rea presumption applied to true crimes because of the fault and moral culpability which they imply, that same presumption did not apply to offences “which . . . are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty”. This case illustrates the essential distinction in the legal treatment of regulatory as opposed to criminal offences—namely, the removal of the mens rea requirement.…

The rationale for the distinction

It has always been thought that there is a rational basis for distinguishing between crimes and regulatory offences. Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely. Murder, sexual assault, fraud, robbery and theft are all so repugnant to society that they are universally recognized as crimes. At the same times some conduct is prohibited, not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable.

The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care.

That is the theory but, like all theories, its application is difficult. For example, is the single mother who steals a loaf of bread to sustain her family more blameworthy than the employer who, through negligence, breaches regulations and thereby exposes his employees to dangerous working conditions, or the manufacturer who, as a result of negligence, sells dangerous products or pollutes the air and waters by its plant? At this stage it is sufficient to bear in mind that those who breach regulations may inflict serious harm on large segments of society. Therefore, the characterization of an offence as regulatory should not be thought to make light of either the potential harm to the vulnerable or the responsibility of those subject to regulation to ensure that the proscribed harm does not occur. It should also be remembered that, as social values change, the degree of moral blameworthiness attaching to certain conduct may change as well.

Nevertheless there remains, in my view, a sound basis for distinguishing between regulatory and criminal offences.…

II. The offence in the present case

Competition legislation generally

The offence of misleading advertising with which Wholesale Travel is charged is found in the Competition Act (the “Act”). This Act, like its predecessor, the Combines Investigation Act is aimed at regulating unacceptable business activity. In General Motors of Canada Ltd. v. City National Leasing (1989), 58 D.L.R. (4th) 255, 24 C.P.R. (3d) 417, [1989] 1 S.C.R. 641, Dickson C.J.C. held that the Act embodied a complex scheme of economic regulation, the purpose of which is to eliminate activities that reduce competition in the marketplace.

The nature and purpose of the Act was considered in greater detail in Thomson Newspapers, supra. La Forest J. pointed out that the Act is aimed at regulating the economy and business with a view to preserving competitive conditions which are crucial to the operation of a free market economy. He observed that the Act was not concerned with “real crimes” but with regulatory or public welfare offences.. He put the position this way, at pp. 478-9 C.C.C., pp. 222-3 D.L.R., pp. 158-9 C.P.R.:

At bottom, the Act is really aimed at the regulation of the economy and business, with a view to the preservation of the competitive conditions which are crucial to the operation of a free market economy. This goal has obvious implications for Canada’s material prosperity. It also has broad political overtones in that it is aimed at preventing concentration of power ... It must be remembered that private organizations can be just as oppressive as the state when they gain such a dominant position within their sphere of operations that they can effectively force their will upon others.
            The conduct regulated or prohibited by the Act is not conduct which is by its very nature morally or socially reprehensible. It is instead conduct we wish to discourage because of our desire to maintain an economic system which is at once productive and consistent with our values of individual liberty. It is, in short, not conduct which would be generally regarded as by its very nature criminal and worthy of criminal sanction. It is conduct which is only criminal in the sense that it is, in fact, prohibited by law. One’s view of whether it should be so proscribed is likely to be functional or utilitarian, in the sense that it will be based on an assessment of the desirability of the economic goals to which combines legislation is directed or its potential effectiveness in achieving those goals. It isconduct which is made criminal for strictly instrumental reasons.
(Emphasis added.)

These decisions make it clear that the Competition Act in all its aspects is regulatory in character.

The offence of false or misleading advertising

Is the offence of false or misleading advertising regulatory in nature? It seems to me that the fact that the provision is located within a comprehensive regulatory framework would ordinarily be sufficient to demonstrate its regulatory nature. Several other considerations point to the same conclusion.

The offence of misleading advertising has existed in Canada since 1914. It is not without significance that it was, in 1969, transferred from the Criminal Code to the Combines Investigation Act, a step which confirms the regulatory nature of the offence.. The provision was amended in 1975 to provide for a defence of due diligence, converting the offence from absolute to strict liability.

It is true that the availability of imprisonment as a sanction for breach of a statute might be taken to indicate that the provision is criminal in nature. However, this fact is not itself dispositive of the character of an offence. Rather, one must consider the conduct addressed by the legislation and the purposes for which such conduct is regulated. This view was most recently expressed by La Forest J. in Thomson Newspapers, supra, at p. 478 C.C.C., p. 221 D.L.R., p. 157 C.P.R. He noted that many regulatory offences provide for imprisonment in order to ensure compliancewith the terms of the statute and thereby achieve the regulatory goal.

The appellant has argued that conviction for the offence of false advertising carries a stigma of dishonesty, with the inference that the accused falsely advertised for the purposes of obtaining economic advantage. It is said that nothing could be more damaging to a business than the implication that it has made dishonest representations. In my view, however, the offence does not focus on dishonesty but rather on the harmful consequences of otherwise lawful conduct. Conviction suggests only that the defendant has made a representation to the public which was in fact misleading and that the defendant was unable to establish the exercise of due diligence in preventing the error. This connotes a fault element of negligence rather than one involving moral turpitude. Thus, any stigma that might flow from a conviction is very considerably diminished.

In summary,the offence of false advertising possesses the essential characteristics which distinguish regulatory offences from those which are truly criminal. Accordingly, it should be considered to be a regulatory offence rather than a crime in the ordinary sense.

III. A contextual approach to Charter interpretation

A. The importance of considering Charter rights in context

It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.

A contextual approach is particularly appropriate in the present case to take account of the regulatory nature of the offence and its place within a larger scheme of public welfare legislation. This approach requires that the rights asserted by the appellant be considered in light of the regulatory context in which the claim is situated, acknowledging that a Charter right may have different scope and implications in a regulatory context than in a truly criminal one.

Under the contextual approach, constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences. Rather, the content of the Charter right must be determined only after an examination of all relevant factors and in light of the essential differences between the two classes of prohibited activity. This was the approach taken in Thomson Newspapers, supra, where La Forest J. stressed the importance of the regulatory nature of the statute in determining the scope of s. 8 of the Charter as applied to the Combines Investigation Act.

The contextual approach further requires that the appellant’s claim be considered and weighed in light of the realities of a modern industrial society, where the regulation of innumerable activities is essential for the benefit of all. It is vital that the fundamentally important role of regulatory legislation in the protection of individuals and groups in Canadian society today be recognized and accepted. Canadians rely on and expect their governments to regulate and control activities which may be dangerous to others. In McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545, [1990] 3 S.C.R. 229, 13 C.H.R.R. D/171, Wilson J. noted the special role of the state in life in Canada. At p. 582 of her reasons she wrote:

Canadians recognize that government has traditionally had and continues to have an important role to play in the creation and preservation of a just Canadian society ... It is, in my view, untenable to suggest that freedom is co-extensive with the absence of government Experience shows the contrary, that freedom has often required the intervention and protection of government against private action.

The scale and importance of public welfare legislation in Canada is such that a contextual approach must be taken to the issues raised in this appeal.

B. The basis for the differential treatment of regulatory offences

In the present case, the contextual approach requires that regulatory and criminal offences be treated differently for the purposes of Charter review. Before proceeding to the substantive analysis, however, it is necessary to consider the justifications for differential treatment. They are two-fold: the first relates to the distinctive nature of regulatory activity, while the second acknowledges the fundamental need to protect the vulnerable through regulatory legislation.

1. The licensing justification

Those who argue against differential treatment for regulatory offences assert that there is no valid reason to distinguish between the criminal and regulatory accused. Each, it is said, is entitled in law to the same procedural and substantive protections. This view assumes equality of position between criminal and regulatory defendants; that is to say, it assumes that each starts out from a position of equal knowledge, volition and “innocence”. The argument against differential treatment further suggests that differentiating between the regulatory and criminal defendants implies the subordination and sacrifice of the regulatory accused to the interests of the community at large. Such a position, it is argued, contravenes our basic concern forindividual dignity and our fundamental belief in the importance of the individual. It is these assumptions which the licensing justification challenges.

Criminal law is rooted in the concepts of individual autonomy and free will and the corollary that each individual is responsible for his or her conduct. It assumes that all persons are free actors, at liberty to choose how to regulate their own actions in relation to others. The criminal law fixes the outer limits of acceptable conduct, constraining individual freedom to a limited degree in order to preserve the freedom of others. Thus, the basis of criminal responsibility is that the accused person has made a deliberate and conscious choice to engage in activity prohibited by the Criminal Code. The accused person who is convicted of an offence will be held responsible for his or her actions, with the result that the opprobrium of society will attach to those acts and any punishment imposed will be considered to be deserved.

The licensing argument is directed to this question of choice. Thus, while in the criminal context, the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is, by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity. The question then becomes not whether the defendant chose to enter the regulated sphere but whether, having done so, the defendant has fulfilled the responsibilities attending that decision. Professor Richardson puts the position this way in “Strict Liability for Regulatory Crime: the Empirical Research,” [1987] Crim. L. R. 295 at pp. 295-6:

[I]t can be argued that the strict liability regulatory offender is not a “blameless innocent”. By indulging in the regulated activity she has voluntarily adopted the risks of regulatory infraction and her supposed “innocence” flows from the law’s traditional tendency to view the criminal act “only in the context of its immediate past”.

The licensing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility. Therefore, it is said, those who engage in regulated activity should, as part of the burden of responsible conduct attending participation in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere. Foremost among these implied terms is an undertaking that the conduct of the regulated actor will comply with and maintain a certain minimum standard of care.

The licensing justification is based not only on the idea of a conscious choice being made to enter a regulated field but also on the concept of control. The concept is that those persons who enter a regulated field are in the best position to control the harm which may result, and that they should, therefore, be held responsible for it. A compelling statement of this view is found in the decision of the United States Supreme Court in Morissette v. United States, 342 U.S. 246 (1952), where the court stated, at p. 256:

The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.

The licensing justification may not apply in all circumstances to all offenders. That is, there are some cases in which the licensing argument may not apply so as to permit the imputation to an accused of choice, knowledge and implied acceptance of regulatory terms and conditions. This may occur, for instance, where the nature of the regulated conduct is so innocuous that it would not trigger in the mind of a reasonable person the possibility that the conduct was regulated.

The nature of the regulated conduct will itself go far to determining whether the licensing argument applies. It is useful to distinguish between conduct which, by virtue of its inherent danger or the risk it engenders for others, would generally alert a reasonable person to the probability that the conduct would be regulated, from that conduct which is so mundane and apparently harmless that no thought would ordinarily be given to its potentially regulated nature. In the latter circumstances, the licensing argument would not apply.…

By virtue of the decision to enter the regulated field, theregulated person (here the appellant) can be taken to have accepted certain terms and conditions of entry. To paraphraseLa Forest J., the procedural and substantive protections a person can reasonably expect may vary depending upon the activity that brings that person into contact with the state. Thus, the extent of Charter protection may differ depending upon whether the activity in question is regulatory or criminal in nature.

In this way, the licensing argument provides a link between the distinction between criminal and regulatory offences and the differential treatment of those two categories for the purposes of Charter review. There is, as well, a second justification for differential treatment.
2. The vulnerability justification

The realities and complexities of a modern industrial society coupled with the very real need to protect all of society and particularly its vulnerable members, emphasize the critical importance of regulatory offences in Canada today. Our country simply could not function without extensive regulatory legislation. The protection provided by such measures constitutes a second justification for the differential treatment, for Charter purposes, of regulatory and criminal offences.

Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the onset of the Industrial Revolution. Before effective workplace legislation was enacted, labourers—including children—worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of Dante’s Inferno. It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century. The differential treatment of regulatory offences is justified by their common goal of protecting the vulnerable.

The importance of the vulnerability concept as a component of the contextual approach to Charter interpretation has been recognized in the employer/employee field in Edwards Books, supra, and Slaight Communications, supra, and in the sphere of commercial advertising in Irwin Toy, supra. The same considerations should apply whenever regulatory legislation is subject to Charter challenge.

It follows that a contextual approach is required in the present case in order that the distinctive nature of regulatory offences and their fundamental importance in Canadian society may be considered. Both licensing and vulnerability considerations justify differential treatment, for the purposes of Charter interpretation of crimes and regulatory offences. This, then, is the basisupon which the present case must be approached.

IV. The constitutionality of strict liability

The appellant argues that strict liability violates the Charter on two bases. First, it is said that, at least where imprisonment isavailable as a sanction, s. 7 of the Charter requires a minimum fault element of guilty intent or wilful blindness to be proven; it is argued that, under s. 7, negligence is an insufficient degree of fault to justify a conviction. Secondly, the appellant alleges that the traditional requirement in strict liability offences that the defendant establish due diligence on a balance of probabilities violates the presumption of innocence guaranteed by s. 11(d) of the Charter. Let us consider these submissions.

A. Section 7: the mens rea issue

Wholesale Travel contends that wherever imprisonment is available as a penalty for breach of a regulatory statute, the failure to require the Crown to prove guilty intent as an essential element of the offence violates s. 7 of the Charter. It is constitutionally impermissible, it is argued, to impose liability solely on the basis of lack of reasonable care. Thus, it is the appellant’s position that strict liability as defined in Sault Ste. Marie has been superseded and rendered invalid by the Charter. The appellant’s argument, if accepted, would eliminate any distinction between criminal and regulatory offences.

The question to be determined at this stage is what level of mens rea is required by s. 7 of the Charter.…

What emerges from Reference re: s. 94(2) of Motor Vehicle Act and Vaillancourt isthat the principles of fundamental justice referred to in s. 7 of the Charter prohibit the imposition of penal liability and punishment without proof of fault. Fault was, thus, elevated from a presumed element of an offence in Sault Ste. Marie to a constitutionally required element under the Charter. These cases did not, however, decide what level of fault is constitutionally required for every type of offence; rather, they make it clear that the degree of fault required will vary with the nature of the offence and the penalties available upon conviction. Reference re: s. 94(2) of Motor Vehicle Act does establish, however, that where imprisonment is available as a penalty, absolute liability cannot be imposed since it removes the fault element entirely and, in so doing, permits the punishment of the morally innocent.

The question which must now be determined is as follows: in situations where imprisonment is available as a penalty, does s. 7 require proof of a degree of fault greater than negligence? That is to say, must a positive mental state be established in order to justify a conviction?…

Does s. 7 require in all cases that the Crown prove mens rea as an essential element of the offence? The resolution of this question requires that a contextual approach be taken to the meaning and scope of the s. 7 right. Certainly, there can be no doubt that s. 7 requires proof of some degree of fault. That fault may be demonstrated by proof of intent, whether subjective or objective, or by proof of negligent conduct, depending on the nature of the offence. While it is not necessary in this case to determine the requisite degree of fault necessary to prove the commission of particular crimes, I am of the view that with respect to regulatory offences, proof of negligence satisfies the requirement of fault demanded by s. 7. Although the element of fault may not be removed completely, the demands of s. 7 will be met in the regulatory context where liability is imposed for conduct which breaches the standard of reasonable care required of those operating in the regulated field.

It should not be forgotten that mens rea and negligence are both fault elements which provide a basis for the imposition of liability. Mens rea focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness or wilful blindness. Negligence, on the other hand, measures the conduct of the accused on the basis of an objective standard irrespective of the accused’s subjective mental state. Where negligence is the basis of liability, the question is not what the accused intended but rather whether the accused exercised reasonable care. The application of the contextual approach suggests that negligence is an acceptable basis of liability in the regulatory context which fully meets the fault requirement in s. 7 of the Charter.

It is argued, however, that to place regulatory offences in a separate category from criminal offences, with a lower fault standard, puts the accused charged with the breach of a regulatory provision in a fundamentally unfair position. It is a violation of the principles of fundamental justice under s. 7, it is said, to allow the defendant to go to jail without having had the protection available in criminal prosecutions—that is, proof of mens rea by the Crown.

I cannot accept this contention. Regulatory offences provide for the protection of the public. The societal interests which they safeguard are of fundamental importance. It is absolutely essential that governments have the ability to enforce a standard of reasonable care in activities affecting public welfare. The laudable objectives served by regulatory legislation should not be thwarted by the application of principles developed in another context.

It must be remembered that regulatory offences were historically developed and recognized as a distinct category precisely for the purpose of relieving the Crown of the burden of proving mens rea. This is their hallmark. The tremendous importance of regulatory legislation in modern Canadian industrial society requires that courts be wary of interfering unduly with the regulatory role of government through the application of inflexible standards. Under the contextual approach, negligence is properly acceptable as the minimum fault standard required of regulatory legislation by s. 7.

What some writers have referred to as “licensing” considerations lead to the same conclusion. The regulated actor is allowed to engage in activity which potentially may cause harm to the public. That permission is granted on the understanding that the actor accept, as a condition of entering the regulated field, the responsibility to exercise reasonable care to ensure that the proscribed harm does not come about. As a result of choosing to enter a field of activity known to be regulated, the regulated actor is taken to be aware of and to have accepted the imposition of a certain objective standard of conduct as a pre-condition to being allowed to engage in the regulated activity. In these circumstances, it misses the mark to speak in terms of the “unfairness” of an attenuated fault requirement because the standard of reasonable care has been accepted by the regulated actor upon entering the regulated sphere.

Further, from a practical point of view, it is simply impossible for the government to monitor adequately every industry so as to be able to prove actual intent or mens rea in each case. In order to do so, governments would have to employ armies of experts in every conceivable field. For example, it would be necessary to continuously monitor a myriad of complex activities that are potentially dangerous to members of society. Such activities include manufacturing and mining procedures, food and drug manufacturing, processing and packaging.

In our complex society, the government can, as a practical matter do no more than to demonstrate that it has set reasonable standards to be met by persons in the regulated sphere and to prove beyond a reasonable doubt that there has been a breach of those standards by the regulated defendant. The impossibility of requiring the government to prove mental culpability was recognized by Dickson J. in Sault Ste. Marie.…He stated at p. 363 C.C.C., p. 171 D.L.R.:

Having regard to both the difficulty of proving mental culpability and the number of petty cases which daily come before the Courts, proof of fault is just too great a burden in time and money to place upon the prosecution. To require proof of each person’s individual intent would allow almost every violator to escape. This, together with the glut of work entailed in proving mens rea in every case would clutter the docket and impede adequate enforcement as virtually to nullify the regulatory statutes.

The whole governmental regulatory scheme would be rendered meaningless if the appellant’s mens rea argument were to succeed.

For these reasons, I conclude that the appellant’s claim that strict liability offences violate s. 7 of the Charter cannot succeed. The requirements of s. 7 are met in the regulatory context by the imposition of liability based on a negligence standard. Therefore, no violation of s. 7 results from the imposition of strict liability.

B. Section 11(d): onus and the due diligence defence

Wholesale Travel argues that the placing of a persuasive burden on the accused to establish due diligence on a balance of probabilities violates the presumption of innocence as guaranteed by s. 11(d) of the Charter. As the due diligence defence is the essential characteristic of strict liability offences as defined in Sault Ste. Marie, the appellant’s s. 11(d) claim represents a fundamental challenge to the entire regime of regulatory offences in Canada...
The content of the presumption in the regulatory contest

Much of what has been said in regard to the validity of strict liability under s. 7 of the Charter is applicable as well to the s. 11(d) question of onus. The importance of regulatory legislation and its enforcement strongly support the use of a contextual approach in the interpretation of the s. 11(d) right as applied to regulatory offences.

At the outset, it is enlightening to return to the relatively recent decision of this court in Sault Ste. Marie. In his reasons, Dickson J. made explicit reference to the presumption of innocence, holding (at p. 367 C.C.C., pp. 174-5 D.L.R.) that requiring an accused to establish due diligence on a balance of probabilities does not offend the basic presumption of innocence as articulated in Woolmington v. Director of Public Prosecutions, [1935] A.C. 462:

Viscount Sankey, L.C., referred to the strength of the presumption of innocence in a criminal case and then made the statement, universally accepted in this country, that there is no burden on the prisoner to prove his innocence; it is sufficient for him to raise a doubt as to his guilt. I do not understand the case as standing for anything more than that. It is to be noted that the case is concerned with criminal offences in the true sense; it is not concerned with public welfare offences.. It is somewhat ironic that Woolmington’s case, which embodies a principle for the benefit of the accused, should be used to justify the rejection of a defence of reasonable care for public welfare offences and the retention of absolute liability, which affords the accused no defence at all. There is nothing in Woolmington’s case, as I comprehend it, which stands in the way of adoption, in respect of regulatory offences, of a defence of due care, with burden of proof resting on the accused to establish the defence on the balance of probabilities.(Emphasis added.)

In Sault Ste. Marie, Dickson J. carefully considered the basic principles of criminal liability, including the presumption of innocence, and balanced them against the public goals sought to be achieved through regulatory measures. He determined that strict liability represented an appropriate compromise between the competing interests involved. This conclusion is no less valid today. The Charter was not enacted in a vacuum. The presumption of innocence which it guarantees had long been established and was well recognized at common law. The due diligence defence recognized in Sault Ste. Marie which is the target of the present challenge was itself a function of the presumption of innocence.

The reasons for ascribing a different content to the presumption of innocence in the regulatory context are persuasive and compelling. As with the mens rea issue, if regulatory mechanisms are to operate effectively, the Crown cannot be required to disprove due diligence beyond a reasonable doubt. Such a requirement would make it virtually impossible for the Crown to prove regulatory offences and would effectively prevent governments from seeking to implement public policy through regulatory means.

It has been suggested that requiring the Crown to prove negligence beyond a reasonable doubt, either as part of its case or after the accused adduces some evidence raising a reasonable doubt as to due diligence, would represent an acceptable compromise: it would, it is said, lessen the burden on the accused while still allowing for the effective pursuit of the regulatory objective. I cannot accept this contention. While such an approach would undoubtedly be beneficial to the accused, it would effectively eviscerate the regulatory power of government by rendering the enforcement of regulatory offences impossible in practical terms. Under this approach, the Crown would be forced to prove lack of reasonable care where the accused raises a reasonable doubt as to the possibility of due diligence.

It is difficult to conceive of a situation in which a regulated accused would not be able to adduce some evidence giving rise to the possibility that due diligence was exercised. For instance, an environmental polluter would often be able to point to some measures it had adopted in order to prevent the type of harm which ultimately resulted. This might raise a reasonable doubt that it had acted with due diligence no matter how inadequate those measures were for the control of a dangerous situation. Similarly, a wholly inadequate effort to ensure that an advertisement was true might nevertheless succeed in raising a reasonable doubt as to due diligence.

To impose such a limited onus is inappropriate and insufficient in the regulatory context. Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. Thus, the question is not whether the accused hasexercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and the manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context, there is nothing unfair about imposing that onus; indeed, it is essential for the protection of our vulnerable society.

It must not be forgotten that the virtual impossibility of proving regulatory offences beyond a reasonable doubt was central to this court’s decision in Sault Ste. Marie. This consideration led the court to conclude that the imposition of strict liability with a defence of due diligence available to the accused was both necessary and appropriate. Dickson J. stated at p. 373 C.C.C., p. 181 D.L.R.:

The correct approach, in my opinion. is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation.
*  *  * 
In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.(Emphasis added.)

This rationale is no less compelling today. Quite simply, the enforcement of regulatory offences would be rendered virtually impossible if the Crown were required to prove negligence beyond a reasonable doubt. The means of proof of reasonable care will be peculiarly within the knowledge and ability of the regulated accused. Only the accused will be in a position to bring forward evidence relevant to the question of due diligence.

Nor can I accept the contention that there is little practical difference between requiring the accused to prove due diligence on a balance of probabilities and requiring only that the accused raise a reasonable doubt as to the exercise of due diligence. Professor Webb, in his article, ibid., deals with this argument in the following terms, at p. 467:

Some might argue that in practice there is no workable distinction between an offence which requires the accused to prove due diligence on the balance of probabilities to avoid conviction, and one that permits the accused to raise a reasonable doubt as to the existence of due diligence. Trial judges will find a way to convict those whom they feel are guilty of negligence, the argument would go, regardless of burdens of proof. This type of reasoning certainly contradicts the statement of the trial judge in Whyte, [supra], who contended that in the absence of a balance of probability presumption, he would have found reasonable doubt as to whether the accused had “care and control” of a motor vehicle.

Webb then goes on, at p. 467, to identify the deleterious effects on prosecution of regulatory offences which would result from requiring the Crown to prove negligence:

The “there is no difference in practice anyway” argument also fails to recognize the different quantity and quality of evidence which administrators would be forced to provide to prosecutors in preparation for a case. If an evidential rather than a persuasive burden is adopted, merely raising a reasonable doubt as to the existence of due diligence would then shift the burden of proof to the prosecutors to prove negligence. Prior to any case reaching the prosecution stage, administrators would be under an obligation to collect all the evidence necessary to prove negligence. In effect, prosecutors would be more likely to turn down a request from administrators for a prosecution unless proof of negligence could be established. Given the difficulty in accumulating such information, it is not unlikely that there would be a chilling effect on use of the prosecution mechanism. Once it became noticeable that less cases were reaching the courts, it is possible that regulatees would receive the signal that, in most circumstances, the offence of negligence was not enforceable.(Emphasis in original.)

I agree with these conclusions of Professor Webb. To reduce the onus on the accused would, from a practical point of view, raise insurmountable barriers for the Crown seeking to enforce a regulatory scheme.

In these circumstances, it cannot be contended that requiring the prosecution to prove negligence beyond a reasonable doubt would still allow for the effective achievement of regulatory objectives. To the contrary, its effect would be, in practical terms, to render the regulatory power of governments ineffectual.

Nor can it be argued that other solutions would be satisfactory; there is simply no other practical solution. Both with respect to the consumption of government resources and the intrusiveness of regulatory measures, the consequences of a finding that the due diligence defence violates s. 11(d) of the Charter would be extremely severe. Governments would be forced to devote tremendous expenditure, in terms of monetary and human resources, to regulatory enforcement mechanisms. Armies of investigators and experts would be required in order to garner sufficient evidence to establish negligence or disprove due diligence beyond a reasonable doubt.

Further, a marked expansion in enforcement mechanisms by definition implies an escalation in the intrusiveness of regulatory measures. The greater the burden of proof on the Crown, the greater the likelihood that those charged with the enforcement of regulatory measures would have to resort to legislation authorizing search and surveillance in order to gather sufficient evidence to discharge that onus.

As with the s. 7 challenge, licensing considerations support the conclusion that strict liability does not violate s. 11(d) of the Charter. The licensing argument attributes to the regulated actor knowledge and acceptance, not only of the standard of reasonable care itself, but also of the responsibility to establish on a balance of probabilities the exercise of reasonable care. Acceptance of this burden is an implied term and a pre-condition of being allowed to engage in activity falling within the regulated sphere. Regulated actors are taken to understand that, should they be unable to discharge this burden, an inference of negligence will be drawn from the fact that the proscribed result has occurred.

I wish to emphasize, however, that the difference in the scope and meaning of s. 11(d) in the regulatory context does not imply that the presumption of innocence is meaningless for a regulated accused. The Crown must still prove the actus reus of regulatory offences beyond a reasonable doubt. Thus, the Crown must prove that the accused polluted the river, sold adulterated food, or published a false advertisement. However, once having established this beyond a reasonable doubt, the Crown is presumptively relieved of having to prove anything further. Fault is presumed from the bringing about of the proscribed result, and the onus shifts to the defendant to establish reasonable care on a balance of probabilities.

For these reasons, I conclude that the presumption of innocence as guaranteed in s. 11(d) of the Charter is not violated by strict liability offences as defined in Sault Ste. Marie. The imposition of a reverse persuasive onus on the accused to establish due diligence on a balance of probabilities does not run counter to the presumption of innocence, notwithstanding the fact that the same reversal of onus would violate s. 11(d) in the criminal context.
C. The imprisonment concern

Much has been made in this appeal of the potential use of t imprisonment as a sanction for breach of strict liability offences. The Chief Justice considers the use of imprisonment to be determinative of the Charter analysis. With respect, I am unable to agree. The availability of imprisonment in no way alters my conclusion that strict liability does not violate either ss. 7 or 11(d) of the Charter.

The Charter does not guarantee an absolute right to liberty; rather, it guarantees the right not to be deprived of liberty except in accordance with the principles of fundamental justice. Thus, while the availability of imprisonment undoubtedly triggers Charter review, it does not resolve the ultimate question. What must be determined is whether, in a given case, the possibility of a sentence of imprisonment comports with the principles of fundamental justice. It is whether the principles of fundamental justice have been violated, not the availability of imprisonment, which is the determinative consideration.

In this regard, it is essential to recognize that the principles of fundamental justice are not static in meaning or application. As La Forest J. stated for the court in R. v.Lyons (1987), 37 C.C.C. (3d) 1 at p. 45, 44 D.L.R. (4th) 193 at p. 237, [1987] 2 S.C.R. 309: “It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.”

There is quite properly a difference or variation between what the principles of fundamental justice require in regard to true crimes and what they require in the regulatory context.

The ultimate question is whether the imposition of imprisonment on the basis of strict liability comports with the principles of fundamental justice. For the reasons set out earlier concerning the underlying rationale of regulatory offences, I am of the opinion that it does.

Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. Nor is the imposition of imprisonment unreasonable in light of the danger that can accrue to the public from breaches of regulatory statutes. The spectre of tragedy evoked by such names as Thalidomide, Bhopal, Chernobyl and the ExxonValdez can leave no doubt as to the potential human and environmentaldevastation which can result from the violation of regulatory measures. Strong sanctions including imprisonment are vital to the prevention of similar catastrophes. The potential for serious harm flowing from the breach of regulatory measures is too great for it to be said that imprisonment can never be imposed as a sanction.

I would only add that, in those circumstances where the imposition of imprisonment would be grossly disproportionate to the offence committed, the accused person would have a compelling claim under s. 12 of the Charter. However, the fact that it is possible to imagine instances where the use of imprisonment would be inappropriate should not be used to justify the conclusion that imprisonment can never be imposed in respect of strict liability offences.. Imprisonment must be available to governments as a sanction if the power to regulate is to be effective.

V. Application to s. 36(1)(a) and s. 37.3(2)

Section 36(1)(a) of the Competition Act creates the offence of false or misleading advertising. Section 37.3(2)provides a statutory defence to that charge. The defence will only lie where all four conditions set out in paras. (a) through (d) are met. While paras. (a) and (b) in essence describe the common law defence of due diligence, paras. (c) and (d) create additional conditions which must be met before the defence will lie.
The validity of paras. (c) and (d) of s. 37.3(2)

Paragraph (c) of s. 37.3(2) requires an accused who has made a misleading representation to take positive steps to bring the error to the attention of those to be likely affected by it. Paragraph (d) requires this to be done promptly. The effect of these provisions is to impose an obligation on the accused to make a prompt retraction as a precondition to relying on the defence of due diligence.

The Court of Appeal unanimously held that paras. (c) and (d) of s. 37.3(2) may in some circumstances require conviction where there is no fault on the part of the accused. I agree with this conclusion. Even where an accused can establish the absence of negligence in the making of misleading representations, paras. (c) and (d) none the less require conviction if the accused has failed to make a prompt correction or retraction. In these circumstances, the accused would be deprived of the defence of due diligence and the offence would be tantamount to absolute liability, since liability could be imposed in the absence of fault on the part of the accused.

Such a result clearly violates s. 7 of the Charter. As Lamer J. stated in Reference re: s. 94(2) of Motor Vehicle Act, supra, at p. 293C.C.C., p. 541 D.L.R.:

A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7 of the Canadian Charter of Rights and Freedoms.

Nor do I think that paras. (c) and (d) can be justified under s. 1 of the Charter. The Crown has filed little evidence to support its position that paras. (c) and (d) can be saved by s. 1. Perhaps this is itself a sufficient basis for finding that those paragraphs are not justifiable.

There are, however, additional grounds for reaching this conclusion. Assuming that there is a rational connection between the requirement of corrective advertising and the legislative objective of seeking to prevent the harm resulting from misleading representations, it cannot be said that the impugned provisions constitute a minimal impairment of the rights of the accused. Further, the availability of imprisonment as a sanction far outweighs the importance of the regulatory objective in correcting false advertising after the fact. In short, there is no proportionality between means and ends. Paragraphs (c) and (d) cannot then be justified under s. 1 of the Charter.

The validity of paras. (a) and (b)

These paragraphs in essence put forward the common law defence of due diligence. Where imprisonment is available as a penalty for breach of a statute, s. 7 of the Charter requires proof of fault before liability can be imposed. I have concluded, however, that the fault requirement is different for regulatory than for criminal offences. In the regulatory context, it is appropriate that fault should be imposed on the basis of negligence. There is, therefore, no violation of s. 7 resulting from the removal of the mens rea requirement in strict liability offences. It follows that paras. (a) and (b) of s. 37.3(2) do not violate s. 7 of the Charter.

It has been noted earlier that the s. 11(d) presumption of innocence has a different scope and meaning in relation to regulatory as opposed to criminal offences. In my view, the imposition in strict liability offences of a reverse persuasive onus on the accused to establish due diligence is proper and permissible and does not constitute a violation of the s. 11(d) presumption of innocence. I, therefore, conclude that paras. (a) and (b) of . 37.3(2) do not violate s. 11(d) of the Charter.

VII. Disposition

Since paras. (c) and (d) of s. 37.3(2) of the Competition Act violate s. 7 of the Charter and cannot be justified under s. 1, they must be struck down and declared to be of no force or effect. What remains in s. 36(1)(a) and s. 37.3(2)(a) and (b) isa strict liability regulatory offence.. These provisions are valid and enforceable. In the result I would dismiss the appeal and allow the Crown’s Appeal to the extent required to reflect this disposition.

LAMER C.J.C. (dissenting in part):—

Issues

The following constitutional questions were stated on July 26, 1990:

1. Does s. 37.3(2) of the Competition Act, R.S.C. 1970, c. C-23, as amended, in whole or in part violate ss. 7 or 11(d) of the Canadian Charter of Rights and Freedoms?
2. Does s. 36(1)(a) of the Competition Act, in and of itself or when read in combination with s. 37.3(2) of the Competition Act violate s. 7 or 11(d) of the Charter?
3. If either question l or question 2 is answered in the affirmative, is (are) the impugned provision(s) saved by s. 1 of the Charter?...

Analysis

Do ss. 36(1)(a) and 37.3(2) of the Competition Act violate the Charter?

Section 7

In Reference re: s. 94(2) of Motor Vehicle Act, supra, this court held that the combination of absolute liability and possible imprisonment violates s. 7 of the Charter and will rarely be upheld under s. 1. This is because an absolute liability offence has the potential of convicting a person who really has done nothing wrong (i.e., has acted neither intentionally nor negligently). In R  v.Vaillancourt, supra, Istated that whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state (or fault requirement) which is an essential element of the offence. Reference re:  94(2) of Motor Vehicle Act inferentially decided that even for a mere provincial regulatory offence at least negligence is required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. The rationale for elevating mens rea from a presumed element in R. v.Sault Ste. Marie (City) (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299, to a constitutionally required element, was that it is a principle of fundamental justice that the penalty imposed on an accused and the stigma which attaches to thatpenalty and/or to the conviction itself, necessitate a level of faultwhich reflects the particular nature of the crime.

Thus, the question to be addressed under s. 7 in this case is whether the offence of false/misleading advertising is missing any “elements” (i.e., level of fault) which are constitutionally required by s. 7 of the Charter.

Given that the offence of false/misleading advertising is punishable by up to five years’ imprisonment, it is clear from the developing jurisprudence of this court that the offence must not be one of absolute liability and that it commands a minimum fault requirement of negligence, in that at least a defence of due diligence must be always be open to an accused in order for the provision to conform to the requirements of s. 7 of the Charter. Therefore, it will be necessary to examine the components of s. 37.3(2) ((a) through (d)) in order to determine whether they, in fact, provide a defence of due diligence to an accused.

Before addressing this question, however, it is necessary to address a further argument put forward by the appellant, Wholesale Travel. Counsel for Wholesale Travel has argued that the offence of false/misleading advertising is one of those offences, contemplated by this court in Vaillancourt, for which the special nature of the stigma attaching to a conviction and/or the severity of the available punishment is such that subjective mens rea is constitutionally required by s. 7.

Counsel for Wholesale Travel argued that the stigma attaching to a conviction of false/misleading advertising is akin to the stigma of dishonesty which attaches to a conviction of theft. Given that the stigma attaching to theft was explicitly contemplated in Vaillancourt as one which may well necessitate a subjective mens rea, it was argued that the offence of false/misleading advertising also requires an element of subjective mens rea in order to comply with the principles of fundamental justice. In my view, while a conviction for false/misleading advertising carries some stigma, in the sense that it is not morally neutral behaviour, it cannot be said that the stigma associated with this offence is analogous to the stigma of dishonesty which attaches to a conviction for theft. A conviction for false/misleading advertising will rest on a variety of facts, many of which will not reveal any dishonesty but, rather, carelessness, and the conviction of same does not brand the accused as being dishonest. In my opinion, the same cannot be said for a conviction for theft.

Thus, while it is clear that there are some offences for which the special stigma attaching to conviction is such that subjective mens rea is necessary in order to establish the moral blameworthiness which justifies the stigma and sentence, the offence of false/misleading advertising is not such an offence. I note that the general question of the appropriate standard of fault was recently addressed, in relation to provincial offences, by the Ontario Law Reform Commission in its Report on the Basis of Liability for Provincial Offences (Toronto, 1990). The commission was of the view that “mere carelessness should not result in a prison sentence” (at p. 46), and recommended that where the possibility of imprisonment arises upon conviction of a provincial offence, the standard of fault must be more than ordinary negligence and must be either an aware state of mind (subjective mens rea) or a “marked and substantial departure from the standard of care expected of a reasonably prudent person in the circumstances” (at p. 46). The Law Reform Commission of Canada made a similar recommendation in its earlier Working Paper No. 2, The Meaning of Guilt: Strict Liability (Ottawa, 1974), wherein the commission stated that for regulatory offences allowing for a defence of due diligence with a reverse onus of proof, “imprisonment should generally be excluded as a punishment, though regulatory offences committed deliberately or recklessly could, in appropriate cases, constitute offences under the Criminal Code and merit imprisonment” (at p. 37). It must be remembered that in making these recommendations, the law reform commissions were advising their respective governments on matters of policy. Conversely, the question raised in the appeal before this court is not what is the most appropriate government policy, but rather what fault requirement is constitutionally required where an accused faces possible imprisonment. While an aware state of mind may well be the most appropriate minimum standard of fault for imprisonment or for any offence included in the Criminal Code, a matter upon which I refrain from expressing any view, it does not follow that this standard of fault is entrenched in the Charter. As I stated in Lippé c. Charest (1991), 5 M.P.L.R. (2d) 113, (sub nom. R. v. Lippé) 64 C.C.C. (3d) 513, 5 C.R.R. (2d) 31, (sub nom. Lippé v. Québec (Procureur général)) 128 N.R. 1, 39 Q.A.C. 241 (S.C.C.), at p. 34 [N.R.], “the Constitution does not always guarantee the ideal.” As this court stated in Vaillancourt, supra, the principles of fundamental justice dictate that negligence is the minimum fault requirement where an accused faces possible imprisonment upon conviction except for certain offences such as murder. For the reasons given above, it is my view that s. 7 of the Charter does not dictate the higher fault requirement contemplated by the Ontario Law Reform Commission for the offence of false/misleading advertising. Whether a fault requirement higher than this constitutional minimum ought to be adopted where an accused faces possible imprisonment or conviction of any offence under the Criminal Code is a question of public policy which must be determined by Parliament, and for the courts to pronounce upon this would be contrary to what this court has said in Re B.C. Motor Vehicle Act, supra, at pp. 498-499: [S.C.R., p. 305 C.R.], that we refrain from “adjudicating upon the merits or wisdom of enactments.” It is not the role of this court to “second-guess” the policy decisions made by elected officials.

Therefore, an element of subjective mens rea is not required by s. 7 of the Charter, and the provisions in question are not inconsistent with s. 7 on the basis that they do not require intent or knowledge on the part of an accused. I turn now to the question posed above: namely, do paras. (a) through (d) of s. 37.3(2) provide an accused with a defence of due diligence?

Section 37.3(2)(a) through (d) sets out the only defence, under the Act, to false/misleading advertising, once it has been established that the advertisement is objectively false or misleading (i.e., once the actus reus is established). It is clear from the inclusion of the word “and” after s. 37.3(2)(c) that all four components of s. 37.3(2) must be established in order for the accused to be acquitted. While the Crown has suggested that, in certain circumstances, only paras. (a) and (b) must be fulfilled (relying on certain dicta of the Ontario Court of Appeal in R. v. Consumers Distributing Co. (1980), 54 C.P.R. (2d) 50, 57 C.C.C. (2d) 317), it is my respectful view that this is an incorrect interpretation of the provision.

Thus, the question becomes whether a situation could arise where an accused would be unable to establish all four components of s. 37.3(2), but would nonetheless be duly diligent (i.e., not negligent). If the answer to this question is yes, it means that the constitutionally required element of negligence is not fulfilled by the statutory defence contained in s. 37.3(2).

The Crown has conceded that the statutory defence afforded by s. 37.3(2) is “more restricted” than the common law defence of due diligence, but nonetheless argues that the limited nature of the statutory defence does not render it unconstitutional. Although paras.(a) and (b) of s. 37.3(2) refer specifically to an “error” and to the exercise of due diligence to prevent an “error,” they, in my view, largely correspond to the usual due diligence defence. In other words, paras. (a) and (b) operate so as to provide a defence to an accused who has taken reasonable precautions to prevent false/misleading advertising, and who has been duly diligent in ensuring that advertising is not false or misleading in nature. However, the additional requirement of “timely retraction” embodied in paras. (c) and (d) means that the statutory defence is considerably more narrow than the common law defence of due diligence.

An accused who did not realize, and could not reasonably have been expected to realize, that the representation in question was false or misleading until it was too late to comply with paras. (c) and (d), or who was, for some reason, unable to comply with paras. (c) and (d), but who had nonetheless taken reasonable precautions and who had exercised due diligence in preventing false/misleading advertising, would not fall within the statutory defence and would be convicted of false/misleading advertising. I agree with the majority of the Ontario Court of Appeal that paras. (c) and (d) of s. 37.3(2) could have the effect of depriving an accused of the defence of due diligence and could therefore require the conviction of an accused who was not negligent. Paras. (c) and (d) make the failure to undertake corrective advertising (a component of the offence of false/misleading advertising) an “offence” of absolute liability. Consequently, the consitutionally required fault level is not present in the false/misleading advertising provisions.

In light of the above discussion, I agree with the majority of the Court of Appeal that it is the presence of paras. (c) and (d) alone which offends s. 7 of the Charter. Thus, unless the limitation on s. 7 can be upheld under s. l of the Charter, these two paragraphs must be held to be of no force or effect, pursuant to s. 52(1) of the Constitution Act, 1982.

The Crown, along with a number of interveners, has argued that this result should not necessarily follow where the offence in question is a “regulatory offence” as opposed to a criminal offence and that the constitutional fault requirement, as contemplated by Reference re: s. 94(2) of Motor Vehicle Act and R. v. Vaillancourt, should not necessarily apply in a regulatory setting. Much has been made in this case of the fact that the Competition Act isaimed at economic regulation. In my view, whether this offence (or the Act generally) is better characterized as “criminal” or “regulatory” is not the issue. The focus of the analysis in Reference re: s. 94(2) of Motor Vehicle Act and R v.Vaillancourt was on the use of imprisonment to enforce the prohibition of certain behaviour or activity. A person whose liberty has been restricted by way of imprisonment has lost no less liberty because he or she is being punished for the commission of a regulatory offence as opposed to a criminal offence. Jail is jail, whatever the reason for it. In my view, it is the fact that the state has resorted to the restriction of liberty through imprisonment for enforcement purposes which is determinative of the principles of fundamental justice. I cannot agree that these principles take on a different meaning simply because the offence can be labelled as “regulatory”. Indeed, while I agree that this offence can be characterized as “regulatory”, the label loses much of its relevance when one considers that an accused faces up to five years’ imprisonment upon conviction.

While a regulatory context may well influence the Charter analysis in particular cases (see the judgment of Justice La Forest in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Parade Practices Commission), (1990), 54 C.C.C. (3d) 417, 67 D.L.R. (4th) 161, 29 C.P.R. (3d) 97, [1990] 1 S.C.R. 425, it is my view that the jurisprudence of this court indicates that negligence is the minimum level of fault which will accord with s. 7 of the Charter whenever a conviction gives rise to imprisonment.

In light of the above, I will now consider whether paras. (c) and (d)of s. 37.3(2) can be upheld as a reasonable limit under s. 1 of the Charter.

Section 1

The procedure to be followed when the state is attempting to justify a limit on a right or freedom under s. 1 was set out by this court in R. vOakes, supra ....
[Lamer C.J. held that the provisions could not be upheld under s. 1. While he was of the view that the objective of the provisions—to protect consumers from false advertising and to prevent companies from reaping the benefits of false advertising—was pressing and substantial and that the means chosen were rationally connected to the objective, Lamer C.J. found the provisions failed the minimal impairment test of Oakes for the following reasons:]

It is not necessary to convict of false/misleading advertising those who did not undertake corrective advertising because they did not realize (and ought not to have realized) that the advertisement was false/misleading, in order to achieve the objectives set out above. If Parliament wished to encourage corrective advertising in order to meet the objectives set out above, it could have:

(a) enacted a separate offence of “failure to correct false/misleading advertising” under which an accused who discovers or who ought to have discovered that an advertisement was false or misleading is required to be duly diligent in taking the corrective measures set out in paras. (c) and (d)in order to come within the statutory defence to this offence, or
(b) maintained the component of “failure to correct false/misleading advertising” within the existing statutory defence to false advertising, but worded paras. (c) and (d)in such a way that the requirement for corrective advertising would arise upon the accused’s discovery that the advertisement was false or misleading (or upon a finding that the accused ought to have discovered that the advertisement was false/misleading).

In my view, either of these alternative means would, without convicting the innocent, achieve the objective of encouraging advertisers to undertake corrective advertising and would therefore achieve the dual objectives of protecting consumers from the effects of false advertising and of preventing advertisers from benefiting from false/misleading representations. Given that these two alternatives were clearly open to Parliament, it can be seen that the existing paragraphs are unnecessarily intrusive on constitutional rights.

While an absolute liability component to the offence of false advertising would perhaps be more effective in facilitating convictions than would the alternatives proposed above, the simple answer to this contention is that Parliament could have retained the absolute liability component and, at the same time, infringed Charter rights to a much lesser extent, had it not combined this absolute liability with the possibility of imprisonment. In this sense, removing the possibility of imprisonment and leaving paras. (c) and (d)unchanged was a further less intrusive means which was available to Parliament.

I will now consider whether the false/misleading advertising provisions limit an accused’s rights under s. 11(d) of the Charter.

Section 11 (d)

In R. v. Oakes, supra, this court held that the presumption of innocence is protected expressly by s. 11(d) of the Charter and inferentially by the s. 7 right to life, liberty and security of the person (since the presumption of innocence is a principle of

fundamental justice). In analyzing the meaning and content of s. 11(d), this court held that, where an accused faces penal consequences, the right to be presumed innocent until proven guilty requires, at a minimum, that: an individual must be proven guilty beyond a reasonable doubt, that the state must bear the burden of proof and that criminal prosecutions must be carried out in accordance with lawful procedures and fairness. This court held that s. 8 of the Narcotic Control Act, R.S.C. 1970, c. N-1, infringed s. 11(d) by requiring the accused to prove (on a balance of probabilities) that he was not guilty of trafficking once the basic fact of possession had been proven.

In R. v. Wigglesworth (1987), 37 C.C.C. (3d) 385, 45 D.L.R. (4th) 235, [1987] 2 S.C.R. 541, this court held that the rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the state for public offences involving punitive sanctions, i.e., criminal, quasi-criminal, and regulatory offences, either federally or provincially enacted. Wilson J. (for the majority) stated that s. 11 is intended to provide procedural safeguards in proceedings which may attract penal consequences even if not criminal in the strict sense. ...

Thus, the question to be determined here is whether the words “he establishes that” contained in s. 37.3(2) could operate so as to permit a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.

Again, both the Crown and a number of interveners have argued that this interpretation of s. 11(d) should not apply in a regulatory setting. I can only reiterate my earlier comment that it is the fact that the state has resorted to the restriction of liberty through imprisonment for enforcement purposes which is determinative of the Charter analysis. A person whose liberty has been restricted by way of imprisonment has lost no less liberty because he or she is being punished for the commission of a regulatory offence as opposed to a criminal offence. A person whose liberty interest is imperilled is entitled to have the principles of fundamental justice fully observed. The presumption of innocence, guaranteed by s. 11(d), is clearly a principle of fundamental justice.

Given that I have determined, above, that paras. (c) and (d) of s. 37.3(2) must be held to be of no force or effect, the words “he establishes that” must be considered with respect to paras. (a) and (b)of s. 37.3(2). In this context, the words “he establishes that” place a burden on an accused to prove the two elements delineated thereafter on a balance of probabilities: see R. v. Chaulk, supra, at p. 203. Thus, if an accused fails to prove either of these elements on a balance of probabilities, (assuming the Crown has proved theactus reus) that accused will be convicted of false/misleading advertising. The absenceof due diligence (presence of negligence) is clearly necessary for a finding of guilt. Thus, it seems clear to me that under s. 37.3(2) an accused could be convicted of false/misleading advertising despite the existence of a reasonable doubt as to whether the accused was duly diligent and, therefore, despite the existence of a reasonable doubt as to guilt.

In light of the above, I fully agree with the following statement of Tarnopolsky J.A. in the court below (at pp. 32-3 C.C.C., pp. 3489 D.L.R., p. 568 O.R.):

It is clearly possible for an accused to raise a reasonable doubt that he or she acted with due diligence without being able to establish that defence on a balance of probabilities. As a result, the imposition, in s. 37.3(2)(a) and (b), of a persuasive burden on the accused to prove that he or she acted with due diligence violates s. 11(d) because it permits conviction despite a reasonable doubt as to the culpability of the accused.

Accordingly, unless this persuasive burden can be justified under s. 1 of the Charter, the words “he establishes that” in s. 37.3(2) must be held to be of no force or effect.

Section 1
Objective

As was the case under s. 7, the Crown submits that the objective of the law is to promote vigorous and fair competition. As I have indicated above, this may well be the over-all objective of the Competition Act in general, but it is not the specific objective of placing a persuasive burden on an accused to prove due diligence (disprove negligence).

The specific objective of placing a persuasive burden on an accused via the words “he establishes that” is to ensure that all those who are guilty of false/misleading advertising are convicted and to ensure that convictions are not lost due to evidentiary problems in proving guilt. I am prepared to accept that this is a “pressing and substantial objective” for the purposes of the Oakes analysis.

The means chosen to achieve this objective can be characterized as follows: to facilitate convictions by removing the burden on the Crown to prove negligence (lack of due diligence) beyond a reasonable doubt. In other words, the means chosen to achieve the objective essentially amounts to a decision by Parliament to convict all those who do not establish that they were duly diligent, including some accused who were duly diligent (and for whom a reasonable doubt exists in that regard) but who are unable to prove due diligence on a balance of probabilities. This, then, is the means which must be considered under the proportionality part of the Oakes test.

Proportionality test

1. Rational connection

Convicting all those who are unable to establish due diligence on a balance of probabilities, including those who were duly diligent is one way of ensuring that all those guilty of false/misleading advertising are convicted, and is therefore one way of ensuring that the overall goal of ensuring fair and vigorous competition is attained. While this method of achieving the objective may raise certain problems and may not be the preferred method of achieving the objective, it is none the less a logical means of achieving the desired objective.

Thus, in my view, there is a rational connection between the objectives and the means chosen to attain the objectives, and the persuasive burden embodied in the words “he establishes that” in s. 37.3(2) therefore passes the first part of the proportionality test in R. v. Oakes.

2. As little as possible

While the imposition of a persuasive burden is rationally connected to the objective, it does not, in my view, infringe constitutionally protected rights as little as is reasonably possible. The Crown has not established that it is necessary to convict those who were duly diligent in order to “catch” those accused who were not duly diligent.

Parliament clearly had the option of employing a mandatory presumption of negligence (following from proof of the actus reus) which could be rebutted by something less than an accused’s establishing due diligence on a balance of probabilities. This option was, in fact, recommended by the Ontario Law Reform Commission in its Report on the Basis of Liability for Provincial Offences (1990). The commission stated (at p. 48):

With respect to the burden of proof for strict liability offences, the Commission proposes a compromise solution that balances the fundamental rights of the accused with the need for effective law enforcement. We recommend the enactment of a mandatory presumption rather than a reverse onus. In other words, in the absence of evidence to the contrary, negligence will be presumed. The Crown will continue to bear the burden of establishing the physical element or actus reus beyond a reasonable doubt. However, in a strict liability case, it will be necessary that evidence of conduct capable of amounting to reasonable care be adduced, either by the testimony of the accused, through the examination or cross-examination of a Crown or defence witness or in some other way. The accused will merely have an evidentiary burden and will no longer be required to satisfy the persuasive burden of establishing, on a balance of probabilities, that he was not negligent. Where evidence of reasonable care has been adduced, thereby rebutting the presumption, in order to secure a conviction the prosecution should be required to establish the accused ‘s negligence beyond a reasonable doubt.(Emphasis added.)

I note that the presence of such a mandatory presumption alongside the accused’s evidentiary burden would, in effect, require the accused to adduce evidence capable of amounting to evidence of due diligence, either through the testimony of the accused or that of other witnesses, including the cross-examination of Crown witnesses or by other means. It goes without saying that if the Crown has adduced such evidence, the accused can rely on it in discharge of the evidentiary burden. This will ensure that the information as to what steps, if any, were taken to avoid the occurrence of the prohibited act is in the record and will relieve the Crown of the obligation to bring forward evidence on a matter that is exclusively in the possession of the accused. On the other hand, the Crown will bear the risk of non-persuasion if the conclusions and inferences to be drawn from such information leave the trier of fact in a state of reasonable doubt on the issue of due diligence. ...

The use of such a mandatory presumption in s. 37.3(2) would be less intrusive on s. 11(d) and would go a long way in achieving the objective: namely, ensuring that those who are not duly diligent are convicted (either because those accused would be unable to rebut the mandatory presumption or because the Crown would be able to prove a lack of due diligence). While the over-inclusive persuasive burden may bring about more convictions than would an evidentiary burden, the general objective of convicting the guilty would be attained by a less intrusive, evidentiary burden.

While a mandatory presumption with an evidentiary burden on the accused would be far less intrusive on s. 11(d) than would the existing persuasive burden, it must be recognized that a mandatory presumption would itself to some degree infringe the presumption of innocence. As discussed above, this court stated in R. v. Oakes, supra, that the presumption of innocence includes both the right of an accused to be presumed innocent until proven guilty, and the right to have the state bear the burden of proving guilt beyond a reasonable doubt. Unless it can be said that proof of the actus reus of false/misleading advertising, in and of itself and in all cases, leads inexorably to the conclusion that the accused was negligent in carrying out that actus reus, a mandatory presumption of negligence leaves open the possibility that the accused will be convicted despite the fact that the Crown’s evidence leaves a reasonable doubt about the accused’s negligence.

In the absence of a mandatory presumption, the Crown would be required to raise some evidence of negligence in order to secure a conviction. If the Crown failed to address the element of negligence, the accused could successfully raise a “no evidence motion” or (in a jury trial) a motion for a “directed verdict”. The presence of a mandatory presumption means that the usual requirement for Crown evidence has been replaced by a presumption of negligence (which can only be rebutted if the accused can point to some evidence capable of raising a reasonable doubt about negligence). It follows from this that an accused who chose to remain silent and lead no defence evidence would, in the absence of some other evidence capable of raising a reasonable doubt, be deemed to have been negligent (a fault requirement which I have just concluded is constitutionally required) and would, therefore, be convicted. Such would not be the case in the absence of a mandatory presumption and evidentiary burden. It can be seen from the above discussion that a mandatory presumption can operate so as to indirectly force an accused into the stand in order to avoid being convicted. If proof of the actus reus itself necessarily established negligence in all cases, this would not conflict with the presumption of innocence because the accused would then be “forced” into the stand only as a result of the Crown’s evidence of actus reus effectively constituting evidence of negligence (the necessary inference of negligence being drawn from the Crown’s evidence of actus reus). However, mere proof of the actus reus of false advertising does not inexorably lead to the conclusion that the accused was negligent in committing the actus reus. Thus, the indirect compulsion of an accused into the stand which arises from a mandatory presumption of negligence infringes on an accused’s s. 11(d) right to have the Crown prove his or her guilt beyond a reasonable doubt.

At the same time, it is my view that any such infringement of s. 11(d) would be clearly justified as a reasonable limit prescribed by law under s. 1 of the Charter. The objective of incorporating a mandatory presumption and evidentiary burden into s. 37.3(2) would be to avoid placing an impossible burden on the Crown. Like most public welfare offences, false/misleading advertising is of such a nature that the accused will be in the best position to garner evidence of due diligence. In the absence of some explanation by the accused, it will nearly always be impossible for the Crown to prove the absence of due diligence. Indeed, without an evidentiary burden on the accused, the Crown may well be put in the difficult situation which was addressed in R. v.Chaulk, supra, whereby the burden of adducing evidence of negligence on an ongoing basis could give rise to intrusions of other Charter rights, such as the right to be free from unreasonable search and seizure (s. 8). Thus, the use of a mandatory presumption in s. 37.3(2) would be rationally connected to avoiding this impossible burden, would fall well within the range of means which impair Charter rights as little as is reasonably possible, and would be proportional in its effect on the presumption of innocence.

In summary, while the use of a mandatory presumption in s. 37.3(2) would also infringe s.11(d), it constitutes a less intrusive alternative which would not violate the Charter (in that it would constitute a justifiable limit under s. 1).

In light of this alternative, it is my view that the words “he establishes that” do not limit constitutionally protected rights as little as is reasonably possible and that the persuasive burden cannot, therefore, be upheld as a reasonable limit under s. 1. However, even if it can be said that a mandatory presumption along with an evidentiary burden would not attain the objective as effectively as a persuasive burden and that the words in question therefore do limit Charter rights as little as is reasonably possible, it is my view that any marginal increase in the obtaining of the objective (via a persuasive burden on the accused) would be clearly outweighed by the detrimental effect on the presumption of innocence. In other words, if I am wrong in finding that the words in question do not pass the second branch of the proportionality test in R. v. Oakes, it is my view that the persuasive burden does not pass the third branch of the proportionality test in R. v.Oakes because the effect of the means chosen on Charter rights and freedoms is not proportional to the objective. Indeed, here we are postulating legislation enabling the imprisonment of those who were duly diligent but could not prove it on a balance of probabilities, even though there might well have existed a reasonable doubt thereof. Sending the innocent to jail is too high a price.

I also wish to point out that Parliament had the further option of maintaining the persuasive burden on the accused but removing the possibility of imprisonment. The use of a persuasive burden in circumstances where imprisonment was not a possible punishment would be far less intrusive on constitutional rights.

In light of the alternative means open to Parliament, I am of the view that the use of a persuasive burden in s. 37.3(2) cannot be justified under the proportionality part of the Oakes test.

In summary, it is my view that the words “he establishes that” contained in s. 37.3(2) limit s. 11(d) of the Charter and cannot be upheld as a reasonable limit under s. 1. Consequently, the words “he establishes that” must be held to be of no force or effect, pursuant to s. 52(1) of the Constitution Act, 1982.

Once the words “he establishes that” are deleted from s. 37.3(2), the question becomes, who proves what under the remaining provision? Parliament may well choose to re-enact the offence of false/misleading advertising within constitutionally acceptable parameters but, until such time, how is this offence to be proven? In my opinion, the answer to this question requires the court toconsider this court’s judgment in R. v. Sault. Ste. Marie (City), supra, but this time in light of the Charter.

In R. v. Sault Ste. Marie (City), supra, this court set out a classification of offences to be followed where the legislature had not expressly addressed the requirement of fault. The court drew a general distinction between “true crimes” and “public welfare offences”. While the court contemplated public welfare offences which carried relatively light sentences, it would seem that the offence of false/misleading advertising would be one which would fall within the “public welfare” classification in R. v. Sault Ste. Marie (City). For “public welfare offences”, the court held that the standard of fault was that of “strict liability”. This meant that conviction would follow proof (by the Crown) of the actus reus, unless the accused proved, on a balance of probabilities, that he or she took all reasonable care and was duly diligent.

It is clear to me from the foregoing discussion of this court’s judgments in R. v. Oakes, R. v. Wigglesworth, R. v. Vaillancourt, R. v. Whyte, and R. v. Chaulk, supra, that where an accused faces imprisonment upon conviction, the presence of the persuasive burden in the R. v. Sault Ste. Marie (City) category of “strict liability” is inconsistent with the principles of fundamental justice. The previous judgments of this court make clear that, to the extent that imprisonment is a possible penalty, this category of “strict liability”, placing a persuasive burden on the accused, cannot withstand Charter scrutiny. It follows from this that when imprisonment is a possible punishment for the commission of a “public welfare offence”, the persuasive burden contemplated by this court in R. v.Sault Ste. Marie (City) cannot be operative; in this sense, the developing Charter jurisprudence of this court has, over the last five years, been modifying this holding in R. v.Sault Ste. Marie (City). At the same time, the reasons for not imposing a fault requirement of subjective mens rea for “public welfare offences”, which were discussed at length in R. v. Sault Ste. Marie (City), are still compelling. Therefore, I would characterize themodification of R. v. Sault Ste. Marie City) as follows: where the legislature has not expressly addressed the requirement of fault (or where, as here, it has done so in a manner which violates the Constitution), a “public welfare offence” (such as false/misleading advertising) which carries the possibility of imprisonment will be construed as setting up a rebuttable mandatory presumption of negligence. Once the Crown proves the actus reus, the accused will carry the evidentiary burden of pointing to some evidence (led either by the Crown or the defence) which is capable of raising a reasonable doubt as to his or her negligence, short of which a conviction will properly ensue.

Thus, the remaining words in s. 37.3(2) mean that the offence of false/misleading advertising will be made out once the Crown proves the actus reus beyond a reasonable doubt, unless the accused can meet the aforementioned burden of raising a reasonable doubt. If the accused is able to rebut this presumption, the Crown will carry the burden of proving negligence (lack of due diligence) beyond a reasonable doubt.

As was indicated above, in my discussion of the Oakes analysis I am of the view that this modified rule in R. v.Sault Ste. Marie (City) would not violate the Charter. While the mandatory presumption would constitute a limitation on the presumption of innocence, such limitation would be justified under s. 1 of the Charter.

I turn now to the question of s. 36(1)(a). It is my view that the constitutional difficulties arise only from the operation of paras. (c) and (d) of s. 37.3(2) and from the words “he establishes that” in s. 37.3(2). Consequently, no constitutional problem is raised by s. 36(1)(a) either by itself or in combination with the remainder of s. 37.3(2).

Appeal by accused dismissed;
appeal by Crown allowed its part.

[In the result, the court unanimously declared ss. 37.3(2)(c) and (d) to be unconstitutional. Three members of the court (LaForest, Sopinka and McLachlin JJ.) agreed with Lamer C.J. that the reverse onus in s. 37.3(2) violated s. 11 (d) and could not be sustained under s. 1. L’Heureux-Dubé J. agreed with Cory J. that the reverse onus did not violate s. 11 (d). Three members of the court (Iacobucci, Gonthier and Stevenson JJ.) held that s. 11 (d) was violated but that the violation could be justified under s. 1. By a 5-4 majority, then, the reverse onus was sustained.]

* * *

Francis Bowes Sayre, “Public Welfare Offenses,” 33 Colum. L. Rev. 55 (1933).

            Blackstone, ... summarizing the classical conception of a crime, declared that “to constitute a crime against human laws, there must be first a vicious will, and secondly an unlawful act consequent upon such vicious will.”“There can be no crime large or small without an evil mind,” says Bishop. “It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist.”

            In the face of an almost unbroken line of authorities to similar effect we are witnessing today a steadily growing stream of offenses punishable without any criminal intent whatsoever. Convictions may be had for the sales of adulterated or impure food, violations of the liquor laws, infractions of anti narcotic acts, and many other offenses based upon conduct alone without regard to the mind or intent of the actor....

            What does this ... movement portend?.... Are we to look forward to a day when criminality will be based upon external behavior alone irrespective of intent?

            No such conclusion is warranted. Criminality is and always will be based upon a requisite state of mind as one of its prime factors.... “Public welfare offenses,” if one may coin the phrase, constitute, however, a noteworthy exception....

            All criminal law is a compromise between two fundamentally conflicting interests: that of the public which demands restraint of all who injure or menace the social well being and that of the individual which demands maximum liberty and freedom from interference.... During the nineteenth century it was the individual interest which held the stage; the criminal law machinery was overburdened with innumerable checks to prevent possible injustice to individual defendants. The scales were weighted heavily in his favor, and, as we have found to our sorrow, the public welfare often suffered. In the twentieth century came reaction. We are thinking today more of the protection of social and public interests; and coincident with the swinging of the pendulum in the field of legal administration in this direction modern criminologists are teaching the objective underlying correctional treatment should change from the barren aim of punishing human beings to the fruitful one of protecting social interests. * * *

            [S]wamped with ... inundations of cases of petty violations, the lower criminal courts would be physically unable to examine the subjective intent of each defendant, even were such determination desirable. As a matter of fact it is not; for the penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest.

            The ready enforcement which is vital for effective petty regulation on an extended scale can be gained only by a total disregard of the state of mind.

* * *

            How then can one determine practically which offenses do and which do not require mens rea, where the statute creating the offense is entirely silent as to requisite knowledge? Although no hard and fast lines can be drawn, two cardinal principles stand out upon which the determination must turn.

            The first relates to the character of the offense. All criminal enactments in a sense serve the double purpose of singling out wrongdoers for the purpose of punishment or correction and of regulating the social order. But often the importance of the one far outweighs the other. Crimes created primarily for the purpose of singling out individual wrongdoers for punishment or correction are the ones commonly requiring mens rea; police offenses of a merely regulatory nature are frequently enforceable irrespective of a guilty intent.

            The second criterion depends upon the possible penalty. If this be serious, particularly if the offense be punishable by imprisonment, the individual interest of the defendant weighs too heavily to allow conviction without proof of a guilty mind. To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure.

* * *

Morissette v. United States
Supreme Court of the United States.
342 U.S. 246, 72 S.Ct. 240 (1952).

MR. JUSTICE JACKSON delivered the opinion of the Court.

            [Morissette was convicted of “converting” $84 worth of federal property, by selling spent bomb casings as scrap metal, under the following statute in the federal criminal code (title 18):

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof ... shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. (18 U.S.C. § 641)
Morissette defended on the ground that he believed the bomb casings had been abandoned. He had found them on a practice bombing range while hunting. Despite the presence of signs reading “Danger—Keep Out—Bombing Range,” the range “was known as good deer country and was extensively hunted.”

In a lengthy opinion, the Supreme Court reversed the conviction, reading an “intent” requirement into the statute because it did not define a “public welfare” offense. Instead the Court held that “[s]tealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is ‘as bad a word as you can give to man or thing.’“]

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion ..., although a few exceptions ... came to be recognized. ... [There is] a category of ... crimes ... that depend on no mental element but consist only of forbidden acts or omissions. This ... is made clear from examination of a century old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

[L]awmakers ... have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called “public welfare offenses.” These cases do not fit neatly into any of such accepted classifications of common law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does not grave damage to an offender’s reputation.

* * *

MPC §§ 2.02(3), (4), 2.05

 

      2. Constructive Murder

 

R. v. Vaillancourt
Supreme Court of Canada
[1987] 39 C.C.C. (3d) 118; [1987] 2 S.C.R. 636

LAMER J.:

Introduction

Vaillancourt was convicted of second degree murder following a trial before a Sessions Court judge and jury in Montreal. He appealed to the Quebec Court of Appeal, arguing that the judge’s charge to the jury on the combined operation of ss. 213(d) {now s. 230} and 21(2) of the Criminal Code, R.S.C. 1970, c. C 34, was incorrect. His appeal was dismissed and the conviction was affirmed: (1984), 31 C.C.C. (3d) 75. Before this court, he has challenged the constitutional validity of s. 213(d) alone and in combination with s. 21(2) under the Canadian Charter of Rights and Freedoms.

The facts

For the purposes of this appeal, the Crown does not contest the following statement of the facts.
The appellant and his accomplice committed an armed robbery in a pool-hall. The appellant was armed with a knife and his accomplice with a gun. During the robbery, the appellant remained near the front of the hall while the accomplice went to the back. There was a struggle between the accomplice and a client. A shot was fired and the client was killed. The accomplice managed to escape and has never been found. The appellant was arrested at the scene.

In the course of his testimony, the appellant said that he and his accomplice had agreed to commit this robbery armed only with knives. On the night of the robbery, however, the accomplice arrived at their meeting place with a gun. The appellant said that he objected because, on a previous armed robbery, his gun had discharged accidentally, and he did not want that to happen again. He insisted that the gun be unloaded. The accomplice removed three bullets from the gun and gave them to the appellant. The appellant then went to the bathroom and placed the bullets in his glove. The glove was recovered by the police at the scene of the crime and was found at trial to contain three bullets. The appellant testified that, at the time of the robbery, he was certain that the gun was unloaded.

Constitutional questions

Before this court, the following constitutional questions were formulated:

  1. ... 
  2. Is s. 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms, and, therefore, of no force or effect?
  3. If not, is the combination of s. 21 and s. 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms and is s. 21 of the Criminal Code therefore of no force or effect in the case of a charge under s. 213(d) of the Criminal Code?

Narrowing the issue

The appellant has framed his attack on s. 213(d) of the Code in very wide terms. He has argued that the principles of fundamental justice require that, before Parliament can impose any criminal liability for causing a particular result, there must be some degree of subjective mens rea in respect of that result. This is a fundamental question with far-reaching consequences. If this case were decided on that basis, doubt would be cast on the constitutional validity of many provisions throughout our Criminal Code, in particular s. 205(5)(a) {now s. 222(5)(a)}, whereby causing death by means of an unlawful act is culpable homicide, and s. 212(c) {now s. 229} whereby objective foreseeability of the likelihood of death is sufficient for a murder conviction in certain circumstances.

However, the appellant was convicted under s. 213(d) and the constitutional question is limited to this provision. In my opinion, the validity of s. 213(d) can be decided on somewhat narrower grounds. In addition, the Attorney-General of Canada has seen fit not to intervene to support the constitutionality of s. 213(d), which is clearly in jeopardy in this case, though he may have intervened to support ss. 205(5)(a) and 212(c) and other similar provisions. I will thus endeavour not to make pronouncements the effect of which will be to predispose in obiter of other issues more properly dealt with if and when the constitutionality of the other provisions is in issue. I do, however, find it virtually impossible to make comments as regards s. 213(d) that will not have some effect on the validity of the rest of s. 213 or that will not reveal to some extent my views as regards s. 212(c). However, the validity of those sections and of paras. (a) to (c) of s. 213 is not in issue here and I will attempt to limit my comments to s. 213(d).

The appellant has also challenged the combined operation of ss. 21(2) and 213(d). Given my decision on the validity of s. 213(d) and in view of the importance of s. 21(2) and the absence of the Attorney-General of Canada, I do not find it necessary or advisable to deal with s. 21(2) in this appeal.

Analysis of s. 213(d)

Section 213(d) in the context of the murder provisions

It is first necessary to analyze s. 213(d) in the context of the other murder provisions in the Code in order to determine its true nature and scope. Murder is defined as a culpable homicide committed in the circumstances set out at ss. 212 {now s. 229) and 213 {now s. 230} of the Code. There is a very interesting progression through s. 212 to s. 213 with respect to the mental state that must be proven.

The starting point is s. 212(a)(i), which provides:

212. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death . . .
This clearly requires that the accused have actual subjective foresight of the likelihood of causing the death coupled with the intention to cause that death. This is the most morally blameworthy state of mind in our system.

There is a slight relaxation of this requirement in s. 212(a)(ii), which provides:

212. Culpable homicide is murder
(a) Where the person who causes the death of a human being…
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

Here again the accused must have actual subjective foresight of the likelihood of death. However, the Crown need no longer prove that he intended to cause the death but only that he was reckless whether death ensued or not. It should also be noted that s. 212(a)(ii) is limited to cases where the accused intended to cause bodily harm to the victim. Section 212(c) provides:

212. Culpable homicide is murder…
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

In part, this is simply a more general form of recklessness and thus the logical extension of s. 212(a)(ii), in that it applies when the accused “does anything . . . he knows . . . is likely to cause death” (emphasis added). However, there is also a further relaxation of the mental element required for murder in that it is also murder where the accused “does anything that he . . . ought to know is likely to cause death” (emphasis added). this eliminates the requirement of actual subjective foresight and replaces it with objective foreseeability or negligence.

The final relaxation in the definition of murder occurs at s. 213:

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 62 (sabotage), 76 (piratical acts) 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), 143 or 146 (rape or attempt to commit rape), 149 or 166 (indecent assault), subsection 246(2) (resisting lawful arrest), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), 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;
(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom;
(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom; or
(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.

Under this provision, it is murder if the accused causes the victim’s death while committing or attempting to commit one of the enumerated offences if he performs one of the acts in paras.(a) to (d). Proof that the accused performed one of the acts in paras. (a) to (d) is substituted for proof of any subjective foresight or even objective foreseeability of the likelihood of death.
I should add that there appears to be a further relaxation of the mental state when the accused is a party to the murder through s. 21(2) of the Code as in this case. However, as I have said, it is sufficient to deal with s. 213(d) in order to dispose of this appeal.…

Section 213(d) and the Charter

This appeal calls into play two principles of fundamental justice.

The First Principle: The Essential Elements of Certain Crimes and s.7 of the Charter

Prior to the enactment of the Charter, Parliament had full legislative power with respect to “The Criminal Law” (Constitution Act, 1867, s. 91(27)), including the determination of the essential elements of any given crime. It could prohibit any act and impose any penal consequences for infringing the prohibition, provided only that the prohibition served “a public purpose which can support it as being in relation to criminal law” (Reference re Validity of s. 5(a) of the Dairy Industry Act, [1949] 1 D.L.R. 433 at p. 473, [1949] S.C.R. 1 at p. 50; appeal to the Privy Council dismissed, [1950] 4 D.L.R. 689, [1951] A.C. 179). Once the legislation  was found to have met this test, the courts had very little power to review the substance of the legislation. For example, in R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299, Dickson J., as he then was, held that, when an offence was criminal in the true sense, there was a presumption that the prosecution must prove the mens rea. However, it was always open to Parliament expressly to relieve the prosecution of its obligation to prove any part of the mens rea, as it is said to have done in s. 213 of the Criminal Code with respect to the foreseeability of the death of the victim. It is thus clear that, prior to the enactment of the Charter, the validity of s. 213 could not have been successfully challenged.

However, federal and provincial legislatures have chosen to restrict through the Charter this power with respect to criminal law. Under s. 7, if a conviction, given either the stigma attached to the offence or the available penalties, will result in a deprivation of the life, liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice. It has been argued that the principles of fundamental justice in s. 7 are only procedural guarantees. However, in Re B.C. Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, this court rejected that argument and used s. 7 to review the substance of the legislation. As a result, while Parliament retains the power to define the elements of a crime, the courts now have the jurisdiction and, more important, the duty, when called upon to do so, to review that definition to ensure that it is in accordance with the principles of fundamental justice.

This court’s decision in Re B.C. Motor Vehicle Act stands for the proposition that absolute liability infringes the principles of fundamental justice, such that the combination of absolute liability and a deprivation of life, liberty or security of the person is a restriction on one’s rights under s. 7 and is prima facie a violation thereof. In effect, Re B.C. Motor Vehicle Act acknowledges that, whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even, as in Re B.C. Motor Vehicle Act, a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state which is an essential element of the offence. It thus elevated mens rea from a presumed element in Sault Ste. Marie, supra, to a constitutionally required element. Re B.C. Motor Vehicle Act did not decide what level of mens rea was constitutionally required for each type of offence, but inferentially decided that even for a mere provincial regulatory offence at least negligence was required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. In Sault Ste. Marie, Dickson J. stated at p. 362 C.C.C., p. 170 D.L.R., pp. 1309-10 S.C.R.:

Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.

It may well be that, as a general rule, the principles of fundamental justice require proof of a subjective mens rea with respect to the prohibited act, in order to avoid punishing the “morally innocent”. It must be remembered, however, that Dickson J. was dealing with the mens rea to be presumed in the absence of an express legislative disposition, and not the mens rea to be required in all legislation providing for a restriction on the accused’s life, liberty or security of the person. In any event, this case involves criminal liability for the result of an intentional criminal act, and it is arguable that different considerations should apply to the mental element required with respect to that result. There are many provisions in the Code requiring only objective foreseeability of the result or even only a causal link between the act and the result. As I would prefer not to cast doubt on the validity of such provisions in this case, I will assume, but only for the purposes of this appeal, that something less than subjective foresight of the result may, sometimes, suffice for the imposition of criminal liability for causing that result through intentional criminal conduct.

But, whatever the minimum mens rea for the act or the result may be, there are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. Such is theft, where, in my view, a conviction requires proof of some dishonesty. Murder is another such offence. The punishment for murder is the most severe in our society and the stigma that attaches to a conviction for murder is similarly extreme. In addition, murder is distinguished from manslaughter only by the mental element with respect to the death. It is thus clear that there must be some special mental element with respect to the death before a culpable homicide can be treated as a murder. That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction. I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight. Given the effect of this view on part of s. 212(c), for the reasons I have already given for deciding this case more narrowly, I need not and will not rest my finding that s. 213(d) violates the Charter on this view, because s. 213(d) does not, for reasons I will set out hereinafter, even meet the lower threshold test of objective foreseeability. I will therefore, for the sole purpose of this appeal, go no further than say that it is a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there surely cannot be a murder conviction.

The Second Principle: s. 11(d) and the Burden of Persuasion

The presumption of innocence in s. 11(d) of the Charter requires at least that an accused be presumed innocent until his guilt has been proven beyond a reasonable doubt: Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357; R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 120-121. This means that, before an accused can be convicted of an offence, the trier of fact must be satisfied beyond reasonable doubt of the existence of all of the essential elements of the offence. These essential elements include not only those set out by the legislature in the provision creating the offence but also those required by s. 7 of the Charter. Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss. 7 and 11(d).

Clearly, this will occur where the provision requires the accused to disprove on a balance of probabilities an essential element of the offence by requiring that he raise more than just a reasonable doubt. It is for this reason that this court struck down the reverse onus provision in s. 8 of the Narcotic Control Act, R.S.C. 1970, c. N-1, in Oakes, supra.

Sections 7 and 11(d) will also be infringed where the statutory definition of the offence does not include an element which is required under s. 7. As Dickson C.J. wrote for the majority of the Court in Oakes, supra, at pp. 132-33:

In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d): If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused  adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue. [Emphasis added]

It is clear from this passage that what offends the presumption of innocence is the fact that an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence, and I do not think that it matters whether this results from the existence of a reverse onus provision or from the elimination of the need to prove an essential element. With respect, the Nova Scotia Court of Appeal was thus clearly incorrect when it stated in R. v. Bezanson (1983), 8 C.C.C. (3d) 493, at p. 508:

In my view, there was no attempt by Parliament to reverse the onus of proof under s. 213, and s. 11(d) of the Charter has not application. Parliament has not reversed the burden of proof, it has simply omitted what the appellant argues is an essential element from the definition of the offence so that no evidence is required at all on that issue.

The omission of an essential element does bring s. 11(d) into play.

Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes ss. 7 and 11(d).

Given the first principle I have enunciated earlier and my assumption for the sole purpose of disposing of this appeal with respect to objective foreseeability, an accused cannot be found guilty of murder absent proof beyond a reasonable doubt of that element, and a murder provision which allows a conviction in the absence of proof beyond reasonable doubt of at least that essential element infringes ss. 7 and 11(d).

Application of the principles to s. 213

The mens rea required for s. 213 consists of the mens rea for the underlying offence and the intent to commit one of the acts set forth in paras. (a) to (d) (Swietlinski v. The Queen (1980), 55 C.C.C. (2d) 481, 117 D.L.R. (3d) 285, [1980] 2 S.C.R. 956). Section 213 does not impose on the accused the burden of disproving objective foreseeability. Further, it does not completely exclude the need to prove any objective foreseeability. Rather, s. 213 has substituted for proof beyond a reasonable doubt of objective foreseeability, if that is the essential element, proof beyond a reasonable doubt of certain forms of intentional dangerous conduct causing death.

The question is, therefore, can Parliament make this substitution without violating ss. 7 and 11(d)? As I have discussed earlier, if Parliament frames the section so that, upon proof of the conduct, it would be unreasonable for a jury not to conclude beyond a reasonable doubt that the accused ought to have known that death was likely to ensue, then I think that Parliament has enacted a crime which is tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way. The acid test of the constitutionality of s. 213 is this ultimate question: Would it be possible for a conviction for murder to occur under s. 213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? If the answer is yes, then the section is prima facie in violation of ss. 7 and 11(d). I should add in passing that if the answer is no, then it would be necessary to decide whether objective foreseeability is sufficient for a murder conviction. However, because in my view the answer is yes and because I do not want to pass upon the constitutionality of s. 212(c) in this case, I will not address that issue.

To varying degrees it can be said that in almost any case a jury satisfied beyond a reasonable doubt that an accused has done one of the prohibited acts described in paras. (a) to (d) will be satisfied beyond a reasonable doubt that the accused ought to have known that death was likely to be caused. But not always. Indeed, as a first example, drunkenness would under certain circumstances leave the jury in doubt in that regard. The rule as regards the effect of drunkenness on objective foreseeability was unanimously laid down by this court in R. v. Vasil (1981), 58 C.C.C. (2d) 97, 121 D.L.R. (3d) 41, [1981] 1 S.C.R. 469, a murder prosecution under s. 212(c). This court addressed the issue at some length and then summarized its conclusion as follows, per Lamer J. at p. 121 C.C.C., pp. 65-6 D.L.R., pp. 500-1 S.C.R.:

(5) whilst the test under 212(c) is objective and the behaviour of the accused is to be measured by that of the reasonable man, such a test must nevertheless be applied having regard, not to the knowledge a reasonable man would have had of the surrounding circumstances that allegedly made the accused’s conduct dangerous to life, but to the knowledge the accused had of those circumstances;
(6) as a result, drunkenness, though not relevant in the determination of what a reasonable man, with the knowledge the accused had of those circumstances, would have anticipated, is relevant in the determination of the knowledge which the accused had of those circumstances.

It is clear to me that under s. 213 as drafted there will be cases where the effect of drunkenness on an accused’s knowledge of the circumstances would leave a jury with a reasonable doubt as to whether the accused ought to have known of the likelihood of death ensuing, even though it has been proven beyond a reasonable doubt that the accused actually did one of the acts described under paras. (a) to (d).

A second example, and this case amply illustrates the point, is the accused who is brought into s. 213 not as a principal but through the operation of s. 21(2) of the Criminal Code. In R.v.Trinneer, [1970] 3 C.C.C. 289, 10 D.L.R. (3d) 568, [1970] S.C.R. 638, this court had the opportunity to consider the combined operation of ss. 21(2) and 213 (s. 202 at the time). Cartwright C.J.C., delivering the judgment of the court, stated at p. 294 C.C.C., pp. 5734 D.L.R., pp. 645-6 S.C.R.:

At the risk of repetition, it is my opinion that on the true construction of s. 202 and s. 21(2) as applied to the circumstances of this case it was necessary to support a verdict of guilty against the respondent that the Crown should establish (i) that it was in fact a probable consequence of the prosecution of the common purpose of the respondent and Frank to rob Mrs. Vollet that Frank for the purpose of facilitating the commission of the robbery would intentionally cause bodily harm to Mrs. Vollet, (ii) that it was known or ought to have been known to the respondent that such consequence was probable and (iii) that in fact Mrs. Vollet’s death ensued from the bodily harm. It was not necessary for the Crown to establish that the respondent  knew or ought to have known that it was probable that Mrs. Vollet’s death would ensue. [Emphasis added]

It is clear that an accused can be convicted of murder under the combined operation of ss. 21(2) and 213 in circumstances where the death was not objectively foreseeable. As s. 21(2) requires proof of objective foreseeability, the culprit, in my view, must be s. 213.

These two examples suffice, in my view, for one to conclude that notwithstanding proof beyond a reasonable doubt of the matters set forth in paras. (a) to (d) a jury could reasonably be left in doubt as regards objective foreseeability of the likelihood that death be caused. In other words, s. 213 will catch an accused who performs one of the acts in paras. (a) to (d) and thereby causes a death but who otherwise would have been acquitted of murder because he did not foresee and could not reasonably have foreseen that death would be likely to result. For that reason, s. 213 prima facie violates ss. 7 and 11(d). It is thus not necessary to decide whether objective foreseeability is sufficient for murder as s. 213 does not even meet that standard. This takes us to s. 1 for the second phase of the constitutional inquiry.

Section 1

Finding that s. 213 of the Criminal Code infringes ss. 7 and 11(d) of the Charter does not end the inquiry on the constitutional validity of s. 213. Any or all of paras. (a) to (d) of s. 213 can still be upheld as a reasonable limit “demonstrably justified in a free and democratic society” under s. 1 of the Charter.

In this case and at this stage of the inquiry, we need only consider para. (d) of s. 213. The criteria to be assessed under s. 1 have been set out by this court in several cases, particularly R.v.Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, [1985] 1 S.C.R. 295, and R. v. Oakes, supra. First, the objective which the measures are designed to serve must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom” (Big M Drug Mart, supra, at p. 430 C.C.C., p. 366 D.L.R., p. 352 S.C.R.). Through s. 213(d) of the Code, Parliament intended to deter the use or carrying of a weapon in the commission of certain offences, because of the increased risk of death. In my view, it is clear that this objective is sufficiently important.

In addition, the measures adopted must be reasonable and demonstrably justified. The measures adopted appear to be rationally connected to the objective: indiscriminately punishing for murder all those who cause a death by using or carrying a weapon, whether the death was intentional or accidental, might well be thought to discourage the use and the carrying of weapons. I believe, however, that the measures adopted would unduly impair the rights and freedoms in question (see Big M Drug Mart, supra, at p. 430 C.C.C., p. 366 D.L.R., p. 352 S.C.R.). It is not necessary to convict of murder persons who did not intend or foresee the death and who could not even have foreseen the death in order to deter others from using or carrying weapons. If Parliament wishes to deter the use or carrying of weapons, it should punish the use or carrying of weapons. A good example of this is the minimum imprisonment for using a firearm in the commission of an indictable offence under s. 83 of the Criminal Code. In any event, the conviction for manslaughter which would result instead of a conviction for murder is punishable by, from a day in jail, to confinement for life in a penitentiary. Very stiff sentences when weapons are involved in the commission of the crime of manslaughter would sufficiently deter the use or carrying of weapons in the commission of crimes. But stigmatizing the crime as murder unnecessarily impairs the Charter right.

In my view, therefore, s. 213(d) is not saved by s. 1.

Conclusion

As a result of the foregoing, I would answer the first constitutional question in the affirmative, as s. 213(d) violates both s. 7 and s. 11 (d) of the Charter, and I would declare s.213(d) of the Criminal Code to be of no force or effect. I would, for the reasons which I have given, decline to answer the second constitutional question. It follows that the appeal must be allowed, the appellant’s conviction for murder set aside, and a new trial ordered.

McINTYRE J. (dissenting):—…

The principal complaint in this case is not that the accused should not have been convicted of a serious crime deserving of severe punishment, but simply that Parliament should not have chosen to call that crime “murder”. No objection could be taken if Parliament classified the offence as manslaughter or a killing during the commission of an offence, or in some other manner. As I have observed before (see R. v. Ancio (1984), 10 C.C.C. (3d) 385 at p. 404, 6 D.L.R. (4th) 577 at p. 596, [1984] 1 S.C.R. 225 at p. 251), while it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended only because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner. As Martin J.A. said in R. v. Munro and Munro, supra, at p. 301:

“This legislation has frequently been criticized as being harsh, but that is a matter for Parliament and not for the courts.”

I would refer, as well, to the words found in Mewett and Manning, Criminal Law, 2nd ed. (1985), pp. 5445:

Section 213 and the concept of constructive murder have been much criticized and, in fact, abolished in many jurisdictions. The criticism is that it imposes liability for murder in situations where death was not intended nor even, in some cases, foreseen. But murder is a legal concept; it does not have to be defined in terns of intentional killing and even under s. 212 the definition is not this narrow. The policy behind s. 213 is to put the risk of killing a victim during the course of the commission of certain offences upon the offender to a higher degree than if it were merely classified as manslaughter. In any case, with the present distinction between murder punishable by death and murder punishable by life imprisonment now abolished, much of the criticism loses its force. It was the thought of someone being executed for a non-intended homicide that led to the feeling that the definition of murder should somehow be limited to the old common law concept of ‘‘murder with malice aforethought”.

… In R. v. Munro and Munro, supra, Martin J.A. said, at p. 301:

Patently, Parliament has decided that the carrying of weapons during the commission of certain crimes, such as robbery, so manifestly endangers the lives of others, that one who joins a common purpose to commit one of the specified offences and who knows or ought to know that his accomplice has upon his person a weapon which he will use if needed, must bear the risk if death, in fact, ensues as a consequence of the use or possession of the weapon during the commission of one of the specified offences or during the flight of the offender after the commission or attempted commission of the underlying offence . . .

In my view, Martin J.A. has stated the policy considerations which have motivated Parliament in this connection and I would not interfere with the Parliamentary decision. I would, therefore, dismiss the appeal and answer the two constitutional questions in the negative.

Appeal allowed; new trial ordered.

 

R. v. Martineau
Supreme Court of Canada
[1990] 58 C.C.C. (3d) 353; [1990] 2 S.C.R. 633

LAMER C.J.C.:—…

Facts

The facts of this case are not central to the disposition of this appeal, and, therefore, may be briefly summarized as follows. On February 7, 1985, the bodies of James McLean and Ann McLean were found in the bathroom of their home, a trailer, in Valleyview, Alberta. A police investigation led to Martineau and one Patrick Tremblay. Martineau, who was 15 at the time, was charged with both murders and was transferred to adult court.

Martineau was tried by a judge and jury starting on September 12, 1985. Thirty witnesses gave evidence including the accused. The evidence revealed that Martineau and his friend, Tremblay, had set out one evening armed with a pellet pistol and rifle respectively. Martineau testified that he knew that they were going to commit a crime, but that he thought it would only be a “b and e”. After robbing the trailer and its occupants, Martineau’s friend Tremblay shot and killed the McLeans.

As they left the trailer, Martineau asked Tremblay why he killed them and Tremblay answered, “they saw our faces”. Martineau responded, “But they couldn’t see mine ‘cause I had a mask on”. They drove James McLean’s car to Grande Prairie where they abandoned it. The respondent was convicted of second degree murder. The trial judge charged the jury on s. 213(a) and (d) {now s. 230} of the Criminal Code and on s. 21(1) and (2) of the Criminal Code.…

Issues

The following constitutional questions were stated by the Chief Justice:

1. Does s. 213(a) of the Criminal Code infringe or deny the rights or 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 affirmative, is s. 213(a) justified by s. l of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

Analysis

           
…Section 213(a) of the Code defines culpable homicide as a murder where a person causes the death of a human being while committing or attempting to commit a range of listed offences, whether or not the person means to cause death or whether or not he or she knows that death is likely to ensue if that person means to cause bodily harm for the purpose of facilitating the  commission of the offence or flight after committing or attempting to commit the offence. The introductory paragraph of the section, therefore, expressly removes from the Crown the burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. This section stands as an anomaly as regards the other murder provisions, especially in light of the common law presumption against convicting a person of a true crime without proof of intent or recklessness: R. v. Sault Ste. Marie (City) (1978), 40 C.C.C. (2d) 353 at pp. 362-3, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299, per Dickson J., as he then was.

A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. The effect of s. 213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender, or as Professor Hart puts it in Punishment and Responsibility (1968), at p. 162, the fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally. The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer, is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: see R. v. Bernard (1988), 45 C.C.C. (3d) 1, [1988] 2 S.C.R. 833, 67 C.R. (3d) 113, per McIntyre J., and R. v. Buzzangaand Durocher (1979), 49 C.C.C. (2d) 369, 101 D.L.R. (3d) 488, 25 O.R. (2d) 705 (C.A.), per Martin J.A. In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moralblameworthiness of the offender. Murder has long been recognized as the “worst” and most heinous of peace-time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death. In this regard, I refer to the following works as support for my position, in addition to those cited in Vaillancourt: Cross, “The Mental Element in Crime”, 83 L.Q.R. 215 (1967); Ashworth, “The Elasticity of Mens rea” in Crime, Proof and Punishment (1981); Williams, The Mental Element in Crime (1965), and Williams, “Convictions and Fair Labelling’, [1983] C.L.J. 85.

In sum then, I am of the view that a special mental element with respect to death is necessary before a culpable homicide can be treated as murder. That special mental element gives rise to the moral blameworthiness that justifies the stigma and punishment attaching to a murder conviction. For all the foregoing reasons, and for the reasons stated in Vaillancourt, I concluded that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond am reasonable doubt of subjective foresight of death. That was my position when Vaillancourt was decided, and that is my position today. Therefore, since s. 213 of the Code expressly eliminates the requirement for proof of subjective foresight, it infringes ss. 7 and 11(d) of the Charter.

As regards s. 1 of the Charter, there is no doubt that the objective of deterring the infliction of bodily harm during the commission of certain offences because of the increased risk of death is of sufficient importance to warrant overriding a Charter right. Further, indiscriminately punishing for murder all those who cause death irrespective of whether they intended to cause death might well be thought to discourage the infliction of bodily harm during the commission of certain offences because of the increased risk of death. But it is not necessary in order to achieve this objective to convict of murder persons who do not intend or foresee the death. In this regard the section unduly impairs the Charter rights. If Parliament wishes to deter persons from causing bodily harm during certain offences, then it should punish persons for causing the bodily harm. Indeed, the conviction for manslaughter that would result instead of a conviction for murder is punishable by, from a day in jail, to confinement for life. Very stiff sentences for the infliction of bodily harm leading to death in appropriate cases would sufficiently meet any deterrence objective that Parliament might have in mind. The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender. To label and punish a person as a murderer who did not intend or foresee death unnecessarily stigmatizes and punishes those whose moral blameworthiness is not that of a murderer, and thereby unnecessarily impairs the rights guaranteed by ss. 7 and 11(d) of the Charter. In my view then, s. 213(a), indeed all of s. 213, cannot be saved by s. 1 of the Charter.

The fact that I have based my reasons on the principle of subjective foresight casts serious if not fatal doubt on the constitutionality of part of s. 212(c) of the Code, specifically the words “ought to know is likely to cause death”. The validity of s. 212(c) of the Code has not been directly attacked in this appeal, but the court has had the benefit of hearing argument from the Attorney-General of Canada and from the Attorneys-General for Alberta, British Columbia, Ontario, Quebec, and Manitoba, who chose to intervene, on the issue of whether subjective foresight or objective foreseeability of death is the constitutionally required minimum mens rea for murder. In my view, subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained, and, as a result, it is obvious the part of s. 212(c) of the Code allowing for a conviction upon proof that the accused ought to have known that death was likely to result violates ss. 7 and 11(d) of the Charter. I find further support for this view in the following passage from Professor Stuart’s treatise Canadian Criminal Law, 2nd ed. (1987), at pp.217-8, dealing specifically with the objective element of s. 212(c) of the Code and the principle of subjective foresight:

This is a clear instance where our legislation has not kept up with developments in other jurisdictions. We have seen that a similar objective test for murder resorted to by the House of Lords in the notorious decision in Director of Public Prosecutions v. Smith (1960) [[1961] A C. 290, [1960] 3 All ER 161 (H.L.)] was rejected by the British Legislature and by the Australian High Court. Very few jurisdictions, including those in the United States, resort to anything but the subjective approach in defining murder. The only direct parallels to our section 212(c) are to be found in the Codes of Queensland, Tasmania, and New Zealand. The wording in these provisions is almost identical to ours except that in New Zealand the words “or ought to have known” were deleted as a result of a quick and firm rejection of Smith. The New Zealand section now reads in part:

“. . . if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.”

…Although it would be open to save that part of s. 212(c) under s. 1 of the Charter, it seems to me that the attempt would fail for the reasons I have given in respect of the attempt to similarly save s. 213 of the Code.…

L’HEUREUX-DUBÉ J. (dissenting):— I have had the opportunity of reading the reasons of Justice Lamer, and, with respect, I must dissent. I fully agree with my colleague’s characterization of this court’s “duty to measure the content of legislation against the guarantees in our Charter designed to protect individual rights and freedoms” while however, in my view, the Canadian Charter of Rights and Freedoms is not impermeable to the rights of the collectivity. I also heartily concur with my colleague’s assertion that this court is directed to review, when challenged, Parliament’s definitions of the elements of a crime to ensure that they are in accordance with fundamental justice. In my view, however, this court must stop short of effectively legislating on its own. The question should not be what is the “best” test, but rather what is a constitutionally valid test.…

My colleague concludes that s. 213(a) is unconstitutional because it violates ss. 7 and 11(d) of the Charter and cannot be saved by s. 1. In his opinion, the principles of fundamental justice demand that subjective foresight of death be proven beyond a reasonable doubt before a conviction for murder can be secured. I reach a contrary conclusion on the basis that subjective foresight is not the only appropriate standard that can be applied to conform to ss. 7 and 11(d) of the Charter. My reasons are as follows: the test of objective foreseeability of death for the crime of murder does not offend the principles of fundamental justice; this court’s decisions, including R. v.Vaillancourt (1987), 39 C.C.C. (3d) 118, 47 D.L.R. (4th) 399, [1987] 2 S.C.R. 636, do not commend such a result; the exclusive standard of subjective foresight of death for the crime of murder has found no parallel in other common law jurisdictions, and there are significant policy considerations in favour of upholding the existing legislation.…

I. Subjective foresight v. objective foreseeability

Definitionally, a standard of subjective foresight to ground criminal responsibility dictates that  (Stuart, Canadian Criminal Law, 2nd ed. (1987), at pp. 121-3):

. . . the trier of fact must determine what was actually going on in the mind of this particular accused at the time in question. This is variously stated as a requirement of awareness, conscious thought, advertence or simply a requirement that the person was actually thinking ... What is vital is that this accused given his personality situation and circumstances, actually intended, knew or foresaw the consequence and/or circumstances as the case may be.

In The Common Law (1881), Holmes discussed objective a foreseeability, at pp. 53-4, as follows:

If the known present state of things is such that the act done will very certainly cause death, and the probability is a matter of common knowledge, one who does the act, knowing the present state of things, is guilty of murder, and the law will not inquire whether he did actually foresee the consequences or not. The test of foresight is not what this very criminal foresaw but what a man of reasonable prudence would have foreseen.(Emphasis added.)

Gerald H. Gorton, “Subjective and Objective Mens rea”, [1974-75] 17 Crime. L.Q. 355, at p. 359, not only discusses distinctions between subjective foresight and objective foreseeability, but also the interrelationship between them:

. . . what is important in the context of proof of mens rea is that certain objective descriptions of actions are in themselves descriptions of intentional actions, so that once the Crown has proved what happened they have established their case, and need not go on to prove separately the existence of some particular event or condition in the agent’s mind. In these cases proof of the external behaviour is proof that he was acting intentionally; his only defence, unless of course he can show he was not a voluntary agent,  is to show that the objective description offered by the Crown is incorrect, by producing witnesses who describe as an accident what the Crown witnesses describe as intentional, by showing, e.g., that he did not push the victim but accidentally fell against him. (Emphasis added.)

Furthermore, at p. 368:

We resort to the reasonable man in an endeavour to make it possible for the Crown to prove mens rea. We stress that the reasonable man is only a tool to help us discover the accused man’s state of mind; that the law goes no further than to entitle the jury to apply this tool to conclude that the accused had the mens rea of the reasonable man; and that they are not obliged so to conclude. But very often we have nothing other than the reasonable man to guide us, so the difference between the position I have just described, and a rule that the accused may be held to have acted with a particular intent, if any reasonable man must have had that intent is not a real one.(Emphasis added.)

Mewett and Manning, Criminal Law, 2nd ed. (1985), also addresses the association between subjective foresight and objective foreseeability. When assessing the accused’s own state of mind, certain inferences may be drawn from the circumstances surrounding the event at issue. As they point out at p. 138:

[The question becomes] whether this is really an objective test or is merely a disguised evidentiary technique for determining what the accused actually foresaw. If the accused were to say that he did not anticipate events that a reasonable man, given the facts as actually appreciated by the accused, would have anticipated, one may wonder whether the jury would have any difficulty in finding that the accused “must have” anticipated them, thus finding not only that a reasonable man would have anticipated them but that the accused actually did appreciate them in spite of what he says.

As Gordon, ibid., expressed it, at p. 371:

. . . what is more likely to happen, is that the innocent man will be so nervous and unskilled that he willmake a bad witness, while the man the jury believes will be the plausible psychopath. One of the problems of an excessively “subjective” approach is that it is likely to feed what I often fear is an unfounded conceit in our ability to gauge a witness’ truthfulness by his demeanour.

Gordon feels that the ultimate distinction is a “moral” one. In some instances, the subjective failure to foresee certain consequences of one’s criminal activity may merit greater public opprobrium than the assumption of a foreseen calculated risk of death. This recognition warrants a classification whereby flagrant, callous, ruthless, or selfish acts causing death, perpetrated by one whose purpose is already criminal, will be treated more harshly than a mere accidental killing. As Gordon explains at pp. 389-90:

If, then, it is appropriate to classify certain forms of unintentional killing in a way which distinguishes them from grossly negligent kiting, what should be the basis of the classification? Well, the main purpose of the classification, perhaps the only purpose since the disappearance of capital punishment, is stigmatization, and the basis of the classification should be, simply, moral guilt . . . We should distinguish the most heinous, from the not quite so bad and from the merely venial. And the assessment of moral guilt depends on a view of the whole circumstances, and not on the distinction between the presence or absence of a particular mental event such as the foresight and acceptance of a risk.…
... any realistic approach to the problem must recognize that what is ultimately in issue is the community’s moral judgment on the accused’s behaviour, and not the satisfaction of a legal formula.(Emphasis added.)

The above analysis indicates that tests of subjective foresight and objective foreseeability cannot be seen as static or distinct concepts. They are certainly not mutually exclusive. In most instances, and certainly in those limited circumstances delineated by s. 213(a), discussed below, death will be both objectively and subjectively foreseeable. There is a profound interrelationship between the two, especially when dealing with a crime committed during the execution of a predicate crime. The validity of a provision should not be evaluated on a strict “either-or” approach, and a fastidious adherence to prescribed labels becomes particularly obdurate when gauging the constitutionality of parliamentary legislation….

III. Section 213(a) of the Criminal Code

Vaillancourt held that s. 213(d) of the Criminal Code violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and could not be saved by s. 1. Section 213(a) of the Criminal Code is completely different in its historical development, in its consistency with the objective foreseeability of death test established in Vaillancourt, and in the parallel provisions adopted in other common law jurisdictions.

(a) Historical background

The historical background to s. 213(a) reveals that it must be analyzed in a fundamentally different manner than s. 213(d). The       language of s. 213(a) can be traced as far back as Sir Edward Coke, The Third Part of the Institutes of the Laws of England, 6th ed. (1680), where, at p. 47, murder was defined as the killing of any human “with malice forethought, either expressed by the party or implied by law”. By the early part of the 19th century the rule had crystallized: if during the commission of an unrelated felony the perpetrator unintentionally killed someone, he was guilty of murder and not merely manslaughter: Archbold Pleading and Evidence, 1st ed. (1822). The British Parliamentary Papers “Criminal Law” (1879), vol. 6, stated at pp. 468-70:

For practical purposes we can make no distinction between a man who shoots another through the head, expressly meaning to kill him, a man who strikes another a violent blow with a sword, careless whether he dies of it or not, and a man who, intending for some object of his own, to stop the passage of a railway train, contrives an explosion of dynamite or gunpowder under the engine, hoping indeed that death may not be caused, but determined to effect his purpose whether it is so caused or not.

The equivalent of s. 213(a), (b), and (c) (now s. 230) were incorporated as part of Canada’s first Criminal Code in 1892. Paragraph (d) did not exist, nor had it even been recommended by any of the commissioners’ reports. It did not appear until 55 years later, in the 1947 version of the Criminal Code. It represented an attempt by Parliament to reverse this court’s decision in R. v. Hughes (1942), 78 C.C.C. 257, [1943] 1 D.L.R.1, [1942] S.C.R. 517, that homicide committed by the accidental discharge of a firearm by an accused during a robbery does not amount to murder. One writer has commented that this new amendment was indeed a “strange bedfellow” when compared to the rest of s. 213: Edwards “Constructive Murder in Canadian and English Law”, [1960-61; 3 Crim. L.Q. 481, at p. 491.

Section 213(a) is much more restrictive than the common law rule. The bodily harm inflicted by the perpetrator must have been done for the purpose of facilitating the commission of the offence or the subsequent flight of the offender. Furthermore, only a narrowly circumscribed list of predicate criminal offences can trigger the application of the section. Under the old common law rule, a killing in the midst of any felony would support a charge of murder. Section 213(d) did not require any intent on the part of the perpetrator to do bodily injury. It only required, minimally, that one of the participants possess a weapon which accidentally discharged and caused death. That is a substantially discounted mental element, one much lower than that required under s.213(a).

(b) Section 213(a) passes the objective foreseeability test

An exacting combination of factors must be proven, all beyond a reasonable doubt, before the accused can be found guilty of murder under this paragraph. The offender must:

  1. cause the death by means of the commission of a “culpable homicide”;
  2. cause the death while committing or attempting to commit one of a limited number of very serious crimes all of which are, by their very nature, inherently dangerous;
  3. intentionally inflict bodily harm while committing one of these inherently dangerous offences, all of which are specific intent crimes;
  4. inflict the bodily harm purposefully in order to perpetrate the dangerous underlying crime or for the purpose of facilitating his flight, and
  5. the death must ensue from the bodily harm intentionally inflicted.

It should be noted that in the present case the underlying offence was committed, and the intent to inflict bodily harm was clear. Moreover, this amalgamation of indispensable prerequisites establishes that this crime, as phrased by Lamer J. in Vaillancourt [at p. 136] is “tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way”. I am of the view that in light of these requirements, the test of objective foreseeability is sufficient, and that if that test has been met, then no Charter violation has taken place. The above list requires that the accused specifically intend to, and actually commit the underlying offence, and specifically intend to, and actually inflict bodily harm. In my view, the inexorable conclusion is that the resulting death is objectively foreseeable.

Those who are critical of all forms of the “felony-murder” rule base their denunciation on the premise that mens rea is the exclusive determinant of the level of “stigma” that is properly applied to an offender. This appears to me to confuse some very fundamental principles of criminal law and ignores the pivotal contribution of actus reus to the definition and appropriate response to proscribed criminal offences. 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. The whole correlation between the consequences of a criminal act and its retributive repercussions would become obscured by a stringent and exclusive examination of the accused’s own asserted intentions.…

Having found that an objective foreseeability of death test is sufficient for the crime of murder, I believe that the test has been met in this appeal. Section 213(a) enumerates a catalogue of criteria, all of which must be conclusively demonstrated before a murder conviction can obtain. In this case, the predicate crime was committed, there was a clear intention to effect bodily harm, and such harm did in fact result in the death of Ann McLean.

(c) A comparative analysis

This sudden introduction of a subjective foresight standard for the crime of murder is most novel, and finds no parallel in Great Britain, Australia, New Zealand or the United States. While each. of these jurisdictions imposes different requirements for the crime of murder, none has adopted the requirement of subjective foresight of death….

[N]o other common law jurisdiction has found that fundamental justice is offended by something less than an exclusive subjective foresight standard for the crime of murder. On the whole, s. 213(a) is comprehensively disparate from s. 213(d). It finds enduring support in criminal legislation. It satisfies all the components of the objective foreseeability test established by this court in Vaillancourt. It is consistent with similar provisions enacted in other common law jurisdictions. For these reasons, I am of the view that s. 213(a) does not offend the principles of fundamental justice, and therefore ss. 7 and 11(d) of our Canadian Charter of Rights and Freedoms have not been violated in the present case.

IV. Policy considerations

           
During the 27-year period from 1961 to 1987, the evidence reveals that 2,177 homicide offences occurred during the commission of another criminal act. The percentage of homicide offences committed during the commission of another criminal act has varied from 11.9% in 1965 to 28.4% in 1970. The annual average for the period was 16.7%: “Homicide in Canada: Offences Committed During the Commission of Another Criminal Act”, statistics provided by R.C.M.P. for the period 1961 to 1987. The homicide offences committed during another criminal act are  divided into four categories:

Robbery: includes robbery, theft, and break and enter offences. 1315 victims; 61.7% of all homicide offences committed during another criminal act.

Sexual Assault & Rape: includes all sexual attacks on either males or females. 483 victims; 22.3% of an homicide offences committed during another criminal act.

Escape: involves attempts to escape from correctional institutions or lawful custody, to avoid arrest, or to escape detection as a parole or probation violator. 346 victims; 14.2% of all homicide offences committed during another criminal act.

Other: includes other types of criminal acts such as arson, assault, kidnapping, etc. 33 victims; 1.8% of all homicide offences committed during another criminal act.

These statistics reflect a matter of critical public concern, and sustain the legislature’s compulsion to deliver an appropriate response. It is constitutionally permissible under the Canadian Charter of Rights and Freedoms to define the mental element required for murder with reference to an intention by the perpetrator to harm or injure the victim, with death resulting. How that harm or injury is to be defined, and what level of harm or injury is required are matters for Parliament to consider and decide. As La Forest J. said in R. v. Edwards Books & Art Ltd. (1986), 30 C.C.C. (3d) 385 at p. 451, 35 D.L.R. (4th) 1, [1986] 2 S.C.R. 713:

It must be remembered that the business of government is a practical one. The Constitution must be applied on a realistic basis having regard to the nature of the particular area sought to be regulated and not on an abstract theoretical plane.

In this same case, Dickson C.J.C. noted at p. 435 that: “The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line” (emphasis added).

The Chief Justice expanded on this notion recently in Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), 58 D.L.R. (4th) 577 at p. 623, 25 C.P.R. (3d) 417, [1989] 1 S.C.R. 927:

Where the legislature mediates between the competing claims of different groups in the community, it will inevitably be called upon to draw a line marking where one set of claims legitimately begins and the other fades away without access to complete knowledge as to its precise location. If the legislature has made a reasonable assessment as to where the line is most properly drawn . . . it is not for the court to second guess.(Emphasis added.)

The criminal law must reconcile two “competing claims” as well. Social protection must be measured against justice to the individual accused. The appropriate balance between these two will certainly vary, and “A monolithic approach to the proper basis of culpability will be unable to respond to the varying nature of that conflict”: Wells, “Swatting the Subjectivist Bug”, [1982], Crim. L.R. 209 at p. 212.

As Lamer J. held in Reference re s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C: (3d) 289 at p. 309, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486:

The term “principles of fundamental justice” is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.…

Consequently, the principles of fundamental justice are to be found in the basic tenets and print pies, not only of our judicial process, but also of the other components of our legal system.

The fact that the principles embraced by s. 213(a) have existed for over 300 years is in itself relevant, though not necessarily  determinative, of whether or not a rule of “fundamental justice” has been breached by virtue of their adoption by the Parliament of Canada. In my view, while the guarantee entrenched in s. 7 of the Charter is to have broad application, it cannot go so far as to grant the courts judicial licence to modify or strike down legislation in the absence of a constitutional violation.

Lamer J. infused s. 7 with palpable content in Reference re s.94(2)of Motor Vehicle Act, at p. 309:

Sections 8 to 14 address specific deprivations of the “right” to life, liberty and security of the person in breach of the principles of fundamental justice and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of “principles of fundamental justice”; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter as essential elements of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and the rule of law.(Emphasis added.)

Of ss. 8 to 14, only s. 11(d) is being challenged here. Section 11(d) of the Charter guarantees that:

11. Any person charged with an offence has the right…
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

It is difficult for me to see how this right has been violated in the present appeal. The accused has been presumed innocent. His trial was “a fair and public hearing by an independent and impartial tribunal”. He was subsequently “proven guilty according to law”. The alleged infringement is that the presumption of innocence is displaced by the lack of a subjective foresight requirement. This is just not so. The law, as it stands, necessitates conclusive proof beyond a reasonable doubt of factors that are collectively tantamount to an objective foreseeability requirement. According to Vaillancourt, this condition does not defeat the presumption of innocence. None of the other reference provisions which give content and scope to s. 7 are impugned. Therefore, in my view, no Charter guarantee has been offended.

Section 213(a) is intended to carve out certain killings and place them in a category of the most serious culpable homicides, murder. This is a designation which Parliament is entitled to ascribe pursuant to its responsibility for the protection of those under its dominion. This legislative objective can be anchored in Parliament’s legitimate attempt to deter persons from conduct which falls within s. 213(a). In particular, Parliament is attempting to deter those who commit crimes from intentionally inflicting actual bodily harm on their victims in order to achieve their unlawful purpose. The killings subsumed within s. 213(a) are regarded as sufficiently heinous to warrant being placed in the category of the gravest culpable homicides. Parliament felt that this was the appropriate manner to ensure that the criminal law is in accordance with social values as to the gravity of such killings, and that this was an effective method to preserve the lives and safety of Canadians.

In R. v. Arkell (1988), 43 C.C.C. (3d) 402 at pp. 412-3, 64 C.R. (3d) 340, 30 B.C.L.R. (2d) 179 (C.A.), McLachlin J.A. (now of this court) considered the validity of s. 214(5) (now s. 231(5)). Writing for the British Columbia Court of Appeal—this court’s decision in Arkell [unreported] is being rendered concurrently with the present one—she held that:

…Many factors enter into the determination of an appropriate penalty for a particular offence; the degree of blameworthiness is only one. The question is one of policy, to be determined by Parliament. So long as Parliament does not act irrationally or arbitrarily or in a manner otherwise inconsistent with the fundamental principles of justice, its choice must be upheld.(Emphasis added.)

I agree completely, and find that the test applies to s. 213(a) as well. If Parliament chooses to label a crime “murder” and attach commensurate penalties, so long as a mens rea requirement is imposed, as it is here, this court should not lightly interfere with that legislative decision.…

In the present appeal, my colleague’s justification for insisting on the narrowest of all possible definitions for the crime of murder is that:

A conviction for murder carries with it the most severe stigma and punishment of any crime in our society ... [and] should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is liked to cause death.

The menacing component of “stigma” was discussed in Vaillancourt as well. As Lindsay pointed out in “The Implications of R. v. Vaillancourt. Much Ado About Nothing?”, 47(2) U.T. Fac. L. Rev. 465 (1989), at p. 472:

It should also be noted that Lamer J. justified a requirement of a “special mental element” based on either the stigma associated with a crone or the penalties available. A murder conviction qualified on both grounds. However, theft can involve penalties as low as an absolute discharge. Thus, the inclusion of theft in Lamer J.’s list of crimes requiring a “special mental element” must have been based on stigma rather than available penalties.(Emphasis added.)

I find this concentration on social “stigma” to be over-emphasized, and, in the great majority of cases, completely inapplicable. The facts in the present appeals reveal the truly heinous nature of the criminal acts at issue. The concern that these offenders not endure the mark of Cain is, in my view, an egregious example of misplaced compassion. If the apprehension is that the offenders in question will suffer from their “murderer” label, I suspect they will fare little better tagged as “manslaughterers”. Accidental killings cannot, after Vaillancourt, result in murder prosecutions. Only killings resulting from circumstances in which death is, at a minimum, objectively foreseeable will be prosecuted under s. 213(a). Furthermore, the duration of imprisonment, if at all different, will not attenuate the “stigma”. To the extent that any such “stigma” can be said to exist, it is at least as palpable upon release to the outside world as it is within the prison environment itself.

The “stigma” and punishment attached to murder need not be proportionate to the mens rea alone. Rather they must correspond to the combination of the physical and mental elements that collectively define a murder.…

Recalling all the necessary hurdles which the Crown must prove beyond a reasonable doubt before s. 213(a) can operate, the elements of deterrence as well as retribution become critical. As the Crumps discuss at pp. 370-1:

The conclusion does not follow however, that felons cannot be deterred, or that criminals are so different from other citizens that they are impervious to inducements or deterrents that would affect people in general. There is mounting evidence that serious crime is subject to deterrence if consequences are adequately communicated. The felony murder rule is just the sort of simple, commonsense, readily enforceable, and widely known principle that is likely to result in deterrence

The proposition that accidental killings cannot be deterred is inconsistent with the widespread belief that the penalizing of negligence, and even the imposition of strict liability, may have deterrent consequences.(Emphasis added.)

Section 213(a) does not deal with accidental killings, but rather with killings that are objectively foreseeable as a result of the abominable nature of the predicate crimes, committed with specific intent, coupled with the intentional infliction of bodily a harm. Given the dual subjective requirement already in place, the deterrence factor is most cogent in these circumstances. Whatever the competing arguments may be with respect to deterring the merely negligent, here we are dealing with those who have already expressly acted with the intent to commit at least two underlying serious crimes. If deterrence is to ever have any application to the criminal law, and in my view it should, this is the place.

Deterrence can neither be analyzed in the abstract nor in isolation from the context of the provision in question. Section 213(a) deals with one who has already proven to be a “hijacker”, a “kidnapper”, a “rapist”, or an “arsonist”. Furthermore, this person has already proven willing to cause bodily harm to commit the offence or to enable himself to escape after having committed the offence. In these circumstances, it is certainly appropriate for Parliament to put this person on notice that, if these purposeful acts result in death, you will be charged as a “murderer” as well.

This notion of parliamentary autonomy cannot be displaced unless a Charter violation has occurred. In my view that has not taken place here. Repeating my colleague’s own test, as articulated in Vaillancourt at p. 136, if the legislation is “tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way”.

V. Conclusion

Policy considerations in Canada as well as in other jurisdictions have inspired legislation that considers objective foreseeability sufficient as the minimum mens rea requirement for murder. While it may not be the very best test for all cases, it is certainly a constitutionally valid one. Parliament did not have to enact s. 213(a), but that is not the question before this court. The issue is whether it could. In my view, the answer rests on what level of foreseeability will be required before a conviction for murder can be returned. Based on this court’s precedents, and the principles of fundamental justice, I believe that the objective foreseeability of death test for the crime of murder is constitutionally valid. The additional mandatory elements demanded by s.213(a) lend even greater force to this conclusion.

Striking down the legislation simply because some other scheme may be preferable would be an unwarranted intrusion into Parliament’s prerogative; and would undermine the means it has chosen to protect its citizens. The Charter is not designed to allow this court to substitute preferable provisions for those already in place in the absence of a clear constitutional violation. Such a task should be reserved for the Law Reform Commission or other advisory bodies. This court’s province is to pronounce upon the constitutionality of those provisions properly before it. The Charter does not infuse the courts with the power to declare legislation to be of no force or effect on the basis that they believe the statute to be undesirable as a matter of criminal law policy. For the aforementioned reasons, I do not believe that s. 213(a) offends the Canadian Charter of Rights and Freedoms.

Therefore, I would allow this appeal, restore the conviction for second degree murder with respect to the death of Ann McLean….

* * *

LRCC § 6(3) Murder.

Every one commits a crime who purposely kills another person.

Comment

Murder at common law was killing with malice aforethought. Killing with malice was defined by Stephen to consist in killing: (1) with intent to kill or cause grievous bodily harm: (2) with knowledge that one's act was likely to kill or cause grievous bodily harm; (3) in the course of furtherance of a violent felony; and (4) with intent to oppose by force an officer of justice. The present Criminal Code replaces "intent to ... cause grievous bodily harm'' and ''knows that one's act is likely to kill or cause bodily harm'' by ''means to cause ... bodily harm that he knows is likely to cause ... death, ...'' (subparagraph 212(a)(ii) {now s. 229(a)(ii)}). It replaces the two heads of constructive malice ((3) and (4) of Stephen's definition) by "for an unlawful object, does anything that he knows ... is likely to cause death, ...'' (paragraph 212(c) {s. 229(c)]) and by the performance of certain listed acts in the course of certain listed offences (section 213 {s.230}).

Clause 6(3) abandons constructive malice and restricts murder to killing purposely. "Purposely'' is defined in clause 2(4)(b) of the General Part to include oblique or indirect purpose, sometimes referred to as indirect intent. So where D causes V's death, which he does not desire, as a necessary step to some other objective, which he does desire, he commits murder. All other unintended killings, whether or not in the course of other offences, are either manslaughter or negligent homicide. So, where D kills V in the course of a robbery, he will be guilty of murder if he kills him on purpose, of manslaughter if he kills recklessly, and of negligent homicide if he kills with negligence; D will be guilty of the kind of killing he does, not for what he may do by accident. The fact that the killing may be worse because done in a robbery can be reflected in the sentence.

[Alternative—Murder
Murder. Everyone commits a crime who purposely:
(a) kills another person; or
(b) causes bodily harm that he knows is likely to cause death and is reckless whether death ensues or not]

Comment

A minority of the Commissioners would retain the Criminal Code approach expressed in subparagraph 212(a)(ii) on the basis that this kind of reckless killing is more akin to killing on purpose than to ordinary reckless homicide. The reason is that such a killer not only exposes the victim to a risk of death, but also purposely takes unwarranted liberties with his physical person. The majority consider such reckless killing to be more akin to other kinds of reckless homicide than to killing on purpose.

* * *

MPC § 210.2. Murder.

(1) Except as provided in Section 210.3(1)(b, criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
(2) Murder is a felony of the first degree [punishable by life imprisonment].

§ 210.3. Manslaughter.

(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly;  or
(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
(2) Manslaughter is a felony of the second degree [punishable by ten years’ imprisonment].

* * *

StGB § 211. Murder.

(1) The murderer shall be punished with imprisonment for life.
(2) A murderer kills a human being for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence.

§ 212. Manslaughter [Totschlag].

(1) Whosoever kills a person without being a murderer under section 211 shall be punished as manslaughterer [Totschläger] with imprisonment of not less than five years.
(2) In especially serious cases the penalty shall be imprisonment for life.

§ 213. Less Serious Case of Manslaughter.

If the manslaughterer was provoked to rage by maltreatment inflicted on him or a relative, or was seriously insulted by the victim and immediately lost self-control and committed the offence, or in the event of an otherwise less serious case, the penalty shall be imprisonment from one to ten years.

 

                        3. Foreseeability

 

R. v. DeSousa
Supreme Court of Canada
[1992] 76 C.C.C. (3d) 124; [1992] 2 S.C.R. 944

The judgment of the court was delivered by

SOPINKA J.:—This appeal concerns a constitutional challenge to s. 269 (unlawfully causing bodily harm) of the Criminal Code, R.S.C. 1985, c. C-46 (formerly s. 245.3). The appellant was involved in a fight in which a bystander was injured when a bottle allegedly thrown by the appellant broke against a wall and a glass fragment from the bottle struck the bystander.

Prior to trial, the appellant brought a motion to have s. 269 declared of no force or effect as contrary to s. 7 of the Canadian Charter of Rights and Freedoms. The appellant argued that the offence of unlawfully causing bodily harm was contrary to fundamental justice as it put an accused at risk of imprisonment without the requirement of a blameworthy state of mind. Additionally, the appellant argued that the provision allows a conviction despite an accused’s lack of intent to cause the consequence of bodily harm. The motion succeeded and the indictment under which the appellant stood charged was quashed. On appeal, the motion judgment was overturned and the order quashing the indictment was set aside: 62 C.C.C. (3d) 95, 1 O.R. (3d) 152, 42 O.A.C. 375.

The facts

           
As no trial has yet been held in this matter, the facts have been taken from the evidence at the preliminary inquiry. The transcript of the preliminary inquiry was filed with the Court of Appeal and with this court as the factual basis for the appeals.

On December 31, 1987, Teresa Santos attended a New Year’s Eve party in Toronto. Shortly after midnight, a fight broke out at the party. As she was attempting to gather her belongings, which were located at a table in the vicinity of the fight, Ms. Santos was struck on the arm by a piece of glass. The glass fragment produced a large gash on her left forearm which required seven stitches to mend the underlying pronator muscle in her arm and a further seven stitches to mend the skin above the muscle. Eight months later, the feeling and movement in the victim’s forearm were still restricted.

The victim’s husband, Fernando Santos, was standing near his wife while the fight was in progress. He noticed that the appellant and a number of others were involved in the altercation. The appellant and the Santos were standing approximately eight feet away from a wall on opposite sides of the same table. Some of the men who were fighting began throwing bottles. Mr. Santos then noticed the appellant throw a bottle which hit the wall beside Ms. Santos and shattered. A piece of glass from the bottle thrown by the appellant ricocheted off the wall and struck the victim on the arm causing her injury. As a result of this incident, the appellant was charged with unlawfully causing bodily harm contrary to s. 245.3 of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 269). He was committed for trial after a preliminary inquiry held on October 31, 1988.

At the outset of the trial and before any evidence was heard, the accused made a motion to have s. 269 declared of no force or effect on the ground that it contravened s. 7 of the Charter. The motion was granted and the indictment was quashed. On appeal to the Court of Appeal for Ontario, the motion judgment was overturned and the order quashing the indictment was set aside. This appeal comes before the court as of right.…

Analysis

B. Section 269 of the Criminal Code

           
To be brought within the ambit of s. 269, an accused must have committed an underlying unlawful offence (otherwise referred to as the predicate offence) and have caused bodily harm to another person as a result of committing that underlying offence. For liability to be imposed for unlawfully causing bodily harm, the harm caused must have sufficient causal connection to the underlying offence committed: see R. v. Wilmot (1940), 74 C.C.C. 1 at pp. 17 and 26-7, [1940] 3 D.L.R. 358, [1940] 2 E.W.R. 401 (Alta. S.C.A.D.); appeal dismissed for other reasons, 75 C.C.C. 161 [1941] 1 D.L.R. 689, [1941] S.C.R. 53. The requirement of an underlying “unlawful” offence includes at its most general, and subject to the restrictions discussed below, only offences prohibited by federal or provincial legislation. A similar conclusion in regard to criminal conspiracy to effect an “unlawful” purpose was reached earlier by this court in Gralewicz, supra, at pp. 301-2.

(1) The mental element requirement of s. 269

The major issue raised in this appeal concerns the mental element required by s. 269 of the Code. After delineating the statutorily required mental element, the question of the constitutional sufficiency of this element will then be addressed to determine whether it passes constitutional muster.

It is axiomatic that in criminal law there should be no responsibility without personal fault. A fault requirement was asserted to be a fundamental aspect of our common law by this court in R. v.Sault Ste. Marie (City) (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299, and as a matter of constitutional law under s. 7 of the Charter in Reference re: s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486. As a matter of statutory interpretation, a provision should not be interpreted to lack any element of personal fault unless the statutory language mandates such an interpretation in clear and unambiguous terms. Unlike most offences, the mental element of s. 269 is composed of two separate requirements. The first requirement is that the mental element of the underlying offence of s. 269 be satisfied. The second requirement is that the additional fault requirement supplied by the wording of s. 269, discussed more fully, infra, also be satisfied.

(a) The mental element of the underlying offence

To be convicted under s. 269, the prosecution must first satisfy the mental element requirement of the underlying offence. In interpreting the ambit of the underlying offences covered by s. 269 it is important to recognize the abhorrence of the criminal law for offences of absolute liability. While not all underlying offences will have a possibility of imprisonment and despite the fact that s. 269 has a fault requirement in addition to that supplied by the underlying offence, as a matter of statutory interpretation, underlying offences of absolute liability are excluded from forming the basis for a prosecution under s. 269. For the reasons given by this court in Sault Ste. Marie, supra, and Reference re: s. 94(2) of Motor Vehicle Act, supra, s. 269 should not be interpreted so as to bootstrap underlying offences of absolute liability into the criminal law. The criminal law is based on proof of personal fault and this concept is jealously guarded when a court is asked to interpret criminal provisions, especially those with potentially serious penal consequences. This statutory conclusion is mandated by the general presumption in the interpretation of criminal statutes against absolute liability and the absence of clear words to the contrary to rebut this presumption. Thus, the concept of “unlawful” as it is used in s. 269 does not include any underlying offence of absolute liability. The inclusion of such offences would be contrary to the general canons of criminal interpretation quite apart from any Charter considerations: see particularly R. v. Prue (1979), 46 C.C.C. (2d) 257 at pp. 260-1, 96 D.L.R. (3d) 577, [1979] 2 S.C.R. 547, and Beaver v. The Queen (1957), 118 C.C.C. 129 at pp. 135-7,140-1, [1957] S.C.R. 531, 26 C.R. 193. Although not relying on constitutional requirements in foreclosing the possibility of absolute liability offences forming the predicate offences of s. 269, certainly principles of fundamental justice require no less.

In addition to satisfying the statutorily required mental element of the underlying offence, the mental element of the underlying offence must also be constitutionally sufficient in its own right. If the underlying offence contains a constitutionally insufficient mental element, it is of no force or effect and thus cannot form the basis for a prosecution under s. 269. The underlying offence must be valid in law on its own before it can be used to support a charge under s. 269.

(b) The meaning of “unlawful” in s. 269

In addition to the mental element required by the underlying offence, the wording of s. 269, and particularly the case-law interpreting the term “unlawfully”, imports an additional aspect to the mental element of s. 269. The case-law interpreting the use of this term in similar provisions has focused on the offence most commonly known as unlawful act manslaughter. While manslaughter is not the offence at issue in this appeal, the case-law which seeks to interpret the term “unlawful” in that context is instructive.

The leading English authority on the issue of the meaning of “unlawful” in this area is R. v. Larkin (1942), 29 Cr. App. R. 18, where the Court of Criminal Appeal held that (at p. 23):

Where the act which a person is engaged in performing is unlawful then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.

English authority has consistently held that the underlying unlawful act required by its manslaughter offence requires proof that the unlawful act was “likely to injure another person” or in other words put the bodily integrity of others at risk: see also R v. Hall (1961), 45 Cr. App. R. 366 (C.C.A.); R. v.Church (1965), 49 Cr. App. R. 206 (C.C.A.); Director of Public Prosecutions v. Newbury (1976), 62 Cr. App. R. 291 (H.L.), and Director of Public Prosecutions v. Daley (1978), 69 Cr. App. R. 39 (TIC.). This position has also been adopted by most Canadian courts. In R. v. Adkins (1987), 39 C.C.C. (3d) 346, Hutcheon J.A., speaking for the British Columbia Court of Appeal, indicated that the words “unlawful act” have never been taken literally in the law pertaining to manslaughter. He noted that it is not every unlawful act by which death is caused that can support a finding of culpable homicide. The act must be one which meets the test referred to in Larkin, supra….

Despite ample authority that the underlying act must be objectively dangerous in order to sustain a conviction under what is now s. 222(5)(a), the law in this area is not entirely free from doubt. In R. v. Smithers (1977), 34 C.C.C. (2d) 427, 75 D.L.R. (3d) 321, [1978] 1 S.C.R. 506, Dickson J. (as he then was) adopted certain comments made by G. Arthur Martin(later Martin J.A.) in a short case note on the English Larkin case. The adopted comments included the following:

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.

In the case of so called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least. (“Criminal Law—Voluntary and Involuntary Manslaughter—Lawful and Unlawful Acts”, 21 Can. Bar. Rev. 503 (1943), at pp. 504-5; cited in Smithers, supra, at p. 436.)

This passage appears to raise doubt as to whether the “unlawful act” must be inherently dangerous to sustain a manslaughter conviction. This issue was not addressed in Smithers, however, as the assault which occurred in that case was clearly an intentional dangerous act. As well, Smithers was a case concerned with the issue of causation and not the meaning to be given to the term “unlawful act”. Finally, Smithers was not argued under the Charter. In the absence of a more definitive statement or a more extensive analysis of the issue, I am reluctant to freeze the meaning of “unlawful” for the purposes of s. 269 based on the1943 comments of even as persuasive a source as G. Arthur Martin. More telling, and also more considered, authority was provided by Martin J.A. in Tennant, supra, which predates Smithers but was not discussed by Dickson J. in the latter decision. In Tennant, a Court of Appeal panel composed of Gale C.J.O. and Brooke and Martin JJ.A. rendered a per curiam judgment which concluded (at p. 96) that: “When death is accidentally caused by the commission of an unlawful act which any  reasonable person would inevitably realize must subject another person to, at least, the risk of some harm resulting therefrom albeit not serious harm, that is manslaughter.” The court later noted (at p. 96) that:

. . . if death was caused by the accidental discharge of the fire-arm in the commission of such unlawful act and if the jury were satisfied beyond a reasonable doubt that the unlawful act was such as any reasonable person would inevitably realize must subject another to the risk of, at least, some harm, albeit not serious harm, the death would amount to manslaughter.(Emphasis in original.)

The court thus substantially adopted the English position as articulated in Larkin.

In accordance with the English law and in furtherance of the developing Canadian case-law, the most principled approach to the meaning of “unlawful” in the context of s. 269 is to require that the unlawful act be at least objectively dangerous. This conclusion is both supported by the meaning given to the word “unlawful act” by virtually all of the lower courts and also is in accord with the emerging jurisprudence of this court in regard to personal fault.

Objective foresight of bodily harm should be required for both criminal and non-criminal unlawful acts which underlie a s. 269 prosecution. I can see no reason why there should be a difference between the two categories of acts. There is no need to differentiate between criminal and non-criminal unlawful acts when one unifying concept is available. Thus the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful, as described above, and one that is likely to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve an act of violence done deliberately to another person. In interpreting what constitutes an objectively dangerous act, the courts should strive to avoid attaching penal sanctions to mere inadvertence. The contention that no dangerousness requirement is required if the unlawful act is criminal should be rejected. The premise on which this proposition is based is that most, if not all, criminal acts are inherently dangerous. This premise is an overstatement inasmuch as a large part of the criminal law is concerned with offences against property and other interests which are not inherently dangerous. But, even if this premise were accepted, the difference between the two positions would be simply one of semantics. To maintain the correct focus it is preferable to inquire whether a reasonable person would inevitably realize that the underlying unlawful act would subject another person to the risk of bodily harm rather than getting side-tracked on a question regarding the classification of the offence.

(2) Constitutional sufficiency

The mental element of s. 269 has two separate aspects. The first aspect of the mental element is the requirement that an underlying offence with a constitutionally sufficient mental element has been committed. Additionally, s. 269 requires that the prosecution prove that the bodily harm caused by the underlying unlawful act was objectively foreseeable. This latter requirement insures that all prosecutions under s. 269 contain at least a fault requirement based on an objective standard. As this court has not indicated that fundamental justice requires fault based on a subjective standard for all offences, the mental element required by s. 269 passes constitutional muster unless s. 269 is one of those few offences which, due to its stigma and penalty, require fault based on a subjective standard. I agree with the respondent and interveners that s. 269 has neither the stigma nor criminal sanction to require a more demanding mental element than it already has. Thecriminal sanction is flexible and thus can be tailored to suit the circumstances of the case. The stigma associated with conviction will generally reflect the degree of opprobrium which the underlying offence attracts. The stigma attached to the underlying offence will in turn influence the minimum mental requirement for that offence.

Unless a minimum mind state of subjective intention in regard to consequences is constitutionally required, the test discussed above satisfies the dictates of s. 7 of the Charter. I will now consider that issue.

C. Foresight of consequences

       
Although I have concluded by means of statutory interpretation that s. 269 requires objective foresight of the consequences of an accused’s unlawful act, the appellant argues that s. 7 of the Charter requires subjective foresight of all consequences which comprise part of the actus reus of an offence. The appellant notes that in R. v. Martineau (1990), 58 C.C.C. (3d) 353, [1990] 2 S.C.R. 633, 79 C.R. (3d) 129, Lamer C.J.C., speaking for the majority of the court, discussed (at p. 360) a: “. . . generalprinciple that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result . . ..”

The appellant also relies on R. v.Metro News Ltd. (1986), 29 C.C.C. (3d) 35, 32 D.L.R. (4th) 321, 53 C.R. (3d) 289 (Ont. C.A.), leave to appeal refused 29 C.C.C. (3d) 35n, 32 D.L.R. (4th) 321n, [1986] 2 S.C.R. viii, for a similar proposition that (at pp. 54-5):

... [t]he minimum and necessary mental element required for criminal liability for most crimes is knowledge of the circumstances which make up the actus reus of the crime and foresight or intention with respect to any consequence required to constitute the actus reus of the crime.

The appellant submits that this authority supports a requirement that the minimum mental element required by s. 7 of the Charter for s. 269 includes an intention to cause bodily harm. In isolation, it is true that the language used in some earlier decisions of this court could be interpreted as suggested by the appellant. This proposition draws additional support from statements such as those of Wilson J. in R. v. Docherty (1989), 51 C.C.C. (3d) 1, [1989] 2 S.C.R. 941, 72 C.R. (3d) 1, where she infers that proof of intention is required in regard to each of the elements of the actus reus. Wilson J. states (at p. 13): “[a] full mens rea offence under the Criminal Code demands that the accused have an intent to perform the acts that constitute the actus reus of the offence.”

As one of the elements of the actus reus in this appeal is that bodily harm be produced, it is arguable that the case-law of this court has implied that foresight of the consequences of an act must be proved when such consequences constitute an essential element of the offence. This argument, however, misconstrues and overgeneralizes the language used by this court in these earlier judgments: see also R. v. Rees (1956), 115 C.C.C. 1, 4 D.L.R. (2d) 406, [1956] S.C.R. 640, and Pappajohn v. The Queen (1980), 52 C.C.C. (2d) 481 at p. 487, 111 D.L.R. (3d) 1, [1980] 2 S.C.R. 120. In the circumstances of Docherty, the offence definition itself required intention in regard to all aspects of the actus reus and thus this proposition was not meant to be set down as an overriding principle of criminal law. Equally, in Martineau it was only as a result of the stigma and penal consequences of a murder conviction that subjective foresight of death was required. Here again, it was not meant to be stated as a general principle of criminal law. As far back as Blackstone’s Commentaries on the Laws of England, Book III (1769), p. 27, it was recognized that criminal guilt did not always require foresight of the consequences of an unlawful act:

. . . if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.

In R. v. Hess (1990), 59 C.C.C. (3d) 161, [1990] 2 S.C.R. 906, 79 C.R. (3d) 332, the court concluded that a meaningful mental element was required in regard to a blameworthy element of the actus reus. Provided that there is a sufficiently blameworthy element in the actus reus to which a culpable mental state is attached, there is no additional requirement that any other element of the actus reus be linked to this mental state or a further culpable mental state. As inferred by Blackstone, ibid., provided that the actor is already engaged in a culpable activity, foresight of consequences is not required in order to hold that actor responsible for the results of his or her unlawful activity. Lamer C.J.C. stated in Martineau (at p. 361) that “[i]f Parliament wishes to deter persons from causing bodily harm during certain offences, then it should punish persons for causing the bodily harm”. This is exactly what s. 269 attempts to do. In this particular provision the mental element requirement is composed of both the mental element of the underlying unlawful act and the additional requirement of objective foresight of bodily harm. There is, however, no constitutional requirement that intention, either on an objective or a subjective basis, extend to the consequences of unlawful acts in general.

The absence of a constitutional requirement that intention extend to all aspects of an unlawful act was discussed by Wilson J. in R. v.Bernard (1988), 45 C.C.C. (3d) 1 at pp. 42-4, [1988] 2 S.C.R. 833, 67 C.R. (3d) 113, where she concludes that the minimal element of the application of force is sufficient for a conviction for sexual assault causing bodily harm. She inferentially confirms that s. 7 of the Charter does not mandate intention in regard to all of the consequences required by the offence. The contrary position, that intention must extend to all of the required consequences of an offence, is not supported by the case-law and should not be adopted as a constitutional requirement.

There are many provisions where one need not intend all of the consequences of an action. As was pointed out in Hess, supra, there must be an element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in regard to each and every element of the actus reus. The requirement of fault in regard to a meaningful aspect of the actus reus isnecessary to prevent punishing the mentally, and morally, innocent and is in keeping with a long line of cases of this court including Rees, supra, and Pappajohn, supra. In many offences, such as assault or dangerous driving, the offence is made out regardless of the consequences of the act but the consequences can be used to aggravate liability for the offence. For example, both assault and assault causing bodily harm have identical mens rea requirements and the element of causing bodily harm is merely used to classify the offence. No principle of fundamental justice prevents Parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences.

A number of Criminal Code offences call for a more serious charge if certain consequences follow. To require intention in relation to each and every consequence would bring a large number of offences into question including manslaughter (s. 222(5)), criminal negligence causing bodily harm (s. 221),criminal negligence causing death (s. 220), dangerous operation causing bodily harm (s. 249(3)), dangerous operation causing death (s. 249(4)), impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), assault causing bodily harm (s. 267(1)(b)), aggravated assault (s. 268), sexual assault causing bodily harm (s. 272(c)), aggravated sexual assault (s. 273), mischief causing danger to life (s. 430(2)) and arson causing bodily harm (s. 433(b)). As noted by Professor Colvin, “[i]t would however, be an error to suppose that actus reus and mens rea always match in this neat way” (E. Colvin, Principles of Criminal Law, 2nd ed. (1991), p. 55).

Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused. This is reflected in the creation of higher maximum penalties for offences with more serious consequences. Courts and legislators acknowledge the harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response.

There appears to be a general principle in Canada and elsewhere that, in the absence of an express legislative direction, the mental element of an offence attaches only to the underlying offence and not to the aggravating circumstances: Colvin, ibid., at p. 57. This has been confirmed by this court in a number of cases including those which have held that sexual assault requires intention simply in relation to the assault and not any aggravating circumstance: see R. v. Chase (1987), 37 C.C.C. (3d) 97, 45 D.L.R. (4th) 98, [1987] 2 S.C.R. 293, and R. v. Bernard, supra, at pp. 42-4. To require fault in regard to each consequence of an action in order to establish liability for causing that consequence would substantially restructure current notions of criminal responsibility. Such a result cannot be founded on the constitutional aversion to punishing the morally innocent. One is not morally innocent simply because a particular consequence of an unlawful act was unforeseen by that actor. In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful action. Neither basic principles of criminal law, nor the dictates of fundamental justice require, by necessity, intention in relation to the consequences of an otherwise blameworthy act.

Disposition

On a proper interpretation of s. 269 of the Code, the concept ofan unlawful act as it is used in that section includes only federal and provincial offences. Excluded from this general category of offences are any offences which are based on absolute liability and which have constitutionally insufficient mental elements on their own. Additionally, the term “unlawfully”, as it is used in this section requires an act which is at least objectively dangerous. Interpreted in this way s. 269 complies with the requirements of s. 7 of the Charter. In the absence of a violation of s. 7, there is no violation of s. 11(d).question….

 

R. v. Creighton
Supreme Court of Canada
[1993] 23 C.R. (4th) 189; [1993] 3 S.C.R. 3

 

The reasons of Lamer C.J. and Sopinka, Iacobucci and Major JJ. were delivered by
LAMER C.J.C.:--This case concerns the constitutionality of s. 222(5)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and specifically, whether s. 7 of the Canadian Charter of Rights and Freedoms mandates a subjective mens rea for the crime of manslaughter.

I. FACTS

           
The events giving rise to this appeal took place over an 18-hour period beginning on the evening of October 26, 1989. A group including the appellant, Marc Creighton, and the deceased, Ms. Martin, consumed a large quantity of alcohol and cocaine that night. In the afternoon of the following day, the appellant, a companion (Frank Caddedu) and the deceased planned to share a quantity of cocaine at the deceased’s apartment. The evidence indicates that all of the parties involved were experienced cocaine users.

The appellant obtained an “eight-ball” (3.5 gr.) of cocaine. He did not seek to determine the quality or potency of the cocaine before injecting the drug intravenously into himself and Frank Caddedu. With the consent of the deceased, the appellant then injected a quantity of cocaine into the deceased’s right forearm. She immediately began to convulse violently and appeared to cease breathing. Subsequent expert testimony confirmed that, as a result of the injection, she had experienced a cardiac arrest, and later asphyxiated on the contents of her stomach.

Both the appellant and Mr. Caddedu attempted unsuccessfully to resuscitate Ms. Martin. Mr. Caddedu indicated he wanted to call for Emergency Assistance but the appellant, by verbal intimidation, convinced Mr. Caddedu not to call 911. The appellant placed the deceased, who was still convulsing, on her bed. The appellant then proceeded to clean the apartment of any possible fingerprints. The two men then left the apartment. Mr. Caddedu returned unaccompanied to the deceased’s apartment six-seven hours later and called for Emergency Assistance. Ms. Martin was thereupon pronounced dead. The appellant related a substantially different version of the events in question, but this testimony was disbelieved by the trial judge.

The appellant was charged with manslaughter. Defence counsel conceded at trial that the injection into the deceased’s body constituted “trafficking” within the meaning of s. 4(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1. The Crown argued that the appellant was guilty of manslaughter as Ms. Martin’s death was the direct consequence of an unlawful act, contrary to s. 222(5)(a) of the Criminal Code.

The appellant was convicted of manslaughter on May 18, 1990 and sentenced to four years’ imprisonment. The appellant appealed to the Ontario Court of Appeal, which affirmed the conviction.

II. RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS

Narcotic Control Act, R.S.C. 1985, c. N-1:

{now the relevant statute is The Controlled Drugs and Substances Act}

2. in this Act,. . .
“traffic” means
(a) to manufacture, sell, give, administer, transport, send, deliver or distribute, or
(b) tooffer to do anything referred to in paragraph (a)
otherwise than under the authority of this Act or the regulations.
...
4. (1) No person shall traffic in a narcotic or any substance represented or held out by the person to be a narcotic.
(2) No person shall have in his possession any narcotic for the purpose of trafficking.
(3) Every person who contravenes subsection (l) or (2) is guilty of an indictable offence and liable to imprisonment for life.

Criminal Code, R.S.C. 1985, C. C-46:

222....
(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;

234. Culpable homicide that is not murder or infanticide is manslaughter.

236. Every one who commits manslaughter is guilty of an indictable offence and liable to imprisonment for life.…

V. ANALYSIS

A. Constitutionality of s. 222(5)(a) of the Criminal Code

           
Since the decision of this court in Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486, at p. 496, courts have been “empowered, indeed required, to measure the content of legislation” against the principles of fundamental justice contained in s. 7 of the Charter, and specifically, to ensure that themorally innocent not be punished. In R. v.Vaillancourt, [1987] 2 S.C.R. 636, I emphasized that the guiding principle underlying the constitutional analysis of fault in criminal law is that the state cannot punish a person as morally blameworthy unless such blameworthiness has been established. For example, as I stated in Vaillancourt, at p. 653, if the purpose of a crime is to punish a person for theft, the elements of that crime must include proof beyond a reasonable doubt of dishonesty.

In Vaillancourt, I emphasized that the hallmark of murder is that there must be some special mental element with respect to death which gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction. As I said, at p. 654:

. . . murder is distinguished from manslaughter only by the mental element with respect to the death. It is thus clear that there must be some special mental element with respect to the death before a culpable homicide can be treated as a murder. That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction. I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight. [Emphasis added.]

In Tutton, at pp. 1434-35, I expressly left open the question of what the principles of fundamental justice require as regards the fault requirement for manslaughter.

It is now well established that there is a group of offences, albeit a small group, that requires a subjectively determined culpable mental state in relation to the prohibited result. As I said in Vaillancourt, supra, at p. 653:

But, whatever the minimum mens rea for the act or the result may be, there are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime.

Subsequent decisions of this court, notably R. v. Hundal, [1993] 1 S.C.R. 867, and R. v. DeSousa, [1992] 2 S.C.R. 944, make it clear that there is no general constitutional principle requiring subjective foresight for criminal offences. In other words, an objective fault requirement is constitutionally sufficient for a broad range of offences other than those falling within the relatively small group of offences alluded to in Vaillancourt.

The only basis upon which subjective foresight of death or the risk of death could be found to be constitutionally required in the case of unlawful act manslaughter, therefore, would be to find that the offence is one of those crimes which “because of the special nature of the stigma attached to a conviction therefore or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime”: see R. v. Vaillancourt, per Lamer J., at p. 653.

There are two main branches to the analysis of social stigma. First the court must look to the conduct being punished to determine if it is of sufficient gravity to import significant moral opprobrium on the individual found guilty of engaging in such conduct. In the case of manslaughter under s. 222(5)(a), the conduct in question consists of killing someone as a consequence of committing an unlawful act. In this respect, there may well be no difference between the actus reus of manslaughter and that of murder; arguably both give rise to the stigma of being labelled by the state and the community as responsible for the wrongful death of another. Clearly, there can be no conduct in our society more grave than taking the life of another without justification.

The second branch of the stigma test concerns the moral blameworthiness not of the offence, but of the offender found guilty of committing it. As a general proposition, more stigma will attach to those who knowingly engage in wrongful conduct than to those who recklessly or inadvertently engage in the same conduct. As I stated in R. v. Martineau, [1990]2 S.C.R. 633, at pp. 645-46:

The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result ... The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between she stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender.

In my view, the stigma which attaches to a conviction for unlawful act manslaughter is significant, but does not approach the opprobrium reserved in our society for those who knowingly or intentionally take the life of another. It is for this reason that manslaughter developed as a separate offence from murder at common law.

What then is the constitutionally required fault element with respect to unlawful act manslaughter? In this regard, the recent decision of this court in DeSousa is instructive. At issue in that case was the constitutional sufficiency of the offence of unlawfully causing bodily harm (s. 269 of the Code). The unanimous court (Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.), speaking through Sopinka J., found that a fault requirement based on objective foreseeability of the risk of bodily harm, coupled with the fault requirement of the predicate unlawful act (which itself must be constitutionally sufficient), satisfies the principles of fundamental justice under s. 7 of the Charter.

In DeSousa, while Sopinka J. found the offence of unlawfully causing bodily harm to require proof of objective foresight of the risk of bodily harm, he observed that there is no constitutional requirement that, in every case, it is necessary to prove a mental element extending to the consequences of unlawful conduct With these comments I agree, for the reasons I shall now elaborate. I am of the view that while there is a general constitutional requirement that a mental element must relate to the consequences of an underlying act where an offence is structured in that fashion, the existence of that mental element may be established in one of two ways. First, for offences where a consequence forms the essence of an offence, such that it can be said that the pith and substance of the offence includes a particular consequence, as is the case with death in the offence of unlawful act manslaughter and with bodily harm in the offence of unlawfully causing bodily harm, a fault element must be demonstrated beyond a reasonable doubt in relation to that consequence. Secondly, for offences where a consequence forms part of the actus reus of an offence, but where the essence of the offence is conduct which is inherently risky to life or limb, such offences are therefore presumed to involve objective foresight of the risk. In other words, proof of the accused having engaged in prohibited conduct which is such that any reasonable person would inevitably have foreseen the risk involved, will serve as a substitute for objective foresight, relieving the prosecution from having to introduce additional evidence to prove the existence of such foresight. The possibility of satisfying a constitutional requirement by means of such a substituted element was discussed in Vaillancourt, supra, at p. 656, where I stated the following:

Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond a reasonable doubt of the substantial element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element

Examples of the class of offences where a substituted element for proof of foreseeability will satisfy s. 7 of the Charter are few, but would include offences such as impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)),dangerous operation causing bodily harm (s. 249(3))and dangerous operation causing death (s. 249(4)).What these offences have in common is that the moral blameworthiness of the offence stems from the conduct of driving a car in a fashion which creates a high risk of injury. Whether such an injury leads to bodily harm or death will increase the seriousness of the punishment that will flow from a conviction, but the result does not alter the essence of the moral blameworthiness being punished.

Thus, as I stated, unlawful act manslaughter falls into the class of offences where a mental element in relation to the consequence must be established, but in any event, I find the stigma attached to a conviction for culpable homicide, albeit culpable homicide which is not murder, to be significant enough to require, at a minimum, objective foresight of the risk of death in order for the offence to comply with s. 7 of the Charter.…

Therefore, in accordance with the requirements of s. 7 of the Charter, the proper interpretation of unlawful act manslaughter under s.222(5)(a) of the Code requires the Crown to prove beyond reasonable doubt: (a) that the accused has committed an unlawful act which caused the death of the deceased; (b) that the unlawful act must be one that is objectively dangerous (i.e., in the sense that a reasonable person would realize that it gives rise to a risk of harm); (c) that the fault requirement of the predicate offence, which cannot extend to offences of absolute liability, was in existence and (d) that a reasonable person in the circumstances of the accused would foresee the unlawful act giving rise to a risk of death.

The second element of unlawful act manslaughter involves a determination, as a question of law, of whether the predicate unlawful act is objectively dangerous. The fourth element, however, asks the trier of fact to place the reasonable person in the circumstances of the accused in order to determine whether the risk of death created by the unlawful act was objectively foreseeable by the accused. I shall now turn to elaborating the test to be applied wherever such an objective determination of fault is required in criminal law.

B. The Objective Test

           
An accused can only be held to the standard of a reasonable person if the accused was capable, in the circumstances of the offence, of attaining that standard. Consequently, in determining whether a reasonable person in the circumstances of the accused would have foreseen the risk of death arising from the unlawful act, the trier of fact must pay particular attention of any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen. If the criminal law were to judge every accused by the inflexible standard of the monolithic “reasonable person,” even where the accused could not possibly have attained that standard, the result, as Stuart notes, would be “absolute responsibility” for such persons: Canadian Criminal Law: A Treatise, 2nd ed. (Toronto: Carswell, 1987), at p. 192. H.L.A. Hart advanced a similar argument in “Negligence, Mens Rea and Criminal Responsibility” in Punishment and Responsibility (1968), at p. 154:

If our conditions of liability are invariant and not flexible, i.e. if they are not adjusted to the capacities of the accused, then some individuals will be held liable for negligence though they could not have helped their failure to comply with the standard.…

The Crown bears the burden of proving beyond a reasonable doubt that a reasonable person in the context of the offence would have foreseen the risk of death created by his or her conduct. As I explain in more detail in R. v.Gosser, S.C.C., No. 22523, released this same day [reported (1993), 23 C.R. (4th) 280], the reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of his or her membership in a group with special experience or knowledge related to the conduct giving rise to the offence. For example, in Gosset the accused police officer’s experience and training in the handling of firearms is relevant to the standard of care under s. 86(2) of the Criminal Code concerning the careless use of firearms. In the present case, the reasonable person should be deemed to possess Mr. Creighton’s considerable experience in drug use. Once the Crown has established beyond a reasonable doubt that this reasonable person in the context of the offence would have foreseen the risk of death created by his or her conduct, the focus of the investigation must shift to the question of whether a reasonable person in the position of the accused would have been capable of foreseeing such a risk. The objective test cannot, to reiterate, relieve the accused of criminal liability simply because he or she did not, in fact, foresee creating the risk of death. I wish to reiterate that the standard of care remains uniform and unchanging irrespective of the particular accused - the prosecution must demonstrate a marked departure from the standard of a reasonable person; rather, it is in the determination of what is reasonable that the skill and expertise of the accused may be considered.

The objective test can be best understood when stated as a “checklist” for the trier of fact to apply to the accused’s conduct in a particular case. Where the accused is charged with the offence of unlawful act manslaughter, the trier of fact must ask:

(1) Would a reasonable person in the same circumstances have been aware that the likely consequences of his or her unlawful conduct would create the risk of death?

This question provides the threshold to the objective test. If the answer to this question is No, then the accused must be acquitted. If the answer is Yes, however, the trier must then ask:

(2) Was the accused unaware
(a) because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result; or
(b) because he or she lacked the capacity to turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result, due to human frailties?

If the answer is (a), the accused must be convicted, since the criminal law cannot allow the absence of actual awareness to be an excuse to criminal liability. An important distinction must be maintained within the objective test between the capacity to decide to turn one’s mind to a risk, and the decision not to turn one’s mind to it. As Colvin, Principles of Criminal Law, 2d ed. (Toronto: Carswell, 1991), notes, at p. 155:

As long as attention is directed to the individual’s own capabilities, a judgment of fault can be made on the ground that there was a fair opportunity to have recognized the risks and harm of conduct.

A key element of the objective test is that of the control an accused could have exercised over the frailty which rendered him or her incapable of acting as the reasonable person would in the same circumstances. The notion of control is related to that of moral responsibility; if one is able to act prudently and not endanger the life of others, one will be held liable for failing to do so. One must be morally - and criminally - responsible to act according to his or her capacities not to inflict harm, even unintentional harm. By contrast, the inability to control a particular frailty which resulted in the creation of the risk may offer a moral excuse for having brought about that risk. Therefore, if the answer to the second branch of the objective test is (b), the third and final stage of the inquiry is required:

(3) In the context of the particular offence, would the reasonable person with the capacities of the accused have made him or herself aware of the likely consequences of the unlawful conduct and the resulting risk of death?

In this inquiry, the accused’s behaviour is still measured against the standard of the reasonable person, but the reasonable person is constructed to account for the accused’s particular capacities and resulting inability to perceive and address certain risks. This test is similar to that advocated by Hart, in “Negligence, Mens Rea and Criminal Responsibility”, supra, at p. 154:

(i) Did the accused fail to take those precautions which any reason able man with normal capacities would in the circumstances have taken?
(ii) Could the accused, given his mental and physical capacities, have taken those precautions?

It must be emphasized that this is not a subjective test: if a reasonable person with the frailties of the accused would nevertheless have appreciated the risk, and the accused did not in fact appreciate the risk, the accused must be convicted.

The rationale of incorporating capacity into the objective determination of fault is analogous to the rationale underlying the defence of mistake of fact in criminal law, where an accused who has an honest and reasonably held belief in an incorrect set of facts, and acts on the basis of those facts, is excused from punishment for the resulting harm. Human frailties which may affect the capacity of an accused to recognize the risks of unlawful conduct must be considered however, not because they result in the accused believing in an incorrect set of facts, but rather because they render the accused incapable of perceiving the correct set of facts. It is, however, only those human frailties which relate to an accused’s capacity to appreciate the risk in question that may be considered in this inquiry.

I shall not turn to elaborating what “human frailties” may factor into the objective test. It is perhaps best to begin by stating clearly what is not included. Intoxication or impairment through drug use which occurs as a result of voluntary consumption cannot serve to vitiate liability for the risks crated by the negligent conduct of an accused. Additionally, a sudden and temporary incapacity to appreciate risk due to exigent circumstances (an emergency which diverts one’s attention from an activity, for example) is not properly considered under the third part of the test, but may well result in an acquittal under the first part of the test, that is, would a reasonable person’s attention in the same circumstances of the accused have been diverted from that activity.

Human frailties encompass personal characteristics habitually affecting an accused’s awareness of the circumstances which create risk. Such characteristics must be relevant to the ability to perceive the particular risk. For example, while illiteracy may excuse the failure to take care with a hazardous substance identifiable only by a label, as the accused may be unable, in this case, to apprehend the relevant facts, illiteracy may not be relevant to the failure to take care with a firearm. This attention to the context of the offence and the nature of the activity is explored in greater detail below.

It should be emphasized that the relevant characteristics must be traits which the accused could not control or otherwise manage in the circumstances. For example, while person with cataracts cannot be faulted for having reduced vision, he or she may be expected to avoid activity in which that limitation will either create risk or render him or her unable to manage risk which is inherent in an activity (driving, for example). The reasonable person is expected to compensate for his or her frailties, to the extent he or she is conscious of them and able to do so.

This general discussion is not intended to set out an exhaustive definition, but rather to lay the groundwork for examining the different factual contexts which may arise. Two central criteria in this regard are (1) the gravity of the offence, and (2) the inherent purposefulness of the conduct involved. With respect to the gravity of the offence, there may be a significant gulf between neglecting to safely store a bottle containing a prescription drug, and neglecting to unload a firearm and return it to its cabinet. In these different contexts, the behaviour of the reasonable person who possesses all of the accused’s limitations may be very different, and therefore the answer to the third question regarding the ability of an accused to control or compensate for his or her frailties may be different as well.

The purposefulness of the conduct involved has also been isolated as a factor to be considered in applying such a test by Toni Pickard, in “Culpable Mistakes and Rape: Relating Mens Rea to the Crime” (1980) 30 U.T.L.J. 75. Pickard refers (at p.76) to the accused’s ability to isolate and analyze the “legally relevant transaction”, and notes (at p. 81) that some activities “provide no specific moment, no specific act, not even a specific question to focusthe actor’smind on the need for care.” Where the activity is highly purposeful, and involves a limited number of inquiries and decisions to be made before acting, the reasonable person with the accused’s make-up will be held to a higher standard. Put another way, frailties which create a general inability to recognize and appreciate risk will not necessarily exonerate the accused in the context of particular discrete acts. If the activity is ongoing and involves many stimuli, it may well be impossible for the reasonable person with the accused’s frailties to isolate the legally relevant items of information.

Consider the following example:
Y has had very little education. Y’s friend asks him to help clean out a basement. It turns out that a jar in the basement contains nitroglycerine, and is clearly labelled as such. Y reads the label, but the word means nothing to him. Y transports the jar in the back of his pick-up truck, and when he leaves the truck after stopping at a store, the jar explodes and a passer-by is killed.

In this circumstance, the reasonable person would have known not to transport the jar as Y did, so Y fails the first part of the test. However, we should consider that Y’s level of education may make comparing him to the fully-educated reasonable person unfair. Thus the trier of fact should consider a reasonable person of Y’s education level. The inquiry for the trier of fact becomes: would a reasonable person with Y’s education have been aware of a risk and taken steps  to avoid the harm? There is nothing in the activity of cleaning out a basement that would alert Y to any particular risk inherent in the activity. Similarly, there are a number of activities Y carries out, so it cannot be said that there was only one legally relevant transaction which should have focused Y’s mind on the possibility of risk. In this circumstance, then, the trier of fact may well find that it was reasonable for Y, given his education, not to be aware of the risk he created.

A slight change in facts illustrates the requirement that the frailty be one that the accused cannot control, and the need to attend to the context of the offence. While cleaning out a basement would not put the reasonable person on notice, but the label (which meant nothing to Y) would, what if Y were a courier picking up a package from a large laboratory that, to Y’s knowledge, manufactures only explosives? The trier of fact could properly expect Y to have recognized his frailty as relevant to the transaction in question and to have asked someone at the lab about transportation safeguards. The reasonable person, even with Y’s education, would recognize the risks inherent in such a situation. Thus, the overlap between the responsibility to recognize one’s limitations and the focus on the inherent risk and purposefulness of the conduct indicate that Y might well be held to have been at fault in- the circumstances, even though he did not in fact recognize a risk.

The capacity of the accused in the context of criminal prosecutions will be relevant wherever the Crown must establish what a reasonable person in the circumstances of the offence would have perceived. In the case of unlawful act manslaughter, the objective test must be applied in assessing the foreseeability of the risk from the unlawful act in question, but may also be relevant in establishing the requisite fault for the predicate unlawful act, as is the case in R. v.Gosset, released this same day. In Gosset, the accused was charged with unlawful act manslaughter, where the unlawful act was the careless use of a firearm contrary to s. 86(2) of the Criminal Code. As I indicated in that case, capacity will be relevant to the assessment of the accused’s fault for the predicate unlawful act as well as to the foreseeability of death arising from that unlawful act.

C. The Application of the Objective Test

           
Applied to the facts of this case, therefore, one must ask whether the reasonable individual in the circumstances of the offence and with Mr. Creighton’s experience in drug use would have been aware of the risk of death arising from the injection of the deceased with the cocaine. In reviewing the evidence against Mr. Creighton, the trial judge stated the following:

The accused’s evidence [is] that he would permit no one but himself to measure the dose of cocaine that he would accept by injection into his own body. That is evidence capable of the inference which I draw, that Mr. Creighton on the 27th of October, 1989 was knowledgeable of the dangerous propensity of that narcotic to cause death or serious bodily harm.

Subsequently, the trial judge summarized his findings as follows:

Mr. Creighton swore, in effect, that he was and is an experienced cocaine user. He said that he insisted on measuring out his own quantity of cocaine intake. From that evidence alone, I draw the inference that at the time he gave part of that narcotic he had purchased to Miss Martin, he knew the was going to ingest it immediately. He also knew that he was giving her a very dangerous, volatile, lawfully prohibited narcotic, capable of causing death or serious bodily harm.

At the end of all of the evidence and argument, the Crown has proven beyond a reasonable doubt that the accused trafficked in cocaine. The very narcotic he gave to the deceased caused her death, and his act of giving it was an intentional one. It was an unlawful criminal act. There existed on the record proof beyond a reasonable doubt that in the circumstances of giving it to her he was criminally negligent. That is so because at the time he gave it he was an experienced, knowledgeable person and well aware of cocaine’s dangerous properties. Of equal significance, he, at the time that he gave it to her, knew that the was already holding within her body a substantial amount of the same narcotic. Possessed of that knowledge, he was criminally negligent in giving it to her in the first place, and further criminally negligent in failing to consider the quantity, I find, he placed in the spoon that was used to inject her and the strength it would probably have upon her. [Emphasis added.]

Given the lethal nature of the narcotic in question and the fashion in which it was administered, the familiarity of the accused with the drug and its dangerous properties, the trial judge concluded that the accused foresaw the risk of death or serious bodily harm in injecting the deceased with cocaine. Indeed, when first informed of the charges against him, the appellant was apprised of the death of Ms. Martin as a result of a cocaine overdose, to which he responded the following:

You know better than I that that stuff kills a lot of people. I hear lots of things about people dying of drug overdoses but I don’t know them so I don’t care.

Since the accused was aware of the risk of death resulting from the unlawful act of trafficking, it is not necessary to proceed to the second or third branch of the objective test. In instructing himself on the law with respect to unlawful act manslaughter, the trial judge, with respect, erred in adopting the standard of objective foreseeability contained in the earlier line of cases which referred to “the risk of some harm . . . albeit not serious harm”(R. v. Church, supra, at p. 213, and R. v. Tennant, supra, at p. 96 [C.C.C., p. 19 C.R.N.S.]). However, whether or not a reasonable person in the circumstances of the appellant would have foreseen a risk of death as opposed to merely a risk of harm arising from the unlawful act is an inquiry that is made unnecessary given the finding above that the appellant actually did appreciate the risk of death resulting from his injection of the cocaine into the deceased.

Therefore, with respect to the test for determining if a new trial is required under s.686(1)(b)(iii) of the Code, I conclude that, although the learned trial judge erred in law in not expressly considering the capacity of the appellant to appreciate the risk resulting from his conduct, and in instructing himself on the proper test for assessing foreseeability under s. 222(5)(a) of the Code, it is clear from his findings that had he instructed himself properly, he would have necessarily arrived at the same verdict (see Colpitts v. R., [1965] S.C.R. 739, at p. 744). Therefore, I find that, despite the trial judge’s error, there is no substantial wrong or miscarriage of justice which would require a new trial.…

For the reasons stated above, the appeal is dismissed, and the appellant’s conviction confirmed.

            LA FOREST J.:—…I start with the fact that, both at the constitutional level and in the interpretation of offences, I favour where practicable the adoption of subjective rather than objective mens rea; see for example, my concurrence with Wilson J. in R. v. Tutton, [1989]1 S.C.R. 1392, a case dealing with manslaughter by criminal negligence which my colleagues find it unnecessary to deal with in the present case. Nonetheless, I have been sensitive to the broad divide between true criminal offences and offences that are regulators or have a regulatory base (see R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154). In consequence I accept that Parliament can and sometimes does require only an objective standard of mens rea for offences intended to regulate a particular form of activity, see R. v. Hundal, [1993] 1 S.C.R. 867, at p. 876, where I restricted my concurrence with Cory J. on that basis.

As can be seen from the reasons of McLachlin J. in the present case (at p. 34), the specific requirements of these regulatory and quasi-regulatory offences constitute the major theoretical justification for objective mens rea. I was concerned about the application of the doctrine to offences of a truly criminal character that apply to a wide variety of circumstances. However, any possibility of limiting objective mens rea to regulatory offences or offences having a regulatory base has now been overtaken by the unanimous decision of the panel (comprising a majority of the court) in R. v. DeSousa, [1992] 2 S.C.R. 944. It was there held that in a charge under s. 269 of the Criminal Code, R.S.C. 1985, c. C-46, of unlawfully causing bodily harm, it was sufficient to establish that the accused intended to cause the unlawful act (which was interpreted as being a dangerous act) that caused the bodily harm and that a reasonable person would have realized that that unlawful act would subject another person to the risk of bodily harm. In short, the court held that the underlying offence required personal fault, but that it was sufficient if there was objective foreseeability of consequences. The case further held that the mens rea requirements conformed with the principles of fundamental justice within the meaning of s. 7 of the Canadian Charter of Rights and Freedoms.

In DeSousa, the court relied on earlier authorities relating to unlawful act manslaughter, the relevant charge in the present case, and for my part I cannot distinguish between the mens rea requirement in the two offences. That an unlawful act may result in death or simply bodily harm is purely fortuitous. McLachlin J.’s reasoning on this point is persuasive.

On my reading of DeSousa, I would also have thought that it settled the second point of contention between my colleagues, i.e. whether objective mens rea as to consequence should be qualified in the manner proposed by the Chief Justice, the rationale underlying the case would seem to me to favour the position taken by McLachlin J. Since my colleagues have not so read the case however, I shall attempt to give my reasons for preferring one position over the other.

While the theoretical differences may be profound, it must be confessed that, in the bulk of cases, there may be less difference in practical result between the adoption of a subjective or an objective approach to mens rea than the proponents of either view would admit. Though Tutton itself was a case where the difference did matter, a careful reading of the competing reasons in that case, I think, demonstrates the truth of what I have just said. To demonstrate, a jury deciding on whether a person adverted to an act or its consequences is bound to be affected by its view of what a reasonable person would do in the circumstances. Similarly, the specific circumstances may well affect a jury’s view of what is reasonable. There are important educative and psychological differences between the two approaches that have led me to prefer the subjective view of mens rea. That view underlines that no one will be punished for anything he or the did not intend or at least advert to, and its use supports one’s feeling that a morally innocent person will not be punished.

The objective view, however qualified, does not fully serve these ends. It is true that the qualified objective view would theoretically protect some of the individuals the subjective view would protect, but by no means all; see Tutton, supra, per Wilson J., at p. 1419. And it does not respond to the educative and psychological ends sought to be attained by those advocating subjective mens rea. Indeed, it introduces a differentiation between individuals in criminal proceedings that, however well meant, seems foreign to our law. What is more, the qualified objective approach loses most of the practical advantages sought to be attained by the objective approach. Indeed, some of the difficulties that have been perceived to result from the adoption of the subjective view would be exacerbated. I think, in particular, of the difficulties of instructing a jury. On this question, too, I find McLachlin J.’s reasons more persuasive.

I would, therefore, dispose of the appeal and answer the constitutional question as proposed by my colleagues.

The judgment of L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by
            MCLACHLIN J.:—This appeal considers the constitutional status of s. 222(5)(a) of the Criminal Code, R.S.C. 1985, c. C-46. In particular, the constitutional question stated by the Chief Justice asks “Does the common law definition of unlawful act manslaughter violate s. 7 of the Charter?” The facts and judgments below have been set out by the Chief Justice. In brief, Mr. Creighton was convicted of manslaughter, arising from the death of Kimberly Ann Martin, who died as a result of an injection of cocaine given by Mr. Creighton. The trial judge found that the death constituted manslaughter either on the ground that it was caused by an unlawful act, or on the ground that it was caused by criminal negligence.

I respectfully disagree with the Chief Justice on two points. The first is his conclusion that the common law offence of manslaughter is unconstitutional because it does not require foreseeability of death. The Chief Justice concludes that the offence of manslaughter must be “read up” to include this requirement in order to bring it into line with the principles of fundamental justice enshrined in s. 7 of the Charter, and in particular with the principle that the moral fault required for conviction be commensurate with the gravity and the stigma of the offence. In my view, the offence of 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.

The second point on which I respectfully diverge is the Chief Justice’s conclusion that the standard of care on the objective test in manslaughter and in crimes of negligence varies with the degree of experience, education, and other personal characteristics of the accused. This leads the Chief Justice to hold Mr. Creighton to a higher standard of care than that of the reasonable person in determining if he would have foreseen the risk in question, because of Creighton’s long experience as a drug user (p. 21, reasons of Chief Justice [p. 230]). For the reasons set out below I believe the appropriate standard to be that of the reasonable person in all the circumstances of the case. The criminal law is concerned with setting minimum standards of conduct, the standards are not to be altered because the accused possesses more or less experience than the hypothetical average reasonable person.

I will turn fist to the common law test for manslaughter, and address the constitutional question as stated by the Chief Justice.

A. Constitutionalityofthe Requirement of Foreseeability of Bodily Injury in Manslaughter

1. The Mens Rea of Manslaughter

           
The Criminal Code defines three general types of culpable homicide. There is murder, the intentional killing of another human being. There is infanticide, the intentional killing of a child. All other culpable homicides fall into the residual category of manslaughter (s. 234, Criminal Code).

Manslaughter is a crime of venerable lineage. It covers a wide variety of circumstances. Two requirements are constant: (1) conduct causing the death of another person; and (2) fault short of intention to kill. That fault may consist either in committing another unlawful act which causes the death, or in criminal negligence. The common law classification of manslaughter is reflected in the definition of culpable homicide in s. 222(5) of the Criminal Code:

222.(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;

The structure of the offence of manslaughter depends on a predicate offence of an unlawful act or criminal negligence, coupled with a homicide. It is now settled that the fact that an offence depends upon a predicate offence does not render it unconstitutional, provided that the predicate offence involves a dangerous act, is not an offence of absolute liability, and is not unconstitutional: R. v. DeSousa, [1992] 2 S.C.R. 944. But a further objection is raised in this case. It is said that the offence of manslaughter is unconstitutional because it requires only foreseeability of the risk of bodily harm and not foreseeability of death, and that the trial judge erred in requiring only foreseeability of bodily harm.

The cases establish that in addition to the actus reus and mens rea associated with the underlying act, all that is required to support a manslaughter conviction is reasonable foreseeability of the risk of bodily harm. While s. 222(5)(a) does not expressly require foreseeable bodily harm, it has been so interpreted: see R. v. DeSousa, supra. The unlawful act must be objectively dangerous, that is likely to injure another person. The law of unlawful act manslaughter has not however, gone so far as to require foreseeability of death. The same is true for manslaughter predicated on criminal negligence; while criminal negligence, infra, requires a marked departure from the standards of a reasonable person in all the circumstances, it does not require foreseeability of death.

Certain early authorities suggest that foreseeability of the risk of bodily harm is not required for manslaughter. Blackstone wrote that “when an involuntary killing happens in consequence of an unlawful act . . . if no more was intended than a mere trespass, it will only amount to manslaughter” (Blackstone, Commentaries on the Laws of England (1769), Book IV, at pp. 192-93). Others disagreed. Stephen, the author of the Canadian Criminal Code, defined manslaughter as “unlawful homicide”, which in turn he defined as requiring, at a minimum, that the act was “likely to cause death or bodily harm” (Arts. 279, 278, reprinted in G.W. Burbridge, Digest of the Criminal Law of Canada (Toronto: Carswell, 1980) at p. 216).

In more recent times, the prevailing view has been that foreseeability of bodily harm is required for manslaughter. In England, it was said in R. v. Larkin (1942), [1943] 1 All E.R. 217 (C.C.A.), at p. 219, that the act must be “a dangerous act, that is, an act which is likely to injure another person”. In R. v. Tennant (1975), 23 C.C.C. (2d) 80 [31 C.R.N.S. 1], at p. 96 [C.C.C., p. 19 C.R.N.S.], the Ontario Court of Appeal stated that the unlawful act must be “such as any reasonable person would inevitably realize must subject another to the risk of, at least, some harm, albeit not serious harm”. Similarly, in R. v. Adkins (1987), 39 C.C.C. (3d) 346 (B.C. C.A.), at p.348, Hutcheon J.A. wrote, “the unlawful act was such as any reasonable person would inevitably realize must subject another to the risk of at least some harm”.

This court in R. v. DeSousa, supra, confirmed that a conviction for manslaughter requires that the risk of bodily harm have been foreseeable. After referring to the statement in Larkin, supra, that a “dangerous act” is required, Sopinka J. stated that English authority has consistently held that the underlying unlawful act required for manslaughter requires “proof that the unlawful act was ‘likely to injure another person’ or in other words put the bodily integrity of others at risk” (at p. 959). Moreover, the harm must be more than trivial or transitory. The test set out by Sopinka J. (at p. 961) for the unlawful act required by s. 269 of the Criminal Code is equally applicable to manslaughter:

... the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful, as described above, and one that is likely to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve an act of violence done deliberately to another person. In interpreting what constitutes an objectively dangerous act, the courts should strive to avoid attaching penal sanctions to mere inadvertence. The contention that no dangerousness requirement is required if the unlawful act is criminal should be rejected. [Emphasis in original]

So the test for the mens rea of unlawful act manslaughter in Canada, as in the United Kingdom, is (in addition to the mens rea of the underlying offence) objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required. The question is whether this test violates the principles of fundamental justice under s. 7 of the Charter.

2. Constitutionality of the “Foresight of Bodily Harm” Test for Manslaughter

            Before venturing on analysis, I think it appropriate to introduce a note of caution. We are here concerned with a common law offence virtually as old as our system of criminal law. It has been applied in innumerable cases around the world. And it has been honed and refined over the centuries. Because of its residual nature, it may lack the logical symmetry of more modernstatutory offences, but it has stood the practical test of time. Could all this be the case, one asks, if the law violates our fundamental notions of justice, themselves grounded in the history of the common law? Perhaps. Nevertheless, it must be with considerable caution that a twentieth century court approaches the invitation which has been put before us: to strike out, or alternatively, rewrite, the offence of manslaughter on the ground that this is necessary to bring the law into conformity with the principles of fundamental justice.

As I read the reasons of the Chief Justice, his conclusion that the offence of manslaughter as it stands is unconstitutional, rests on two main concerns. First, it is his view that the gravity or seriousness of the offence of manslaughter, and in particular the stigma that attaches to it, requires a minimum mens rea of foreseeability of death. Second, considerations of symmetry between the element of mental fault and the consequences of the offence mandate this conclusion. I will deal with each concern in turn.

(a) Gravity of the Offence

A number of concepts fall under this head. Three of them figure among the four factors relevant to determining the constitutionality of a mens rea requirement, as set out by this court in R. v. Martineau, [1990] 2 S.C.R. 633:

1. The stigma attached to the offence, and the available penalties requiring a mens rea reflecting the particular nature of the crime;
2. Whether the punishment is proportionate to the moral blameworthiness of the offender, and
3. The idea that those causing harm intentionally must be punished more severely than those causing harm unintentionally.

The Chief Justice in his reasons places considerable emphasis on the first factor of stigma. He argues that “there may well be no difference between the actus reus of manslaughter and that of murder; arguably both give rise to the stigma of being labelled by the state and the community as responsible for the wrongful death of another” (p. 12 [p. 225]). But later in his reasons (at p. 12 [p. 225]) he concedes that “the stigma which attaches to a conviction for unlawful act manslaughter”, while “significant, ... does not approach the opprobrium reserved in our society for those who knowingly or intentionally take the life of another” (emphasis is original). The Chief Justice goes on to observe that”[I]t is for this reason that manslaughter developed as a separate offence from murder at common law.” Nevertheless, in the end the Chief Justice concludes that the “constitutional imperative”, taken with other factors, requires a minimum mens rea of foreseeability of the risk of death, suggesting that stigma may remain an important factor in his reasoning.

To the extent that stigma is relied on as requiring foreseeability of the risk of death in the offence of manslaughter, I find it unconvincing. The most important feature of the stigma of manslaughter is the stigma which is not attached to it. The Criminal Code confines manslaughter to non-intentional homicide. A person convicted of manslaughter is not a murderer. He or she did not intend to kill someone. A person has been killed through the fault of another, and that is always serious. But by the very act of calling the killing manslaughter the law indicates that the killing is less blameworthy than murder. It may arise from negligence, or it may arise as the unintended result of a lesser unlawful act. The conduct is blameworthy and must be punished, but its stigma does not approach that of murder.

To put it another way, the stigma attached to manslaughter is an appropriate stigma. Manslaughter is not like constructive murder, where one could say that a person who did not in fact commit murder might be inappropriately branded with the stigma of murder. The stigma associated with manslaughter is arguably exactly what it should be for an unintentional killing in circumstances where risk of bodily harm was foreseeable. There is much common sense in the following observation:

The offender has killed, and it does not seem wrong in principle that, when he is far from blameless, he should be convicted of an offence of homicide. To some extent it must be an intuitive conclusion, but it does not seem too difficult to argue that those who kill, and who are going to be convicted of something, should be convicted of homicide. That, after all, is what they have done.
(Adrian Briggs, “In Defence of Manslaughter”, [1983] Crim. L.R. 764, at p.765).


It would shock the public’s conscience to think that a person could be convicted of manslaughter absent any moral fault based on foreseeability of harm. Conversely, it might well shock the public’s conscience to convict a person who has killed another only of aggravated assault - the result of requiring foreseeability of death - on the sole basis that the risk of death was not reasonably foreseeable. The terrible consequence of death demands more. In short, the mens rea requirement which the common law has adopted - foreseeability of harm - is entirely appropriate to the stigma associated with the offence of manslaughter. To change the mens rea requirement would be to risk the very disparity between mens rea and stigma of which the appellant complains.

I come then to the second factor mentioned in Martineau, the relationship between the punishment for the offence and the mens rea requirement. Here again, the offence of manslaughter stands in sharp contrast to the offence of murder. Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. This court acknowledged this in Martineau, at p. 647:

The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender.

It follows that the sentence attached to manslaughter does not require elevation of the degree of mens rea for the offence.
This brings me to the third factor relating to the gravity of the offence set out in Martineau, the principle that those causing harm intentionally must be punished more severely than those causing harm unintentionally. As noted, this principle is strictly observed in the case of manslaughter. It is by definition an unintentional crime. Accordingly, the penalties imposed are typically less than for its intentional counterpart, murder.

I conclude that the standard of mens rea required for manslaughter is appropriately tailored to the seriousness of the offence.

(b) Symmetry Between the Element of Fault and the Consequences of the Offence

The Chief Justice correctly observes that the criminal law has traditionally aimed at symmetry between the mens rea and the prohibited consequences of the offence. The actus reus generally consists of an act bringing about a prohibited consequence, e.g. death. Criminal law theory suggests that the accompanying mens rea must go to the prohibited consequence. The moral fault of the accused lies in the act of bringing about that consequence. The Chief Justice reasons from this proposition that since manslaughter is an offence involving the prohibited act of killing another, a mens rea of foreseeability of harm is insufficient, what is required is foreseeability of death.

The conclusion that the offence of manslaughter is unconstitutional because it does not require appreciation of the consequential risk of death rests on two propositions: (1) that risk of bodily harm is appreciably different from risk of death in the context of manslaughter, and (2) that the principle of absolute symmetry between mens rea and each consequence of a criminal offence is not only a general rule of criminal law, but a principle of fundamental justice which sets a constitutional minimum. In my view, neither of these propositions is free from doubt.

I turn first to the distinction between appreciation of the risk of bodily harm and the risk of death in the context of manslaughter. In my view, when the risk of bodily harm is combined with the established rule that a wrongdoer must take his victim as he finds him and the fact that death did in fact occur, the distinction disappears. The accused who asserts that the risk of death was not foreseeable is in effect asserting that a normal person would not have died in these circumstances, and that he could not foresee the peculiar vulnerability of the victim. Therefore, he says, he should be convicted only of assault causing bodily harm or some lesser offence. This is to abrogate the thin-skull rule that requires that the wrong-doer take his victim as he finds him. Conversely, to combine the test of reasonable foreseeability of bodily harm with the thin-skull rule is to mandate that in some cases, foreseeability of the risk of bodily harm alone will properly result in a conviction for manslaughter.…

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. Yet the consequence of adopting the amendment proposed by the Chief Justice  would be to abrogate this principle in cases of manslaughter.

In fact, when manslaughter is viewed in the context of the thinskull principle, the disparity diminishes between the mens rea of the offence and its consequence. The law does not posit the average victim. It says the aggressor must take the victim as he finds him. Wherever there is a risk of harm, there is also a practical risk that some victims may die as a result of the harm. At this point, the test of harm and death merge.

The second assumption inherent in the argument based on symmetry between mens rea and each consequence of the offence is that this is not only a general rule of criminal law, but a principle of fundamental justice—a basic constitutional requirement. I agree that as a general rule the mens rea of an offence relates to the consequences prohibited by the offence. As I stated in R. v. Theroux, [1993] 2 S.C.R. 5, at p. 17, typically, mens rea is concerned with the consequences of the prohibited actus reus.”Yet our criminal law contains important exceptions to this ideal of perfect symmetry. The presence of these exceptions suggests that the rule of symmetry is just that - a rule - to which there are exceptions. If this is so, then the rule cannot be elevated to the status of a principle of fundamental justice which must, by definition, have universal application.

It is important to distinguish between criminal law theory, which seeks the ideal of absolute symmetry between actus reus and mens rea, and the constitutional requirements of the Charter. As the Chief Justice has stated several times, “the Constitution does not always guarantee the ‘ideal’“(Lippé c. Charest (sub nom. R. c. Lippé (1990) [1991] 2 S.C.R. 114 at p. 142, R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 186; R. v.Finlay, S.C.C. No., 22596, released concurrently [reported (1993), 23 C.R. (4th) 321], at p. 12 [p. 330])

I know of no authority for the proposition that the mens rea of an offence must always attach to the precise consequence which is prohibited as a matter of constitutional necessity. The relevant constitutional principles have been cast more broadly. No person can be sent to prison without mens rea, or a guilty mind, and the seriousness of the offence must not be disproportionate to the degree of moral fault. Provided an element of mental fault or moral culpability is present, and provided that it is proportionate to the seriousness and consequences of the offence charged, the principles of fundamental justice are satisfied.

The principles of fundamental justice, viewed thus, empower Parliament to recognize that, notwithstanding the same level of moral fault, some offences may be more or less serious, depending on the consequences of the culpable act. As Macdonald J.A. put it in R. v. Brooks (1988), 41 C.C.C. (3d) 157 [64 C.R. (3d) 322] (B.C. C.A.), at p. 161 [C.C.C., p. 326 C.R.]:

Our criminal law has a ways recognized that the consequences of an unlawful act may affect the degree of culpability. The most noteworthy examples are attempts. They are always regarded less seriously than commission of the full offence. But the moral blameworthiness is identical.

Thus it cannot be said that the law in all circumstances insists on absolute symmetry between the mens rea and the consequences of the offence. Sometimes it does not insist on the consequences at all, as in crimes of attempts. Sometimes, as in unlawful act manslaughter, it elevates the crime by reason of its serious consequences while leaving the mental element the same.

Just as it would offend fundamental justice to punish a person who did not intend to kill for murder, so it would equally offend common notions of justice to acquit a person who has killed another of manslaughter and find him guilty instead of aggravated assault on the ground that death, as opposed to harm, was not foreseeable. Consequences can be important. As Sopinka J. put it in R. v.DeSousa (at pp. 966-67),

No principle of fundamental justice prevents Parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences.…

Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused. This is reflected in the creation of higher maximum penalties for offences with more serious consequences. Courts and legislators acknowledge the harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response.

Thus when considering the constitutionality of the requirement of foreseeability of bodily harm, the question is not whether the general rule of symmetry between mens rea and the consequences prohibited by the offence is met, but rather whether the fundamental principle of justice is satisfied that the gravity and blameworthiness of an offence must be commensurate with the moral fault engaged by that offence. Fundamental justice does not require absolute symmetry between moral fault and the prohibited consequences. Consequences, or the absence of consequences, can properly affect the seriousness with which Parliament treats specified conduct.

3. Policy Considerations

           
I have suggested that jurisprudential and historic considerations confirm a test for the mens rea of manslaughter based on foreseeability of the risk of bodily injury, rather than death. I have also argued that the considerations of the gravity of the offence and symmetry between the mens rea of the offence and its consequences do not entail the conclusion that the offence of manslaughter as it has been historically defined in terms of foreseeability of the risk of bodily harm is unconstitutional. It is my view that policy considerations support the same conclusion. in looking at whether a long-standing offence violates the principles of fundamental justice it is not amiss, in my view, to look at such considerations.

First, the need to deter dangerous conduct which may injure others and in fact may kill the peculiarly vulnerable supports the view that death need not be objectively foreseeable, only bodily injury. To tell people that if they embark on dangerous conduct which foreseeably may cause bodily harm which is neither trivial or transient and which in fact results in death, that they will not be held responsible for the death but only for aggravated assault, is less likely to deter such conduct than a message that they will be held responsible for the death, albeit under manslaughter not murder. Given the finality of death and the absolute unacceptability of killing another human being, it is not amiss to preserve the test which promises the greatest measure of deterrence, provided the penal consequences of the offence are not disproportionate. This is achieved by retaining the test of foreseeability of bodily harm in the offence of manslaughter.

Secondly, retention of the test based on foreseeability of bodily harm accords best with our sense of justice. I have earlier alluded to the view, attested to by the history of the offence of manslaughter, that causing the death of another through negligence or a dangerous unlawful act should be met by a special sanction reflecting the fact that a death occurred, even though death was not objectively foreseeable. This is supported by the sentiment that a person who engages in dangerous conduct that breaches the bodily integrity of another and puts that person at risk may properly be held responsible for an unforeseen death attributable to that person’s peculiar vulnerability; the aggressor takes the victim as he finds him. The criminal law must reflect not only the concerns of the accused, but the concerns of the victim and, where the victim is killed, the concerns of society for the victim’s fate. Both go into the equation of justice.

Finally, the traditional test founded on foreseeability of the risk of bodily harm provides, in my belief, a workable test which avoids troubling judges and juries about the fine distinction between foreseeability of the risk of bodily injury and foreseeability of the risk of death - a distinction which, as argued earlier, reduces to a formalistic technicality when put in the context of the thin-skull rule and the fact that death has in fact been inflicted by the accused’s dangerous act. The traditional common law test permits a principled approach to the offence which meets the concerns of society, provides fairness to the accused, and facilitates a just and workable trial process.

4. Summary on the Constitutionality of the Test of Foresight of Bodily Harm for Manslaughter

           
The foregoing considerations lead me to conclude that the fact that the mens rea of manslaughter requires foreseeable risk of harm rather than foreseeable risk of death does not violate the principles of fundamental justice. In the final analysis, the moral fault required for manslaughter is commensurate with the gravity of the offence and the penalties which it entails, and offends no principle of fundamental justice. The next issue is the nature of the objective test establishing foresight of bodily harm, to which I now turn.

B. The Nature of the Objective Test

           
I respectfully differ from the Chief Justice on the nature of the objective test used to determine the mens rea for crimes of negligence. In my view, the approach advocated by the Chief Justice personalizes the objective test to the point where it devolves into a subjective test, thus eroding the minimum standard of care which Parliament has laid down by the enactment of offences of manslaughter and penal negligence.

By way of background, it may be useful to restate what I understand the jurisprudence to date to have established regarding crimes of negligence and the objective test. The mens rea of a criminal offence may be either subjective or objective, subject to the principle of fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty. Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accused has proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her mental state, or indirectly from the act and its circumstances. Even in the latter case, however, it is concerned with “what was actually going on in the mind of this particular accused at the time in question”: L’Heureux-Dubé J. in R. v. Martineau, supra, at p. 655, quoting Stuart, Canadian Criminal Law: A Treatise, 2d ed. (Toronto: Carswell, 1987), at p. 121.

Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there had the accused proceeded reasonably.

It is now established that a person may be held criminally responsible for negligent conduct on the objective test, and that this alone does not violate the principle of fundamental justice that the moral fault of the accused must be commensurate with the gravity of the offence and its penalty: R. v. Hundal, [1993] 1 S.C.R. 867.

However, as stated in Martineau, it is appropriate that those who cause harm intentionally should be punished more severely than those who cause harm inadvertently. Moreover, the constitutionality of crimes of negligence is also subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment: R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; R. v. Sansregret, [1985] 1 S.C.R. 570. To put it in the terms used in Hundal: The negligence must constitute a “marked departure” from the standard of the reasonable person. The law does not lightly brand a person as a criminal. For this reason, I am in agreement with the Chief Justice in R. v. Finlay, supra, that the word “careless” in an underlying firearms offence must be read as requiring a marked departure from the constitutional norm.

It follows from this requirement, affirmed in Hundal, that in an offence based on unlawful conduct, a predicate offence involving carelessness or negligence must also be read as requiring a “marked departure” from the standard of the reasonable person. As pointed out in DeSousa, the underlying offence must be constitutionally sound.

To this point, the Chief Justice and I are not, as I perceive it, in disagreement. The difference between our approaches turns on the extent to which personal characteristics of the accused may affect liability under the objective test. Here we enter territory in large part uncharted. To date, debate has focused on whether an objective test for mens rea is ever available in the criminal law; little has been said about how, assuming it is applicable, it is to be applied. In R. v. Hundal, supra, it was said that the mens rea of dangerous driving should be assessed objectively in the context of all the events surrounding the incident. But the extent to which those circumstances include personal mental or psychological frailties of the accused was not explored in depth. In these circumstances, we must begin with the fundamental principles of criminal law.

1. Underlying Principles

            The debate about the degree to which personal characteristics should be reflected in the objective test for fault in offences of penal negligence engages two fundamental concepts of criminal law.

The first concept is the notion that the criminal law may properly hold people who engage in risky activities to a minimum standard of care, judged by what a reasonable person in all the circumstances would have done. This notion posits a uniform standard for all persons engaging in the activity, regardless of their background, education or psychological disposition.

The second concept is the principle that the morally innocent not be punished (Reference re s. 94(2) of the Motor Vehicle Act British Columbia), [1985] 2 S.C.R. 486, at p. 513; R. v. Gosset, S.C.C., No. 22523 [reported (1993), 23 C.R. (4th) 280], reasons of Lamer C.J.C. at p. 20 [p. 296]). This principle is the foundation of the requirement of criminal law that the accused must have a guilty mind, or mens rea.

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. Where I differ from the Chief Justice is in his designation of the sort of educational, experiential and so-called “habitual” factors personal to the accused which can be taken into account. The Chief Justice, while in principle advocating a uniform standard of care for all, in the result seems to contemplate a standard of care which varies with the background and predisposition of each accused. Thus an inexperienced, uneducated young person, like the accused in R. v. Naglik S.C.C., Nos. 22490 and 22636, September 9, 1993 [reported (1993) 23 C.R. (4th) 335], could be acquitted, even though she does not meet the standard of the reasonable person (reasons of the Chief Justice, at p. 24 [p. 353]). On the other hand, a person with special experience, like Mr. Creighton in this case, or the appellant police officer in R. v.Gosset, S.C.C., No. 22523 (reasons released concurrently), will be held to a higher standard than the ordinary reasonable person.

I must respectfully dissent from this extension of the objective test for criminal fault. In my view, considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails.

This principle that the criminal law will not convict the morally innocent does not, in my view, require consideration of personal factors short of incapacity. The criminal law, while requiring mental fault as an element of a conviction, has steadfastly rejected the idea that a person’s personal characteristics can (short of incapacity) excuse the person from meeting the standard of conduct imposed by the law.…

To summarize, the fundamental premises upon which our criminal law rests mandate that personal characteristics not directly relevant to an element of the offence serve as excuses only at the point where they establish incapacity, whether the incapacity be the ability to ‘appreciate the nature and quality of one’s conduct’ in the context of intentional crimes, or the incapacity to appreciate the risk involved in one’s conduct in the context of crimes of manslaughter or penal negligence. The principle that we eschew conviction of the morally innocent requires no more.

This test I believe to flow from the fundamental premises of our system of criminal justice. But drawing the line of criminal responsibility for negligent conduct at incapacity is also socially justifiable. In a society which licenses people, expressly or impliedly, to engage in a wide range of dangerous activities posing risk to the safety of others, it is reasonable to require that those choosing to undertake such activities and possessing the basic capacity to understand their danger take the trouble to exercise that capacity (see R. v.Hundal, supra). Not only does the absence of such care connote moral fault, but the sanction of the criminal law is justifiably invoked to deter others who choose to undertake such activities from proceeding without the requisite caution. Even those who lack the advantages of age, experience and education may properly be held to this standard as a condition of choosing to engage in activities which may maim or kill other innocent people.

The criminal law, as noted, is concerned with setting minimum standards of behaviour in defined circumstances. If this goal is to be achieved, the minimum cannot be lowered because of the frailties or inexperience of the accused, short of incapacity. The words of the Ontario Court of Appeal in McErlean v. Sarel (1987), 61 O.R. (2d) 396, a civil case, at p. 413, are equally apposite to the criminal context. The question was whether a teenager riding a bike should be held to the standard of care of a reasonable adult. The court (Howland C.J.O., Houlden, Morden, Robins and Tarnopolsky JJ.A.) stated: “it would be unfair and, indeed, dangerous to the public to permit [teenagers] in the operation of these power-driven vehicles to observe any lesser standard than that required of all other drivers of such vehicles. The circumstances of contemporary life require a single standard of care with respect to such activities.” (See also Dellwo v. Pearson, 107 N.W.2d 859 (Minn. 1961); Binchy, “The Adult Activities Doctrine in Negligence Law” (1985), 11 Wm. Mitchell L. Rev. 733.)

But the social justification for a uniform standard of care stops at the point of incapacity. Convicting and punishing a person who lacks the capacity to do what the law says he or she should have done serves no useful purpose. As Wilson J. explains in Perka v. R., supra, at p. 273, the criminal law makes distinctions in situations where “punishment cannot on any grounds be justified’’. Such situations mandate an acquittal, according to Wilson J., “because no purpose inherent to criminal liability and punishment- i.e. the setting right of a wrongful act - can be accomplished for an act which no rational person would avoid” (p. 273). For these reasons the criminal law does not assign liability where the accused’s culpable behaviour is caused by extrinsic factors beyond his or her control.

These considerations suggest that the practical as well as the theoretical concerns of the criminal law in the field of penal negligence are best served by insisting on a uniform standard of conduct for everyone, subject to cases where the accused was not capable of recognizing and avoiding the risk attendant on the activity in question. Beyond this, the standard should not be individualized by reason of the peculiar personal characteristics of the accused. The purpose of Parliament in creating an offence of objective foresight, as in manslaughter, is to stipulate a minimum standard which people engaged in the activity in question are expected to meet. If the standard is lowered by reason of the lack of experience, education, or the presence of some other “personal characteristic” of the accused, the minimum standard which the law imposes on those engaging in the activity in question will be eroded. The objective test inevitably is transformed into a subjective test, violating the wise admonition in R. v. Hundal, supra, that there should be a clear distinction in the law between subjective and objective standards, and negating the legislative goal of a minimum standard of care for all those who choose to engage in criminally dangerous conduct (per Cory J. at p. 883; per McLachlin J. at p. 873).…

The foregoing analysis suggests the following line of inquiry in cases of penal negligence. The first question is whether actus reus is established. This requires that the negligence constitute a marked departure from the standards of the reasonable person in all the circumstances of the case. This may consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when in all the circumstances it is dangerous to do so.

The next question is whether the mens rea is established. As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally inferred from the facts. The standard is that of the reasonable person in the circumstances of the accused. If a person has committed a manifestly dangerous act, it is reasonable, absent indications to the contrary, to infer that he or she failed to direct his or her mind to the risk and the need to take care. However, the normal inference may be negated by evidence raising a reasonable doubt as to lack of capacity to appreciate the risk. Thus, if a prima facie case for actus reus and mens rea are made out, it is necessary to ask a further question: did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted. If not, the accused must be acquitted.

I believe the approach I have proposed to rest on sound principles of criminal law. Properly applied, it will enable the conviction and punishment of those guilty of dangerous or unlawful acts which kill others. It will permit Parliament to set a minimum standard of care which all those engaged in such activities must observe. And it will uphold the fundamental principle of justice that criminal liability must not be imposed in the absence of moral fault

I conclude that the legal standard of care for all crimes of negligence is that of the reasonable person. Personal factors are not relevant, except on the question of whether the accused possessed the necessary capacity to appreciate the risk.

C. Application of the Law to this Appeal

            The trial judge properly found that Mr. Creighton committed the unlawful act of trafficking in cocaine. He also found that he was guilty of criminal negligence, using the standard which I view as correct, the standard of the reasonable person. The only remaining question, on the view I take of the law, was whether the reasonable person in all the circumstances would have foreseen the risk of bodily harm. I am satisfied that the answer to this question must be affirmative. At the very least, a person administering a dangerous drug like cocaine to another has a duty to inform himself as to the precise risk the injection entails and to refrain from administering it unless reasonably satisfied that there was no risk of harm. That was not the case here, as the trial judge found.

The conviction was properly entered and should not be disturbed. Like the Chief Justice, I find it unnecessary to consider the alternative ground of manslaughter by criminal negligence.

I would answer the constitutional question in the negative and dismiss the appeal.




[1] General Statutes § 53-21. Injury or risk of injury to, or impairing morals of, children.
Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, ... shall be guilty of a class C felony.

[2] General Statutes § 53a-59. Assault in the first degree: Class B felony.
(a) A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person....

[3] Although the trial court never stated who actually had caused the injuries, we take judicial notice that the child’s mother entered a plea of nolo contendere to the crimes of intentional assault in the first degree and risk of injury to a minor. She received a sentence of twelve years incarceration suspended after seven years.

[4] A leading case first outlining these four situations added a requirement to the fourth that appears to have been omitted in recent years. See Jones v. United States, 113 U.S. App. D.C. 352, 308 F.2d 307, 310 (D.C. App. 1962) (“where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid” [emphasis added]). This refinement would not seem applicable to an infant, or for that matter a child of tender years, because a child is always dependent on others for care and intervention when sick or in danger.

[5] There is, of course, a difference between the recognition of an existing duty, on the one hand, and the creation of an altogether new duty, on the other. Whether that distinction is significant for due process purposes under the specific facts of this case remains to be seen.

[6] The importance of this issue to the defendant cannot be overstated in view of the fact that he received a cumulative sentence of thirty years imprisonment on the six counts of assault in the first degree. Because the defendant also received a consecutive ten year prison term on the one count of risk of injury to a child, his total effective sentence is forty years imprisonment. By contrast, the child’s mother, who, it appears, actually caused the child’s injuries, received a total effective sentence of only seven years imprisonment.

[7] Yes, that Blackstone; see Reports of Cases Determined in The Several Courts of Westminster-Hall, from 1746 to 1779: By the Honourable Sir William Blackstone, Knt. One of the Justice of the Court of Common Pleas: With Memoirs of His Life (2 vols.). —Ed.

[8] This “Act for the better Prevention of Offences” imposed a prison sentence of up to three years on anyone “found by Night having in his Possession without lawful Excuse (the Proof of which Excuse shall lie on such Person) any Picklock Key, Crow, Jack, Bit, or other Implement of Housebreaking.” —Ed.

[9] E.g., Regina v. Dugdale, 1 El. & Bl. 435, 439 (1853) (Coleridge, J.).

[10] See e.g., Rex v. Lennard, 1 Leach 90 (1772) (applying 8 & 9 Will. 3, c. 26 (Eng.))

[11] See Regina v. Prince, 2 L.R. Cr. Cas. Res. 154 (1875).

[12] “It shall be unlawful for any person under the age of sixteen to possess any air-gun, spring-gun…, or any gun or any instrument or weapon in or upon which any loaded or blank cartridges may be used, or any loaded or blank cartridges or ammunition therefor, or any dangerous knife…” —Ed.

[13] This aspect of the case is discussed infra. —Ed.